Greenspan Engraving Corp.

National Labor Relations Board - Board Decisions

Jul 16, 1962

137 N.L.R.B. 1308 (N.L.R.B. 1962)

1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greenspan Engraving Corp . and District No. 15, International
Association of Machinists , AFL-CIO, Petitioner. Case No.
2-RC-11350. July 16, 1962
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election' issued by the
Board on July 20, 1961, an election by secret ballot was conducted on
August 14, 1961, under the direction and the supervision of the Re-
gional Director for the Second Region among the employees in the
appropriate unit. Upon the conclusion of the election a tally of
ballots was furnished the parties which showed that of approximately
seven eligible voters, three ballots were cast for, and one ballot was
cast against, the Petitioner and six ballots were challenged. The
challenged ballots were sufficient in number to affect the results of
the election. No objections to conduct affecting the results of the
election were filed by either of the parties.
In accordance with the Board's Rules and Regulations, Series 8, the
Regional Director conducted an investigation of the challenges, and
on September 19 and November 1, 1961, issued reports on challenged
ballots, in which he recommended that the challenges to four ballots
be overruled, and that a determination of the status of the remaining
two challenged ballots be held in abeyance until the disposition of
pending unfair labor practice charges if they then affected the results'
The Employer and the Petitioner filed exceptions to the Regional
Director's recommendation as to the above four ballots.
The Board has considered the challenges in question, the Regional
Director's report, the exceptions filed thereto, and the entire record
in this case, and finds as follows :
The Regional Director's investigation showed that on June 13,
1961, seven of the eight employees in the bargaining unit went out on
strike to protest the Employer's refusal to recognize the Petitioner
as their bargaining representative, and continued to strike until after
the election. Three of the voters whose ballots were challenged were
hired as permanent replacements after the eligibility period (payroll
period ending July 14, 1961). Luppo and Munson were hired on
July 31, 1961, and Mulvey was hired on August 11, 1961. The Re-
gional Director, relying upon the eligibility rule established in Tampa
Sand c Mlaterial Company, 129 NLRB 1273, found that, although
the individuals involved were all hired subsequent to the eligibility
period, they were employed on the day of the election and were, there-
fore, eligible voters.
1 Not published in NLRB volumes
2 In a settlement agreement approved by the Regional Director on November 21, 1961,
the parties informally disposed of the charges in question involving the above two chal-
lenged ballots and one of the above four challenged ballots
137 NLRB No. 135.
GREENSPAN ENGRAVING CORP. 1 309
In accordance with the Petitioner's request, we have reconsidered
the holding of Tampa Sand. We are now persuaded that, insofar
as that case extends eligibility to replacements hired between the
eligibility date and the election date, without regard to any other
circumstances, it constitutes an unwarranted departure from the
Board's usual eligibility rules.
The right of permanent replacements for economic strikers to vote
in representation elections has long been recognized 3 However, at
all times prior to Tampa Sand, the Board determined the eligibility
of such permanent replacements 4 by applying its general rule that,
to be eligible, an employee must be employed during the eligibility
payroll period and on the date of the election.-' At no time was any
disapproval expressed by Congress or the courts of the Board's ap-
plication of this eligibility rule to such striker replacements, but
Congress did disagree with the Board insofar as it permitted replaced
economic strikers to cast ballots although they were not entitled to
reinstatement. Accordingly, in 1947, Congress amended the Act by
adding Section 9(c) (3), which provided that "Employees on strike
who are not entitled to reinstatement shall not be eligible to vote."
This amendment was concerned solely with the voting rights of eco-
nomic strikers I and was not intended or construed to affect the estab-
lished eligibility requirements for replacements.' In 1959, because
of dissatisfaction with the impact of Section 9(c) (3) on the economic
strikers themselves, that section was amended to provide that "Em-
ployees engaged in an economic strike who are not entitled to rein-
statement shall be eligible to vote under such regulations as the Board
shall find are consistent with the purposes and provisions of this Act
in any election conducted within twelve months after the commence-
ment of the strike." Again Congress was concerned solely with the
rights of economic strikers. It is clear from the legislative history
that this is so 8 and that the amendment had no impact on the eligi-
The Board has so held since The Rudolph Wurlitzer Company, 32 NLRB 163.
