Must we rehire strikers when labor dispute ends? We may want to keep replacement workers

Q. A group of our employees recently voted to strike. To ensure that our operations aren’t disrupted, we would like to hire replacement workers. When the strike ends, will we be required to reinstate the strikers?

A. Generally, under the National Labor Relations Act (NLRA), strikers retain their employee status while on strike.

Moreover, if the work stoppage is determined to be an “unfair labor practice strike” (that is, initiated in response to an employer’s illegal acts), the strikers are entitled to reinstatement upon unconditionally offering to return to work.

Therefore, in unfair labor practice strikes, an employer must return striking workers to their former jobs—even if that means firing the replacements. However, if a worker was terminated for engaging in strike misconduct or was otherwise terminated “for cause,” the employer is not required to reinstate him or her.

On the other hand, if the employees are engaged in the more common “economic strike” (meaning a work stoppage not caused by an employer’s unfair labor practices, but rather stemming from an economic disagreement), an employer may hire permanent replacement workers.

When the labor dispute ends, the striking workers may apply for re-employment and should be reinstated to available positions. It should be noted that because an economic strike is considered protected activity under the NLRA, an employer commits an unfair labor practice by discharging a worker for participating in such organized action.

Finally, employers should note that it is possible for an economic strike to become an unfair labor practice strike. For example, if the employer commits an unfair labor practice that prolongs an economic strike, the workers may be entitled to reinstatement as unfair labor practice strikers.