NLRB judge: Firm’s ‘arbitration agreement’ with workers can’t ban appeals to board

FORT LAUDERDALE, Fla. (PAI) – An “arbitration agreement” that a firm forces a worker to sign cannot ban the worker from appealing labor law violations to the National Labor Relations Board, an NLRB administrative law judge ruled.

The ban violates the worker’s labor law rights, ALJ Melissa Olivero ruled on August 14 in a case involving Fort Lauderdale-based Everglades University.

A second NLRB administrative law judge, Christine Dibble, in Kansas City, Mo., issued a similar ruling August 19 in the case of John Bauer, and his company, the Pittsburg, Kansas, office of Cellular Sales of Missouri.

In late 2011, Everglades decided to eliminate all paper personnel records and make all workers re-apply for their jobs electronically. The application included a four-page “employee arbitration agreement (EAA).” “Don’t sign it” equals “no job.”

Lisa Fikki, a graduate admissions counselor, objected. She wanted a lawyer to look over the arbitration agreement first, before the June 29, 2012, deadline to sign it. She believed the pact not only barred workers from going to the NLRB but also barred other defenses, such as class-action suits. The school replied by first giving her extra time to review the EAA, but then it reversed course and fired her on July 12.

Olivero’s ruling agreed with Fikki’s objections. The ALJ found the university’s “arbitration agreement” was so broad and covered so much that a reasonable person could conclude barred it anything other than arbitration – including going to the NLRB.

“An employer violates” labor law “by maintaining work rules that tend to chill employees in the exercise of their rights,” Olivero wrote. “Employers may not compel employees to waive their National Labor Relations Act right to collectively pursue litigation of employment claims in all forums, arbitral and judicial.”

The test of if a work rule breaks labor law is “whether a reasonable employee would read” it to be violating his or her rights, Olivero said. The university’s arbitration agreement had a vague exception to its ban on outside appeals, and that wasn’t good enough, she said. The arbitration agreement “would reasonably be read by employees to prohibit the filing of unfair labor practice charges with the board,” Olivero said.

Labor law bans “discrimination based upon union or other protected, concerted activity. An employee could easily construe the EAA to require arbitration of claimed violations of the act. Therefore, the language of the EAA is reasonably read to require employees to resort to respondent’s arbitration procedures instead of filing charges with the board.” Olivero ordered the university to change the arbitration agreement’s language – and to reinstate Fikki with back pay.

In the Kansas case, the firm converted its workers from independent contractors to employees, covered by labor law, but still tried to ban them from taking cases to the NLRB. That breaks labor law, Dibble ruled, using the same language. “An employer violates Section 8(a)(1) of the act when it requires employees…as a condition of their employment, to sign an arbitration agreement that prohibits them from ‘filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral, or judicial,”” Dibble wrote.

Image: Florida and Missouri are among the states shown as attacking workers rights. “The attack on collective bargaining rights is the result of a decades-long, well-orchestrated, relentless campaign by corporations, the U.S. Chamber of Commerce and their front groups to strip away workers’ organizing rights and the power for better wages and working conditions.” CWA Facebook page.



Press Associates Union News Service provides national coverage of news affecting workers, including activism, politics, economics, legislation in Congress and actions by the White House, federal agencies and the courts that affect working people. Mark Gruenberg is Editor in chief and owner of Press Associates Union News Service, Washington, D.C.