Like
Punxsutawney Phil, the National Labor Relations Board (NLRB) emerged from the
comfort of that agency’s “den,” in February 2016, only to see some of its
decisions “overshadowed” by the U.S. Court of Appeals for the 8th
Circuit when the court refused to enforce them on appeal. In one case the appellate court reversed a
Board decision that had found an employer unlawfully disciplined an employee
for soliciting union support from co-workers while they were working. In another case involving an employer in the
construction industry, the court determined that the NLRB had issued an
“unlawful order” when it tried to enforce an operating engineers (IUOE Local
150) collective bargaining agreement for employees already covered by an
agreement with the Laborer’s Union (LIUNA).
These were big victories for those involved as well as employers
everywhere, yet it remains to be seen whether they signal an extended season of
cold shoulder treatment for the NLRB in 2016.
If nothing else these recent court rulings signal that our federal
appellate court in the 8th Circuit will not rubber-stamp the Board’s
growing list of aggressive decisions, many of which employers see as favoring
unions and employees over employers.
Employers
unlucky enough to land in the NLRB’s world often find it necessary to pursue
their cases on to the federal courts of appeals in order to feel that they have
a reasonable shot of prevailing. A prime
example that has gained national attention, is the Board’s ruling in its D.R. Horton case involving a non-union
employer. In that case the NLRB ruled
that the employer unlawfully interfered with its employees’ protected right to
engage in “concerted activities” by enforcing an arbitration agreement whereby
employees waived their right to pursue class action claims in court. The 5th Circuit Court of Appeals,
in Louisiana, refused to enforce the D.R.
Horton decision, criticizing the Board’s attempt to equate lawsuits with
strikes and other employee group activities that have long been protected by
federal labor laws. Undeterred, the NLRB
has continued to make similar findings against employers outside the 5th
Circuit. In fact, just as the 8th
Circuit Court of Appeals was rescuing two employers from unfavorable NLRB
decisions the agency issued yet another “Horton-like” decision against a
Minnesota Applebee’s restaurant franchisee.
As in the D.R. Horton case, the
NLRB’s February 2016 Applebee’s ruling
found that the employer’s handbook “Dispute Resolution Program” violated
federal labor law by including a waiver provision on class-action lawsuits.
There
is no reason to think that the Applebee’s
franchisee will not appeal the Board’s decision; after all, the NLRB lost
on appeal in D.R. Horton and since
then at least two other U.S. Courts of Appeals have criticized the Board’s
rationale for declaring class-action lawsuits as a protected form of concerted
employee activity under federal labor law.
If February 2016 is any indication the 8th Circuit will be no
less friendly to the NLRB in this appeal.
It is unfortunate, however, that employers must fight to within one step
of the Supreme Court in order to win these cases.
Questions?
Contact Minnesota attorney James Sherman at (952)
746-1700 or by email at jasherman@wesselssherman.com
