Employers that find themselves in the cross hairs of the National Labor Relations Board (NLRB) should get expert legal help, especially if charged with unfair labor practices.
That’s because once the NLRB concludes you fired employees for engaging in protected activity, it is very hard to argue against those employees’ eventual reinstatement. And if employees are reinstated, that could persuade other employees to support organized labor.
Recent case: Back in 2000, Jackson Hospital fired eight employees for supporting a union and going on strike during contract negotiations. The NLRB ordered their reinstatement with back pay. The hospital took back seven of the eight, but refused to rehire Melissa Turner, who had worked in the radiology department as an X-ray technician.
The NLRB went back to court to enforce its order. The hospital argued that it didn’t reinstate Turner because she had subsequently been convicted of a drug-related felony. It claimed it would have terminated her for that conviction even if she hadn’t been terminated during the strike.
But the 6th Circuit Court of Appeals didn’t buy the hospital’s argument. The record showed that Turner’s felony charges and subsequent conviction resulted from her attempt to obtain Demerol for a toothache after she received Percocet for the same tooth earlier the same day. After close examination of HR records, it appeared that other employees with similar convictions had been allowed to continue working at the hospital if they sought help from an employee assistance program. Therefore, the court wouldn’t bar Turner’s rehiring. Turner is also owed almost $80,000 in back pay plus interest. (NLRB v. Jackson Hospital Corporation, No. 10-2101, 6th Cir., 2012)
Final note: The NLRB is aggressively pursuing employers that try to discourage union activity. Consult your attorney before doing anything that might violate labor laws.