Section 7 of the NRL recognizes the right of workers (both union and non-union representatives) to act collectively “for mutual assistance and mutual protection” on issues relating to workers` working conditions. Section 8 (a) (1) of the Act is illegal for an employer to interfere in this labour law to engage in a protected concerted activity. The board applied Section 8, point a) (1), to a large number of employer behaviours that found that they restricted the concerted activity protected by workers. With respect to labour rules, the Commission found it illegal for an employer to enact an otherwise legitimate labour rule in response to workers who participate in behaviour protected by Section 7. Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). When these rules are implemented in response to protected behaviours and applied by discipline, they tend to have a chilling effect on section 7 behaviour. In January 2012, the Commission decided that employment contracts requiring workers to submit employment disputes to individual arbitration rather than collective court proceedings are contrary to Section 8 (a)1). D.R. Horton, Inc., 357 NLRB 2277 (2012).
Later, the Fifth Circuit overtook D.R. Horton and maintained that it violated the Federal Arbitration Act. D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5 cir. 2013). Over the next few years, boards` D.R. Horton Holding has been tested in several other federal courts that have issued conflicting decisions on the legality of class action waivers in arbitration agreements. In its 2018 Epic Systems decision, the Supreme Court ruled that this division among federal courts was admissible in deciding such agreements.
Although the Court found in the brief outlining the reasons for Epic Systems that it was “unlikely” that Section 7 of the NRA has a class action right, the Court did not resolve this issue, so employers are not concerned about the broader effects of the judgment. The board also found that the respondent had violated the law by terminating a worker after participating in the protected concert activity, that he was discussing wage issues with his staff, and that he was bringing a group action under the FLSA. In quoting Epic, the Chamber drew the line between the submission of a staff member to disciplinary action for refusing to sign an arbitration agreement with waiver of collective and collective actions, which is legal, and discipline, including the termination of a staff member after filing a collective or collective action, for illegal concerted activities. An employer may legitimately threaten disciplinary workers by refusing to sign an arbitration agreement, including class abandonment; but last year, the U.S. Supreme Court in Epic Systems v.
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