Trump Judge Tries to Overturn NLRB Remedies for Company’s Unfair Labor Practices: Confirmed Judges, Confirmed Fears
By Elliot Mincberg, People For the American Way
Trump Sixth Circuit judge Chad Readler dissented from a decision upholding penalties by the National Labor Relations Board (NLRB) against a company that improperly fired several employees and committed unfair labor practices. The March 2020 case is Ozburn-Hessey Logistics LLC v. NLRB.
Workers at Ohio’s Ozburn-Hessey Logistics (OHL), which packs, stores, and ships products for customers, organized a union in 2013 after a “long labor fight” between workers and the company. Around the time that the union was recognized that May, OHL fired five employees for, at least in part, “engaging in protected union activities,” which led to the filing of unfair labor practice charges before the NLRB. The NLRB found for the union and the employees and, as part of the remedy, required three solutions: that the company 1) read the ruling aloud publicly, with OHL’s top managers and human resource resources officials present; 2) post a notice of the ruling for three years; and 3) publish the ruling, twice per week for an eight-week period, in two publications of “broad circulation and local appeal.”
OHL appealed the NLRB’s decision to the Sixth Circuit. All three judges agreed that while three of the firings did not violate labor law, two clearly did because they related to protected union activities, including signing a union representation card in a parking lot when a high company official “drove past,” and firing an employee who demanded union representation when the company levelled accusations of misconduct. Two of the judges, in an opinion by George H.W. Bush nominee Alice Batchelder, also upheld the remedy ordered by the NLRB.
Trump judge Readler dissented from the ruling concerning the remedy. He claimed that the remedies were “unjustified” and punitive, going far beyond the NLRB’s usual 60-day posting requirement.
The majority explained what was wrong with Readler’s view. NLRB had previously imposed enhanced remedies against OHL for earlier violations, but they had “proven ineffective.” The Board clearly had “legitimate remedial purposes” for its remedies, they continued. The move to expand the posting period was warranted because OHL had already “continued to violate the Act over several years.” Furthermore, OHL managers and supervisors “continued” to commit the violations, so it was important that they be directly and “fully informed” about the union’s rights. Finally, the publication was needed so that prospective employees would be aware of “OHL’s history of unfair labor practices,” as well as their rights to oppose them, and that the NLRB had “protected those rights.”
Considering the NLRB’s “broad discretion to fashion remedies,” the majority concluded, the remedies ordered should be upheld. But if it had been up to Readler, the NLRB would have been required to cut back the relief it ordered against a company with a significant history of unfair labor practices.