Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “NLRB's $13.3M Damages Bid Is 'Outrageous,' UMWA Says,” by Beverly Banks. (Read the full version – subscription required.)

Following is an excerpt:

The United Mine Workers of America said Wednesday that the National Labor Relations Board's Atlanta office requested that it pay $13.3 million in damages stemming from an agency settlement with Warrior Met Coal Mining Inc. over the union's 16-month strike in Alabama. …

Region 10 consolidated the company's charges on three separate occasions in July, August and December 2021. After NLRB Judge Geoffrey Carter approved the settlement stipulation, the board issued an order accepting the settlement in June.

Steve Swirsky of Epstein Becker Green, who represents employers, told Law360 on Wednesday that the settlement shows the union agreed that a remedy for the National Labor Relations Act violations would be economic damages calculated by the regional office.

"There was a defined time and method, for the respondents, for the unions here to challenge the region's calculations of the damages and that would have been the point where they could attempt to prevail on the region to say you got it wrong," Swirsky said.

Swirsky said the general counsel's application for enforcement of the NLRB's order on July 7 suggests that the agency may not think the unions are complying with the settlement.

It is "not standard practice for the board" to seek confirmation of its order in every case, he said, "but clearly that is what they are now seeking to do."

Swirsky noted that this case has "a very unusual set of facts," and the UMWA, as the challenger of the calculations, has the burden of demonstrating why it thinks Region 10's assessment is "improper or incorrect, and why they should be redone or recalculated."

"I don't think [the unions] have a choice but to do it, if they think the numbers are out of whack with what they were led to believe when they entered into the settlement," he said.

While a strike can be legal, Swirsky said parties can engage in "unlawful secondary activity" when there is an interference with rights under the NLRA. 

Workers don't have the right to interfere with the company's business by slashing tires or blocking entrances, he said. 

"For example, if I want to go to work even though there's a strike, and the union doesn't want me to go to work, they can't bash me in the head with a rock; that is interfering with my rights under the act and that can be enjoined and restrained," Swirsky said.

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