Nlrb v. Great Dane Trailers, Inc., 388 U.S. 26 (1967)

Author: Justice Harlan

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Nlrb v. Great Dane Trailers, Inc., 388 U.S. 26 (1967)

MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting.

Because I think that the Court puts forth a premise which misinterprets the recent decision in NLRB v. C & C Plywood Corp., 385 U.S. 421, and has proposed a determining rule based on a distillation of prior opinions which is, in my view, substantially inaccurate, I am constrained to express my dissent from its opinion. I believe that the Fifth Circuit correctly analyzed the problem, and that its decision should be affirmed.

The Court begins by stating that vacation benefits had "accrued" under the contract, and implies that striking employees had a contractual right to such benefits which was arbitrarily disregarded by Great Dane in order to punish those employees for engaging in protected activity. Were these the properly established facts of the case, I would have little difficulty in concurring in the result reached by the majority. Employer action which undercuts rights protected by § 7 of the National Labor Relations Act, as amended, 61 Stat. 140, and has no inferable, legitimate business purpose has been held a violation of §§ 8(a)(3) and (1). Republic AviationCorp. v. Labor Board, 324 U.S. 793. But the contract dispute is not so frivolous as to be determined without examination,{1} and the issue framed by the Court is not properly before us. Moreover, contrary to the Court’s assertion, neither the Board nor the lower court limited itself to considering this issue, and both recognized a limitation on the Board’s contract interpretation powers in light of § 301(a) of the Labor Management Relations Act, 1947.{2}

The Board disclaimed "interpreting the contract for the parties" and held only that

strikers must be treated uniformly with nonstrikers with respect to whatever benefits accrue to the latter from the existence of the employment relationship.

It explained that its order would merely force the employer to use the same vacation pay criteria for all employees and only prevent Great Dane from using the requirement that a recipient be at work as of July 1, 1963. The Court of Appeals considered the "term or condition of employment" at issue to be the employer’s unilaterally declared vacation "policy." It explicitly disregarded

the question of whether the Board would have acted improperly . . . to decide whether it was an unfair labor practice to withhold benefits due under the contract. . . .

363 F.2d 130, 133. (Emphasis in original.)

I think the Board and the Court of Appeals were correct in disregarding the contract issue. In NLRB v. C & C Plywood Corp., supra, which the Court says upholds jurisdiction to consider the contract, we faced a situation in which an employer had taken a unilateral action with respect to wages which was a prima facie violation of § 8(a)(3) and was attempting to justify that action by contractual privilege. The Court held that the interposition of a contractual defense could not deprive the Board of jurisdiction to "enforce a statutory right" where the Board had "not construed a labor agreement to determine the extent of the contractual rights which were given the union by the employer." Id. at 428. Also, the agreement involved in that case did not contain an arbitration clause, and thus the strong policy favoring arbitration was not infringed by the Board’s action. Id. at 426. Here, the Court’s statement of the issue would imply that the Board may consider an unfair labor practice founded solely on breach of a contractual duty, and the labor agreement seems to invoke the remedy of arbitration.{3} In these circumstances, I think the only issue properly before the Court is whether the employer’s unilaterally declared vacation policy, considered on its own bottom, constitutes a violation of § 8(a)(3) absent a showing of improper motivation by evidence independent of the policy itself.

The Court attempts to resolve this issue as well as the contractual one. In the Court’s view, an employer must "come forward with evidence of legitimate and substantial business justifications" whenever any of his actions are challenged in a 8(a)(3) proceeding. Prior to today’s decision, § 8(a)(3) violations could be grouped into two general categories: those based on actions serving no legitimate business purposes or actions inherently severely destructive of employee rights where improper motive could be inferred from the actions themselves, and, in the latter instance, even a legitimate business purpose could be held by the Board not to justify the employer’s conduct, Labor Board v. Erie Resistor Corp., 373 U.S. 221, and those not based on actions "demonstrably so destructive of employee rights and so devoid of significant service to any legitimate business end," where independent evidence evincing the employer’s anti-union animus would be required to find a violation. Labor Board v. Brown, 380 U.S. 278, 286. The Court is unable to conclude that the employer’s conduct in this case falls into the first category, and has proposed its rule as an added gloss on the second, whose contours were fixed only two years ago in Brown.

Under today’s formulation, the Board is required to find independent evidence of the employer’s anti-union motive only when the employer has overcome the presumption of unlawful motive which the Court raises. This alteration of the burden in § 8(a)(3) cases may either be a rule of convenience important to the resolution of this case alone or may, more unfortunately, portend an important shift in the manner of deciding employer unfair labor practice cases under § 8(a)(3). In either event, I believe it is unwise.

