ALJ Finds Employer Alternative Dispute Resolution Program in Violation of NLRA
Last week in Supply Technologies, LLC, Case No. 18-CA-19587 (May 31, 2011), Administrative Law Judge George Alemán found that the employer’s implementation of an alternative dispute resolution program unlawfully interfered with its employees’ right of access to the Board’s processes under Section 7 of the National Labor Relations Act.
The decision noted that the alternative dispute program did not explicitly restrict employees’ Section 7 activity, but a policy may still violate the NLRA if "employees would reasonably construe the language of the rule or policy to prohibit Section 7 activity." In drawing his conclusion the judge was required to "give the rule or policy in question a reasonable reading, and…refrain from reading particular phrases in isolation or presuming improper interference withemployee rights."
In this particular case, the employer's documents explained that the program's grievance arbitration procedure was to be the sole method for employees to "resolve all of their disputes, controversies, and claims," including "claims for discrimination, harassment, or retaliation" -- with the exception of workers compensation claims, unemployment claims, and criminal claims. Although the program provided that an employee could "still file a charge or complaint with a government agency" and was "free to cooperate with a government agency that might be investigating a charge or complaint," the program required the employee to "waive[] any right [he/she] might have otherwise had to any remedy that the agency might try to obtain on [his/her] behalf (to the extent this is permissible under law.)"
Finding these statements conflicting and ambiguous, the ALJ held that the program’s waiver requirement rendered meaningless whatever rights employees purportedly had under the program to file a charge with the NLRB. While there appeared to be some effort to include a disclaimer in the parenthetical quoted above, this language did not appear in other related documents setting forth the terms of the program. As a result, the ALJ resolved the ambiguities against the employer as promulgator of the program, and determined that it had a chilling effect on employees’ willingness to exercise their Section 7 rights to file a charge with the Board.
Accordingly, employers should be mindful when creating and/or reviewing alternative dispute programs to ensure that they do not expressly limit employees’ right of access to the NLRB and its processes. Moreover, they should eliminate any ambiguity or inconsistencies in their applications, forms, acknowledgments or other related documents by which employees might reasonably construe the program to prohibit Section 7 activity.
