Lead Opinion
delivered the opinion of the Court.
We decide today whether, at the end of a strike, an employer is required by the Railway Labor Act (RLA or Act), 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq., to displace employees who worked during the strike in order to reinstate striking employees with greater seniority.
HH
In March 1984, Trans World Airlines, Inc. (TWA), and the Independent Federation of Flight Attendants (IFFA or
For two years TWA and the Union unsuccessfully bargained over wages and working conditions not including the seniority bidding system. They pursued all the required dispute resolution mechanisms of the RLA, including direct negotiation, 45 U. S. C. § 152 Second, mediation, 45 U. S. C. § 155 First, and the final 30-day “cooling off” period. Ibid. By early 1986 a strike seemed imminent, and on March 7, 1986, the Union went out on strike.
TWA informed its flight attendants before and during the strike that it would continue operations by hiring permanent replacements for striking flight attendants, by continuing to employ any flight attendant who chose not to strike, and by rehiring any striker who abandoned the strike and made an unconditional offer to return to any available vacancies.
As promised, TWA continued its operations during the 72-day strike by utilizing approximately 1,280 flight attendants who either did not strike or returned to work before the end of the strike and by hiring and fully training approximately 2,350 new flight attendants, some 1,220 of whom were hired during the first few days of the strike. On May 17, 1986, the Union made an unconditional offer to TWA on behalf of the approximately 5,000 flight attendants who had remained on strike to return to work. TWA accepted the offer but refused the Union’s May 27th demand that TWA displace those prestrike employees who were working as of May 17th (“crossover” employees). Accordingly, TWA initially recalled only the 197 most senior full-term strikers to fill available job and domicile vacancies. By the terms of a poststrike arbitral agreement, these strikers and all subsequently reinstated full-term strikers returned to work as vacancies arose and with precisely the seniority they would have had if no strike
In an effort to reinstate all the full-term strikers by displacing the newly hired flight attendants and less senior crossover employees, the Union proceeded on two fronts. First, it brought an injunction action alleging that the full-term strikers were not “economic strikers” but “unfair labor practice strikers” entitled to reinstatement by application of principles this Court has developed in interpreting the National Labor Relations Act (NLRA). 29 U. S. C. § 151 et seq. See Mastro Plastics Corp. v. NLRB,
Meanwhile, TWA sought a declaratory judgment that the union security clause of the prestrike collective bargaining agreement containing provisions for the checkoff of union dues and a requirement that new hires join the Union did not survive the self-help period after the parties had bargained to impasse. On cross motions for summary judgment, the same District Court ruled that, because the union security clause
Appeals were taken from both judgments. The Court of Appeals affirmed the District Court’s ruling that the union security clause had survived the period of self-help. Trans World Airlines, Inc. v. Independent Federation of Flight Attendants,
We granted petitions for writs of certiorari in both cases. Trans World Airlines, Inc. v. Flight Attendants, 482 U. S. 913 (1987) (TWA I); Flight Attendants v. Trans World Airlines, Inc.,
II
We have observed in the past that carefully drawn analogies from the federal common labor law developed under the NLRA may be helpful in deciding cases under the RLA. Trainmen v. Jacksonville Terminal Co.,
We first considered the reinstatement rights of strikers under the NLRA in NLRB v. Mackay Radio & Telegraph Co.,
TWA asks us to apply this line of cases decided under the NLRA to determine the status under the RLA of those prestrike flight attendants who were working at the conclusion of the strike. TWA argues that it would be completely anomalous to hold that full-term strikers may displace junior crossovers when, as the Union has conceded, they may not displace newly hired permanent replacements under either statute. The Union, by contrast, argues that the rule of Mackay Radio is inapplicable to junior crossovers because of differences between the RLA and the NLRA and because, even under the NLRA, junior crossovers would be treated differently from newly hired permanent replacements.
