Arbitration Waivers Interfere with Employee Rights, NLRB Rules

Posted on January 13, 2012 by Harold R. Weinrich and Roger Kaplan

Requiring individual employees as a condition of employment to sign arbitration agreements waiving their right to bring joint, class or collective actions, both in arbitration and in the courts, violates federal labor law, the National Labor Relations Board has held.  The National Labor Relations Act, the Board said, confers on employees the right to pursue discrimination, wage and hour and other workplace-related claims in a joint, class or collective fashion as “protected concerted activity.”  In D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012), the Board held that “employers may not compel employees to waive their NLRA right collectively to pursue litigation of employment claims in all forums, arbitral and judicial.”  As the agreement in the case before it did just that, the agency found the agreement violated the statute, and ordered it rescinded or revised.  The Board also concluded that the agreement violated the NLRA for the added reason that its language, which barred employees from starting “lawsuits or other civil proceedings” relating to their employment, would lead employees reasonably to believe that they were prohibited from filing unfair labor practice charges with the Board.

By no means, the Board asserted, does the decision ban all arbitration agreements with new and existing employees.  “Employers remain free to insist that arbitral proceedings be conducted on an individual basis,” the NLRB affirmed.  “So long as the employer leaves open a judicial forum for class and collective claims,” it continued, “employees’ NLRA rights are preserved without requiring the availability of classwide arbitration.”
 
The Board also recognized that a union representing employees in collective bargaining could waive individual unit employees’ rights to pursue statutory claims in court, as the Supreme Court held in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), maintaining that collective bargaining itself is a form of statutorily protected activity. But these waivers, it said, were different from the unilaterally imposed employment policies before it in D.R. Horton. 

The panel deciding D.R. Horton included Member Craig Becker on his last day on the Board, but not Member Brian Hayes, who was recused.

A court challenge to the Board’s decision is anticipated.  The case may even reach the Supreme Court.  For more details on the decision, please see our article, Mandatory “No-Class Action” Arbitration Waivers Interfere with Employee Rights, NLRB Rules.

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Controversial NLRB Appointments Announced

Posted on January 5, 2012 by Michael Lotito and Roger Kaplan

The White House has added to the controversy surrounding the National Labor Relations Board and its recent actions by announcing the President intended to make three recess appointments to the agency.  Despite the recent request of 47 Republican Senators to President Barack Obama to refrain from making recess appointments between the Sessions of Congress, it was announced that the President would do just that.  On January 4, the White House Press Secretary said the President would nominate Sharon Block, Terence F. Flynn and Richard Griffin to fill the three empty seats on the NLRB.  They would join Chairman Mark Gaston Pearce and Member Brian E. Hayes, giving Democrats a 3-2 majority on the Board.  With the end of Member Craig Becker’s recess appointment on January 3, the Board now lacks a quorum to make decisions.

Ms. Block, a Democrat, is presently Deputy Assistant Secretary of Labor for Congressional and Inter-Governmental Affairs.  Mr. Flynn, a Republican, has been serving as Chief Counsel to Member Hayes.  Mr. Griffin, also a Democrat, is General Counsel for the International Union of Operating Engineers. 

Legal challenges to the expected recess appointments reportedly are being considered by members of the Senate and others upset over the President’s action.

The recess appointees could serve until December 2014.

For more information on this development, see our article, NLRB Appointments Spur More Controversy as New Year Begins.

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Labor Board's Quickie Election Rule Effective April 30, 2012; Implementation of Notice Posting Rule Postponed to April 30, 2012

Posted on December 23, 2011 by Harold R. Weinrich and Roger Kaplan

As predicted, the National Labor Relations Board has published a final rule amending its union election process.  The “quickie election” rule, which the Board rushed to finalize before the end of the year, will significantly change the process for contesting petitions for union elections and limit an employer's opportunities to challenge the process before an election is held.  It also will limit an employer’s opportunity to communicate with its employees over issues of union representation before a vote is taken.  The rule is scheduled to take effect on April 30, 2012. 

For details of the rule, see our article, Quickie Election Rule Finalized Before Year End.

In addition, as we reported on December 20, Judge Amy Berman Jackson during oral argument in the challenge to the NLRB Notice Posting Rule pending in U.S. District Court for the District of Columbia said the case is a complicated one, and she asked the Board to postpone the effective date of the Rule beyond January 31, 2012, because she needs more time to deal with the issues.  The Board in response to the Judge's request announced today that “it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012."

