In a brief currently before the Board, NLRB General Counsel Richard Griffin argued that current law should be changed to require an employer to demonstrate “a legitimate and substantial business justification” for the hire of permanent replacement workers (also known as “scabs”) “that outweighs the harm to employee rights.” Stating the necessity of hiring permanent replacements alone, without proof, has typically represented the extent of an employer’s burden to bring in scabs during an economic strike (a strike after negotiations break down concerning wages, benefits or working conditions, among other matters.) Teamster.org notes that this small burden gives companies a “big incentive” to break strikes with scabs. If the Board adopts the General Counsel’s view, this case would strengthen union members’ ability to use economic strikes, particularly if an employer cannot prove that scabs are justified. Labor Relations Today observes that the Board generally avoids overturning clear precedent without a three-member majority. With two Democratic appointees and one Republican appointee on the Board, it would be surprising if the Board changed course in this matter. Regardless, unions and their supporters should keep a close watch on this case.
Here is the full set of briefs and other papers. The matter is Case Number: 20-CA-139280 (United Site Services of California, Inc.).