In GameStop Corp., GameStop Inc., Sunrise Publications, Inc., and GameStop Texas Ltd. (L.P.) and Michelle Krecz-Gondor, Case 20-CA-080497, the National Labor Relations Board (the “Board”) held, on December 31, 2015, that GameStop violated Section 8 of the National Labor Relations Act (the “Act”) by maintaining a mandatory arbitration policy under its C.A.R.E.S. Program that interferes with, restrains, and coerces its employees in the exercise of their rights as guaranteed in Section 7 of the Act.
Section 8(a)(1) of the Act states that, “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Additionally, Section 7 of the Act states that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representation of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).”
As a condition of employment under GameStop’s C.A.R.E.S Program, all employees were required to sign an acknowledgment that they agreed to utilize the arbitration policy under the C.A.R.E.S. Program to resolve all workplace disputes or claims rather than filing such disputes or claims in a court of law. Additionally, the C.A.R.E.S. Program contained a confidentiality clause that prevented all employees from discussing with other employees the arbitration process or the results of arbitration.
The Board has consistently held that confidentiality provisions that expressly prohibit employees from discussing among themselves, or sharing with others, information relating to wages, hours, or working conditions or other terms and conditions of employment violates Section 8(a)(1) of the Act, even if such provision was not enforced and was not unlawfully motivated. GameStop’s confidentiality provision prohibited employees from discussing any aspect of the arbitration, including information disclosed in the proceeding, all records, reports, or other documents, as well as all results, decisions, and awards from the arbitration proceeding. The Board held that GameStop violated Section 8(a)(1) of the Act because (i) the C.A.R.E.S. Program was a condition of employment and (ii) a reasonable employee could interpret the confidentiality provision as an unlawful instruction not to talk about their working conditions.
Order by the Board
Having found that GameStop engaged in unfair labor practices by violating the Act, the Board ordered GameStop to cease and desist from: (i) maintaining a mandatory arbitration policy that employees would reasonably believe bars or restricts them from their right to file charges with the Board; (ii) maintaining a mandatory arbitration policy that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial; and (iii) interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the NLRA. The Board also ordered GameStop to take affirmative action necessary to effectuate the policies of the Act. Such affirmative actions included: (i) revising or rescinding the C.A.R.E.S. Program and its rules to make it clear to GameStop’s employees that the C.A.R.E.S. Program and GameStop’s employees’ agreement to follow the C.A.R.E.S. Program does not constitute a waiver in all forums of their right to maintain an employment-related class or collective actions; (ii) notifying all current and former employees who were required to sign the waiver that the C.A.R.E.S. Program rules have been rescinded or revised; (iii) physically and electronically posting a notice to GameStop’s employees that GameStop has violated federal labor law; and (iv) filing a sworn certification of a responsible GameStop official attesting to the steps that GameStop has taken to comply. For additional details on the case, see GameStop Corp., GameStop Inc., Sunrise Publications, Inc. and GameStop Texas Ltd. (L.P.) and Michelle Krecz-Gondor.
The attorneys at Nardone Limited regularly assist our clients with labor, employment, and human resource issues, like the ones addressed in the GameStop case. If you have any questions or concerns regarding the Board or compliance with the Act, feel free to contact Nardone Limited.