NLRB Restricts Employers’ Right to Permanently Replace Economic Strikers

by Timothy F. Murphy

Congress passed and has amended the National Labor Relations Act to bolster our economy by promoting collective bargaining as a way to reduce labor disputes. With  peaceful resolution of labor disputes the goal, Congress recognized that the best way to achieve the necessary balance required to ensure harmonious labor relations was to give labor and management the weapons to wage economic war with each other. So labor was guaranteed the right to strike and management was guaranteed the right to lockout and to permanently replace economic strikers. This may seem paradoxical given that use of these economic weapons can be financially ruinous, but this balance has largely worked, if the success of the American economy over the last 80 years is your benchmark.

However, a recent decision by the NLRB risks upsetting that balance. In American Baptist Homes of the West, 364 NLRB No. 13 (May 31, 2016), the NLRB ruled that an employer breaks the law if its motive for permanently replacing economic strikers is to teach them a lesson or to reduce the risk of future strikes.  This new limitation on the right of employers to permanently replace uproots the long-standing rule that an employer’s motive is irrelevant unless it was done for an “independent unlawful purpose” unrelated to the strike.

If this decision stands, it will deter employers from permanently replacing economic strikers for fear of violating the law and having to reinstate the strikers with back pay. Those increased risks may just be too great for employers to take on. Further, this shift in the balance created by Congress may embolden unions to take a harder line in collective bargaining because strikes are now less risky for workers. This may result in more strikes which would be bad for workers, employers, and the economy in general.

These days Congress is not held in very high public esteem, but the balances it previously struck in fashioning our federal labor laws have worked. The NLRB should resist the temptation to tinker with those well-stuck balances.

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