DAVID R. WEBB COMPANY, INC., PETITIONER V. NATIONAL LABOR RELATIONS
BOARD

   No. 89-1371

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The National Labor Relations Board In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-22a) is reported
at 888 F.2d 501.  The decision and order of the National Labor
Relations Board (Pet. App. 23a-24a), including the decision of the
administrative law judge (Pet. App. 25a-44a), is reported at 291
N.L.R.B. No. 36.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 30,
1989.  A petition for rehearing was denied on December 7, 1989 (Pet.
App. 45a).  The petition for a writ of certiorari was filed on
February 27, 1990.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the Board reasonably concluded that, in the circumstances
of this case, petitioner was obligated to reinstate economic strikers
to positions substantially equivalent to those they had held before
the strike, when petitioner had earlier rehired those employees in a
lower-level position and then discharged them because of deficiencies
in their performance in that position.

                               STATEMENT

   1. Petitioner manufactures and sells lumber products.  On July 28,
1986, petitioner's production and maintenance employees began an
economic strike.  On November 3, 1986, the employees who remained on
strike unconditionally offered to return to work.  By then, many of
their positions had been filled by permanent replacements, and
unreinstated strikers were placed on a preferential recall list,
arranged according to qualifications and seniority.  Pet. App. 2a,
26a-27a.

   By mid-February 1987, former strikers Alice Hill, Rex Young, and
Eugene McGaha had reached the top of the list.  At that time, neither
their pre-strike jobs nor substantially equivalent jobs were
available.  Petitioner offered Hill an entry level position, which she
accepted, as a "dryer-feeder" operator on the second shift.  Hill
reported to work on February 17.  She immediately experienced
difficulty in performing the work, and continued to be unsuccessful
after a supervisor had a platform constructed to compensate for her
lack of height.  /1/ She was terminated at the end of the shift.  Pet.
App. 2a, 28a-29a.

   Petitioner then recalled Young, who was next on the recall list.
He accepted the dryer-feeder position and performed better than Hill,
but had difficulty in feeding the vacuum pump.  /2/ Young was
terminated on his second day, for poor performance.  Petitioner next
contacted McGaha, who before the strike had driven a pickup and
flatbed truck, and sometimes operated a forklift.  McGaha had
difficulty both in loading the lift and in feeding the vacuum pump.
/3/ He was terminated after working two shifts.  Pet. App. 2a-3a,
30a-32a.

   Thereafter, the positions that Hill and Young had held before the
strike became vacant, and there were also openings in positions
comparable to the one that McGaha had held.  The vacant positions were
not offered to the terminated employees, and were awarded to junior
employees.  Pet. App. 32a.

   2. Affirming findings and conclusions entered by an administrative
law judge, the Board held that petitioner had violated Section 8(a)(3)
and (1) of the National Labor Relations Act, 29 U.S.C. 158(a)(3) and
(1), by failing to offer to reinstate Hill, Young, and McGaha to the
positions they had held before the strike or to substantially
equivalent positions when such positions became available.  Pet. App.
23a-24a, 38a-39a.  It ordere petitioner, inter alia, to offer Hill and
Young reinstatement to their pre-strike positions and to offer McGaha
reinstatement to his pre-strike position or a substantially equivalent
position.  Id. at 24a, 40a-41a.

   The ALJ applied the analysis outlined in Laidlaw Corp., 171
N.L.R.B. 1366 (1968), enforced, 414 F.2d 99 (7th Cir. 1969), cert.
denied, 397 U.S. 920 (1970), in which the Board held that economic
strikers who apply for reinstatement at a time when their positions
are filled by permanent replacements "(1) remain employees;  and (2)
are entitled to full reinstatement upon the departure of replacements
unless they have in the meantime acquired regular and substantially
equivalent employment, or the employer can sustain his burden of proof
that the failure to offer full reinstatement was for legitimate and
substantial business reasons." Pet. App. 33a-34a.  The ALJ noted that
in this case it was undisputed that the employees in question had not
been recalled to positions they held before the strike or to
substantially equivalent positions.  Id. at 34a.  He concluded that
the employees' inadequate performance in the positions to which they
had been recalled was not a legitimate and substantial business reason
for refusing to offer them reinstatement to the positions they had
previously held.  Id. at 36a-37a.  In the alternative, the ALJ found
that petitioner had discriminated against the three employees at issue
by failing to follow its past practice of transferring individuals who
could not perform a given job to another position that they could
perform.  Id. at 37a.

