Mark Kaltenbach is an associate at the law firm of Markowitz & Richman in Philadelphia, where he represents labor unions, workers, and employee benefit plans.

For most workers, the right to strike for better wages, benefits, and other terms and conditions of employment is illusory, because the Board has given employers who permanently replace strikers a free pass.  In its recent Piedmont Gardens opinion, the Board held that, as with every other employer decision, an employer may not decide to permanently replace economic strikers in retaliation for the employees’ concerted activity.  Though this holding is obviously correct, the right to strike remains largely an illusion in its wake.  However, in a case currently pending before the Board, the General Counsel has asked the Board Members to adopt a rule that would finally make the right to strike real.

An employer cannot fire, demote, suspend, transfer, or take any other adverse employment action against an employee in order to stop that employee or other employees from engaging in protected concerted activity.  Piedmont Gardens merely holds that the decision to permanently replace a striking employee is no different from these other employment actions—the employer cannot decide to permanently replace an economic striker in order to punish or prevent concerted activity by its employees.

This holding is mandated by the Act and is good for labor rights as far as it goes, but it will be cold comfort to employees and unions considering a strike.  In the wake of Piedmont Gardens, exercising the right to strike remains an incredibly risky proposition for employees—the employees will effectively be betting their livelihoods on being able to prove months or years after the fact that the employer was driven by animus when it decided to replace them, which is no easy feat.  With the risk of job loss so high, most employees and unions are sure to decide that striking is just not worth it.

Instead, the right to strike will only become a reality when the Board jettisons what I will call the “Hot Shoppes presumption.”  Professor Sachs’ summary of my paper discussing the Hot Shoppes presumption in detail is available here, and the paper itself is available here.  By way of summary, the Supreme Court has recognized that permanently replacing an economic striker is “inherently destructive” of the right to engage in protected concerted activity, meaning that an employer who does it violates its employees’ right to organize regardless of whether that was the employer’s intention or not.  However, the Supreme Court has further concluded that an employer who takes this inherently destructive action may escape liability by demonstrating that the action was necessary to continue business operations.

The Board, instead of requiring the employer to justify its permanent replacements by proving their necessity to continue business operations, just presumes that such a justification exists.  The Board established this presumption in Hot Shoppes, Inc. (as Piedmont Gardens explains, “the Hot Shoppes Board…presume[d] that an employer’s hiring of permanent replacements serves the legitimate business purpose of allowing the employer to protect and continue his operations during a strike”).

For the right to strike to be more than a mirage, the Board must overrule this indefensible presumption and require permanently replacing employers to prove that they had no choice but to extend permanent offers to replacements to keep the business afloat.  In a case called United Site Services, the General Counsel has now adopted the position that the Board should do exactly that.  The Piedmont Gardens Board went out of its way to note that the correctness of the Hot Shoppes presumption was not before it, perhaps thereby signaling that the Members will be receptive to overturning that presumption in the right case.

The Board should indeed overturn the Hot Shoppes presumption at the first opportunity: the right to strike, guaranteed to America’s workers more than eighty years ago, has been a phantom for too long.