BETHLEHEM — With up to 400 union members walking the picket line for a second day, Just Born Quality Confections has started hiring replacement workers to keep cranking out the company’s popular candies during the strike.
“It’s fluid, because right now our [human resources] department is continuing to interview and making offers to hire people,” said Matt Pye, vice president of corporate affairs for the Bethlehem candymaker known for its marshmallow Peeps, Mike and Ike, and other treats.
Pye said the company is hiring replacements, in part, “to continue to meet customer demand.” The company has sufficient inventory for Halloween and Christmas, he said, but “Easter is our big season; we produce for Easter year-round. At some point, it will become a concern.”
Hiring replacement workers is a common tactic designed to put pressure on a union to lessen its demands and end its strike, experts said.
“You make noise, you saber-rattle about replacements whether you bring them in or not,” said Vincent Candiello, a labor law attorney in Harrisburg.
Actually following through carries risks. If the replacement workers are permanent, striking workers qualify for unemployment benefits under Pennsylvania law, a significant cost to the employer, Candiello said.
Striking workers who aren’t replaced don’t qualify for unemployment benefits, he said.
Companies that hire permanent replacement workers also are more vulnerable to unfair labor practice complaints by unions, following a May ruling by the National Labor Relations Board that subjects employers to penalties, such as back-pay liability, if the union can demonstrate the company’s goal in hiring replacement workers was to punish strikers, or to head off future walkouts.
The NLRB decision has been appealed, but should make employers think carefully about their reasons for hiring replacements, said George Hlavac, a labor law expert in Allentown.
“If the motivation was an improper one, to get rid of the union, then the board can require the reinstatement of all the striking employees,” with back pay, he said.
A company hiring replacement workers simply to continue production should be OK, he said, but needs to make sure it’s clear and consistent about its motivation.
“They can’t just simply jump into the decision and say we are going to replace workers; they have to make sure they are doing it for the right reasons,” he said.
Before the strike, the company warned employees, in a memo reviewed by The Morning Call, that replacement workers could be hired.
“Under applicable laws, you can be permanently replaced as soon as you go on strike,” the memo reads. “That means that the company can hire ‘permanent replacement workers’ to do your job to continue operations. If this happens, replaced associates do not return to work when the strike ends.”
Instead, they are put on a recall list and contacted only when jobs open up, Ron Arnold, senior vice president of human resources, wrote in the memo.
If the replacements are temporary, they are dismissed when union members end their strike, Candiello said. The exact date is often part of contract negotiations.
Meanwhile, Just Born workers, members of Bakery, Confectionery, Tobacco Workers and Grain Millers International Union Local 6, continued to picket the length of the company’s industrial campus under a sweltering September sun along busy Stefko Boulevard. Some motorists honked their horns in support.
Union worker Alex Fattore, a former chief steward who has been with the company nearly four decades, gave occasional chants on his bullhorn: “No pension, no Peeps!” and “No money, no Mikes!” Workers have begun picketing in four-hour shifts, union leaders said.
Both sides say the pension issue is the lightning rod in the contract dispute.
Pye said the company plans to keep existing workers in the current defined pension plan, which is underfunded. Just Born wants to put new employees in a 401(k) retirement plan.
On wages, Pye would not disclose details of the company offer, but he said a starting worker’s pay typically is $20 per hour.
John J. Price, the union’s organizing director, said the company offered no increase in the first year of the three-year deal except a $1,000 bonus. The company offered 2.25 percent increases in each of the remaining years. He said the union had sought 3.5 percent pay increases each year, but its last proposal was for 2 percent with the $1,000 bonus, and 3 percent hikes in the final years.
“I’m not asking for a steelworker’s contract,” Price said.
Pye said the company has been able to keep producing and shipping product, and that the union workers have been peacefully picketing. No new negotiating sessions are planned, both sides said.
Bethlehem police Chief Mark DiLuzio said he knew of no incidents on the picket line.
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