   In affirming the ALJ's decision, the Board acknowledged that
petitioner was not obligated to retain the three employees in the
position in which they had failed to perform satisfactorily.  Pet.
App. 24a n.3.  Nevertheless, the Board concluded, deficiences in their
performance in that job did not sufficiently justify petitioner's
failure to honor those employees' presumptive right to reinstatement
in their pre-strike or equivalent positions.  Ibid.

   3. The court of appeals enforced the Board's order.  Pet. App.
1a-22a.  The court rejected petitioner's contention that an employer's
obligations to striking employees are discharged when an employee
accepts reinstatement to any position for which he or she is
qualified.  Noting that the Board "has consistently taken the position
that employers must reinstate striking employees to their former or
substantially equivalent positions before the employer's Laidlaw
obligations are satisfied" (id. at 9a), the court concluded that this
interpretation of the Act "is consistent with the policies and the
language of the Act, and with the case law thus far" (id. at 10a).

   The court explained that one of the policies of the Act is "to
protect the rights of the employees to organize and strike" and that
"employees will be deterred from striking if their employer can
reinstate them to a lower-level position and thereby fulfill his
(reinstatement) obligations." Pet. App. 11a.  The Board's position,
the court continued, was also consistent with the "theory behind (NLRB
v. Fleetwood Trailer Co., 389 U.S. 375 (1967)) and Laidlaw," which is
that "employees should not be penalized for striking, and they remain
employees regardless of such action." Pet. App. 12a.  Under this
theory, the court of appeals reasoned, "a returning striker's right
should not depend on the coincidence of which jobs may be open when he
reaches the top of the recall list." Ibid.  The court added that
"(a)llowing the employer to satisfy its Laidlaw obligation by offering
a striker a position which is not the one the striker is best able to
perform (in contrast to his prestrike position) could allow a system
which forces the striker to accept a position at which he is
predestined to fail and thus lose his original Laidlaw rights in the
process." Id. at 16a.

   The court also held that petitioner had not carried its burden of
showing "a legitimate and substantial business justification for
removing the employees from the recall list and refusing to place them
in their former or substantially equivalent positions when such became
available." Pet. App. 16a-17a.  While (like the Board) the court
acknowledged that petitioner had a legitimate reason for terminating
the employees in question from the dryer-feeder position, the court
found that their inadequate performance in that position "was not a
sufficient reason for removing the employees from the eligibility list
for their prestrike positions or their substantial equivalent." Id. at
17a.

   Finally, the court rejected petitioner's contention that Section
10(c) of the Act, 29 U.S.C. 160(c), foreclosed the relief the Board
had awarded.  The court interpreted Section 10(c), which provides that
"(n)o order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or discharged * * *
for cause," to prohibit the Board "from ordering employees reinstated
to the positions from which they were discharged" (Pet. App. 21a).
The court emphasized that the Board had not required reinstatement to
the dryer-feeder position and that the basis for their terminations --
"the employees' inability to perform in the lower-level positions" --
was "not related" to the positions to which they were to be
reinstated.  Ibid.

