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Protected Concerted Activity

The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court. Recent cases involving a range of industries and employees are highlighted on the map below; please hover over a pin for a summary or click and the full story will appear below.

Lakewood, Washington
Construction contractor
19-CA-31580

A construction contractor fired five employees after several of them appeared in a YouTube video complaining of hazardous working conditions. Following an investigation, the NLRB regional office issued complaint. As a hearing opened, the case settled, with the workers receiving full backpay and declining reinstatement.

The employees, all immigrants from El Salvador, learned they were building concrete foundations at a former Superfund site and worried that the soil they were handling was contaminated with arsenic and other toxins. They also said they were required to wear badges indicating they’d been trained to handle hazardous materials, when in fact, the badges belonged to other workers and they had never been trained.

Three of the employees took their concerns public in a YouTube video posted on July 21, 2008. Speaking in Spanish, they hid their faces in shadow in an attempt to avoid retaliation. However, within 10 days, the three who appeared in the video and two others who were close to them had all lost their jobs with Rain City Contractors. Through the ensuing months, according to charges filed with the agency’s Seattle office, the employer continued to threaten and interrogate other employees, warning them not to talk about working conditions with outsiders.

Following an investigation of the charges, the NLRB Regional Director determined that the YouTube video was protected because the employees voiced concerns about safety in the workplace, and the public airing of their complaints did not lose the Act's protection because they accurately described their concerns about working conditions. On behalf of the NLRB General Counsel, the director issued a complaint calling for a hearing before an administrative law judge.

As the hearing began in June of 2009, NLRB attorneys were prepared to play the video, and to present evidence that the employer had been fined for numerous violations of state law regarding the same concerns as those raised by the workers. However, on the second morning of testimony, Rain City Contractors agreed to settle the case by giving all five workers full backpay for the period from their discharges to the settlement date. The workers declined reinstatement. 

During a meeting at its skilled nursing and rehabilitation healthcare facility in Muncie, Indiana, Kindred Transitional Care and Rehabilitation (Employer) distributed a communications policy governing employees’ use of social media.  The Employer told employees that they had to sign the policy, and that they would be fired if they didn’t.  One employee expressed concerns to her co-workers that the policy too broadly restricted internet communications, including even while employees were off-duty.  Ultimately, the employee refused to sign the policy.  The Employer subsequently summoned her to the manager’s office where she was fired for refusing to sign the policy.

The employee filed a charge with the NLRB’s Indianapolis Regional Office alleging that the policy violated her rights under the National Labor Relations Act (NLRA) and that she was wrongfully fired.  After an investigation, the Regional Director determined that the Employer’s social media policy contained several unlawful sections which restricted employees’ ability to discuss their terms and conditions of employment, including an overly broad provision requiring the Employer’s approval to solicit certain online “friends” or other social media contacts and requiring employees to include a disclaimer in their internet postings about the company or work-related activities.  The Regional Director also concluded that the employee was unlawfully discharged for talking to co-workers about concerns with the social media policy and for refusing to sign the flawed policy.

After the NLRB notified the Employer that it intended to issue a complaint, the company settled the case.  The employee was reinstated to her former job with full backpay of nearly $12,000.  The Employer also agreed to remove those sections of their social media policy which restricted employees’ rights and post a Board notice to employees advising them of their rights under the Act.

On March 12, 2014, the Board (360 NLRB No. 62) affirmed an NLRB administrative law judge’s earlier ruling that Greater Omaha Packing, a Nebraska-based meat processing and packaging plant, unlawfully discharged employees after they engaged in protected concerted activity.

In April 2012, a group of employees walked off the production line to protest the speed of the line and other working conditions, and thereafter met with the plant manager. That evening, the employees again met with the plant manager, to discuss their compensation and other matters. One month later, when the Employer learned that another work stoppage was planned, three employees were separately called into the office and dismissed. The employees filed a charge with the NLRB’s office in Overland Park, Kansas, which investigated and issued a complaint. An NLRB administrative law judge found that the Employer had unlawfully discharged the employees in retaliation for engaging in concerted protected activity.

