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Time Period Within Which Strikers Must Be Reinstated

The NLRB’s general rule is that when a strike ends, the employer has five days within which to reinstate strikers to allow an employer, in an orderly manner, to discharge replacements who are subject to being bumped by strikers and to reinstate the strikers who are entitled to reinstatement. Drug Package Co., 228 NLRB 108, 113-114 (1977). However, in a recent case, Sutter Health Center d/b/a Sutter Roseville Medical Center, 348 NLRB No. 29 (9/29/06), the NLRB found that where the employer doesn’t have a legitimate and substantial reason for delaying reinstatement, the employer is required to immediately reinstate strikers without any waiting period.

In Sutter Health Center, the Union gave the Employer advance notice that it was calling a one day strike and, in advance, made an unconditional offer on behalf of all the strikers to return to work the day after the one day strike. The Employer responded by hiring or reassigning temporary replacements for a five day period. Since the replacements were only temporary, they were subject to being displaced by the strikers when the strike ended. However, the Employer refused to reinstate the strikers until its five day contract with the temporary replacements had ended. The Union filed charges alleging that the Employer unlawfully retaliated against the strikers for exercising their right to strike by unnecessarily delaying their reinstatement for four days and that the Employer had unlawfully failed to bargain with the Union regarding what the replacements should be paid during the four days after the strike ended.

The NLRB only addressed the retaliation issue. It held that, because the Union had in the past always returned to work after one day strikes, the Employer had no reasonable basis for believing the strike would extend beyond one day and had plenty of time to arrange for replacements for just one day instead of five and could have returned replacements to their prior positions on the day after the strike. Therefore, the Employer unreasonably delayed reinstatement of the strikers for four days without a legitimate and substantial business reason and was liable for back pay to the strikers for that period.

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