   At several points in its opinion, the court emphasized the limits
on its decision.  The court "(did) not question (petitioner's) act of
discharging the employees from the dryer-feeder position." Pet. App.
12a n.7;  see id. at 13a, 17a.  It stressed that it had not
"immunize(d)" the employees in question from discipline for inadequate
job performance, specifically noting that after the employees had been
reinstated to their prestrike or substantially equivalent positions,
they could be discharged "for their inability to perform the job or
for other reasons constituting cause." Id. at 14a.  Finally, the court
twice stated that its decision was not "open-ended" and that
"(a)dditional factual variations will present related questions" that
it need not address until after the Board has had an opportunity to
rule on them.  Id. at 16a;  see id. at 11a & n.7.  /4/

                               ARGUMENT

   As the court of appeals held, the Board's interpretation of the
National Labor Relations Act in the context of this case -- under
which a striking employee who has been replaced during the strike is
ultimately entitled, absent a countervailing legitimate business
justification, to reinstatement in the same or a substantially
equivalent position when an opening materializes -- is reasonable and
consistent with the language and policies of the statute.  Moreover,
there is no conflict warranting this Court's review between the
decision in this case and decisions of other courts of appeals.

   1.a. Under Section 2(3) of the National Labor Relations Act, 29
U.S.C. 152(3), the statutory definition of "employee" includes "any
individual whose work has ceased as a consequence of, or in connection
with, any current labor dispute * * * and who has not obtained any
other regular and substantially equivalent employment." Thus, an
individual whose position is filled with a permanent replacement while
he or she participates in a strike retains the rights that the Act
confers on employees.  In NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967), this Court recognized that when an employer refuses to
reinstate a striking employee who has offered unconditionally to
return to work, "the effect is to discourage employees from exercising
their rights to organize and to strike guaranteed by Sections 7 and 13
of the Act (29 U.S.C. 157, 163)." "Accordingly, unless the employer
who refuses to reinstate strikers can show that his action was due to
'legitimate and substantial business justifications,' he is guilty of
an unfair labor practice." 389 U.S. at 378.  The absence of anti-union
animus is no defense.  Given the effect of non-reinstatement on
"import employee rights," that conduct "constitutes an unfair labor
practice without reference to intent." Id. at 380.

   Fleetwood Trailer did not address the precise question presented
here, which is whether an employer satisfies his obligation to
striking employees by reinstating them to positions that are
substantially less desirable than those the employees held before the
strike.  However, the Board has ruled in a variety of settings that
the presumptive right to reinstatement is a continuing one and that
employees are ultimately entitled to jobs that are the same as or
substantially equivalent to those they held before the strike.  See,
e.g., Laidlaw Corp., 171 N.L.R.B. at 1369 (economic striker's
preferential right to reinstatement is not extinguished because, at
the time he applies, his position is occupied by a permanent
replacement);  H & F Binch Co., 188 N.L.R.B. 720, 725 (1971)
(acceptance of interim non-equivalent employment does not extinguish
striker's right to former or equivalent position), enforced in
pertinent part, 456 F.2d 357 (2d Cir. 1972);  Arlington Hotel Co., 273
N.L.R.B. 210, 217 (1984) (striker may refuse non-equivalent position
without losing preferential reinstatement right), enforced, 785 F.2d
249 (8th Cir.), cert. denied, 479 U.S. 914 (1986);  Rockwood & Co.,
281 N.L.R.B. 862, 877-878 (1986) (same), enforced, 834 F.2d 837 (9th
Cir. 1987);  Coca-Cola Bottling Co., 269 N.L.R.B. 1101, 1102 (1984)
(striker may accept and then relinquish non-equivalent interim
employment without losing entitlement to pre-strike or equivalent
position).  Cf. Custom Craft Mfg. Co., 212 N.L.R.B. 255, 258-259
(1974) (holding unlawful the reinstatement of unfair-labor-practice
strikers to non-equivalent positions followed by discharge of those
who were unable to perform).

