Recently, the National Labor Relations Board (NLRB) ordered Dish Network, LLC to rescind or revise its arbitration agreement, finding that provisions in the agreement violated the National Labor Relations Act (NLRA).
Beginning in October 2013, Dish required all applicants for employment to sign an arbitration agreement, which required that any claim, controversy or dispute arising out of the employee’s application for employment, employment, or termination of employment shall be resolved by arbitration (the “Arbitration Agreement”). The Arbitration Agreement also required that the arbitration shall be kept confidential. There was no procedure in the Arbitration Agreement for the employee to opt out. In this particular case, the charging party, employee Brett Denney, signed the Arbitration Agreement. He was later suspended for an alleged violation of a workplace policy. Denney was directed to not discuss his suspension with his coworkers. Denney then filed a complaint with the NLRB, alleging a violation by Dish of Section 8(a)(1) of the NLRA by prohibiting him from discussing the suspension with coworkers and for maintaining and enforcing the Arbitration Agreement.
In addressing the Arbitration Agreement, the NLRB noted that an employer violates Section 8(a)(1) of the NLRA if it maintains an arbitration policy that employees would reasonably believe interferes with their ability to file a charge with the NLRB or access the NLRB’s processes. The NLRB found that Dish’s Arbitration Agreement violated Section 8(a)(1) because the employees would reasonably construe it from prohibiting them from filing NLRB charges or accessing the NLRB’s processes. The NLRB noted that the Arbitration Agreement was very broad in that it applied to “any claim, controversy, and/or dispute between them, arising out of and/or in any way related” to the employee’s application, employment or termination. Further, the NLRB found that the confidentiality requirement of the Arbitration Agreement independently violated Section 8(a)(1) because a workplace rule that prohibits discussion of terms and conditions of employment is unlawfully broad. As to Dish’s instruction to Denney to not discuss the suspension with his coworkers, the NLRB also found that the instruction violated Section 8(a)(1) of the NLRA.
Under the NLRB’s order, Dish must cease and desist from using the Arbitration Agreement and must take affirmative actions to effectuate the policies of the NLRA. It also required that Dish rescind the Arbitration Agreement or revise it, making clear that it does not restrict the employee’s right to file NLRB charges or access NLRB’s processes and that it does not require confidentiality of arbitration proceedings. The NLRB also ordered Dish to notify current and former employees of the action, and post and distribute electronically notices at certain Dish locations of the action and order. , No. 27-CA-158916 (NLRB April 13, 2017).