Amicus Brief Presses NLRB Not to Expand Its Reach Beyond Union Organizing, Collective Bargaining Matters

July 29, 2011

This week, HR Policy filed an amicus curiae brief with the National Labor Relations Board in a case where the Board is seeking to regulate alternative dispute resolution mechanisms in non-union settings.  Under the rubric of protecting "concerted activity," the Board sought briefs in a case where the NLRB General Counsel is arguing that restrictions against class actions in non-union arbitration agreements violate the labor laws.  Our brief notes the value of ADR mechanisms in saving employers and employees alike both time and valuable resources that would otherwise be spent on litigation.  More importantly, we object to the Board seeking to move beyond its mission:

Class action waivers do not impact an employee’s ability to organize.  They do not restrain employees’ ability to form a union, to work as a group to organize a union, to vote for or against a union, or to communicate with other employees regarding a union.  Class action waivers do not impact the process whereby unions are certified.  While the Acting General Counsel would argue that a class action waiver, in some instances, might constitute an unfair labor practice, this would be a case of a private plaintiff’s “tail” . . . wagging the NLRB’s regulatory mission. The Board would find itself at the center of a mountain of employment litigation involving non-union employers and non-union employees dealing with non-NLRA employment claims.