National Labor Relations Act

On October 28, 2014, the National Labor Relations Board (the “Board”) again held that employers violate Section 7 of the National Labor Relations Act (“NLRA”) when they require employees to sign class action waivers as a condition of their employment.  The Board first so held in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012).  Although numerous courts have since rejected the Board’s reasoning in D.R. Horton, the Board nonetheless reaffirmed its position, meaning that employers who maintain such agreements will continue to face significant hurdles to their enforcement.

In Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014), the employer (“Murphy Oil”) required, as a condition of employment, that all employees sign a Binding Arbitration Agreement and Waiver of Jury Trial (the “Agreement”).  The agreement specifically provided:

Continue Reading NLRB Won’t Budge on Class Action Waivers: Finds that Murphy Oil’s Mandatory Arbitration Agreements Violate the NLRA

Following a trend that has developed over the last several years,[1] the National Labor Relations Board (the “Board”) recently found that the termination of a Starbucks employee violated the National Labor Relations Act (the “NLRA” or the “Act”), even though the employee had engaged in extremely offensive, obscenity-filled conduct in the presence of customers.[2] During his off-duty hours, the employee, who was supporting a union organizing effort, entered a different location from the one where he worked and engaged in a profanity-laced confrontation with a store manager in the presence of customers.

This was the Board’s second look at the case.  Initially, the Board held that the employee’s conduct did not lose its “protected” status under Section 7. [3] The Board also found that the employer’s rule prohibiting employees from wearing more than one pro-union button while on duty violated Section 7 of the Act. When that decision was reviewed by the Second Circuit Court of Appeals, the Court found that the Board’s decision violated both previous court decisions and the Board’s own precedent. Continue Reading When Does “Offensive” Employee Conduct Lose Protection Under the NLRA?

Readers of our series of posts on D.R. Horton will recall our prediction that the National Labor Relations Board (NLRB or the Board) would continue its attacks on certain arbitration agreements.  As predicted, the NLRB’s administrative law judges (ALJ) continue to strike down any arbitration agreements that waive class or collective action claims and allow arbitration of only individual claims.  The ALJs consistently find that such agreements violate employees’ Section 7 rights to engage in protected concerted activity. Continue Reading Delay in Supreme Court Review of D.R. Horton Continues to Cost Employers Enforcing Arbitration Agreements

In a split decision, the Fifth Circuit Court of Appeals has rejected the view of the National Labor Relations Board (the Board). According to the Court’s majority opinion, an arbitration agreement that requires employees to arbitrate all employment disputes but restricts the arbitration proceedings to individual arbitrations only (i.e., not allowing class or collective arbitrations) does not violate Section 7 of the National Labor Relations Act. D. R. Horton v. National Labor Relations Board (December 3, 2013). The Board is considering an appeal.

Why is this important? Continue Reading NLRB Loses Appeal in D.R. Horton: Arbitration Agreements Can Require Only Individual Arbitration, But …

In a recent decision involving The Boeing Company1, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) found that Boeing violated the National Labor Relations Act (NLRA) when the Human Resources manager at its North Charleston, South Carolina plant, told an employee that he could not “talk about or solicit” for the Machinists’ Union “on company time.” The employee asserted that a supervisor had reported to the HR manager that employees had overheard the employee speaking about the Union on company time.

The employee admitted that he was aware of the Company policy providing that he could speak with employees before and after work, and during lunch and break times, provided that those to whom he was speaking also were on break or lunch times. According to the employee, however, the HR manager told him that she wanted to “make sure he was aware of that and asked him to repeat after her that he would not talk about the Union on Company time.” Continue Reading Check Your Enforcement of Your “No Solicitation and No Distribution” Rule

The National Labor Relations Board (NLRB, “the Board”) is at it again. In a recent ruling, the Board found an employer’s routine “courtesy” policy violated its employees’ Section 7 rights. Time will tell whether a federal court will agree with the Board and enforce its decision, but employers should take note of the current regulatory environment and the Board’s aggressive view in examining company policies.

In a split 2-1 decision recently issued by the NLRB (Karl Knauz Motors, Inc., 358 NLRB No. 164 (9/28/12)), the Board found that an auto dealership’s maintenance of an employee handbook provision requiring every employee to display “courtesy” toward customers, vendors, suppliers and fellow employees, violated Section 7 of the National Labor Relations Act (the “Act”)1. The majority, consisting of Chairman Mark Pearce and Member Sharon Block, found that the courtesy policy was “overbroad” and interfered with employee rights. They reasoned that employees “. . . would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’” to include protected Section7 activity such as statements objecting to or seeking to improve working conditions. Continue Reading Does Your “Courtesy” Policy Violate the NLRA?

As a matter of federal law, employers can require employees to agree to arbitrate any employment dispute.  But, can that arbitration agreement force an employee to arbitrate only individual claims, not class (or collective) claims?  Recently, the National Labor Relations Board said NOClick here for the Board’s ruling.

This ruling appears at odds with a ruling by the United States Supreme Court in AT&T Mobility LLC v. Conception.  There, the Supreme Court considered a California state law that invalidated any arbitration agreement that included a mandatory waiver of class claims.  The Supreme Court noted that the right to pursue class claims is a procedural right, not statutory, and overturned the California law.  Some employers then adopted arbitration agreements that included waivers of an employee’s ability to pursue class or collective actions.  Continue Reading Labor Board Rules that Arbitration Agreements Forbidding Class Arbitration is Unlawful

According to the National Labor Relations Board (NLRB), a Union engages in objectionable conduct if, during a union campaign drive to represent workers, the union finances a lawsuit seeking to recover overtime pay for the same employees being recruited to vote for the union.  This decision is important for two reasons:

  1. Employers facing an overtime pay lawsuit have a stronger argument for using the discovery tools in that lawsuit to find out if a union is “financing” the lawsuit.  Depending upon the circumstances, a union’s financial support to the employees as part of recruitment efforts for unionization may support an employer’s request to extend this ruling beyond its current reach.
  2. Employers who learn of organizing efforts by a union should conduct an internal assessment of their pay practices as part of getting their houses in order.  Trying to “stir up” an overtime pay lawsuit is becoming a common tactic in such organizing efforts. Continue Reading Union’s Financing Of Lawsuit Objectionable Conduct During Union Campaign

Social media sitesThe NLRB’s Division of Advice recently issued memoranda in several different cases, showing that not all activity by employees on social media sites constitute protected activity.  These reports show that the Labor Board, like many employers, struggle with what is “protected concerted activity” – and thus protected from any employer discipline – and what are mere individual gripes – and most likely not protected.

The NLRB’s attempt to provide guidance in these memoranda does show the Labor Board’s adoption of a more realistic view of what is protected activity on social media than some had feared (and more realistic than some critics had charged).  In short, “protected concerted activity” even on social media must show more than an individual employee’s private complaint or gripe about her/his employer. The employee must be expressing group complaints (acting “with or on the authority of” other employees) and generally must be interacting with employees in such expression. Forbes.com posted a good article illustrating the differences. In one instance, the NLRB even examined whether a particular employee’s Facebook wall included ‘friends’ who were co-workers. Continue Reading Labor Board Report Shows Its Struggles with the Realities of Social Media