‘Extraordinary Remedies’

If your boss is really evil, the labor board can step in

Volume 111, No. 5May, 2011

Harvey Mars, Esq.

May is labor History Month, so it’s appropriate that I tell you about one of my more inspiring cases. Last year I filed two election requests with the National Labor Relations Board on behalf of teachers and assistant teachers employed in one of the largest daycare centers in New York. These employees sought to elect AFSCME District Council 1707 as their union.

The daycare workers wanted representation because their employer had just canceled scheduled vacations. If the employees had had a union representing them at the time, they would at least have had the ability to negotiate.

Immediately after the petitions were filed, the employer engaged in a course of conduct that was shocking even to the labor board.

  • The employer interrogated employees about their union sympathy and demanded that they sign cards renouncing support for the union – or they would be fired!
  • Individual employees were promised benefits if they voted against the union and if they helped quell the union organizing effort.
  • Employees were put under surveillance and were told that there were hundreds of job applicants who would gladly take their place.
  • The employer advised the workers that they were aware of who the union sympathizers were.

Did this intimidation work?

Well, the election for one of the units resulted in an overwhelming victory for the union!

But two days later, the employer started firing workers in both units who had petitioned for the election. After about two weeks, 14 employees had been fired.

The employer’s rationale for the firings was based upon criteria they had never applied before. For instance, one employee was terminated because she gave an interview to the Daily News, even though no one had ever been fired for this before!

In situations like these, where pervasive unfair labor practices prevent fair election proceedings, the NLRB is empowered to employ some extraordinary remedies.

Under Section 10(j) of the National Labor Relations Act, the NLRB may apply for injunctive relief requiring the employer to reinstate employees to restore the status quo during the course of unfair labor practice proceedings.

Through NLRA 10(j), the NLRB may also seek an order requiring the parties to bargain, even though the union had not been certified.

During the Bush Administration, 10(j) relief was rarely if ever requested by the NLRB.

However, in October 2010, NLRB Acting General Counsel Lafe Solomon announced an initiative to increase consideration and pursuit of Section 10 (j) injunctive relief in cases that involved terminations during union organizing campaigns.

The representation proceeding in which I am involved is one of the first to benefit from this new initiative.

Last month the National Labor Relations Board filed a federal court proceeding in which they sought 10(j) injunctive relief requiring reinstatement of the 14 terminated employees and mandatory bargaining,

At the time that this article is being written, the court has not yet issued the injunction. A hearing occurred on April 20, at which the daycare management filed an opposing brief.

However, just the fact that such an application had been made and that the full resources of the newly composed National Labor Relations Board have been brought to bear on an employer who had engaged in an egregious pattern of unfair labor practices is a very welcome sign.

It was a long, hard winter, but I think spring is finally here.

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived at (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.