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The NLRB Gets Busy

Labor & Employment Law Alert — June 20, 2012

by Judd Lees

Non-union employers who have been breathing a collective sigh of relief thanks to the failure of proposed Employee Free Choice Act legislation as well as successful legal challenges to so-called “quickie” union election regulations enacted by the National Labor Relations Board, are back in the hot seat thanks to renewed efforts by the Board. These efforts include an attack on employee arbitration agreements covering all employment-related disputes, a third General Counsel Memorandum summarizing recent cases finding certain employer social media policies violative of the National Labor Relations Act., as well as the launching of a Board-sponsored web page to encourage the filing of unfair labor practice charges by non-union employees. As discussed below, non-union employers must be proactive to ensure their policies conform to Board rulings, especially in light of the Board’s latest outreach program.

First, the Board’s decision on mandatory arbitration in D. R. Horton, Inc., involved an employee subject to a “mutual arbitration agreement” providing that (1) all employment-related disputes were to be determined by final and binding arbitration, (2) the arbitrator could only hear individual employee claims and could not consider class action claims and (3) employees waived their right to file employment-related lawsuits. The employee sought to arbitrate a nationwide class action regarding his exempt status under wage and hour laws and the employer refused to proceed. The employee filed an unfair labor practice charge alleging that the arbitration agreement violated the NLRA and the Board agreed. The NLRB determined that employees had a right to file collective or class actions and that the contractual proscription on such actions violated the Act. The Board also held that the arbitration agreement unlawfully barred employees from filing unfair labor practice charges under the NLRA.

The D. R. Horton decision is currently on appeal but during the pendency of the appeal, the Board is actively reviewing binding arbitration agreements between employees and employers in the non-union setting. Employers seeking to comply with the Horton decision need to review their arbitration agreements to determine whether they allow collective actions in the arbitral setting and exclude NLRA rights from the scope of the binding arbitration agreements. The Board’s decision appears to be at odds with the Supreme Court’s decision of AT&T Mobility LLC. v. Concepcion which allowed waiver of class-action-type arbitration in the context of consumer claims. The Board distinguished the Concepcion case as not involving the rights protected under the NLRA. At least one federal court has refused to follow the D.R. Horton decision.

Second, with regard to social media policies, the May 30, 2012 Memorandum is the latest of three such memoranda attempting to clarify the Board’s murky position on both employer policies and employer discipline of employees involving employee use of social media both in and outside of the workplace. The prior Memoranda was the subject of an article by this author which can be found here. As discussed in that article, both employers’ policies and disciplinary actions, unless narrowly circumscribed, may be found to chill employee concerted activity protected by the NLRA. The May 30, 2012 Memorandum sets forth six policies found to be overbroad and a seventh one which was deemed lawful under the Act. The Acting General Counsel Memorandum can be found at www.nlrb.gov.

Third, non-union employers should be aware of the recently created web page describing both the nature of the employee rights protected under the Act as well as recent Board decisions against employers. An employee accessing the web page will find a very helpful map which shows the location of many of the regional offices of the Board, recent decisions from the various regional offices in which back pay was awarded to employees, as well as contact information for the Board. The newly-launched web page can be found at www.nlrb.gov/concerted-activity. According to NLRB Chair Mark Gaston Pearce, “a right only has value when people know it exists.” The web page is viewed as a substitute for the Board’s stymied efforts to require notice posting by employers of employee rights under the NLRA and is an undisguised effort to connect with non-represented employees.

Finally, it should be noted that clients recently defending themselves from unfair labor practice charges unrelated to either employee arbitration agreements or employer social media policies discussed above, have found both the subject of review during the course an investigation. Employers are therefore urged to be cognizant of the Board’s renewed focus and to appropriately review policies, practices, and procedures related to these areas.