The Union relies on Erie Resistor, supra, to distinguish junior crossovers from new hires under the NLRA. In Erie Resistor we struck down an employer’s award of 20 years’ superseniority to new hires and crossovers as an unfair labor practice within the meaning of § 8(a)(1) and § 8(a)(3) of the NLRA. 29 U. S. C. §§ 158(a)(1), 158(a)(3). We observed:
“. . . Super-seniority affects the tenure of all strikers whereas permanent replacement, proper under Mackay, affects only those who are, in actuality, replaced. It is*435 one thing to say that a striker is subject to loss of his job at the strike’s end but quite another to hold that in addition to the threat of replacement, all strikers will at best return to their jobs with seniority inferior to that of the replacements and of those who left the strike.
“. . . Unlike the replacement granted in Mackay which ceases to be an issue once the strike is over, the [superseniority] plan here creates a cleavage in the plant continuing long after the strike is ended. Employees are henceforth divided into two camps: those who stayed with the union and those who returned before the end of the strike and thereby gained extra seniority. This breach is reemphasized with each subsequent layoff and stands as an ever-present reminder of the dangers connected with striking and with union activities in general.”373 U. S., at 230-231 .
The Union does not and cannot contend that reinstated full-term strikers have less seniority relative to new hires and junior crossovers than they would have had if they had not remained on strike. It is clear that reinstated full-term strikers lost no seniority either in absolute or relative terms. Thus, unlike the situation in Erie Resistor, any future reductions in force at TWA will permit reinstated full-term strikers to displace junior flight attendants exactly as would have been the case in the absence of any strike. Similarly, should any vacancies develop in desirable job assignments or domiciles, reinstated full-term strikers who have bid on those vacancies will maintain their priority over junior flight attendants, whether they are new hires, crossovers, or full-term strikers. In the same vein, periodic bids on job scheduling will find senior reinstated full-term strikers maintaining their priority over all their junior colleagues. In short, once reinstated, the seniority of full-term strikers is in no way affected by their decision to strike.
We reject this effort to expand Erie Resistor. Both the RLA and the NLRA protect an employee’s right to choose not to strike. 45 U. S. C. § 152 Fourth; 29 U. S. C. § 157, and, thereby, protect employees’ rights to “the benefit of their individual decisions not to strike . . . .” Post, at 448, n. 4 (Brennan, J., dissenting).
None of these scenarios, however, present the prospect of a continuing diminution of seniority upon reinstatement at the end of the strike that was central to our decision in Erie Resistor. All that has occurred is that the employer has filled vacancies created by striking employees. Some of these vacancies will be filled by newly hired employees, others by doubtless more experienced and therefore more needed employees who either refused to strike or abandoned the strike. The dissent’s observation that, “at the conclusion of the strike,” discrimination in the filling of “available
To distinguish crossovers from new hires in the manner IFFA proposes would have the effect of penalizing those who decided not to strike in order to benefit those who did. Because permanent replacements need not be discharged at the conclusion of a strike in which the union has been unsuccessful, a certain number of prestrike employees will find themselves without work. We see no reason why those employees who chose not to gamble on the success of the strike should suffer the consequences when the gamble proves unsuccessful. Requiring junior crossovers, who cannot themselves displace the newly hired permanent replacements, and “who rank lowest in seniority,” post, at 447 (Brennan, J., dissenting), to be displaced by more senior full-term strikers is precisely to visit the consequences of the lost gamble on those who refused to take the risk. While the employer and union in many circumstances may reach a back-to-work agreement that would displace crossovers and new hires or an employer may unilaterally decide to permit such displacement, nothing in the NLRA or the federal common law we have developed under that statute requires such a result. That such agreements are typically one mark of a successful strike is yet another indication that crossovers opted not to
J — I HH
The Union argues, however, that whether or not the NLRA prohibits a crossover policy such as TWA’s, the statutory framework of the RLA forbids such a policy.
Although we have observed that the NLRA may provide useful analogies for interpreting the RLA, we have also emphasized that the NLRA “cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly with due regard for the many differences between the statutory schemes.” Trainmen v. Jacksonville Terminal,
The Union points to § 2 Fourth of the RLA as the source of this limitation on the use of the employer’s economic power. The section provides, in pertinent part:
“No carrier, its officers or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, ... or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization . . . .” 45 U. S. C. § 152 Fourth.
