Thursday, June 2, 2016

NLRB on replacing striking workers

Can employers permanently replace striking workers under the NLRA? It's complicated (what'd you expect?). The general rule is that employees who are striking to protest an unfair labor practice have a right to return to work immediately, whereas economic strikers have a right to return to work... unless they've been permanently replaced (and even then they are entitled to be recalled when a position opens up).

Not official use.
On Tuesday, the NLRB issues its opinion in American Baptist Homes. You see, the general rule is that employers can permanently replace economic strikers, but there are exceptions. In particular, an employer can not replace the workers for an "independent unlawful purpose."

In this case, testimony established that the employer hired replacement workers "to teach the strikers and the Union a lesson" and to avoid future strikes. Apparently (as of Tuesday), that's bad; or an "independent unlawful purpose" to use the technical term. The dissent argued that just as the NLRA protects the employees' "economic weapon" to go on strike, so too does it protect the employer's economic weapon to hire replacements. What's a good and lawful reason for hiring permanent replacements? Try, "the legitimate business purpose of allowing the employer to protect and continue his operations during a strike."

How will every single deposition in these cases go from this day forward?
Attorney: Why did you replace the strikers? 
Employer: For the legitimate business purpose of allowing us to protect and continue our operations during a strike, of course! 
Attorney: You weren't trying to teach the union a lesson or prevent future strikes? 
Employer: Goodness no. Even though they're trying to inflict economic harm on us as a bargaining tactic, we would never have any intention of inflicting economic harm on them to prevent future strikes. That would be wrong.
Some others have weighed in on this case. From employer-side, Jon Hyman's You have the right to replace striking workers, right? And, from the employee side, On Labor's Ben Sachs with Some Sanity on Striker Replacements.