The office of the general counsel for the National Labor Relations Board (NLRB) has recommended adding significant restrictions to when employers may use permanent replacements during economic strikes. An advice memorandum released at the end of last year would permit such replacements only if the employer could show a legitimate reason to do so.
The proposed standard would essentially create a presumption against allowing an employer to use permanent replacements during an economic strike, unless the employer can prove it needs the workers, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.
Moreover, the memo stated that there is "no realistic basis for the assumption that employers need the option of offering permanent replacements positions in order to weather a strike" due to changes in the nature of employment. These changes include the "steady growth of a flexible contingent workforce" and "easier access to temporary workers."
The proposal "would remove a major tool employers currently have at their disposal to weather a strike, which could affect their leverage at the [bargaining] table," Pryzbylski said. "This is a major issue for employers with unionized workforces to watch."
Economic Strikers vs. Unfair Labor Strikers
Employees who strike for a lawful objective are either economic strikers or unfair labor practice strikers.
Under the National Labor Relations Act, if the objective of a strike is to obtain from the employer some...
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