See, e.g, as to the eligibility of such replacements , Vaughn & Taylor Constructson Co.,
Inc., 115 NLRB 1404 , 1407; Otis A. Springs , Jr., d/b/a Otis Steel Products Co., 95 NLRB
624; Frank Foundries Corporation, 92 NLRB 1754.
5 Gulf States Asphalt Company , 106 NLRB 1212.
9 See S Rept. 105 on S. 1126 at p. 25, I Legislative History of the Labor Management
Relations Act, 1947, at p 431; remarks of Senator Taft , 93 Congressional Record 3955,
II Legislative History of the Labor Management Relations Act, 1947, at p. 1014.
7 There are frequent references throughout the legislative history to the possibility of
an employer 's hiring replacements and then seeking an election , thus cutting off the rights
of strikers. See, e.g., remarks of Senator Pepper, 93 Congressional Record 6686, II Legis-
la,tive History of the Labor Management Relations Act, 1947, at 1606; remarks of Senator
Taft, 93 Congressional Record 3950, II Legislative History of the Labor Management
Relations Act, 1947, at 1014. It is thus obvious that Congress was concerned only with
the voting rights of replacements vis-a-vis economic strikers and not with altering the
Board's previously uniform eligibility rules
8 See H. Rept 741 on H R 7342, at pp. 25 and 87, I Legislative History of the Labor-
Management Reporting and Disclosure Act, 1959, at pp. 783 and 845; Senate Committee
Analysis of the Labor-Management Reporting and Disclosure Act of 1959, at p. 19, I
Legislative History of the Labor-Management Reporting and Disclosure Act, 1959, at
p 9'65 , and remarks of Senator Jav'its, Congressional Record, Senate-April 21, 1959, at
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility of permanent replacements.' Nor was there any congressional
intent to disturb the Board's authority to establish eligibility stand-
ards for employees voting in representation elections. On the con-
trary, the legislative history 1e and the very language of Section
9(c) (3), as amended, confirm this power, and clearly reserve to the
Board the administrative authority to determine eligibility. While
it was thus within the Board's power to adopt the rule of Tampa
Sand, we believe it appropriate to limit the holding of that case to
the facts there present.
In the absence of a congressional mandate,11 we find no persuasive
reason why the Board should, in the exercise of its administrative
discretion, follow the rule adopted in Tampa Sand insofar as it applies
to every strike situation. In that case the strike arose of ter the is-
suance of the Direction of Election, and it was, therefore, patently
impossible for the employer to hire replacement prior to the eligibility
cutoff date. The Board felt that, under those facts, a strict applica-
tion of the Board's usual eligibility standards would create a voting
imbalance between the economic strikers and their replacements. As
the timing of the strike was peculiarly within the province of the
union, rigid adherence by the Board to mechanical standards without
regard to the equities of the case would not have been reasonable. An
unusual situation therefore existed in that case, and we do not disagree
with the eligibility standard adopted in that case insofar as it applies
to the facts then before the Board.
On the other hand, where, as in the instant case, the ordinary situa-
tion exists of a strike which began some time before the election was
directed, there is no reason not to apply our usual eligibility stand-
ards . la Here, the strike commenced over 5 weeks before the Board
issued its Direction of Election . The eligibility period established
pp. 5731 -5732, II Legislative History of the Labor-Management Reporting and Disclosure
Act. 1959 , at pp. 1064(2 )-1065 ( 2), that "The sole question is one of whether economic
strikers shall be entitled to vote in representation elections , or whether only those who
filled the jobs in a strike shall be entitled to vote."
0In this respect , we agree with the statement of our dissenting colleagues that "In
[amending Section 9(c) (3) ], however , Congress did not disturb the voting rights of . . .
replacements "
10 See , e.g , H Rept 741 on HR . 7342 , at p. 25, I Legislative History of the Labor-
Management Reporting and Disclosure Act, 1959, at p. 783.
11 References throughout the legislative history of the 1959 amendments reveal that at
that time the situation which arose in Tampa Sand had not been called to the attention
of Congress , and Congress discussed only the eligibility of those replacements hired be-
fore the eligibility date. See, e g., Analysis of Kennedy-Ervin Bill-Statement of Senator
Goldwater before House Committee on Education and Labor, Congressional Record,
Senate-June 8, 1959, at p. 9118 , II Legislative History of the National Labor Relations
Act, 1959, at p. 1290(1) ; Analysis of Landrum -Griffin Reform Bill ( H.R 8400, HR.
