– Re: Trump and Pence are anti-union
In Reply To
Conspiracy Heavy My Ass!
Here's a primer for you; an excerpt by the NLRB (Employers Resource) filed in the 5th Cir.
* How many cases cited in it have you read?
* How many McCarron violations do you recognize off the top of your head - please list.
* What are the Top 3 Cases McCarron has pushed through the NLRB or Appellate Court which have negated all of your NLRA Section 7 rights?
When you can do that; the very basics, then you can talk all you want about conspiracy theories. What I am speaking of is a criminal racketeering enterprise.
B. The Company Violated Section 8(a)(1) of the NLRA by Enforcing the Agreement in a Way that Interferes with Employees’ Section 7 Rights
Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and . . .to refrain from any or all of such activities.” 29 U.S.C. § 157 (emphasis added). Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), prohibits employers from engaging in conduct that “reasonably tends to interfere with, restrain or coerce employees” in the exercise of rights guaranteed by Section 7. NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1340-41 (5th Cir. 1980). Under well established Board precedent, approved by this Court, a work rule is unlawful under Section 8(a)(1) if it explicitly restricts, or is applied to restrict, activities protected by Section 7. Lutheran Heritage Vill.-Livonia, 343 NLRB 646, 646-47 (2004);
While circuit law stands in the way of the panel’s acceptance of the Board’s
arguments, it is open to the panel to suggest to the full Court the appropriateness of
en banc review to reconsider circuit law. See 5th Cir. IOP 35.
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Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 208-09 (5th Cir. 2014); see also D.R. Horton, 737 F.3d at 363 (applying Lutheran Heritage to assess whether arbitration agreement interfered with employees’ right to file Board charges). Central to this case is the Board’s court-approved interpretation of Section 7 as protecting the right of employees to engage in concerted legal activity as part of the broader right to engage in concerted activity for mutual aid or protection. Eastex, 437 U.S. at 565-66 & nn.15-16 (1978) (recognizing that Section 7 encompasses not only collective bargaining but also other concerted activity, both in the workplace and in legislative and judicial forums); Murphy Oil USA, Inc., 361 NLRB No. 72, 2014 WL 5465454, *1 (Oct. 28, 2014) (quoting Eastex and noting Supreme Court’s agreement that “Section 7 protects employees ‘when they seek to improve working conditions through resort to administrative and judicialforums’”); Lewis v. Epic Sys. Corp., No. 15-2997, 2016 WL 3029464, at *2 (7th Cir. May 26, 2016) (“[F]iling a collective or class action suit constitutes ‘concerted activit[y]’ under Section 7.”); Altex Ready Mixed Concrete Corp. v. NLRB, 542 F.2d 295, 297 (5th Cir. 1976) (“Generally, filing by employees of a labor related civil action is protected activity under Section 7 of the NLRA unless the employees acted in bad faith.”).4 Courts have recognized that the Board’s construction falls
See also Brady v. Nat’l Football League, 644 F.3d 661, 673 (8th Cir. 2011) (“[A]
lawsuit filed in good faith by a group of employees to achieve more favorable
terms or conditions of employment is ‘concerted activity’ under [Section] 7 . . . .”)
