I need a response to a discussion question below make sure you put which post it is below so I will know how to attached it to the right person.

Post 1

1. Does the work stoppage by the truck drivers, in this case, represent an economic strike or an unfair labor practice strike?

To answer this question, we must look at the reasoning for why the strike happened. A strike due to wages and work conditions would be considered an economic strike. “If the object of a strike is to obtain from the employer some economic concession such as wages, shorter hours, or better working conditions, the striking employees are called economic strikers” (NLRB).

2. What is the difference between the reinstatement rights of an unfair labor practice striker and an economic striker?

In an unfair labor practice strike, strikers cannot be replaced or discharged. “When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged” (NLRB). If the Labor Board finds that reinstatement was not done for the unfair labor practice striker, they will be considered for backpay.

In an economic strike, the economic strikers cannot be discharged. The striker will retain the status of employment, but the employer can replace them. “If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time” (NLRB). The economic striker would have to wait until the job becomes open again to apply if it ever does. They can also try to gain employment back by waiting for their employment representative to request for the economic striker to be reinstated.

3. Did the employer unlawfully discharge the four truck drivers who never returned to work? Explain your reasoning.

The employer did not unlawfully discharge the four truck drivers who never returned to work. The employer treated the situation as if it was an unfair labor practice strike when it was an economic strike. The employer hired temporary workers and allowed the three employers who wanted to come back to work their jobs back; when they did not have to. The employees were not discharged but quit when they abandoned their post. “The circumstances of having to abandon your work without first holding a dialogue, then bringing on later some demands which we cannot face economically at this time, in addition to your refusal to work if your conditions are not met exactly the way {you} stated them, we have to interpreted it as a resignation from your job, leaving us without alternatives and unfortunately we have to accept your decision effective today, Monday, Sept. 23” (Holley, 2017).

In the case of NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), “stating that an employer does not violate the National Labor Relations Act when it permanently replaces an economic strikers to carry on its business has been acknowledged as having “vitality” in subsequent Supreme Court decisions” (Kaltenbach). The Mackay doctrine is a law that “forbids employers from discharging legally protected strikers while, at the same time, allows those employers to hire other workers to replace strikers” (Kohler, 2006). Due to these reasons, nothing illegal was done during this strike.

References

Holley, W. H., Ross, W. H., & Wolters, R. S. (2017). The Labor Relations Process. Boston, MA: Cengage Learning.

Kaltenbach, M. (n.d.). Why the National Labor Relations Board should replace its hard-to-justify interpretation of the “Mackay rule” a. Retrieved from https://onlabor.org/wp-content/uploads/2015/04/kaltenbach_all-mackay-says_final-1.pdf (Links to an external site.)

Kohler, T. C., & Getman, J. G. (n.d.). The Story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity. Retrieved from https://lawdigitalcommons.bc.edu/lsfp/160/ (Links to an external site.)

NLRB.gov. (n.d.). Retrieved from https://www.nlrb.gov/strikes

Post 2

#1- Does the work stoppage by the truck drivers in this case represent an economic strike or an unfair labor practice strike?

The work stoppage by the truck drivers represents an economic strike. The NLRB defines an economic strike as a strike in which the object of the strike is to obtain an economic concession (such as higher wages) from an employer. Strikes are a protected activity in Section 7 of the LMRA. In this case the truck drivers requested an increase to their salaries and a healthcare plan. The truck drivers went on strike due to the employer failing to meet their demands regarding a higher salary, which would represent an economic strike.

#2- What is the difference between the reinstatement rights of an unfair labor practice striker and an economic striker?

Section 7 of the LMRA protects workers right to strike but not all strikes are created equal when it comes to rights of the strikers. Unfair labor practice strikers and economic strikers have several differences when it comes to the reinstatement rights. Unfair labor practice strikers’ jobs will resume once a resolution is reached with a dispute; their jobs cannot be replaced. Section 7 of the LMRA states that if replacement workers were hired during an unfair labor practice strike, at the conclusion of the strike the strikers are entitled to their jobs, even if this means the replacement workers have to lose theirs. Economic strikers, on the other hand, may be temporarily or permanently replaced so that the employer can continue with normal business operations. The economic strikers will have continual employee status during the strike, they cannot be fired but the employer can hire replacements. Economic strikers also have a right to be reinstated at any time during the labor dispute, but in order to be reinstated they must make an unconditional request for reinstatement with the employer (Holley, Ross &Wolters, p. 464, 2017). In the event the employer hires permanent replacements, the striker (who again retains employee status) is put on a preferential recall list (Holley, Ross &Wolters, p. 464, 2017). The preferential recall list requires that the employer fill a permanent vacancy with a qualified individual on the recall list prior to offering the job to another job applicant (Holley, Ross &Wolters, p. 464, 2017).

#3- Did the employer unlawfully discharge the four truck drivers who never returned to work? Explain your reasoning.

No, the employer did not unlawfully discharge the four truck drivers who never returned to work. The strike was an economic strike, which protects the drivers and allows them to remain in an employee status. The employer was lawful in hiring permanent replacement drivers, the four truck drivers that never returned to work and chose not to request reinstatement of their previous jobs. The employer is entitled to hire replacement workers in order to continue operations. If the strikers request reinstatement, and no positions are available, they are placed on a preferential recall list, and in the event jobs open up in which they are qualified for, the employer will reach out to them prior to hiring other applicants. Several cases have set the precedence of ruling in favor of employers in regard to hiring permanent replacement workers. In NLRB v. Fleetwood Trailer Co., (1967), the Board found that an employer who refuses to reinstate strikers must show that the refusal to reinstate strikers is due to “legitimate and substantial business justifications.” The employer has the burden of proving their position and that the workers hired were in fact permanent. Ruling in favor of an employer and permanent replacement workers was again upheld in NLRB v. Jones Plastic & Engineering Co., (2007). In the case, employees began in economic strike. The employer began hiring individuals to replace the strikers. Much like the current discussion case, the employer sent the strikers letters stating their intent of hiring permanent replacement workers and that they need to return to work or risk being permanently replaced. Since the employer had filled all of the striker’s positions, those that requested to be unconditionally reinstated were placed on a preferential recall list. The union filed an unfair labor practice charge against the employer for failing to reinstate the strikers despite the fact that they requested to be reinstated (which was after the employer had hired permanent replacements). The Board ruled that the employer did not violate the LMRA, finding that the replacement workers were permanent, and the employer did not have to discharge them in order to reinstatement the strikers.

References

The Right to Strike. Retrieved from https://www.nlrb.gov/stikes (Links to an external site.)

Holley, W., Ross, W., Wolters, R. (2017). The Labor Relations Process. Boston, MA:

Cengage Learning.

NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967)

NLRB v. Jones Plastic & Engineering Co., 351 U.S. 11 (2007)