In footnotes to two recent unpublished NLRB decisions,  NLRB Chairman Marvin Kaplan, who was named to that role by the President following the December 16, 2017 conclusion of Philip Miscimarra’s term, and Member William Emanuel offered interested observers an indication of two additional areas of Board law that they believe warrant reconsideration once Mr. Miscimarra’s replacement is nominated and confirmed, and the Board returns to a 3-2 Republican majority.

While unpublished Board decisions “are not intended or appropriate for publication and are not binding precedent, except with respect to the parties in the specific case,” as in the two cases discussed below, can offer important insights into what Board members are thinking about significant matters, and therefore can give readers an idea what to expect when particular issues come before the Board in future cases. In this regard, they, like the General Counsel’s recent Memorandum on Mandatory Submissions to Advice, give meaningful guidance to employers and advocates.

The Board is Likely to Revisit and Move Away from Obama Era Holdings re Confidentiality in Settlement Agreements

During the past eight years, one of the signatures of the Obama Board was its effort to expand the application of the National Labor Relations Act’s relevance to non-union workplaces. One aspect of this was a series of Board decisions finding that when employers sought to include broad confidentiality provisions in private settlement and separation agreements with employees that restricted the employees’ ability to disclose the terms of such settlements to others, including employees, they were impermissibly restricting employees’ ability to act together with other employees concerning terms and conditions of employment.

In a footnote to a December 27, 2017 unpublished decision denying a motion for summary judgment in an unfair labor practice complaint issued against Baylor University School of Medicine, Chairman Kaplan and Member Emanuel wrote as follows:

Members Emanuel and Kaplan agree that there are genuine issues of material fact warranting a hearing and that the Respondent is not entitled to judgment as a matter of law.

However, they believe that, to the extent not already permitted under Board precedent, the legality of confidential severance agreements for former employees should be reconsidered

While the Baylor University decision does not answer the question of when and in what circumstances the Board will recognize an employer’s right to lawfully require confidentiality in settlement agreements and other agreements that where they would have been found to interfere with employees’ Section 7 rights, the tea leaves more than suggest a change in Board law as soon as the Board returns to five members and an appropriate case is before the new majority.

The Board is Likely to Change How It Interprets and Applies the Blocking Charge Rule

Another important area that Chairman Kaplan and Member Emanuel indicated they want to see the Board re-examine is a Board doctrine commonly referred to as the Blocking Charge Rule.

Under the Board’s 2014 Amended Election Rules, the NLRB holds that when an unfair labor practice charge is filed during the pendency of an representation petition, the Board will not conduct the election if the party that has filed the charge, typically the petitioning union, or in the case of a decertification petition, the incumbent union facing a vote to decertify it as the representative, if the charge alleges actions by the employer that the union claims prevent or interfere with a fair election. Many observers believe that such blocking charges are used tactically by unions that are concerned they face defeat at the polls.

Under the 2014 Amended Election Rules, it is quite easy for a union to use such a charge to block an election:

Section 103.20 of the final rule requires that a party wishing to block processing of the petition must file a request to block and simultaneously file a written offer of proof in support of its unfair labor practice charge. If the Region believes the charge precludes a question concerning representation and no request is filed, the Region may ask the Charging Party if they wish to request to block.  If so, the Charging Party should be informed that they must file a request to block and an offer of proof, including the names of witnesses who will testify in support of the charge and a summary of each witness’s anticipated testimony. In addition, the Charging Party must promptly make the witnesses available to the Region.

In a December 20, 2017 unpublished decision in a case involving a decertification petition filed by an employee of ADT, in which the incumbent union filed ULP charges, to prevent an election:

Member Kaplan agrees with the decision to deny review here. He notes, however, that, consistent with the Petitioner’s suggestion, he would consider revisiting the Board’s blocking charge policy in a future appropriate case. Member Emanuel agrees that the determination to hold the petition in abeyance in this case was permissible under the Board’s current blocking charge policy, but he believes that the policy should be changed. Specifically, he believes that an employee’s petition for an election should generally not be dismissed based on contested and unproven allegations of unfair labor practices.

