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In recent years the National Labor Relations Board (NLRB) has aggressively sought to emphasize that its reach extends beyond solely unionized workforces.  On March 18, 2015, NLRB General Counsel Richard Griffin released a 30-page report that provides labor lawyers and HR professionals guidance on what the General Counsel contends is – and is not – a lawful employee handbook rule under the National Labor Relations Act (NLRA).  The General Counsel’s report makes clear just how broadly the Board applies its rules, finding fault in a number of common-sense workplace practices regarding confidentiality, criticism of the company, misconduct, communication with the public or the media, conflicts of interest, and a variety of other topics.   Non-union employers may be asking, “Why do I care?”  But the NLRA applies to every employer (at least those engaged in “interstate commerce,” which is almost everyone).

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.  If you’ve got a union lurking (or campaigning), that’s like free (and forced) advertising, telling employees why they need a union.

We’ve written about the NLRB’s scrutiny of employer rules on social media use and off-duty access, but this report is a “one stop shopping” trip for purposes of NLRA compliance.  The report (available here) provides real-life examples of allegedly unlawful and lawful policies and the reasoning behind the decisions.  And it provides (starting at page 26) what some might view as “model” policies prepared by Wendy’s International LLC and the NLRB pursuant to a Board settlement agreement. You may not like – or decide to adopt – the stance that the General Counsel has taken on these policies, but at least you (sort of) know his position on many handbook policies.
Continue Reading NLRB Says “Mere Maintenance” of Employee Handbook Rules May Violate the NLRA

As anticipated, on December 12, 2014 the NLRB announced that the final “Quickie” Election Rule will be published in the Federal Register on December 15, 2014 and will take effect on April 14, 2015. Among other changes, the rule will shorten the time between the filing of a petition and the election for union representation…

FootballOn October 28, 2014, the National Labor Relations Board (“NLRB”) issued its decision in Murphy Oil USA Inc., once again attempting to prohibit employers from requiring employees to enter into agreements to arbitrate employment disputes if those agreements preclude collective or class action litigation. As we have blogged about in the past, this new decision runs contrary to an overwhelming majority of federal district and appellate court decisions rejecting and criticizing the Obama NLRB’s previous attempt to so extend the law.  A copy of the Murphy Oil USA decision can be found here.

In Murphy Oil, the NLRB split 3-2 along party lines, with the majority finding that gas station chain Murphy Oil’s arbitration agreements were unlawful.  In so doing, the NLRB reaffirmed its controversial January 2012 DR Horton ruling, where the Board ruled that such agreements conflict with employees’ rights to engage in concerted activity under the National Labor Relations Act.  The Fifth Circuit Court of Appeals refused the enforce the Board’s order, and the NLRB declined to seek review from the U.S. Supreme Court.  In what some might say is refusing to take “no” for an answer, the NLRB is trying to resurrect its DR Horton decision.Continue Reading NLRB Attempts to Make an End Run Around Courts Invalidating its Rulings on Arbitration Agreements

In an ever expanding arc of decisions that extends the NLRA’s protections to a wide range of employee conduct – both on-and off-duty, and in union and non-union settings alike – the NLRB last week decided that merely clicking on Facebook’s “Like” Button was concerted, protected activity. Triple Play Sports Bar, 361 NLRB No. 31 (August 22, 2014).

Triple Play Sports Bar is a non-union employer whose owners had a little difficulty preparing annual payroll tax calculations, and as a result, employees owed state income tax in arrears. One of the employees – not happy at the prospect of back taxes – posted on her Facebook “Status Update,”

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly‼! Now I OWE money … Wtf‼!

Other employees chimed in with comments of their own (“[the owner] f***** up the paperwork…as per usual”; “[the owner is] such a shady little man. He prolly [sic] pocketed it all from our paychecks…”; “Such an a******”), as did a couple of the Sport’s Bar’s customers. But one employee simply pressed the “Like” button and made no other comments. Company owners terminated the employees for defamation and disloyalty.Continue Reading Facebook “Like” Button – Protected Activity? It Depends on What You “Like”!

The U.S. Supreme Court has invalidated President Obama’s 2012 "recess" appointments of several members of the National Labor Relations Board ("NLRB" or "Board"), which occurred while the Senate was in a three day recess. As a result, every decision issued by the Board between January 4, 2012, and July 30, 2013, is void, including some highly controversial decisions which negatively impacted employers. National Labor Relations Board v. Noel Canning (June 26, 2014). A copy of the Noel Canning opinion is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdfContinue Reading Supreme Court’s Noel Canning Decision Invalidates Numerous NLRB Decisions

The NLRB’s Regional Director in Chicago issued a decision on March 26 in 13-RC-121359 finding the football players at Northwestern University are employees under the NLRA, over the objections of the University. The Regional Director rejected the University’s arguments that the players, who receive “grant-in-aid scholarships” from the University, are more akin to graduate students, held by the Board not to be employees in Brown University, 342 NLRB 483 (2004). The Director also rejected the University’s argument that the players were “temporary employees” who were not eligible for collective bargaining. 

Northwestern’s varsity football team consists of 112 players, 85 of whom receive scholarships that pay for their tuition, fees, room, board, and books in the amount of $61,000 per year ($76,000 per year if they take summer classes). The players receive a “tender” letter at the beginning of their football career that describes the terms and conditions of the offer; are subject to certain rules of conduct; and spend 20-25 hours a week in mandatory activities in the off-season, 40-50 hours per week during the season, and 50-60 hours per week during training camp. The Director found that the players performed “services” for the University that generated revenues of approximately $235 million during the nine-year period of 2003-2012 through the team’s participation in the NCAA Division I and Big Ten Conference through ticket sales, television contracts, merchandise sales, and licensing agreements.Continue Reading College Football Players Are Employees? Who’s Next?

