After years of setbacks, the labor movement is enjoying a renaissance. More employers will find themselves with a unionized workforce. If you suspect your employees will seek union representation, hire an attorney who is an expert on organized labor unionization right away. Otherwise, you may find yourself facing unfair labor practice charges.
Recent case: When the United Steelworkers organized hospital employees, the parties couldn’t reach a collective-bargaining agreement. The union then called a strike, and many employees participated. Shortly after, eight employees who had been fired during the strike complained to the National Labor Relations Board (NLRB), which concluded the eight had suffered discrimination and retaliation because they supported the union.
The hospital reinstated the employees, but that was not the end of the case. The employees also sought back pay to cover the time between their discharge and reinstatement. The NLRB sided with the employees.
The hospital appealed and petitioned for the right to see the employees’ financial records. It essentially argued that the employees should have tried harder to get replacement income after they were fired.
The 6th Circuit Court of Appeals rejected the hospital’s arguments and ordered it to make up the back pay. In fact, the court said that employees fired for union activities don’t have to work very hard to find replacement income. Wrongfully discharged employees are “only required to make a reasonable effort to mitigate damages, and [are] not held to the highest standards of diligence.” (NLRB v. Jackson Hospital, No. 08-1462, 6th Cir., 2009)
Final note: Employers are not allowed to punish employees for supporting a union. If your workers are organizing, get expert legal advice before making any workplace changes—or even discussing unions—to avoid inadvertently committing an unfair labor practice.
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