The employer appealed the judge’s order, leading to the Board’s decision affirming the judge’s ruling and requiring the Employer to reinstate the employees with full backpay and benefits.

For many months, a school bus driver and some of her colleagues complained to management about the unruly behavior of students on their school buses.  Students reportedly kicked, pushed, struck and spit at drivers.  The driver met with a local television news reporter and described in detail the students’ behavior, the hazards it posed for drivers and management’s failure to respond to driver complaints about the issue.  After the interview aired, the company fired the bus driver.

The driver’s union filed a charge on her behalf with the NLRB’s Buffalo regional office. The NLRB concluded that the employee was engaged in protected concerted activity when she spoke to the news crew and the company violated the law when it fired her.  The case was settled just before the trial began. 

Five employees of Hispanics United of Buffalo, which provides social services to low-income clients, were fired after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

 After hearing a coworker criticize other employees for not doing enough to help the organization’s clients, the employee posted those allegations to her Facebook page. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. Hispanics United later fired the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The employees contacted the NLRB’s regional office in Buffalo. Following an investigation, the case went to trial, resulting in a judge’s decision that the employees’ Facebook discussion was protected concerted activity because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.

The judge ordered Hispanics United to reinstate the five employees and awarded the employees $58,000 in backpay because they were unlawfully discharged. The organization appealed the decision, which was upheld by the full NLRB Board. The case settled while on further appeal.

 

A group of employees at The Gentle Barn, a non-profit animal sanctuary, had conversations complaining about several executives of the organization, including how the founder was verbally abusive and yelled at employees. Two days later, two of the employees were fired. During conversations with the employees, the founder and the president made statements that gave them the impression that their private conversations complaining about the founder’s treatment of employees had been under surveillance.

The two employees filed charges against The Gentle Barn with the NLRB’s Los Angeles regional office, alleging that they were unlawfully fired for engaging in protected concerted activity, and that The Gentle Barn not only created an impression of surveillance, but also engaged in actual surveillance of their private conversations.

The Region conducted an investigation and issued complaint against The Gentle Barn. Prior to the scheduled hearing, the two employees and The Gentle Barn entered into a private settlement agreement.

 

In early March 2011, supervisors at Ambriola Co., a cheese processing facility, held a meeting of all the company’s employees, informing them that they would be receiving merit- based wage increases. The supervisors told the employees that they were prohibited from discussing the extent of their pay increases, stating that anyone found to have discussed their raise with co-workers would be fired.

Later that month, an employee called another employee to complain. During this conversation, the first employee told his colleague that the supervisor had told him that he had gotten the biggest raise. The next day, the colleague talked to the supervisor, wanting to know why he didn’t get the same raise as his co-worker.

When the employee returned to work, the supervisor called both him and his co-worker into his office. The supervisor asked both if they had discussed their raises, and one employee admitted that he had. Four days later he was fired. 

He contacted the NLRB’s Newark regional office, which investigated and concluded that the company had illegally fired him for discussing his raise. Such activity is considered a protected concerted activity. The company and the employee settled, with the employee receiving $25,000 in back pay.

 

A group of poultry workers walked off the job to protest a new requirement that they pay 50 cents per pair for the latex gloves they used on the line. As the workers gathered at a nearby church, two women told their story to a local newspaper and were quoted by name. They were soon fired. The case ultimately went before the Board, which found the firings were unlawful because they punished concerted activity that was protected.

One of the women was fired by Case Farms of North Carolina, Inc. on the same day that a company Human Resources official read the newspaper article. The second was suspended the following day and fired three days later. The employer said both terminations were for legitimate reasons unrelated to the newspaper article or the work stoppage. However, in charges filed with the NLRB regional office in Winston-Salem, the workers claimed they were punished for speaking up for themselves and fellow employees.

After an investigation, the NLRB agreed with the fired workers and called for a hearing before an Administrative Law Judge, who found that the discharges were unlawful because they retaliated against protected concerted activity. That decision was appealed to the Board in Washington D.C.

