Total Articles: 9
Recent Ruling that Class Action Waivers are Illegal Shows NLRB Remains Active
On January 3, 2012, the National Labor Relations Board (NLRB) ruled that a class action waiver in a mandatory employment arbitration agreement is illegal. D.R. Horton, Inc. and Michael Cuda, 357 NLRB No. 184 (2012). This decision comes less than a year after the U.S. Supreme Court upheld such a waiver in a consumer arbitration agreement. AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011). Further, in the days since the D.R. Horton decision was published, the Supreme Court again has upheld a consumer arbitration agreement that contained a class action waiver. CompuCredit Corp. v. Greenwood, No. 10-948 (Jan. 10, 2012).
NLRB General Counsel Policy Change Would Limit Arbitration Deferral
The National Labor Relations Board’s Office of the General Counsel has once again directed changes to the Board’s arbitration deferral policy. In a memorandum (doc) issued on January 20, 2012, Acting General Counsel (GC) Lafe Solomon seeks to prevent the routine deferral of Section 8(a)(1) and 8(a)(3) cases to arbitration if resolution of these unfair labor practice (ULP) charges by arbitration cannot be achieved within one year. The GC would apply this change in policy to cases that have already been deferred to arbitration – but have been pending for more than one year – as well as new cases in which there are indications that resolution via arbitration would likely take considerable time. The new policy would apply only in situations in which grievance-arbitration procedures are already explicitly laid out in a collective bargaining agreement. The new deferral policy would also apply – albeit under very limited circumstances – to cases involving allegations of contractual violations under Section 8(a)(5).
NLRB Clarifies Use Of Class Action Waivers In Arbitration Agreements.
Four days before retiring from his post as General Counsel of the National Labor Relations Board ("NLRB"), Ronald Meisburg issued a Memorandum that severely limits the use and usefulness of mandatory arbitration agreements in a non-union setting. Although not legally binding, General Counsel Memorandums serve as case-handling guidelines for Regional offices nationwide.
Supreme Court Bypasses Constitutional Question In Arbitration Ruling.
On December 8, 2009, the U.S. Supreme Court issued a unanimous decision holding that a panel of the National Railroad Adjustment Board (NRAB) violated the Railway Labor Act (RLA) when it refused to hear five grievance cases on the ground that the railroad and the union had not presented sufficient evidence to show that they had completed the required "conferencing" before arbitration.
HIGH COURT GREEN LIGHTS ARBITRATION OF JOB BIAS CLAIMS UNDER UNION CONTRACTS.
On April 1, 2009, the United States Supreme Court handed a rare victory to unionized employers seeking to compel arbitration of job bias claims under existing labor agreements. In the case of 14 Penn Plaza LLC v. Pyett, the High Court enforced a clause in a collective bargaining agreement which explicitly required union members covered by the agreement to arbitrate any claims they may have under the federal age bias laws. This ruling is a major departure from the way the court has looked at this issue for the past thirty-five years.
Supreme Court Upholds Arbitration Of Discrimination Claims.
On April 1, 2009, the Supreme Court upheld the enforceability of arbitration provisions in collective bargaining agreements, which require employees to arbitrate claims under federal anti-discrimination law. While it marks a sharp departure from the established law in much of the country, for employers, it is welcome news.
Supreme Court Issues Employer-Friendly Ruling In ADEA Arbitration Case.
This morning, the U.S. Supreme Court held that a provision in a collective bargaining agreement requiring employees to arbitrate claims under the Age Discrimination in Employment Act (ADEA) is enforceable. Because the arbitration clause was freely negotiated and “clearly and unmistakably” requires arbitration of age discrimination issues, the Court stated, it had “no legal basis” to strike down the provision.
Employer's Decision to Fire Employee after Reinstatement Upheld (pdf).
Court finds second termination for "independent grounds" was permitted.
NLRB Strikes Down Mandatory Arbitration Policy.
In our April 2006 edition (Vol. 26, No. 2), we
cautioned employers that agreements to arbitrate
employment disputes may be invalid if they make
arbitration prohibitively expensive for an employee.
Now, employers have another reason to be concerned
about the enforceability of such agreements. A
divided National Labor Relations Board has ruled that
mandatory employment arbitration policies applicable
to nonunion employees must expressly exclude unfair
labor practice charges which may be fi led with the Board
under the National Labor Relations Act. U-Haul Co.
of California, 347 NLRB No. 34 (2006). The Board’s
decision has been appealed to the U.S. Court of Appeals
for the District of Columbia, which has scheduled oral
arguments this month.
