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Hawaii Employment Law Decisions From October 12 To October 18 – Jeffrey S. Harris

Court improperly granted the NLRB Regional Director's request for a preliminary injunction requiring an employer to reopen its repair facility, reinstate employees and bargain with the union on behalf of the employees.  The Court abused its discretion by not giving serious consideration to the disruption its reopening order would cause the employees formerly located at the facility, most of whom had already accepted relocation options or severance packages. The Court also failed to meaningfully evaluate the injury to the employer from being required to reopen a facility that was and would be unprofitable due to the loss of its major customer. The Regional Director could instead protect the integrity of the bargaining process and the NLRB's remedial power by obtaining reinstatement, back pay and bargaining with the union regarding the closure decision, if the NLRB concluded that the employer closed the repair facility because of anti-union animus instead of economic motivation and the Court of Appeals enforced that decision. Overstreet v. Gunderson Rail Services, LLC, 2014 U.S. App. LEXIS 19800 (9th Cir. Oct. 16, 2014).

Note: We analyze cases to learn rules the courts will follow or disappoint us if they don't. Rules that the courts follow allow us to behave and provide explanations that they accept. But competent advocates may limit the rules to the facts of the case where they are discussed, or expand rules by showing that differences in other cases are irrelevant.

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