As we have previously reported, the current Board majority has taken the position that employees have a Section 7 right to pursue class or collective grievances in arbitration, that employee waivers of class or collective arbitration are unenforceable as violating the NLRA, and that employers requiring such waivers violate the NLRA (the D.R. Hortontheory). The Board's theory has been rejected by three federal circuit courts of appeal as well as many other state and federal courts. In the highly publicized D.R. Horton case, the Board lost when the employer sought review by the U.S. Court of Appeals for the Fifth Circuit. The Board chose not to place its theory at risk by seeking review by the U.S. Supreme Court.

Because the Supreme Court has not addressed the issue, the Board is free to pursue its D.R. Hortontheory in federal circuits that have not specifically ruled against it, and it appears that this is exactly what the majority of the Board did in Murphy Oil USA. Republicans Johnson and Miscimarra again dissented, with one warning that the Board majority is "doubling down" on a theory that has been rejected time and time again by various courts.

The employer in Murphy Oil may seek review of the Board's decision. Whether a court ultimately agrees with the Board or not, the outcome could provide another opportunity for Supreme Court review, which could result in a decision with nationwide effect.

Employers outside of the Second, Fifth, and Eighth circuits who use or are thinking about using arbitration agreements with class or collective action waivers should consider the Board's current position, and carefully weigh the benefits of arbitration against the risks of costly Board litigation.