NLRA | Labor and Employment Law blog

D.C. Circuit Court of Appeals Strikes Down NLRB Posting Requirement

Posted on May 8, 2013 by smithamundsen

Contributed by Jeffrey A. Risch, Esq.

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board’s (NLRB) regulation requiring businesses to post notices of worker rights to engage in pro-union activities, or be subject to punishment, violates federal labor law. (Nat’l Ass’n of Mfrs. v. NLRB, D.C. Cir., No. 12-5068, May 7, 2013).

Writing for the Court, Justice Raymond Randolph held that the National Labor Relations Act (NLRA) precludes the NLRB from forcing employers to post in workplaces government speech through threat of unfair labor charges and/or the tolling of the NLRA’s statute of limitations in cases in which an employer failed to display the required notice.

The “post or else” notice communicated, among other points, to employees that they have the right to:

organize a union to negotiate with their employer about wages, hours and working conditions;
form, join or assist a union;
bargain collectively with their employer;
discuss wages and benefits and other terms or conditions of employment or union organizing with co-workers or a union;
strike and picket, depending on the purpose or means of the strike or the picketing; and
choose not to do any of these activities, including joining or remaining a member of a union.

Although the decision did not directly address the NLRB’s authority to promulgate such rules under Section 6 of the NLRA, the concurring opinions (Justices Karen LeCraft Henderson and Janice Rogers Brown) added that they would also find that Congress did not intend “to authorize a regulation so aggressively prophylactic as the posting rule.”

In short, this is indeed a psychological blow to BIG Labor. Most importantly perhaps, this may take some of the proverbial wind out of the NLRB’s sails and its decidedly pro-labor agenda.

For now, employers can ignore, remove or cover up this posting. The longer term effects remain to be seen.

Filed under: National Labor Relations Board | Tagged: NLRA, NLRB, United States Court of Appeals for the District of Columbia Circuit | Leave a Comment »

The Ends Do Not Justify The Means – D.C. Circuit Court Orders NLRB to Explain Itself

Posted on December 20, 2012 by smithamundsen

Contributed by Beverly Alfon

Over the last several months, the National Labor Relations Board (NLRB) has continued to pick at common employment handbook provisions such as company investigation policies, policies prohibiting defamatory or disparaging comments, confidentiality policies, and social media policies. Recent Board decisions and various memoranda from the NLRB’s General Counsel have bolstered the perception among employers that anything goes so long as the ends justifies the means.

Last week, however, the U.S. Court of Appeals for the District of Columbia Circuit had the opportunity to review a Board decision related to an employer’s policy banning insulting, provocative, and confrontational messages on employee clothing and the enforcement of that policy with respect to an employee’s union-sanctioned t-shirt (Medco Health Solutions of Las Vegas Inc. v. NLRB, D.C. Cir., No. 11-1282, 12/14/12). The Court remanded the case back to the Board, reasoning that the Board failed to explain how the employer violated the National Labor Relations Act. Specifically, the Court emphasized the Board’s complete departure from the framework that it established in another case, Lutheran Heritage Village-Livonia. In Lutheran Village, the Board held that an employer’s rule that neither expressly nor inherently restricts protected activity violates the NLRA only if: (1) the rule was promulgated in response to union activity; and, (2) a reasonable employee would construe the rule to prohibit protected conduct. According to the Court, neither factor from Lutheran Village was met here.

As a result, although the Court agreed that the employee was engaged in protected activity when he wore the t-shirt to work, it declined to approve the Board’s failure to respond to the Company’s “straightforward” argument that it prohibited the shirt because it was insulting to the company and harmful to the company’s effort to attract and retain customers and failure to identify what evidence it required from the company to support its position.

Bottom line: The D.C. Circuit’s remand order in the Medco Health Solutions case sends a clear message to the Board that it must do a better job of explaining and supporting its rulings. However, it will not curb the NLRB’s active scrutiny of common employment policies and handbook provisions. Employers must remain alert regarding NLRB determinations in this area and consider the factors set forth in the Lutheran Heritage Village case before disciplining an employee for conduct that may be protected by the National Labor Relations Act.

