No. 86-42 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

MISSOULA COUNTY HIGH SCHOOL 

DISTRICT, 

Petitioner and Respondent, 

BOARD OF PERSONNEL APPEALS OF 

THE STATE OF MONTANA, and 

MISSOULA COUNTY HIGH SCHOOL 

EDUCATION ASSOCIATION, MEA, 

Respondents and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hilley & Loring; Emilie Loring, Great Falls, Montana 

Mary Anne Simpson, Bd. of Personnel Appeals, Helena, 

Montana 

For Respondent: 

Worden, Thane & Haines; Molly Shepherd, Missoula, 

Montana 

Submitted on Briefs: May 30, 1986 

Decided: November 13, 1986 

Filed: - : 1986 

* 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The Montana Board of Personnel Appeals (the BPA) and 

the Missoula County High School Education Association 

(MCHSEA) appeal a Missoula County District Court order which 

ruled that the Missoula County High School District (the 

School District) did not commit an unfair labor practice in 

violation of S 39-31-401, MCA. The District Court order 

reversed a BPA decision that the School District violated 

§ 39-31-401, MCA, by paying certain non-striking teachers for 

eighteen days of work where those teachers had agreed to work 

eighteen days but actually worked only one day. The issues 

on appeal are whether the District Court erred by reversing; 

(1) the BPA's conclusion of law that the School District's 

conduct was not justified by a legitimate, substantial, 

business necessity; (2) the BPA's conclusion of law that the 

School District's action was inherently destructive of 

protected labor rights; and (3) the BPA's finding of fact 

that the non-striking teachers were not available and on-call 

after June 4, 1981. We affirm. 

MCHSEA is the recognized exclusive bargaining 

representative of the School District's non-supervisory 

certificated or licensed employees. On May 11, 1981, MCHSEA 

went on strike against the School District. The School 

District did not attempt to operate the Missoula schools 

during the first week of the strike. On June 1, 1981, the 

School District superintendent sent a letter to all members 

of the bargaining unit. In pertinent part, that letter 

stated: 
The school district has just received 

definite legal advice that our schools 

must be open for 180 days in the 1980-81 

school year or we will lose $1.275 

million in state aid. 

. . . A $1.275 million cut would 

necessarily mean much larger class sizes, 

reduced curricular and extra-curricular 

offerings. 

Schools must open June 4, 1981 if this 

community is to maintain the quality of 

our school program for next year . . . 

High schools will open on June 5th for 

freshman, sophomore and junior classes . . . A high school teachers should 

notify their principal by 4:00 p.m. June 

3, 1981 indicating a willingness to work 

commencing with a PIR day at 8:00 a.m. 

June 4, 1981 . . . 

Teachers returning June 4th to completion 

of the school year shall receive for the 

1980-81 school year an average 10.6% 

increase as per the attached salary 

schedule which includes increments and 

horizontal changes. This payment will be 

retroactive to August 27, 1980. All 

fringe benefits including insurance for 

June will be paid. 

Twenty teachers notified the School District's 

administration that they would return to work if the School 

District attempted to operate. The School District opened 

the Missoula schools on June 4, 1981. Three teachers who had 

agreed to return did not do so because of either ill.ness or 

family emergency. After the first day and with what is 

described as good and sufficient reasons, the School 

District's Board of Trustees determined it would be 

inappropriate to continue the operation of the schoo1.s. The 

School District made no further attempt to operate the 

schools for the balance of the 1980-81 school year. 

In April 1982, a Missoula attorney, representing one of 

the teachers who returned to work, sent a letter to the 
Missoula County High School Board of Trustees. The letter 

stated that the School District superintendent's June 1 

letter was an offer of employment for a specific term; that 

the School District did not reserve the right to terminate 

the offer or any agreement arising therefrom; that, in the 

attorney's opinion, a contractual relationship existed 

between the School District and the teacher for employment 

for a specific number of days commencing on June 4, 1981, and 

ending on the 180th day of the 1980-81 school year; and that 

the School District breached the agreement by refusing to pay 

the teacher for work he was prepared to perform. In July 

1982, the attorney sent another letter to the School District 

on behalf of the same teacher. That letter again explained 

the basis of the teacher's claim and stated that the teacher 

was seriously contemplating legal action. 