8401 ), Congressional Record, House-July 27, 1959, at p 13091 , H Legislative History
of the Labor-Management Reporting and Disclosure Act, 1959, at p. 1522(3) ; Extension
of Remarks of Congressman Griffin, Congressional Record, House-August 3, 1959, at
p 13714, II Legislative History of the Labor-Management Reporting and Disclosure Act,
1959, at p. 1534(2).
12 Tampa Sand & Material Company , supra, is overruled to the extent it is incon-
sistent with our decision herein.
GREENSPAN ENGRAVING CORP. 1311
by the Board was for the payroll period which ended over a month
after the strike commenced. There were no replacements hired during
this period, even though the Employer had ample opportunity to do
so. It is thus clear that none of the special considerations which
existed in Tampa Sand are present here.
We are unable to see any reason why striker replacements hired
after the eligibility date are entitled to more favored treatment than
is accorded, when there is no strike, to regular employees hired during
the comparable period. Surely striker replacements have no greater
interest in expressing their desires as to representation than do such
new employees. Yet it is an accepted rule that, where there is no
strike, new permanent employees hired after the eligibility date are
ineligible to vote, notwithstanding the fact that, to paraphrase the dis-
senting opinion herein, they "are employees in fact, and will most
likely continue in their employment after the election, [but] are being
deprived of a right to express their voice in the election." And again
in the words of our dissenting colleagues, the usual eligibility rule also
results in "depriving [new permanent employees] who are employed
on the election date the right to cast a vote commensurate with their
interest in the employment relationship. . . ." We find no insuper-
able difficulty which will arise from the need to determine when a
strike began. The Board has long made determinations on many is-
sues, including the eligibility of newly hired permanent employees,
which are dependent on the timing of the events. We see no more
problem in determining the eligibility of replacements on this
basis than in making any other findings which involve similar
considerations.
Finally, we believe that the hypothetical situations envisioned by
our dissenting colleagues, in which a union may so accurately fore-
tell the issuance of a date of a direction of election by a regional di-
rector that it can time a strike so as to preclude an employer from hir-
ing eligible replacements, to be too speculative in nature to require
consideration. While we do not agree as to the predictability of the
issuance date of such directions, we shall decide any such case on its
facts if or when it should arise in the future.
We therefore adhere to Tampa Sand where, as there, a strike occurs
after the eligibility date and we adhere to our usual eligibility rules
with respect to the eligibility of replacements for economic strikers
in all other situations.13
Accordingly, as Luppo, Munson, and Mulvey were striker replace-
ments but were not employed on the eligibility date, we shall sustain
the challenges to their ballots.
33 We do not intend to affect the limitation in Tampa Sand on the eligibility of striker
replacements to tae number of actual strikers, which is, on its face, nothing more than a
recognition of the fact that any such additional employees could obviously not be replace-
ments and are, in fact , ineligible under the Board ' s general rule.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the challenge to the ballot of Serino, the investigation showed
that he was employed by the Employer from December 1959 until the
day of the strike. He took part in picketing the Employer's plant
until a week before the election at which time he took a job with another
company. He indicated after the election that he wishes to return to
his job with the Employer where he has built up seniority and vaca-
tion time, and that he considers his present job temporary. It is clear
that Serino will maintain his seniority and vacation benefits if he re-
turns to his job. Thus, the Employer, in the settlement agreement
referred to in footnote 2, above, agreed "upon application" to offer
Serino immediate and full reinstatement to his former or substantially
equivalent position, "without prejudice to seniority or other rights and
privileges." Under the circumstances we agree with the Regional
Director that Serino did not divest himself of his status as an economic
striker and that the challenge to his ballot should be overruled.14
Accordingly, we shall direct that it be opened and counted as provided
below.'-'
[The Board directed that the Regional Director for the Second Re-
gion shall, within 10 days from the date of this Direction, open and
count the ballot of Allan Serino, and serve upon the parties a supple-
mental tally of ballots, including the count of the ballots of Toro and
Do Franco in the total. If the Petitioner, District 15 International
Association of Machinists, AFL-CIO, according to the revised tally
receives a majority of the valid votes cast, the Regional Director will
issue a certification of representatives to such labor organization.
