Wyatt Employment Law Report


Leave a comment

Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration

By Edwin S. Hopson

The U.S. Court of Appeals for the Fifth Circuit in a split decison in D.H. Horton v. NLRB, No. 12-60031, decided December 3, 2013, rejected the NLRB’s ruling that an agreement between employees and Horton requiring arbitration and prohibiting class or collective actions in arbitration was a violation of the National labor Relations Act.  That agreement also required that all employment related disputes be resolved individually through arbitration.  The Board panel of Pearce and Becker (Hayes had recused himself) had concluded that prohibiting employees from pursuing class or collective action claims in arbitration infringed on substantive rights under Section 7 of the Act. It also held that the agreement discouraged employees from filing charges with the Board.

The court in rejecting the Board’s position on class or collective actions focused on the Federal Arbitration Act which favors arbitration.  After a detailed analysis of the NLRB’s arguments as to why the NLRA should govern, rather than the FAA, the court concluded that the Board’s arguments lacked merit.  However, the court did enforce the Board’s order pertaining to discouragement of employees from filing charges with the Board.

The court also rejected challenges to the underlying Board decision based on the invalidity of Member Becker’s recess appointment and the timing of the expiration of his recess appointment.

The full text of the decision can be found at:

http://www.ca5.uscourts.gov/opinions/pub/12/12-60031-CV0.pdf


Leave a comment

Third Circuit Court of Appeals Invalidates Recess Appointment to the NLRB

By Edwin S. Hopson

On May 16, 2013, a panel of the U.S. Court of Appeals for the Third Circuit (in a 2 – 1 decision) in National Labor Relations Board v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936 (3rd Cir. 2013), decided that the orders issued by the NLRB in this case could not be enforced because former NLRB Member Craig Becker’s recess appointment in March 2010 was invalid.  This is the second federal court of appeals to rule that a recess appointment to the NLRB by President Obama was invalid—the first being the D.C. Circuit Court of Appeals, in Noel Canning v. NLRB, as to which the NLRB has petitioned the U.S. Supreme for review.


Leave a comment

NLRB Announces Case Statistics for Fiscal Yeal 2012

By Edwin S. Hopson

On October 16, 2012, the National Labor Relations Board announced that in the fiscal year just ended on September 30, 2012, it had issued 341 decisions in contested cases.  Of that total, 277 were unfair labor practice cases and 64 were representation cases.  It also stated that the median age of pending cases was reduced from 219 days to 108 days.

It was also noted that there was considerable turnover in board members during this past fiscal year:  the recess appointment of Member Craig Becker expired on Jan. 3, 2012; three new members – Richard F. Griffin, Jr., Sharon Block and Terence Flynn – were recess-appointed by the President and took office in early January, 2012; and Member Flynn resigned his position effective July 24, 2012. The Board currently has four of the five board member positions filled by Chairman Mark Pearce, and Members Hayes, Griffin and Block.  Hayes’ term expires on December 16, 2012.

In its October 16 press release, the Board listed a number of cases of significance that were decided this past fiscal year:

“Mandatory arbitration: In D.R. Horton, the Board ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prohibit them from joining together in any forum to bring legal claims against the employer.

Lawsuits as unfair labor practices: A number of decisions, including two issued by the full Board, found that lawsuits filed by employers or unions may be unfair labor practices in certain circumstances. Federal Security Inc.; J.A. Croson Co.; Operative Plasterers and Cement Masons (Standard Drywall); Sheet Metal Workers (EP Donnelly); and Allied Mechanical Services.

Symphony musicians: In three cases, set in Cape Cod, MA, Lancaster, PA, and Plano, TX, the Board found that symphony musicians are employees, not independent contractors, and so are eligible to join a union.

Facebook firings: In its first look at a case involving a discharge for Facebook posts, the Board found that the particular postings that led to the discharge were not protected. More such cases are pending.

Immigration status and backpay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine backpay awards, and cannot raise the question as a ‘fishing expedition’ to avoid payment. 

Successor employer obligations: In Massey Energy Company, the Board found that the company unlawfully refused to hire former unionized employees in order to avoid union obligations at a coal mine. The Board also found the company to be a single employer with its subsidiary, Mammoth Coal Company.

Specialty Healthcare standards: The Board applied the standards for unit determination that were clarified in its August 2011 opinion in Specialty Healthcare to several cases, including DTG Operations, Northrop Grumman Shipyard, and Odwalla, Inc.”


