Board And Courts Clash Over D.R. Horton

Executive Summary:  Two recent decisions illustrate the tension between the National Labor Relations Board (NLRB) and courts created by the Board's decision in D.R. Horton, which held that an employer violated the National Labor Relations Act (NLRA) when it required employees to sign an agreement that precluded them from filing joint, class, or collective claims regarding wages, hours or other working conditions against the employer in any forum, arbitral or judicial.  In Johnson v. TruGreen Ltd. Partnership, a federal district court in Texas rejected the Board's analysis in Horton, noting that the Board misinterpreted Gilmer v. Interstate/Johnson Lane Corp., a leading U.S. Supreme Court decision upholding the federal policy favoring arbitration.  See Johnson v. TruGreen Ltd. Partnership, Cause No. A-12-CV-166-LY (October 25, 2012).    Not surprisingly, on the very same day, an NLRB administrative law judge (ALJ) followed Horton and held that a class action waiver in