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Fuyao Beats Labor Case Based on Obama-Backed Netflix Film

April 21, 2020, 12:46 AM

Fuyao Glass America Inc. won’t be prosecuted for alleged labor violations depicted in a recent Academy Award-winning documentary film because the accusations were made too late, a federal labor board official decided.

Federal law typically allows workers and others to file unfair labor practice charges with the National Labor Relations Board within six months after “clear and unequivocal notice” of a violation. The clock started ticking for Fuyao workers when “American Factory” premiered at the Sundance Film Festival in January 2019, a board official said Monday.

David Gomez, a lawyer with the Oakland City Attorney’s Office, filed a charge against the Chinese-owned, Ohio-based glass manufacturer a day after the documentary was made available for streaming on Netflix in August 2019. The film, produced by former President Barack Obama and his wife Michelle’s production company, depicted scenes in which company managers appeared to threaten to retaliate against workers if they chose to unionize. Factory employees eventually voted against unionizing.

Although the movie didn’t reach a wide audience until its premier on the popular Netflix streaming service, NLRB Acting Regional Director Patricia Nachand said the charge was already too late when it was filed. That’s because a former Fuyao employee saw the film at its 2019 Sundance screening, Nachand said.

“The investigation disclosed that the alleged unlawful statements were made while the documentary was being filmed in 2017 by independent filmmakers and that they were made outside the presence of employees,” she said. “The investigation further disclosed that the statements were disseminated 2 years later when the producers of American Factory debuted the film at the Sundance Film Festival on January 25, 2019, and that at least one former employee of the Employer was present at the festival.”

Fuyao representatives didn’t immediately respond to requests for comment.

Nachand added that prosecuting Fuyao for the alleged violations wouldn’t further the purposes of federal labor law because the company has already settled other charges involving conduct that happened during the filming. Fuyao agreed to post notices at the factory informing employees of their rights on the job, according to Nachand.

She also said some of the retaliatory comments at issue in the case wouldn’t have been found illegal in any case, because employees didn’t overhear them.

Gomez says he plans to appeal the decision.

Board’s Advice Division Weighed In

The case was sent to the NLRB’s Advice Division at agency headquarters in Washington, D.C.—an unusual step reserved for important or novel cases—for input, according to a document reviewed by Bloomberg Law. The office is headed by board General Counsel Peter Robb (R), who’s made a push to roll back worker friendly policies and precedents and consolidate his office’s authority over cases filed at the NLRB’s regional offices.

Gomez said he disagrees with the board’s legal interpretation because he didn’t work for Fuyao, didn’t attend the film festival, and wasn’t aware of the alleged violations until he watched the film. Federal laws allow for non-employees to file an unfair labor practice charge against a business if they’re aware of potential labor violations.

“On the bright side, the precedent is so clear that they cannot outright deny that the limitations period only commences when a party has clear and unequivocal notice of the violation, so instead the NLRB says I should have attended Sundance,” Gomez said.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com