The NLRB v. The Courts: Showdown over the Right to Collective Action in Workplace Disputes
2015; Wiley; Volume: 52; Issue: 1 Linguagem: Inglês
10.1111/ablj.12042
ISSN1744-1714
AutoresStephanie M. Greene, Christine Neylon O'Brien,
Tópico(s)Business Law and Ethics
ResumoAmerican Business Law JournalVolume 52, Issue 1 p. 75-130 Original Article The NLRB v. The Courts: Showdown over the Right to Collective Action in Workplace Disputes Stephanie Greene, Stephanie GreeneSearch for more papers by this authorChristine Neylon O'Brien, Christine Neylon O'BrienSearch for more papers by this author Stephanie Greene, Stephanie GreeneSearch for more papers by this authorChristine Neylon O'Brien, Christine Neylon O'BrienSearch for more papers by this author First published: 22 January 2015 https://doi.org/10.1111/ablj.12042Read the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Footnotes 1SF Mkts., LLC, d/b/a/ Sprouts Farmers Mkt., N.L.R.B. No. 21-CA-099065, at *3, *7–8 (A.L.J. Ira Sandron, Feb. 18, 2014). 2Collective actions include those brought under the Fair Labor Standards Act (FLSA) where employees have an opportunity to opt-in under 29 U.S.C. § 216(b), and class actions are those traditionally brought under Rule 23 of the Federal Rules of Civil Procedure, or joinder of parties under Rule 20. See FED. R. CIV. P. 20, 23; Charles A. Sullivan & Timothy P. Glynn, Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution, 64 ALA. L. REV. 1013, 1022–23 (2013) (discussing class and collective actions). 3 Sprouts Farmers Mkt., No.21-CA-099065, at *8. 4See 29 U.S.C. § 157 (2012) ("Employees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ."). The National Labor Relations Act (NLRA) covers most private sector employees. Employees not covered by the NLRA include those covered under the Railway Labor Act, working for employers not covered by the NLRA, independent contractors, domestic servants in the home, employed by parents or spouses, agricultural workers, and supervisors. 29 U.S.C. § 152(3). Employees engaging in protected concerted activities are covered by the NLRA regardless of whether they are union members, thus making employees' section 7 rights broadly applicable. See, Jeffery M. Hirsch et al., Understanding Employment Law 80 ( 2d ed. 2013) (noting NLRA section 7 protects union and nonunion employees in the private sector). 5See infra notes 127-225 and accompanying text (discussing overwhelming support for enforcement of waiver clauses). 6See AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1748–49 (2011) (describing the FAA's fundamental importance in establishing a liberal federal policy favoring arbitration); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (noting that questions or doubt of arbitrability are resolved in favor of arbitration); see also Jerett Yan, Recent Case, A Lunatic's Guide to Suing for $30: Class Action Arbitration, the Federal Arbitration Act and Unconscionability After AT&T v. Concepcion, 32 Berkeley J. Emp. & Lab. L. 551, 552 (2011) (noting that most contracts are written by the employer and are nonnegotiable). 7 D.R. Horton, Inc., 357 N.L.R.B. No. 184, at *6–7 (Jan. 3, 2012). 829 U.S.C. § 157. 9See D.R. Horton, 357 N.L.R.B. 184, at *11. This conclusion is based on section 8(a)(1) of the NLRA which provides as follows: "It shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7]." 29 U.S.C. § 158(a)(1). It should be noted that the constitutionality of the NLRB's decision in D.R. Horton was in question due to the composition of the Board membership serving at that time. Chairman Pearce and Member Hayes were both serving as Senate-confirmed appointees, but the validity of the third person's status was in question, because Member Becker was appointed by the President at a time when Congress was in recess. See http://www.nlrb.gov/who-we-are/board/members-nlrb-1935 (last visited October 30, 2014). Presidential recess appointment powers are derived from U.S. Constitution, Article II, Section 2, Clause 2. Decisions made by Boards composed of some recess appointees were successfully challenged by a number of circuit court decisions including the District of Columbia, Third, Fourth, Sixth, and Eighth Circuits. See Noel Canning v. NLRB, 705 F.3d 490, 507 (D.C. Cir. 2013); NLRB v. Enter. Leasing Co., 722 F.3d 609 (4th Cir. 2013); NLRB v. Relco Locomotives, Inc., 734 F.3d 764 (8th Cir. 2013); GGNSC Springfield LLC v. NLRB, 721 F.3d 403 (6th Cir. 2013); NLRB v. New Vista Nursing & Rehab., 719 F.3d 203 (3d Cir. 2013). This created a significant problem with respect to many three-member NLRB decisions where one member was a recess appointee because without a quorum of three validly appointed members, the NLRB is without power, and therefore any decisions are invalid until reconsidered by a properly constituted Board. See New Process Steel, L.P. v. NLRB, 560 U.S. 674, 680–83 (2010). When the Fifth Circuit considered D.R. Horton on appeal, the court ruled that it had jurisdiction, regardless of any alleged defect in the Board's composition, and specifically left the constitutional issue for the Supreme Court to decide in NLRB v. Canning. D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 351 & n.5 (5th Cir. 2013). The District of Columbia Circuit in Noel Canning v. NLRB, 705 F.3d 490, 507 (D.C. Cir. 2013) had ruled that NLRB Board member appointments that took place on January 4, 2012 were unconstitutional as not within the presidential recess appointment powers because Congress was not officially on an inter session recess, and the vacancies occurred prior to the recess rather than during it. The Supreme Court granted certiorari in NLRB v. Canning, 133 S. Ct. 2861, 81 U.S.L.W. 3629 (No. 12-1281) (June 24, 2013), and held that the appointments made on January 4, 2012, were invalid. The majority specifically addressed appointments made in other pending cases, including those NLRB decisions involving Board Member Becker (who was the third and critical voting member on D.R. Horton), setting criteria regarding recess appointments that removed all constitutional concerns regarding the composition of the NLRB in its D.R. Horton decision. See National Labor Relations Board v. Noel Canning, 573 U.S. __ (2014) (No. 12-1281) (slip. op. 4–5), __ WL __, (June 26, 2014) (Breyer, J., joined by Kennedy, Ginsburg, Sotomayor, and Kagan, JJ.). The Court noted that Member Becker's appointment arose during an intrasession recess "that was not punctuated by pro forma sessions and the vacancy Becker filled had come into existence prior to that recess." Id. (citations omitted). The Court decided that an intrasession recess of at least ten days would permit the President to exercise his appointment power under U.S. Constitution, Article II, Section 2, Clause 2, even if the vacancy occurred prior to the recess. Id. at 14–21, 22–24, 29–30. Recess appointee Member Becker served from April 5, 2010, until January 3, 2012. See http://www.nlrb.gov/who-we-are/board/board-members-1935 (last visited October 30, 2014). The recess period during which Member Becker was appointed exceeded ten days. See Calendar of the United States Senate, 113th Congress (1st Sess. 2013), https://www.senate.gov/legislative/resources/pdf/2013_calendar.pdf (reflecting sixteen-day recess). Thus, in light of the Supreme Court's decision in NLRB v. Canning, the D.R. Horton case was decided by a constitutionally valid Board. 10 D.R. Horton, 357 N.L.R.B. 184, at *1, *10–12. 1129 U.S.C. § 157. 12See Hirsch et al., supra note 4 (noting NLRA section 7 protects union and nonunion employees in the private sector). 13One author asserts that the Board's interpretation of section 7 in D.R. Horton was "contorted," because the NLRA was "designed to protect concerted strikes and union organization from employer interference." George Padis, Note, Arbitration Under Siege: Reforming Consumer and Employment Arbitration and Class Actions, 91 Tex. L. Rev. 665, 700 & n.220 (2013). Clearly the statute's protection extends to a broad array of employee activities. See Michael D. Schwartz, Note, A Substantive Right to Class Proceedings: The False Conflict Between the FAA and the NLRA, 81 Fordham L. Rev. 2945, 2963–65 (2013) (detailing the broad construction courts, including the Supreme Court, have given to "concerted activity" and "mutual aid or protection"). 14See Hirsch et al., supra note 4 and accompanying text (discussing statutory protections for all workers); see also Cynthia Estlund, Labor Law Reform Again? Reframing Labor Law as a Regulatory Project, 16 N.Y.U. J. Legis. & Pub. Pol'y 383, 390 (2013) (citation omitted) (noting "in a post-collective bargaining world, workers will increasingly rely upon legislated rights"). 