Monday, May 22, 2017

The National Labor Relations Act protects the rights of non-employees under other statutes‽

In MEI-GSR Holdings, LLC (5/16/17) [pdf], a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act.

Let me pause for a second to let this sink in.

The Board held that the NLRA protects former employees who assert rights under a law that the Board has no jurisdiction to enforce.


But, hold on. Chairman Miscimarra is here to save the day. In another of his scorching dissents, he asserts exactly why this decision is incorrectly decided:
Under my colleagues’ position in this case, it constitutes a per se violation of the NLRA whenever any former employee pursuing a non-NLRA employment claim with one or more other employees is denied access to the employer’s private property if other former employees are granted access, even though (i) the former employee has no other right to be on the premises, (ii) the former employee does not seek to engage in NLRA-protected activities on the premises, and (iii) the former employee is not seeking access to the premises for any purpose that relates to the non-NLRA claim. I do not believe that Congress, when enacting the NLRA, intended to guarantee that every former employee would have a right of access to the private property of his or her former employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer.  
It could be that GSR’s action here constituted retaliation for Sargent’s pursuit of the FLSA claim. However, even such a retaliatory motive does not empower the NLRB to defend the interest that Sargent or others may have in pursuing their rights under a different statute. … [T]he FLSA has its own anti-retaliation provision, and we are not permitted to take it upon ourselves to assist in the enforcement of other statutes. The Board was not intended to be a forum in which to rectify all the injustices of the workplace.
Bingo. And while this is only a dissenting opinion, given that President Trump still has two appointments to make to fill the NLRB to capacity (reported to be Marvin Kaplan and William Emanuel, two management-side labor attorneys), it is safe to assume that Mr. Miscimarra’s minority view will soon become the Board’s majority view. Thus, while the logic of this decision is certainly troubling, one can rest reasonably comfortably knowing that at some point this year, a majority of the NLRB will no longer wax sympathetically with this viewpoint.