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Various decisions of the Obama-era NLRB have come under scrutiny
as many have questioned whether a pro-labor bias has motivated the
NLRB in recent times. Whether those decisions are correct or
necessary, it hard to argue against the perception that the NLRB in
recent years has made deliberate efforts to assist organized labor
and limit the prerogatives of management in the arena of union
activities.The most recent example of such a decision arises in the
recent case of Evenflow Transportation,
Inc., decided by the NLRB on July 3, 2012. In
that decision, an employer was faced with organizing activities by
some of its employees. Evidence was produced that the employer
unlawfully interrogated several employees about their activities,
and made what was deemed to be a threat against another employee
suspected of speaking with union representatives. Ultimately, the
employer laid off five employees — three of whom were
believed to have been involved in organizing activities, as well as
two other employees who worked alongside those three.
Relying on traditional standards of motivation and causation,
the NLRB held that the five layoffs were the result of illegal
anti-union motivation, and found such layoffs to be illegal. Had
the NLRB stopped its analysis there — which it easily
could have — the case would not be remarkable. However,
it did not do so.
In its decision in Evenflow, the NLRB went on to find
that even if the employer had no idea whether the five laid-off
employees were or were not engaged in union activities, their
layoffs would still be illegal. In so doing, the NLRB relied on the
so-called "mass discharge theory," under which the NLRB
found that the employer had acted "to send a general message
of warning or retaliation" to its workforce by initiating the
layoffs. The NLRB further commented that under that theory, it did
not matter whether the specific employees impacted were or were not
involved in union activities. Instead, the NLRB found that the
employer had demonstrated clear anti-union sentiments, and that the
layoff involved in Evenflow was therefore tainted
regardless of the specific activities or sympathies of the
employees impacted.
The mass discharge theory has been utilized in several previous
NLRB decisions and court cases, albeit under different
circumstances than are involved here. Regardless, the decision is
troubling for a couple of reasons: 1) the NLRB went out of its way
to apply the theory even though it had not been alleged by the NLRB
attorneys handling the case, and 2) the language in
Evenflow discussing the mass discharge theory is broadly
written and could be applied to render unlawful otherwise innocent
and legitimate employer actions that take place during known or
suspected union organizing.
It remains to be seen how Evenflow will be used in the
future. Employers can hope it will be limited to the particulars of
that case and not be expanded to put employers at risk for
otherwise lawful actions undertaken during periods of employee
protected activities. Time will tell.
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