“Permanent” replacements for striking employees who were required to sign an employment-at-will acknowledgment were not “temporary” employees, and the company was not required to reinstate strikers who unconditionally offered to return to work, the Seventh Circuit rules, upholding a National Labor Relations Board decision.

Under the National Labor Relations Act, an employer can deny reinstatement to “economic strikers” if it has hired permanent replacements in order to continue its business operations during the strike. The Court says: “The NLRA does not define what constitutes a permanent striker replacement; it does not delineate what evidence may be used to establish that an employee is permanent; and it is silent as to how offers of permanent employment interact with at-will employment, a ubiquitous, if not uniform, mode of employment. Under these circumstances, we must uphold the Board’s legal conclusions on how best to proceed unless its conclusions are ‘irrational or inconsistent’ with the NLRA.”

The NLRB had held that the employer can establish “a mutual understanding of permanence” with the replacements, and “ may impose other conditions of employment such as probationary periods, further testing and at-will employment” that would have been applicable even in the absence of returning strikers. The Court rejects the union’s contention that the company can have permanent replacements only if it offered binding contracts to those employees. The Court points out that if the company had discharged the permanent replacements to rehire the strikers, it “would have risked a promissory fraud or breach of contract lawsuit” brought by the fired replacements under state law. United Steelworkers v. NLRB