15See ForcedArbitration, Employee Rights Advocacy Inst. for Law & Pol'y, available at http://www.employeerightsadvocacy.org/article.php/binding (last visited Feb. 24, 2014); Katherine V.W. Stone, Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law, 61 UCLA L. Rev. Discourse 164, 168 (2013) (noting that "arbitration has become so frequent that more employees are covered by arbitration clauses than by collective bargaining agreements"). 16 D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344 (5th Cir. 2013); D.R. Horton, Inc., 357 N.L.R.B.184 (Jan. 3, 2012). 17 D.R. Horton, 357 N.L.R.B. at *1–2. 18Id. at *13. Section 8 (a)(1) provides, "It shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7]." 29 U.S.C. § 158(a)(1). 19 D. R. Horton, 357 N.L.R.B. at *12–13. 20 D.R. Horton, 737 F.3d at 359–62. 21See Julius Getman & Dan Getman, Winning the FLSA Battle: How Corporations Use Arbitration Clauses to Avoid Judges, Juries, Plaintiffs, and Laws, 86 St. John's L. Rev. 447, 461–62 (2012) (finding D.R. Horton a "well-reasoned opinion" that "is careful and compelling," and if the courts accept it, Horton will limit the damage to employee rights contained in the Supreme Court's 2011 Concepcion opinion, in part by making class arbitration waivers less desirable); David. L. Gregory et al., Reflections on the NLRB's Labor Law Jurisprudence After Wilma Liebman, 44 Loy. U. Chi. L.J. 923, 935 (2013) (noting that D.R. Horton "propped open a door to collective action that had been closing steadily"); Stone, supra note 15, at 173–77 (discussing employees' right to engage in collective action as a substantive NLRA right, and D.R. Horton's holding that class action waiver of collective action interferes with substantive right at core of labor law statute); Sullivan & Glynn, supra note 2, at 1015–17 (agreeing with the Board's conclusion in Horton that substantive rights of employees to engage in concerted activity were violated by Horton's mutual arbitration agreement, and outlining the agency's correct statutory interpretation of the NLRA and its predecessor, the Norris-LaGuardia Act, 29 U.S.C. §§101–15). But cf. Austin Leland Fleishour, Horton [Helps] a Who"?* Playing Linguistic Hopscotch with the NLRB and Discussing Implications for Employees' Section 7 Rights, 80 Tenn. L. Rev. 449, 450 (2013) (noting limitations in language of D.R. Horton that will result in, at best, a narrow categorical exemption for employment contracts from the proarbitration Supreme Court precedents). 22See Brian J. Murray, I Can't Get No Arbitration: The Death of Class Actions That Isn't, at Least So Far, Fed. Law., at 62, 63 (Sept. 2013), available at http://www.fedbar.org/Image-Library/Events/2013-Annual-Meeting/WAI-Arbitration-Article.pdf (stating that the Board in D.R. Horton held that section 7 "protects and preserves class actions in all contexts—arbitration included—as Section 7 'concerted activities'…. [thus rejecting Concepcion] by declaring this right to be non-waivable"). The author cites AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011) for support. Id. Cf. Arbitration Trends, The Future of Class Action in the United States, Quinn Emmanuel Urquhart & Sullivan, LLP, at 8–9 (Winter 2013), available at http://quinnemanuel.com/media/371211/arbitration%20trends%20-%20winter%202013%20-%20final.pdf (noting the post–D.R. Horton decision of the Third Circuit in Quilloin v. Tenet HealthSystem Philadelphia, Inc., 673 F.3d 221 (3d Cir. 2012) where the court enforced an arbitration agreement in an employment case). The Quilloin court found that the arbitration agreement did not contain an express class action waiver, reasoning that "silence . . . generally indicates a prohibition against class arbitration," but left the decision as to whether a class action was prohibited to the arbitrator. Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d 221, 232 (3d Cir. 2012). 23See infra notes 127-225 and accompanying text (discussing the federal cases supporting waivers). 24See infra notes 226-282 and accompanying text (discussing the NLRB ALJ decisions declining to enforce waivers). 