SCRUTINY OF EMPLOYER POLICIES AND PRACTICES CONTINUES AS THE NLRB AWAITS TRUMP’S APPOINTMENT OF NEW BOARD MEMBERS

President Trump has the opportunity to fill vacant seats on the National Labor Relations Board (“NLRB” or “Board”), creating an employer-friendly and Republican majority. He will also be able to appoint new general counsel of NLRB in November 2017. No new board members have been appointed, although reports have circulated that he is narrowing in on potential appointees.[1] It is suspected that his final appointments to these positions will occur by the end of the year.   

Recent determinations by the NLRB under the Obama Administration have expanded employees’ rights and awardable damages for violations of the NLRA, and have restricted employers’ freedom of contract, notably by limiting class-action waivers in employment arbitration agreements.[2] An employer-friendly NLRB could mark relief from further employer restrictions, and bring about a narrower reading of the National Labor Relations Act (the “Act”) in many instances.

However, until that time arrives, the Board will not sit idle. As recently demonstrated, the Board continues to closely scrutinize employer policies and practices.

The Dish Network, Inc. Decision

The Board recently held that Dish Network, Inc.’s (Dish) arbitration agreement violated employees’ rights to engage in protected concerted activity under Section 7 of the NLRA.[3] The Agreement in question required arbitration of “any claim . . . in any way related to . . .  employment, whenever and wherever brought.” The Board found that this broad language violated Section 8(a)(1) of the Act,[4] because the provision did not limit the types of claims to be resolved in arbitration, and failed to provide an exception for charges an employee wishes to file with administrative agencies, such as an action with the NLRB.

In Dish, the Board also found that the company’s instruction to an employee to not discuss his suspension with other employees, without providing any justification for the instruction, violated Section 8(a)(1) of the Act. This holding was consistent with the Board’s previous decisions that employees have a right to discuss discipline or disciplinary investigations with fellow employees, and that an employer’s action to restrict those discussions is unlawful absent demonstration of a legitimate and substantial business justification. 

Practical Takeaway

Union and non-union employers violate Section 8(a)(1) of the Act if they maintain an arbitration policy that employees would reasonably believe interferes with their ability to engage in protected concerted activities, file a Board charge, or access the Board’s processes. Employers should review their arbitration agreements to ensure they contain clear language that employees should reasonably understand permits them to file appropriate employment-related claims with administrative agencies.

Employers should also counsel their human resources department and management to avoid giving blanket direction to employees not to discuss any disciplinary action with others, absent a legitimate and substantial business justification requiring the instruction (such as the need to maintain confidentiality to ensure an ongoing investigation is not tainted).

[1] Chris Opfer and Ben Penn, Trump NLRB Shortlist Down to Three, Bloomberg BNA (Feb. 23, 2017), https://www.bna.com/trump-nlrb-shortlist-n57982084216/.

[2] See prior Rocky Mountain Employer articles: NLRB Finds Employer Unlawfully Prohibited Employees from Discussing Union (Jan. 26, 2017), http://www.rockymountainemployersblog.com/blog/2017/1/26/nlrb-finds-employer-unlawfully-prohibited-employees-from-discussing-union; Supreme Court will Determine Whether Employers May Use Class Action Waivers in Employment Arbitration Agreements (Jan. 19, 2017) http://www.rockymountainemployersblog.com/blog/2017/1/19/supreme-court-will-determine-whether-employers-may-use-class-action-waivers-in-employment-arbitration-agreements; Employers Risk Expanded Damage Awards in NLRB Unfair Labor Practices Case After NLRB Changes Method of Calculating Backpay (Aug. 25, 2016)  http://www.rockymountainemployersblog.com/blog/2016/8/25/employers-risk-expanded-damage-awards-in-nlrb-unfair-labor-practice-cases-after-nlrb-changes-method-of-calculating-backpay; NLRB Decision Highlights Difficulty Staffing Agencies and Franchisees Will Face When Defending Joint Employer Claims Under Browning-Ferris Test, (August 18, 2016) http://www.rockymountainemployersblog.com/blog/2016/8/18/nlrb-decision-highlights-difficulty-staffing-agencies-and-franchisees-will-face-when-defending-joint-employer-claims-under-browning-ferris-test; NLRB Decision Limits Employers Right to Hire Permanent Replacements During Economic Strikes (June 9, 2016) http://www.rockymountainemployersblog.com/blog/2016/6/9/nlrb-decision-limits-employers-right-to-hire-permanent-replacements-during-economic-strikes; NLRB General Counsel Seeks to Further Limit Employers Right to Unilaterally Withdraw Union Recognition (May 19, 2016) http://www.rockymountainemployersblog.com/blog/2016/5/19/nlrb-general-counsel-seeks-to-further-limit-employers-right-to-unilaterally-withdraw-union-recognition.

[3] See Dish Network, LLC and Brett Denney, Case 27-CA-158916, slip op. (Apr. 13, 2017).

[4] Section 7 of the Act gives employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from engaging in such activities.  29 U.S.C. § 157. Section 8(a)(1) of the Act makes it an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. 29 U.S.C. § 158(a)(1).

 

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