St. Louis Partner Jerry M. Hunter was quoted June 20 in Law360 regarding the Department of Justice’s (“DOJ”) lack of support for the National Labor Relations Board (NLRB) decision in a U.S. Supreme Court case concerning the legality of mandatory arbitration agreements and class and collective action waivers. Although the NLRB held that such agreements violate federal labor law, the DOJ filed a brief arguing that agreements between employers and employees to bilaterally arbitrate any employment-related claims must be enforced under the Federal Arbitration Act.
The DOJ supported the NLRB’s position during the Obama administration but reconsidered its position following the change in presidential administration in order to give weight to Congress’ policy favoring enforcement of arbitration agreements. “[The DOJ’s revised position] is not only the correct view of the law when considering the provisions of the FAA and the NLRA, but is also borne out by the fact that the NLRB has no specific expertise in analyzing the FAA,” said Hunter, a former NLRB general counsel.
Hunter also said the Board’s analysis of the interplay between the NLRA and the FAA “is not entitled to any deference by the Court,” and added that the Supreme Court “has made clear in a very long line of cases dating back decades that the NLRB isn’t entitled to deference when it determines how the NLRA should be harmonized with other federal statutes.”