Everything turns on why the employees struck. The reason decides whether they can be permanently replaced.
Economic strikers
Employees who strike solely over terms such as a wage increase are economic strikers.
- They remain employees and cannot be discharged for striking.
- They may be permanently replaced. If bona fide permanent replacements hold their jobs when they make an unconditional offer to return, immediate reinstatement is not required.
Permissibility of replacement is not loss of status: they neither lose employee status when replacements are hired nor become dischargeable because the strike was economic.
Laidlaw recall rights
Under the Laidlaw doctrine described by the NLRB, an economic striker not entitled to immediate reinstatement because replacements held the jobs retains recall rights as openings occur. Three months later, when a comparable position opens, that striker has a claim. The right did not expire when the initial offer was refused, and it is not subordinated to external posting.
Unfair labor practice strikers
Employees who strike to protest the employer's unlawful conduct, such as the discharge of union supporters, are unfair labor practice strikers.
- They can be neither discharged nor permanently replaced.
- Absent serious misconduct by the strikers, an unconditional offer to return entitles them to reinstatement even if replacements must be discharged to make room.
The traps run both directions. Putting ULP strikers on a recall list as vacancies arise applies the economic-striker rule to the wrong category. Requiring immediate reinstatement of economic strikers even if replacements are discharged applies the ULP rule to the wrong category. And the ULP striker's right does not depend on the employer conceding the discharges were unlawful.
Preventing stoppages
The BASK names the causes of strikes, lockouts and boycotts as unfair labor practices and economic grievances. When employees circulate pay and scheduling complaints and supervisors discipline those who raise them, both causes are present, so work on both: correct the supervisors' conduct and open a channel for the grievances. A threat of discipline addresses neither cause; a pay increase alone treats one.
Carry this in: economic strikers keep status plus recall; ULP strikers get their jobs back.