The Board agreed that the firings were unlawful and ordered full backpay and reinstatement for one of the employees, Luz R. Because the immigration status of the second employee, Evodia D., was in doubt, the Board ordered that she be offered reinstatement if she could establish that she was legally able to work in the United States.

Case Farms appealed the decision to the U.S. Court of Appeals for the District of Columbia. With the help of a volunteer mediator, a settlement was reached in which Luz R. received $20,000 in backpay and waived reinstatement. No reinstatement or backpay was provided to Evodia D.

The staff at an urgent care center sent an anonymous letter to the owner/doctor, asking him to reconsider a plan to immediately cut wages by 10% and suggesting alternate ways to save money. Within a month, two employees who wrote and edited the letter were fired. The Board found the employees’ activity was protected and ordered full backpay and offers of reinstatement.

When the owner of Northfield Urgent Care, Inc., Dr. Kevin B., announced to his staff of 10 that he would immediately cut wages by 10% to save the business from bankruptcy, employees were stunned and unhappy.  After several conversations, they decided to write a joint, anonymous letter to express staff concerns and offer alternatives for saving money, such as eliminating the employer match to the 401K fund.  The letter was written by the center’s physician’s assistant, Jennifer G., and edited by its radiation technologist, Michael B. It was then left unsigned on the doctor’s desk.
 
During the next few weeks, the owner met with individual employees in an attempt to learn who wrote the letter, and the atmosphere became increasingly tense. He accused several employees of whispering and cliquish behavior, and repeatedly complained of “toxic talk” and negativity”.  Three weeks after the letter was delivered, Michael B. was demoted. He was fired three days later. The owner then learned by examining Michael B.’s work emails that Jennifer G. had written the letter. The next day, she was fired as well. 
 
Jennifer G. filed a charge with the National Labor Relations Board Regional Office in Minneapolis. Following an investigation, the Regional Director issued a complaint alleging the owner’s actions were unlawful. A trial was held before Administrative Law Judge Paul Buxbaum, who agreed.
 
In his decision, Judge Buxbaum expanded on the concept of protected concerted activity, mentioning other cases that involved employee groups as disparate as hair cutters and financial advisors. “The Board’s recognition of the Act’s protection of employees’ activities that do not involve labor unions was explicitly endorsed by the Supreme Court in NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962),” he wrote. “In that case, employees of a foundry were not represented by any union. Nevertheless, they chose to walk off the job as a group in order to protest the lack of heat in the plant during a wintertime cold spell. The employer fired them for violating a company rule that prohibited unauthorized departures from work. Management argued that the employees’ concerns were merely “gripes”, and that it was already working to have the furnace repaired at the time of the walkout. Both the Board and the Supreme Court ordered the reinstatement of the discharged employees.”  
 
Judge Buxbaum found that the activity did not lose protection because it was not defamatory or malicious; in fact, he described the letter as “both civil and respectful in its language and tone.” He therefore found the actions unlawful. He ordered the employer to stop the unlawful activity and offer reinstatement and full backpay to both employees.
 
The clinic owner appealed Judge Buxbaum’s decision to the Board in Washington D.C. On March 15, 2012, a panel of three members considered the record and unanimously decided to uphold the judge’s decision in full.
 

 

A customer service representative for a diaper supply company was fired after discussing her wages with another employee, based on a policy in the company handbook that the NLRB later found to be unlawful. After the NLRB issued a complaint, the case settled with the employee receiving backpay and an offer of reinstatement. The employer also changed its handbook to inform employees that they do have the right to discuss their wages with each other.

Gisele O., the customer service representative, frequently discussed work-related issues with her close friend, who also was her supervisor at Cotton Babies, an online cloth diaper supplier. Through one discussion, the supervisor learned she was earning less money than Gisele, and she quit. The company owner told Gisele that she broke the handbook rule that forbids employees from discussing their wages with each other, and that in order to keep her job, she would have to re-read the handbook and sign another form agreeing to follow its rules.

