NLRB Decision Weakens Employers' Ability To Hire Replacement Workers

Volume 15, Issue 15
July 6, 2016

On May 31, 2016, the National Labor Relations Board (NLRB) issued a decision in the case of American Baptist Homes of the West that significantly weakens an employer's long-standing right to hire permanent replacement workers during an economic strike.

The National Labor Relations Act (NLRA) gives employees the right to strike in support of economic demands. When a striking employee makes an unconditional offer to return to work, an employer is required to immediately reinstate the employee. An employer has the right, however, to continue operating its business during a strike. As such, the employer is permitted to hire permanent replacement workers during an economic strike. If the employer chooses to exercise this right, it does not have to reinstate a striking employee. Instead, the employee is placed on a preferential rehire list.

Since 1938, the employer's motive in choosing to hire replacement workers has been considered immaterial. The employer is permitted to exercise this right "at will." The Board's decision in American Baptist Homes changes this important principle by effectively removing the restriction upon considering an employer's motive in hiring replacements. Now, if an employer hires replacements to discriminate or retaliate against striking employees for their protected conduct, the employer has violated the NLRA and must reinstate the striking employees.

The impact of this decision is significant. In the past, an employer could offer permanent jobs to replacement workers, providing job security in exchange for an applicant's willingness to cross the picket line. Now the employer and the potential replacement worker face uncertainty -- if an improper purpose is attributed to the employer's decision to hire the replacement, the Board will force the employer to fire the replacement and reinstate the striker. Certainly, it will now be harder for an employer to obtain replacement workers. Moreover, unions may be more likely to engage in economic strikes now that the employer's rights have been weakened.

If you would like to discuss this case in more detail, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.