Last Wednesday, the United States Court of Appeals for the Fifth Circuit refused to reconsider its December opinion in which the court stated a mandatory arbitration agreement that bars a group of employees from engaging in class arbitration does not violate federal labor law. In D.R. Horton v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013), a divided appeals court reversed the National Labor Relations Board’s (NLRB) decision that the compulsory agreement violated the workers’ right to collective action. Instead, the Fifth Circuit held that class arbitration “is not a substantive right.”
According to the Fifth Circuit, the National Labor Relations Act (NLRA) does not enjoy a congressional command to automatically override the Federal Arbitration Act and no provision of the law necessarily prevents enforcement of an employment-related agreement to arbitrate. Instead, “[t]he burden is with the party opposing arbitration… and here the board has not shown that the NLRA’s language, legislative history or purpose support finding the necessary congressional command.”
In March, the NLRB argued the Fifth Circuit inappropriately applied Supreme Court precedent when deciding the case and asked the court to reconsider its decision. The Fifth Circuit denied the NLRB’s motion for a panel rehearing and rehearing en banc. It is currently unclear whether the NLRB will file a petition for certiorari with the United States Supreme Court.
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