Gisele refused to sign, and two weeks later, she was fired. After an investigation, the regional director found reasonable cause to believe that Gisele was unlawfully fired because she had discussed her wages with another employee, which is protected activity under the National Labor Relations Act. The regional director also found reasonable cause to believe that some parts of the handbook contained unlawful rules, and issued a complaint.

The employer then engaged in mediation and reached a private settlement with Gisele, who received full backpay for the time off work and an offer of reinstatement, which she declined. The employer also agreed to change its handbook, adding a section that tells employees they have a right to talk with each other about their raises, wages, salaries, and other conditions of employment.

Even though Gisele chose not to return to her former job, she is still pleased with the outcome of the case and her role in changing the company rules. “The greatest satisfaction I received from the whole experience,” she said, “was knowing that my case became a catalyst in changing the Cotton Babies Employee Manual, thus ensuring that other employees would no longer be subjected to such unrealistic and ridiculous rules.”

A long-time employee at a vegetable packing plant was fired after raising safety concerns on behalf of other workers with company management and a government agency. The NLRB issued a complaint alleging the firing was unlawful because the employee’s activity was protected. Prior to a scheduled hearing, the case settled and the employee was reinstated with full backpay for time off work.

Rick F., a storage and retrieval technician at the Dole Fresh Vegetables packing plant, complained to managers and co-workers multiple times about what he said were unsafe conditions that endangered him and other employees. At one point, he called the county health department to report a potentially dangerous situation involving rusted ammonia pipes. Hours after the Health Department disclosed to the company that it was Rick who made the complaint, he was suspended. Two days later, he was fired for allegedly leaving his work post and yelling at a supervisor -- charges that he denied.

Rick contacted the California Labor Commission, which referred him to the NLRB regional office in Oakland, where he filed a charge. After an investigation, the Regional Director determined there was reasonable cause to believe that Rick was fired because of his stated concerns about employee safety, which was protected activity. The Regional Office issued a complaint and called for a hearing before an Administrative Law Judge, but the case settled before the hearing, with Rick receiving full backpay of about $20,000 and reinstatement to his former job.

“I believe that when [co-workers] saw me come back, they were relieved in knowing that justice sometimes prevails. I believe it gave the rest of the employees hope,” Rick said.

When a hotel housekeeping service announced a $2-per-hour wage cut, employees protested in letters to managers, written with the help of a community organization. Workers who led the effort and signed the letters were later fired. After the NLRB issued complaint, both employees received full backpay and offers of reinstatement.

“This experience has taught me that I do have rights and no one can abuse them,” said Maria J., one of the two housekeepers who filed charges after having been fired. In a conversation with an NLRB field agent, Maria said she and co-workers who cleaned rooms at luxury hotels and spas felt the sudden pay cut was an “injustice” and sought help from a local community group, Somos un Pueblo Unido.

With the group’s help, the workers composed letters to senior management at the staffing company, asking them to reconsider cutting the current $9.50 per hour wage by $2. A short time later, Maria, whose signature was prominent on the letter, was transferred to another hotel and then fired. Her colleague and co-signer, Juan Lopez, was interrogated and then fired as well.

Maria and Juan filed charges with the NLRB regional office, and an investigation found reasonable cause to believe their firings were unlawful. The Regional Director, on behalf of the General Counsel, issued a complaint calling for a hearing before an administrative law judge. Prior to a trial, however, the employer settled the case. Both workers received full backpay and offers of reinstatement, which they declined.

Maria, who had already moved on to another job, said the offer gave her a sense of satisfaction. “I had faith that we would win and that we would show the company they could not walk all over us,” she said. She’s kept in touch with her former coworkers, and noted with disappointment that, despite her efforts, the pay was never restored to its previous level. “But I know that the employees are able to speak openly about their wages,” she said. 

A supervisor at a dental association was fired after she refused to divulge the names of employees who had anonymously signed a petition protesting top management. The Board found the discharge was unlawful because she had rightfully refused to violate federal labor law by punishing concerted activity. In a settlement, the supervisor and another former employee waived reinstatement in exchange for $900,000 in lost wages and benefits. 