The Union argues that TWA’s crossover policy, which created an incentive for flight attendants either not to join or to abandon the strike, constituted influence or coercion in an effort to induce the flight attendants not to remain members of IFFA and was, therefore, impermissible under §2 Fourth.
Section 2 Fourth was enacted as part of the 1934 amendments to the RLA. 48 Stat. 1185. From the time of our very first opportunity to interpret the 1934 amendments, we have viewed them as addressing primarily the precertification rights and freedoms of unorganized employees. In Virginian R. Co. v. Railway Employees,
The explanation for the precertification focus of the 1934 amendments is clear. The RLA provides an exhaustively detailed procedural framework “to facilitate the voluntary settlement of major disputes.” Trainmen v. Jacksonville Terminal, supra, at 378. The effectiveness of these private dispute resolution procedures depends on the initial assurance that the employees’ putative representative is not subject to control by the employer and on the subsequent assurance that neither party will be able to enlist the courts to further its own partisan ends. See Chicago & N. W. R. Co. v. Transportation Union,
Neither the RLA itself nor any analogies to the NLRA indicate that the crossover policy adopted by TWA during the period of self-help was unlawful. Rather, the decision to guarantee to crossovers the same protections lawfully applied to new hires was a simple decision to apply the preexisting seniority terms of the collective bargaining agreement uniformly to all working employees. That this decision had the effect of encouraging prestrike workers to remain on the job during the strike or to abandon the strike and return to work before all vacancies were filled was an effect of the exercise of TWA’s peaceful economic power, a power that the company was legally free to deploy once the parties had exhausted the private dispute resolution mechanisms of the RLA. Accordingly, the judgment of the Court of Appeals is
Reversed.
Notes
The Union has abandoned as irrelevant arguments that persuaded the Court of Appeals below, based on its holding in TWA I, that the union security clause of the prestrike collective bargaining agreement had survived the strike. Brief for Respondent 4, n. 6. We agree that this concession by the Union is proper. Nothing in the prestrike collective bargaining agreement guaranteed reinstatement of striking flight attendants to positions occupied by junior crossovers.
Our affirmance in TWA I of the judgment that the union security clause sanctioned by 45 U. S. C. § 152 Eleventh survived the strike means that crossover and new hires continue to bear the burden of paying union dues. Free riding on the benefits that may come to these employees as a result of IFFA’s status as the flight attendants’ exclusive bargaining representative is thereby foreclosed. See Machinists v. Street,
Dissenting Opinion
with whom Justice Marshall joins, dissenting.
The issue in this case is whether under the Railway Labor Act (RLA) an employer, in allocating available jobs among members of a bargaining unit at the conclusion of a strike, may discriminate against full-term strikers by giving preference to employees who crossed the picket line to return to work before the strike was over. Because I conclude that such discrimination on the basis of union activity is “inherently destructive” of the right to strike, as guaranteed by both the RLA and the National Labor Relations Act (NLRA), I dissent.
I
Notwithstanding the Court’s suggestion that the portion of the RLA at issue here addresses “primarily” the precerti-fication context, ante, at 440, it should be clear that under the RLA an employee’s right to strike is protected against coercion by her employer. The Court relies in part on Trainmen
“[EJmployees subject to the Railway Labor Act enjoy the right to engage in primary strikes over major disputes. . . . Whether the source of this right be found in a particular provision of the Railway Labor Act or in the scheme as a whole, it is integral to the Act.” Id., at 384-385 (footnote omitted).
The “particular provision,” we made clear, was §2 Fourth. Id., at 385, n. 20. While the issue in Jacksonville Terminal was the extent of a state court’s power to issue an antistrike injunction, we emphasized that the RLA’s guarantee of the right to strike was not limited to the context of interference by the State: “However, §2 Fourth of the RLA, added in 1934, was designed primarily, if not exclusively to prohibit coercive employer practices.” Ibid, (emphasis added). Whatever may have been the “primary” purpose of § 2 Fourth, it is too late in the day to suggest that this provision, at least when read in the context of the entire RLA, does not prohibit employer coercion of the right to strike.
