On February 23, 2016, in Haynes Building Services, LLC, the panel (Board) heading the NLRB's judicial functions affirmed the administrative law judge's (ALJ) holding that the employer violated Section 8(a)(1) of the NLRA by maintaining, and requiring employment applicants to sign, a Notice to Applicant containing provisions that employees would reasonably read to prohibit their filing of unfair labor practices (ULP) with the Board. Also, contrary to the ALJ, the Board agreed with the General Counsel that the employer violated Section 8(a)(1) of the NLRA by threatening to file a motion to compel arbitration to enforce the Notice to Applicant and an employment agreement containing an arbitration clause. (363 N.L.R.B. No. 125 (Feb. 23, 2016).)

This decision extended the Board's holding in Countrywide Financial Corporation, in which the Board found that an arbitration agreement that did not specify that mandatory arbitration could proceed only on an individual basis was unlawful as applied where the employer filed a motion to compel individual arbitration of a collective suit (362 N.L.R.B. No. 165 (Aug. 14, 2015); see Legal Update, Employer Committed ULP By Enforcing Facially Valid Arbitration Agreement to Prevent Class and Collective Actions: NLRB). Although the employer had not yet filed a motion to dismiss the lawsuit in Haynes Building Services, it threatened to compel arbitration on an individual rather than class or collective basis if the employee did not withdraw his class action lawsuit and submit his individual claim to arbitration. The Board found that this threatened court action was sufficient to coerce employees in the exercise of their rights under Section 7 of the NLRA.

Haynes Building Services is the latest of the D.R. Horton and Murphy Oil progeny to hold an employer unlawfully sought to enforce an arbitration agreement with a former employee to preclude a class action (357 N.L.R.B. No. 184 (Jan. 2, 2012); 361 N.L.R.B. No. 72 (Oct. 28, 2014); see Legal Updates, Mandatory Arbitration Agreement Prohibiting Class and Collective Actions Violates the NLRA: NLRB; NLRB Redoubles Stance that Mandatory Arbitration Clauses Waiving Employees' Rights to Pursue Class or Collective Actions Violate the NLRA).

In Epic Systems Corp. v. Lewis, the US Supreme Court held that arbitration agreements with class and collective action waivers are not prohibited under Section 7 of the NLRA and must be enforced as written under the Federal Arbitration Act (FAA). The decision invalidates the NLRB's analysis in D.R. Horton and Murphy Oil on which this decision relies and therefore abrogates much of the analysis in this case (( (U.S. May 21, 2018); see Legal Update, SCOTUS: Arbitration Agreements with Class Action Waivers Must Be Enforced as Written, and NLRA Does Not Command Otherwise and Article, Expert Q&A on Class Action Waivers in the Employment Context.)