On April 29, 2016, in two separate 2-1 decisions, Amerisave Mortgage Corporation and Tarlton and Son, Inc., the panel (Board) heading the NLRB's judicial functions affirmed the administrative law judges' (ALJ) holdings that the employers violated Section 8(a)(1) of the NLRA by maintaining, and requiring employees to sign, arbitration agreements that waived their employees' right to pursue class or collective actions in any forum. The Board also affirmed the ALJs' holdings that the employers violated Section 8(a)(1) for the independent reason that they promulgated the arbitration agreements with class and collective action waivers in response to employees' wage and hour class and collective action lawsuits. (363 N.L.R.B. No. 174 (Apr. 29, 2016); 363 N.L.R.B. No. 175 (Apr. 29, 2016).)

Amerisave Mortgage Corporation and Tarlton and Son, Inc. are the latest of the D.R. Horton and Murphy Oil progeny to hold an employer unlawfully maintained or enforced an arbitration agreement to prevent employees from pursuing class or collective actions. (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 and NLRB Redoubles Stance that Mandatory Arbitration Clauses Waiving Employees' Rights to Pursue Class or Collective Actions Violate the NLRA).

However, these decisions are the first of the D.R. Horton and Murphy Oil progeny to also involve an analysis of whether the employer unlawfully promulgated the arbitration agreement in response to protected concerted activity, namely the filing of wage and hour class and collective actions. (see Luther Heritage Village-Livonia, 343 N.L.R.B. 646 (2004); see Article, Whether Unionized or Not, Employers Must Ensure Their Employment Policies Comply with the NLRA).

In dissent, Member Miscimarra challenged the majority's:

Update: 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.)

Update: In Tarlton & Son, Inc., the Board held that an employer lawfully adopted a mandatory arbitration policy in response to employees filing a wage and hour class suit, which the Board affirmed constituted concerted protected activity. The Board also expressly overruled Amerisave Mortgage Corp., holding that it is inconsistent with Epic Systems and Cordua Restaurants, Inc. (368 N.L.R.B. No. 43 (Aug. 14, 2019); see Legal Update, NLRB Decides First Mandatory Arbitration Case and Issues of First Impression Following Supreme Court's Epic Systems Decision. (368 N.L.R.B. No. 101 (Oct. 31, 2019).)