Refusing to Hire Striking Workers and the

National Labor Relations Act

Background

The National Labor Relations Act of 1935 (NLRA) was passed to give workers the right to collectively bargain with their employers. Through several amendments, the NLRA was expanded to provide a comprehensive framework for relations among employees, employers, and labor unions or representatives. The NLRA defines a number of unfair labor practices that are forbidden by the NLRA. Employers or unions that are found to be engaged in unfair labor practices are subject to enforcement actions by the National Labor Relations Board (NLRB), the agency tasked with enforcing the NLRA.

Examples of unfair labor practices include the following:

Employers threatening employees with firing or a reduction in benefits if they organize or join a union

Employers promising benefits to employees in exchange for promises that they will not join a union

Unions telling employees that they will probably lose their jobs if they do not support union activities

What constitutes an unfair labor practice is not always clear cut. The NLRA specifically provides that it is an unfair labor practice for an employer to engage in discrimination with regard to hire or to encourage or discourage membership in any labor organization. This provision was recently tested with respect to hospitals that instructed temporary employment agencies to refuse to hire striking nurses.

Refusing to Hire Striking Workers

In a 2004 case, the National Labor Relations Board determined that hospitals that refused to accept temporary nurses who were on strike from another hospital engaged in an unfair labor practice. Consequently, the hospitals were ordered to cease and desist their illegal activities.

The lawsuit involved nurses who were represented by a union. There was a major nursing shortage in the city, and hospitals were understaffed. Temporary employment agencies often provided nurses to meet the frequent needs of hospitals. Many nurses, although employed full time by one hospital, would also register with a temporary agency to pick up additional work elsewhere. A single union represented all of the city's nurses.

After being unable to reach an agreement with only one of the hospitals, the union initiated a strike against that hospital. Work for the other hospitals continued unchanged. Many of the striking nurses sought work through temporary employment agencies. The temporary employment agencies were instructed by the city hospitals, which had a coordinated bargaining strategy, not to send them any striking nurses. The agencies complied with the instructions. The nurses filed a complaint with the NLRB.

The NLRB found that the hospitals had engaged in unfair labor practices by refusing to consider for temporary employment those nurses who were on strike. The court stated that while the hospitals had an overall objective of coordinated bargaining that was allowable under the NLRA, they failed to use a legal course of action, such as a lockout, to accomplish their goal. Instead, the hospitals agreed to single out strikers and refuse to hire them, so long as they remained on strike. Because hiring discrimination was prohibited by the NLRA, the hospitals were in violation of the NLRA.