In September 1982, upon the advice of its attorney, the 

School District paid the twenty returning teachers for the 

remaining eighteen days they had agreed to teach. The School 

District did not pay any of the striking teachers for this 

period. 

In October 1982, the MCHSEA filed an unfair labor 

practice charge with the BPA alleging that the School 

District had discriminated against those teachers who had 

supported the strike. The union sought: (1) reimbursement of 

all amounts deducted from the striking teachers' salaries 

because of their participation in the strike, and (2) 

corresponding contributions to the teachers' retirement 

system. In June 1983, counsel for MCHSEA and counsel for the 

School District agreed to a stipulation of facts which was 

submitted to the BPA. In December 1983, a hearing officer 
from the BPA issued his findings of fact, conclusion of law 

and order ruling that the School District had committed 

unfair labor practices violating S 39-31-401 (1) and (3) , MCA. 

Specifically, the hearing officer ruled that the School 

District's conduct was inherently destructive of the public 

employees' self-organizational rights; that there was no 

substantial and legitimate business justification for the 

School District's actions; and that the non-striking teachers 

were not on-call during the seventeen days in question. The 

School District filed exceptions to the hearing officer's 

decision with the BPA. The full BPA held an oral argument on 

this case in March 1984. In June 1984, the BPA issued its 

final order adopting the hearing examiner's findings of fact 

and conclusions of law. The BPA ordered the School District 

to stop violating $ 39-31-401 (1) and (3) , MCA, and fashioned 

two alternative remedies to compensate the striking teachers. 

In July 1984, the School District filed a petition for 

judicial review and for declaratory judgment with the 

Missoula County District Court. The BPA and the MCHSEA filed 

answers and the District Court, sitting without a jury, heard 

oral arguments in June 1985. In November 1985, the court 

entered its findings of fact, conclusions of law and order. 

The court made the following conclusions of law: in view of 

the evidence, the BPA clearly erred in finding that the 

teachers did not make themselves available and did not remain 

on-call after June 4, 1981; the BPA abused its discretion and 

committed an error of law by concluding that the School 

District was under no obligation to pay the teachers for more 

than one day of work; the BPA abused its discretion and 

committed an error of law in concluding that the payment to 
the teachers was inherently destructive of protected rights 

and, therefore, no proof of anti-union motivation was 

required; and that the BPA abused its discretion and 

committed an error of law by concluding that the School 

District's conduct was clearly prohibited under S 39-31-401, 

MCA. This appeal followed. 

Section 39-31-401, MCA, provides in part: 

It is an unfair labor practice for a 

public employer to: 

(1) interfere with, restrain, or coerce 

employees in the exercise of the rights 

guaranteed in 39-31-201; 

(3) discriminate in regard to hire or 

tenure of employment or any term or 

condition of employment in order to 

encourage or discourage membership in any 

labor organization; however, nothing in 

this chapter or in any other statute of 

this state precludes a public employer 

from making an agreement with an 

exclusive representative to require, as a 

condition of employment, that an employee 

who is not or does not become a union 

member, must have an amount equal to the 

union initiation fee and monthly dues 

deducted from his wages in the same 

manner as checkoff of union dues; . . . Section 39-31-201, MCA, provides: 

Public employees shall have and shall be 

protected in the exercise of the right of 

self-organization, to form, join, or 

assist any labor organization, to bargain 

collectively through representatives of 

their own choosing on questions of wages, 

hours, fringe benefits, and other 

conditions of employment, and to engage 

in other concerted activities for the 

purpose of collective bargaining or other 

mutual aid or protection free from 

interference, restraint, or coercion. 

These statutes are virtually identical to parts of the 

federal National Labor Relations Act (NLRA) , 29 U.S.C. § 157 

and S 158. This Court and the BPA both look to National 
Labor Relations Board and federal court interpretations of 

the NLRA for guidance in interpreting the equivalent Montana 

statutes. Teamsters, Etc. v. St. Ex Rel. Bd. of Personnel 

(1981), 195 Mont. 272, 635 P.2d 1310; State v. Dist. Court of 

Eleventh Jud. Dist. (1979), 183 Mont. 223, 598 ~.2d 1117. 

