Permanent Replacements for Striking Employees Can Have At-Will Status

When employees strike, employers have the right to bring in replacement workers to make up for the shortfall in operations and production. In many cases, the replacement workers are hired on an at-will basis, which could call into question their continued employment once the strike is resolved. In a recent case, however, the National Labor Relations Board (NLRB) resolved that potential ambiguity, holding that striking employees have no right to immediate reinstatement after an unconditional offer to return to work when the employer hired permanent replacement workers during the strike, even when those replacement workers were hired on an at-will basis.

Facts

In Jones Plastic & Engineering Co., employees engaged in an economic strike after failing to reach an agreement during collective-bargaining negotiations. Soon after the strike began, the company started hiring replacement workers. In accordance with the company's standard hiring procedure, the replacement workers were hired on an at-will basis. The replacement workers signed forms stating that they were permanent replacements for the striking employees, and in many cases the form named the specific employee being replaced. In addition, the company sent letters to the striking employees, notifying them that they would be permanently replaced if they did not return to work immediately.

When the striking employees made an unconditional offer to return to work, the company sent a letter to union officials, notifying them that it had a full staff of replacement workers and that the striking employees would be placed on a preferential rehire list. The union then filed a charge with the NLRB based on the company's refusal to rehire the striking employees.

Rejecting the union's argument that at-will employment negates the permanent status of the replacement's employment, the NLRB held that the at-will conditions of employment, which were included as a part of the company's standard hiring practice, did not affect whether the replacement workers were permanent replacements. The NLRB also noted that the company had established that there was a mutual understanding between the company and the replacement workers that the workers would not be terminated at the end of the strike.

Analysis

Replacement workers need not be given special tenure or seniority that is not in line with the standard hiring practice to maintain permanent replacement status. Instead, as long as there is an understanding between the company and the replacement worker that the worker will not be replaced after the strike is over, at-will status by itself should not bar assertions of permanent replacement. Employers should monitor carefully all written and oral statements made to candidates for strike replacement workers to ensure their status as permanent replacements.