The National Labor Relations Board’s recent decision on D. R. Horton, Inc. and Michael Cuda is a great reminder that the NLRB protects much more than the right to organize a union – as important as that is. The National Labor Relations Act, which the NLRB enforces, gives employees the right to engage not just in collective bargaining through a union, but also in what it calls “concerted activity for mutual aid or protection” — actions taken by one or more employees in pursuit of a collective goal to address wages or working conditions.
In the Horton case, non-union employees wanted to enforce their right to overtime pay under the Fair Labor Standards Act, through a collective or “class” action. But the employer had required the employees to give up the right to bring any claims on a collective basis in order to keep their jobs. The NLRB found the employer guilty of an unfair labor practice by requiring employees to waive “their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”
The NLRB protects the right of employees to join together and enforce their right to overtime pay, and employers can’t take that right away. The same is true for the right to receive the statutory minimum wage or to receive tips that employees have earned.
Similarly, employers violate the National Labor Relations Act if they punish employees who join together to complain about unsafe working conditions, or discrimination in the workplace, or being forced to commit illegal acts. The employees don’t have to join or form a union, they simply have to act together for mutual aid or protection regarding the terms and conditions of their employment.
President Obama’s bold and controversial recess appointment of three new members of the NLRB ensures that this vital agency will continue to function and protect the rights of employees, union and non-union alike. Congressional Republicans had tried to prevent these appointments, knowing that, with only two members, the NLRB would not have a quorum to decide cases. To his credit, Obama decided that the rights of working Americans are too important to sacrifice to congressional gridlock.