NLRB Sticks To D.R. Horton

Recently in Chesapeake Energy Corp., 362 NLRB No. 80 (Apr. 30, 2015), the NLRB held fast to its ruling in D.R. Horton, Inc., 357 NLRB No. 184 (2012). The employer required its employees to sign an arbitration agreement as a condition of employment. The agreement required “binding arbitration to resolve all disputes” between employees and the company, and specifically identified claims under the NLRA, among other statutes. The agreement also prohibited employees from bringing class or collective actions. The Board ruled the agreement violated Section 8(a)(1) of the Act for two reasons—first, the all-encompassing language would lead employees to believe they could not file unfair labor practice charges with the Board, and second, the total proscription of class or collective actions would take away “the core substantive right” of collective legal action protected by the Act. The Board’s decision does not change the current state of the law. Rather, it shows the Board has dug in its heels where mandatory arbitration and class action waivers are concerned.