One of the more interesting aspects of this decision and footnote is that both Chairman Kaplan and Member Emanuel, although not disagreeing with the Regional Director’s application of the rule in the case before them, each expressed their view that the Blocking Charge Rule, which is not a rule at all but rather a Board-created doctrine or policy “should be changed.”

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative” during an OSHA workplace investigation.

The Lawsuit Challenging the Participation of Union Representatives in OSHA Inspections

Two days later, on April 27, 2017, the National Federation of Independent Business filed a  with the United States District Court for the Northern District of Texas, effectively declaring victory in their lawsuit challenging the issuance of the Fairfax Memorandum as being inconsistent with and unsupported by the Occupational Safety and Health Act, and the regulations issued under it allowing for the limited participation of third party experts during OSHA conducted workplace safety inspections.

For readers who have been following this issue and the litigation, the withdrawal of the Fairfax Memorandum and the plaintiff’s decision to discontinue their law suit should come as no surprise. This past February, the court denied OSHA’s motion to dismiss the lawsuit challenging the Fairfax Memorandum and OSHA’s decision to allow the participation of union representatives in non-union workplaces, finding that the plaintiff had “stated a claim upon which relief can be granted,” and that “the [Fairfax Memorandum] flatly contradicts a prior legislative rule as to whether the employee representative” in such a walk-around inspection “must himself be an employee.”

OSHA and the DOL’s Decision to Withdraw the Fairfax Memorandum

Less than a week later, OSHA filed an Unopposed Motion For Extension of time to answer the complaint in the Federation’s lawsuit, explaining to the Court that “the extension of the deadline for defendants to answer is necessary to allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues.”

The Memorandum withdrawing the Fairfax Memorandum reiterates the requirements of 29 CFR 1903.8 (c) that an employee representative who accompanies an OSHA representative during a walkaround workplace inspection “shall be an employee of the employer,” and that the only exceptions in which a non-employee may participate is “where good cause is shown” and the participation of a non-employee, such as an industrial hygienist or a safety engineer” is “reasonably necessary to the conduct of an effective and thorough inspection of the workplace” in the judgment of the OSHA Compliance and Safety Health Officer conducting the examination. Notably, however, rather than actually stating that the Fairfax Memorandum was inconsistent with the provisions of the statute or the OSHA regulations, the April 25th memorandum simply refers to it as “unnecessary.”

What this Means for Employers

First and foremost, OSHA’s issuance of the April 25th memorandum makes clear that union representatives who are not the certified or recognized bargaining representative of the employees at a facility to be inspected by OSHA have no legal right to participate in such inspections.  Accordingly, it is equally clear that an employer faced with such an inspection at a facility that a union is seeking to organize should understand that the union’s representatives have no right to participate.

An important effect of the withdrawal of the Fairfax Memorandum will be to deny unions a potentially potent tool for organizing. As Judge Fitzwater described in his Memorandum and Order denying OSHA’s motion to dismiss the Federation’s lawsuit in February, unions such as the UAW in its ongoing organizing campaign at Nissan in Tennessee have come to rely upon participation in OSHA inspections as a valuable tool.

No doubt with the confirmation of Secretary Acosta, leadership of the Department of Labor will continue to review and reassess positions and actions taken during the past eight years.

An NLRB Administrative Law Judge issued a Decision on April 29th in which he found that when a waiter in a restaurant in New York City, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, he was  engaging in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing.  While the decision does not mention whether the waiter was represented by a union, it seems pretty clear that there was no union in this case.

Thus, the Judge concluded, when the restaurant terminated the waiter, it did so because, whether he knew it or not, he was engaging in concerted, protected activity with the restaurant’s other employees.  The Judge also noted that when the owners read the complaint and saw that it had been filed on behalf of a class of similarly situated employees as well, the employer likely believed that the waiter was acting with others for their mutual benefit.

The case involved the issue of whether such an employee, whose employer terminated his employment the day it received a copy of the employee’s lawsuit in the mail from the employee’s counsel terminated the employee for engaging in protected, concerted activity as that term is defined under the National Labor Relations Act (the Act or the NLRA) or whether the employee was fired for something he alone did for himself. If he was not acting in concert with co-workers the Judge opined that the employee’s termination would not have violated the Act (although it may have violated other laws).

