NLRB’s Murphy Oil Decision Reaffirms D.R. Horton Despite Rejection by Some Federal Courts

Bender's Labor & Employment Bulletin January 2015

David W. Garland, Chair of the firm's Labor and Employment Steering Committee, in the firm’s New York and Newark offices, and Jill Barbarino, Member of the Firm in the Labor and Employment practice, in the firm's New York office, authored an article in Bender’s Labor & Employment Bulletin, titled “NLRB’s Murphy Oil Decision Reaffirms D.R. Horton Despite Rejection by Some Federal Courts.”

Following is an excerpt (see below to download the full article in PDF format):

On October 28, 2014, a three-member majority of the National Labor Relations Board (‘‘NLRB’’ or ‘‘the Board’’) in Murphy Oil U.S.A., Inc.1 revisited and reaffirmed its position set forth in D.R. Horton that employers violate the National Labor Relations Act (‘‘NLRA’’ or ‘‘the Act’’) by requiring covered employees (virtually all nonsupervisory and non-managerial employees of most private sector employees, whether unionized or not) to waive, as a condition of their employment, participation in class or collective actions. This reaffirmation comes despite rejection of the Board’s position by various federal courts addressing the issue and the long standing and liberal federal policy favoring resolution of disputes via arbitration.

The Board’s controversial position is yet another attempt to interject its influence and agenda into the non-union workplace. The last word on the issue raised by Murphy Oil will likely only come when the Supreme Court considers it.