The National Labor Relations Board filed a brief with the Fifth Circuit Court of Appeals on September 4, 2012, defending its decision in D.R. Horton Inc., 357 NLRB No. 184 (Jan. 3, 2012), and asking the court to enforce its original decision and order.
In D.R. Horton, the NLRB held that an arbitration agreement requiring employees to waive “as a condition of employment” their right to bring a joint, class or collective action violates Section 8(a)(1) of the National Labor Relations Act, which protects the rights of employees to engage in concerted, protected activity. Significantly, for purposes of the appeal to the Fifth Circuit, the NLRB reached this decision in a 2-0 vote on January 3, 2012, which was the final day of recess appointee Craig Becker’s term.
The employer petitioned the Fifth Circuit for review on January 13, 2012, and the NLRB cross-applied for enforcement of its order on March 19. There are three issues on appeal: (1) whether the NLRB reasonably found that the employer violated Section 8(a)(1) of the NLRA by maintaining a mandatory arbitration agreement that waives employees’ right to pursue employment-related claims in a concerted manner in any forum; (2) whether the NLRB reasonably found that the employer violated Section 8(a)(1) of the NLRA by maintaining a mandatory arbitration agreement the employees could reasonably interpret as restricting their right to file unfair labor practice charges before the NLRB; and (3) whether the Board’s order, based on a 2-0 vote, was validly issued.