   b. In these various factual settings, the Board has adhered to
essentially the same basic principle.  When an employer refuses
without a legitimate business justification to reinstate striking
employees to positions substantially equivalent to those they held
before a strike, the effect is to deter the exercise of the employees'
statutory rights.  In Fleetwood, this Court recognized that denying
striking employees reinstatement after the conclusion of a strike will
discourage employees from exercising their rights to organize and
strike.  389 U.S. at 378.  As the Board has held, that reasoning
extends to cases in which strikers are reinstated, but only to jobs
substantially less desirable than those they had held before
participating in the strike.  The threat inherent in petitioner's
position -- that a striking employee may be relegated to any position
for which he or she is believed to be qualified, no matter how menial,
low-paying, or poorly suited to the employee's capabilities -- would
undoubtedly be a powerful deterrent to the exercise of the right to
strike.  To protect employees from that threat, it is entirely
reasonable to require the employer to demonstrate a legitimate and
substantial business justification for a refusal to reinstate a
striking employee to his pre-strike position or one equivalent to it,
even if that employee has been offered reinstatement to a lower-level
position and has either accepted or rejected it.

   Petitioner suggests that when a striking employee has accepted a
lower-level position and has been terminated for cause, the employer's
obligations should be at an end.  See Pet. 16.  However, as the
Seventh Circuit recognized, that approach would subject employees to
the threat of a penalty for the exercise of their right to strike
(Pet. App. 11a):

      If lower-level positions are all that are available to an
      employee when he reaches the top of the recall list, he is
      likely to feel financial pressure (particularly after a long
      strike where most vacancies are filled) to take the position
      rather than wait until a position substantially equivalent to
      his pre-strike job becomes available.  However, if accepting a
      lesser job means he may lose his right to reinstatement to his
      previous position if he is unable to perform satisfactorily, his
      options are limited.  To ensure that the striker is not
      penalized for engaging in protected activity, we conclude that
      under the policies behind the Act, the process of reinstatement
      does not end until the employee receives his original position
      or one substantially equivalent to it.

   As the facts of this case pointedly demonstrate, a termination for
cause from one job does not necessarily constitute a legitimate and
substantial justification for refusing to reinstate a striker to his
or her original position.  See Pet. 16.  Each of the employees in
question had performed satisfactorily in their pre-strike positions
for years (see Pet. App. 28a-31a), and the difficulties they
experienced in their brief attempts to perform the dryer-feeder job
did not suggest that they would be unable to resume their past
employment in an equally satisfactory manner.  When there is no
showing that the employee's poor performance in an interim job has any
bearing on his suitability to perform his pre-strike (or substantially
equivalent) position, a refusal to offer the employee reinstatement in
that position interferes with the exercise of the right to strike.
The Board's solution to the problem presented by cases of this type --
to require the employer to demonstrate a legitimate and substantial
basis for refusing to return the employee to the position he occupied
before the strike or to a substantially equivalent position -- is an
entirely appropriate accommodation of the policies embodied by the
Act.  /5/

   c. Petitioner's contention that the Board's approach unjustifiably
interferes with employer prerogatives (see Pet. 16, 19-22) rests upon
a misreading of the Board's and the court's decisions.  Obviously, the
decision below does not "establish()" that an employer who recalls an
employee to an interim position "has no right to discharge that
employee, for any reason, from the time the employee enters the work
force until he obtains his former or a substantially equivalent job"
(Pet. 19).  The court of appeals "readily conced(ed)" that employers
have the right to "discharge employees who are performing
unsatisfactorily" (Pet. App. 11a-12a n.7), and nothing in the Board's
decision suggests otherwise.  Nor does the decision below establish,
as petitioner claims, that an employer would be required to reinstate
former strikers terminated from jobs not equivalent to their prior
positions for such reasons as "absenteeism;  acts of theft or
violence;  possession of narcotics;  or even sabotage" (Pet. 20).  The
Board and the court found only that petitioner had failed, on the
facts of this case, to show that the terminations of the employees in
question justified a refusal to reemploy them in their pre-strike or
equivalent positions.  Those decisions do not suggest that a dismissal
for cause will never provide such a justification.

