Secrecy Rules Doom DISH Arbitration Agreements

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By Lawrence E. Dubé

DISH Network must revise or rescind its employment agreements across the U.S. after the NLRB found they contain provisions that violate federal labor law ( DISH Network, LLC , 2017 BL 121567, 365 N.L.R.B. No. 47, 4/13/17 ).

The satellite TV and media company required employees to sign mandatory arbitration agreements that appeared to block employees from filing charges with the National Labor Relations Board, the board said April 13.

The board also said DISH interfered with employee rights under the National Labor Relations Act by prohibiting employees from discussing arbitration proceedings with other employees.

The ruling shows employers must draft arbitration agreements and policies carefully to avoid creating an impression they interfere with employee rights under the NLRA.

Managers should carefully review the language of arbitration agreements and how the employer has applied them, Steven M. Swirsky, a member of Epstein Becker Green in New York who represents employers, told Bloomberg BNA April 14. But to avoid problems, they should also “carve out” and protect the right of each employee to file NLRB charges.

Employers that think they need to build confidentiality rules into an arbitration procedure should consider why such language is needed and how it can be framed, Swirsky said. Blanket rules that prohibit employees from discussing workplace issues are inconsistent with NLRB precedents and they’ll be found illegal.

Employers also should note the concurring opinion by the NLRB’s acting chairman, Philip A. Miscimarra (R), and his desire to examine employer rules on their merits, not merely on how employees may reasonably construe the employer’s language, Swirsky said. When a new majority takes over the NLRB, “that’s your direction,” he said.

Attorneys for DISH Network and Denney didn’t respond to requests for comment on the decision.

Board Finds Illegal Provisions

DISH has for several years required employees at U.S. locations to sign agreements requiring arbitration of “any claim, controversy and/or dispute” against the employer, “whenever and wherever brought,” according to the board.

Acting on an unfair labor practice charge by former employee Brett Denney, Members Mark Gaston Pearce (D) and Lauren McFerran (D) said an employer rule or policy is unlawful if employees would reasonably believe it prohibits them from exercising their rights under the NLRA.

Employees would reasonably read the DISH agreement as prohibiting them from filing unfair labor practice charges or using the NLRB’s administrative processes and the agreement was therefore illegal, the board members said.

The DISH agreement also violated employee rights by requiring workers to refrain from discussing “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards,” the board majority said.

Miscimarra Concurs, Sets Limits

Acting Chairman Miscimarra concurred in the majority’s unfair labor practice findings, but he staked out his own positions on both issues.

Miscimarra said he believes an employer may lawfully require employees to arbitrate NLRA claims, “at least where the agreement expressly preserves the right to file claims or charges with the Board or, more generally, with administrative agencies.”

However, he wrote, the language of the DISH agreement was broad and unqualified, and it improperly restricted the filing of charges with the NLRB.

Miscimarra also agreed with Pearce and McFerran that the confidentiality provision in the satellite TV provider’s arbitration agreements violated the NLRA.

Noting that the agreement apparently covered claims of NLRA violations, Miscimarra said the secrecy requirement could interfere with the rights of employees to engage in concerted activity for their mutual aid or protection.

There may be some cases in which an employer can demand confidentiality in an arbitration proceeding for reasons unrelated to the NLRA, Miscimarra said, but he wrote “this is not such a case and the record reveals no countervailing interest that justifies the scope of the confidentiality clause at issue here.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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