NLRB v. Erie Resistor Corp.

Supreme Court of the United States · 1963 · Labor Law

373 U.S. 221 (1963)

Updated August 1, 2026

Labor Lawsuper-seniority for strikebreakersNLRASection 8(a)(1)Section 8(a)(3)Section 7Section 13right to strike

Facts

After contract negotiations failed, the union called a strike joined by all 478 employees in the bargaining unit. To continue operating, the company first used nonunit personnel and then announced it would hire replacements and that strikers would keep their jobs only until replaced; it then decided to give 20 years of extra seniority, usable only for future layoffs, to replacements and to strikers who abandoned the strike and returned to work. The union objected that any super-seniority plan would discriminate against strikers, but the company refused to abandon it, and the strike soon collapsed as increasing numbers of strikers returned to work under the plan. During later layoffs, reinstated strikers lost jobs because their seniority was inferior under the super-seniority policy.

Issue

Does an employer commit an unfair labor practice under NLRA § 8(a)(1) and § 8(a)(3) by granting a 20-year super-seniority credit to strike replacements and to strikers who return to work during the strike, even absent specific proof of an illegal antiunion motive? More specifically, can an asserted business purpose of maintaining operations automatically justify such a plan?

Rule

Specific evidence of subjective antiunion intent is not indispensable to prove an unfair labor practice. When employer conduct is inherently discriminatory and foreseeably destructive of protected strike and union activity, the Board may infer the necessary intent from the conduct itself; such conduct is unlawful under § 8(a)(1) and § 8(a)(3) unless an overriding business purpose justifies the invasion of employee rights. A legitimate business purpose is not always a complete defense, and the Mackay right to hire permanent strike replacements does not automatically extend to granting super-seniority.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Prairie Forge Components, a manufacturer in Toledo, Ohio, faces a lawful economic strike by its production employees. To keep shipments moving, it announces that any replacement worker and any striker who returns before the strike ends will receive 15 extra years of layoff seniority, while employees who remain out will keep only their ordinary seniority.

If the NLRB challenges the policy under NLRA §§ 8(a)(1) and 8(a)(3), which is the strongest analysis?

Explanation. The majority held that specific proof of subjective antiunion intent is not indispensable. A strike-time super-seniority plan favoring replacements and returning strikers discriminates between strikers and nonstrikers, encourages abandonment of the strike, and undermines the strike's effectiveness. Because such conduct carries its own indicia of intent, the Board may treat it as unlawful unless an overriding business purpose justifies the invasion of protected rights.