D.R. Horton, Inc. was a home builder that required each employee to sign a Mutual Arbitration Agreement which stated that: (a) all disputes and claims relating to the employee’s employment would be determined by final and binding arbitration; (b) the arbitrator could only hear individual claims and did not have the authority to fashion a proceeding as a class or collection action or to award relief to a group or class of employees in one arbitration proceeding; and (c) the employee waives the right to file a lawsuit or other civil proceeding relating to his or her employment.  The NLRB concluded that the arbitration agreement “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection,” and D.R. Horton, Inc. “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.” 

As a matter of first impression, the NLRB further held that their decision under the NLRA does not conflict with the policy in favor of arbitration underlying the Federal Arbitration Act (“FAA”), which AT&T Mobility v. Concepcion concluded permitted such arbitration agreements.  The NLRB stated that its holding was limited to those agreements that barred protected, concerted activity.  Therefore, “an agreement requiring arbitration of any individual employment-related claims, but not precluding a judicial forum for class or collective claims would not violate the NLRB, because it would not bar concerted activity.”    

It is likely that this decision will be appealed to the 11^th Circuit Court of Appeals, and perhaps ultimately, to the United States Supreme Court.  To read another blog post on how a California Court of Appeal has attempted to  chip away at the impact of the holding in AT&T Mobility v. Concepcion, click here. 

To read the full NLRB decision and order in D.R. Horton, Inc., click here. 

The first big story is that the NLRB has postponed the effective date of the new workplace poster until April 2012.  The Connecticut Employment Law Blog has the story here.

The second big story is that the NLRB has approved a new rule amending the union election procedure.  The Board approved a final rule amending its procedures for union election case procedure to take effect April 30, 2012.  The new rule is intended to simplify procedures and reduce legal delays to union elections. 

Under the new rule, regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted.  The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.  Disputes regarding which employees are included in the bargaining unit will be resolved by the NLRB after the election takes place.  Additionally, all appeals of Regional Director decisions will be consolidated into a single post-election request for review.  Parties are currently permitted to appeal Regional Director decisions at multiple stages in the process.  In addition, the new rule makes all NLRB review of Regional Directors’ decisions discretionary. 

The new rule was drawn from a more comprehensive proposal that would have required employers to provide union organizers with a list of employees’ email addresses and phone numbers. 

The United States Chamber of Commerce has filed a lawsuit challenging the validity of the new rule.  The Chamber of Commerce argues that the NLRB’s new rule circumvents safeguards meant to ensure fair union elections by ensuring that employers have no time to talk to their employees about unionizing. 

Click here to read the final rule and introduction.

In the NLRB’s report, Lafe E. Solomon, the Acting General Counsel states

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, the coercive impact 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. All of these cases were decided upon a request for advice from a Regional Director.

In four cases cited in the report, the NLRB concluded that employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases, the NLRB found that the employees’ posting activity was not protected concerted activity.

The NLRB also determined in one case that a union engaged in unlawful coercive conduct when it interrogated employees at a nonunion jobsite about their immigration status, recorded the interrogations, and posted an edited version of the recording on YouTube and the Union’s Facebook page.

In five cases, the NLRB concluded that the employers’ social media policies were unlawfully overly-broad. Lastly, in one case, the NLRB found that an employers’ rule restricting employee contact with the media was lawful because the policy could not reasonably be interpreted to prohibit employees from speaking on their own behalf with reporters.

Employers should review this report before taking any adverse action because of an employee’s social media posting or creating a new policy concerning social media.

The NLRB’s report is available here.

The posting informs employees of their rights under the NLRA to:

• · Organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment.
• · Form, join, or assist a union.
• · Bargain collectively for a contract with their employer to set wages, benefits, hours, and other working conditions.
• · Discuss wages, benefits, and other terms and conditions of employment or union organizing with a co-worker or union.
• · Take actions with one or more co-workers to improve working conditions.
• · Strike and picket, depending on the circumstances.
• · Refrain from participating in any of these activities, including joining or remaining a member of a union.

The posting also instructs employees that it is illegal for their employer to:

• · Prohibit employees from talking about or soliciting for a union during non-work time or distributing union literature during non-work time in non-work areas.
• · Question employees about union support or activities in a manner that discourages union activity.
• · Take adverse action against employees, or threaten to take adverse action, because of union or concerted activity or choosing not to engage in concerted activity.
• · Threaten to close the workplace if employees choose a union representation.
• · Promise or grant employment benefits to discourage or encourage union support.
• · Prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• · Spy or videotape peaceful union activity and gatherings or pretend to do so.

