This long-recognized right of employees to bring collective and class actions is under attack by forced arbitration agreements. Sophisticated companies demand that all their employees give up these rights as a condition of employment. “An employer’s requirement that its employees prospectively waive their rights to engage in concerted legal activity about their conditions of employment is as much a violation of section 8(a)(1) as a ‘yellow dog contract’ prohibiting unionization altogether,” the amicus brief argued.
In this case, the D.R. Horton company attempted to use a recent Supreme Court decision to block collective actions by employees. In AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), a 5-4 majority held that companies can use the Federal Arbitration Act (FAA) to block consumers from bringing class action arbitrations. However, the Supreme Court was looking at California’s attempt to hold such arbitration agreements unconscionable. The Supreme Court did not consider the effect of the National Labor Relations Act (NLRA), 29 U.S.C. § 157, which specifically protects the right of covered employees to act in concert for their mutual aid and protection. Courts have long held that this federal right specifically protects the right of employees to join together in legal actions against their employer. Eastex Inc. v. NLRB, 437 U.S. 556, 566 (1978). No union is necessary for employees to be protected when they act in concert. Brady v. NFL, 644 F.3d 661, 673 (8th Cir. July 8, 2011). Still, it would be good if Congress would enact the Arbitration Fairness Act (AFA) to prohibit companies from forcing any arbitration agreements on consumers or employees.
The NLRB explained its decision saying:
It is well settled that “mutual aid or protection” includes employees’ efforts to “improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employe-eemployer relationship.” Eastex, Inc. v. NLRB, 437 U.S.556, 565–566 (1978). The Supreme Court specifically stated in Eastex that Section 7 “protects employees from retaliation by their employer when they seek to improve their working conditions through resort to administrative and judicial forums.” Id. at 565-566. The same is equally true of resort to arbitration.
The NLRB adopted this argument suggested by our amicus brief:
Modern Federal labor policy begins not with the NLRA, but with earlier legislation, the Norris-LaGuardia Act of 1932, which aimed to limit the power of Federal courts both to issue injunctions in labor disputes and to enforce “yellow dog” contracts prohibiting employees from joining labor unions. Thus, Congress has aimed to prevent employers from imposing contracts on individual employees requiring that they agree to forego engaging in concerted activity since before passage of the NLRA. [Footnotes omitted.]
This decision applies only to those employees who work for private companies in the United States and have a right to organize a union. However, it will apply to these employees whether or not they actually have a union. Additionally, NLRB decision often lead other agencies to adopt the same policies. In the past, some NLRB policies have been overturned once a new president appoints Board members who have different philosophies.
Special thanks go to attorneys Michael C. Subit (of Frank Freed Subit & Thomas LLP in Seattle, Washington), Victoria W. Ni (of Public Justice in Oakland, California) and Rebecca M. Hamburg (of the National Employment Lawyers Association in San Francisco) for leading the organizing and writing for this brief.