Yesterday, the Office of the General Counsel of the National Labor Relations Board (NLRB) issued an Advice Memorandum which analyzed whether an “at-will” employment provision in a handbook violated Section 8(a)(1) of the NLRA because it was overbroad and would reasonably chill employees in the exercise of their rights. Section 8 generally prohibits employers from interfering with, or restraining, employees’ rights to engage in concerted activities such as where two or more employees are acting together in furtherance of matters of mutual interest, such as employee compensation, benefits or improving workplace conditions.
The challenged handbook provision stated that: “No manager, supervisor, or employee of [Employer] has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”
The NLRB determined that the policy did not explicitly restrict concerted activity, and that there was no indication that the employer promulgated the policy in response to union or other protected activity or that the policy had been applied to restrict protected activity. Further, it found that employees would not reasonably construe the provision to restrict their NLRA right to select a collective –bargaining representative and bargain collectively for a contract. The policy simply limited the personnel who were authorized to enter into contracts with employees. Accordingly, the policy was found not to violate the NLRA.