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Replacing workers on strike with new permanent employees is a violation of the NLRA



By Kyle Watlington

The employer in this action operated a continuing care facility in Oakland, California. Many of the employees who worked at the facility were part of a collective-bargaining agreement between the employer and the Union which was set to expire in April 2010. In order to prepare for the agreement’s expiration, the parties preemptively began negotiations for a new agreement in February 2010. However, the parties were unable to agree on several issues in the new agreement and in May 2010, the Union began to picket outside the employer’s facility. A month later, the Union informed the employer that a one-week strike would be occurring in August unless the parties could reach a resolution before that time. No resolution was reached and on August 2, approximately 80 of the 100 union employees went on strike.

In order to prepare for the pending strike, the employer engaged a staffing agency and extended temporary employment offers to approximately 70 staffing agency employees at a cost of $300,000. Although the work was originally to be temporary, the employer ultimately chose to make roughly 44 offers of permanent employment to the new workers and several on-call workers who had not gone on strike. When the temporary strike concluded, several of the striking employees were informed that they had been permanently replaced and would be placed on a preferential rehire list.

Attorneys for the Union brought suit against the employer and alleged that the employer violated the National Labor Relations Act (NLRA) by permanently replacing the striking employees and that the decision to do so was motivated by an unlawful purpose. The administrative law judge disagreed with the argument noting that previous courts had allowed employers to replace economic strikers at will unless the replacement was done for an independent unlawful purpose. The judge stated that the unlawful purpose is established only when an employer’s hiring of the replacement employees was unrelated to the strike itself. The judge further stated that the employer’s motivation to avoid a future strike by hiring new employees was related to the underlying strike and thus did not constitute an unlawful purpose under the NLRA. Attorneys for the Union disagreed with the decision and appealed.

On appeal the decision was reversed and the National Labor Relations Board (NLRB) found that the replacement hiring had been done for an unlawful purpose. The NLRB determined that the “phrase ‘independent unlawful purpose’ includes an employer’s intent to discriminate or to encourage or discourage union membership.” The NLRB held that an employer’s hiring of permanent replacements is to be considered an unfair labor practice if the hiring of the replacements was motivated by a purpose banned by the NLRA. In this instance, the record had clearly established that the employer’s motivation behind hiring the replacement employees was to “teach the strikers and the Union a lesson” and to prevent future strikes. The NLRB found that these statements were clear evidence of intent to punish striking employees for taking part in a protected activity, an action with a retaliatory motive that was prohibited by the NLRA. The right to strike is a legitimate and protected right recognized by both the courts and by Congress and because employees have the right to strike in support of economic demands, an employer is violating that right by failing to immediately reinstate the employee when the striking employee offers to return to work.




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