By Nicholas Graziano

            Under Board law, there are two distinct types of labor strikes, granting strikers different rights when they wish to return to work at the end of a strike period.[1]  If the object of a strike is to obtain economic concession such as higher wages, shorter hours, or better working conditions, the strike is considered economic.[2]  In contrast, an unfair labor practice strike is defined as a work stoppage “initiated or prolonged, in whole or in part, in response to unfair labor practices committed by the employer.”[3]

Whether or not the Board finds an economic strike to have converted to an unfair labor strike is critical when striking employees are ready to return to work.  Unfair labor practice strikers cannot lose their jobs from striking, and have a right to “displace” replacement employees, possibly resulting in the termination of the replacements.[4]  In contrast to the protections enjoyed by unfair labor practice strikers, economic strikers have no “displacement rights” and are not required to be immediately reinstated.[5] The economic striker who desires to return to work after the strike has ended is only entitled to be recalled to work when an opening in such a job occurs, after his or her bargaining representative has made an unconditional request for reinstatement.[6]  However, a strike which begins as an economic strike can be converted to an unfair labor practice strike, guaranteeing to an economic striker the additional rights of displacement.[7]  When determining whether to characterize an economic strike as an unfair labor practice strike, the Board looks for a “casual connection . . . between the unlawful conduct and the prolongation of the strike.”[8]  If the Board finds the employees, in deciding whether to remain on strike, are motivated in part by the employer’s unfair labor practices, the strike will be converted.[9]

The National Labor Relations Board has recently re-interpreted its longstanding precedent, developing the new “independent unlawful purpose” standard in American Baptist Homes as an additional means for conversion.[10]  The phrase was originally used by the Board in Hot Shoppes, where the ALJ found the employer acted pursuant to a “contrived scheme” with “careful planning in advance of the strike” to punish striking employees in violation of both § 8(a)(1) and (3) of the NLRA.[11]  Though the Hot Shoppes Board disagreed with the administrative law judge’s findings of an “independent unlawful purpose”, upon re-interpretation in American Baptist Homes, an employer may not hire replacements when “motivated by purposes otherwise proscribed by the Act.”[12]  The Board expressly defined an “independent unlawful purpose” to include an employer’s intent to discriminate, encourage, or discourage union membership during a strike.[13]

To justify this finding, the Board looked to a third decision, Avery Heights, the only post Hot Shoppes case to consider the “independent unlawful purpose” language.[14]  Though the Board did not find an independent unlawful purpose in Avery Heights, the Board noted that the “desire to punish strikers” would establish such a purpose in violation of the Act.[15]  Because the employer in American Baptist Homes “wanted to teach the strikers and union a lesson . . . and avoid future strikes”, this was evidence of an independent unlawful purpose; a desire to punish the striking employees for engaging in protected conduct.[16]  Therefore, under American Baptist Homes, hiring replacement employees “to teach [] strikers a lesson” is now an independent unlawful purpose in violation of both Section 8(a)(3) and (1) of the NLRA.[17]  If an independent unlawful purpose can be demonstrated, an otherwise economic strike will be converted to an unfair labor practice strike, guaranteeing reinstatement rights to the striking employees.