   The narrow legal issues presented by this case are whether an
employer must demonstrate a legitimate and reasonable business
justification for refusing to offer former strikers positions that are
the same as or equivalent to those they occupied before a strike and
whether a dismissal for cause in a different position invariably
supplies such a justification.  The Board's answers to those questions
effect a reasonable "balance between the asserted business
justifications and the invasion of employee rights in light of the Act
and its policy." NLRB v. Fleetwood Trailer Co., 389 U.S. at 378.
Accordingly, the court of appeals properly deferred to the Board's
interpretation of the statute.

   2. Contrary to petitioner's contention (Pet. 8-13), there is no
conflict between the decision in this case and the Sixth Circuit's
decision in NLRB v. American Olean Tile Co., 826 F.2d 1496 (1987),
calling for this Court's review.  In American Olean, 12 economic
strikers who offered to return to work before the end of the strike
were placed in interim positions at a less desirable plant than the
one in which they had worked prior to the strike.  When openings
occurred in the more desirable plant, the employer -- in accordance
with an undertaking it had made during the strike to reinstate
strikers in the order in which they had offered to return to work --
transferred them to those positions.  Employees with more seniority
who had worked at the more desirable plant before the strike and had
not yet been reached on the employer's list argued, however, that they
were entitled to these openings.

   The Board agreed, holding that, since none of the employees in
question had been fully reinstated, the preference based upon the
order of the strikers' offers to return to work tended to discriminate
against the employees who had remained off the job until the end of
the strike and thus was inherently destructive of the right to strike.
 See 826 F.2d at 1499.  The Sixth Circuit denied enforcement of the
Board's decision, holding that the transfer of the 12 employees who
had earlier accepted jobs at the less desirable plant was not unlawful
discrimination based upon the exercise of rights protected by the Act.
 Id. at 1502.  The Sixth Circuit rejected the Board's reasoning,
finding that the 12 employees who received transfers had been
reinstated "when they were recalled to work" at the less desirable
plant.  The court observed that "(t)he law requires reinstatement when
a vacancy occurs for which an offeror is qualified, whether in his
previous position or a substantially equivalent one, or not" and an
employee does not even have the option of declining an offer of
reinstatement to a nonequivalent position.  Id. at 1501.

   The Sixth Circuit's view of strikers' rights, which petitioner
declined to advocate in the court of appeals (Pet. App. 15a n.9), is
narrower than that of the Board and of the court of appeals in this
case.  However, this difference does not warrant this Court's review.
Unlike the case at bar, American Olean did not squarely present the
issue of the full measure of reinstatement rights held by former
strikers who had returned to less desirable jobs.  In that case, the
employer specifically undertook to reinstate strikers to their
pre-strike or equivalent positions and did not seek to limit them, as
petitioner's argument would, to less desirable positions for which
they were minimally qualified.  Thus, there is no conflict between the
holding in American Olean, which was that the employer could abide by
the chronological system that it had adopted during the strike to
determine the order in which employees would be reinstated in their
pre-strike or equivalent positions, and the holding in this case,
which is that an employer bears the burden of justifying an outright
refusal to reinstate striking employees to positions of that type.
The Sixth Circuit might well take a different view of a striker's
reinstatement rights if the issue were presented in a case in which an
employer was seeking to limit employees to positions inferior to those
they had occupied during a strike.  /6/

   3. Petitioner also contends that requiring reinstatement of the
employees in question violates Section 10(c) of the Act.  Pet. 14.
However, as the court of appeals explained, Section 10(c) only
prohibits an order requiring reinstatement of those employees to the
dryer-feeder job from which they were terminated.  Pet. App. 21a.  The
unfair labor practice here was not the discharge for failure to
perform as dryer-feeders, but termination of the former strikers'
preferential rights to reinstatement to their own, or substantially
equivalent, jobs.  Where, as here, the discharge for cause bore no
relation to the employees' ability to perform their pre-strike jobs,
Section 10(c) does not preclude the Board from requiring restoration
of the strikers' preferential rights to their former or substantially
equivalent positions.  /7/

                              CONCLUSION

   The petition for certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JERRY M. HUNTER

      General Counsel

   D. RANDALL FRYE

      Associate General Counsel

   ROBERT E. ALLEN

      Associate General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   CARMEL P. EBB

