In connection with pending exceptions to an ALJ decision in United Site Services of California, the General Counsel has argued that the Board should change existing law to hold that an employer violates the Act when it permanently replaces striking employees without “a legitimate and substantial business justification.” The case is now fully briefed before the full Board.

Under existing law, an employer that refuses to reinstate economic strikers violates § 8(a)(3) of the National Labor Relations Act unless it can demonstrate that it acted to advance a “‘legitimate and substantial business justification.” But the hiring of permanent replacement workers in and of itself has generally satisfied that requirement. As the ALJ explained in his decision in United Site Services of California, Cases 20-CA-139280, -149509, JD(SF)-14-16 (March 17, 2016):

“[w]here employees have engaged in an economic strike, the employer may hire permanent replacements whom it need not discharge even if the strikers offer to return to work unconditionally.” Belknap, 463 U.S. at 493, 103 S.Ct. 3172. At the same time (as the Board recognized), the Act is violated if “an independent unlawful purpose” motivated the hiring of 5 permanent replacements. 1 Bd. Decision at 5; see also Hot Shoppes Inc., 146 NLRB 802, 805 (1964). As with other elements of an unfair labor practice, the General Counsel cannot prevail without a finding that the employer had an independent unlawful purpose. See NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).

The General Counsel now urges the Board in a brief to depart from these well-established precedents and place the full burden on the employer to establish “necessity” to use permanent replacements during a strike. The standard urged by the General Counsel would hold that

[an] employers’ permanent replacement of economic strikers is inherently destructive of employees’ statutory rights, and therefore requires a showing by the employer that it is necessary to continuing operations during a strike.

Adoption of this new standard would significantly enhance the power of labor’s main economic weapon — the strike — in economic bargaining. It has generally been the Board’s tradition to avoid overruling clear precedent in a case without the approval of a three-member majority. Right now, of course, there remain only three Board Members — Chairman Mark Gaston Pearce and Member Lauren McFerran, Democrats; and, Member Philip Miscimarra, Republican. So while a three member consensus on this argument is highly unlikely under the current circumstances, this should be an issue to keep an eye on in 2017.

The full set of briefing papers in the case is available on the Board’s website here.