Concerted Action Includes Concerted Dispute Resolution

Professors Charles A. Sullivan and Timothy P. Glynn of the Seton Hall University School of Law have written a timely journal article entitled Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution, Alabama Law Review, Vol. 64, No. 5, 2013; Seton Hall Public Law Research Paper No. 2235008.  In the article, the authors discuss the effect of the National Labor Relations Board’s decision in In re D.R. Horton on both mandatory arbitration clauses in employment contracts and the judicial system.

Here is the abstract:

As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end. The National Labor Relations Board recently held in In re D.R. Horton that employers may not compel employees to waive their NLRA right to pursue collective legal redress of employment claims. Instead, the NLRA mandates that some mechanism for concerted dispute resolution remain available in arbitral or judicial forums. Unsurprisingly, this decision has generated an enormous amount of litigation. Although the case itself is pending before the Fifth Circuit, courts across the country are now confronting Horton-based challenges to the enforcement of mandatory arbitration clauses in employment contracts. To date, they have generally rejected these challenges on various grounds.

This Article will explore why these courts are wrong and why agreements that bar concerted dispute resolution are indeed invalid. The Board’s articulation of labor law rights ordinarily is entitled to judicial deference. But such deference has been called into question in Horton itself in part because of a recent circuit court decision invalidating recess appointments to the Board. As we will demonstrate, however, no deference is necessary because Horton reflects the correct – not merely a reasonable – interpretation of the NLRA as well as its predecessor, the Norris-LaGuardia Act.

Moreover, although the Supreme Court has seemingly treated the Federal Arbitration Act as a “super-statute” that overwhelms all before it, the Court has simultaneously denied doing more than applying what textual analysis and interpretive conventions require. The Horton question will force the Court to confront the collision between what it says and what it does. Established doctrines of statutory interpretation, recently and resoundingly reaffirmed by the Court, dictate a contrary result. Indeed, to the extent the concerted activity mandate of federal labor law conflicts with provisions of the FAA, the former clearly supersedes the latter.

With apologies to Dr. Seuss, Horton meant what it said and said what it meant. Courts must follow, one hundred percent.

This and other scholarly papers by Professor Sullivan and Professor Glynn may be downloaded without charge from the Social Science Research Network.