Interim Rehiring of Fired Strikers Not ‘Just and Proper’

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By Lawrence E. Dubé

An Alabama manufacturer won’t be required to reinstate 14 employees while the National Labor Relations Board considers whether they were illegally fired, a federal district court ruled June 2 ( McKinney ex rel. NLRB v. Citmed Corp. , 2017 BL 186643, S.D. Ala., No. 17-0234-KD-M, 6/2/17 ).

The decision shows that some courts will question the need to supplement the NLRB’s administrative remedies with an injunction even where the board has strong evidence of unfair labor practices.

The NLRB has reasonable cause to believe Citmed Corp. illegally fired employees for engaging in a brief strike against the company, Judge Kristi K. DuBose of the U.S. District Court for the Southern District of Alabama said. But the NLRB didn’t offer enough evidence to show the court should issue a preliminary injunction putting the employees back to work.

DuBose said the board failed to demonstrate that employees will move away if they are not promptly reinstated to their jobs. She also said there was also no specific evidence that the firings have had a “chilling effect” on other employees that requires immediate action by the court.

Injunction Sought After Strikers Fired

Sixteen Citmed machinists walked out of the medical product maker’s plant in September 2016 to protest a change in work rules, according to the court. The same day, Citmed told the workers they had violated its policy that employees should call in advance before missing work.

Citmed suspended the employees from working the following Monday, and when 14 of the workers used the day to picket the Alabama plant, Citmed fired them.

An NLRB regional director issued a complaint alleging the company’s action was unlawful retaliation for protected activity. The complaint will be heard in July by an administrative law judge.

The board authorized the regional director to seek a preliminary injunction under Section 10(j) of the National Labor Relations Act, which empowers courts to issue orders to prevent or remedy unfair labor practices during the NLRB’s often-lengthy administrative process.

Section 10(j) allows a federal court to grant a preliminary injunction when it is “just and proper,” but DuBose said the NLRB failed to make a case for such relief.

Court Denies Interim Reinstatement

The NLRB argued that employees may scatter away from Citronelle, Ala., where the Citmed plant is located, if they aren’t offered reinstatement soon. The result, the board said, would be that Citmed would have successfully rid itself of employee activists. However, DuBose said the NLRB didn’t present evidence that any employee has moved away yet.

The board contended that Citmed’s treatment of the strikers has intimidated other employees, but DuBose said there was no showing that any employee has shied away from NLRA-protected activity because of the company’s actions.

A preliminary injunction under the NLRA, particularly one requiring interim reinstatement of employees, is an “extraordinary” measure, DuBose said. Such an injunction isn’t supported by the evidence.

An attorney for Citmed declined to comment on the court’s ruling.

NLRB attorney Beauford D. Pines in New Orleans represented the board. John W. Hargrove of Bradley Arant Boult Cummings LLP in Birmingham, Ala., represented Citmed Corp.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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