Menards Claims NLRB Overstepped its Authority with Retaliation Charge

May 29, 2018 by Clarissa Hawes

Home improvement chain Menards is suing the National Labor Relations Board for meddling with companies it hires to deliver goods.

The Wisconsin-based retailer claims the authority NLRB is trying to assert over the company’s relationship with its independent contractors is unlawful.

The NLRB is an independent federal agency charged with enforcing the National Labor Relations Act, which protects the rights of employees, but not contractors.

Menards filed the lawsuit in U.S. District Court in Wisconsin on May 18 in response to a retaliation complaint filed by the NLRB just two days earlier on behalf of K & S Delivery Services owner Kevin Fisher, who once contracted with Menards.

The NLRB filed a misclassification complaint against the home improvement retailer on behalf of Fisher and other drivers in December 2016. The NLRB took the misclassification case to trial in August 2017. During the trial Fisher testified against Menards.

Following his testimony, Fisher claimed he received a termination notice from Menards, stating that his services were no longer needed.

He then filed a retaliation complaint against Menards stating unfair labor practices. He claimed that he was engaging in “protected concerted activities” under the National Labor Relations Act. These are activities workers may partake in without fear of employer retaliation.

Months later at the trial’s conclusion, the judge sided with Menards. He ruled that the delivery companies Menard used were independent contractors and were not misclassified as employees as the NLRB alleged.

But despite the judge’s ruling and the extended period of time from which he initially filed his unfair labor practice charge, counsel for the NLRB decided to move forward with Fisher’s retaliation complaint.

Now Menards claims the NLRB is overstepping its jurisdiction.

In its complaint, Menards said it assumed Fisher’s retaliation charge would be dismissed after the judge determined the delivery companies were independent contractors and weren’t covered under the NLRA.

“Having been unsuccessful in the first action, the board now wishes to do an end-run around that decision and extend its jurisdiction to control the relationship between Menard and its independent contractors,” according to the complaint filed by Menards.

“The [NLRB] is pursuing this action despite the clear statutory exemption of independent contractors from coverage under the [NLRA],” the lawsuit alleges.

Menards is asking the court to enter a declaratory judgment that the NLRB is exceeding its authority by filing a labor action on behalf of an independent contractor, who is not protected by the NLRA.  It also seeks court costs and attorney’s fees.

Jeff Abbott, spokesman for Menards, told the company “is unable to comment on pending litigation.”

The NLRB also declined to comment on the lawsuit.

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