Where, as here, a district court reviews an agency 

decision, the standard of review is set forth in the Montana 

Administrative Procedure Act at § 2-4-704, MCA. The relevant 

portions of that statute state: 

(2) The court may not substitute its 

judgment for that of the agency as to the 

weight of the evidence on questions of 

fact. The court may affirm the decision 

of the agency or remand the case for 

further proceedings. The court may 

reverse or modify the decision if 

substantial rights of the appellant have 

been prejudiced because the 

administrative findings, inferences, 

conclusions, or decisions are: 

(a) in violation of constitutional or 

statutory provisions; 

(b) in excess of the statutory authority 

of the agency; 

(c) made upon unlawful procedure; 

(dl affected by other error of law; 

(e) clearly erroneous in view of the 

reliable, probative, and substantial 

evidence on the whole record; 

(f) arbitrary or capricious or 

characterized by abuse of discretion or 

clearly unwarranted exercise of 

discretion; or 

(g) because findings of fact, upon 

issues essential to the decision, were 

not made although requested. 

Addressing the statute, this Court has stated: 

[F] indings of fact by an agency have been 

subject to a "clearly erroneous" standard 

of review by the courts . . . Conclusions of law are subject to an 
"abuse of discretion" review. These 

standards differ due to the agency's 

expertise regarding the facts involved 

and the court's expertise in interpreting 

and applying the law. (Citations 

omitted.) 

City of Billings v. Billings Firefighters (1982), 200 Mont. 

The BPA held that the School District had violated 

subsections (1) and (3) of 539-31-401, MCA. Under the 

equivalent federal statutes (29 U.S.C. S 158(a) (1) and 

(3) ) ,any violation of subsection (3) necessarily includes a 

derivative violation of subsection (1) . N.L.R.B. v. Swedish 

Hospital Med. Center (9th Cir. 1980), 619 F.2d 33, 35. 

Subsection (1) "was intended as a general definition of 

employer unfair labor practices. Violations of it may be 

either derivative, independent, or both." Fun striders, Inc. 

v. N.L.R.B. (9th Cir. 1981), 686 F.2d 659, 661. In this 

case, the BPA did not specify whether the subsection (1) 

violation was derivative from the subsection (3) violation or 

whether it was an independent violation. However, language 

in the hearing examiner's opinion indicates that he 

considered there to be an independent violation of 

S 39-31-401(1), MCA. Thus, we proceed as if the BPA had 

found an independent violation of subsection (1). 

Section 39-31-401(3), MCA, makes it an unfair labor 

practice for a public employer to "discriminate in regard to 

hire or tenure of employment or any term or condition of 

employment in order to encourage or discourage membership in 

any labor organization . . . " Addressing the federal 

counterpart to this section, the United States Supreme Court 

stated: 
[Tlhe intention was to forbid only those 

acts that are motivated by an anti-union 

animus . . . But an employer may take 

actions in the course of a labor dispute 

that present a complex of 

motives . . . and it is often difficult 

to identify the true motive. 

In these situations the Court has divided 

an employer ' s conduct into two 

classes . . . Some conduct is SO 

" ' inherently destructive of employee 

interests'" that it carries with it a 

strong inference of impermissible motive . . . In such a situation, even if an 

employer comes forward with a 

nondiscriminatory explanation for its 

actions, the Board "may nevertheless draw 

an inference of improper motive from the 

conduct itself and exercise its duty to 

strike the proper balance between the 

asserted business justifications and the 

invasion of employee rights in light of 

the Act and its policy." . . . On the 

other hand, if the adverse effect of the 

discriminatory conduct on employee rights 

is "'comparatively slight,' an antiunion 

motivation must he proved to sustain the 

charge - if the employer has come forward 

with evidence of legitimate and 

substantial business justifications for 

the conduct." (Citations omitted.) 