The Court compounds its error in regard to the reach of § 2 Fourth with a more fundamental mistake when it appears to assume that the employer’s action in this case is sanctioned by the mere fact that it occurred during the “self-help” stage of the dispute. Ante, at 440-442. Clearly this cannot be the case. I am confident that the Court would agree, for example, that an employer could not legally discharge striking employees under the RLA. But if this is so, it must be because the RLA contains some injunction against employer interference with the right to strike, even when that interference consists of actions taken during the period of permissible self-help. Thus, the question is not whether the RLA protects the right to strike against employer coercion — for it surely does — but whether that protection goes so far as to prohibit the specific employer practice at issue here.
II
A
That the RLA broadly enjoins discrimination against strikers does not necessarily settle the issue, of course. In the context of the NLRA we have on occasion found reason to
While of course “the National Labor Relations Act cannot be imported wholesale into the railway labor arena,” id., at 383, we have frequently “referred to the NLRA for assistance in construing the Railway Labor Act.” Ibid. Given the paucity of RLA precedent on the specific issue before us, the Court quite properly looks to the NLRA for guidance. Ante, at 432-439. It arrives at an incorrect conclusion, however, because it mischaracterizes the employer’s action and because it appears unwilling to take seriously the protection Congress has seen fit to afford to the right to strike.
The Court’s conception of this case is most clearly expressed in a key paragraph that summarizes its discussion of the NLRA case law:
“To distinguish crossovers from new hires in the manner IFFA proposes would have the effect of penalizing those who decided not to strike in order to benefit those who did. . . . We see no reason why those employees who chose not to gamble on the success of the strike should suffer the consequences when the gamble proves unsuccessful. Requiring junior crossovers ... to be displaced by more senior full-term strikers is precisely to visit the consequences of the lost gamble on those who refused to take the risk.” Ante, at 438.
This understanding of the Union’s position contains a factual and a legal error, both of which infect the Court’s analysis of the case.
More fundamental, I fear, is the legal mistake inherent in the Court’s objection to “penalizing those who decided not to strike in order to benefit those who did.” The Court, of course, does precisely the opposite: it allows TWA to single out for penalty precisely those employees who were faithful to the strike until the end, in order to benefit those who abandoned it. What is unarticulated is the Court’s basis for choosing one position over the other. If indeed one group or the other is to be “penalized,”
B
We have recognized only a narrow exception to the general principle prohibiting discrimination against employees for exercising their right to strike. Since Mackay Radio it has been accepted that an employer may hire “permanent replacements” in order to maintain operations during a strike, and that these replacements need not be displaced to make room for returning strikers. The question here is whether the Mackay exception should be expanded to cover the present case, involving as it does members of the striking bargaining unit who have crossed the picket lines, rather than new hires from outside the bargaining unit. Despite the superficial similarity between the two situations, strong reasons counsel against applying the Mackay rule to crossover employees.
The employer’s promise to members of the bargaining unit that they will not be displaced at the end of a strike if they
In Erie Resistor we found the employer’s offer of super-seniority to new hires and crossovers to be “inherently destructive” of the right to strike and therefore in contravention of §§ 8(a)(1) and (a)(3) of the NLRA.
Precedent under the NLRA clearly forbids an employer to burden the right to strike in the manner TWA has done in this case, and I see no reason why that conclusion should not apply equally under the RLA.
In a case like this it is not difficult to conjure up a parade of horribles to support either position. Forbidding an employer to discriminate in favor of crossovers, as I would do, makes it impossible for a junior employee who does not want to strike, and who is unable to persuade a majority of her colleagues to adopt that stance, to be sure that she can save her job. But that employee is in the same position she would be in if a layoff were necessary for other reasons beyond her control, such as an economic downturn. The principle of seniority is based on the notion that it is those employees who have worked longest in an enterprise and therefore have most at stake whose jobs should be most protected. Permitting the employer to give preference to crossovers, as the Court today does, will mean that an employee of only six months’ experience, who abandoned the strike one day before it ended, could displace a 20-year veteran who chose to remain faithful to the decision made collectively with her fellow workers until the group as a whole decided to end the strike. Unfortunately there will be individual injustices whichever
We have noted that §2 Fourth is “comparable” to §7 of the NLRA, which protects the right to engage in concerted activities. Trainmen v. Jacksonville Terminal Co.,
It is particularly difficult to discern any reason why judicial intervention should be necessary to enforce a union’s duty of fair representation under the RLA, see Steele v. Louisville & Nashville R. Co.,
Of course, as explained in the preceding paragraph, the position the Union advocates does not “penalize” any employee on the basis of her decision to strike or not to strike.
