Is back pay tolled? 'Oh, God, no.'

The 6th Circuit upheld a National Labor Relations Board (NLRB) decision refusing to toll (suspend) the back pay obligation of an employer that was unsuccessful in defending an unfair labor practice (ULP) charge.

Facts

Lou's Transport hired Michael Hershey as a union truck driver in July 2012. Shortly after, he used a company radio to discuss the poor working conditions at Lou's with another driver. Following the discussion, he began making homemade signs that referenced the working conditions and other matters, which he displayed in his truck.

In March 2013, Hershey volunteered at a safety meeting that "drivers were upset because of the dangerous road conditions." Two days after the meeting, Lou's searched his truck and found 16 homemade signs. He was terminated the same day.

In 2016, after a long battle at the NLRB, the 6th Circuit upheld a ruling that Lou's Transport violated the National Labor Relations Act (NLRA) by terminating Hershey for protected union activity. Specifically, the court affirmed the Board's finding that the employer terminated him for his conversation about working conditions over the company radio, which it determined was protected concerted activity.

Back pay calculation dispute

Whenever the NLRB determines employers have violated the NLRA, it must order them "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of the Act."