On February 5, 2014, the National Labor Relations Board ("NLRB") re-issued its controversial “quickie” election rule.  As you may recall, that rule, which was opposed by employer groups, the U.S. Chamber of Commerce and others, was invalidated by the D.C. District Court in May 2012.  The reissued "quickie" election rule would substantially shorten the time between the filing of a petition and the election to determine whether the union will represent employees–from  approximately 42 days to as little as 10 to 14 days.

The D.C. District court struck down the rule in 2012 for procedural reasons. The Board initially issued the rule in 2011, but its implementation was stayed as a result of a decision of the United States District Court for the District of Columbia, which held that the rule had been improperly adopted with only two Board member votes, rather than statutorily required three Board member votes, under the U.S. Supreme Court’s landmark 2010 decision in New Process Steel.  Since July 2013, however, when the U.S. Senate confirmed President Obama’s new appointees, the Board has operated with a full five members for the first time since 2007.

How The "Quickie" Election Rule Would Change Union Elections

Under the current approach, unions must gather authorization cards from at least 30 percent of employees in the unit sought to be represented in order to file a petition for an election with the NLRB. Sometimes employers know about the organizing drive before the petition is filed, but sometimes, they do not. During the pendency of the election (which is currently about 40 days), employers have an opportunity to “campaign” against unionization by providing employees with information about the union, its tactics, and the costs and disadvantages of joining a union. Once the employees vote in the election and the union is certified, the employees may not seek to decertify the union for at least a year, or until after the expiration of the first collective bargaining agreement, whichever is longer.Continue Reading NLRB Re-Issues Controversial “Quickie” Union Election Rule

The National Labor Relations Board (NLRB) has suffered a series of setbacks recently at the hands of federal judges.  In December, the Fifth Circuit Court of Appeals largely struck down the NLRB’s prohibition on class action waivers in arbitration agreements.  Now, on January 6, 2014, the NLRB announced that it won’t seek Supreme Court review of two U.S. Court of Appeals decisions invalidating its Notice Posting Rule, which would have required most private sector employers to post a notice informing employees of their right to organize. The deadline for seeking Supreme Court review passed January 2.

The legal effect of this “non-event” is that it allows to stand two appellate court decisions that invalidated NLRB’s 2011 adoption of a rule.  In May 2013, the U.S. Court of Appeals for the District of Columbia Circuit held in National Ass’n of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) that requiring employers to post the statement of rights under the National Labor Relations Act (NLRA) would be inconsistent with Section 8(c) of the act, which essentially gives employers the right to speak freely to their employees so long as the communications aren’t coercive. The Court also held that NLRB lacked authority to promulgate the regulation, because it would have effectively modified the federal statutory time limit for filing unfair labor practice charges. A month later, the Fourth Circuit ruled against the NLRB and sustained a second challenge to the regulation in Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013).Continue Reading NLRB Effectively Scraps Plans (For Now) To Pursue Notice Posting Rule By Deciding Not To Seek Review By U.S. Supreme Court

Just last week, in the case GameStop Corp., a National Labor Relations Board (NLRB) administrative law judge applied recent Board precedent and ignored contrary cases from federal courts to find an employer’s arbitration agreement was unenforceable because it waived the right of employees to bring class or collective actions.  While the decision has yet to be approved by the NLRB itself (parties can appeal ALJ decisions to the NLRB), it illustrates the continuing tension in this area between the NLRB (which disfavors class action waivers in employee arbitration agreements) and the federal courts (which favor them). 

As we have reported, U.S. federal courts continue to hold that employees may enter into arbitration agreements in which they waive the right to file class or collective action claims.  The U.S. Supreme Court put its stamp of approval on such waivers in 2011 in the blockbuster case AT&T v. Concepcion, holding that the enforceability of arbitration agreements was governed by the Federal Arbitration Act (FAA), which preempted any state law purporting to regulate arbitration agreements, including arbitration agreements with class action waivers.  Building on a decades-long line of cases steadily increasing support for the concept of arbitration and similar alternative dispute resolution (“ADR”) methods for resolving litigation, Concepcion also held decisively that arbitration agreements could include waivers by the parties of the right to bring lawsuits as class actions.  The U.S. Supreme Court has re-affirmed Concepcion in subsequent decisions.Continue Reading Chasm Continues To Widen, For Now, Between NLRB and Federal Courts On Enforceability Of Class Action Waivers In Employment Agreements

Once again, federal courts have halted efforts by the current National Labor Relations Board ("the Board") to expand its regulatory reach. Earlier this week, in National Association of Manufacturers v. NLRB, the Court of Appeals for the District of Columbia Circuit struck down the Board’s controversial attempt to require virtually all employers to post a notice advising employees about the requirements of the National Labor Relations Act ("the Act") and the sixty years of interpretations of the federal labor laws.

The Board’s notice-posting rule has had a long and contentious history.  The original petition was filed in 1993, but it was not until 2010 when the Board, by then with a majority of members appointed by President Obama, issued a proposed rule.  The final rule was published in August, 2011, and litigation challenging the Board’s authority began almost immediately.  As we have reported before, the Board had only mixed success.  One district court upheld the rule only in part, and another struck down the rule completely.  While those cases were on appeal, the posting requirement was stayed pending completion of judicial review.Continue Reading D.C. Circuit Nixes Board Notice Posting Rule In National Association of Manufacturers v. NLRB