That some crossovers, like some strikers — in both cases the most junior members of the work force — may lose their jobs because of the collective decision to strike is simply a reflection of the employer’s right to hire “permanent replacements,” or perhaps of a downturn in business due to the strike or other factors. The Court’s argument that the crossovers should not be “penalized” rests on its apparent belief that they should not be denied the benefit of their individual decisions not to strike (although it should be noted that the Court apparently objects to “penalizing” even those crossovers who voted for the strike, as long as they repented of that decision before the strike ended). But “[u]nion activity, by its very nature, is group activity,” NLRB v. Textile Workers,
Unlike Justice Blackmun, post, at 464-466, I would weigh necessity and prejudice in categories of situations rather than on a case-by-case
While there might be circumstances in which some neutral principle other than seniority might be acceptable as a basis for recalls (e. g., the employer’s need for particular skills), seniority is so well established in labor relations as the basis for such decisions that exceptions should be rare. Indeed we have described seniority as of “overriding importance” in “determining] who gets or who keeps an available job.” Humphrey v. Moore,
The NLRB, in an amicus brief, argues that the employer not only may, but must, accord preferential treatment to crossovers, on the ground that once the crossovers have resumed work — which they have a right to do if jobs are available — the positions they occupy are not “vacant” at the end of the strike. Brief for NLRB as Amicus Curiae 13-15; see also ante, at 438. This argument simply begs the question. If the employer is prohibited from discriminating among members of the bargaining unit on the basis of strike activity in allocating poststrike jobs, then the employer may not promise certain bargaining-unit members that the jobs will be theirs permanently, merely because those members returned to work during the strike. Whether or not the employer may do this is precisely the question this case presents, and the answer to that question cannot be assumed by
Similarly, the Court’s concluding statement that “the decision to guarantee to crossovers the same protections lawfully applied to new hires was a simple decision to apply the pre-existing seniority terms of the collective bargaining agreement uniformly to all working employees,” ante, at 443 (emphasis added), again assumes what must be proved. If “working” refers to the poststrike period, which employees are working and which are not is a function of the employer’s decision to give preference to the crossovers; if instead it refers to the period prior to the strike’s end, the question remains whether the employer may make poststrike employment decisions on the basis of which employees were “working” during the strike.
Dissenting Opinion
with whom Justice Brennan joins as to Parts I and II, dissenting.
The central question in this Railway Labor Act (RLA) case is whether it is unlawful for a carrier to refuse to reinstate employees who supported a strike until its end (“full-term strikers”) solely because the carrier chooses to retain in its active work force employees who returned to work before the strike’s conclusion (“crossovers”).
The Court today answers that question in the negative, concluding that such conduct never violates the RLA, regardless of whether business necessity dictated the carrier’s course of action. In dissent, Justice Brennan takes the diametrically opposite view, in agreement with the Court of Appeals. Justice Brennan finds such conduct “inherently destructive,” ante, at 443, of the right to strike and violative of the RLA regardless of any proffered business justification. In my view, neither of these positions accurately captures the delicate balance our RLA precedents have attempted to achieve between the public’s dual interests in the maintenance of transportation service during labor disputes and in the long-term stability of labor relations in the rail and airline industries.
