The National Labor Relations Board recently ruled in favor of both union and non-union private sector employees on a significant issue concerning workplace litigation. At issue were mandatory arbitration agreements signed upon employment that force employees to bring claims one by one in front of an arbitrator and prohibit employees joining as a group to arbitrate their claims. The Labor Board concluded that such agreements violate employee rights under the NLRA to engage in concerted activity. This ruling supports workers’ rights to join together to bring legal claims to arbitration collectively. More coverage can be found here.
— Posts About NLRA
The Fourth Circuit Court of Appeals recently decided NLRB v. White Oak Manor, a case involving an employee’s protected concerted activity, ruling in favor of the NLRB who sought to enforce an order in favor of the employee. The employee, who was reprimanded for wearing a hat during work in violation of the company dress code, spoke with other employees to gain support for her cause and eventually complained to management about unequal enforcement of the company dress code. The employee took pictures of other employees who were violating the dress code at work, showing tattoos and wearing hats. The employee enlisted other employees to help her document dress code violations as well. The employee was subsequently terminated. Management stated specifically that she had taken pictures of a particular employee without prior permission and in doing so she violated the company’s policy forbidding the misuse of an employee’s property. Defendant White Oak Manor contended that the employee had acted in her own self interest by complaining about the enforcement of the dress code policy.
The Court agreed with the NLRB in their assertion that the company had violated the National Labor Relations Act because the employee had talked to other employees about the policy and gathered evidence in support of her attempt to change the enforcement of the policy. Thus the employee was participating in protected concerted activity in an attempt to achieve equal enforcement of the policy. Equal enforcement of this policy would benefit all employees and the employee actively pursued coworkers support and help in changing the policy. The Court thus reached the common-sense conclusion that the employee’s actions did meet the standard in the NLRA for protected concerted activity.
Categories: Judicial Decisions
Two labor and employment decisions were released by the U.S. Supreme Court this past week. In the first, City of Ontario v. Quon, the Court unanimously held (with Scalia concurring separately) that the government employer’s search of employee text messages was reasonable under the Fourth Amendment. Unlike private employers, public employers are constrained (somewhat) by the Fourth Amendment’s restrictions on searches and seizures in the workplace. In this case, the city got a private company to release the full text messages of police officers because of their overuse of the texting plan. Several messages were inappropriate and resulted in employee discipline. Based on these particular facts, the Court found the search lawful, though it declined to articulate broader standards for public employer searches, especially of new electronic media. More analysis found here and here.
In the second case, New Process Steel v. NLRB, the Court resolved the circuit split regarding whether the National Labor Relations Board could lawfully act with a two-member quorum because the three vacancies on the board had gone unfilled for so long. A 5-4 majority (Stevens surprisingly joining 4 conservatives) rejected the Board’s argument, and held that the NLRA required 3 members to act. The hundreds of decisions issued by the two-member board will probably have to be re-reviewed, though one hopes this could be expedited now that two of the vacancies have been filled by President Obama. Board decisions can take a long time even extra without this delay, often to the detriment of workers and unions seeking to organize and bargain. More analysis is here and here.
Categories: Judicial Decisions
The Fourth Circuit has recently published two labor law opinions, the first concerning whether an arbitrator exceeding his authority in resolving a grievance, and the second concerning whether to uphold a decision of the two-member National Labor Relations Board.
In PPG Industries v. ICWUC/UCFW, the union had filed a grievance because the company had failed to pay bonuses as set forth in the Bonus Plan to workers who had gone on strike. At issue was whether the term “actively employed” in the Bonus Plan encompassed striking workers. The arbitrator found that it did. Courts must uphold the decisions of labor arbitrators unless they have exceeded their authority. As the arbitrator here reasonably interpreted the Bonus Plan, his decision was upheld by the court.
In Naricott Industries v. NLRB, the Fourth Circuit considered the propriety of the two-member Board. Because replacements for three of the NLRB’s board members have not been approved by Congress for quite some time, the Board has been operating with a two-member quorum. As long as those two members can agree, the Board has been issuing decisions. Whether the two-member board is actually authorized to act under the NLRA has been litigated in several circuits. Two circuits have ruled that it is proper, while the DC Circuit has ruled that it is not. The Fourth Circuit joined the majority, following the interpretation espoused by the Board as well as DOJ. In any event, the Supreme Court will soon make a final decision on this issue. In the remainder of the opinion, the court upheld the Board’s conclusion that the company had committed unfair labor practices by actively assisting an effort to decertify the union, and its order requiring the company to bargain with the union.
Categories: Judicial Decisions
Narendra Ghosh spoke at the North Carolina Bar Association’s 2009 Fundamentals of Employment Law CLE, which was held in Greensboro. He was part of a duo presenting an overview of the National Labor Relations Act and the possible changes to it from the long-pending Employee Free Choice Act. Along with Tom Farr, he presented a paper entitled A Brief Introduction to Union and Employee Activities Under the NLRA and Proposed Changes Under the Employee Free Choice Act.
Summary: The National Labor Relations Act (the “Act” or the “NLRA”) guarantees the right of workers to organize and to bargain collectively with their employers, or to refrain from such activity. To enable employees to exercise these rights and to prevent labor disputes, the Act places certain limits on the activities of both employers and labor organizations. The text that follows is an introduction to pre-certification union and employee activities under the Act, which is intended for new practitioners. In addition, this paper describes changes to the Act that have been proposed in the Employee Free Choice Act, which is currently pending in Congress. Whether changes need to be made to the Act, and what forms they should take, are hotly debated questions, and this paper aims to illuminate the contours of the debate.
Categories: General News
Michael Okun has written an article, entitled In Concert: A Beginner’s Guide to Labor and Employment Law’s Old and Well-Kept Secret, for an issue of Trial Briefs, the publication of the North Carolina Advocates for Justice. The article discusses the NLRA’s protection for workers who act “in concert” regarding workplace issues.
Summary: The right to act “in concert” is the “principal source of legal protection for employees who engage in workplace protests.” This article attempts to provide a basic understanding of the substantive and procedural law surrounding the law. The first of six sections provides a brief history and overview of the Section 7 right found in the NLRA. The second explains the requirements of the three elements necessary to claim the right. The third section describes how to prove causation between activity protected by the statute and retaliatory action by an employer. The fourth section explains briefly the categories of employers and employees who are not covered by the statute. The fifth section explains how to enforce an employee’s rights under the Act. The final section describes the three best concerts this author has attended.
Categories: News of the Firm