The Summary of NLRB decisions for the week of December 21-24, 2015, is now available.

Summarized Board Decisions

SolarCity Corp.  (32-CA-128085; 363 NLRB No. 83)  San Mateo, CA, December 22, 2015.

Affirming the administrative law judge’s application of D. R. HortonInc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14-60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran found that the Respondent violated Section 8(a)(1) by maintaining a mandatory Arbitration Agreement and a Revised Agreement (the Agreements) that require employees, as a condition of employment, to waive their rights to maintain class and collective actions in all forums, arbitral or judicial.  The Board majority further found that the Respondent enforced the Arbitration Agreement in violation of Section 8(a)(1) by filing a motion in a state court in California to compel the Charging Party to submit her class action wage and hour claim to individual arbitration.  Deciding an issue for the first time, the Board majority rejected the Respondent’s argument that the Agreements are lawful because, unlike those in D. R. Horton and Murphy Oil, they contain an exception permitting employees to file employment claims or charges with Federal administrative agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL), and the NLRB, thereby providing employees an adequate forum to pursue class or collective employment claims.  The majority explained that the exception in the Agreements that permits the filing of claims or charges with administrative agencies does not satisfy the requirement of an alternative judicial forum under D. R. Horton andMurphy Oil because: (1) there is a wide range of employment-related claims that are not within the purview of any administrative agency; (2) even if the administrative agency has the authority to pursue employees’ claims, it typically also has the discretion to decline to do so—thus, access to the agency is not access to a forum for adjudication; and (3) unlike a court, administrative agencies like the EEOC and DOL cannotadjudicate employment-related claims.

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