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Judge Needs More Time, Suggests Postponing Implementation of NLRB Notice Posting Rule

Posted on December 20, 2011 by Harold R. Weinrich and Roger Kaplan

Judge Amy Berman Jackson yesterday heard oral argument in the challenge to the NLRB Notice Posting Rule pending in U.S. District Court for the District of Columbia.  The Rule requires employers to post a notice in the workplace that informs employees of their right to organize, provides contact information for the NLRB, and lists a litany of unlawful employer conduct.  (More information about the Rule is available at the NLRB website.)  While it is unwise to predict the outcome of litigation based upon a judge’s reaction and questioning during oral argument, one thing is clear: Judge Jackson believes the case is a complicated one.  She asked the Board to postpone the effective date of the Rule beyond January 31, 2012, as currently scheduled, because she needs more time to deal with the issues. 

Argument in a similar action pending in the U.S. District Court in South Carolina will not take place until January 11, 2012.

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NLRB Acts on Quickie Election Proposal

Posted on November 30, 2011 by Roger Kaplan

Philip Rosen (NYC), Michael Lotito (SF), Harold Weinrich (Washington DC), and Daniel Schudroff (NYC) wrote this post.

Earlier this afternoon, the National Labor Relations Board held a hearing on Chairman Mark Gaston Pearce’s Resolution pertaining to “Quickie Elections.”  By a 2-1 margin, the Board voted to adopt the Resolution in its entirety.  The Resolution eliminates some pre-election rights of employers in order to shorten the time before a representation election is held.  Republican Member Brian Hayes was present and voted against the Resolution.  Hayes also indicated he has no intention of resigning, putting to rest speculation about an issue that has been in the forefront of labor news lately.

Now that the vote is over, a final rule will be circulated among the three Board members and finalized before year end while the Board still has the Pearce-Becker majority.  Based on comments made during the hearing, and in light of the substance of the Resolution, the time between the filing of representation petition and holding of an election will be reduced significantly.  Our best current estimate is that the time will be reduced so that there may now be approximately 28-35 days between the filing of the election petition and the election.  The timing of the election may increase, depending on the scheduling and duration of any pre-election hearing, the filing of briefs and the speed with which the Regional Director decides the case.  There are also unknowns (depending both on the wording and administration of the final rule) that could reduce this timeframe even more.  Also of note, one of the comments today indicated that the Board majority intends to consider the determination of an individual’s supervisory status to be a post-election matter, to be decided only if the issue is not moot after the election.  This could be particularly problematic for employers.

Since employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever for companies to consider a comprehensive preventive labor relations program, including such elements as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law in discussions with employees before and during organizing, (3) bargaining unit analyses (for example, to determine who is a supervisor), and (4) a legal analysis and development of best HR practices reflecting recent legal issues (such as the NLRB’s initiative relating to protected concerted activity).  Please do not hesitate to contact the Jackson Lewis attorney with whom you normally work for legal advice regarding the Board’s rules and options for employer consideration.

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NLRB Acting General Counsel Warns Companies about Social Media and Handbook Rules

Posted on November 11, 2011 by Harold R. Weinrich

We have been conducting educational programs around the country for our clients and friends on the NLRB’s various agenda items.  Among the topics covered was its Acting General Counsel’s focus on social media policies, as well as the Board’s assault on handbook policies generally by frequently implicating NLRA-protected concerted activity.  As the Board’s chief prosecutor, the Acting GC can control the cases brought before the NLRB for decision.

Let’s be clear.  This recent focus on social media and other handbook rules concerns not only unionized employees or those seeking to organize or join a union.  It extends, as well, to the much larger private sector workforce that is not unionized.  Of course, employers of these employees bear the brunt of the NLRB’s attention.  The Acting GC and the Board are encouraging charges over these rules. They have developed and implemented effective public relations methods to inform employees that the NLRB protects their rights, even without a union, in many aspects of their employment, so long as the employees are acting together.

Here is some of what the Acting GC had to say at a November 3rd meeting of the American Bar Association:

  • A complaint he authorized in 2010 involving the use of social media, which was picked up by the news media, gave him “a chance to explain to the 93 percent [of private sector workers] who are not represented by unions the National Labor Relations Act” and principles of protected concerted activity under the Act.
  • As a result of the publicity, the agency received hundreds of unfair labor practice charges from individuals asserting that their employers violated their NLRA rights by punishing them for social media use.  This shows that more workers are “waking up” to their NLRA rights.
  • “You can’t do that under the National Labor Relations Act,” he warns companies with what he sees as broadly worded policies that may be reasonably understood by employees to inhibit protected concerted activity.
  • Whether an employer’s disclaimer statement in a policy can avoid unfair labor practice liability likely will be reviewed as individual cases are brought to the NLRB.  An effective disclaimer, he cautioned, cannot be “a throwaway line.”  It must provide information about an employee’s rights.

Employers should review their policies to ensure they are in tune with the views of the Board and its Acting GC.  Across the country, union-free companies have been charged with unlawful interference with employees’ concerted activity because of overly broad rules.  In many of the election cases in which we have been retained as counsel, employers have prevailed at the polls only to be charged with objectionable conduct based upon handbook rules.  All employers should conduct supervisory training to educate supervisors about protected concerted activity.
 

