                                    No. 8 6 - 4 2
               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, 1 9 8 6
                                          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 ~ . 2 d 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
               ..    .
               employer
                       In such a situation, even if an
                             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 - the employer has come forward
                         if
               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, - - - question of
                            is not a
           contract interpretation. The Board : -
                                                -
                                                d
                                                a
                                                h
           duty to determine whether Borden was
           motivated   & its reliance on -
                                                  -
                                                  the
           collective bargaining agreementor %
           anti-union animus - -it withhelr 7
                               when               the
           accrued vacation benefits.     We cautlon
           the Board - -it is neither - function
                     that -              our
           - - Board's to second-guess business
           nor the
           decisions. " ~ h e y c t
                                  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.rtlsreversal 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 ~ i r .1976), 534 ~ . 2 d
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 - evidence
                                              no
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 3 9 - 3 1 - 4 0 1 ( 1 ) ,   MCA.
       The    District     Court    properly     reversed     the   BPA   order
finding unfair labor practices.
       Affirmed   .

                                                                              I




We concur:         A


  ief Justice




Just i%,
       es        =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 - - school year shall receive
           of the                                              . . . 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 . 9 7 9 ) ,   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.