~etropolitan Edison Co. V. NLRB (1983) t 460 U-S- 693, 

700-701, 103 S.Ct. 1467, 1473, 75 L.Ed.2d 387, 396. In this 

case, the BPA found that the School District had no 

substantial, legitimate business justification for making the 

payments to the teachers and that the payments were 

inherently destructive of the striking teachers' union 

interests. Thus, the BPA found a violation of 

5 39-31-401 (3), MCA. 

The first issue is whether the District Court erred by 

reversing the BPA's conclusion of law that the School 

District had no legitimate business justification for making 

the payments. We first note that although the BPA and the 

hearinq examiner characterized this conclusion as a finding 
of fact, it is more properly seen as a conclusion of law. 

Thus, that conclusion is subject to the "abuse of discretion" 

standard of review. 

The stipulated facts show that the payment was made 

only after an attorney for one of the teachers threatened 

legal action. Two letters from that attorney are attached as 

exhibits to the stipulated facts. The attorney asserted that 

the superintendent's letter was an offer of employment for a 

specific number of days; i.e. from June 4th to the completion 

of the 180th day of the school year. The attorney charged 

that the teacher was prepared to perform for the term of the 

contract and that the School District breached the agreement 

by refusing to pay him for the work he was prepared to 

perform. At the hearing before the full Board of Personnel 

Appeals, board members discussed and considered a letter from 

the School District's superintendent. Although that letter 

was not part of the stipulated facts, no objection was made 

to consideration of that letter and it is properly part of 

the record before this Court. See S 39-31-409 (3) , MCA. The 

superintendent's letter shows (1) that an attorney advised 

the School District that the teacher's claim was valid and 

(2) that the School District decided not to litigate the 

claim because of the increased cost to do so. The letter 

expressed concern that if the School District was 

unsuccessful in contesting the claim, the court would order 

the School District to pay the teacher's attorney's fees 

which would increase the loss by 30-40%. The hearing 

examiner disagreed with the School District and found that 

there was no obligation to pay the teachers except for the 

one day they worked. Thus, the hearing examiner and the BPA 
concluded there was no business justification for paying the 

claim. We agree with the District Court that that conclusion 

was an abuse of discretion. 

We need not decide for the purposes of this opinion 

whether the School District or the BPA correctly determined 

the legitimacy of the teacher's claim. 

The legitimacy of the [School District's! 

conduct for purposes of the analysis 

prescribed by Great Dane depends not on 

the truth of its assertions regarding its 

contractual obligations but rather on the 

reasonableness and bona fides with which 

it held its beliefs. 

The First Circuit's decision in NLRB v. 

Borden, Inc., Borden Chemical Division, 

600 F.2d 313 (1st Cir. 19791, is 

persuasive in this regard. In BO-rden, 

the employer withheld accrued vacation 

pay because of the employees' strike 

activity until after the contractual 

vacation period had expired. The Board 

rejected the employer's assertion that it 

was acting pursuant to a contractual 

obligation, i.e., "employees shall not be 

paid vacation pay in lieu of vacation," 

and concluded that the denial of vacation 

benefits was inherently destructive of 

the employees' rights. The First Circuit 

remanded the case, declaring: 

"Borden did come forward with evidence of 

a business justification for its conduct, 

namely, the terms of the collective 

bargaining agreement and past practice. 

The Board found this reason invalid 

because its interpretation of the 

contract differed from that of Borden's. 

This, however, - is - not a - question of 

contract interpretation. The Board -- had: 

duty to determine whether Borden was - 

motivated & its reliance on - the 

collective bargaining agreementor % 

anti-union animus when it -- withhelr 7 the 

accrued vacation benefits. We cautlon 

the Board --- that it is neither - our function 

-- nor the Board's to second-guess business 

decisions. "~heyct was not intended to 

guarantee that business decisions be 

sound, only that they not be the product 
of antiunion motivation" (Emphasis in 

original.) (Citations omitted.) 

Vesuvius Crucible Co. v. N.L.R.B. (3rd. Cir. 1981) , 668 F. 2d 

162, 167. See also Stokely-Van Camp, Inc. v. N.L.R.B. (7th 

Cir. 1983), 722 F.2d 1324. 

