The U.S. Court of Appeals for the Seventh Circuit held that an employer that refused to reinstate strikers did not violate the National Labor Relations Act because it had hired permanent replacement employees, even though those replacements had acknowledged they were employed "at will."  In United Steelworkers Union v. National Labor Relations Board, No. 07-3885, the Court upheld the NLRB's decision in Jones Plastic and Engineering Co., 351 NLRB No. 11 (Sept. 27, 2007).

In its 2007 decision, the Board clarified that advising strike replacement workers that they are employed “at-will” does not undermine their status as permanent replacements, entitled to continued employment at the conclusion of a strike. Economic strikers who make unconditional offers to return to work are entitled to immediate reinstatement unless the employer has hired a permanent replacement for the worker during the strike. In order to avail itself of this position, however, the employer must establish that there was a mutual understanding between the employer and the replacement worker that the replacement was “permanent.” A previous Board case, Target Rock, 324 NLRB 373 (1997) had suggested that employer statements advising replacements of their “at-will” status (e.g., “you may be terminated at any time with or without cause”) were inconsistent with an assertion of permanent replacement status.

The Court of Appeals has now approved the Board's overruling of that prior holding.  The Seventh Circuit also turned down the union's request for a new NLRB rule forcing the employer to communicate an express promise to replacement workers that they would not be discharged for returning strikers in order for the "permanent" protection to attach.