[author: Richard M. Albert]

Various decisions of the Obama-era NLRB have come under scrutiny as many have questioned whether a pro-labor bias has motivated the NLRB in recent times. Whether those decisions are correct or necessary, it hard to argue against the perception that the NLRB in recent years has made deliberate efforts to assist organized labor and limit the prerogatives of management in the arena of union activities. The most recent example of such a decision arises in the recent case of Evenflow Transportation, Inc., decided by the NLRB on July 3, 2012. In that decision, an employer was faced with organizing activities by some of its employees. Evidence was produced that the employer unlawfully interrogated several employees about their activities, and made what was deemed to be a threat against another employee suspected of speaking with union representatives. Ultimately, the employer laid off five employees — three of whom were believed to have been involved in organizing activities, as well as two other employees who worked alongside those three.

Relying on traditional standards of motivation and causation, the NLRB held that the five layoffs were the result of illegal anti-union motivation, and found such layoffs to be illegal. Had the NLRB stopped its analysis there — which it easily could have — the case would not be remarkable. However, it did not do so.

In its decision in Evenflow, the NLRB went on to find that even if the employer had no idea whether the five laid-off employees were or were not engaged in union activities, their layoffs would still be illegal. In so doing, the NLRB relied on the so-called “mass discharge theory,” under which the NLRB found that the employer had acted “to send a general message of warning or retaliation” to its workforce by initiating the layoffs. The NLRB further commented that under that theory, it did not matter whether the specific employees impacted were or were not involved in union activities. Instead, the NLRB found that the employer had demonstrated clear anti-union sentiments, and that the layoff involved in Evenflow was therefore tainted regardless of the specific activities or sympathies of the employees impacted.

The mass discharge theory has been utilized in several previous NLRB decisions and court cases, albeit under different circumstances than are involved here. Regardless, the decision is troubling for a couple of reasons: 1) the NLRB went out of its way to apply the theory even though it had not been alleged by the NLRB attorneys handling the case, and 2) the language in Evenflow discussing the mass discharge theory is broadly written and could be applied to render unlawful otherwise innocent and legitimate employer actions that take place during known or suspected union organizing.

It remains to be seen how Evenflow will be used in the future. Employers can hope it will be limited to the particulars of that case and not be expanded to put employers at risk for otherwise lawful actions undertaken during periods of employee protected activities. Time will tell.