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Employers Can Replace Economic Strikers, They Just Can’t Be Angry When They Do It

This month marks 11 years since 2,500 workers at the Detroit Free Press and the Detroit News began a 19-month strike. Over the course of the strike, picketers blockaded printing plants, supervisors were cursed, carriers were robbed of their papers, cars were vandalized, delivery trucks were driven into crowds, tires were punctured by metal star nails, and police officers in riot gear used pepper spray and force to disperse crowds as strikers pelted them with auto parts and swatted at them with signs.

To continue publication during the strike, the newspapers used more than 1,200 replacement workers, “a small army” of private security guards, and even helicopters. All the while, the striking workers began publication of their own newspaper, the Detroit Sunday Journal, and called for a boycott of the News and Free Press. Although the mid-90’s newspaper strike is an extreme example, there is no doubt that strikes elicit strong emotions from everyone involved. And this is one of the points that National Labor Relations Board (NLRB) Member Miscimarra stresses in his dissent to the recent NLRB decision in American Baptist Homes of the West which, according to Member Miscimarra, unrealistically requires employers to “remain in a dispassionate state of cool detachment.”

Since the passage of the National Labor Relations Act (NLRA), unions have had the right to strike in order to apply economic pressure to force an employer to accept a bargaining proposal. Employers have held the corresponding right to permanently replace the striking employees and refuse to reinstate the strikers when the strike is over. Historically, “the motive for such replacements is immaterial, absent evidence of an independent unlawful purpose.” Once reserved to prohibit only egregious employer conduct, the NLRB recently expanded the “independent unlawful purpose” exception in American Baptist Homes to prohibit an employer from hiring permanent replacements if it is motivated at all by union animus.

In response to stalled contract negotiations, a union representing the employees of American Baptist Homes called a five-day strike. By the second day of the strike, American Baptist Homes began permanently replacing the striking employees to “teach the strikers and the union a lesson,” “to avoid future strikes,” and to ensure that the employees would report for duty if there was another work stoppage. When the union ended the strike, the striking employees made an unconditional offer to return to work. Those who had been permanently replaced by that time were denied employment but were placed at the top of American Baptist Homes’s hiring list. The remaining strikers were returned to work. Relying on the “independent unlawful purpose” exception, the NLRB held that if an employer hires permanent replacements with an eye towards “punishing the strikers and the union or to avoid future strikes,” it has violated the employees’ rights under the NLRA. In light of American Baptist Homes’s admitted reasons for replacing the striking workers, the NLRB found it to be in violation of the NLRA and ordered the reinstatement of the replaced workers (even if it requires the termination of the replacements) and the payment of lost wages with interest for the period the replaced workers were denied employment.

As illustrated by the Detroit newspaper strike, feared by Member Miscimarra, and admitted by American Baptist Homes (though not addressed by the NLRB), emotions run high on both sides during strikes and permanent replacements are almost always hired to inflict damage on the union and to prevent future work stoppages; making the standard announced in American Baptist Homes very difficult to meet. Criticizing the NLRB’s expansion of the “independent unlawful purpose” exception, Member Miscimarra warns that “the very nature of economic warfare [i.e. strikes] makes it virtually impossible to distinguish self-preservation from antistrike motives in hiring permanent replacements…. Any stray comment that reflects negativity towards the strike participants – whether made by an executive, manager or supervisor – could create a risk of potentially ruinous financial liability.”

It’s too early to say whether Member Miscimarra’s warning of doom-and-gloom will come true, but it does demonstrate why employers need to carefully control their message if they hire permanent replacements.

In situations where an employer is considering hiring permanent replacements, the employer should focus on legitimate business reasons for the hirings and should deliver that message with consistency. As suggested by Member Miscimarra, any suspicious statements will be scrutinized and could be offered as evidence of an unlawful motive.

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