ALJ Raymond Green distilled the case down to this fundamental question: when an employee files a lawsuit “relating to wages,” is that employee “engaged in concerted activity within the meaning of Section 7 (of the National Labor Relations Act),” or is such an employee “acting solely in pursuit of his own interests?”  The Judge concluded although it was clear that the charging party acted alone, the very language of the complaint, which stated that it had been filed on behalf of the name plaintiff and “on behalf of a class of similarly situated employees who work or have worked at the (restaurant) over a three year period of time,” “it could be argued that (the waiter) sought ‘to initiate or to induce or to prepare for group action.”

The Judge recommended that the NRLB issue an order directing the waiter’s reinstatement with full back pay and seniority.  He also recommended that the employer post a notice to employees that advised employees that among their rights under the Act is the righto “file lawsuits on behalf of themselves and others relating to their wages or other terms and conditions of employment.”

The decision is a reminder that with the current NLRB, with its mindset of expanding its reach into non-union workplaces that a broad range of actions that an employee may take on his or her own behalf are likely to implicate the rights of co-workers and thus be found to be protected under the NLRA as concerted activity. Surely this would be the case in virtually every class action lawsuit under state or federal wage and hour laws.

By Adam C. Abrahms and Steven M. Swirsky

In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized,  to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly inform employees of their rights to join and be represented by unions and to engage in other activity protected by the Act. The rule would also have made it an unfair labor practice for an employer to fail to post the required notice and such failure also could be considered proof of anti-union animus in other Board proceedings.

Although proposed in 2011 and scheduled to become effective on April 30, 2012, the requirement has yet been put into effect. As we discussed previously, last year, the US District Court for the District of Columbia had held that the Board lacked the authority to make it an unfair labor practice for an employer to fail to post the notice, holding that this exceeded the Board’s authority under the Act. Just prior to the rule going into effect, the DC Court of Appeals issued an emergency injunction in support of the District Court’s opinion and the NLRB opted to not enforce the rule pending the appeal.

Perhaps what is most noteworthy about the Court’s recent opinion, authored by Senior Circuit Judge Randolph, is the Court’s reliance on employers’ free speech rights which are protected by Section 8(c) of the Act. That section of the Act ensures employers  the right  to communicate their views concerning unions to their employees. The Court noted that while Section 8(c) “precludes the Board from finding non coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is because under the rule an employer’s failure to post the required notice would constitute an unfair labor practice and the Board’s rule would have allowed the Board to “consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of anti union animus in cases in which unlawful motive [is] an element of an unfair labor practice.”

The Court focused on the question of the right of employers to “free speech,” under both Section 8(c) of the Act and under the First Amendment to the Constitution, noting that the rule would have required employers to disseminate information and that “the right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,” relying on analysis from prior Supreme Court and appellate court decisions which it referred to as “compelled speech” cases.

Interestingly, the Court’s conclusion that the Board’s rule violates Section 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus, suggests the Board might be able to find an alternate route to a notice posting requirement if it did not seek to create such a remedy for an employer’s failure to post the notice.  However, the Court refused to leave the portion of the Board’s rule requiring the Notice posting in effect even without the enforcement and remedial provisions, because they were an inherent part  of the Board’s purpose in adopting the rule.  For now the beleaguered Board will need to decide whether it wishes to appeal this decision to the Supreme Court, attempt to craft  a new rule with the currently constituted Board that this same Court of Appeals has ruled was unconstitutionally appointed in its Noel Canning decision or postpone any action until a new Board is confirmed by the Senate.

In the past week media reports abound regarding a controversial allegedly “anti-union” statement made by a high level executive associated with the iconic snack cake Twinkies.  As widely reported late last year, the original Twinkie maker, Hostess Brands, Inc.,  was forced to close, liquidate and lay off its entire unionized workforce, publicly blaming the recalcitrance of its unions for the company’s downfall.  However, these statements did not cause this most recent controversy.  Rather, it was comments from an executive connected with Hostess Brands LLC, the newly formed company which acquired many of the assets of the bankrupt predecessor, including the rights to make Twinkies, which spurred public attention.