      Attorney National Labor Relations Board

   MAY 1990

   /1/ Dryer-feeder operators are required to load pieces of wood
veneer on a mechanical lift, raise the lift to a height of 4 to 4 1/2
feet, and manually flip the veneer upwards to a vacuum pump which
directs the veneer onto a belt.  Pet. App. 28a.  Hill is 4'11" tall
and was 61 years old in February 1987.  She had worked for petitioner
for 12-13 years.  Her pre-strike job as a labeler, which she had held
for three to four years, required no heavy lifting or hand-eye
coordination.  Pet. App. 28a.

   /2/ The feeding process involved flipping individual sheets up with
the fingers.  Pet. App. 28a.  Young had no thumbnails.  C.A. App.
142-143.  Young had been employed by petitioner for 12 years.  For the
two or three years preceding the strike, he had worked as a "flitch
cleaner," a job that required placing split logs on a chain conveyor
with the assistance of another employee.  Pet. App. 30a.

   /3/ McGaha testified that he had a 15-20% disability in his left
arm as a result of surgery the previous year.  Pet. App. 31a-32a &
n.4.

   /4/ On December 18, 1989, the court of appeals denied petitioner's
request for a stay of its judgment enforcing the Board's order.  On
December 29, 1989, Justice Stevens denied an application to stay the
mandate of the court of appeals.

   /5/ An employer may offer former strikers positions for which they
are qualified, even if those positions are not substantially
equivalent to those the employees have previously held.  However, the
fact that the employee may accept such an offer and acquire the
protections of the Act with respect to that position does not mean he
may be deprived of rights derived from his prior employment.  Compare
Pet. 18-19.  Reinstatement in an interim position is a partial
response to the risk that the right to strike may be deterred;  the
rights that the employee enjoys in the interim position are not a
complete substitute for the protections the Board has reasonably
determined are necessary to safeguard the right to strike.

   /6/ Moreover, the majority in American Olean did not address the
conflict between its reasoning and a long line of Board authority and
decisions by other courts of appeals.  See pp. 8-9, supra.

   Petitioner is mistaken in its assertion (Pet. 11-12) that NLRB v.
Rockwood & Co., 834 F.2d 837 (9th Cir. 1987), and Medallion Kitchens,
Inc. v. NLRB, 811 F.2d 456 (8th Cir. 1987), provide no support for the
Board's approach to reinstatement rights.  In Rockwood, the court
expressly held that where an interim job offered to an unreinstated
striker "was not substantially equivalent to (his) former position, he
was entitled to accept or reject it without affecting his status as an
employee under section 152(3) or his right to reinstatement." 834 F.2d
at 841-842.  In Medallion Kitchens, the court noted that "(a)bsent a
substantial and legitimate business justification, an employer's
obligation is satisfied only upon an offer to the former striker of a
substantially equivalent job." 811 F.2d at 459.  The holding in
Medallion Kitchens -- that an employer unlawfully failed to recall
employees to certain temporary jobs filled by new hires because those
jobs were substantially equivalent to the unreinstated employees'
pre-strike jobs -- was also completely consistent with the court of
appeals' reasoning here.  811 F.2d at 459-460.

   /7/ As the legislative history makes clear, Section 10(c) was
designed to prevent the Board from reversing discharges for cause.
The Conference Report explained that "employees who are discharged or
suspended for interfering with other employees at work * * * or for
engaging in activities * * * contrary to shop rules * * * or for other
cause * * * will not be entitled to reinstatement." H.R. Conf. Rep.
No. 510, 80th Cong., 1st Sess. 55 (1947).  Similarly, the House Report
noted that the provision was "intended to put an end to the belief,
now widely held and justified by the Board's decisions, that engaging
in union activities carries with it a license to loaf, wander about
the plant, refuse to work, waste time, break rules, and engage in
incivilities and other disorders and misconduct." H.R. Rep. No. 245,
80th Cong., 1st Sess. 42 (1947).