[The Board further directed that in the event the Petitioner does
not receive a majority of the valid votes cast, as provided above, the
Regional Director advise the Board so that the Board may take further
appropriate action.]
MEMBERS RODOERS and LEEDOM, dissenting :
Without advancing any persuasive reason for their decision, the
majority today is refusing to apply the Board's Tampa Sand doctrine 15
That doctrine permits permanent replacements for economic strikers
to vote in a representation election, provided only that they were
employed on the date of the election. For the reasons stated herein-
after, we must dissent.
Throughout its history, the Board has recognized the right of per-
manent replacements for economic strikers to vote in an election.
Under the Wagner Act in The Rudolph TVurlitzer Company, 32 NLRB
163, which was decided in 1941, the Board held that striker replace-
14 See National Gypsum Co , 133 NLRB 1492.
ss As to the challenges to the ballots of Toro and De Franco , we are reserving our deci-
sion herein pending the opening and counting of the above ballot and the issuance of the
revised tally of ballots
- Tampa Sand & Material Company, 129 NLRB 1273.
GREENSPAN ENGRAVING CORP. 1313
ments were eligible to vote on the theory that both the strikers and
their replacements were "employees" within the meaning of Section
2(3) of the Act. Chairman Millis, in a supplementary opinion sup-
porting the holding, pointed out that (1) in the context of an economic
strike the Board should remain neutral by allowing both the strikers
and their replacements to vote and that to hold the replacements in-
eligible to vote would mean tipping the scales unfairly against the
employer; (2) the right to strike is neither withdrawn nor restricted
by permitting all employees to vote; and (3) as the replacements have
a lawful claim to the jobs, they should have the same right to vote as
the strikers.
In 1947, Congress amended the Act by adding Section 9 (c) (3) which
provided that "Employees on strike who are not entitled to reinstate-
ment shall not be eligible to vote." Congress thereby recognized that
once a striker has been permanently replaced, and is no longer entitled
to reinstatement, it is the replacement who has the greater interest
in the employment relationship and whose vote should be counted in
an election." Thus there was implicit congressional approval of the
Board's earlier practice of allowing permanent replacements for eco-
nomic strikers to vote in an election.18
In 1959, Congress passed the Labor-Management Reporting and
Disclosure Act (LMRDA) which, inter alia, amended Section 9 (c) (3)
to give permanently replaced economic strikers the right to vote. In
doing so, however, Congress did not disturb the voting rights of their
replacements. A careful study of the legislative history of the
LMRDA fails to reveal any intent that Congress sought to disen-
franchise the replacements for economic strikers. Indeed, consistent
with its past analyses and thoughts on the subject, the Board itself
viewed the amendments as preserving the replacements' right to vote
and adopted this interpretation of congressional intent.'9
17 See The Pipe Machinery Company, 76 NLRB 247.
Is In Rowe-Jordan Furniture Corporation, 81 NLRB 190, in which a strike occurred
after the Board Issued Its Decision and Direction of Election, the Board, taking cog-
nizance of the events which happened after the issuance of the decision, held that under
Section 9(c) (3), the replaced economic strikers were not eligible to vote, even though
they had been eligible on the eligibility date, but that the replacements who were hired
after the eligibility date were also ineligible However, the consequence of the Board's
decision was that only 18 votes would have been counted out of a unit of 75 employees-
whereupon the Board set aside the election.