The National Association of Manufactures (“NAM”) has filed a lawsuit in the United States District Court of the District of Columbia to enjoin the NLRB’s rule requiring the posting of this notice.

Additionally, Congressman Ben Quayle has introduced proposed legislation that would repeal the NLRB’s rule regarding this posting. The proposed legislation, titled “Employee Workplace Freedom Act,” would prohibit the NLRB from promulgating or enforcing any rule that requires employers to post notices relating to the NLRA. For a copy of the proposed legislation, click here.

The NLRB posting can be located here.

Our previous blog post regarding the NRLB’s rule is located here.

The new notice will state that “employees have a right to act together to improve wage and working conditions, to form and assist a union, to bargain collectively with their employer, and to refrain from any of these activities.”  The NLRB is requiring employers to post their notices by November 14, 2011.  Copies of the notice will be available on the NLRB website and from NLRB regional offices at no charge on November 1, 2011. 

Employers must place the notice where other workplace notices are usually posted and on an internet or intranet site if notices are customarily posted electronically.  If more than 20% of employees are not proficient in English, employers must post the notice in another language.  Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act and subject to NRLB investigation. 

The NLRB Press Release on the new rule can be found here.  A Question-And-Answer page for the new rule can be found here.

The Ohio Employer’s Law Blog has a post on the new rule here.  The WSJ Law Blog has commentary here.

 The most significant effect of the proposed changes for employers is that the length of time between when an election petition is filed and the election date will be shortened. This period of time is important for employers because it is usually the only opportunity for the employer to make its views about unionization known to employees. Under the proposed changes, a pre-election hearing would be held within seven (7) days of the filing of the election petition, and a post-election hearing within fourteen (14) days after the tally of ballots. After an election has been directed, employers would only have two (2) days to file a final voter list, including phone numbers and email addresses of eligible voters. The current regulations allow for seven (7) days and only require employers to provide voter names and home addresses.

The proposed amendments can be found here.

UPDATE 7.19.2011:  Washington Post story on business opposition to the proposed rules can be found here.

The NLRB notice also states that “[t]he Notice of Proposed Rulemaking will be published in the Federal Register on December 22, 2010, and members of the public can submit comments on the proposal for 60 days, until February 22, 2011.”  The Notice can be found here. 

Government contractors are already subject to this requirement.  As of June 21, 2010, federal agencies are required to include provisions in their contracts obligating contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (NLRA) by means of posters.  The regulations can be found at 29 CFR Part 471.

Loparex LLC owns multiple production facilities scattered across the country where it manufactures polycoated and silicone-coated papers and films.  Among its locations, Loparex owns and operates a small manufacturing plant in Hammond, Wisconsin.  When a handful of the 200 employees working at the plant began to drum up interest in unionizing the workforce, Loparex pushed back by placing a number of restrictions on organizing activity at the workplace.  Then, when the company announced several controversial employment policies a small group of employees renewed their efforts to unionize the plant..

Loparex imposed several limitations on union organizing at work. After union supporters posted material on company bulletin boards in March 2007, Loparex issued a policy statement that required employees to obtain approval before placing any material on the boards. A few months later, several employees attempted to distribute prounion flyers in Loparex’s parking lot, but they were stopped by company officials.  Around the same time, employees passed out union buttons in the plant and left some of them near a time clock for other employees to pick up.  When company officials learned of this activity, they quickly called a meeting and told the union advocates that they had violated company policy.  Management also discouraged employees from talking about the union during working hours.  Then, in June or July 2007, Loparex informed all of the shift leaders working at the Hammond plant that they qualified as supervisors under the NLRA and were thus prohibited from participating in union activities.  Following these events, Teamsters Local 662 filed three separate unfair labor practice charges. 

Loparex’s actions were brought to the attention of the NLRB, which concluded that Loparex had engaged in a number of unfair labor practices in violation of the National Labor Relations Act,§ 8(a)(1), 29 U.S.C. § 158(a)(1). The Board ordered Loparex to cease and desist and to take several affirmative steps to remedy its past violations. The ALJ, in November 2008 found that Loparex had violated the Act in several ways:  (1) by promulgating its bulletin board policy because of antiunion animus; (2) by announcing unlawfully broad constraints on employee communications relating to unionization; and (3) by treating shift leaders as though they were supervisors under the Act.  Loparex eventually petitioned the court to set aside the Board’s decision. 

Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Loparex generally permitted employees to use bulletin boards for a variety of non-work purposes but shut off access in response to union organizing activity.  Accorining to the Court, the critical question was whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings (for example, those related directly to work rules). Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Here the ALJ and Court of Appeals found that while the policy itself was facially neutral, Loperex failed to provide evidence that it was not implemented in response to the organizing efforts.  The same thinking led the Court to find that the constraints on employee communications were unlawful.  By purporting to restrict distribution in non-work areas, during break times, Loparex stepped over the line.  “[A] rule is presumptively invalid if it prohibits distribution on the employees’ own time.”

Finally, Loparex, in the midst of the union organizing activities, decided to re-classify its shift leaders as “supervisors” within the meaning of the Act and thus prohibited from engaging in union activities.  To prove that employees qualify as statutory supervisors, an employer has the burden to prove: “(1) [the employees] hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their ‘exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,’ and (3) their authority is held ‘in the interest of the employer.”  Loparex argued that shift leaders qualified as supervisors because they had the authority to responsibly direct employees and assign them work.  The Court did not agree.  The shift leaders’ method of assignment was routine and clerical in nature; therefore, the Board acted within its authority when it concluded that Loparex’s shift leaders did not exercise the requisite independent judgment to qualify as supervisors under the Act.

Loparex v. NLRB, Case Nos. 09-2187, 09-2289, U.S. Court of Appeals for the Seventh Circuit, December 31, 2009.

Contributed by Michael Wilson Stoker

Suzi Prozanski, a copy editor at the Register-Guard, a newspaper published by the Guard Publishing Company, was disciplined for sending union-related e-mails on the company’s computer system in violation of company policy.  The Register-Guard’s e-mail policy prohibited use of the company’s communications systems to “solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.”  Despite this policy, Register-Guard employees often used the e-mail system for personal purposes—for example, to send birth announcements and party invitations—and were not disciplined.

In addition to being a copy editor, Prozanski was also president of the union that represented about 150 Register-Guard employees.  In May 2000, Prozanski sent an email on the company’s e-mail system to union employees to “set the record straight” regarding a company e‑mail warning employees to avoid a union rally that would supposedly attract anarchists.  Prozanski’s email suggested that the company’s e-mail was not entirely accurate.  Prozanski received a disciplinary warning the following day stating that she had violated the company’s e‑mail policy.  In August 2000, Prozanski sent company employees two more emails, one encouraging them to “wear green” to show support for the union’s position in contract negotiations, and another asking for volunteers for an upcoming union parade.  Prozanski received another disciplinary warning following the two emails.  In September, the union filed a charge with the National Labor Relations Board (“NLRB”) alleging unfair labor practices.

The NLRB asserted that the company had violated the National Labor Relations Act (“NLRA”) by “maintaining, promulgating, and enforcing an overly broad no-solicitation policy” and by “discriminatorily enforcing” the policy.  The Administrative Law Judge (“ALJ”) found that the company had not violated the NLRA by maintaining its no-solicitation e-mail policy, but that it had violated the Act with respect to disciplining Prozanski for both the May and August e‑mails.  The ALJ determined that Register-Guard had applied its no-solicitation policy in a discriminatory manner by prohibiting union-related e-mails while allowing other non-work related e-mails.  On review, the NLRB agreed with the ALJ’s determination that the company had engaged in an unfair labor practice by disciplining Prozanski with respect to the May e-mail, but that the August e-mails did constitute solicitations because although the company permitted personal e-mails, there was no evidence that the company allowed employees to solicit other employees “to support any group or organization.” 

On appeal to the D.C. Circuit, the union argued that the company applied its e-mail policy in a discriminatory manner with respect to both the May and August e-mails.  The court began by stating that “a valid no-solicitation rule applied in a discriminatory manner or maintained for discriminatory reasons may not be enforced against union solicitation.”  The court found that there was substantial evidence to support the determination that the company’s discipline of Prozanski with respect to the May e-mail was discriminatory.  The court stated that the company’s no-solicitation policy did not cover the May e-mail because the e-mail was not a “call for action;” rather, it was simply an attempt to clear up the facts surrounding an earlier communication.  Further, the court found the fact that the company permitted other non-work related e-mails was evidence that the company was discriminating against union-related content.

With respect to the August e-mails, the court found that the NLRB’s determination was not supported by substantial evidence.  The court agreed that the e-mails constituted solicitation, as they “called for employees to take action in support of the Union,” but the evidence showed that the company permitted personal e-mail solicitations for things such as sports tickets and similar items.  The court noted that the company’s policy did not distinguish between such individual solicitations and solicitations for groups and “outside organizations.”  The court also found significant that the only employee e-mails that had ever led to disciplinary action by the company were the union-related e-mails at issue.

Contributed by Claudia L. Guzman