Moving Work Out of the County in Retaliation For a Strike Is An Unfair Labor Practice

Marianne Robbins

It is well established that an employer commits an unfair labor practice if it discharges an employee because he engages in protected concerted activities such as a lawful strike.  But, what happens if an employer fails to recall employees claiming a reduction of work caused by transfer of work to Mexico because of a strike?  In its decision issued August 17, 2016 in Amglo Kemlite Laboratories Inc. vs. NLRB, the Seventh Circuit affirmed the decision of NLRB that the employer’s transfer of work to Mexico in retaliation for a strike was an unfair labor practice and enforced the NLRB’s order that the work be returned to Illinois, full reinstatement be offered to the employees who lost their jobs as a result of the transfer and employees be made whole for earnings and benefits lost as a result of the transfer.

There was no dispute the strike was protected under the National Labor Relations Act and that the company transferred at least some work from Illinois to Mexico.  There was also sufficient evidence that the strike was at least a motivating factor in the transfer. Management made statements to employees at the beginning of the strike discussing globalization and threatening to fire employees if they struck. Later management stated that the company was moving work to Mexico “because of the situation.” Additionally the transfer of work occurred soon after the strike began.  The Seventh Circuit also noted the Board’s finding that the employer had recently increased the workforce undermining any claim that the transfer had been planned before the strike.

Finally, the Seventh Circuit rejected the employer’s argument that the General Counsel had failed to prove the extent of the transfer of work and that the transfer was “minuscule.”  The Seventh Circuit noted that the actual extent of the work transfer would be determined at the compliance trial. In any case there was evidence that the transfer had adversely affected employees; the employer had told twenty two (22) employees out of ninety four (94) that they could not return to work in part because of the transfer of work to Mexico.  Other employees were told that the timeline for their return could not be determined because of the transfer of work to Mexico.

This case confirms an important principle that transfer of work in part because of protected collective action is illegal. Motivation can be established by negative management statements and can be directed at any form of protected concerted activity including organizing a union, negotiating a contract or pursuing grievances, as well as strike activity and other concerted protests concerning wages, hours and working conditions.