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Fourth Circuit Orders Employer to Hire Applicants with Union Affiliation

    Client Alerts
  • July 10, 2009

The National Labor Relations Act prohibits employers from discriminating against applicants for employment because they have expressed pro-union sympathies.  Last week, the Fourth Circuit Court of Appeals (which includes North and South Carolina) took the unusual step of ordering an employer to hire applicants after a preliminary showing that they were excluded from employment due to their union affiliation.

In Muffley v. Spartan Mining Co., the defendant acquired the assets of a bankrupt West Virginia coal company.  While it hired many of the former owner’s employees, the new entity refused to hire or even interview any employees who had been members of the previous employer’s United Mine Workers local.  Following the union’s complaint, the NLRB found the alleged conduct to be so egregious that prior to its final ruling, it issued a preliminary injunction to the company to hire the union members with backpay, and to begin immediate bargaining negotiations with the union to represent employees in the new venture.

On appeal, the employer argued that the NLRB and federal courts do not have the power to order that an employer hire persons as a preliminary remedy for an unfair labor practice.  The Fourth Circuit agreed with the plaintiffs, and affirmed the NLRB’s order.  Absent the preliminary rehiring order, many of the union members may have faced retirement or the need to move to find other employment.  The court concluded that the employer was hiring new employees, and that the NLRB’s order was unlikely to displace any existing non-union employees.

The Fourth Circuit did affirm rejection of the NLRB’s preliminary order to the company to recognize the union.  Despite this qualification, this decision represents a significant victory for organized labor in a federal appellate circuit not known for its sympathy to union causes.  In this case, the apparently egregious conduct of the employer to selectively exclude union members from employment created such an intolerable legal circumstance that even the Fourth Circuit recognized the need for immediate and extraordinary legal relief.