Ryan Sarni, Attorney, Labor Relations
Later this month, I will be representing an MSEC member at a trial with the National Labor Relations Board. I’m sure many employers will read this and think that they won’t ever find themselves in a similar situation, because they don’t have a union. Unfortunately, that is not the case. The NLRB has been aggressively pursuing charges against non-unionized employers, such as the member I’m representing. In fact, the last three cases I’ve worked on with the NLRB have been with non-union employers. To that end, a brief outline of the procedure could be helpful to better understand how a NLRB trial works.
The NLRB is charged with enforcing the National Labor Relations Act. The Act, among other things, guarantees protection for employees who engage in “protected, concerted activity.” Basically, if an employee is acting on behalf of other employees, or in an attempt to inspire collective action, to change or improve wages, hours, or terms and conditions of employment, they cannot be subjected to any adverse employment action for it. The protection applies regardless of whether the employer is unionized, or even whether there is an effort to unionize taking place. This is a complicated and constantly evolving area of law, so please contact MSEC if you have questions regarding whether a certain situation constitutes protected concerted activity.
In my case, the employer decided to terminate an employee for her behavior, and the employee filed a charge with the NLRB, asserting that the employer terminated her for engaging in protected, concerted activity. We filed a brief arguing that her behavior was not protected by the Act, and the NLRB disagreed. At that point, the NLRB changed from investigator to prosecutor, for lack of a better word. We may still settle the case, but for now we are scheduled to go to trial at the end of the month. NLRB attorneys will represent the employee, I will represent the employer, and an administrative law judge will hear the case.
At the trial, each party will give an opening statement, present evidence, and call witnesses just like a trial in a normal court. The other side will have an opportunity to cross-examine my witnesses and I will cross-examine theirs.
After trial, the parties will file briefs containing legal arguments based on the record established during the trial. If the judge agrees that we did not terminate the employee for protected activity, we win. If the judge determines that we did terminate the employee for protected activity, the employer could be forced to pay backpay and, potentially, reinstate the employee.
Please feel free to contact MSEC’s Labor Relations if you have any questions regarding NLRB trial procedure or any of the other issues discussed in this post.