In a decision issued January 3, 2012, a two Member NLRB, with Member Hayes recusing himself, ruled in D.R. Horton, Inc., 357 NLRB No. 184 (2012), that an employer may not require employees covered by the National Labor Relations Act to sign arbitration agreements which prevent them from pursuing class or collective action claims in court or arbitration.  Such agreements, according to Chairman Pearce and Member Becker, violate Section 7 of the Act.  In reaching this decision, the Board rejected a 2006 NLRB General Counsel internal opinion to the contrary. 

The agreement in question prohibited an arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.  Prior to its decision, the Board had sought amicus briefs on the issues raised by the case from interested parties and received more than a dozen.

The Board’s order requires D.R. Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all other possible forums including the courts and arbitration.