10 W. 'Wilton Wood, Inc., 127 NLRB 1675; Tampa Sand & Material Company, supra.
Our colleagues state that "there are frequent references throughout the legislative his-
tory to the possibility of an employer's hiring replacements and then seeking an election,
thus cutting off the rights of strikers " From this our colleagues conclude that "it is
thus obvious that Congress was concerned only with the voting rights of replacements
vis-a-vis economic strikers and not with altering the Board's previously uniform eligibility
rules "
Presumably our colleagues are relying on remarks of Senator Pepper who did bring such
a "possibility" to the attention of Congress. However, we note that Senator Pepper was
speaking against the bill and particularly against Section 9(c) (3) as, in his opinion, that
section gave an employer the power "to break a labor union " As Congress passed the
bill, including Section 9(c) (3), in spite of Senator Pepper's objections, we are unable to
649856-63-vol. 137-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe that the Tampa Sand doctrine is sound; that in the con-
text of an economic strike both the strikers and their replacements
should be entitled to vote without regard to the general eligibility
period. As the Board said in the Tampa Sand and W. Wilton Wood
cases, supra, any other rule which results in disenfranchising replace-
ments is contrary to the intent of Congress. Moreover we agree with
former Chairman Millis' reasoning in the 20-year-old Wurlitzer case,
supra, that denying replacements the right to vote gives the union an
unfair advantage and breaches the neutrality which the Board should
maintain in these cases.
In the instant case, the Union filed a petition for an election. There-
after, but before the Board issued its Decision and Direction of Elec-
tion, the Petitioner called a strike. This the Petitioner was entitled to
do for the Act, while encouraging the parties to settle these questions
through the orderly processes of the Board, clearly protects the em-
ployees' right to strike. But the Act also accords to the employer,
when faced with such economic pressure, the right to resist the de-
mands made by the union by continuing his business through the em-
ployment of permanent replacements. And under settled law these
permanent replacements are entitled to be retained by the employer
even after the strike ends and the strikers unconditionally offer to re-
turn to their jobs 20 These permanent replacements, then, are con-
sidered to be the employer's "employees," possessing a stake in the
employer's operations at least equal, if not superior, to the strikers'
interest. Under the 1959 amendments, the strikers are entitled to vote
notwithstanding the fact that they have been replaced and that they
may never reacquire employment with this employer. But under our
colleagues' decision, the permanent replacements, who are employees
in fact, and will most likely continue in their employment after the
election, are being deprived of a right to express their voice in the
election.
The Petitioner argues in its brief that allowing replacements hired
after the eligibility period the right to vote in the election permits the
employer to "pad" or control the eligibility list and thereby makes
unions reluctant to resolve questions of representation through the
Board's processes. We do not find this argument persuasive for, as
the Board noted in Tampa Sand, "permanent replacements for strikers,
rely on his remarks, as our colleagues apparently do, as reflecting the intent of Congress
Nor do we understand how our colleagues can cite the remarks of Senator Taft as one
of these "frequent references," for Senator Taft, speaking in support of the bill and Sec-
tion 9(c) (3), dealt with the reasons why, in his opinion, replaced economic strikers should
be denied the right to vote Clearly his position was diametrically opposed to Senator
Pepper's . In view of the above , we are unable to see how our colleagues arrive at the
conclusion they find so "obvious."
Moreover , our colleagues themselves admit that "it was within the Board 's power to
adopt the rule of Tampa Sand"
20 N L.R B v . Mackay Radio & Telegraph Co., 304 U.S. 333.
GREENSPAN ENGRAVING CORP. 1315
who in no event may exceed the number of strikers, are eligible to vote
if employed on the date of the election." [Emphasis supplied.]
The lack of logic in our colleagues' position is illustrated by the
following :
First, in holding the permanent replacements ineligible our col-
leagues find it necessary to distinguish between the voting eligibility of
permanent replacements in cases where the strike occurred after the
Board's Direction of Election, as in Tampa, and those cases where the
strike occurred before the Board's Direction of Election, as in the
instant case, thereby making eligibility of replacements turn on the
fortuitous circumstance of the date of issuance of the Board's decision.
Inasmuch as the date of the Board's Decision and Direction is solely in
the Board's control, there is no basis for allowing voting eligibility of
permanent replacements to be determined by such fortuity. Indeed,
for the sake of establishing a mechanical rule, our colleagues are de-
priving replacements who are employed on the election date the right
to cast a vote commensurate with their interest in the employment
relationship-the protection of which is the very essence of the Board's
representation procedures.
