NLRB Finds Employer Waived Right To Fire Unlawfully Striking Employees
On November 18, 2011, the National Labor Relations Board ruled in a 2-1 decision that an employer unlawfully fired approximately 146 union-represented employees after the union conducted a strike without giving the required notice to the Federal Mediation and Conciliation Service. The Board found that after the employees’ unconditionally offered to return to work, the employer waived its right to discharge the strikers by locking out the former strikers without a reservation of rights. [Douglas Autotech Corp., 357 NLRB No. 111 (Nov. 18, 2011)].
In Douglas Autotech, the parties’ collective bargaining agreement expired by its terms on April 30, 2008. On February 19, 2008, the Union served the employer with written notice of its intent to terminate or modify the contract, as required by Section 8(d)(1) of the Act. The Union was thereafter required to notify the Federal Mediation and Conciliation Service of the existence of a dispute within 30 days of its notice to terminate or modify the contract. The Union, however, conducted an economic strike of the employer on May 1, 2008 before providing the requisite notice to the FMCS. Realizing that the strike was unlawful, the Union made an immediate and unconditional offer to return to work on behalf of the striking employees, and the striking employees returned to work on May 5, 2008. The employer immediately locked out the striking workers. Shortly thereafter, the employer discovered the strike was performed illegally. Three months later, the employer fired all of its bargaining unit employees for participating in the illegal strike. The Union filed charges with the Board alleging the employer unlawful discharged the bargaining unit employees because of their protected concerted activities.
Section 8(d)(4) of the Act provides that any employee who engages in a strike without the required notice to the FMCS shall lose his status as an employee of the employer engaged in the particular labor dispute for purposes of section 8, 9, and 10 of the Act. The Board has often applied this loss-of-status provision in strict accord with its terms, finding that strikers lose their status as employees under the Act even when the failure to provide the 30-day notice is due to a clerical error. However, loss of status under Section 8(d)(4) is not irrevocable, and any loss of rights under the Act may be regained if the employee is “reemployed” by the employer. When faced with a Section 8(d)(4) violation, the Board has often explained that:
(1) The employer faced with an unlawful strike has the discretion to immediately discharge the strikers, to reemploy them, or to take some alternative action; (2) once the employer reemploys illegal strikers (by whatever means), they regain the protections of the Act and the employer cannot thereafter lawfully discharge them for their participation in the strike; and (3) a former striker need not be actively laboring for an employer in order to be reemployed.
In this case, the undisputed evidence demonstrated that after the illegal strike, the employer locked out the former strikers in support of its bargaining position without reserving its rights under Section 8(d), and repeatedly assured the Union that the then locked out employees could return to work once the parties reached an agreement on a new contract. The Board found based upon this conduct that the employer “reemployed” the striking workers within the meaning of Section 8(d)(4). In reaching this conclusion, the majority noted that a lock out does not sever the employer-employee relationship. Indeed, a lockout presupposes the existence of an employment relation between the employer and the employees it has locked out because “person who are not employed by an employer may no more be locked out by the employer than strike against the employer”. Therefore, once the employer locked out the former strikers, the strikers resumed their status as employees under the Act, and the employer could no longer discipline them for having engaged in the illegal strike.
The Douglas Autotech decision is another union friendly Board ruling that employers should be aware of because the employer locked out the former strikers before it had any direct evidence that the previous strike was illegal. Nevertheless, the Board found the employer effectively reemployed the former strikers through the lock out because at the time of the lock out, it suspected that the strike may have been illegal. The Board held that under these circumstances the employer was required to reserve its rights to discipline illegal strikers before conducting a lock out in order to preserve its rights under Section 8(d).
While a reservation of rights should be utilized in these circumstances, employers should be cautious in proceeding blindly under the Board’s ruling that a simple reservation of rights will prevent any reemployment due to a lock out under Section 8(d) of the Act. This is because the Board has yet to decide the crucial issue of how long a reservation of rights may afford the employer the opportunity to discipline a striker who lost their employee status once the employer receives direct evidence of the strike’s previous illegality.