25The NLRB's Petition for Rehearing en banc was denied. See D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344 (5th Cir. 2013), cert. denied, 5th Cir. Apr. 16, 2014 (No. 12-60031). 26See, e.g., S.F. Mkts., LLC, d/b/a Sprouts Farmers Mkt., N.L.R.B. No. 21-CA-099065, at *9 (A.L.J. Ira Sandron, Feb. 18, 2014) (citing D.L. Baker, Inc., 351 N.L.R.B. 515, 529 n.42 (2007)). 27See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985); see also Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013); Rent-A-Center, Inc. v. Jackson, 130 S. Ct. 2772 (2010). 28See generally Italian Colors, 133 S. Ct. at 2309–11 (describing unwavering support and rigorous enforcement of arbitration provision despite numerous legal challenges). 29 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (holding that only employment contracts of transportation workers were exempted from FAA). 30 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (5–4 decision). 31 Italian Colors, 133 S. Ct. at 2304. 32Id. at 2312 (quoting Concepcion, 131 S. Ct. at 1753). The Court has also signaled its preference for bilateral lawsuits over class litigation, stating that "[t]he class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.' " Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). 33 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). 349 U.S.C. § 2 (2012). 35 United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960); United Steelworkers of Am. v. Am. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960). Through these decisions, collectively known as the Steelworkers Trilogy, the Supreme Court enhanced the status of arbitration with its view that performance of a grievance/arbitration provision could be compelled and that arbitration awards could be enforced under section 301 of the Labor Management Relations Act. See David P. Twomey, Labor & Employment Law 285– 286 (2013) (discussing the Steelworkers Trilogy). Notably, the American Manufacturing case establishes that courts should limit their inquiry to determining if the party seeking arbitration was making a claim that was governed by the contract. Id. The Enterprise Wheel case cautions that courts should not substitute their judgment for that of the arbitrator. Id. The Warrior & Gulf case noted the congressional policy favoring a strong presumption of arbitrability. Id. The expansion of arbitration in the Steelworkers Trilogy line of cases was aimed at the collective bargaining process, but effectively expanded arbitration generally. See Padis, supra note 13, at 675. 36Craig Becker, The Continuity of Collective Action and the Isolation of Collective Bargaining: Enforcing Federal Labor Law in the Obama Administration, 33 Berkeley J. Emp. & Lab. L. 401, 403 (2012). (hereinafter, Becker, Continuity of Collective Action). Former NLRB Member Becker, who joined Chairman Pearce in authoring the NLRB's D.R. Horton decision, noted that the Steelworkers Trilogy involved collectively bargained agreements to arbitrate and that the Supreme Court has since extended the policy in favor of arbitration to individual agreements to arbitrate. Id. at 403. Former Member Becker, in discussing the Board's D.R. Horton decision, also noted that "concerted legal action is . . . a necessary counter to more systematic workplace inequities" and that "the right to take collective action is essential to the enforcement of the most basic guarantees of workplace fairness." Craig Becker, Labor Law—The Law of a Balanced Society: A Reply to Professor Epstein, 41 Cap. U.L. Rev. 35, 44–45 (2013). 37 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1753 (2011) (5–4 decision). 38The Court has emphasized that arbitration is a matter of consent. See Oxford Health Plans, LLC v. Sutter, 133 S. Ct. 2064, 2066 (2013); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 684 (2010). Despite the Court's antipathy toward class arbitration, it has recognized that an arbitrator may determine whether an agreement permits class arbitration. In Oxford Health, the Court held that the arbitrator did not exceed his powers in determining that the agreement allowed class arbitration because the parties agreed that the arbitrator would construe the agreement. 