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Breaking News: NLRB Posting Rule Postponed

Posted on October 5, 2011 by Steven Porzio

The National Labor Relations Board has just announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act. The rule had been scheduled to go into effect on November 14th. Now, the rule will be effective on January 31, 2012.

The NLRB’s stated reason for the postponement is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The Board cited confusion over which business fall within the jurisdiction of the statute. Unlike many other employment laws, coverage does not depend on a minimum number of employees, but the extent to which a company engages in interstate commerce. The thresholds, generally expressed in terms of gross volume of business for different industries, are very low. Almost all private sector employers are subject to the Act.

The Board states that “[n]o other changes in the rule, or in the form or content of the notice, will be made."

Keep reading this blog for updates, or feel free to contact us for more details.

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NLRB Announces New Standard for Bargaining Units in Non-Acute Healthcare Facilities; Allows Single-Classification Unit Consisting Only of CNAs

Posted on September 1, 2011 by Roger Kaplan

On August 30 the National Labor Relations Board (NLRB) issued its long-awaited decision in Specialty Healthcare & Rehabilitation Center of Mobile, in which it announced a new standard for determining what constitutes an appropriate bargaining unit in non-acute health care facilities.

The union in Specialty Healthcare sought to represent a unit consisting only of Certified Nursing Assistants (CNAs) in a nursing home.  The home argued that the unit should include other non-professional employees such as cooks, dietary aides, activity assistants, the social services assistant, staffing coordinator, maintenance assistant, the medical records and data entry clerks, central supply clerk, and the receptionist.  In other words, the employer argued for the well-established facility-wide “service and maintenance unit” that has been the approved unit in nursing homes for more than 20 years.

Under the new standard, if the union seeks a unit of employees that is “readily identifiable as a group” (e.g., a unit of a single job classification) and those employees “share a community of interest,” the NLRB will approve the unit requested by the union unless the employer can show that employees in a larger unit “share an overwhelming community of interest” with the employees in the unit requested by the union.
 
The NLRB found that the unit of CNAs requested by the union in Specialty Healthcare was an appropriate unit and rejected the home’s request to add the other non-professional employees to the unit.
 
In his dissent, Board Member Hayes explains the NLRB’s decision and its impact in the context of the NLRB’s proposed changes to its election procedures:

First, in this case, they [the NLRB majority] define the test of an appropriate unit by looking only at whether a group of employees share a community of interest among themselves and make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included. This will in most instances encourage union organizing in units as small as possible … . Next, by proposing to revise the rules governing the conduct of representation elections to expedite elections and limit evidentiary hearings and the right to Board review, the majority seeks to make it virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through Board litigation.

Non-acute healthcare providers can expect that unions will seek smaller units, likely to include units consisting of employees in a single-classification.  This will make it easier for unions to win elections, allowing them to limit the requested unit to those employees with the strongest support for the union.  This will lead to a proliferation of bargaining units in nursing homes, senior living facilities, and other non-acute healthcare providers and, as a consequence, multiple contracts and potential job actions by multiple groups of employees.

Non-acute healthcare providers should consult with their labor counsel to discuss this decision and strategies for minimizing its potentially damaging impact on their facilities and the care they provide.
 

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New NLRB Posting Requirement Effective November 14

Posted on August 25, 2011 by Roger Kaplan

The NLRB has advised the public that all employers covered by the National Labor Relations Act (generally all private sector employers) will be required to post a notification of employees’ rights by November 14, 2011. The Board’s August 25th press release, which contains links to the Final Rule and additional information, is reprinted below. The issuance of the Final Rule follows a notice and comment period in which employers generally called such a posting unnecessary and misleading.

The National Labor Relations Board has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website. 

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws.

Board Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule, with Member Brian Hayes dissenting.

The rule will be published in the Federal Register tomorrow, and will take effect 75 days later. A fact sheet with further information about the rule is available here.
 

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Memo Discusses Social Media Cases on NLRB Acting General Counsel's Agenda

Posted on August 25, 2011 by Roger Kaplan

The NLRB Acting General Counsel Lafe E. Solomon has issued a Memorandum (OM 11-74) to Board regional officials, dated August 18, 2011, describing his Office's actions involving social media cases in the past year. Solomon explains: "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media." The full report is available from the NLRB's website here.

Board social media cases generally involve claims of protected concerted activity by employees under Section 7 of the NLRA. Since these cases often turn on the unique facts presented to the Agency, consultation with labor counsel is recommended for employers facing NLRB charges involving employees' use of Facebook, Twitter and other such media. However, the Acting General Counsel's Memorandum offers useful insights into the Board prosecutor's approach to these kinds of cases in the circumstances described.

If you have any questions about the Memorandum or the NLRA, please contact Richard Greenberg.
 

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