A Win For Workers Who Dare To Stand Up For Their Economic Security, Employers Cannot Permanently Hire Scabs To Discourage Future Strikes

The National Labor Relations Act (NLRA) prohibits employers from discriminating against workers for engaging in protected concerted activities.  Generally speaking, those protected concerted activities include conduct in which workers get together to improve their working conditions.  While employers aren’t allowed to fire workers for going on strike, in 1938, the U.S. Supreme Court ruled that the NLRA allowed employers to hire permanent replacements—scabs—for the purpose of continuing their business.  In 1964, the National Labor Relations Board (NLRB) clarified this rule by holding that an employer could not permanently hire scabs if the hiring of the scabs was motivated by an “independent unlawful purpose.”  Because the NLRB never explained what constitutes an “independent unlawful purpose,” for nearly seven decades employers have hired scabs during strikes to punish strikers and teach them a lesson.

In American Baptist Homes (364 NLRB No. 13), a case litigated by Weinberg, Roger, & Rosenfeld, the Board finally clarified that permanently hiring scabs for the purpose of discouraging future strikes constitutes an “independent unlawful purpose.” 

In this case, eighty percent of the workers went out on strike and simultaneously made an unconditional offer to return to work after five days of striking.  Despite this offer to return to work, the boss immediately started to seek out permanent replacements, and dozens of strikers were not able to go back to work after the five days.  The employer stated the reason for permanently hiring the scabs was to avoid future strikes, and the employer’s belief that, in contrast to the workers who had gone on strike, these new employees “would come to work if there was another work stoppage” in the future.  The employer’s lawyer also stated that the employer wanted to “teach the strikers and the Union a lesson.”

The Board held that each of these statements established that the employer had an “independent unlawful motive” when it decided to permanently replace the strikers with scabs.  Basically, the desire to discourage workers from engaging in protected concerted activity is not a lawful reason to permanently replace strikers with scabs.

Although it took six years for the NLRB to issue a decision, this case is an example of how workers can change the law by just sticking together—the strikers at American Baptist Homes, known as the Piedmont 38, never gave up.  The Piedmont 38 are the reason it will now be more difficult for employers to permanently replace future striking workers with scabs, when those workers decide to hit the picket line in order to make their lives and their families’ lives a little bit better.  All of us at WRR are honored to have played a little role in this big victory.

For any questions, contact your labor law counsel.

By Bruce Harland and Xochitl Lopez | June 7, 2016

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