Eleven employees of the Texas Dental Association, which represents more than 7,000 dentists in the state, signed a petition that complained about unfair treatment by top management at the Austin headquarters. The employees signed the petition using aliases and delivered it to association delegates at an annual meeting.

The delegates declined to investigate, and, after the meeting, the executive director of the association set about trying to learn who had written the petition. A forensic examination of office equipment found a fragment of the petition on the computer of employee Nathan C., who was immediately fired. The association’s general manager, Barbara L., was also fired after she refused to divulge the names of others involved.

Barbara and Nathan filed charges with the Ft. Worth regional office of the NLRB, which investigated and issued a complaint alleging that both firings were unlawful because they were predicated on protected concerted activity.

The case was heard by an NLRB Administrative Law Judge, who ruled that both terminations were illegal. The ruling was upheld by the National Labor Relations Board in Washington, and was then appealed to the Fifth Circuit Court of Appeals.

While the case was pending, however, the parties reached a settlement under which both employees waived reinstatement, but were awarded $900,000 in payment for lost wages and benefits.

News release

Women working the overnight shift at a plastics manufacturing plant discussed concerns about a new supervisor, who they later learned was a registered sex offender. They asked for a group meeting with Human Relations officials, but were instead called into individual meetings and disciplined. One employee was fired; others were demoted. Following an NLRB investigation, the employer settled the case by agreeing to restore all employees to their former positions with full backpay. 

Soon after the supervisor started working the third shift at the Evco Plastics manufacturing plant, a group of female employees expressed concerns to each other about his aggressive attitude and preferential treatment of one of their co-workers. When an Internet search by one of the employees uncovered that the supervisor had a criminal history and was a registered sex offender, the women requested a group meeting with HR to talk about their concerns with the supervisor’s behavior and actions, which also included inappropriately touching some employees at work.

Instead, each employee was called individually into a meeting with management, with the offending supervisor present. The women were questioned about what they knew, who they heard it from, and who they had talked to about it. Based on what was said in these meetings, the employer issued written warnings to the employees, demoted two of them, reassigned one to a different shift, and terminated another -- all for having talked about the supervisor with each other.

Five of the employees filed charges with the NLRB Milwaukee Regional Office. Following an investigation, the regional director determined that the employees had engaged in protected activities and there was reasonable cause to believe they had been unlawfully interrogated about and retaliated against because of these activities.

After the NLRB notified Evco Plastics that a complaint would issue, the company settled the case by providing full backpay to all affected employees, eliminating written warnings from their records, and offering to return the employees to their former positions.

After a work-related incident, an employee criticized her supervisor in a post on Facebook, which prompted other employees to reply to the posting. The employee was suspended the next day and later fired. The NLRB issued a Complaint alleging the employee was unlawfully fired for engaging in protected concerted activity when she posted on Facebook. Prior to a hearing, the case settled.

Dawnmarie S. was a long-term paramedic for American Medical Response of Connecticut, Inc., an emergency medical service provider in New Haven, Connecticut. After a verbal disagreement with her supervisor at work, Dawnmarie went home and posted a negative comment about her supervisor on her private Facebook page. Dawnmarie’s post prompted replies from other employees who were friends with Dawnmarie on Facebook.

Dawnmarie was suspended the next day and ultimately fired. In making the decision to fire her, the company relied, in part, on Dawnmarie’s Facebook post, arguing that Dawnmarie violated the company’s internet policy when she criticized her supervisor online. 

A charge was filed with the Hartford NLRB Regional Office alleging Dawnmarie was unlawfully fired. The charge also alleged the company’s handbook contained unlawful provisions which, among other things, prohibited employees from making negative comments about the company or supervisors.

After an investigation, the NLRB issued a Complaint alleging Dawnmarie was unlawfully fired because she engaged in protected concerted activity when she criticized her supervisor on Facebook. The Complaint also alleged that the company’s handbook contained several unlawful provisions. Prior to a hearing, the company agreed to revise the provisions in the handbook which were alleged to be unlawful. The company also reached a private settlement with Dawnmarie regarding her termination.