In Vesuvius, the employer, interpreting a collecti~re 

bargaining agreement, refused to pay allegedly accrued 

vacation benefits to any employee, striking or nonstriking. 

The NLRB found that this interpretation of the collective 

bargaining agreement was incorrect, that the employees' right 

to the benefits had accrued, and that the employer committed 

unfair labor practices in refusing to pay. The Third Circuit 

reversed finding the company's interpretation reasonable and 

arguably correct. The Vesuvius court found that the NLFR 

overstepped its authority in formulating j.ts own 

interpretation of the contract. 

The instant case is similar to Borden and Vesuvius. 

Here, the hearing examiner disagreed with the School 

District's interpretation of the contract but he did not 

address the reasonableness of that interpretation. We find 

that the School District made a reasonable interpretation of 

the contract and paid the claim out of a bona fide belief 

that the claim was valid. The School District paid the claim 

only after the teacher threatened to file suit to collect. 

Moreover, the School District's attorney advised the School 

District that this was a legal claim which should be paid. 

Finally, we find that the School District's interpretation of 

the contract was arguably correct. Therefore, we affirm the 

District Cou.rtls reversal of the BPA's conclusion that the 
School District had no substantial, legitimate business 

justification for the payment. 

The second issue is whether the lower court properly 

reversed the BPA's conclusion that the School District's 

action was inherently destructive of protected labor rights. 

Inherently destructive conduct, in this context, is conduct 

which carries with it, " . . . unavoidable consequences which 

the employer not only foresaw but which he must have 

intended" and thus bears ''its own indicia of intent." 

(Citation omitted.) N.L.R.B. v. Great Dane Trailers (1967) , 

388 U.S. 26, 33, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027, 1034. 

The Ninth Circuit Court of Appeals describes those cases 

finding inherently destructive conduct as: 

[C] ases involving conduct with far 

reaching effects which would hinder 

future bargaining, or conduct which 

discriminates solely upon the basis of 

participation in strikes or union 

activity. Examples of inherently 

destructive activity are permanent 

discharge for participation in union 

activities, granting of superseniority to 

strike breakers, and other actions 

creating visible and continuing obstacles 

to the future exercise of employee 

rights. (Citation omitted.) 

Portland 1Vil.lamette Co. v. N.L.R.B. (9th ~ir. 1976), 534 ~.2d 

1331, 1334. The Portland Willamette Co. court declined to 

find inherently destructive conduct in an employer's 

proposal, during a strike, to grant a retroactive pay 

increase to workers who had returned to, and remained at, 

work by a certain date. 

General Electric Co. (1948), 49 NLRB 510, 23 LRRM 1094, 

supports a conclusion that there was no inherently 

destructive conduct in this case. In General Electric the 
employees engaged in a strike and the employer, upon the 

strike's termination, paid full wages for the entire strike 

period to those employees who had indicated a willingness to 

work during the strike. Although the compensated employees 

actually did no work during the strike, the NLRB found that 

those workers were "on call" and available for work. The 

NLRB found no unlawful disparity of treatment in paying full 

wages to those workers for the strike period. 

In this case, the BPA found that the teachers were not 

on-call and did not make themselves available for work after 

the first day. The District Court ruled that this finding 

was clearly erroneous. The propriety of this ruling is the 

third issue on appeal. The facts support an inference that 

the teachers did make themselves available to work the entire 

period in question. The superintendent's letter soliciting 

teachers (the offer) clearly contemplated that the teachers 

would work until the completion of 180 school days, i.e., for 

eighteen more days. By showing up for work the first day, 

the teachers accepted the offer and implicitly agreed to 

work, and make themselves available, for eighteen days. 

The BPA found that the School District discriminated 

against the strikers solely on the basis of union activity. 

We disagree. The School District discriminated in favor of 

the non-strikers because they took the affirmative step of 

agreeing to teach for eighteen days and forego other options 

for those days. Moreover, the payments were made more than a 

year after the strike and only after the threat of a lawsuit. 

The School District's conduct arose out of a unique situation 

and is not the equivalent of permanently discharging strikers 

or granting superseniority to non-strikers. The inherently 
destructive label simply does not fit this conduct. 