Second, our colleagues' decision can have no future effect except to
deny permanent replacements the right to vote because now unions
are given the tools with which to control the eligibility roster for
elections. Under the Board's new delegation of authority to Regional
Directors,'it presently takes about 45 days from the filing of a peti-
tion to the issuance of a Decision and Direction of Election. As the
elapsed period becomes more and more stabilized, it is to be expected
that unions, familiar as they are with Regional practices, will be able
to predict with a fair degree of accuracy when a decision is likely to
issue. Thus, by calling a strike shortly before the predictable date
of the issuance of the Decision and Direction of Election, a union can
effectively prevent an employer from hiring any eligible replace-
ments.21 And on the other hand, with the vesting of such potential
control in the hands of a union, the only alternative open to an em-
ployer is to hire permanent replacements immediately, and on the very
same day as a strike occurs 22 We do not believe the encouragement
of such a situation will foster the policies of the Act 23
zi For example , assume a situation in which a petition is filed on the 1st day of the
month, a hearing is held on the 10th, a strike occurs on the 20th , all strikers are replaced
on the 24th and the Board ' s decision issues on the 30th The eligibility date will depend
upon the ending of the payroll period immediately preceding the date of the Board 's deci-
sion and, in the assumed situation , it may very well have ended prior to the 24th , or even
prior to the 20th Thus, even though an employer acts with reasonable dispatch in re-
placing strikers soon after the strike occurs , the replacements may all be ineligible
22And, as noted in the example , supra, footnote 11, even immediate replacement of the
strikers might prove unavailing if the eligibility date designated in the Board 's Decision
and Direction of Election happens to relate back to a date prior to the date of the strike.
22 Our colleagues admit that in the Tampa Hand case , "the timing of the strike was
peculiarly within the province of the Union " Yet they refuse to admit the equal prob-
ability that , in view of the predictability of the issuance of the Direction of Election,
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Third, there is just no reason for disenfranchising replacements
who are hired after the eligibility date.24 As noted, the number of re-
placements cannot exceed the number of strikers. Moreover, there
is no basis in Board experience to suppose that employers who are
faced with a strike immediately run out to recruit replacements for all
the strikers. Indeed, the instant Employer's action points in the op-
posite direction for, although seven or eight employees in the unit
participated in the strike, the Employer replaced only three of the
strikers. If the Employer had desired to "control" the eligibility list,
it could have hired eligible replacements for all seven of the strikers
which, persumably, would have altered the outcome of the instant
election. But this the Employer did not do. The Employer hired only
three replacements-apparently in the belief that this number was all
that was required to enable it to continue operating its business. We
do not believe the Employer, and the replacements, should be penalized
for such conduct.
In sum, the Tampa Sand doctrine was adopted to insure that in a
strike situation neither the employer nor the union would benefit in
the election from the bare fact of the strike-rather, that both the
strikers and their replacements would be eligible, thereby balancing
the interest of both groups. But the majority's decision in the instant
case disturbs that balance, not only by denying the replacements the
right to vote, but also by making the eligibility roster turn on the
fortuitous relationship between the dates of the strike and the Direc-
tion of Election. Further, by vesting control of the eligibility roster
in the Union, our colleagues are making a replacement's right to vote
depend upon when in point of time a union chooses to call a strike.
This result is precisely the evil which Tampa Sand was designed to,
and did in fact, avoid.
Accordingly, for the foregoing reasons, we would affirm the Regional
Director and overrule the challenges to the ballots of Mulvey, Luppo,
and Munson.
unions will be able to time their strikes to control the eligibility roster . Instead, they
say that this probability is "too speculative in nature to require consideration ," and dis-
agree "as to the predictability of the issuance date of such directions ." We would re-
mind our colleagues , however, that the Board itself compiles quarterly statistics, made
available to the public , and showing specifically the average elapsed time from the date
of filing of the petition to the date of hearing, and from the close of hearing to the
issuance of the Direction of Election . Moreover , Board Members themselves frequently
have publicized and referred to these statistics in some of their recent speeches
24 Our colleagues would resolve the eligibility of replacements for economic strikers by
the Board ' s general eligibility rules ; in so doing they liken replacements for strikers to
new employees . But there exists here a fundamental distinction which our colleagues,
unfortunately , overlook . In the normal situation , where there is no strike , by establish-
ing an eligibility date before the direction of election , the padding of the payroll by the
employer solely for the purposes of the election tends to be minimized . On the other
hand, in the strike situation, it is obvious that replacements are not hired to pad a pay-
roll or to rig an election . They are hired , instead, to fill existing jobs which have become
vacant solely because the union has elected to strike and to engage in an economic
struggle. In short, they are hired by the employer in an effort merely to maintain its
prestrike operations.