Friday, November 1, 2013

Retail, Wholesale and Department Store Union v. National Labor Relations Board case brief

Retail, Wholesale and Department Store Union v. National Labor Relations Board case brief
466 F.2d 380 (1972)

Petitioner, National Labor Relations Board, issued an order to respondent company to cease from engaging in unfair labor practices, to make whole the 10 strikers whose reinstatement was unduly delayed, and to offer immediate reinstatement to the unreinstated strikers and to make them whole for the company's failure to offer them jobs, discharging any employees hired instead. The Board petitioned the court for enforcement of its order.

When the union members went on strike, the company decided to continue operations with employees who chose not to strike and hired new employees to replace the strikers. When the strike ended, the company refused to reinstate any of the strikers who had distributed leaflets containing information damaging to the company.

  • The court held that: 
  • (1) the Board's conclusion that the company had committed an unfair labor practice by unduly delaying some employees' reinstatement was not unreasonable or arbitrary because an employer did not need to know which specific employees desired reinstatement in order to determine which positions were available; 
  • (2) the Board correctly found that the company had condoned the distribution of the leaflets by some of the strikers because there was conflicting testimony and the Board was in the best position to determine the credibility of the witnesses' testimony; and 
  • (3) the Board erred in imposing a back-pay remedy with respect to the permanently replaced strikers because the company had not engaged in discriminatory treatment; thus, retroactively applying a decision requiring back-pay for strikers who were permanently replaced was not proper.


The court denied enforcement of that portion of the Board's order requiring the company to reinstate and provide back-pay to replaced strikers for any period prior to the enactment of a Supreme Court decision requiring such remedies. The remainder of the Board's order was enforced.

Recommended Supplements for Administrative Law Examples & Explanations: Administrative Law, Fourth Edition
Administrative Law and Process: In a Nutshell (Nutshell Series)

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