As the snack cake savior prepares to reopen plants and hire a new workforce, interest has swirled as to when and how the new company would operate.  Specifically, in an April 24th Wall Street Journal article the executive opined of the new Twinkie maker that “We do not expect to be involved in the union going forward.”

This comment sparked controversy causing Hostess Brands LLC to walk back or clarify the statements and leading to some to opine that executives should not comment on labor matters.  In fact, the headline of a May 2nd Law360 article asserted that “Silence Can Be Golden.”  This is not the first labor or union related comment by a high level executive of a company to generate controversy and it was met with predictable attention.  The question is it advisable or practical to attempt to silence executives on labor matters?

Each situation will be different and certainly there will be times where public comment is not advisable, however, there are other times where the opinion or position of the company, announced from the highest levels, can advance an employer’s labor goals or even support corporate or marketing efforts.  For example, allowing employees, investors, customers and/or suppliers know what a company intends or is prepared for can be reassuring and yield positive results.  Informing employees of the realities or risks associated with union may even be considered the ethical or honest thing to do.  When crafted and used properly such comments can be a powerful weapon, both in communicating to employees and the market.  In recognition of this, and acknowledging that unions are rarely silent, self-imposed unilateral disarmament is not always the best option.

To be clear, compliance with the National Labor Relations Act is full of pitfalls, especially under the current aggressively pro-union Board, and comments can result in legal and PR issues.  That said, employers and their executives should start by understanding they too have rights and that Section 8(c) of the Act protects the privilege of every employer to engage in free speech.  Specifically, Section 8(c) guarantees employers to right to communicate establishing:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

This allows employers and executives to, among other things, lawfully communicate in the following ways:

  • Assert facts such as “the employees did not get paid during the strike and ended up losing their jobs after listening to union leaders.
  • Express opinions, any thing from “I think the unions resulted in the closure of our predecessor’s plants and lay off their employees” to “I think the unions sucked the filling out of the Twinkies and left nothing for the employee’s future.
  • Share their experiences, for example, “We sat through the discussions with the union during the bankruptcy and let them know we would be forced to lay off employees without concessions but the union refused to agree to a reasonable compromise and the employees all lost their jobs.”

Moreover, the law permits employers to have an affirmative position and policy disfavoring union involvement in their business or asserting a tough line bargaining philosophy.  For example, it is lawful for any employer, or executive, to assert in policy or comment:

  • The Company’s position is that while people should be free to join or not join a union, we believe we are the kind of company where employees will decide they do not need a union to speak for them.  We are committed to informing our employees of the reasons we are opposed to third party interference and taking all appropriate actions to lawfully maintain our union free status.

Given the law, certainly establishing a policy to gag executives on labor issues is an a option, but a more realistic and effective approach is to involve and (sparingly) utilize the top executives in labor relations.  In doing so executives should be guided by established corporate policy, educated and prepared on not only what and when to communicate but the process to make sure communications are both legally and strategically appropriate.

 Management Missives

  • Executives and management alike should feel empowered by labor relations communications, not stifled. This is possible with proper legal oversight and preparation.
  • The cornerstone of any labor relations communications strategy should be a written and established policy detailing the corporate position on labor issues.  Such policies can be phrases as Labor Relations, Third Party Interference, Union Free Status or another similar policy which best encapsulates the corporate position.  In developing the policy is it important both to make sure that it is in compliance with the NLRA and also that it has the approval of the highest levels of executive leadership.  Their buy in can be of paramount importance when and if the policy comes in to play.
  • Executives should not only approve of the policy before it is adopted but time should be invested in making sure they understand the policy and how it can be used by them as a guide and tool to advance the company’s objectives.
  • Executives should be educated, beyond the policy, on the do’s and don’ts related to labor related communications.  Obviously, time constraints will typically not permit a full training but quick instruction during a board or management meeting and refresher emails or notices when labor issues are heating up not only guard against potential liability but provide executives needed tools.
  • As any labor related communication has the potential to lead to an unfair labor practice charge, executives should be advised to work with labor counsel, as well as labor relations and public relations, prior to communicating.  This includes any type of communication, whether it be about an intent to operate non-union, responses to union organizing, issues involved in union negotiations, strike related comments or merely general comment of unions.
  • Remember, no two situations are identical.  Employers and their executives need to think strategically about using their Executive Privilege to communicate lawfully about labor matters.