Filed under: Employment Policies, National Labor Relations Board | Tagged: employment handbook, National Labor Relations Act, National Labor Relations Board, NLRA, NLRB, Policy | Comments Off

NLRB Memo Clarifies At-Will Employment Position

Posted on November 1, 2012 by smithamundsen

Contributed by Terry Fox

We recently wrote about the NLRB taking the position that at-will employment clauses with employer’s personnel handbook violated the collective action provisions of Sections 7 and 8 of the National Labor Relations Act (NLRA). On October 31, 2012, the NLRB’s Office of the General Counsel issued Advice Memoranda in two cases where employees claimed at-will statements violated the NLRA.

In the case of Rocha Transportation, CA.32-CA-086799, the employer’s handbook language stated that employment is at will, and provided that:

“No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.” Advice Memorandum, p.1.

That language was found NOT to violate the NLRA’s guarantees of collective action by employees due to the language only precluding certain employer’s representatives from entering into a contract for a specified term. Thus, the General Counsel concluded, the provision could not be read by an employee to preclude collective activities.

The handbook provision at issue in SWH Corporation, 28-CA-084365, stated “No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.” Advice Memorandum, p.1.

The General Counsel concluded that language was not offensive to chill Section 7 collective action rights, because it is commonplace language used by employers not to preclude unionization-type activities but, instead, to defend against an employee claiming the handbook created contract rights.

In both Advice Memoranda, the NLRB observed that the case of American Red Cross Arizona Blood Services, was resolved by an administrative law judge and did not reach Board review, suggesting the result would have been different if reviewed by the Board. The Memorandums also distinguished American Red Cross by the provision in that handbook in that case requiring the employee to sign her agreement that she could do nothing to change the at-will status. However, each Memoranda concludes with the direction for all regions of the NLRB to submit all cases involving handbook provisions to the Division of Advice.

It appears that the tempest created over the Red Cross decision has subsided, at least temporarily, and employers can take that issue off the front burner. A review of the at-will provision in your handbook should be considered, however, to ensure that it is consistent with the NLRB’s recent determination just in case . . . .

Filed under: National Labor Relations Board, Employment Policies | Tagged: NLRB, NLRA, at-will, advice memoranda, Rocha Transportation, SWH Transportation, American Red Cross Arizona Blood Services | Comments Off

The NLRB Strikes Again-COSTCO SOCIAL MEDIA POLICY

Posted on October 9, 2012 by smithamundsen

Contributed by Julie Proscia

On September 18, 2012 a three-person NLRB panel held that Costco’s policies regarding the Internet and social media were “too broad” and could effectively stifle employees’ right to free speech under the National Labor Relations Act (NLRA). This move was an evolution of previous general counsel’s guidance and the first time that the NLRB officially held that a social media policy violated Section 8(a)(1) of the NLRA.

The “Electronic Communications and Technology Policy” in Costco’s employee handbook advised employees to, “be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.” The NLRB found that this policy was too broad and prevented employees from engaging in protected discussions regarding the terms and conditions of their employment.

Not only did the NLRB strike down the social medial policy, but it also criticized and struck down four other provisions in the employee handbook. These included provisions relating to the dissemination of confidential information including prohibitions regarding discussion of seemingly confidential matters like employees contact information, FMLA leaves, ADA accommodations and workers’ compensation injuries. Like the Electronic Communications Policy the NLRB found that the provisions restricted discussions relating to terms and conditions of employment and as such was too broad.

This leaves employers in an even larger quandary trying to protect their confidential information and the reputation of the company while maintaining compliance with an ever evolving and seemingly broader definition of protected and concerted activity. It is even more important for employers to diligently update their policies and procedures to ensure that they are not the next in the social media expansion pack.

Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, Case 34–CA–012421.

Filed under: National Labor Relations Board, Social Media | Tagged: Costco, NLRA, NLRB, social media policy | Comments Off

Employer Beware! Confidentiality and Integrity of Workplace Investigations At Risk

Posted on August 29, 2012 by smithamundsen

Contributed by Beverly Alfon

Whether you are operating with a union workforce or non-union workforce – this warning applies to you. When an employee engages in misconduct, most employers prudently begin an investigation before meting out discipline. These investigations often involve speaking to the alleged offender and other potential witnesses. In the interest of protecting the integrity of the process, employers routinely ask the interviewees to refrain from speaking with others regarding the investigation or any related matters while the investigation is pending. The National Labor Relations Board has found that this routine request is unlawful.

