In Supply Technologies, LLC and Teamsters Local 120, 359 NLRB 38 (Dec. 14, 2012), the National Labor Relations Board struck down an employer’s mandatory grievance-arbitration policy for restricting employees from utilizing Board processes. The Board majority (Members Sharon Block and Richard Griffin) reasoned that the policy was lengthy and contained legalese, which employees could construe as prohibiting them from filing unfair labor practice charges or otherwise utilizing Board mechanisms. The majority further held that language contained in the policy stating that employees “can still file a charge or complaint with a governmental agency” and that employees “are free to cooperate with a governmental agency that might be investigating a charge or complaint,” did not adequately notify employees that they could pursue Board remedies in spite of the grievance-arbitration policy.
As Member Brian Hayes (now a shareholder at Ogletree Deakins) noted in the dissent, this decision signals the Board’s continued reluctance to endorse mandatory alternative dispute resolution policies that encompass statutory claims for individual workers in a nonunion setting. The practical advice from Supply Technologies is that employers should expressly state in mandatory grievance-arbitration policies, without qualification, that employees may still file unfair labor practice charges and otherwise gain relief through the Board’s processes despite the policy.