Retail, Wholesale and Department Store Union v. National Labor Relations Board

The Retail, Wholesale and Department Store Union (Union) (defendant) engaged in a strike against Coca Cola Bottling Works, Inc. The matter came before the National Labor Relations Board (NLRB) (plaintiff), which held that the employer had committed an unfair labor practice when it failed to hire workers who were permanently replaced during a strike for new job openings. This decision reflected a policy change for the NLRB, which, prior to 1968, had consistently enunciated and applied the rule that when an employer permanently replaces an economic striker, he is under no obligation to treat that striker other than as a new job applicant. In light of the United States Supreme Court’s decision in NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), the NLRB overturned this rule in 1968 in The Laidlaw Corporation, 171 NLRB No. 175 (1968). Specifically, in Laidlaw, the NLRB held that former strikers are entitled to offers of reinstatement to vacancies resulting from the subsequent departure of permanent replacements, and that they remain so entitled until they have obtained other regular and substantially equivalent employment. The NLRB sought enforcement of its order. The case came before the federal court of appeals, which considered whether the NLRB could retroactively apply the change in policy where that change was effectuated through adjudication rather than rulemaking.