NLRB Continues To Flout Supreme Court on Arbitration Agreements

Contributed by Terry Fox

On April 30, 2012, the NLRB filed a complaint against California-based 24-Hour Fitness, based on the company’s use of employment arbitration provisions.  The 24-Hour Fitness written waiver provided that employees would arbitrate employment disputes in a single-employee arbitration. According to the NLRB, that employer policy violates Section 8(a)(1) of the National Labor Relations Act by interference with employees’ rights to collective action provided in Section 7.

24-Hour Fitness is a union-free workplace. It provided an opt-out from the waiver, if the employee provided a signed company form within 30 days of signing the waiver.  Previously, the NLRB filed a complaint against D.R. Horton, Inc., based on the same theory.  The D.R. Horton decision invalidated the arbitration agreement between the employer and employee. D.R. Horton is currently on appeal.  The NLRB’s position is directly contrary to the United States Supreme Court decision in AT&T Mobility v. Concepcion, issued in 2011, upholding arbitration provisions that prohibit collective and class action claims.

The NLRB continues to aggressively insert itself in the non-union workplace by challenging and attacking employer’s policies on arbitration and social media.  Only 7% of private sector workers are members of a labor union.  Perhaps these latest actions by the NLRB are attempts to keep relevant in order to maintain its funding.  Whatever the reason, employers can expect attempts by the NLRB to expand its influence in the private sector.