Our sister blog, Employment Law Spotlight, recently reported on the decision of an NLRB administrative law judge regarding the legality of an arbitration agreement under D.R. Horton, Inc., 357 NLRB No. 184 (2012).   We all know that D.R. Horton held that class action waivers in arbitration agreements might be unfair labor practices because of their alleged restraint on collective conduct by employees.    The issue in this case was whether the employer committed an unfair labor practice by seeking to compel claims on an individual basis when the agreement itself was silent on the issue.  That blog post can be found at here, but it’s set forth below as well.

As we’ve written, D.R. Horton has not been faring well before the courts, but that hasn’t stopped the Board from enforcing it and arguably even expanding it.  In Leslie’s Poolmart, Inc., Case 21-CA-102332 (Jan. 17, 2014), the employer sought to enforce an arbitration agreement that was silent on the issue of class claims.  The ALJ found that although the agreement itself did not bar class claims, the employer committed an unfair labor practice by seeking to use it to compel the claims on an individual basis only.

Case such as this will continue to raise issues until the Supreme Court steps in either in D.R. Horton or in the pending Noel Canning v. NLRB (U.S. S. Ct. Case No. 12-1281) (relating to whether the NLRB even had a quorum to decide cases like D.R. Horton).

The Bottom Line:  Yes, the courts are not being kind to D.R. Horton, but administrative law judges are following and even expanding it.

Editor’s Note:  This post originally appeared on BakerHostetler’s Employment Law Spotlight blog.