Workers get their jobs back during ULP processing, judge rejects Employer’s demand that workers first prove they are authorized to work

Workers in a sales and distribution company in New York started organizing a Union.  According to the NLRB, when the boss found out, the employer began threatening the workers.  Even the boss’s attorney threatened to report the workers to immigration officials.  The employer then fired several Union activists.  The Union filed an unfair labor practice charge at the National Labor Relations Board (NLRB), requesting a remedy of reinstatement for the workers, and waited for the Board decision.

Because getting a final judgment in an NLRB case takes so long, in certain circumstances the NLRB can request a federal judge to grant a temporary “10(j)” injunction, ordering terminated employees to be reinstated prior to the final judgment.  Temporary 10(j) injunctions are granted only when the employer’s unlawful practice risks causing harm to the workers or the Union in a way that can’t be fixed if they wait until the case is finally over—such as when the employer fires Union activists in the middle of an organizing drive.

In this case, referred to as Deep Distributors of Greater NY, Inc., when the NLRB asked the federal judge to temporarily reinstate the workers pursuant to Section 10(j), the employer argued that it should not reinstate without first holding a separate hearing to determine whether the employees were authorized to work.  The employer also accused the NLRB of “unlawfully conspiring” to circumvent immigration laws.   

The court rejected the employer’s arguments, concluding that the employer “presumably” complied with the immigration laws when it hired these workers, and could not now claim they are ineligible.  This case is another example of how it is possible to beat an abusive employer, even when they threaten and intimidate immigrant workers.   

As a note of caution, in this case, the employer never presented any proof that the workers were unauthorized—if it had, the results may have been different.  Please contact your labor law counsel with any questions.

By Xochitl A. Lopez | July 27, 2016

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