NLRB Decision Reaffirms Rights of Striking Workers

Sara Geenen

On June 1, the National Labor Relations Board issued a decision clarifying longstanding, but often ignored, precedent that an employer violates the National Labor Relations Act (NLRA) where it hires permanent replacements during a strike in order to subvert future union activity.

The right to strike is protected by the National Labor Relations Act. While an employer may permanently replace workers striking for economic reasons (where there is no unfair labor practice by the employer), it is permitted to do so only where the permanent replacements are necessary to continue the employer’s business during the strike and not for an independent, unlawful purpose—including the purpose to subvert employees’ section 7 right to form a union, strike, or otherwise engage in concerted activity. However, over the course of the last several decades, employers’ decisions to hire permanent replacement workers were not closely scrutinized.

On June 1st, the Board issued a decision in American Baptist Homes.  In that case, the Employer and Union were locked in contentious contract negotiations. The Union notified the Employer it would strike for 5 days. The strike notice also contained the Union members’ unconditional offer to return to work at the end of the strike. Although the Employer arranged for a sufficient number of temporary workers during the strike, it began hiring permanent replacements on the second day of the strike “to teach the strikers a lesson” and because it believed the permanent replacements would not strike in the future. The NLRB concluded that the Employer’s actions were unlawful because, while an employer can lawfully replace economic strikers, it cannot do so for a purpose prohibited by the Act – here, to discriminate or discourage union membership and concerted activity.

This decision reaffirms the NLRB’s commitment to ensuring that permanent replacements are not unfairly hired to subvert union employees’ rights under the Act, and is an indication that the NLRB will again require employers who permanently replace striking employees to prove that their motivation was necessity of the continuation of business as opposed to a purpose prohibited by the NLRA.