As Boomberg Law reports, the NLRB general counsel’s office has issued a new memorandum declaring that Uber may not bar employees from discussing, amongst themselves or with the media, an ongoing class action lawsuit. The memorandum is good news for employees and for section 7 rights. It is also an important indication about how the Board – at least the division of advice – is dealing with Epic Systems.
At issue in the Uber Technologies memo is a class action lawsuit brought by Uber employees in May 2016 regarding compensation. After the lawsuit was filed, Uber’s lawyers emailed employees and told them not to discuss or comment on the lawsuit and to contact Uber’s legal team if anyone asked about the suit. The GC finds that this instruction violates section 7. As the memo puts it:
The Employer’s instruction prevents employees from discussing the lawsuit or the common grievance from which it sprang with one another, or with media or third parties. . . . Employees’ right to communicate with one another and with third parties and the media about grievances and potential remedies to those grievances, including lawsuits, is a signifcant Section 7 interest. This is especially true in the case of a class-action lawsuit. . . .
This strikes me as the best reading of Section 7, and clearly the right outcome from the perspective of ensuring that employees have a meaningful right to engage in concerted activity for mutual aid and protection.
But more relevant is that the Division of Advice did not reach a contrary outcome in light of the Supreme Court’s opinion in Epic Systems. Although Epic involved a different question and required the Supreme Court to reconcile two federal statutes (not the task for the Uber Technologies memo), the Epic opinion does speak to the question of Section 7’s coverage for class action litigation. Here’s what Justice Gorsuch wrote in Epic:
Section 7 focuses on the right to organize unions and bargain collectively. . . . It does not mention class or collective action procedures.
The employees direct our attention to the term ‘other concerted activities for the purpose of . . . other mutual aid or protection.’ This catchall term, they say, can be read to include class and collective legal actions. But the term appears at the end of a detailed list of activities speaking to ‘self organization,’ ‘forming, joining, or assisting labor organizations,’ and ‘bargaining collectively.’ And where, as here, a more general term follows a more specific term in a list, the general term is usually understood to ’embrace only objects similar in nature to those objects enumerated by the preceding specific words.’ All of which suggests that the term ‘other concerted activities,’ should, like the terms that precede it, serve to protect things employees ‘just do’ for themselves in the course of exercising their right to free association in the workplace, rather than ‘the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.
Much could be said about this passage from Epic. Among those things is the fact that this is about as stark an example of judicial lawmaking as one can find in the U.S. Reports: the category of “things employees just do for themselves” is made up, pure and simple, and has no home in the statutory text.
More to the point here, though, the division of advice clearly is not reading Epic to mean that class litigation is beyond the purview of section 7. Plausibly, advice believed that Epic was about litigation itself, and not about the discussion of such litigation (especially when the litigation concerns terms and conditions of employment). Plausibly, advice believed that the language in Epic about section 7 was dicta and not binding on the Board. Plausibly, advice may be of the view that Epic has no bearing outside the context of arbitration agreements and the FAA. Or perhaps the view is that Epic does not govern this case because the facts here predate the Supreme Court’s opinion. Whatever the reason, however, it is relieving to see that the Board has not gone as far as Sharon and I feared it might.