Two members of the NLRB (and with one member recusing himself) held that an employer violated the National Labor Relations Act by requiring non-union employees to sign a mandatory arbitration agreement that waived employees’ rights to participate in class or collective actions. D.R. Horton Inc., 357 N.L.R.B. No. 184, (January 3, 2012).
NLRB Chairman Mark Pearce and Member Craig Becker found that D.R. Horton Inc.’s mandatory arbitration procedure, which stated that an employee waived a right to file a lawsuit, and precluded an arbitrator from consolidating individual claims as a class or group, violated Section 8(a)(1) of the Act because it interferes with the statutory right of employees to engage in “concerted activity” for their mutual aid or protection.
In considering this issue of first impression for the Labor Board, Members Pearce and Becker opined that their unfair labor practice finding did not conflict with the text or the policies of the Federal Arbitration Act. The decision is sure to be appealed, so stay tuned.