The National Labor Relations Board has added its voice to the voices of other agencies and courts striking down arbitration agreements. In a case involving Bill’s Electric, Inc., the National Labor Relations Board struck down an arbitration agreement that was part of a job application form. According to the agreement, arbitration was mandatory and employees were required to use arbitration before filing an unfair labor practice with the Board. Thus, the arbitration agreement restricted employees’ access to the Labor Board, a violation of Section 8(a)(1) of the National Labor Relations Act, which prohibits actions and policies that interfere with, restrain or coerce employees in the exercise of their rights to organize unions and use the processes of the Labor Board.
Alan M. Kaplan reminds employers that their applications as well as policies in employee handbooks may be viewed by the Labor Board and unions as interfering with employees’ rights. Thus, policies restricting the right of employees to discuss their wages and benefits and, in some cases, to express dissatisfaction with their bosses and employers, may be found unlawful. Periodic reviews of handbooks is necessary to ensure that policies and practices comply with all laws, including the National Labor Relations Act, especially if the employees may be subject to a union organizing attempt. Merely by maintaining an unlawful provision in an employee handbook may lead to the filing of an unfair labor practice charge and the Labor Board may find that the policies interfere with an election.