Refusing to Comply with an NLRB Order Can Land Employers in Handcuffs (Even If You’re Not Unionized)
By Fiona Ong - Shawe Rosental LLP
October 5, 2023
Many companies blissfully believe that they don’t have to worry about the National Labor Relations Act or its enforcing agency, the National Labor Relations Board, as long as they don’t have a union and no one is currently trying to unionize them. They’re wrong. Terribly wrong. Horribly, astoundingly, insanely wrong. And ignoring an order from the Board can have serious consequences – including being taken into custody by U.S. Marshals, as the Board made very clear in a recent press release!
As a reminder, the NLRA protects non-management employees’ rights to engage in concerted activity regarding their terms and conditions of employment for their mutual aid or protection. This right applies to all employees – not just unionized ones. And employers who violate those rights are subject to enforcement activity from the Board. All employers – not just unionized ones.
In this case, a (non-union) salon+spa fired a (non-union) employee for sending a staff-wide email raising concerns about the adequacy of COVID-10 safety protocols in the height of the pandemic. (But is it really over? I recently came down with COVID. Again.) Because the employee’s concerns impacted all employees, the Board found this to be the type of concerted activity protected by the NLRA. (You can read here for our recent discussion of when a single employee’s concerns constitute protected concerted activity).
The Board ordered the salon+spa to offer the employee her job back, pay her lost wages, expunge any termination references from its files, post a notice of employee rights at its facility, and file a certificate of compliance with the Board’s regional office. Apparently because the employer failed to do any of this, a federal court subsequently issued a ruling to enforce the Board’s order. And because the employer still failed to comply, the court held them in contempt and imposed escalating daily fines that would be forgiven if the employer complied within a week.
But still no compliance. Which is when the big guns (both figuratively and literally, because I think U.S. Marshals are armed) were pulled out. The Board asked and the the court agreed to liquidate the fines, which amounted to over $30,000 by that point, and issue a “writ of body attachment” (i.e. a bench warrant to bring someone who is in contempt of court into the actual courtroom). So the U.S. Marshals took the husband and wife owners (or, as the Board described them – corporate officials) of the salon+spa into custody and hauled them before the judge. And they finally agreed to comply with the Board’s order.
So, the lessons for employers are that (1) yes, the NLRA applies to you and your employees, and (2) do NOT ignore the Board’s order. If you don’t agree with the Board, you can appeal the order to the federal court – but simply failing to respond at all could result in armed officers showing up at your home….