I
The threshold question is whether the provisions and policies of the RLA place any limit on a carrier’s exercise of self-help during a strike. The Court acknowledges that the RLA does contemplate such a limit. Indeed, there would be little need to distinguish, see ante, at 436, TWA’s crossover policy from the superseniority policy in NLRB v. Erie Resistor Corp.,
When the Court addressed the permissible scope of employer self-help under the RLA in Trainmen v. Jacksonville Terminal Co.,
The Court’s stated reason for rejecting the applicability of § 2 Fourth sweeps too broadly. The Court places great emphasis on the fact that the 1934 amendments which introduced §2 Fourth had a “precertification focus.” Ante, at 441. It should be clear, however, that a precertiflcation focus is not the same as a postcertification blindspot. In 1934, Congress was faced with evidence that railroad employees’ efforts at self-organization had been thwarted by coercive employer tactics, including the support of employer-dominated company unions. See Machinists v. Street,
Indeed, the Court today acknowledges that, precertification focus notwithstanding, §2 Fourth has relevance to the right of employees to decide whether to assist in postcerti-fication union activities, free from employer coercion. The Court places substantial reliance on § 2 Fourth as the source of “an employee’s right to choose not to strike,” ante, at 436,
Finding § 2 Fourth to be a source of the right not to strike is entirely proper. In Radio Officers v. NLRB,
In contrast, the Court’s suggestion that the RLA provides employees no express protection against discrimination on the basis of levels of support for union activities leads the Court to limit the RLA’s force to whatever protections this Court is willing to “imply” from the RLA’s general policies. This uncertainty carries with it the danger of undermining the stability of labor relations under the RLA. Under this Court’s longstanding RLA jurisprudence, a strike that takes place after the RLA’s dispute resolution mechanisms have failed “represents only an interruption in the continuity of the relation” between employer and union, not an invitation for “labor-management relations [to] revert to the jungle.” Railway Clerks v. Florida East Coast R. Co.,
The Court’s position leaves far too little room for these concerns. By interpreting the RLA as affording protection to striking employees only in the most unusual circumstances, the Court encourages employers to test the limits, knowing that the burden will fall on the employees to demonstrate that the employer’s conduct has crossed an artificially high barrier of “implied” tolerance for employer coercion. The Court thus needlessly creates incentives to undermine long-
In sum, this Court consistently has recognized that there is a difference between traditional self-help economic pressure and coercion or discrimination in derogation of federal law. The Court today continues to recognize this principle, and is willing to “imply” protection in extraordinary circumstances. But Congress did not leave the protection of employee rights to this Court’s selective “implication.” I reject this Court’s failure to give full force to §2 Fourth, the RLA’s express statutory prohibition of coercive and discriminatory employer conduct.
II
Even under the standards the Court articulates today, the result it reaches in this case cannot stand. The Court’s conclusion that TWA’s conduct cannot be said to violate the statutory rights (implied or otherwise) of full-term strikers fails to take seriously the significant discriminatory impact of TWA’s refusal to reinstate full-term strikers. That failure rests on two assumptions that are patently inconsistent with central tenets of federal labor law.
First, the Court appears to suggest that because there were no “vacancies” for the full-term strikers to fill, employer “discrimination” cannot have been a factor in the final allocation of poststrike positions in the active work force. Contrary to this view, this Court long has held that the mere fact that a particular employee occupies a job at the conclusion of a strike does not entitle the employee to retain that job. This is illustrated by our NLRA precedents. Under NLRB v. Mackay Radio & Telegraph Co.,
Second, and in tacit recognition that the poststrike situation is governed by law rather than by force or happenstance, the Court elevates the rights of crossovers to the preeminent position, a position which in the Court’s view flows naturally from the RLA’s and NLRA’s protection of “an employee’s right to choose not to strike.” Ante, at 436. From the fact that some employees will disagree with the union’s decision to strike, the Court deduces the proposition that “employees who chose not to gamble on the success of the strike” should not “suffer the consequences when the gamble proves unsuccessful.” Ante, at 438.
