A disturbing trend is beginning to appear.  The NLRB, or at least Region 28, is issuing and prosecuting complaints alleging that “at will” employment provisions in employee handbook acknowledgement forms (and presumably handbooks and employment applications) interfere with employees’ Section 7 rights to engage in protected concerted activity.  Although we are aware of no NLRB decisions yet on this issue, the trend is disturbing.

In American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012) (ALJ Myerson), an ALJ found that the Red Cross violated Section 7 by having, in an employee acknowledgement of receipt of handbook form, the following statement:  “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

Applying the Board’s standard analysis for determining whether a rule interferes with Section 7 rights, the ALJ found that “in my view there is no doubt that employees would reasonably construe the language to prohibit Section 7 activity.”  The ALJ accepted the General Counsel’s argument that the form was essentially a waiver in which the employee gave up her right to change her at-will status, and thus gave up her right to engage in protected-concerted activity to try to change that status:

For all practical 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.

Granted, the at-will acknowledgment did not recognize, as many do, that it might later be subject to change by written agreement.  But the very nature of at-will employment is that it is subject to change and renegotiation.  Nothing locked any employee into this state for a set term, just like employee wages and other conditions of employment can be subject to change.  It is difficult to see how any hypothetical employee could reasonably believe that, by acknowledging her at-will status, she could never advocate changing that status.

Yet the NLRB apparently is not challenging just employment-at-will policies that proclaim they can never be changed.  Days after that decision was issued, a complaint issued out of the same Region challenging yet another handbook acknowledgment form, this time one in which the employee acknowledges her at-will status, but also that it can be changed by a written agreement signed by the employee and certain specific company officials.  Can it really be said that this provision somehow “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?” 

One would hope that the NLRB, if exceptions are filed to American Red Cross, will step in and end this particular insanity.  Employment-at-will is basically a national standard, yet even before the passage of the NLRA employees felt free to organize unions and individually seek employment contracts with certain protections.  Taking shots at employment-at-will provisos seems to be little more than another “gotcha” excuse to overturn otherwise valid election results.

No one disputes that certain employment policies can cross the line and interfere with Section 7 rights.  If the Acting General Counsel, Regions, ALJs, and ultimately the Board continue to overanalyze policies like this, the Board might as well just require that all handbooks be submitted to the NLRB for review and approval before being issued.  In the meantime, employers concerned that the NLRB might buy into this trend might want to revisit their at-will employment statements to insure that any at-will disclaimer provides that at-will employment status can be modified by an enforceable executed written agreement.