Thursday, June 2, 2016

You have the right to replace striking workers, right?

Labor unions and the employees they represent have the right to strike. To combat the economic pressure of that labor stoppage, employers have long held the right to permanently replace those striking employees with replacement workers. Or, at least employers had that right.

Earlier this week, in American Baptist Homes of the West [pdf], the NLRB severely restricted the rights of employers to hire permanent replacements by holding that an employer violated the National Labor Relations Act if if permanently replaces striking employees for the purpose “to punish the strikers and the Union and to avoid future strikes.”

In American Baptist Homes, the employer’s motive for hiring replacements was not really in doubt. The Board had sworn testimony from the employer’s executive director:
I knew that it would take time to acclimate the new employees to [us], but the more important consideration for me was that I knew that those replacements would come to work if there was another work stoppage. I assumed that because these people were willing to work during this strike, they’d be willing to work during the next strike.
The Board also had evidence that the employer’s lawyer told the union’s lawyer that the company “wanted to teach the strikers and the Union a lesson … to avoid any future strikes, and this was the lesson that they were going to be taught.”

Based on this evidence, the Board applied its 50-plus-year-old rule that during an economic strike, an employer has the right to hire replacement workers, and that “the motive for such replacements is immaterial, absent evidence of an independent unlawful purpose.”

Honing in on the phrase “independent unlawful purpose”, the Board concluded that American Baptist Homes unlawful hired its replacement workers:
The credited testimony establishes that the Respondent offered two reasons for its decision to permanently replace strikers: to punish the strikers and the Union and to avoid future strikes. We find that both reasons are independently unlawful…. 
As stated above, the Respondent’s counsel told the Union’s attorney that the Respondent planned to hire permanent replacements because it wanted “to teach the strikers and the Union a lesson.” This statement evinces an intent to punish the striking employees for their protected conduct, and plainly reveals a retaliatory motive  prohibited by the Act. 
In addition, the record establishes that the Respondent made the decision to permanently replace the strikers because Executive Director Reynolds assumed that the permanent replacements would be willing to work in the event of another strike and the Respondent wanted to avoid the cost of hiring temporary employees again in the future. The Respondent’s motive is clear from attorney Durham’s statement to the Union that the Respondent hired permanent replacements because it “wanted to avoid any future strikes, and this was the lesson that they were going to be taught.” This evidence establishes an additional independent unlawful motive, specifically a desire to interfere with employees’ future protected activity.
What’s wrong with this decision? In hiring permanent replacement workers, every employer is motivated, at least in part, by the twin goals of preserving labor peace and preventing future labor stoppages. Or, as the lone dissenting board member summarized:
The … independent unlawful purpose exception is not triggered by an employer’s desire to retaliate against union economic warfare with legitimate economic weapons of its own, even if the employer wants to teach strikers a lesson about a strike’s lawful consequences. Rather, an independent unlawful purpose requires the General Counsel to prove that permanent replacements were calculated to accomplish an unlawful purpose extrinsic to the parties’ bargaining relationship or unrelated to the strike itself.
Before American Baptist Homes, the threat of hiring permanent replacement workers was a valuable economic weapon available to employers to fight labor strikes. I fear, however, that American Baptist Homes so gutted the ability of employer’s to use this weapon (in reality or as a threat), that the NLRB has, once again, succeeded in tilting the labor/management balance of power unfairly to the left.

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