Friday, September 28, 2018

NLRB finds employer retaliated against employees for approving a labor union

The National Labor Relations Act prohibits employers from retaliating against employees for voting in favor of a union. In this case, the National Labor Relations Board ruled against an employer that engaged in such retaliation. The Court of Appeals confirms the ruling.

The case is NLRB v. Dawn Trucking, Inc., a summary order issued on September 21. The Board said that Dawn fired six employees for voting in favor of union representation. That ruling has factual support in the record, says the Court of Appeals (Raggi, Sack and Katzmann).

Prior to the union election in November 2015, Dawn's owner said he would shut down the company if they voted in favor of a union. Following the election, the owner said, "Straight across the board, we're done." He also stopped giving any of the employees any work. Then, in January 2016, the owner started up the company again and said he had "found out who the terrorists were." The Second Circuit says the NLRB was able to find that "terrorists" means pro-union employees.

An employer can avoid liability in a case like this if it closes the business permanently and lawfully. But the Circuit defers to the NLRB's findings that the business was not permanently closed down, as the owner handled some trucking assignments for Dawn and tried to re-hire certain employees. While management the NLRB had no basis to find the company unlawfully made offers of reinstatement to certain employees conditions upon their rejection of the union, the evidence shows that in a text message, the owner offered reinstatement on one condition: "no union rates no benefits." 

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