I wrote the October 2012 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. 

In it, I outline five actions that non-union employers should take to retain their union-free status in 2013:

  1. Assess your company’s vulnerability.
  2. Ensure that company policies are compliant and pro-company.
  3. Analyze and arrange your company’s workforce to avoid micro-units.
  4. Be prepared to respond at the earliest signs of union organizing.
  5. Watch for NLRB developments directed at non-union employers.

The following is an excerpt:

With the election around the corner, the nation’s attention turns to politics. However, regardless of who emerges victorious on November 6, one result can be predicted now: 2013 will see an uptick in union activity and union organizing drives. Although labor’s participation and spending in this year’s elections will reach record highs, employers should expect that after the election, unions will refocus their energy on non-union employers.

With private-sector union membership at record low levels and public-sector unions losing influence and members, the labor movement will be forced to recommit to organizing new private-sector members in 2013. While the tactics and tools available to unions may differ under a second Obama term than under a first Romney term, either way, unions will be targeting non-union employers rich with potential members to refill their ranks and coffers.

Read the full version on EBGlaw.com.

It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers.  A trend has emerged which puts labor law in conflict with standard employment practices.  From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.

Much attention has been given to the NLRB’s more direct pro-union organizing efforts like efforts requiring all employers to post an NLRB Rights Poster  and efforts to dramatically alter the timeframe and process for union elections through the new Ambush Election rules.

With both of those frontal efforts now struck down by various courts and on appeal, the NLRB is continuing its efforts in other ways.  While some are more benign like the NLRB’s stated “educational” efforts, including its new informational website targeting non-union employers, several decisions this year exposed another much more concerning trend – one which targets the common sense employment practices of many employers.  Specifically, in a string of decisions the NLRB has staked out positions which are at odds with conventional wisdom and guidance on a broad range of issues which literally cover the entire life cycle of non-union employment.

From hire, the Acting General Counsel has prosecuted the use of standard At-Will Policies, asserting after decades of unencumbered use that their mere maintenance may violate the National Labor Relations Act.   While we have written in detail previously about this, it clearly conflicts with the common sense approach many employers have relied on, and many employment counsel have advised on, as a most basic tenant and practice of a non-union employer.

During employment, the NLRB has targeted employers’ control of their workplace both on their physical property and beyond.  We have written previously about the recent though steady erosion of employers’ property rights and ability to control Off-Duty Access by employees.  The Acting General Counsel also has aggressively pursued employer Social Media Polices, going so far as to issue numerous memoranda and even a model policy, but still leaves more questions than answers on the line for employers seeking to protect their interests against cyber-slander and other inappropriate online activity.

In what could be the most troubling development, the NLRB is taking positions which could create a dilemma for employers who both want to conduct a proper harassment investigation to comply with the Civil Rights Act (and similar state harassment laws).  As previously discussed, the NLRB recently found that asking an employee to keep a harassment investigation confidential violated the Act.

In one of the more brazen decisions, the NLRB has taken odds with numerous state and federal courts and, seemingly, the US Supreme Court by deciding in D.R. Horton, Inc. that the Act prohibits employers from seeking arbitration agreements which include class action waivers.  This decision, which arguably conflicts with the pro-arbitration decision by the US Supreme Court in AT&T Mobility v. Concepcion, is likely destined to be decided by the Court, until then employers must make the decision of which authority to follow.

Each of these NLRB positions forces employers into a Sophie’s Choice on whether to adhere to the NLRB’s new and aggressive view of the National Labor Relations Act or to continue to follow tried and true practices and, more important, the directives of the EEOC, state law and even the US Supreme Court.

The question now is what is next and how can non-union employers prepare?

Management Missive

  • Management should review its At-Will policies to see if they could be made less vulnerable to unfair labor practice charges.
  • Management should review its Social Media, Off-Duty Access and Harassment/Discrimination Investigation policies, weighing the various risks and benefits of each.
  • Management should review its arbitration agreements to determine the best practice after weighing the risks and benefits of class waivers.
  • Management should stay vigilant as the NLRB’s efforts continue.

Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.

Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law.  For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that an employer could prohibit their own employees off-duty access to the working areas of its property, again provided it did so non-discriminatorily.   In a series of decisions the Board has significantly limited these employer rights.

First in New York New York LLC dba New York Hotel & Casino, the Board granted a right to the employees of a contractor/restaurant to access and use the property of the landowner/casino to try to organize the contractor’s employees.  In so doing the Board removed the ability of employers who have on-site contractors to exercise their state property rights and limit off-duty access of the contractors’ employees.

More recently, in Saint John’s Health Center and Sodexo America LLC, the Board has essentially rendered meaningless the provisions of Tri-County Medical Center enabling employers to prohibit off-duty access of employees to working areas.  In both cases the employers had policies prohibiting off-duty access with the exception of attending employer “sponsored events” or for employer-related business.  The Board ruled that because those employers allowed employees to come on to the employers’ premises to attend events as determined by management they did not fall within the Tri-County rule.  However, as the dissent pointed out in both cases, the Board’s new position in essence means that an employer cannot allow an off-duty employee to come on its property to attend a retirement party, pick up a check or fill out employment related paperwork (i.e. vacation or leave request) without also allowing the employee off-duty access to engage in union organizing.

Management Missive

  • Management should review its policies and practice on providing off-duty employees access, ensuring that any exceptions are both narrowly tailored and specific.
  • Like all such policies, Management should make sure that any rules it wishes to have are promulgated prior to any evidence of union activity, recognizing that once organizing activity begins they likely will not be able to adopt any new rules.
  • Management must ensure that any off-duty access rules are clearly articulated and uniformly enforced.
  • Management should seek counsel’s advice prior to disciplining any employees for violating \an off-duty access rule.

 

It is Employment Law 101 employment in the United States is generally at-will.  Equally elementary to HR professionals and employment counsel is the use of a good, strong at-will policy and/or agreement.  So common is the use of at-will policies and agreements that you would be hard pressed to find an employment handbook or an employer that does not make some use of them.

Notwithstanding this universal use, the National Labor Relations Board is poised to target non-union employers which maintain at-will policies or agreements.  Although the NLRB has taken several steps to ease the ability for unions to organize non-union employers and the Board itself has aggressively targeted the actions of non-union employers, the challenge to at-will policies could be the most dramatic and foundational yet; potentially impacting almost every employer. Though no binding NLRB decision has yet been issued, the Agency has already successfully prosecuted at least two employers with these very common policies.

In February, the NLRB General Counsel’s Office was successful in its prosecution of the for its employee handbook acknowledgment which provided “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”  The Administrative Law Judge accepted the General Counsel’s argument that “the signing of the acknowledgment form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status.”  In other words, asking employees to agree that their at-will status cannot change effectively violates their rights to try to change it through unionization.

While the language in the American Red Cross Arizona acknowledgment may arguably be a little more restrictive than others, the next prosecution contained language eerily similar and common to that of other employers.  In Hyatt Hotels Corporation the General Counsel’s Office issued an unfair labor practice complaint asserting that the following provisions of the employee handbook acknowledgment violated the Act:

  • “I understand my employment is ‘at-will.’”
  • “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.”

Although the case recently settled, the issuance of the complaint and the very generic nature of the challenged language was strong evidence that the NLRB was in fact targeting non-union employers’ use of at-will provisions.

Earlier this summer NLRB Acting General Counsel Lafe Solomon further confirmed the NLRB’s apparent new found concern with the allegedly over-broad and unlawful nature of at-will provisions.  Speaking to the Connecticut Bar Association, Mr. Solomon reiterated the theory advanced in the two earlier cases and asserted that an at-will policy/agreement would violate the Act if an employee could reasonably believe that it could not be changed through union organizing or a collective bargaining agreement.

Management Missive

  • Management should be on the lookout for a full decision from the Board providing further guidance on the extent to which at-will policies may be deemed unlawful and ways to save them.
  • Management should recognize that their at-will policies (as well as many other policies) may be attacked by unions seeking to organize their employees.
  • Management may want to consider revising policies to provide potentially saving caveats (i.e. replacing authorizing language limited to only one executive with language that says the policy may be amended only by a valid agreement signed by authorized representatives and a single executive).