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squarely within its expertise and its responsibility for delineating federal labor law, generally, and Section 7 in particular. See City Disposal, 465 U.S. at 829 (noting that “the task of defining the scope of [Section] 7 ‘is for the Board to perform in the first instance as it considers the wide variety of cases that come before it’”) (quoting Eastex, 437 U.S. at 568). Equally rooted in longstanding Board and judicial precedent is the principle that individual contracts that prospectively waive Section 7 rights violate Section 8(a)(1) “no matter what the circumstances that justify their execution or what their terms.” J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944); Nat’l Licorice Co. v. (emphasis in original); Mohave Elec. Coop., Inc. v. NLRB, 206 F.3d 1183, 1188-89 (D.C. Cir. 2000) (concerted petitions for injunctions against workplace harassment); Spandsco Oil & Royalty Co., 42 NLRB 942, 948-50 (1942) (finding protected three employees’ joint lawsuit filed under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. The Company’s insistence (Br. 66-69) that Torres’ wage-related lawsuit was not “concerted” because she filed it as a single plaintiff on behalf of similarly situated employees is without merit. As the Board observed: “‘the filing of an employment-related class or collective action by an individual is an attempt to initiate, to induce, or to prepare the group for action and is therefore conduct protected by Section 7.’” ROA 397 n.2, quoting Beyoglu, 362 NLRB No. 152, 2015 WL 4572913 (July 29, 2015); accord Meyers Indus., 281 NLRB 882, 887 (1986) (concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action . . . .”), enforced sub nom., Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). By filing her lawsuit as a putative collective action, Torres signaled her intent to proceed collectively, and sought to induce participation of similarly situated employees. Thus, contrary to the Company’s characterization (Br. 68), Torres’ filing of the complaint was not the isolated conduct of a single employee, but, rather, the
inchoate stages of concerted activity.
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NLRB, 309 U.S. 350, 364 (1940) (“[E]mployers cannot set at naught the [NLRA] by inducing their workmen to agree not to demand performance of the duties which the [statute] imposes.”); Lewis, 2016 WL 3029464, at *4 (agreeing with longstanding precedent finding contracts requiring employees to renounce Section 7 rights are unlawful); NLRB v. Port Gibson Veneer & Box Co., 167 F.2d 144, 146 (5th Cir. 1948) (employers “may not require individual employees to sign employment contracts which, though not unlawful in their terms, are used to deter self-organization”); First Legal Support Servs., 342 NLRB 350, 362-63 (2004) (unlawful to have employees sign contracts stripping them of right to organize).5 This Court’s decision in D.R. Horton did not undermine those fundamental, longstanding principles. Indeed, this Court acknowledged that the Board’s interpretation of Section 7 finds support in Supreme Court and circuit precedent.
See also NLRB v. Stone, 125 F.2d 752, 756 (7th Cir. 1942) (finding that
individual contracts requiring employees to adjust their grievances with their
employer individually violate the NLRA, even without coercion); Eddyleon
Chocolate Co., 301 NLRB 887, 887 (1991) (unlawful to ask job applicant to agree
not to join union); Bon Harbor Nursing & Rehab. Ctr., 348 NLRB 1062, 1073,
1078 (2006) (employer unlawfully conditioned employees’ reinstatement, after
dismissal for non-union concerted protest, on agreement not to engage in further
similar protests); Ishikawa Gasket Am., Inc., 337 NLRB 175, 175-76 (2001)
(employer unlawfully conditioned employee’s severance payments on agreement
not to help other employees in workplace disputes or act “contrary to the
[employer’s] interests in remaining union-free”), enforced, 354 F.3d 534 (6th Cir.
2004); McKesson Drug Co., 337 NLRB 935, 938 (2002) (finding employer
violated Section 8(a)(1) by conditioning return to work from suspension on broad
waiver of rights, both present and future, to invoke Board’s processes for alleged
unfair labor practices).
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D.R. Horton, 737 F.3d at 356-57 (citing City Disposal, 465 U.S. at 831-82, 835-36; Brady, 644 F.3d at 673; 127 Rest. Corp., 331 NLRB 269, 275-76 (2000)). Under the well-accepted principles set forth above, the Board properly found (ROA 397 n.2) that the Company’s application of the Agreement to curb employees’ Section 7 rights rendered the Agreement unlawful under Lutheran Heritage. 343 NLRB at 647 (rule unlawful if applied to restrict Section 7 rights). It is the rule’s application to protected conduct that establishes its unlawfulness. It does not matter that the rule or policy itself does not explicitly restrict Section 7 activity; enforcement alone is an unfair labor practice. See Countrywide Fin. Corp., 362 NLRB No. 165, 2015 WL 4882655, at *4-6 (Aug. 14, 2015), petition for review filed, 9th Cir. 15-72700, 15-73222; Hitachi Capital Am. Corp., 361 NLRB No. 19, 2014 WL 3897175, at *3 (Aug. 8, 2014).