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July 17, 2014

Labor Board Won’t Seek SCOTUS Review of Fifth Circuit Horton Decision

The National Labor Relations Board has announced that it won’t seek U.S. Supreme Court review of the Fifth Circuit ruling in the D.R. Horton case, which rejected the NRLB’s “controversial conclusion that mandatory arbitration agreements barring worker class actions violate federal labor law.”

The deadline for the NLRB to file a petition for certiorari in the case “came and went Tuesday” without the agency filing its bid for Supreme Court intervention. Therefore, the Fifth Circuit’s December decision which sided with the home builder on the question of whether requiring employees to sign arbitration agreements prohibiting class or collective claims violated the National Labor Relations Act, will hold.

Why did the NLRB fail to seek certiorari?

“We don’t know whether the NLRB is considering changing its position on the underlying substantive issue, or if the NLRB just didn’t want to risk an adverse ruling from the Supreme Court,” he said. “There’s certainly no indication from the board that it’s going to change its position, yet it is somewhat interesting that they didn’t file a petition here.”

Some analysts, however, expect the NLRB to “dig in its heels.”

“We assume the board will soon begin issuing a series of rulings that reiterate and strengthen its D.R. Horton analysis,” said Altshuler Berzon LLP’s Michael Rubin. “The failure to seek Supreme Court review is inconsequential. There’s no reason why the board would be compelled to challenge a ruling that it needn’t be bound by in future cases.”

Read the full story here.

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