Workers at a lighting manufacturer went on strike to demand higher wages. During the strike, management threatened to fire half the workers and transfer jobs to Mexico. After the strike ended, some jobs were moved to Mexico. The NLRB found the company guilty of unfair labor practices and retaliation. The court upheld this, noting the threats during the strike and suspicious timing of the job transfer. Employers cannot legally transfer jobs in response to union activity like strikes.

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Back in 2011, several non-unionized employees who worked for a lighting
products manufacturer complained about their wages and asked the plant
manager for a raise. The request was turned down. Shortly thereafter, the
company's president visited the Illinois plant and all 94 of the local workers
went on strike.
The visiting president reaffirmed that no raises were being given. She told
workers that if confronted with a strike and demands for more money, the
company's owner had ordered her to fire half of them. The owner, she said,
wouldn't tolerate being threatened and wouldn't back down.
"You're going to lose," she told them, and, with a stack of resignation forms in
her hand, added that if they didn't like their wages, they could quit.

3. Threat of Job Relocation
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The court's opinion shows that during the same meeting with the striking
workers, the plant manager "discussed globalization and explained that
companies can move production to China and Mexico." The company already
had production facilities in both countries.
Unmoved, the employees remained on strike. About a week later, however,
most of them agreed to return to work unconditionally. The company then
rehired all but 22 of the employees and said some of the work that was
previously done in that facility was going to Mexico, "because of the
situation." Management did stipulate that if more employees were needed in
Illinois, they would rehire the 22 before hiring any new employees. That didn't
happen.

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Informed of the situation by the workers, the National Labor Relations Board
(NLRB) investigated. It concluded that the company had engaged in unfair
labor practices by:
• Threatening to fire employees for striking, and
• Transferring work to Mexico in retaliation for the strike.
The NLRB ordered the company to return the transferred work to Illinois. They
were also required to offer full reinstatement to any employee who lost his or
her job as a result of the transfer, and make employees "whole" for earnings
and benefits lost as a result of the transfer.

5. Unfair Labor Practices
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In response to the NLRB order, the company sought help in the court system,
and the case eventually went to the U.S. Court of Appeals for the 7th
Circuit. In
its ruling, the court called the company's actions an unfair labor practice
based on language from the National Labor Relations Act (NLRA). According to
the NLRA, an employer may not "interfere with, restrain, or coerce employees
in the exercise" of their right to "engage in concerted activities for the
purpose of collective bargaining, or other mutual aid or protection.“
The focus of the dispute was whether transferring work to Mexico violated
that part of the law. The employer disagreed with some evidence the NLRB
used to reach its conclusion, but the appeals court was unimpressed. Citing a
ruling on a similar case the year before, the court stated that it applies a
"deferential standard of review." That standard includes weighing whether
the NLRB's findings "are supported by relevant evidence that a reasonable
mind might accept as adequate."

6. Assessing Motivation
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The court stated that if the company's purpose in transferring the jobs was
rooted in "animus towards the employees because of the strike," the transfer
would be unlawful.

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In concluding that was the case, the court listed the following factors:
• The president's discussion of globalization was an implicit warning to
employees that continuing to strike would mean jobs would be
transferred to foreign facilities.
• The company "showed hostility to the strike, including by threatening to
fire half of the employees on the first day.“
• The president told striking employees the company was moving jobs to
Mexico because of the strike.
• The plant manager conceded during the NLRB's investigation that the
company had accelerated existing plans to transfer work because of the
strike.
• The timing of the transfer, so soon after the strike, was "suspicious."

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The employer tried to convince the court that the number of jobs transferred
to Mexico was minuscule. Though there was no specific evidence of how
many new jobs were created in Mexico, based on the overall case, the court
was convinced the number was not small.
The bottom line is clear: Moving jobs away from a company location in
response to employees' request for higher wages is a violation of the NLRA.
While you might undertake shifting some jobs around for other reasons, it's
important to be mindful of how the NLRB or a court might try to assess your
motivation.
As with any significant decision affecting multiple employee jobs, it's prudent
to consult with a labor attorney before acting.

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10. 14550 Torrey Chase Blvd., Ste. 360 Houston, TX 77014 USA
www.hrp.net
E-mail : info@hrp.net
Toll Free
Phone
Fax
:
:
:
877.880.4477
281.880.6525
281.866.9426