NLRB Carve Out to Arbitration Clause Not Adequate, says Board

By now, most companies know that the National Labor Relations Board frowns upon mandatory arbitration agreements, even voluntarily entered into ones, and now even ones that permit employees to file charges with the Board. Specifically, an Administrative Law Judge found that the company acted unlawfully in making it “reasonably clear” that individual employees could file NLRB charges because the company’s “exclusions and restrictions” language confused, rather than clarified, the rights of employees to file unfair labor practice charges with the Board.

The policy language provided, “Any non-waivable statutory claims, which may include wage claims within the jurisdiction of a local or state labor commission or administrative agency, charges before the EEOC, NLRB, or similar local or state agencies, are not subject to exclusive review by arbitration.” According to the Board, the company’s suggestion that it “may” exempt the filing of Board charges is misleading in that it implies that some claims that are cognizable under Board law may nevertheless be subject to arbitration under the Employer’s policy.

Now I’m confused in trying to figure out how a plain language reading of the policy that permits the filing of Board charges was confusing to the Board.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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