San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

The National Labor Relations Board has issued a ruling addressing employment agreements with arbitration provisions. The agreement in this decision prevented an employee from filing a class action.  See NLRB decision.  The case concerned an agreement used by the homebuilder, D.R. Horton which provided that employees had to bring employment claims to an individual arbitrator.  The employee could not file their claim as part of a class action.  The agreement prevented an employee from fling suit in court as part of a group or class action.  

The NLRB enforces the National Labor Relations Act, the 1930's era statute that protects workers who form unions.  The NLRA also allows workers to discuss terms and conditions of their job - whether they have a union or not.  This provision of the NLRA allows employees to engage in "concerted activity," meaning group activity regarding their jobs.  The Board found that the D.R. Horton agreement infringed on concerted activity.  The ruling does not require class arbitrations.  But, it does find that no agreement may foreclose the possibility of groups of employees seeking remedies in a judicial forum. 

For many years, federal courts have been trending toward affirming employment agreements requiring arbitration of claims.  This D.R. Horton decision is a rare setback for that trend.   

The NLRB is composed of members appointed by the President.  Consequently, it is not unusual for decisions to be changed dramatically when a new administration takes over.  When the administration changes, this decision may well change. 

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As I have described here a few times here, here and here, employees may make negative comments on Facebook about their job.  So long as the employee is deemed to be discussing "terms and conditions" of employment with other employees, then yes, the employee can say things the employer would prefer not to hear.  They may do so pursuant to the National Labor Relations Act which protects workers' right to form or merely consider forming a union.  

According to a San Antonio Express News report, there have been some 100 complaints filed with the National Labor Relations Board regarding Facebook comments about work.  See news report.  Employees do not win every case.  I am sure the outcome often depends on the diligence of a particular NLRB investigator and whether the employee can show s/he shared these concerns with co-workers.  

If the employee merely gripes to himself, the comment would not be protected by the NLRA. In one case, the employee complained about pay and poor quality of services provided by the employer.  The NLRB found that with no indication that the employee discussed these problems with co-workers or that she tried to take these complaints to management, then her gripes were not protected by the NLRA.  If the employee cannot show "concerted" activity, then the activity will not fall under the ambit of the NLRA. 

Employers should note one comment by the NLRB's general counsel: many company media policies are overbroad prohibiting any negative comment about the employer on social media.  Such a policy conflicts with the NLRA and should be avoided.  

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A judge has ordered that five employees who voiced complaints on Facebook be reinstated to their jobs and be awarded backpay.  The five employees of Hispanics United of Buffalo complained about the workloads and other conditions of their job.  HUB is a non-profit agency in Buffalo, New York.  Their supervisor then fired them, saying their Facebook posts were harassing a co-worker.  The Director, however, did not fire his secretary who also posted a complaint.  

One of the five filed a complaint with the National Labor Relations Board.  The NLRB enforces the National Labor Relations Act.  The NLRA comntains a provision that prohibits employers from taking action against employees who discuss "terms and conditions" of their job.  Discussing terms and conditions of a job is seen as leading up to forming a union, which is protected activity.  The NLRB judge eventually agreed with the employees.  See NLRB decision.  

There have been many complaints like this one regarding web based complaints.  I discussed some of them here and here. 

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 Wal-Mart has famously, perhaps infamously opposed union organization in its stores.  They have survived the very few union elections that have been held.  But, they may not survive the latest effort to improve working conditions at Wal-Mart stores.  Organization United for Respect at Wal-Mart (OUR Wal-Mart) does not seek to form a union, but does seek to improve working conditions.  See Workplace Prof report.  The group claims to have thousands of members and will soon have a web site and Facebook page.  They seek to improve the low pay, benefits and simply to gain more respect. 

The group receives some union financial support and in the end, may be a better fit for Wal-Mart workers. 

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 A little known provision in the National Labor Relations Act  provides protection to employees when they discuss "terms and conditions" of employment.  The discussion must be between two or more employees.  The purpose of this provision (remember, the NLRA was passed in 1935) was to protect employees who may be forming a union.  But, for workers today, it means you can discuss issues in the workplace so long as the discussions concern problems at work.  So, for example, several years ago, there was a case where female employees discussed possible sex harassment at work.  The court found that was protected conduct.  They should not have been disciplined for those discussions. 

So, what does "terms and conditions" mean?  What topics will be protected discussion?  In general, the topic needs to apply to more than one employee.  But, if you are not sure, contact theNational Labor Relations Board.  The NLRB enforces the NLRA. 

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The National Labor Relations Board (NLRB) filed a complaint regarding a company which took action against an employee who had posted unfavorable comments about the company on her Facebook page.  See my prior post about this case.  The NLRB and the employer have now settled that case.  As part of the settlement, the company agreed to change its overly broad rules prohibiting employees from discussing their wages, hours and working conditions.  See report. The employer's prior policy had prohibited employees from depicting the employer "in any way" on social media sites or writing disparaging comments about co-workers or superiors.  

So, no agency decision resulted from the complaint.  But, this will surely not be the last Facebook case....

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 The NFL is engaged in labor negotiations over a new contract.  It appears that at one recent meeting, one of the owners displayed some disprespect for two of the player representatives at that meeting, Drew Brees and Peyton Manning.  Jerry Richardson, owner of the Carolina Panthers and former NFL player, listened as Mr. Manning was discussing player safety.  Mr. Richardson then asked what Mr. Manning knows about player safety.  See news report.  

Labor negotiations require that the participants be on their best behavior.  Labor negotiations can be tense even when everyone is behaving nicely.  Mr. Richardosn is apparently trying to start some conflict.  He has been advocating that the owners be more aggressive with the player's union. 