1 Comment

Federal Judge Overturns NLRB’s New Rules Regarding Union Representation Elections

By Edwin S. Hopson

A federal judge in Washington, D.C. has ruled in Chamber of Commerce of the United States, et al. v. National Labor Relations Board that the NLRB lacked a quorum when it approved new rules governing union representation elections and that therefore the rules are invalid.  In his May 14, 2012 decision, U.S. District Judge James Boasberg found that NLRB Member Brian Hayes did not participate in the vote on the new rules, and that only Chairman Pearce and Member Becker actually were present for quorum purposes.  Under the Supreme Court’s decision in New Process Steel, it is clear the NLRB cannot effectively act with only two members as a quorum.  The Court pointed out that the NLRB could take up the rules again and consider their passage with a proper quorum.  The decision may be viewed at:

http://www.laborrelationscounsel.com/Chamber%20of%20Commerce%20v.%20NLRB.pdf


Leave a comment

House Committee to Hold Hearings on President’s Recess Appointments to NLRB

By Edwin S. Hopson

On February 1, 2012, the U.S. House Oversight and Government Reform Committee was to hold a hearing entitled “Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments.” The purpose of the hearing was to explore the possible consequences of the President’s three recess appointments to the National Labor Relations Board and the recess appointment of the Director of the Consumer Financial Protection Bureau on January 4, 2012.

 Republican Committee Chairman Darrell Issa stated in a preview statement posted on the committee’s website:

 “If the United States Senate can pass a bill and send it to the President for his signature, it is clearly not in recess. But a “recess” is exactly what President Obama has argued in justifying four recent appointments.”

 In prepared testimony, opponents of the appointments argue that with respect to the NLRB that all future decisions and regulations issued by the Board will be under a “cloud” and subject to constitutional challenge until the issue is resolved.  They argue that the Senate had not recessed and was holding a series of “pro forma” sessions. 

Proponents of the President’s action argue he had no choice since, in the case of the NLRB, it was about to be shutout from issuing decisions for lack of a quorum with the expiration of Member Becker’s recess appointment in early January.

It is not clear what if any action could be taken by the House of Representatives other than to perhaps develop a “road map” for use in a later court challenge of the appointments.

 The U.S. House Education and the Workforce Committee is planning a similar hearing for February 7, 2012.


Leave a comment

NLRB Invalidates Mandatory Arbitration Provision Restricting Class Claims

In a decision issued January 3, 2012, a two Member NLRB, with Member Hayes recusing himself, ruled in D.R. Horton, Inc., 357 NLRB No. 184 (2012), that an employer may not require employees covered by the National Labor Relations Act to sign arbitration agreements which prevent them from pursuing class or collective action claims in court or arbitration.  Such agreements, according to Chairman Pearce and Member Becker, violate Section 7 of the Act.  In reaching this decision, the Board rejected a 2006 NLRB General Counsel internal opinion to the contrary. 

The agreement in question prohibited an arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.  Prior to its decision, the Board had sought amicus briefs on the issues raised by the case from interested parties and received more than a dozen.

The Board’s order requires D.R. Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all other possible forums including the courts and arbitration.


Leave a comment

Chamber of Commerce Files Suit Challenging the NLRB’s New Rules on Union Elections

By Edwin S. Hopson

On December 20, 2011, the U.S. Chamber of Commerce filed a suit in the U.S. District Court for the District of Columbia challenging the NLRB’s amendments to its regulations governing union representation elections and seeking injunctive relief to stop the Board’s enforcement of the new rules.

The suit claims that the amendments violate the Administrative Procedure Act, the Regulatory Flexibility Act and the National Labor Relations Act, as well as the First and Fifth Amendments to the U.S. Constitution. The Chamber also alleges that:

 “The Board rushed through the rulemaking process because it was committed to put the Rule in place before the end of Member Becker’s recess appointment, following which there would be no majority support among Board members in favor of the Resolution or the Final Rule and the Board itself would be reduced to two members, rendering it incapable of further action.”

As to many of its claims and bases for relief, the Chamber relies upon statements made by Republican Member of the Board, Brian Hayes, in his dissent to the proposed rule making.

The following is a link to the lawsuit: 

http://www.chamberlitigation.com/sites/default/files/cases/files/2011/Chamber%20of%20Commerce,%20et%20al.%20v.%20NLRB%20(Ambush%20Election%20Rule)%20Complaint).pdf