The Court’s analysis entirely ignores, and threatens to vitiate, the “‘majority-rule concept [that] is today unquestionably at the center of our federal labor policy.’” NLRB v. Allis-Chalmers Mfg. Co.,
The Court also overlooks the long-recognized fact that the benefits of successful union activity flow to all members of the bargaining unit regardless of their personal support for the union. See Railway Employees v. Hanson,
This newly asserted statutory right of dissidents to be free from the consequences of collective action buckles under the heavy load the Court asks it to bear. As TWA concedes and the Court recognizes, employers and unions often lawfully agree to displace crossovers through poststrike back-to-work agreements, and employers may unilaterally decide to permit such displacement. See Brief for Petitioner 29; see also Copaz Packing Corp., 115 LRRM 1008, 1008 (1983) (NLRB General Counsel Advice Memorandum) (employers are “privileged to enter into a strike settlement which providefs] that . . . crossovers and strikers who remained on strike until the settlement would be treated equally for recall purposes”); Florida East Coast R. Co., 41 Lab. Arb. 1001, 1006-1007 (1963) (recommendation of Presidential Emergency Board that the carrier replace crossovers and new-hire replacements, who were the poststrike “occupants of the jobs cov
In sum, the Court concludes that TWA’s conduct was lawful on the basis of two assumptions: that the resulting job distribution is justified by the absence of “vacancies” for the returning strikers, and that TWA’s acts were a necessary consequence of its duty to respect the crossovers’ statutory right not to strike. The Court allows these assumptions to stand in the way of considering the adverse impact of TWA’s actions on the full-term strikers’ statutory rights. But I find these assumptions to be without foundation, and thus turn to the question the Court fails to reach.
l — t h — I I — I
A
At the conclusion of the strike, TWA refused to reinstate full-term strikers to positions then occupied by crossovers. In analyzing the lawfulness of TWA’s conduct, certain NLRA principles provide a useful starting point. This Court has recognized under the NLRA that an employer’s refusal to reinstate striking employees discourages employees from exercising their right to organize and to strike, NLRB v. Fleetwood Trailer Co.,
These basic principles are consistent with our RLA precedents. In Railway Clerks v. Florida East Coast R. Co.,
In this case, we address conduct that facially violates a different provision of the RLA: § 2 Fourth’s bar against conduct by a carrier which, by its natural tendency, induces or influences employees in their decisions to support or refrain from supporting union activities. The logic of Florida East Coast R. Co., however, is equally applicable here and suggests that a carrier’s refusal to reinstate strikers — conduct which, on its face, violates § 2 Fourth because of its tendency to influence adversely employees’ willingness to support strikes — is unlawful if the refusal was not truly necessary for the continued operation of the carrier during the strike.
In my view, there is no basis under the RLA for a presumption that offers of permanence are necessary in order to induce crossovers and outside replacements to work during a strike. Cf. Hot Shoppes, Inc., 146 N. L. R. B. 802, 805 (1964); Belknap, Inc. v. Hale,
“There may be some who will. . . argu[e] that employees must take their chances on being permanently replaced when they elect to go on strike. There is little doubt that striking employees have lost their jobs in many firms through the application of this principle. On the other hand, we are concerned in this case not with an ordinary private business but with a common carrier in an industry vital to the public. . . . Experience suggests that the prospects for achieving a ‘peaceable settlement’ of this dispute will remain in jeopardy so long as the striking employees are prevented from working by the presence of the newly-hired replacements. While this situation persists, the organizations can be expected to employ every legitimate means to put pressure on the company to reinstate the strikers. Controversy of this kind may interfere with the legitimate needs of passengers and shippers .... Moreover, other railroads may be tempted to follow the example of this carrier, thus provoking bitter and disruptive disputes in other sections of the country.” Florida East Coast R. Co., 41 Lab. Arb., at 1006-1007.
This risk should be taken only if absolutely necessary to the carrier’s continued operations. Presuming the need does gratuitous damage to significant statutory interests.
In his dissent, Justice Brennan does not reach the question whether a carrier who offers permanence to replacements and crossovers is entitled to a presumption of business necessity. Indeed, he would not even permit TWA to make a case-specific showing that its crossover policy was necessary for its continued operation during the strike. Here, our positions differ: I would require the carrier to prove the business necessity of offering permanence to replacements and crossovers on the facts of each case.
