• NLRB Provides Basis For Employers to Refuse to Reinstate Strikers
  • October 18, 2007 | Authors: Richard I. Thomas; James P. Thomas; Amber Schuknecht
  • Law Firm: Pepper Hamilton LLP - Pittsburgh Office
  • The NLRB recently held that at-will employment does not preclude a finding of permanent employment. In Jones Plastic & Engineering Co., 551 NLRB No. 11 (2007), the NLRB denounced its previous ruling in Target Rock, 324 NLRB 373 (1997), that at-will employment is evidence that striker replacements are not permanent replacements because employers retain the right to discharge employees without cause and at any time — an interpretation the NLRB felt was a “misreading” of controlling law.

    Under the NLRB’s prior holdings, a striker who unconditionally returns to work is entitled to immediate reinstatement unless the employer can show a legitimate and substantial business justification for refusing to reinstate a former striker, such as permanent replacement of the striker to continue business.

    Establishing new precedent, the NLRB in Jones Plastic found that the term “at-will” merely serves as a reminder of existing rights under state law to terminate an employee with or without cause and does not negate the permanency of employment. The ruling specifically affects how to determine whether at-will replacement workers are permanent employees, and whether striking employees can return to their jobs in the face of at-will replacements.

    With Jones Plastic determining that at-will replacement employees may be considered permanent, the NLRB has provided a basis for employers to retain replacements which were intended as permanent.