Therefore, we uphold the District Court's reversal of the BPA 

on this point. 

We concede that the School District's conduct may have 

had a comparatively slight impact on employee rights. 

Teachers may hesitate slightly in joining future strikes. To 

find a violation of $ 39-31-401 (3) , MCA, where the 

discriminatory conduct has comparatively slight effect, "[Aln 

antiunion motivation must be proved to sustain the charge - if 

[as here] the employer has come forward with evidence of 

legitimate and substantial business justifications for the 

conduct. 'I Metropolitan Edison Co., 460 U.S. The BPA 

concedes, and the record shows, that there is - no evidence 

that the School District acted with an anti-union motive. 

Therefore, we hold that there was no violation of 

Finally, we address the issue of whether there was an 

independent, as opposed to derivative, violation of 

§ 39-31-401 (I), MCA. 

Such a violation is established. by 

showing: 

(1) that employees are engaged in 

protected activities, (citation omitted) ; 

(2) that the employer's conduct tends to 

"interfere with, restrain, or coerce 

employees" in those activities, (citation 

omitted) ; and 

(3) that the employer's conduct is not 

justified by a legitimate and substantial 

business reason, (citation omitted) . 

Fun Striders, Inc., 686 F.2d at 661-662. We held above that 

the employer's conduct was justified by a legitimate and 
substantial business reason. Therefore, there can be no 

independent violation of S 39-31-401(1), MCA. 

The District Court properly reversed the BPA order 

finding unfair labor practices. 

Affirmed . 

I 

We concur: A 

ief Justice 

Just i %e,s =-9 

urt sitting 

stice John 
Mr. Justice William E. Hunt, Sr., dissenting: 

I dissent. I would uphold the BPA decision that the 

School District violated $ 39-31-401, MCA, by paying the 

non-striking teachers for eighteen days of work where those 

teachers actually worked only one day. The facts as set out 

by the majority refer to the letter sent to all teachers by 

the School District, however the majority opinion does not 

set out that letter in full. There is one key sentence 

omitted. That sentence is the last sentence of the letter 

which reads: 

"Teachers who do not report for duty by 8:00 a.m. on 

June 4, 1981 will be replaced." 

This sentence is the crux of that letter, as is shown by the 

fact that the School Board refers to this letter in the 

minutes of its meetings as the "replacement letter." The 

letter further states, "Teachers returning June 4th to 

completion -- of the school year shall receive . . . an average 

10.6% increase . . .. " Twenty teachers told the District's 

agents that they would return on June 4. Seventeen actually 

worked June 4th, two of the teachers had a family emergency 

and one was sick. On the evening of June 4 the School 

District decided to close Missoula county high schools 

through Friday, June 5. On Sunday, June 7 the Board decided 

to close the schools for the remainder of the 1980-81 

academic year. 

The first issue raised on appeal, is whether 

the District Court erred in reversing the BPA's finding 

of fact that non-striking teachers were not available 

and on-call after June 4, 1981. The School District 

urges that the payment for eighteen days 
of work when only one was in fact worked was approved. in 

General Electric Co. (1948), 80 MLRB 510, 23 LRRM 1094. In 

General Electric, the employer paid employees who made their 

services available and remained on-call in a standby 

capacity. The employer refused to pay strikers. The NLRB 

held that the payment to non-strikers who did not work was 

not discriminatory because they remained subject to the 

employer's call on a standby capacity which was compensable 

as a matter of law. Thus the factual issue of whether the 

returning teachers were on-call after June 4, 1981 becomes 

crucial. The BPA held they were not because the school-s were 

closed and the school year was over. I agree that the 

returning teachers could not have remained on call for 

seventeen days after the schools had closed for the academic 

year, thus I would hold that General Electric has no 

application to this case. The conduct of the School District 

was to divide the work force into those who decided to go out 

on strike and those who did not and to reward the latter 

group. 

The United States Supreme Court has set out the test to 

determine if discriminatory conduct constitutes an unfair 

labor practice in NLRB v. Great Dane Trailers, Inc. (19671, 

388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027, 1035. 

