A COSTLY LESSON FOR EMPLOYERS ON REPLACEMENT WORKERS

Seyfarth Synopsis: Board panel found that long-term care facility acted for an “independent unlawful purpose” when it permanently replaced striking workers allegedly in order to teach the union and strikers a lesson and to avoid future strikes.

 

Ever since the Board’s decision in Hot Shoppes, Inc., 146 NLRB 802 (1964), employers have been permitted to hire permanent replacement workers for economic strikers almost at will, unless the union can put forth evidence that the employer was motivated by an “independent unlawful purpose.”  An “independent unlawful purpose” was understood to exist when an employer’s hiring of replacement workers was “unrelated or extraneous to the strike itself.”  Last week, the Board’s decision in American Baptist Homes d/b/a Piedmont Gardens, 364 NLRB No. 13 (2016) extended the Hot Shoppes’ “independent unlawful purpose” standard to apply to situations where the alleged unlawful purpose was allegedly related to a desire to avoid future strikes.

 

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