By Fred Wszolek
In the National Labor Relations Board’s decision in D.R. Horton, which is currently pending before the U.S. Court of Appeals for the Fifth Circuit, the employer is challenging the NLRB’s finding that it is a violation of federal labor law for an employer to require employees to sign class action waivers as a condition of employment. The NLRB’s decision is fighting against a headwind of circuit court decisions broadly upholding class action waivers based on unambiguous Supreme Court precedent which does not bode well for the Obama Board.
The most recent decision is one announced this past week by the U.S. Court of Appeals for the Ninth Circuit, Richards v. Ernst & Young, LLP. While the court declined to entertain the appellant’s argument which sought support for the NLRB’s decision because it was made untimely, the court made a point of saying, “We also note that the only court of appeals, and the overwhelming majority of the district courts, to have considered the issue have determined that they should not defer to the NLRB’s decision in D.R. Horton because it conflicts with the explicit pronouncements of the Supreme Court concerning the policies undergirding the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16.” (Opinion on page five).
Of course this is not the first time this administration’s hyper-partisan NLRB has ignored the Supreme Court and unfortunately, in light of the current line-up of new Board members, it likely will not be the last.