In Banner Health System, d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), an employer’s HR consultant read from a prepared script on an “Interview of Complainant” form that the employer regularly used to begin investigatory interviews of employees. One of the standard statements instructed the witness that s/he was prohibited from discussing matters related to the investigation until the investigation was complete. The Board found this directive to be a violation of the National Labor Relations Act. It reasoned that the uniform directive “had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights” to engage in protected concerted activity. The employer should have first determined whether or not it had “a legitimate business justification that outweighs employees’ Section 7 rights.” The Board’s disapproval was focused on the employer’s “blanket approach” of imposing the confidentiality restriction for every investigatory interview. Instead, the Board explained that an employer must make a determination, on a case-by-case basis: “(i) whether witnesses [need] protection; (ii) evidence [is] in danger of being destroyed; (iii) testimony [is] in danger of being fabricated; or (iv) there [is] a need to prevent a cover-up.” If one or more of these conditions exist, then an employer will have a stronger basis to argue that its interest in protecting the integrity of the investigation outweighs the employees’ Section 7 rights.

So, now what? Review your investigation policies, procedures and forms. They may need to be tweaked to remove any language that may be interpreted as creating a blanket prohibition against the discussion of workplace investigations among employees. Also, consider the inclusion of a four-point checklist on investigatory forms/documents to document a case-by-case consideration of the Board’s factors – before issuing a confidentiality directive to a witness. Where a confidentiality directive would not be appropriate, “blitz” interviews or sequestering witnesses may be an option to preserve the integrity of the investigation.

Filed under: National Labor Relations Board | Tagged: confidential, investigations, NLRA, NLRB | Comments Off

A Second California Court Rejects the NLRB’s Holding in Horton and Enforces a Class Action Waiver

Posted on August 24, 2012 by smithamundsen

Contributed by Jill Cheskes

Several months ago, a California Court of Appeal upheld a class action waiver and compelled arbitration of an employee’s wage and hour claim following the Supreme Court’s AT&T Mobility case. In doing so, the court rejected the NLRB’s determination in D.R. Horton Inc. that such a class action waiver violates the NLRA. A second California appeals court has followed suit in Nelsen v. Legacy Partners Residential Inc.

The court called the Horton ruling a novel interpretation of the NLRA and held that absent specific statutory language or clear legislative history of Congress’ intent, the NLRA would not override an arbitration agreement entered into between two parties – even one that included a class waiver.

In this case, the plaintiff worked as a property manager for the employer and about a year after her employment ended, she filed a putative wage and hour class action against the employer under the California Labor Code as well as the California Unfair Competition Law and Business and Professions Code. After the court granted the employer’s motion to compel arbitration, the plaintiff appealed.

The Court of Appeal rejected the argument that the agreement was unconscionable and violated California public policy. The court found that the agreement precluded the plaintiff from filing a class action and also from pursuing class arbitration.

In speaking of Horton and the NLRB’s holding that a class arbitration waiver violated the NLRA, the court declined to follow it “for a number of reasons.” First, the court noted that only two board members had approved the decision. Additionally, the court found that the NLRB stepped outside its “core expertise” when deciding on the interplay between class action litigation, the Federal Arbitration Act and the NLRA. Finally, the court found that the board offered no precedent to support its decision.

Once again, while Horton may hold some precedential value for NLRB matters, the courts seem to have little regard for its reasoning or precedential value.

Filed under: National Labor Relations Board, News & Tips | Tagged: AT&T Mobility, Horton, NLRA | Comments Off

National Labor Relations Board Attacks Employment At-Will Doctrine

Posted on July 2, 2012 by smithamundsen

Contributed by Terry Fox

In remarks to the Connecticut State Bar Association’s annual meeting on June 11th, the NLRB identified that the next big enforcement focus will be on employers’ “at-will” statements within employee handbooks. Lafe Solomon, acting NLRB General Counsel, stated at the meeting that provisions asserting that employment is “at-will” and can be changed only in writing by a senior company official, violate the NLRA because an employee could reasonably believe that type of clause means even union representation and collective bargaining will not alter his or her at-will status, therefore attempts to organize would be futile. That violates the collective action portion of Section 7 of the NLRA.

At-will employment, a creature of state law, is the doctrine that provides that the duration of employment is for no particular term and either the employee or employer may end the relationship without notice. The opposite of “at-will” is employment for a set period, normally requiring termination only “for cause.”

Hyatt Hotels was hit with an NLRB complaint filed February 29^th of this year (Case Number 28-CA-061114 filed in Phoenix, Arizona). While it predominantly involved social media issues, the NLRB alleged that the following phrases were discriminatory:

I understand my employment is “at-will”
I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and . . . Hyatt’s Executive Vice President . . .
The sole exception [to employer’s right to change handbook and other policies] to this is the at-will status of my employment, which can only be changed in a writing signed by me and [Hyatt Executive].

