By Julian Benson-Reid
In late 2021, workers for Kellogg’s went on strike in several plants. One of the newsworthy headlines that developed from the strike was about Kellogg’s bringing in scabs, or replacement workers, and about whether they could be permanent replacements for the strikers. The answer changed from “likely yes” to “maybe not.”
Initially, the striking workers objected to a proposed new tiered system of pay. Before this, there were two tiers: “legacy” employees and “transitional” employees. Most roles saw a legacy employee make $12 more per hour than a transitional employee. Legacy employees made $35 per hour on average, while transitional employees make almost $22 per hour on average. Benefits between the two-tier system of employees were also different. Transitional employees paid health care costs that legacy employees did not, and legacy employees had better retirement plans than transitional employees. More transitional employees would become legacy employees as more legacy employees retired, and the percentage of transitional employees was capped at 30%.
The proposed plan would see all employees who had worked at Kellogg’s for at least four years would be immediately moved into the legacy tier. Thereafter, a group of transitional employees—that equaled 3% of a plant’s head count—would be moved into the legacy tier each year. However, this proposed plan would also eliminate the 30% cap on transitional employees.
Between the rejection of the penultimate proposal on December 7, 2021, and the end of the strike on December 21, 2021, Kellogg’s made headlines by publicly announcing that they wanted to bring in permanent replacements for the striking workers. On December 8, 2021, after rejecting the proposed plan, the union filed charges of unfair labor practices against Kellogg’s to the National Labor Relations Board, claiming that Kellogg’s broke the law during the strike. However, before this issue could be decided on the merits, Kellogg’s and the workers agreed to a deal, ending the strike.
There are essentially two kinds of strikes: unfair labor practice strikes, and economic strikes.
“An unfair labor practice strike is defined as strike activity initiated or prolonged, in whole or in part, in response to unfair labor practices committed by the employer.”
Economic strikes are those which are not prohibited and, instead of concerning unfair labor practices, concern disputes about pay, benefits, hours, or other things (essentially, those strikes that do not concern unlawful purposes).
A company cannot permanently replace unfair labor practice strikers, as demonstrated in N.L.R.B. v. Mackay Radio & Telegraph Company (1938). There, an employer brought workers from its other offices to fill the places of striking employees. After the strike, they rehired all but five strikers, excluding them because of their union activities. The Supreme Court held that discrimination in rehiring the workers based on union activities was an unlawful purpose, and so the replacements could not be made.
However, in doing so the Court also held that the lack of such a purpose did not also require total rehiring.
Although section 13 of the act, 29 U.S.C.A. s. 163, provides, ‘Nothing in this Act (chapter) shall be construed so as to interfere with or impede or diminish in any way the right to strike,’ it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them.
Further emphasizing this point (that economic strikers can be permanently replaced) is the Hot Shoppes, Inc. decision in 1964. In that case, strikers claimed their employer engaged in “unfair labor practices” by refusing to reinstate them while hiring replacements. The lower trial examiner said that hiring replacements and keeping them after a worker sought reinstatement converted the character of the strike. The NLRB reversed, saying that there was no conversion. Concluding, simply seeking to permanently replace economic strikers, without more, is not improper.
Since the original complaints were economic in nature, then Kellogg’s would have been able to replace the strikers permanently. Simply replacing the workers, without more–such as an intent to punish them or dissuade from future strikes–would not have been enough to convert the strike.
However, the status of a strike can change from economic to unfair labor practice if the NLRB finds that the employer engaged in conduct that violated the National Labor Relations Act. This may include bargaining in bad faith and directly negotiating with the employees instead of the union. In order to prove such violation, the union must show the conduct “was a factor (not necessarily the sole or predominant one) that caused a prolongation of the work stoppage.”
Here, the strikers filed unfair labor practices complaints concerning Kellogg’s actions during the strike. The union accused Kellogg’s of bad faith bargaining and direct dealing. The strike ended before the matter was heard by the NLRB, but if the union could prove that the alleged conduct was a factor in prolonging the strike, then the strike would have been converted, and the strikers could not have been permanently replaced.
Therefore, without the complaints of unfair labor practices, it is very likely that Kellogg’s would have been able to simply permanently replace the strikers since the strike would have been only an economic one. However, if the NLRB agreed with the complaints and found unfair practices, then the strike would have been converted into an unfair labor practice strike, and Kellogg’s would not have been able to replace the workers.
 Dave Jamieson, Why Kellogg’s Workers Are on Strike, HuffPost (Oct. 07, 2021, 11:54 AM), https://www.huffpost.com/entry/why-kelloggs-workers-are-on-strike_n_615f062ce4b09f338971f098.
 Dave Jamieson, Kellogg’s Threatened To Replace Strikers. That Doesn’t Mean It Will Work, HuffPost (Dec. 16, 2021, 5:45 AM), https://www.huffpost.com/entry/can-kelloggs-get-away-with-replacing-workers-on-strike_n_61ba6018e4b01828d1e93bcc.
 Jamieson, supra note 1.
 Noam Scheiber, Kellogg Workers Prolong Strike by Rejecting Contract Proposal, New York Times (Dec. 7, 2021), https://www.nytimes.com/2021/12/07/business/kellogg-workers-strike.html.
 Jamieson, supra note 1
 Jamieson, supra note 1.
 Kellogg to replace 1,400 strikers as deal is rejected, The Guardian (Dec. 7, 2021, 21:59 PM), https://www.theguardian.com/us-news/2021/dec/07/kellogg-strike-workers-pay.
 Jamieson, supra note 2.
 Noam Scheiber, Kellogg workers ratify a revised contract after being on strike since October, New York Times (Dec. 21, 2021), https://www.nytimes.com/2021/12/21/business/economy/kellogg-union-strike-contract.html.
 Michael D. Moberly, Striking A Happy Medium: The Conversion of Unfair Labor Practice Strikes to Economic Strikes, 22 Berkeley J. Emp. & Lab. L. 131, 134-35 (2001).
 Gatliff Bus. Prod., 276 N.L.R.B. 543, 563 (1985).
 Moberly, supra note 16, at 136.
 NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938).
 Id. at 337.
 Id. at 338-40.
 Id. at 346.
 Mackay Radio & Tel. Co., 304 U.S. at 345-46.
 Hot Shoppes, Inc., 146 N.L.R.B. 802 (1964).
 Id. at 803.
 Id. at 804.
 Hot Shoppes, Inc., supra note 25, at 804.
 Am. Baptist Homes of the W., 364 N.L.R.B. No. 13, *9 (2016) (in which the Board held that an independent unlawful purpose includes an intent to retaliate against workers for exercising their right to strike and a desire to simply prevent future strikes).
 Gaywood Mfg. Co., 299 N.L.R.B. 697, 700 (1990) (in which the Board held that demanding a striker withdraw or be released from the union in order to be reinstated, in part, converted a strike).
 29 U.S.C. § 158(d) (2018).
 Gaywood Mfg. Co., supra note 31, at 700.
 Jamieson, supra note 2.
 Jamieson, supra note 2.
 Scheiber, supra note 16.