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24 Lab. Law. 31 (2008-2009)
NLRA Issues for the Non-Union Workplace

handle is hein.journals/lablaw24 and id is 37 raw text is: 31 NLRA Issues for the Non-Union Workplace John F. Fullerton III and Bruce R. Millman1 A number of judicial and administrative decisions under the Na- tional Labor Relations Act (NLRA) in the last few years serve as valu- able reminders that the Act reaches beyond unionized workforces and the regulation of employer conduct during organizing campaigns. Non- union employers, even those that have never been and may never be subjected to an organizing campaign, must be aware of the potential application of the NLRA to their workplace decisions, particularly given the fluctuating policy preferences and predilections of the Na- tional Labor Relations Board (NLRB), depending upon which political party controls the White House. This paper discusses numerous recent decisions involving employer conduct and policies that can arise in non-union as well as union work- places. Specifically, this paper addresses NLRA-imposed limitations on the grounds upon which employers can discipline or discharge non-union employees. It then provides an overview of several recent Board deci- sions concerning typical employment policies-such as confidentiality, non-solicitation, non-fraternization, electronic communication and man- datory arbitration policies, and employee participation committees-that either involved or would apply equally to non-union workplaces. I. The Statutory Framework Section 7 of the NLRA is akin to an employee bill of rights and is the foundation upon which the remainder of the statute rests: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities .... 2 1. John F. Fullerton III is a Special Counsel in the labor and employment group at Sullivan & Cromwell LLP in New York, NY. Bruce R. Millman is a Shareholder at Littler Mendelson, P.C., in New York, NY. The authors gratefully acknowledge the contributions of associates Gregory C. Shih of Sullivan & Cromwell and Denise Barton Ward of Littler Mendelson to this article. 2. 29 U.S.C. § 157 (1994 & Supp. 2008).

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