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NLRB seeks briefs on class action arbitration issue
June 21, 2011 by Ross Runkel at LawMemo

The NLRB is inviting briefs [link to Invitation] on the following issue:

Did the respondent violate Section 8(a)(1) of the [National Labor Relations Act] by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Briefs are due July 20.

My view:

This is a case of extraordinary importance because -

(1) The US Supreme Court has held that an arbitration agreement containing a class action waiver is enforceable under the Federal Arbitration Act even if such a provision would be considered unconscionable under the laws of a particular state. AT&T Mobility LLC v. Concepcion (US Supreme Court 04/27/2011).

(2) If the NLRB holds that such an agreement violates the National Labor Relations Act, then employers who maintain such agreements will be subject to unfair labor practice charges. So, employers would not be able to implement such an agreement in spite of the Supreme Court decision.

(3) Any decision by the NLRB in this case will apply to both unionized and non-union employers in the private sector.


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