The National Labor Relations Board just severely restricted the law that gives employers the right to permanently replace economic strikers. In its American Baptist Homes decision the Board ruled that it is unlawful for an employer to hire permanent striker replacements where any part of the intent of that decision is to harm the union. Ummm, the only purpose of either a strike or hiring replacement workers is to harm the other side. That’s why they are called economic weapons.
This decision essentially guts the 1938 Supreme Court decision in Makay Radio approving the use of permanent replacement workers as one of the economic weapons available to an employer after a union makes the decision to try to shut down a company by striking. Until American Baptist Homes is overturned, the hiring of permanent replacement workers will become a never-ending legal battle that will wind its way through courts for years.
In his dissent, Member Miscimarra stated that the point is to make strikes so painful for both sides that the incentive is to settle and avoid the battle in the first place. The Supreme Court understood this perfectly when it allowed permanent replacement more than 75 years ago. The American Baptist Homes decision essentially removes that weapon from employers and is likely to lead to more strikes and thus fewer union shops.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.