October 10, 2007
Mekesha Montgomery

An economic striker who unconditionally offers to return to work is entitled to immediate reinstatement unless the employer can show a legitimate and substantial business justification for refusing to reinstate the former striker.  One such legitimate and substantial business justification is an employer’s permanent replacement of economic strikers as a means of continuing its business operations during a strike.  Thus, at the conclusion of a strike, an employer is not bound to discharge those hired to fill the places of economic strikers if it made assurances to those replacements that their employment would be permanent. 
  
 In Target Rock, the NLRB had previously held that proof that a replacement was hired “at-will” contradicted an employer’s position that its striker replacements were permanent.  Thus, it was a violation of the National Labor Relations Act for an employer to decline to reinstate former economic strikers replaced by at-will employees.

In Jones Plastic, the NLRB reversed Target Rock and held that at-will employment does not detract from an employer’s otherwise valid showing that it has hired permanent replacements. 

Specifically, in this case, the replacement employees had completed the employer’s standard job application which included the provision that the employee could be “terminated at any time without any previous notice.”  In addition, the employer maintained a handbook that noted that “Employment at –will is our Company policy.”  However, each of the replacement workers had each signed forms that indicated that they were being hired as a “permanent replacement.”  Also, several replacement workers testified that they were informed by human resources that they were permanent employees.  Finally, the employer sent a letter to each striking employee stating that it had “begun to hire permanent replacement employees” and that the striker risked being permanently replaced if he or she failed to report to work immediately.

The NLRB ruled that the employer’s repeated assurances that the replacements were permanent established a mutual understanding with the replacement employees that they were permanent employees, and its at-will disclaimers did not detract from this showing.  Therefore, the employer did not violate the Act by refusing to reinstate the former strikers.    

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