Wyatt Employment Law Report


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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.”


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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.