NLRB Makes it Easier for Employers to Refuse to Reinstate Economic Strikers

October 13, 2007 by Beeson Tayer & Bodine

In another 3-2 decision, the National Labor Relations Board announced that the at-will employment status of striker replacements does not preclude a finding that the employees are “permanent” replacements. Jones Plastic & Engineering, 351 NLRB No. 11 (September 27, 2007). The Board majority overruled Target Rock (1997), which held to the contrary.

Economic strikers who unconditionally offer to return to work are entitled to immediate reinstatement unless the employer has hired permanent replacements for the strikers. At the conclusion of a strike, an employer is not bound to discharge those hired permanently to fill the places of economic strikers. Permanent replacement status is an affirmative defense, with the burden on the employer to show a mutual understanding with the replacements that they are permanent.

Employees hired on an “at-will” basis can be discharged at any time, with or without cause. In Jones Plastic, a Board majority found that the employer’s issuance of at-will disclaimers informing employees that their employment was for “no definite period” and could be terminated for “any reason” and “at any time, with or without cause” did not detract from its retroacshowing of permanent replacement status, which consisted of the issuance of employee forms to the replacement employees stating that they were permanent replacements and statements the employer made to striking employees that it had begun to hire permanent replacements.

Especially troubling about this decision, as the dissent points out, is the majority’s disregard of evidence that the employer had advised the replacements that their employment “may be terminated as a result of a strike settlement agreement.” One would normally expect that this statement, combined with the at-will status of the replacements, would defeat a claim that the replacements were hired as “permanent” replacements for the striking employees; but not with the current Board majority.

This decision reinforces the importance of negotiating clear, enforceable returnto- work agreements at the conclusion of all strikes.

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