A licensed practical nurse was fired after she complained to her boss at a pharmaceutical research firm that other employees were receiving special treatment. The Board found the employer violated the National Labor Relations Act by firing the employee to prevent her from talking about her complaints of favoritism with co-workers.

Parexel International conducts research for pharmaceutical companies at its Baltimore, Maryland location. Its staff includes a number of individuals from South Africa. When Theresa N., a licensed practical nurse for the company, received information from a co-worker that led her to believe that the employees from South Africa were receiving special treatment, she complained to her direct supervisor. The next day, Theresa was called into the office by a Human Resources official and the Manager of Clinical Operations, who is also from South Africa, to discuss the “rumor” she had mentioned.

In the meeting, Theresa explained that a co-worker, who was South African, told her that he received a raise when he was re-hired by the company and that his wife would also receive a raise when she was re-hired. Theresa expressed concern that the company was paying the employees from South Africa higher wages and the manager of clinical operations would continue favoring these employees. Theresa was then asked if she had discussed the conversation she had with her co-worker with anyone else besides her supervisor. Theresa said she had not. The next week, Theresa was fired.

Theresa filed a charge about her termination with the NLRB’s Regional Office in Baltimore. After an investigation, a Complaint issued and a hearing was held on the matter. The judge’s decision was reviewed by the Board in Washington, D.C., which found the termination unlawful, as the evidence indicated the company fired Theresa as a way to prevent her from discussing her concerns of favoritism with her co-workers. The Board held that a “pre-emptive” termination to keep an employee from discussing wages, hours, or working conditions with other employees is unlawful, even if the employee had not yet engaged in protected activity. As part of its decision, the Board ordered that Theresa be reinstated with full backpay.

The employer appealed the Board decision to the U.S. Court of Appeals for the District of Columbia, which appointed a mediator to the case. With the mediator's help, the parties reached a settlement under which Parexel agreed not to discharge employees to prevent them from engaging in protected concerted activities and to pay  Theresa about $250,000 for back wages and medical expenses. In the agreement, Theresa declined reinstatement.

Several dozen welders performing contract work under temporary visas signed a petition protesting their poor living conditions and irregular hours. The worker who delivered the petition to the employer was threatened with deportation and then fired that day. The NLRB issued complaint and scheduled a trial, but before it began, the parties settled with the worker receiving $13,000 in backpay.

Five Star Contractors supplied skilled laborers from Brazil and other countries to work in shipyards on the Gulf Coast under contract to Signal International LLC. The workers said recruiters promised free lodging, 40-hour weeks, and plenty of overtime pay, but that instead they were charged $75 a week to live in storage buildings and never worked a full week.

In February of 2008, several dozen workers signed a petition demanding better living conditions, full-time work and reimbursement of travel costs to the United States. Moises S. was selected to deliver the petition to supervisors while the other workers stood behind him. He said he was immediately threatened with deportation and then fired 20 minutes later.

Assisted by a local nonprofit group, the Alliance of Dignity for Guest Workers, the workers filed a charge with the NLRB Regional Office in New Orleans. Following an investigation, the Regional Director issued a complaint alleging that Five Star violated federal labor law by threatening and then firing Moises S. The parties settled in August, with Moises S. receiving about $13,000 in back wages for the time he would have worked had he not been fired.

When a heavy thunderstorm hit one March afternoon, 13 workers building the foundation of a luxury hotel retreated to a trailer to wait out the downpour. Supervisors ordered them back to work, but the workers refused, citing health and safety concerns, and were fired on the spot. After the regional NLRB office found sufficient evidence to call for a hearing, the contractor settled with the workers by offering backpay and reinstatement.

