Introduction
Under the administration of President Obama, the Democratic majority of the National Labor Relations Board (“NLRB” or “Board”) has taken an expansive view of how the National Labor Relations Act (“NLRA” or “Act”) should be enforced. In particular, it has followed an extremely broad reading of Section 7 of the NLRA, which protects the right of employees “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]” The result is that the Board has repeatedly stretched the boundaries of logic and common sense to punish employers for allegedly interfering with the exercise of concerted activity. Often, these unfair labor practice charges (ULPs) involve the employee handbook, with the NLRB repeatedly striking down widely-accepted policies that employers have maintained without controversy for years to promote safe workplaces, ensure efficient operations, and prevent discrimination.
This overzealous enforcement of Section 7 has also led the Board to take on class action waivers contained in employment arbitration agreements, which are intended to speed resolution of workplace disputes and reduce the burden of unnecessary litigation. Given its view of Section 7, the Board has argued that these waivers deprive employees of their right to engage in concerted activity. However, many courts that have examined the issue have disagreed, leading to an unusual back-and-forth on class action waivers over the past four years. This clash between two branches of government has seen numerous federal courts admonish the Board for striking down class action waivers and the Board reject those federal court decisions in a misguided application of its non-acquiescence policy. This legal maneuvering has finally resulted in a circuit split that may pave the way for action by the Supreme Court.
