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Total Articles: 14

The NLRB's Attack On Dealership Arbitration Agreements

Many of our dealership clients utilize binding arbitration agreements to resolve employee disputes. Arbitration agreements provide a number of unique benefits to those dealerships that wish to avoid the costs and negative publicity typically associated with a jury trial. By asking employees to agree to binding arbitration, dealerships are able to address employment claims in a less formal and more efficient setting than can be found in the federal courthouse.

NLRB Considers Radical Changes to Decades-Long Precedent on Deferral to Arbitration

In yet another attempt to expand protection for employees under Section 7 of the National Labor Relations Act, the National Labor Relations Board (NLRB) is considering a new standard for deferral to labor arbitration that, if adopted, would significantly undermine the finality of arbitration in cases involving allegations arising under Sections 8(a)(1) and (3) of the Act. This proposed change follows recent guidelines issued by the General Counsel instructing NLRB regional offices not to defer unfair labor practice charges unless the issues can be resolved through grievance and arbitration within a year of deferral. In combination, these initiatives will likely result in increased litigation of unfair labor practice charges and employers being forced to relitigate grievances that have been denied under the collective bargaining agreement.

Seventh Circuit Refuses to Review Arbitrator’s Decision to Allow Expert-Prepared Accident Report

Last week, the Seventh Circuit Court of Appeals decided Brotherhood of Maintenance of Way Employees Division/IBT v. Norfolk Southern Railway Company, No. 12-3415 (March 11, 2014). In the case, an employee claimed to have suffered injuries after driving the carrier’s truck over a bump in the road and hitting his head on the ceiling of the cab. The carrier hired an expert to reconstruct the accident, and the expert’s report concluded that it had been an “extremely remote” chance that the bump in the road had caused the employee’s injury. Later, the carrier held an investigative hearing to determine whether the employee had made false statements concerning his injuries. At the investigation, and without disclosing it prior to the hearing, the employer presented the expert’s report. After the investigation, the employee was discharged. The union tried to vacate the employee’s dismissal in court, but was unable to do so.

Fifth Circuit Delivers Crippling Blow to Controversial NLRB Class Action Waiver Theory

Arbitration is generally supposed to be faster, cheaper, and more predictable than litigation. Homebuilder D.R. Horton, like many other employers, certainly believed this when, in 2006, it began requiring employees to sign arbitration agreements preventing them from suing in court, or from bringing class-action claims in arbitration. But when employee Michael Cuda and a class of similarly-situated employees sought to pursue collective arbitration of their claims against D.R. Horton for alleged unpaid overtime wages in 2008, none of those expectations held true.

Fifth Circuit Delivers Crippling Blow to Controversial NLRB Class Action Waiver Theory

Arbitration is generally supposed to be faster, cheaper and more predictable than litigation. Homebuilder D.R. Horton, like many other employers, certainly believed this when, in 2006, it began requiring employees to sign arbitration agreements that prevent them from suing in court or bringing class action claims in arbitration. But when employee Michael Cuda and a class of similarly situated employees sought to pursue collective arbitration of their claims against D.R. Horton for alleged unpaid overtime wages in 2008, none of those expectations held true.

Non-Union Employer’s Mandatory Arbitration Provision Violates the NLRA

The National Labor Relations Board (NLRB) continues with its trend of finding fault with employer policies, this time holding that a non-union company’s mandatory grievance and arbitration policy violated the National Labor Relations Act (NLRA).

Eighth Circuit Court of Appeals Puts Damper on First Anniversary of D.R. Horton Decision

This month represents the first anniversary of the controversial decision by the National Labor Relations Board (NLRB) in D.R. Horton, Inc. In D.R. Horton, the NLRB ruled that D.R. Horton, a nationwide homebuilder, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by requiring employees to sign agreements that: 1) contained a mandatory arbitration provision; and 2) required them to bring all employment-related claims to an arbitrator on an individual basis, as opposed to as a potential class action.

NLRB Administrative Law Judge Further Expands Controversial D.R. Horton Decision, Strikes Down Non-Mandatory Arbitration Agreement

The continuing saga over the treatment of the National Labor Relations Board’s (NLRB) D.R. Horton, Inc. decision and the broad implications that it holds for both union and non-unionized workforces recently added another controversial chapter. As we previously reported, in D.R. Horton, the NLRB held that a mandatory arbitration agreement that waives employees’ rights to participate in class or collective actions is unlawful under the National Labor Relations Act (NLRA). Earlier this week, in 24 Hour Fitness USA, Inc., an NLRB Administrative Law Judge (ALJ) not only followed D.R. Horton, but expanded its holding to further restrict the rights of employers to invoke arbitration agreements executed by employees.

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 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.

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.
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