Over the Author's lengthy career in practicing Labor and Employment Law (since November, 1972), I have had the privilege to represent a vast number of Employers in National Labor Relations Board matters (representation in Elections and Unfair Labor Practice Charges). Over that period of time, I have seen numerous vacillations with regard to Board Policy, but none strike me as more vindictive towards Employers than the NLRB's recent position taken with regard to Voter Eligibility Lists.
Since 2012, there has been an ongoing saga created by the National Labor Relations Board (NLRB) as to whether or not an Employer can require its Employees, as a Condition of Employment, to agree to arbitrate all Legal Claims against the Employer on an individual basis only, thereby waiving Class and Collective Action Procedures. The NLRB initially took issue with this type of action in the D.R. Horton, Inc. Case., 357 NLRB No. 184 (2012), in which it held that requiring Employees to waive the right to bring Claims in the form of a Class Action (or a Collective Action under the Fair Labor Standards Act) violated the guarantee of rights, as provided in Section 7 of the National Labor Relations Act, that allows Employees the right to engage in "protected concerted activity for mutual aid or protection". When that Case was appealed to the Fifth Circuit Court of Appeals, the Fifth Circuit denied enforcement of the Board's Order in the D.R. Horton, Inc. Case. Subsequently, the NLRB issued another Decision with a different Employer (Murphy Oil USA, Inc., 361 NLRB No. 72 (2014)) reaching the exact same results - that Class Waivers in Arbitration Agreements, as a Condition of Employment, unlawfully interfered with Employees' rights to engage in "protected and concerted activity" under the National Labor Relations Act. That ruling was again rejected by the Fifth Circuit on Appeal.
In what, to the author, seems like the most illogical position for a Government Agency to take, the National Labor Relations Board is pushing the 8th Circuit to rule that racial statements made by an Employee on a picket line are protected under Federal Labor Law.
1. Employer Contesting Recently Fired, Gun-Toting Former Employee's Presence at Union Election Site, Must Prove it Actually Affected Outcome of Election.
Arbitration agreements are a common tool many employers use as an alternative to going to court to resolve disputes with their employees. Arbitration has the potential to be a faster, cheaper, and more private way to resolve disputes, with more finality. One of the biggest advantages many employers see in arbitration is the ability to resolve disputes individually rather than as part of a class action. However, the NLRB has determined that, in its opinion, these waivers violate employees' right under federal labor law to engage in "concerted activities" for their "mutual aid or protection." This has caused uncertainty as to the legality of such class action waivers in arbitration agreements in the employment arena.
The first "nail in the coffin" in doing away with the franchiser/franchisee relationship and jeopardizing a vast number of small business operators in this country (estimated at a little over 85% in the restaurant industry), has been "nailed" by the National Labor Relations Board (NLRB) General Counsel. Robert F. Griffin, Jr., who was sworn in for a four (4) year term as General Counsel of the NLRB on November 4, 2013 and, as an aside, was a NLRB member from January 9, 2012 through August 2, 2013, has issued notifications to various NLRB Regional Offices that they are authorized to proceed with forty-three (43) complaints of Unfair Labor Practices against not only the franchisees of the locus of the dispute but, as well, against McDonald's, USA as a "joint employer." While there were a vast number of complaints filed against McDonald's franchisees and McDonald's since November 2012 (a total of 181 complaints), in his own authoritative way, General Counsel Griffin has authorized not only the issuance of the aforementioned forty-three (43) complaints but continuing investigation of sixty-four (64) other cases by his office to see if complaints should issue in these cases.
At the beginning of every New Year, all of us have strong hopes of continuing successes and growth, both in our personal lives and business pursuits. For any employer, these "hopes of growth and success" can be related to potential legal issues that have been stirring in the previous year(s) and continue to mount challenges as 2014 opens its doors. Here are some of the potential challenges that will exist in 2014.
The National Labor Relations Board, the primary government agency entrusted with the responsibility to "control and oversee" labor management relationships, is undergoing a 21st century makeover. With the substantial decrease in private sector unionization (set, by some surveys, at less than 7% of the nation's private sector workforce), the NLRB has seen fit to extend its regulatory authority to protect and promote the Section 7 rights of individuals arising under the Act into the social media venue.