March 14, 2014
It was the middle of January. Customer orders for the products made in our client’s manufacturing plant had dropped precipitously. The client was profitable and wanted to avoid red ink. It responded to the sales decrease by evaluating the work performance of each of its hourly employees, ranking them from best to worst, and it laid-off the bottom twenty-one.
All twenty-one of the laid-off employees filed unfair labor practice charges with the National Labor Relations Board. They contended that they were selected for the layoff because they had supported a labor union in a previous union election at the plant. We were hired to defend the company.
An NLRB administrative law judge conducted hearings for eight days. During the hearing, the judge insisted that we turn over the client's financial records pursuant to a subpoena, but we resisted. The union that was attempting to organize the plant would have been delighted to use the financial records in the next election campaign. Instead, we offered to stipulate that the company remained profitable. The stipulation was not accepted by the NLRB general counsel, and we continued to litigate the case.
In the end, the judge approached the case as though it were twenty-one separate discrimination cases. We won them all. And we never did have to disclose the financial records.
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