Class Waiver Ban Comes Before 5th Circuit: Abigail Rubenstein of Law360 ($$) reports that the Court of Appeals for the 5th Circuit entertained arguments yesterday as to whether employees can be required to sign arbitration agreements waiving their ability to bring class claims. Attorneys for petitioner D.R. Horton argued that the 5th Circuit should join a myriad of other courts that have rejected the National Labor Relations Board’s ruling that employees have a right under federal labor law to bring class action claims.
“The intellectual gymnastics from the NLRB in avoiding the clear precedent from the Supreme Court in some instances and completely ignoring it in others flaunts that Supreme Court authority and cannot stand,” [Mr.] Chapman, [attorney for D.R. Horton] told the court.
The Board, however, argued that the whole point of labor law under the National Labor Relations Act is to allow for the pursuit of protected and concerted activity. Allowing employers to compel employees to sign class action waivers, the Board contended, would effectively gut the employees’ ability to act for their mutual aid and protection.
Interestingly, at the suggestion of the Judge, neither side made much of the D.C. Circuit’s ruling in Noel Canning, which invalidated President Obama’s recess appointments to the Board. We will be watching this decision closely.
Van Drivers Protest Labor Conditions in Palm Beach: Lona O’Connor of the Palm Beach Post reports that a group of van drivers represented by the Amalgamated Transit Union (ATU) protested outside of the headquarters of Metro Mobility Management (Metro) in response to what they deem to be unfair labor conditions. Specifically, the drivers are complaining of low pay, 12-hour shifts, and difficult schedules.
Metro and the ATU have had run-ins in the past. In 2008, after the ATU won a certification vote to represent the van drivers, Metro refused to bargain with the union, which violated the National Labor Relations Act.
Meanwhile, complaints of bad service have hounded Metro for years. The county commission is set to decide whether to renew Metro’s contract. We will keep you posted as the situation develops.
Chamber President Weighs in On Recess Appointment Debacle: Politico has published on op-ed written by Chamber of Commerce President Thomas J. Donohue addressing the fallout over the D.C. Circuit’s invalidation of President Obama’s recess appointments to the National Labor Relations Board. Donohue posits, with all of the uncertainty surrounding the current state of labor law, what could possibly happen next for regulated businesses.
Those regulated by the NLRB now face a host of difficult questions: Are the NLRB’s orders currently valid? Will they be invalidated in the future? Can a company reopen a case that has already been decided against it? Does a company need to raise a challenge to the recess appointments in its own case? What will happen if the NLRB sues to enforce an order outside of the D.C. Circuit? Should a company rush to file an appeal in the D.C. Circuit? Can a company wait to see what happens in the Supreme Court, or must it comply with an NLRB order now?
Donohue raises some great points that employers may want to consider. However, he also notes that as of now, it’s business as usual at the Board, according to Chairman Pearce. We will keep you posted on any and all recess-appointment developments.