o ensure adequate staffing, employers faced with impending strikes often contract with employment agencies to supply temporary replacement workers. Typically, these agencies require employers to ensure employment of the replacements for multiple days, no matter how long the strike lasts. These contractual obligations often are a reason employers refuse to reinstate strikers at the end of a strike, postponing reinstatement until the contractual obligation is fulfilled.
In 1986, the NLRB held that fulfillment of a short, multi-day contract obligation with an employment agency that supplied the employer with temporary replacements for economic strikers was a lawful reason for refusing to reinstate returning strikers until the obligation was fulfilled instead of at the end of the strike. Recently, the Board decided that the same leeway does not apply to unfair labor practice strikes, which are strikes caused or prolonged by an employer’s conduct that violates the National Labor Relations Act.
The Board often allows an employer up to 5 days to reinstate unfair labor practice strikers “in recognition of the administrative difficulties associated with reinstating striking employees on short notice.” The 5 days “is not to enable the employer to delay reinstatement or to obtain 5 days during which he is not required to pay backpay.” An employer cannot base its delay in reinstating unfair labor practice strikers on a contractual obligation with a temporary employment agency. Such a basis is considered an unlawful condition to reinstatement and “backpay will commence as of the unconditional offer to return to work.”
Employers faced with unfair labor practice strikes must carefully document their legitimate reasons for delaying reinstatement of strikers who have made unconditional offers to return to work. This area can be tricky and is rife with legal landmines; consider the assistance of competent labor counsel to help work through these issues.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.