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Not only do the Executive Order and the Secretary's regulations have a substantial impact
on American corporations, it appears that the Secretary's regulations promise a direct conflict
with the NLRA, thus running afoul not only of Machinists but the earlier Garmon pre-emption
doctrine. Under the regulations, the Secretary assumes responsibility for determining when a
"labor dispute" ends, thereby permitting an employer who is debarred because he used permanent
replacements to be declared eligible. But the regulations contemplate that the Secretary will not
declare the "labor dispute" over without the striking union's approval (which enables either
strikers to return to work thus ousting the replacements or a collective bargaining agreement to
be reached, both of which are factors listed in the regulations for supporting the conclusion that a
"labor dispute" has ended. See 60 Fed. Reg. at 27,862). Under the NLRA, however, an
employer's duty to bargain with a striking union after the strikers have been replaced ends if a
year has passed since certification and he has a good faith doubt as to the union's majority status,
or the union does not in fact have majority status. See Curtin Matheson, 494 U.S. at 778. If after
a union lost majority status an employer were to continue to recognize the union as the exclusive
representative--the recognition of which the Secretary's regulations would seem to induce--the
employer would be committing an unfair labor practice. See International Ladies' Garment
Workers' v. NLRB, 366 U.S. 731, 6 L. Ed. 2d 762, 81 S. Ct. 1603 (1961).
We, therefore, conclude that the Executive Order is regulatory in nature and is pre-
empted by the NLRA which guarantees the right to hire permanent replacements. The
district court is hereby reversed. [Ibid. at 133739.]