First, if it can reasonably be concluded that the 

employer's discriminatory conduct was "inherently 

destructive" of important employee rights, no proof 

of an antiunion motivation is needed and the Board 

can find an unfair labor practice even if the 

employer introduces evidence that the conduct was 

motivated by business considerations. Second, if 

the adverse effect of the discriminatory conduct on 

employee rights is "comparatively slight," an 

antiunion motivation must be proved to sustain the 

charge if the employer has come forward with 

evidenceof legitimate and substantial business 

justifications for the conduct. Thus, in either 

situation, once it has been proved that the 

employer engaged in discriminatory conduct which 
could have adversely affected employee rights to 

some extent, the burden is upon the employer to 

establish that he was motivated by legitimate 

objectives since proof of motivation is most 

accessible to him. (Emphasis in original.) 

The payment for seventeen days of unworked time is not 

so insignificant that the teachers will not reflect before 

participating in future strikes. The hearing examiner 

estimated the cost to the District to be approximately 

$40,000 or $2,000 per employee. There have been many 

decisions that. have found unlawful interference with the 

right to strike under similar circumstances. NLRB v. Great 

Dane, supra (grant of vacation benefits to only nonstrikers 

was an unfair labor practice); NLRB v. Erie Resistor Corp. 

(1963), 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (grant of 

super seniority to nonstrikers was an unfair labor practice); 

George Banta Co., Inc., Banta Div. v. NLRB (D.C. Cir. 1982), 

686 F.2d 10 -- cert. den. (1983), 460 U.S. 1082, 103 S.Ct. 1770, 

76 L. Ed. 2d 344 (grants of preferential reinstatement and 

seniority rights to employees who abandoned a strike early 

was an unfair labor practice.); Soule Glass and Glazing Co. 

v. NLRB (1st. Cir. 1981) , 652 F. 2d 1055 (a 25C per hour wage 

increase to employees working as of the first day of a strike 

was an unfair labor practice.); NLRB v. Swedish Hospital 

Medical Center (9th Cir. 1980), 619 F.2d 33 (granting a one 

day vacation to non-strikers, those who returned early and 

those hired during the strike was an unfair labor practice); 

NLRB v. Rubatex Corp. (4th Cir. 1.979), 601 F.2d 147 cert. 

- den. (1979), 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 

(bonuses of of $100 to $25 for those who worked during the 

strike paid after the strike was over were an unfair labor 

practice.) ; NLRB v. Frick Co., (3d Cir. 1968), 397 F.2d 956 

(refusing vacation pay to strikers while paying non-strikers 
was an unfair labor practice.); Aero-Motive Manufacturing Co. 

(1972), 195 NLRB 790, 79 LRRM 1496, enf'd, (6th Cir. 1973), 

475 F.2d 27, ($100. bonus to those who worked through a 

strike, not awarded or announced until after the strike was 

an unfair labor practice. ) . The Court in Aero-Motive stated 

that by distinguishing "solely on the basis of who engaged in 

protected, concerted activity and who did not." such 

payments 'I. . . not only created a divisive wedge in the work 

force, but also clearly demonstrated for the future the 

special rewards which lie in store for employees who choose 

to refrain from protected strike activity." Aero-Motive, 195 -- - ---- 

NLRR at 792, 79 LRRM at 1498. J would adopt the rationale of 

Aero-Motive and conclude that the conduct of the School 

District was inherently destructive of the employees right to 

strike. Further, the business justification advanced by the 

School District does not constitute a legitimate substantial 

business necessity. The District received two letters from 

counsel for one of the teachers claiming he was due 

compensation for eighteen days although the terms of the 

agreement were, "to the completion of the school year" which 

ended June 4th. Further, the business necessity advanced by 

the School District does not explain why all twenty teachers 

were paid for the remaining seventeen days, even though three 

of those teachers did not work and were not paid for June 

4th. 

I would reverse the decision of the District Court and 

affirm the decision of the BPF. 

/' 
Mr. Justice John C. Sheehy and Mr. Justice Frank B. orriso on 

concur with the above dissent.