Arbitration Plan's Brochure and Acknowledgment Saved by Express NLRA Exclusion in Referenced Plan Document: NLRB | Practical Law

https://content.next.westlaw.com/practical-law/document/Ic37c58903d5211eaadfea82903531a62/Arbitration-Plan-s-Brochure-and-Acknowledgment-Saved-by-Express-NLRA-Exclusion-in-Referenced-Plan-Document-NLRB?viewType=FullText&transitionType=Default&contextData=(sc.Default) In Bloomingdale's, Inc., the National Labor Relations Board (NLRB) held that an employer's maintenance of a mandatory arbitration plan in its dispute resolution policy did not violate Section 8(a)(1) of the National Labor Relations Act (NLRA). Although the summary brochure and acknowledgment form for the policy did not expressly exclude NLRA claims as did the plan document, they made clear that the plan document's terms control and that employees must read the plan document.

Arbitration Plan's Brochure and Acknowledgment Saved by Express NLRA Exclusion in Referenced Plan Document: NLRB

Practical Law Legal Update w-023-7233 (Approx. 5 pages)

Arbitration Plan's Brochure and Acknowledgment Saved by Express NLRA Exclusion in Referenced Plan Document: NLRB

by Practical Law Labor & Employment

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Published on 24 Jan 2020 • USA (National/Federal)

In Bloomingdale's, Inc., the National Labor Relations Board (NLRB) held that an employer's maintenance of a mandatory arbitration plan in its dispute resolution policy did not violate Section 8(a)(1) of the National Labor Relations Act (NLRA). Although the summary brochure and acknowledgment form for the policy did not expressly exclude NLRA claims as did the plan document, they made clear that the plan document's terms control and that employees must read the plan document.

On January 21, 2020, in Bloomingdale's, Inc., the panel (Board) heading the NLRB's judicial functions held that:

The employer did not violate Section 8(a)(1) of the NLRA by maintaining a mandatory arbitration plan in its Solutions InStore (SIS) dispute resolution policy.
The arbitration plan contained an unconditional and explicit exclusion for NLRA claims that, in the Board's view, was even more prominent than the savings clause in Briad Wenco (368 N.L.R.B. No. 72 (Sept. 11, 2019)); see Legal Update, Employment Arbitration Agreement with Exclusive Forum Clause Lawful Because of Savings Clause's Content and Placement: NLRB).
Although the summary brochure and acknowledgment form did not themselves repeat the exclusion of NLRA claims of the plan document, they made clear that the plan document's terms control, and that employees must read the plan document.
Employees would not reasonably interpret the SIS policy to bar or restrict their access to the NLRB.

The Board noted that:

The arbitration plan document, summary brochure, and acknowledgment appeared together in a packet for employees.
The plan document warned of exclusions from the arbitration plan's scope by:
- titling the relevant article in the arbitration plan, "Claims Subject to or Excluded from Arbitration";
- prefacing that article's statement about employment-related claims being covered by the arbitration plan with the language "except as otherwise limited"; and
- including in the same article, only three paragraphs after the statement about the arbitration plan's scope, the express exclusion, "Claims by Associates . . . under the National Labor Relations Act are . . . not subject to Arbitration."
The summary brochure:
- instructed employees to read the plan document in red text for "[m]ore specific details"; and
- in a red box, disclaimed to employees that it was a summary of some of the arbitration policy's provisions, benefits, and limitations and again instructed employees to read the plan document for the actual details.
The acknowledgment:
- required employees to affirm that they had been instructed to carefully review the plan document and summary brochure; and
- informed employees that they can read about the benefits and tradeoffs of arbitration in the brochure and plan document.

(369 N.L.R.B. No. 8 (Jan. 21, 2020).)

The practical implications of the decision are that summary documents and acknowledgments that do not themselves include language excluding NLRA claims from the scope of an arbitration plan or policy might not render an arbitration plan invalid if they are packaged with and cross-reference the arbitration plan or policy document with express NLRA claim exclusions.