Tag Archives: Unfair labor practice

Class Waivers for Unfair Labor Practice Claims? — Maybe

Contributed by Suzanne Newcomb

In August, we wrote about Court decisions expanding the reach of the Supreme Court’s American Express v. Italian Colors decision to allow employers to force employees to arbitrate FLSA claims individually rather than collectively.  Earlier this month, an Administrative Law Judge ruled that the AmEx decision also means that the National Labor Relations Board can no longer prohibit class waivers.

Spurred by a single employee’s unfair labor practice charge, the Board challenged Chesapeake Energy’s policy mandating that all employees agree to binding individual arbitration for all employment related disputes, including unfair labor practice allegations arising under the National Labor Relations Act.  Relying on the Board’s 2012 D.R. Horton decision, General Counsel for the National Labor Relations Board pressed the Administrative Law Judge to strike down the program claiming the right to engage in collective legal action was itself “protected concerted activity” and therefore, any agreement to waive collective action was invalid on its face.  The Judge disagreed, concluding that the Board’s prohibition of class waivers could not be sustained in light of the AmEx decision.

Still, we urge caution.  How the full Board will address this issue is yet to be seen.  At least one other of the Board’s Administrative Law Judges reached the opposite conclusion in August despite the employer’s counsel urging that AmEx controlled.  Moreover, despite his conclusion that the NLRB could no longer prohibit class action waivers, the Judge did find Chesapeake guilty of an unfair labor practice.  He ruled the arbitration policy at issue invalid as written and ordered Chesapeake to rescind the policy or revise it to exclude unfair labor practice allegations.  He also ordered Chesapeake to specifically notify its employees that they have the right to file charges at the NLRB.  The distinction here is subtle, but important.  An employer may legally compel arbitration through a properly drafted and implemented arbitration agreement; it may not prohibit its employees from filing a charge with the NLRB.  Moreover, if an arbitration agreement tends to cause employees to conclude that they cannot file NLRB charges as the Judge concluded the Chesapeake agreement did, there is a very real risk it will be struck down.

Incidentally, the same reasoning applies to EEOC charges.  An employer may not prohibit its employees from filing EEOC charges, nor can it prevent the EEOC from bringing an enforcement action in Court based a charge filed by an employee who has signed a binding arbitration agreement.  A binding arbitration agreement will operate to force the employee to adjudicate claims through an arbitration proceeding, rather than a court action.  However, should the EEOC decide to file its own enforcement action, all bets are off.  The EEOC can maintain a Court action and can even seek individual remedies on behalf of an employee even if that employee signed a binding arbitration agreement.

You Say Tomāto, I Say Tomäto: Federal Appeals Court Upholds NLRB Ruling That ‘Landfill Supervisor’ Was Not a Supervisor

Contributed by Beverly Alfon

On March 8, 2012, the Seventh Circuit Court of Appeals upheld a National Labor Relations Board ruling that a “landfill supervisor” was unlawfully fired in retaliation for engaging in union organizing activities.  Rochelle Waste Disposal LLC v. NLRB, 7th Cir. No. 10-3212 (3/8/2012).  This is significant because supervisors are excluded from the protections of the National Labor Relations Act.

The court agreed with the NLRB that despite his title, Jeff Jarvis was not a supervisor as defined by Section 2(11) of the Act because he lacked the authority or “responsibility to direct” the work of other employees.  In its analysis, the court referred to the NLRB’s holding in Oakwood Healthcare, Inc, 348 NLRB No. 686 (2006), where it held that an employee has supervisory authority if s/he can take action to correct other employees’ work and can be held accountable for how they perform. 

No authority to take corrective action:  The court noted that ability to take corrective action is not enough.  Such corrective action “must have some force behind it or place some ‘small burden on the employee’” – i.e. something more than telling an equipment operator that his machine was idling too long – as Jarvis did on one occasion.  Jarvis claimed that he only monitored other employees’ work when their performance affected his work.  Accordingly, the court found that the record did not show that Jarvis took actions to correct other employees’ work. 

No accountability for other employees’ performanceThe court agreed that Jarvis had no supervisory authority because he was not accountable for other employees’ performance. Jarvis was never at risk of experiencing “adverse consequences” based on the actions of others and “[r]egardless, the Board has specifically held that ‘paper accountability,’ (accountability in name or job description only), is by itself insufficient to establish supervisory authority.”

As a non-supervisory employee, the NLRB and the court concluded that Jarvis fell within the protections of the Act.  The court upheld the Board’s finding that the employer violated the Act by firing Jarvis in retaliation for his union organizing activities.  It relied upon the employer’s knowledge of Jarvis’ union activity, the timing of the discharge (8 days before a representation election), the employer’s failure to investigate the events allegedly leading up to the discharge, and the employer’s change in rationale for the discharge (from unsatisfactory work performance to a reduction in force). 

BOTTOM LINE:  If you are going to rely on an employee’s supervisory status to save you from potential unfair labor practice charges, be sure that you can demonstrate the employee’s authority to responsibly and meaningfully direct employees.  You also want to be able to provide evidence of the employee taking corrective action with regard to others’ work and show that the employee was at risk for adverse consequences himself as a result of subordinate employees’ work.