133 S. Ct. at 2068. Whether the arbitrator properly construed the agreement was immaterial, the Court held, as long as he made a good faith attempt to interpret the agreement. Id. The Court distinguished Oxford Health from Stolt-Nielsen, because in that case the arbitrator could not find that a contract that was silent on the issue of class arbitration allowed for class arbitration. The Court found that the arbitrator made no attempt to interpret the parties' intent, but merely imposed his own policy decision. Id. at 2067–70 (citing Stolt-Nielsen, 559 U.S. at 685). 39 Concepcion, 131 S. Ct. at 1751; see also Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2312 (2013); Stolt-Nielsen, 559 U.S. at 686 (discussing the "the fundamental changes brought about by the shift from bilateral arbitration to class-action arbitration"). 40See Concepcion, 131 S. Ct. at 1750–1752. 41Id. at 1759 (Breyer, J., dissenting). 42Id. 43500 U.S. 20, 30–32 (1991). 44Id. at 32 (quotation omitted). 45Id. at 26 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)). 46532 U.S. 105, 109 (2001). The Court construed section 1 of the FAA to exempt only transportation workers. Id. The FAA excludes from coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. 47See Circuit City Stores, 532 U.S. at 126–29 (Stevens, J., dissenting). 48Id. at 132. 49131 S. Ct. 1740 (2011). 50Id. at 1753. (This was a 5–4 decision, with Justice Scalia authoring the majority opinion.) 51See id. at 1745. California courts first interpreted individual arbitration provisions to be unconscionable in Discover Bank v. Superior Court of L.A., 113 P.3d 1100 (Cal. 2005). The Discover Bank rule provided that clauses were per se unconscionable and unenforceable under California law if (1) the agreement "predictably involves small amounts of damages;" (2) "the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money;" and (3) "the waiver becomes in practice the exemption of the party from responsibility." Id. at 1110. 52 Concepcion, 131 S. Ct. at 1753. 53Id. at 1748. 54Id. The arbitration clause provision stated that AT&T would pay claimants $7,500 and twice their attorney's fees if they obtained an award greater than AT&T's last settlement offer. Id. 55133 S. Ct. 2304, 2311, 2312 (2013) (5–3 decision) (maintaining that "the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy" and restating its position from Concepcion, rejecting "the argument that class arbitration was necessary to prosecute claims 'that might otherwise slip through the legal system' "). 56See id. at 2311. 57Id. at 2308. 58Id. 59Id. 60Id. at 2309. 61Id. 62Id. 63Id. at 2310. 64Id. (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985)). 65See id. at 2311. 66Id. ("The class-action waiver merely limits arbitration to the two contracting parties."). 67Id. at 2309 (quoting CompuCredit Corp v. Greenwood, 132 S. Ct. 665, 669 (2012)). 68Id. at 2310. 69Id. 70Id. As an example, the Court suggested that the exception might apply if an arbitration clause imposed fees that made access to the forum impractical. Id. at 2310–11. 71 D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 3, 2012). 72 D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344, 357, 360–62 (5th Cir. 2013). 73Chairman Pearce and former Member Becker joined in the Board's opinion, while Former Member Hayes was recused. See D.R. Horton, 357 N.L.R.B. at *1 & n.1. 74Id. at *2. 75Id. at *12. 76Id. at *1. 77Id. 78Id. 79Id. 80Id. 81Id. 82Id. at *4. 83Id. at *2. 84Id. (quoting Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565–66 (1978)). 85Id. 86Id. at *2–3 (citing N.L.R.B. v. City Disposal Sys., Inc., 465 U.S. 822, 836 (1984)). 87 D.R Horton, 737 F.3d. at 836. 88 D.R. Horton, 357 N.L.R.B. at *3. 89Id. (citing 29 U.S.C. § 151). 90 D.R Horton, 357 N.L.RB. at *3. 91Id. at *4 (citing Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 567 (1978)). Furthermore the Board quoted N.L.R.B. v. Washington Alum. Co., 370 U.S. 9, 14 (1962). See D.R. Horton, 357 N.L.R.B. at *3. 92Id. at *5. 93Id. The Board has the responsibility to adapt the statute "to the changing patterns of industrial life," and its interpretation of the Act is entitled to deference. See N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 265–66 (1975) (upholding the Board's interpretation of section 7 as including employee right to union representation at investigatory interviews that reasonably could lead to discipline). Clearly, the pervasive use of MAAs in the absence of collective bargaining agreements is part of the changing pattern of industrial employment that the Board was required to address as a matter of first impression in D.R. Horton. See D.R. Horton, 357 N.L.R.B. at *10 (noting the issue is one of first impression for the Board). 