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Steve Swirsky Quoted in “NPM Is Not Particularly Magnanimous? Staff Fired After Trying to Unionize – Complaints”

The Register

Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, in the firm’s New York office, was quoted in The Register, in “NPM Is Not Particularly Magnanimous? Staff Fired After Trying to Unionize – Complaints,” by Thomas Claburn.

Following is an excerpt:

Three of the five people axed from JavaScript package management biz NPM Inc last month claim bosses got rid of them for trying to form a union. …

The Register recently became aware of four complaints filed against the Oakland-based company with the US National Labor Relations Board (NLRB). Three were filed at the beginning of April, and the fourth was filed last Thursday, amid layoffs at the business.

The complaints allege the following labor law violations: “8(a)(1) Concerted Activities (Retaliation, Discharge, Discipline) and 8(a)(3) Discharge (Including Layoff and Refusal to Hire (not salting)).” Salting refers to a union member seeking a job at a non-union site in an effort to form a union there; so “not salting” refers to the absence of external motive. …

A source familiar with the situation at NPM confirmed being told about a unionization effort after the layoffs were initially disclosed and added that not everyone involved in that discussion was dismissed. Another source familiar with the company said there's been general support for the idea of unionization among employees for many months, even among some of the executive staff.

Documents provided to The Register on Monday by the NLRB in response to a Freedom of Information Act request indicate that an attempt to unionize was underway. Though the federal agency denied our request for files, in part to protect information relevant to an open investigatory probe, it provided a summary of the charges. …

Steve Swirsky, an attorney and board member of Epstein Becker Green and co-chair of the firm's labor management relations practice group, told The Register in a phone interview that it's difficult to tell what's going on from the outside.

“The more complex question here is what the evidence is and how do you establish it,” he said, noting that the employer may say firings had nothing to do with unionization but rather reflected performance problems or the need for a different skill set.

Swirsky said the next step will be an investigation by the appropriate regional office of the NLRB, and if the probe produces evidence that suggests a violation, the board will issue a complaint and notice of hearing. The remedy sought by the board, he said, is typically reinstatement with back pay.