The "legitimate and substantial business justifications" test may be interpreted as requiring only that the employer come forward with a nonfrivolous business purpose in order to make operative the usual requirement of proof of anti-union motive. If this is the result of today’s decision, then the Court has merely penalized Great Dane for not anticipating this requirement when arguing before the Board. Such a penalty seems particularly unfair in view of the clarity of our recent pronouncements that

the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an anti-union animus,

Labor Board v. Brown, 380 U.S. at 288, and that "the Board must find that the employer acted for a proscribed purpose." American Ship Building Co. v. Labor Board, 380 U.S. 300, 313.

On the other hand, the use of the word "substantial" in the burden of proof formulation may give the Board a power which it formerly had only in § 8(a)(3) cases like Erie Resistor, supra. The Board may seize upon that term to evaluate the merits of the employer’s business purposes and weigh them against the harm that befalls the union’s interests as a result of the employer’s action. If this is the Court’s meaning, it may well impinge upon the accepted principle that "the right to bargain collectively does not entail any `right’ to insist on one’s position free from economic disadvantage." American Ship Building Co. v. Labor Board, supra, at 309. Employers have always been free to take reasonable measures which discourage a strike by pressuring the economic interests of employees, including the extreme measure of hiring permanent replacements, without having the Board inquire into the "substantiality" of their business justifications. Labor Board v. Mackay Radio & Telegraph Co., 304 U.S. 333. If the Court means to change this rule, though I assume it does not, it surely should not do so without argument of the point by the parties and without careful discussion.

In my opinion, the Court of Appeals correctly held that this case fell into the category in which independent evidence of anti-union motive is required to sustain a violation. As was pointed out in the Court of Appeals opinion, a number of legitimate motives for the terms of the vacation policy could be inferred, 363 F.2d at 134, and an unlawful motive is not the sole inference to be drawn from the conduct. Nor is the employer’s conduct here, like the super-seniority plan in Erie Resistor, supra, such that an unlawful motive can be found by "an application of the common law rule that a man is held to intend the foreseeable consequences of his conduct." Radio Officers v. Labor Board, 347 U.S. 17, 45. The differences between the facts of this case and those of Erie Resistor, supra, are, as the parties recognize, so significant as to preclude analogy. Unlike the granting of super-seniority, the vacation pay policy here had no potential long-term impact on the bargaining situation. The vacation policy was not employed as a weapon against the strike, as was the super-seniority plan. Notice of the date of required presence for vacation pay eligibility was not given until after the date had passed. The record shows clearly that Great Dane had no need to employ any such policy to combat the strike, since it had successfully replaced almost all of the striking employees.{4} The Trial Examiner rejected all union claims that particular actions by Great Dane demonstrated anti-union animus. In these circumstances, the Court of Appeals correctly found no substantial evidence of a violation of § 8(a)(3).

Plainly, the Court is concerned lest the strikers in this case be denied their "rights" under the collective bargaining agreement that expired at the commencement of the strike. Equally plainly, a suit under § 301 is the proper manner by which to secure these "rights," if they indeed exist. I think it inappropriate to becloud sound prior interpretations of § 8(a)(3) simply to reach what seems a sympathetic result.

1. The union elected to terminate the contract, raising the question whether any right to vacation pay survived the termination. Also, the contract provided for vacation pay when the employee was not actually granted a vacation, and the initial choice lay with the employer. Thus, under the contract, the employer was not obligated to grant two weeks’ additional pay, but could choose to grant vacation instead, and lower the total cash outlay. Termination precluded exercise of that choice.

2. 61 Stat. 156, 29 U.S.C. § 185(a). This position is supported by the legislative history discussed in NLRB v. C & C Plywood Corp., 385 U.S. 421, at 427.

3. Article XIV of the contract provided that arbitration would not be required after one party had given notice of intent to terminate or modify the contract. This disclaimer clearly implies that arbitration would be required in the resolution of disputes arising under the contract.

4. By July 1, 1963, almost 75% of the striking employees had been replaced. By August 1, 1963, when the dispute over vacation pay as coming to a head almost 90% had been replaced. All strikers had been replaced by October 8, 1963.


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Chicago: Harlan, "Harlan, J., Dissenting," Nlrb v. Great Dane Trailers, Inc., 388 U.S. 26 (1967) in 388 U.S. 26 388 U.S. 36–388 U.S. 40. Original Sources, accessed May 31, 2023,

MLA: Harlan. "Harlan, J., Dissenting." Nlrb v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), in 388 U.S. 26, pp. 388 U.S. 36–388 U.S. 40. Original Sources. 31 May. 2023.

Harvard: Harlan, 'Harlan, J., Dissenting' in Nlrb v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). cited in 1967, 388 U.S. 26, pp.388 U.S. 36–388 U.S. 40. Original Sources, retrieved 31 May 2023, from