November 27, 2014

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NLRB Protects Nonunionized Workers - Again

The National Labor Relations Board has issued yet another decision pertaining to non-unionized workplaces.  This time, in Supply Technologies, LLC, the Board found that an employer’s mandatory grievance-arbitration policy violated Section 7 of the National Labor Relations Act (which includes the broad right “to engage in [ ] concerted activities for the purpose collective bargaining or other mutual aid or protection)” because employees would “reasonably” read the policy as preventing them from filing unfair labor practice charges with the Board.

The policy at issue, designed to be broad in scope, required employees “to bring any claim of any kind” (emphasis in the original) including, among other things, all claims relating to employment and arising under employment-related statutes.  Three types of claims were specifically excluded from operation of the policy – criminal complaints, claims for workers’ compensation, and claims for unemployment benefits.  The policy also provided that employees were entitled to file a charge or complaint with a government agency, and to cooperate with a government agency that was investigating a charge or complaint.  Employees who refused to sign the policy were fired. 

Finding the policy to be “ambiguous, at best,” a majority of the Board held that reasonable employees would construe it as interfering with their right to file unfair labor practice charges or access other Board processes.” (emphasis added). The dissenting Board member found that the majority view “signaled the Board’s continued reluctance to endorse any form of mandatory alternate dispute resolution encompassing statutory claims for individual workers in a nonunion setting.”  This reluctance, he continued, cannot be reconciled with the well-recognized federal policy favoring arbitration, and reflects an “unacceptably paternalistic view of unrepresented employees.”

The Supply Tech decision joins a string of others expanding Section 7 protections in nonunionized workplaces.  For example, in 2012 alone, the Board:

  • Found employees’ Facebook comments about another employee’s criticism of their job performance were protected concerted activity under Section 7 (read more)
  • Found that a company’s policy, whereby employees were expected to be courteous, was overbroad and invalid (read more);
  • Invalidated a policy prohibiting employees from making statements that “damage the Company, defame any individual or damage any person’s reputation” was overly broad, in that it would “reasonably tend to chill employees” in the exercise of their Section 7 rights to protest working conditions (read more and more);
  • Found that a company’s blanket policy of requesting participants in an internal investigation to keep the investigation confidential improperly infringes on employees’ Section 7 rights (readmore);
  • Weighed in on employers’ social media policies (read more and more); and
  • Otherwise sought to expand its considerable influence over both unionized and non-unionized workplaces (read more).
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About this Author

Martha Zackin, Employment, Attorney, Mintz Levin, Law firm
Of Counsel

Martha is Of Counsel in the firm's Boston office, practicing in the Employment, Labor & Benefits Section. She has more than 20 years of experience advising and representing clients on a broad range of employment law issues and in adversarial proceedings. In her role as an advisor to employers, boards of directors, and executives, Martha regularly provides practical advice and counsel on a wide range of employment-related issues, including employee relations and policy matters, violations of noncompetition, nonsolicitation and nondisclosure agreements, employee...

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