The National Labor Relations Board has once again come out with a decision guaranteed to enrage Republicans. On Friday, the board ruled that companies
cannot require workers to completely waive their right to class action, as many arbitration agreements currently do:
The decision examined one such agreement used by nationwide homebuilder D.R. Horton, under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees
The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act. The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.
The board cited the right to class or group action as a right under the National Labor Relations Act. The New York Times' Steven Greenhouse previews the back and forth that will surely occur as business groups and Republicans squeal with outrage over this one:
Justin M. Swartz, a New York lawyer who represents plaintiffs in employment cases, said, “The board’s decision recognizes the reality that employees, whether on Wall Street or Main Street, can’t enforce their rights one at a time. They need to be able to pool resources.”
But Marshall B. Babson, a former labor board member who helped write the amicus brief filed by the chamber, said the board was using an overly broad reading of concerted activity. “The National Labor Relations Act was not intended to be a ‘super class action statute’ that protects and preserves the right to proceed as a class in all circumstances without regard to the usual considerations by the court,” he said.
Presumably the Chamber of Commerce will once again be threatening a lawsuit to prevent this from going into effect. The funny thing in all of this is that one of the aspects of the Employee Free Choice Act that got the Chamber and its ilk all worked up was that the bill called for binding arbitration when a company and a union couldn't get to a first contract. Arbitration was unacceptable to them in that context. When it's arbitration under their rules, though, they want it to be a worker's only option.