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Employers during the Obama years felt particularly vulnerable to expansive interpretations of Section 7 of the National Labor Relations Act – interpretations many felt left non-unionized employers particularly open to attack.

Just what does Section 7 cover?

Section 7 of the National Labor Relations Act provides employees with “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection . . . .” 29 U.S.C. § 157. It also provides employees with “the right to refrain from any or all such activities . . . .”

Well – a new era has begun – one during which appointees of President Trump will have an opportunity to shape policy. Let’s look at a recent decision of the current National Labor Relations Board (NLRB) on Dish Network for clues on what employers might expect from this Board under this new President.

In Dish Network, LLC, the NLRB found that Dish unlawfully interfered with employee Section 7 rights by enforcing an overly broad arbitration agreement and by requiring that employees maintain confidentiality on a matter of an employee’s suspension.

The arbitration agreement in question – one that applied to “any claim, controversy and/or dispute between [an employee and Dish Network], arising out of and/or in any way related to Employee’s application for employment and/or termination of employment” – was deemed unlawful because “employees would reasonably construe it to prohibit filing Board charges or otherwise accessing the Board’s processes.”

This decision is not groundbreaking. Policies that require the arbitration of all disputes (including NLRB charges) relating to an employee’s employment have been considered violations of the Act since 2006 when the Bush-era Board rendered its decision in U-Haul Co. of California, 347 NLRB 375 (2006).

The Board also found that Dish Network violated the Act when it ordered an employee not to discuss their suspension with co-workers. The National Labor Relations Act specifically protects employees’ rights to discuss the terms and conditions of their employment, including discipline. Without a meaningful and legitimate business justification that supersedes an employee’s Section 7 rights, rules requiring confidentiality about such matters have long been held unlawful by the Board.

The lesson in all of this?

There are two.

• Even large employers (particularly non-unionized employers) can run afoul of the rules when they fail to review and monitor their policies for compliance with the National Labor Relations Act.
• The degree of regulatory relief employers can expect during the Trump years is still very much open to debate. Many business organizations, however, remain hopeful.

If you’re an employer and have questions about compliance with the National Labor Relations Act or other employment law matters, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.

Photo credit: Gage Skidmore via Foter.com / CC BY-SA

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