Two considerations cause me to part ways with Justice Brennan’s conclusion. First, it is not so clear to me as it is to Justice Brennan, ante at 449, that TWA’s conduct in this case is sufficiently egregious for its destructive impact to outweigh the interest in maintaining operations during the strike. In Erie Resistor, this Court identified a number of factors that made grants of superseniority particularly harmful to employee rights. Several, but not all, of those factors are present in this case. TWA’s conduct, like the conduct at issue in Erie Resistor, induces employees to abandon the strike and particularly harms full-term strikers. See
Second, and more generally, I am concerned that a standard that permits courts to balance employer and employee interests in the abstract, without a concrete evidentiary record, will lead to erroneous results that endanger the unique statutory interests embodied in the RLA. In the past we have recognized that the public has a significant interest in the continuity of transportation services during labor disputes, and that the RLA protects that interest. Railroad and airline industry employers, we have held, must make “reasonable efforts to maintain the public service at all times, even when beset by labor-management controversies.” Florida East Coast R. Co.,
IV
Because the Court of Appeals found TWA’s conduct unlawful without considering whether TWA’s crossover policy was “truly necessary” for continued operations during the strike, I would vacate the judgment of the Court of Appeals and di
The question has been presented by the parties, and is stated by the Court, in terms of reinstatement of full-term strikers with greater seniority. For i'easons explained in n. 6, infra, however, the question whether the final allocation of positions must be made on the basis of seniority is essentially remedial in nature. Cf. Lone Star Industries, Inc., 279 N. L. R. B. 550 (1986) (employer is free to choose any nondiscriminatory means of making its poststrike reinstatement decisions). The question upon which liability turns is whether the basis of the allocation made (i. e., the duration of the employee’s support for the strike) was discriminatory.
The employer, of course, may agree to discharge permanent replacements, subject to any claims the replacements may have under state law. See Belknap, Inc. v. Hale,
Under § 8(a)(3) of the NLRA, 29 U. S. C. § 158(a)(3), the employer’s motive is relevant to the analysis. See Metropolitan Edison Co. v. NLRB,
To decide this case, it is not necessary to resolve the question whether antiunion motive is a necessary element of a § 2 Fourth violation. I think it clear that the crossover policy at issue here is “inherently destructive” of employee rights: it is sufficiently destructive not to require an express showing of antiunion motive even under the motive-based standards of § 8(a)(3). For this same reason, I note, TWA’s conduct falls afoul of the RLA under the “inherently destructive” standard set forth by the Court in this case. See ante, at 442.
Count 2 of the union’s complaint seeks “to establish that it was not necessary for TWA to offer permanent jobs to the replacements hired from outside the pre-strike workforce and that TWA therefore violated the RLA by doing so.” Brief for Respondent 3, n. 5; see App. to Pet. for
Adopting a uniform standard applicable to both outside replacements and crossovers disposes of the argument that to permit full-term strikers to displace crossovers would have the anomalous result of treating crossovers more harshly than permanent replacements. Ante, at 434, 436; see Tr. of Oral Arg. 43. In a particular case, members of the prestrike work force may well return to work solely because they can no longer endure the present economic costs of the strike, and will do so without further inducement. If the carrier also needs to hire outside replacements, and legitimately finds that it can do so only by promising them that they will not be laid off to make room for returning strikers, the result in that case will be that the crossovers will have less protection from layoff than will the new hires. This result is not anomalous, however; it is merely the result of applying a uniform standard to disparate facts.
If it proved to be the case on remand that TWA’s crossover policy was indeed unlawful, the question (noted at n. 1, supra) would arise whether the union is entitled to the specific relief it seeks: the allocation of positions in the active work force on the basis of seniority. This Court suggested in NLRB v. Mackay Radio & Telegraph Co.,
Although this unilateral undertaking may well bind TWA at the remedial stage of this litigation, I note that the union has not based its entitlement to seniority-based relief on that ground. Nor has the union argued (at least explicitly) that specific provisions of its collective-bargaining agreement require that result. Cf. Eastern Air Lines, Inc., 48 Lab. Arb. 1005 (1967) (interpreting general seniority provisions of collective-bargaining agreement as applicable to poststrike reinstatement). Rather, the union’s argument for a seniority-based remedy appears to be purely statutory in nature. There is some merit to the view that the bounded nature of strikes under the RLA requires that seniority be used as the mechanism for poststrike reinstatement because it will achieve the closest possible approximation of the prestrike work force. But there is some danger that imposing seniority-based reinstatement as a statutory matter would place courts in the position of expanding contractual seniority provisions beyond their contemplated scope. In light of the likelihood that TWA would voluntarily employ seniority as a basis for its reinstatement decisions on remand, this question need not be reached.