EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS – Post-Strike Furloughs
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406.04000 – Post-Strike Furloughs
A public health care employer that prohibits bargaining unit employees from work after an economic or unfair practice strike, due to a minimum shift guarantee for strike replacements, can typically establish an affirmative defense to an interference claim and avoid a finding of discrimination only if it can prove that: (1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical inpatient services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms of a prior guarantee, and, if requested, bargained in good faith over the potential effects on bargaining unit employees. Applying this standard, Board found employer did not meet any of these three required elements.