Unions and employees have the right to strike. Employers have the right to hire permanent replacements for the strikers. Except when they don't. In American Baptist Homes of the West (NLRB 05/31/2016) the NLRB found that it was unlawful for an employer to permanently replace striking employees when the reasons for doing so were "to punish the strikers and the Union and to avoid future strikes." A long line of US Supreme Court establishes that in the event of an economic strike (not an unfair labor practice strike) an employer has the right to hire replacement workers – even on a permanent basis. Hot Shoppes, Inc., 146 NLRB 802 (1964) cemented the rule that "the motive for such replacements is immaterial, absent evidence of an independent unlawful purpose."
In American Baptist Homes there was pretty clear evidence of the employer's motives for hiring replacements. The employer's executive director, who made the decision, said the following in an affidavit:
"I knew that it would take time to acclimate the new employees to [the Respondent], but the more important consideration for me was that I knew that those replacements would come to work if there was another work stoppage. I assumed that because these people were willing to work during this strike, they’d be willing to work during the next strike."
There was also evidence that the employer's lawyer told the union's lawyer that the employer
“wanted to teach the strikers and the Union a lesson. They wanted to avoid any future strikes, and this was the lesson that they were going to be taught.”
The big deal in this new NLRB case is that the Board concluded that
"the phrase 'independent unlawful purpose' includes an employer’s intent to discriminate or to encourage or discourage union membership."
Another 2-1 decision.
Member Miscimarra's dissent asserts that
"the Hot Shoppes independent unlawful purpose' exception is not triggered by an employer’s desire to retaliate against union economic warfare with legitimate economic weapons of its own, even if the employer wants to teach strikers a lesson about a strike’s lawful consequences. Rather, an “independent unlawful purpose” requires the General Counsel to prove that permanent replacements were calculated to accomplish an unlawful purpose extrinsic to the parties’ bargaining relationship or unrelated to the strike itself."