Mandatory arbitration agreements that apply to statutory claims must unambiguously exempt NLRB unfair labor practice charges
February 16, 2016 by Dalisai Nisperos
Employer mandatory arbitration agreements that apply broadly to employee statutory claims must include a “sufficiently clear statement that all claims arising under the National Labor Relations Act, without limitation or qualification, are excluded from the policy’s coverage.” This was the Board’s recent holding in Professional Janitorial Services, Inc. 363 NLRB No. 35 (2015).
In Professional Janitorial Services the company’s arbitration policy broadly required employees to arbitrate “all disputes relating to or arising out of an employee’s employment,” including claims “recognized by local, state or federal law or regulations.” The agreement exempted “any non-waivable statutory claims, which may include … charges before … the National Labor Relations Board … are not subject to exclusive review by arbitration.” The administrative law judge who first heard this case ruled that this language made it sufficiently clear to employees that NLRB charges were excluded from the mandatory arbitration policy. But on review, the Board reversed.
The Board concluded that the use of “may” with reference to NLRB charges suggested that NLRB charges may or may not be excluded from the policy. This ambiguity, the Board ruled, was fatal to the policy, for the policy did not “clearly except from coverage all disputes that could form the basis of Board charges.” Because the exclusionary clause was ambiguous, employees could reasonably interpret the agreement to prohibit them from filing unfair labor practice charges arising under the National Labor Relations Act.
The NLRB has long ruled that an employee’s right to file an NLRB charge is non-waivable. As illustrated in Professional Janitorial Services, mandatory arbitration agreements that apply to statutory claims must clearly communicate that employees are free to file charges under the NLRA. It builds upon earlier decisions in D.R. Horton (2012) (affirmed in Murphy Oil (2014)) which held it unlawful for employers to explicitly require employees to waive their right to bring class or collective action claims in order to address wages, hours or other working conditions. Such mandatory arbitration agreements will also run afoul of the Act if employees would reasonably understand that they prohibit access to the Board and its processes.
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