At the end of last week, two separate National Labor Relations Board Administrative Law Judges determined that two separate employer-promulgated arbitration agreements were unlawful.  The reader may recall the Board’s now-infamous D.R. Horton ruling, which effectively held that an employer violates the National Labor Relations Act by forcing employees to sign an arbitration agreement that would prevent that employee from bringing either a class or collective action.  In these two cases, the ALJs found that Bristol Farms and AWG Ambassador LLC ran afoul of that decision.

In the Bristol Farms decision, Judge Thompson reasoned that Bristol violated the Act by maintaining an arbitration policy that “employees reasonably would believe bars or restricts their right to file charges” with the NLRB.  While Bristol argued that D.R. Horton‘s precedent should not apply becuase the agreement did not contain an express class waiver, Judge Thompson still nixed the offending policy because hte company applied it in such a way as to restrict employees from bringing class complaints. 

AWG’s arbitration agreement, by contrast, explicitly violated the D.R. Horton ruling because it contained an express class waiver.  And like several employers before them, AWG tried to avoid an unfair labor practice determination by arguing that D.R. Horton was wrongly decided.  The argument was unavailing.

“[AWG] argues that D.R. Horton was wrongly decided and has been widely rejected. Essentially, the respondent argues it should be overruled,” Judge Laws said in the AWG ruling. “Any arguments regarding the legal integrity of board precedent, however, are properly addressed to the board.”   

We will be following both of these decisions closely and will keep you posted if either case goes before the full Board.  Stay tuned.