The NLRB alleged that this language constituted the employer interfering with, restraining, and coercing employees in the exercise of rights guaranteed by the NLRA. It was recently announced that Hyatt agreed to change those polices, in response to the NLRB’s complaint, on a nationwide basis. (http://hr.cch.com/eld/Hyattsettlement.pdf) The Hyatt action by the NLRB comes after the decision in American Red Cross Arizona Blood Services Region, Case No. 28-CA-23443, decided February 1, 2012. (http://hr.cch.com/eld/RedCrossALJ.pdf).

In Red Cross, the administrative law judge held that similar language violated the NLRA’s Section 7 rights, although for tenuous reasoning. The reasoning was based on the government’s argument that the acknowledgement in effect constituted a waiver by which the employee agrees his or her status cannot change, which thereby effects a relinquishment of rights to advocate concertedly, whether represented by a union or not, to change at-will employment status. This is in light of undisputed testimony that the employee at issue did vehemently engage in concerted activities.

It appears that the NLRB’s focus on social media and altering the employment-at-will doctrine is interjecting federal standards into state contract relationships, with an end game of promoting employee leverage against employers policed by the NLRB. Notions of “free speech” under Section 7 are being articulated by the NLRB, even in private segment workplaces. Perhaps for those non-union employees, the NLRB seeks to fill the void created by the free marketplace rejection of union representation – by fiat. Employers are encouraged to have their personnel policies reviewed by competent legal counsel, to reduce the risk that the NLRB can take issue with the receipt provided by their employees.

Filed under: National Labor Relations Board, News & Tips | Tagged: employment at-will, Hyatt, Lafe Solomon, NLRA, NLRB | Comments Off

NLRB Continues To Flout Supreme Court on Arbitration Agreements

Posted on May 23, 2012 by smithamundsen

Contributed by Terry Fox

On April 30, 2012, the NLRB filed a complaint against California-based 24-Hour Fitness, based on the company’s use of employment arbitration provisions. The 24-Hour Fitness written waiver provided that employees would arbitrate employment disputes in a single-employee arbitration. According to the NLRB, that employer policy violates Section 8(a)(1) of the National Labor Relations Act by interference with employees’ rights to collective action provided in Section 7.

24-Hour Fitness is a union-free workplace. It provided an opt-out from the waiver, if the employee provided a signed company form within 30 days of signing the waiver. Previously, the NLRB filed a complaint against D.R. Horton, Inc., based on the same theory. The D.R. Horton decision invalidated the arbitration agreement between the employer and employee. D.R. Horton is currently on appeal. The NLRB’s position is directly contrary to the United States Supreme Court decision in AT&T Mobility v. Concepcion, issued in 2011, upholding arbitration provisions that prohibit collective and class action claims.

The NLRB continues to aggressively insert itself in the non-union workplace by challenging and attacking employer’s policies on arbitration and social media. Only 7% of private sector workers are members of a labor union. Perhaps these latest actions by the NLRB are attempts to keep relevant in order to maintain its funding. Whatever the reason, employers can expect attempts by the NLRB to expand its influence in the private sector.

Filed under: Employment Policies, National Labor Relations Board | Tagged: 24-Hour Fitness, AT&T Mobility v. Concepcion, D.R.Horton, NLRA, NLRB | Comments Off

Federal Court Allows New Labor Poster Requirement to Go Into Effect April 30, 2012

Posted on March 5, 2012 by smithamundsen

Contributed by Jeff Risch

Despite an aggressive and well coordinated legal challenge on behalf of the employer community, private employers subject to the National Labor Relations Act (NLRA) — which is just about every private employer - will soon be required to post written notice to its employees about their rights to organize and form labor unions. A federal district court judge in Washington, D.C. ruled on March 2, 2012 that the National Labor Relations Board (“Board”) has the authority to promulgate and enforce a rule requiring most private employers to display the new poster entitled “Employee Rights Under the National Labor Relations Act” National Association of Manufacturers v. NLRB.

The rationale behind the bold maneuver by the Board centers on its belief that employees are simply unaware of their rights under federal labor law and employers should be required to inform them. The Board created its own rule on the subject under its statutory authority to adopt “such rules and regulations as may be necessary to carry out the provisions of [the NLRA].”

