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Court Decides Unfair Labor Practices Case

The National Labor Relations Act (“NLRA”) grants several rights to a wide array of employees in the private sector regardless of whether or not the employee is part of a union. For example, the NLRA allows covered employees to join as a group in an effort to address and improve the terms and conditions of employment, such as wages and working conditions.  Today’s Long Island labor law blog discusses a recent unfair practices case decided by New York’s federal appellate court.

Section 8 of the NLRA provides an extensive list detailing certain actions by employers that are prohibited and constitute an unfair labor practice. For example, an employer cannot restrict, limit, or interfere with a covered employee’s rights under the NLRA.

On March 15, 2018, in Novelis Corp., v. NLRB, New York’s Second Circuit Court of Appeals addressed various unfair labor practices committed by Novelis Corp., an aluminum manufacturer, after employees from the Oswego, New York plant location began to campaign in an effort to form a steelworker’s union.

After Novelis announced to employees that they planned to eliminate Sunday premium pay and that they would no longer allow holiday and vacation days to play a part in overtime eligibility, a group of employees began campaigning in an attempt to form a union. Eventually, Novelis refused to voluntarily recognize the creation of a union and instead, decided to hold an election that would determine whether it would accept the voluntary recognition request.

Numerous violations of Section 8 of the NLRA ultimately tainted the election results. For example, Novelis engaged in unfair labor practices by threatening employees with negative consequences if they voted pro-union, prohibiting employees from wearing union related apparel, and demoting a pro-union employee.  As a result, pro-union employees lost the election and were unable to unionize.

Shortly thereafter, pro-union employees filed a charge with the National Labor Relations Board (“NLRB”) alleging that Novelis violated Section 8 of the NLRA by engaging in unfair labor practices. The NLRB agreed and decided to, among other things, issue a bargaining order forcing Novelis to negotiate with the union that lost the election. Novelis appealed the NLRB’s decision.

On appeal, Novelis lucked out. The Second Circuit agreed with the NLRB’s determination that Novelis had violated the NLRA. However, the Second Circuit disagreed with the NLRB’s decision to issue the bargaining order based on “changed circumstances,”and refused to enforce the order. The court noted that circumstances warranting a bargaining order must be based on unlawful conduct occurring at the time the order is issued and not at the time the unfair labor practice occurred.

One of the main changed circumstances discussed in Novelis Corp., was the significant employee turnover that had occurred during the two-year lapse between when the unlawful conduct occurred and the NLRB’s decision to issue the bargaining order. Approximately one-third of the current employees had not been employed by Novelis at the time the unfair labor practices occurred.

Accordingly, the Second Circuit decided that this and other changed circumstances, did not warrant enforcing the bargaining order. The court recognized that, assuming the bargaining order ultimately resulted in the formation of a union, the result could unfairly conflict with possible anti-union views held by the new wave of employees at Novelis who had not even been involved or affected by the prior unfair labor practices.

The pro-employer decision in Novelis Corp., serves as a reminder that even though a court may ultimately rule in favor of an employer who committed serious violations, avoiding unfair labor practices goes a long way toward preventing lengthy and expensive litigation.

Famighetti & Weinick, PLLC are Long Island labor lawyers.  If you have a question about unfair labor practices, rights under the NLRA, or any other employment matter, call one of our Long Island employment lawyers at 631-352-0050 to schedule a free consultation. You can also contact us on the internet at or on Facebook.

Today’s labor law blog was written by Thalia Olaya, a Hofstra Law School intern.

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