I was a member of a union once.  Even though I was not involved in the negotiations over a new contract, I heard about the negotiations frequently.  They were tense.  But, at least in my union's case, personal attacks were avoided.  

Way back when, Bart Starr was a labor representative for the then new NFL player's union.  Vince Lombardi, hardly a raging lberal, told Mr. Starr that he should show leadership in the union.  Vince Lombardi always pressed his players to be leaders on and off the field.  

Successful labor negotiations require some minimum level of respect by both sides.  Coach Lombardi understood this.  Owner Richardson should also. 

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 It is a little known provision found in the National Labor Relations Act.  An employee has the right to discuss "terms and conditions " of employment with other employees.  An employee can discuss whether they like their supervisor or whether they are paid enough.  Discussions about work issues were seen as the precursor to forming or not forming a union.  So, the National Labor Relations Act, a 1930's era statute, allows employees such discussions.  I discussed this provision in a prior post. The National Labor Relations Board refers to this as "concerted activity."  They define concerted activity as two or more employees getting together to improve working conditions.  See NLRB webpage.  

So, it was sure to happen sometime.  An ambulance driver and union member in Connecticut   discussed and disparaged her boss on her Facebook page.   The remark drew supportive statements from other employees.  The ambulance service fired her.  Now, the National Labor Relations Board is investigating.  They have issued a press release denouncing terminations for an employee discussing terms and conditions of employment.  See press release.  

Dan Schwartz at Connecticut Employment Blog, who primarily represents employers, has warned employers abut this.  See his blog post.  Even though this partiucular employee is a union member, the provision regarding discussing terms and conditions of employment is not limited to union members.  So, employers, if you have a social media policy, make sure it does not prohibit discussions of "terms and conditions" of employment. 

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In most private sector jobs, if you were suspended 17 times by your employer, you would be out of a job.  But, Officer Lee Rakun is still appealing his latest suspension from the San Antonio Police Department.  See San Antonio Express-News story.  In fact, Officer Rakun received his first suspension within a year of starting with the police force.  The SAPD has an active union and a strong Collective Bargaining Agreement (CBA).  So, that helps explain Officer Rakun's tenacity.

The advantage of CBA's is that they typically require some form of "good cause" for termination.  An employee can only be fired for good cause.  Without a CBA, the rest of us are subject to Texas' "at will" employment.  "At will" employment means the employer can terminate anyone for any reason (other than discrimination and a few other exceptions).  The employee handbook so many of us have at our jobs say an employee will be fired for certain infractions.  But, employee handbooks are not binding and they are often violated by the employer. 

So, the next time you are fired for "excessive absences" or because after 14 years of no errors, you are accused of failing to account for one $15 expense, think about unions and Officer Rakun's appeal of his 17th suspension.  

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 A worker in El Paso was vindicated after he was fired for talking to his co-workers about work conditions.  The employer's action in firing the worker violates the National Labor Relations Act.  Taking action against a worker for discussing "terms and conditions" of employment with co-workers violates the NLRA.  Eric Murillo worked for Chaffhaye, Inc. and arranged a meeting with other employees to discuss unsafe working conditions.  His employer fired him.

After filing a complaint with the National Labor Relations Board and seeking representation from the Paso del Norte Civil Rights Project, he was reinstated with lost wages.  OSHA also eventually got involved and also found violations.  See report.  Chaffhaye produces livestock and forage feed. 

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 The workers at the Carlsberg brewery in Copenhagen have gone on strike.  Apparently, management reduced the number of free beers the workers can have every day.  That's right.  The workers receive free beer during the work day.  See report.  How is that for a benefit of employment? 

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 The National Labor Relations Act protects the rights of workers who organize unions.  One thing the employer cannot do during an organization attempt is ask questions of the employees about the organizing activity and threaten the workers with fewer hours and less pay if they do form a union.  That appears to be what the Grand Hyatt corporation did when a worker tried to organize a union.  See San Antonio Express News story.  Now, they have to reinstate the employee and pay lost wages.  This came as a result of a National Labor Relation Board's complaint.  The NLRB does not accept many complaints.  When they do, the employer needs to be ready.  

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 A recent study of 1004 attempts to unionize a workplace finds that employers threatened to close the plant in 57% of those attempts and threatened to cut wages and benefits in 47% of the campaigns.  In 63% of these campaigns, supervisors met with employees in one-on-one meetings to ask workers whether they supported the union.  Of course, interrogating workers about union preferences violates the National Labor Relations Act.  The study was conducted by a Cornell University professor. 

Unions are not a major force in Texas, but even today, union traditions, such as morning coffee breaks, influence many workers in Texas.  Without some union presence somewhere in the workforce, many workers in Texas will suffer. 

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 A little known provision in the National Labor Relations Act  provides protection to employees when they discuss "terms and conditions" of employment.  The discussion must be between two or more employees.  The purpose of this provision (remember, the NLRA was passed in 1935) was to protect employees who may be forming a union.  But, for workers today, it means you can discuss issues in the workplace if they truly relate to problems at work.  It does not matter that the discussions may not lead to the creation of a union.  So, for example, several years ago, there was a case where female employees discussed possible sex harassment at work.  The court found that was protected conduct.  They should not have been disciplined for those discussions. 

So, what does "terms and conditions" mean?  What topics will be protected discussion?  In general, the topic needs to apply to more than one employee.  But, if you are not sure, contact the National Labor Relations Board.  The NLRB enforces the NLRA.  The NLRB is very helpful.  

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