Since AT&T Mobility v. Concepcion, 11 C.D.O.S. 4842 the employment defense bar has been touting arbitration agreements containing class claim waivers as a possible cure for the class action epidemic facing employers. But before nonunion employers begin imposing these arbitration agreements on their workforces, they would be wise to consider the possible effect that the National Labor Relations Act’s §7 may have on compulsory class waivers.
Section 7 guarantees to all employees — both union and nonunion — the statutory right to engage in “concerted activities … for the purpose of [their] mutual aid and protection.” Thus, unlike most other employment statutes which typically treat a collective action as one among several permissible procedural means to achieving statutory ends, the NLRA makes collective employee action in furtherance of common workplace interests a statutory end. Moreover, the National Labor Relations Board has found the filing of collective and class action suits regarding non-NLRA employment matters to be protected concerted activity within the meaning of §7.
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