The Supreme Court in the American Express Co. v. Italian Colors Restaurant decision effectively put another nail in the coffin with respect to the NLRB’s D.R. Horton case.  D.R. Horton was on life support in any event, as noted during oral arguments in April of this year before the Fifth Circuit Court of Appeals, when counsel for the D.R. Horton pointed out that at least six individual courts have refused to follow the NLRB’s ruling.  However, with the most recent decision by the Supreme Court, it would seem clear that the NLRB’s position that a waiver of class claims in arbitration violates the NLRA is not likely to survive muster on appeal.  As the Court noted in American Express Co.:

No contrary congressional command requires rejection of the class arbitration waiver here.  The antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.  See, Rodriguez v. The United States, 480 U.S. 522, 525-526, or “evince an intention to preclude a waiver” of class action procedure, Mitsubishi Motors Corp. v. Soler-Chrysler-Plymouth, Inc., 473 U.S. 614, 628.  Nor does congressional approval of Federal Rule of Civil Procedure 23 establish an entitlement to class proceedings for the vindication of statutory rights. 

In other words, so long as employees have a legal path to prosecute their claims, the fact that they are barred from doing so in a class action format is of little consequence.

Accordingly, in reading the “tea leaves” in this matter it seems extremely likely that the Fifth Circuit, gleaming guidance from this most recent pronouncement by the Supreme Court, will deny enforcement of the NLRB’s action and, more importantly, hopefully take the time to “wag its finger” at the NLRB over its overly broad application and interpretation of the NLRA.