NLRB Continues to Target Non-Union Employers, by David McClurg

Posted by Attorney Roger L. Pettit / Comments

Despite court rulings blocking implementation of NLRB Rules requiring the posting of employee rights under the National Labor Relations Act  and “quickie” union elections , Obama appointees on the NLRB continue to boldly push a blatantly pro-employee agenda designed to encourage action by non-union employees. Last week the Board launched a website specifically designed to educate employees about their right to engage in “protected concerted activities” including the right to “form, join or assist labor organizations, bargain collectively through representatives of their own choosing, and to engage in other concerted protected activities for the purpose of collective bargaining or other mutual aid or protection.”

The website includes summaries of cases decided by the Board, and begins with the statement: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.” Board Chairman, Mark Gaston Pierce stated in a press release describing the website:

"We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers."

The launching of this website follows a number of other actions taken by this Board, purportedly to protect employees’ rights to engage in “protected concerted activity,” that raise concerns for non-union employers. The NLRB’s Phoenix office issued a complaint against Hyatt Corporation earlier this year alleging that the hotel chain violated the National Labor Relations Act by requiring its employees to sign an acknowledgement that they are at-will employees, and that their status can only be changed by a written document signed by one of two identified Hyatt executives. Many employers use similar provisions to avoid arguments that statements by HR personnel or lower level supervisors effectively created an employment contract under which the employee can only be terminated for “just cause.”

In a startling departure from prior Board acquiescence to the wide spread use of at-will acknowledgements in employee handbooks issued by employers all across the country, the Board took the position that the at-will provisions in the Hyatt handbook “could be construed as prohibiting employees from joining together to seek a negotiated change in their at-will status.”

Hyatt reached a settlement with the NLRB in which it agreed to exclude the allegedly over-broad acknowledgment form from its handbooks and rescind those previously obtained acknowledgements that included the challenged language. However, commentators around the country  have criticized the Board’s actions as an over-reaching attack on the well settled doctrine of at-will employment, and an attempt to control the terms and conditions of employment of non-union employees.

In another move against non-union employers, the Board decided earlier this year that multi-state home builder, D.R. Horton violated the NLRA by requiring its employees to execute arbitration agreements providing that the arbitrator could hear only individual claims, and could not  award relief to a group or class of employees in one arbitration proceeding. The Board held that this limitation in the arbitration agreement interfered with the employees’ rights to engage in “protected concerted activity.”

This decision appears to fly in the face of several recent Supreme Court decisions upholding limitations on class action claims in arbitration agreements in consumer contracts based on the provisions of the Federal Arbitration Act, as well as prior lower court decisions upholding class action waivers in employment related arbitration agreements. Several federal district courts have already declined to follow the D.R. Horton ruling, indicating that they must follow the Supreme Court decisions holding that arbitration agreements, including the class action waivers contained in them, must be enforced according to their terms. These actions are further examples of Board efforts to diffuse union resentment over Obama’s failure to push the Employee Free Choice Act while he still had democratic majorities in Congress and to motivate the unions to mobilize their people and resources to re-elect the President.