In a recently-issued decision, Supply Technologies, LLC, 359 NLRB No. 58 (2012), (pdf) the National Labor Relations Board struck down a non-union employer's mandatory arbitration program on the grounds that the program interfered with employees' Section 7 rights under the National Labor Relations Act ("the Act"). The Board's penchant in recent years for finding various policies (social media, confidentiality, etc.) in violation of the Act has become as predictable as a reality TV episode.
The Board traditionally applies a three-prong test to evaluate whether a policy that does not explicitly restrict Section 7 rights may nonetheless violate the Act. Under this test, the employer's policy runs contrary to the Act if: (1) employees would reasonably construe the policy to restrict Section 7 activity; (2) the policy was promulgated in response to Section 7 activity; or (3) the rule has been applied to restrict Section 7 activity. It is the first prong – whether or not employees would "reasonably construe" the policy as restricting Section 7 rights – that the Board has used to invalidate many policies that ordinarily would not reasonably be construed as having anything to do with Section 7 rights.
Member Hayes said it best in his dissent in Supply Technologies when describing the Board's "distortion" of the first prong: "...the test is not whether ambiguous language would reasonably tend to interfere with employees' Section 7 rights. The test is simply whether the language is ambiguous."
As private sector unionization continues to decline, thereby reducing the number of employees who typically look to the Board for relief, the Board will likely continue to expand its reach to non-union settings – as it did in this case – by finding that everyday policies present in most workplaces violate the Act.
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