The U.S. Supreme Court ruled that agreements between an employer and an employee providing for individualized arbitration do not violate the National Labor Relations Act (NLRA). We previously reported on the conflicting cases pending before the Supreme Court here.
Justice Gorsuch, writing for the Court, explained that Congress instructed the courts to uphold arbitration agreements through the Federal Arbitration Act and nothing in the NLRA (or its predecessor, the Norris-La Guardia Act) requires the contrary. The dissent, written by Justice Ginsberg, focuses in large part on the policy motivating the enactment of the NLRA, and finds that the "adhesive waivers" at issue here were the type of employer action the NLRA was meant to counteract. Justice Ginsberg's dissent argues that class actions are the type of "other concerted activities for the purpose of ... mutual aid or protection" shielded by § 7 of the NLRA. Justice Gorsuch, however, points out that § 7 "focuses on the right to organize unions and bargain collectively.... But it does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act – let alone accomplish that much clearly and manifestly, as our precedents demand." Although the NLRA protects employees' right to organize unions, it does not speak to their right to arbitrate collectively. Therefore it does not conflict with and override the FAA. As such, the NLRA presented no obstacle to the Court's enforcement of the "liberal federal policy favoring arbitration agreements" embodied in the FAA. Epic Systems Corp. v. Lewis, Case No. 16-285 (USSC 2018).
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