Employer Cannot Keep Secret its Hiring of Permanent Replacement Workers

October 12, 2006 by Beeson Tayer & Bodine

A Connecticut nursing home thought it had come up with a clever way to bust the SEIU during an economic strike. Faced with the threat of a long strike, the nursing home began to hire permanent replace- ments with the inducement of higher wages than it had of- fered the Union. It made a conscious decision to keep the replacement campaign hidden from the Union until it had hired as many scabs as it could. The Union discovered the secret campaign after over 100 permanent replace- ments had been hired, and subsequently made an uncon- ditional offer to return to work. The nursing home recalled only 80 of the 180 strikers, claiming the rest of the positions had been filled with permanent replacements.

The Bush-dominated NLRB found that the secret perma- nent replacement campaign was lawful and that the nurs- ing home had no duty to in- form the Union of the hires. The Board reasoned that ab- sent other evidence, this was simply an employer seeking bargaining leverage in the course of a strike, and not an attempt to oust the Union. The Second Circuit Court of Appeals saw through this non- sense and r eversed the Board’s decision in New England Health Care Employees Union, District 1199, SEIU, AFL-CIO v. NLRB, 448 F.3d 189. “[L]ogic suggests that an em- ployer seeking to enhance its bargaining leverage by hiring permanent replacement would have every incentive to publi- cize the effort, and that an employer seeking only to pro- long its ability to withstand the strike would be indifferent to whether the strikers and the union knew what it was doing.” This case has been remanded back to the Board for further consideration

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.