• Improper Motivation for Permanent Replacement of Strikers Violates the NLRA
  • August 19, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • A recent decision from the National Labor Relations Board concerning permanent replacement of strikers tilts the balance of “economic weapons” used in collective bargaining in favor of unions.

    Facts of the Case: In American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers-East, collective bargaining negotiations broke down between the union and the nursing home employer. The union issued a 5-day strike notice to the employer. In preparation for the strike, the nursing home engaged a staffing agency to provide approximately 60-70 temporary employees at a cost of $300,000. The employer also began recruiting and hiring permanent replacement workers, making approximately 44 offers of permanent employment. The executive director of the nursing home admitted that her motivation for hiring permanent replacements was her desire to avoid future strikes at the facility, since those workers were clearly willing to work during a strike. There was also concern that employer could not afford repeatedly to engage the staffing agency in future work stoppages. In addition, the employer’s attorney allegedly told the union’s attorney that the strikers would be taught a lesson through the hiring of permanent replacements.

    The NLRB’s Decision: The Board stated that the employer violates the National Labor Relations Act if it is shown that, in hiring the permanent replacements, the employer was motivated by “an independent, unlawful purpose.” In this case, the Labor Board concluded that the employer had admitted to two independent, unlawful purposes: (1) to avoid future strikes and (2) to teach the strikers a lesson.

    There was a vigorous dissent by Board Member Miscimarra, stating that under the Board majority’s decision, if an employer hires permanent replacements, and it appears that there is any evidence of anti-strike animus, the employer’s actions would be rendered unlawful, resulting in potentially debilitating back pay liability. The dissent points out that strikes are very emotional situations, with hard feeling on both sides, a reality that the Board majority ignores.

    Lessons Learned: The bottom line is that while employers may still hire permanent replacements for economic strikers, they must be very careful with regard to any statements made as to the motivation for hiring the replacements. As the Board notes, an employer is not required to articulate a reason for permanently replacing economic strikers. But if the employer does so (or if the evidence otherwise indicates a reason), this NLRB will examine whether that reason constitutes an independent, unlawful purpose. There is a suggestion in the Decision that it would be permissible for the employer, if it chooses to articulate a motive for hiring permanent replacements, to state that the action is “in support of the company’s bargaining position”. The employer must be very careful, however, to make sure that all managers and supervisors are aware that they are not to be commenting on the strike, the strikers, the replacements, or any motivations for hiring replacements.