While in the trailer, the workers told supervisors at Morris Shea Inc. that there were exposed electrical cables at the job site and said they feared they would be electrocuted in the rain. The supervisors became angry and demanded that each worker sign a discharge letter, yelling racial slurs and belittling the workers. The employees knew their rights and went straight to the regional NLRB office in San Juan to file charges. Following an investigation, the regional director issued complaint alleging the contractor, Morris Shea, Inc., interfered with the workers‘ rights to engage in concerted activity to help each other on the job.

The employer paid more than $50,000 in back wages and offered to reinstate all 13 discharged employees. Four of the workers accepted the offer and returned. Morris Shea also agreed to post notices at all of its construction sites informing employees of their rights under the National Labor Relations Act.

An employee for a major homebuilder believed he was improperly denied overtime pay because he and other employees were misclassified as supervisors. He wanted to join with the others to file a collective claim with an arbitrator. But the builder said its arbitration policy, which employees were required to sign, only allowed for individual claims. The Board found that the policy was unlawful because it denied the employees their right to engage in concerted activity by filing jointly.

Michael Cuda worked as a "superintendent" for D.R. Horton, Inc., a builder with operations in 20 states. Like a growing number of employers, Horton required workers to agree in writing to submit any future claims against it to a professional arbitrator outside the court system. The Horton agreement had an additional condition, that claims could only be made on an individual basis. Cuda signed the agreement in 2006.

Two years later, Cuda notified Horton that he planned to seek arbitration on the job classification issue on behalf of himself and all other superintendents. The company rejected the idea, citing its arbitration policy. Cuda then filed an Unfair Labor Practice charge with the NLRB, claiming Horton's policy violated the labor law's protection of joint activity. Following an investigation, the regional director issued a complaint on behalf of the NLRB General Counsel, which brought the case to a hearing before an administrative law judge. In January 2011, the judge ruled that the arbitration policy was unlawful in that it deprived employees of the right to file charges with the NLRB.

That decision was appealed to the Board, and the case drew significant interest from groups representing employees and employers, a dozen of which filed amicus briefs with the Board. (All briefs and other public documents are available through this case page.

In January 2012, a two-member majority of the then three-member Board ruled in favor of Cuda, finding the policy was unlawful not only because it precluded NLRB charges but also because it precluded joint claims of any kind. The decision, which requires Horton to rescind or revise the agreement, discussed at length the relationship between federal labor law and the Federal Arbitration Act of 1925. The Board also emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.

The Board decision has been appealed to the U.S. Court of Appeals for the Fifth Circuit in New Orleans, LA.

 

More information on this case

Board decision

News release

A construction contractor fired five employees after several of them appeared in a YouTube video complaining of hazardous working conditions. Following an investigation, the NLRB regional office issued complaint. As a hearing opened, the case settled, with the workers receiving full backpay and declining reinstatement.

The employees, all immigrants from El Salvador, learned they were building concrete foundations at a former Superfund site and worried that the soil they were handling was contaminated with arsenic and other toxins. They also said they were required to wear badges indicating they’d been trained to handle hazardous materials, when in fact, the badges belonged to other workers and they had never been trained.

Three of the employees took their concerns public in a YouTube video posted on July 21, 2008. Speaking in Spanish, they hid their faces in shadow in an attempt to avoid retaliation. However, within 10 days, the three who appeared in the video and two others who were close to them had all lost their jobs with Rain City Contractors. Through the ensuing months, according to charges filed with the agency’s Seattle office, the employer continued to threaten and interrogate other employees, warning them not to talk about working conditions with outsiders.

Following an investigation of the charges, the NLRB Regional Director determined that the YouTube video was protected because the employees voiced concerns about safety in the workplace, and the public airing of their complaints did not lose the Act's protection because they accurately described their concerns about working conditions. On behalf of the NLRB General Counsel, the director issued a complaint calling for a hearing before an administrative law judge.

As the hearing began in June of 2009, NLRB attorneys were prepared to play the video, and to present evidence that the employer had been fined for numerous violations of state law regarding the same concerns as those raised by the workers. However, on the second morning of testimony, Rain City Contractors agreed to settle the case by giving all five workers full backpay for the period from their discharges to the settlement date. The workers declined reinstatement. 

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