Fortunately for employers, the Board’s attempt to sanction employers who fail or refuse to post the required posting notice was declared unlawful by the federal district court. The Board attempted to harm employers who failed to display the poster by way of: (1) finding the failure to post the required notice to be an unfair labor practice (i.e. holding that such conduct would be deemed unlawful interference with, restraint, or coercion of employees in the exercise of their rights under the law); and (2) tolling the standard 6-month statute of limitations for filing unfair labor practice charges against employers that fail to post the notice.

However, the district court did not rule out the possibility that failure to post could be considered and used as evidence of an unfair labor practice: “[N]othing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it. But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.”

While other legal challenges still exist and are pending, this recent decision reminds employers to be ready to post come April 30, 2012.

Filed under: Labor, National Labor Relations Board | Tagged: NLRA, NLRB, right to organize | Comments Off

Pro-Union NLRB Contradicts U.S. Supreme Court: Declares Employee Class-Action Waivers Violate Labor Law

Posted on January 11, 2012 by smithamundsen

Contributed by Jeff Risch

On January 3, 2012, the NLRB held that a nationwide home builder committed an unfair labor practice under the National Labor Relations Act (NLRA) by implementing a mandatory arbitration agreement that waived the rights of employees to participate in class or collective actions (D.R. Horton Inc. and Michael Cuda, 357 NLRB 184, 1/3/11). In short, the NLRB held that employers may not compel employees to waive their right to collectively pursue litigation of employment claims in all forums, arbital and judicial.

Michael Cuda, a superintendent for Horton, claimed that he and other similar superintendents for the company were prevented from pursuing a wage and hour class-action/collective-action under the Fair Labor Standards Act (FLSA); alleging that they were misclassified as exempt employees. Horton required Cuda and other employees to execute an arbitration agreement whereby they individually agreed to forego class-action relief of all types relating to any employee dispute. NLRB Chairman Mark Gaston Pearce (D) and Member Craig Becker (D) found that this mandatory arbitration procedure violated Section 8(a)(1) of the NLRA because it interfered with the statutory right of employees to engage in “protected concerted activity for their mutual benefit.”

In so holding, the NLRB took issue with the U.S. Supreme Court’s recent decision in AT&T Mobility LLC v. Concepcion, U.S., No. 09-893, 4/27/11. In Concepcion, the court, in a 5-4 decision, enforced AT&T’s customer cellular telephone contract that provided for mandatory arbitration on an individual basis and prohibited class action proceedings despite conflicting California state law. The court essentially held that the Federal Arbitration Act (FAA) preempts state laws that prohibit contracts from preventing class-action lawsuits. In judicial decisions that have since followed Concepcion, courts throughout the U.S. have concluded that employees may waive class-action rights by agreeing to individualized arbitration through employment arbitration agreements.

In distinguishing Concepcion, the NLRB held that employment arbitration agreements (unlike consumer contracts) cannot prevent employees from waiving their rights protected by the NLRA (i.e. collectively pursue wage/hour claims and/or disputes over terms and conditions of employment). The NLRB also reasoned that Concepcion involved a conflict between the FAA and a California state law, which implicated the U.S. Constitution’s Supremacy Clause; whereas in D.R. Horton the Supremacy Clause was not called into question as the issues involved purely federal statutes (FAA vs. the NLRA).

Filed under: Labor, National Labor Relations Board | Tagged: AT&T Mobility, D.R.Horton, Fair Labor Standards Act, Federal Arbitration Act, Inc., National Labor Relations Act, National Labor Relations Board, NLRA, NLRB | Comments Off

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D.C. Circuit Court of Appeals Strikes Down NLRB Posting Requirement

The Ends Do Not Justify The Means – D.C. Circuit Court Orders NLRB to Explain Itself

NLRB Memo Clarifies At-Will Employment Position

Employer Beware! Confidentiality and Integrity of Workplace Investigations At Risk

A Second California Court Rejects the NLRB’s Holding in Horton and Enforces a Class Action Waiver

National Labor Relations Board Attacks Employment At-Will Doctrine

NLRB Continues To Flout Supreme Court on Arbitration Agreements

Federal Court Allows New Labor Poster Requirement to Go Into Effect April 30, 2012

Pro-Union NLRB Contradicts U.S. Supreme Court: Declares Employee Class-Action Waivers Violate Labor Law

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