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Bush's NLRB Legacy: #3 of 12
January 04, 2008 by Ross Runkel at LawMemo
At-will strike replacements are "permanent" replacements.
#3 in a series of 12 significant actions by the Bush Board.
Jones Plastic & Engineering Co., 351 NLRB No. 11 (September 27, 2007) (3-2).
It has long been the rule that when there is an economic strike (as opposed to an "unfair labor practice strike") the striking employees have a right to get their jobs back at the end of the strike unless the employer has hired "permanent replacements."
In Jones Plastic there was an economic strike, and the employer hired replacements who signed the following form:
I [name of replacement] hereby accept employment with Jones Plastic & Engineering Company, LLC, Camden division (hereafter “Jones Plastic”) as a permanent replacement for [name of striker] who is presently on strike against Jones Plastic. I understand that my employment with Jones Plastic may be terminated by myself or by Jones Plastic at any time, with or without cause. I further understand that my employment may be terminated as a result of a strike settlement agreement reached between Jones Plastic and the U.S.W.A. Local Union 224 or by order of the National Labor Relations Board.
The NLRB held that these replacements were "permanent" replacements, meaning that they displaced the striking employees.
The Board announced that at-will employment status does not detract from an employer's otherwise valid showing that it has permanently replaced striking employees. The Board overruled Target Rock, 324 NLRB 373, 374 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998), to the extent it is inconsistent with that principle.
My view:
The Board did not change the basic rule that an economic striker loses the right to reinstatement if he or she is permanently replaced.
The issue was whether a replacement who is hired "at-will" (meaning that the replacement was not guaranteed continued employment and could be fired for any reason) should be categorized as "permanent." The majority of the Board concluded that an at-will replacement in fact displaces a striking employee.
It appears that the majority is drawing a line between "permanent" as opposed to "temporary." Thus, if replacements are told that they have a job only so long as the strike continues, they are not permanent and the strikers will get their jobs back.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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