The NLRB General Counsel wants to undo a 60-year law and put strict limitations on when companies may permanently replace strikers.
Currently, employers can permanently replace workers who strike to obtain economic concessions so long as hiring the replacements was not for an “independent unlawful purpose.” The GC has the burden of proving the employer violated the Act.
The GC no longer wants this burden. She argues that permanently replacing economic strikers is “inherently destructive” of employees’ right to strike, bears “its own indicia” of unlawful intent, and “violates the Act absent a legitimate and substantial business reason.”
According to the GC, simply hiring a permanent replacement during an economic strike violates the Act. The burden would then shift to the employer to prove it had a substantial and legitimate business reason for its actions.
This change places the employer’s motive at the heart of the decision. Yet, Hot Shoppes (1964) made the employer’s motive for hiring replacement workers immaterial.
So why this change after 60 years?
For support, she cites the “steady growth of a flexible contingent workforce” and “easier access to temporary workers” for making it easy for companies to continue operating during strikes without permanently replacing the strikers.
To me, this aligns with the Board’s obsession of finding joint employer status between primary employers and staffing agencies. Forcing union employers to hire temporary workers through staffing agencies seems likes a backdoor way of organizing unions inside staffing agencies.
The timing of this also coincides with increased strike activity in the United States.
👉 The number of strikes in 2022 was 43% higher than in 2021.
👉 2023 has seen the largest higher education strike in history.
👉 The UAW just increased weekly strike pay by 25%.
👉 Several major collective bargaining agreements covering 1.5 million employees with a history of striking expire soon.
While this is on the GC’s wish list, it is not yet law. Regional Directors will apply it when investigating unfair labor practice charges regarding replacement workers. I expect a complaint to issue soon against a company that hires permanent replacements and fails to convince the Board of its “business justification” for doing so. The current NLRB will then rule against the employer, and this becomes Board law.
Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.
Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.
Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.
You can reach Matt via email at Matt@MattAustinLaborLaw.com.