Ken Dolin Published in The National Law Journal "Jones Plastics & Engineering"

Ken's article, “Jones Plastics & Engineering” published in the April 1, 2008 issue of the National Law Journal, examines the National Labor Relations Board’s (NLRB) recent clarification of the reinstatement rights of striking employees. In Jones Plastics & Engineering Co., 351 NLRB No. 11 (Sept. 27, 2007), the NLRB  announced that at-will employment status does not detract from an employer's otherwise valid showing that it has permanently replaced strikers. The board found that replacements hired on an at-will basis may nonetheless be found to be permanent replacements for strikers and overruled, Target Rock Corp., 324 NLRB 373 (1997), enf'd, 172 F.3d 921 (D.C. Cir. 1998),to the extent it was inconsistent with this principle.

Ken notes that in Jones Plastics & Engineering Co., the board found the following evidence supported a finding of permanent replacement status: the forms signed by each replacement employee stating they were "permanent replacements" for strikers and in many cases naming the striker whom the replacement was hired to permanently replace; the employer's letter sent to striking employees telling them that it was hiring permanent replacements and that they risked permanent replacement if they did not return to work; the employer's human resources manager telling one replacement that he was a "permanent" employee; and the absence of any evidence in job advertisements, applications and interviews contradicting the status of the replacement as permanent.

Ken concludes that, Jones Plastics clarified that the use of the term "at-will" does not preclude a finding of permanent-replacement status rather, the term "at-will" merely serves as a reminder to the replacement employees of the employer's existing right under state law to terminate any employee with or without cause. "Permanent replacement," Ken states , connotes an intention to retain the replacements after strikers unconditionally offer to return to work, and when the employer has otherwise established a mutual understanding with its replacements that they are "permanent," at-will disclaimers will not detract from this showing.