Move Over EEOC: Time for an NLRB Benchslap

Just John

Over the last few weeks we have blogged on a number of judicial decisions chastising the EEOC (Another Approaching Benchslap for EEOC?, EEOC Benchslaps Just Keep Coming and The EEOC Hits Just Keep Coming!). Today we shift our focus to the NRLB and a recent case it litigated in federal court in Arizona. In Overstreet v. Farm Fresh Company Target One, LLC, No. CV-13-02358-PHX-NVW (Sept. 4, 2014), the NLRB Regional Direct sued Farm Fresh for certain alleged unfair labor practices. The NLRB sought an injunction against further unfair labor practices, but also sought the immediate and unconditional reinstatement of the employees Farm Fresh had fired. By “unconditional,” the NRLB was attempting to force reinstatement without the ex-employees going through the E-Verify process. The trial court granted very limited injunctive relief, but also categorically denied unconditional reinstatement of the ex-employees. Farm Fresh moved to recover its attorneys’ fees under the Equal Access to Justice Act (EAJA), which the trial court denied. When Farm Fresh moved for reconsideration, however, the trial court reversed itself and awarded Farm Fresh its attorneys’ fees.

The trial court made several observations that were not at all flattering for our friends at the NLRB. The court described the NLRB’s demand for unconditional reinstatement as “illegal.” When the NLRB disclaimed any attempt to obtain unconditional reinstatement, the trial court accused the NLRB of “revisionist history.” The court repeatedly emphasized that the NLRB’s demand was unjust and unreasonable, and, because Farm Fresh had prevailed on the focal point of the NLRB’s lawsuit even if it did suffer a partial injunction, Farm Fresh was the prevailing party in the lawsuit and was entitled to its attorneys’ fees under EAJA.

This is another instance of the NLRB seeking to circumvent federal and state immigration law to its own end. It is unfortunate that no amount of fee award against the NLRB would appear to dissuade it from its bent to force the employment of undocumented workers.