94Id. at *4–6. The express restriction on section 7 rights makes the MAA an unfair labor practice under section 8(a)(1), which prohibits an employer from interfering with section 7 rights. See 29 U.S.C. § 158 (a)(1). The Board's Lutheran Heritage test inquires initially whether an employer's rule explicitly restricts protected activity. If so, it is unlawful. See Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 646–47 (2004). Violations may also be found if employees would reasonably construe the rule to prohibit section 7 activity; or if the rule was promulgated in response to union activity; or if the rule was applied to restrict the exercise of section 7 activity. Id. at 647. 9529 U.S.C. § 158(a)(1). 96Id. 97 D.R. Horton, 357 N.L.R.B. at *6 (citing J.I. Case Co. v. N.L.R.B., 321 U.S. 332 (1944) and Nat'l Licorice Co. v. N.L.R.B., 309 U.S. 350 (1940)). 98See J.I. Case, 321 U.S. at 337. 99See D.R. Horton, 357 N.L.R.B. at *7–8. 100Id. See Stone, supra note 15, at 174–75 (discussing history of the labor laws, including sections 2 and 4 of the Norris-LaGuardia Act of 1932, 29 U.S.C. §§ 102, 104). 10129 U.S.C. § 102. 10229 U.S.C. § 103. 103See Twomey, supra note 35, at 11. 10429 U.S.C. §§ 151–169. See Stone, supra note 15, at 175. 105See D.R. Horton, Inc., 357 N.L.R.B. No. 184, at *3 (Jan. 3, 2012). 106Id. (citing N.L.R.B. v. City Disposal Sys., Inc., 465 U.S. 822, 835–36 (1984) (explaining that the enactment of section 7 was to equalize bargaining power of employee with employer by allowing employees to band together to confront employer about terms and conditions of employment)); Becker, Continuity of Collective Action, supra note 36, at 406 (discussing purpose of section 7 and Supreme Court's City Disposal decision). 107 J.I. Case Co. v. N.L.R.B., 321 U.S. 332, 337 (1944) ("Wherever private contracts conflict with its function, they obviously must yield or the Act would be reduced to a futility."); Nat'l Licorice Co. v. N.L.R.B., 309 U.S. 350, 361 (1940) (holding that contracts that required employees to renounce "rights guaranteed by the Act . . . were a continuing means of thwarting the policy of the Act"). 108 D.R. Horton, 357 N.L.R.B. at *7–12. 109Id. at *8. 110Id. at *11 (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)). 111Id. at *12. 112500 U.S. at 27. As counsel for the NLRB noted in oral arguments in the D.R. Horton appeal, Gilmer did not raise section 7 issues. In fact the complainant in Gilmer was a manager/supervisor who probably was not entitled to section 7 protections. See United States Court of Appeals for the Fifth Circuit, available at http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx?prid=99408 (last visited Apr. 21, 2014) (oral argument recording for D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344 (5th Cir. 2013)). 113 D.R. Horton, 357 N.L.R.B. at *8. 114Id. at *10. 115Id. at *10–11. 116556 U.S. 247 (2009). 117Id. at 260–62. 118 D.R. Horton, 357 N.L.R.B. at *10. 119Id. ("It is well settled . . . that a properly certified or recognized union may waive certain Section 7 rights of the employees it represents—for example, the right to strike—in exchange for concessions from the employer…. The negotiation of such a waiver stems from an exercise of Section 7 rights: the collective-bargaining process."). 120Id. ("[A]n arbitration clause freely and collectively bargained between a union and an employer does not stand on the same footing as an employment policy, such as the MAA, imposed on individual employees by the employer as a condition of employment."). 121Id. at *12. 122131 S. Ct. 1740, 1748 (2011). 123 D.R. Horton, 357 N.L.R.B. at *11–12. 124See Fleishour supra note 21, at 450. The author noted that the Board's language was circumspect and pointed to an important distinction between the arbitration provisions in individual contracts and collective bargaining agreements, in that the latter was collectively bargained with "give-and–take" and "correlating concessions." Id. at 459.
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