At-Will Language Held to Violate the National Labor Relations Act

     Recently, an Administrative Law Judge of the National Labor Relations Board held that traditional “at-will,” language is a per se violation of Section 7 of the National Labor Relations Act.  In American Red Cross Arizona Blood Services Region, JD(SF)-04-12, (28-CA-23443), Administrative Law Judge Gregory Z. Meyerson held that signing an:

 ”. . . acknowledgement form [with at-will language] 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.  For all pratical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship.  Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.”

     This appears to be another effort by the NLRB to extend its reach beyond the typical sphere of labor relations.  Quite frankly, it is extremely difficult to understand the rationale by the ALJ.  Needless to say there probably have been tens of thousands of union organizing campaigns and petitions to the NLRB for representation in which the employer has promulgated the traditional at-will language in an employee handbook, employment application or policy manual.  Obviously, and contrary to the ALJ’s holding, the at-will language did not, in fact, “chill” any employee’s efforts to organize or for that matter to engage in protected concerted activity.

    This holding, if upheld and/or followed is quite troubling.  Employers who are not unionized need to consult with their counsel to review their at-will provisions and possibly make some addition or modification to avoid an Unfair Labor Practice Charge.