|April 14, 2014|
Previously published on Spring 2014
In D.R. Horton Inc., the National Labor Relations Board (NLRB) held that an employer violated Section 8(a)(1) of the National Labor Relations Act by enforcing an arbitration policy that prohibited any participation in class, collective or similar action by employees. According to the NLRB, such a prohibition interfered with the right of employees under the NLRA to engage in protected concerted activity.
In December 2013, the Fifth Circuit Court of Appeals rejected the NLRB’s holding in D.R. Horton, finding that the Board’s decision did not give proper weight to the FAA. On March 13, 2014, the NLRB filed a petition asking the Fifth Circuit to rehear and reverse its decision.
Recently, in SF Markets, LLC, an NLRB administrative law judge held that a multistate grocer interfered with the federal labor law rights of employees by maintaining and enforcing a mandatory arbitration agreement that precluded employees from pursuing class or collective actions and left them with no option other than individual arbitration proceedings to vindicate claims against their employer. The ALJ adhered to the NLRB’s decision in D.R. Horton, noting that only reversal by the Supreme Court or the NLRB itself would be valid.