The National Labor Relations Board is limiting the
circumstances when employers can replace striking workers.
The ruling will give labor unions added leverage over
businesses by making it even harder for employers to push back against a strike
while staying within the law.
The case involves a basic tension in federal labor law.
On the one hand, workers cannot be fired for striking, which is a protected
legal right. However, an employer can hire permanent replacements for them if
necessary to keep the business going. Employers and unions have long wrangled
over which was which during strikes.
Generally, striking workers could challenge
their replacement only if there was clear evidence of an "independent
unlawful purpose" to undermine their labor rights, such as an admission of
that by the employer. Otherwise, management typically had the benefit
of the doubt. That was a precedent set by the federal labor enforcement agency in a
1964 case called Hot Shoppes Inc.
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Under Tuesday's ruling, the board
reinterpreted that decision and lowered the standard to say that intent to
violate labor rights can be inferred from the employer's actions or the actions
of the employer's representatives. "It is difficult to imagine
that the [prior] board intended the phrase 'independent unlawful purpose' to
exempt retaliation for exercising a fundamental [worker] right, and we decline
to give it so strained a reading," the board said.
The ruling came in the case America Baptist Homes of the
West and Service Employees International Union. It involved the permanent
replacement of striking workers in 2010 by an assisted living facility. A
three-member panel of the board voted 2-1 in the case that the employer's
actions were illegal. Chairman Mark Gaston Pierce and Kent Hirozawa, both
Democratic members, voted for the union.
The board's sole Republican member, Philip Miscimarra,
filed a lengthy dissent saying the decision undermined the ability of employers
to hire replacement workers.
"I disagree with my colleagues' decision because
they effectively invalidate an economic weapon that the Supreme Court declared
lawful more than 75 years ago," Miscimarra wrote.
"Under the majority's decision today,
if the employer hires permanent replacements, it appears that any evidence of
anti-strike animus will render unlawful the employer's actions, resulting in
potentially debilitating back pay liability," Miscimarra added.
Legal observers have agreed. Benjamin Sachs, a professor
of labor law at Harvard University, said the decision gives a whole new tool to
challenge employers' actions.
"How big an impact will the new decision have? By
reinvigorating the 'independent unlawful purpose' test, the case makes motive
matter again. That's a big deal," Sachs wrote in the Onlabor.com, a blog
he co-founded.
Joshua Parkhurst, a New York labor lawyer, said the
ruling would force companies to think twice before hiring replacements.
"The decision may be a significant change to employers who took advantage
of the limited guidance provided by the board and court decisions, which
allowed for nearly unfettered use of permanent replacements," he said.
Source: Washington
Examiner
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