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Supremes Grant Cert on NLRB Challenge to Class Waiver

Mon, 2017-01-16 19:38

As has been widely reported, the Supreme Court has granted certiorari to review three conflicting decisions among the circuits on the enforceability of an employer’s unilaterally promulgated waiver of employees’ right to participate in collective redress.

Despite reports to the contrary, it seems prudent to remember that this is not an arbitration question.  The challenge does not implicate the F.A.A. The question presented to the Court is whether an employer’s unilateral ban on employee’s participating in class actions violates Section 7 of the N.R.L.A., which provides in part that “Employees shall have the right to… engage in… concerted activities for the purpose of… mutual aid or protection….”

The National Labor Relations Board, which is charged with the interpretation of this statute, found that an employer violates this section by purporting to deny employees the right to seek collective redress.  Arbitration is, technically, merely the cup that holds the coffee.  Whether the denial of the right to “engage in concerted activities” is found as a provision of an arbitration agreement, or is set forth in some other part of the employer’s policies and practices, is a matter of indifference to the NLRB.

We are accustomed to seeing this question arise in the context of arbitration provisions, and it is therefore easy to conflate the two issues, and to assume that federal policy favoring arbitration will be brought to bear.   And, indeed, the fact that courts enforce such denials if they are ensconced in arbitration agreements (though they presumably would not enforce them if they were, say, in an employee handbook) prompts employers to draft arbitration provisions, not in order to provide private means of redress, but in order to eliminate class actions.  And many of us who seek to preserve the integrity of arbitration find that practice offensive.

Here, however, the Court will not need to balance the sanctity of arbitration clauses in order to focus on the neater, and more tantalizing, question:  Is a class action waiver, however housed in an agreement, a violation of workers’ well-established rights to engaged in concerted activities for the purpose of mutual aid and protection?  Or may an employer, by its own unilateral action, exempt itself from the scope of the National Labor Relations Act?

And are the findings of the agency charged to make such determinations owed deference?


Two Passions at Once

Wed, 2016-12-28 20:48

Those who know me, know that I am an avid enthusiast of Richard Wagner’s theatre works.  This year alone I have attended a Ring Cycle in Washington, a performance of Das Rheingold in Chicago, a new productions of Tristan und Isolde at the Metropolitan Opera, another Tristan at the English National Opera in London, and a performance of Die Meistersinger at the Glyndebourne Festival in England.

I was lurking around the web site of the Wagner Festival in Bayreuth tonight, nursing my disappointment that I apparently have yet again been unsuccessful in my ticket application (last time I attended was 2012, c’mon, guys, my turn…) when I noticed the legend “ODR” on the top banner of the tickets web page.  And behold, the following is posted:

The Bayreuther Festspiele GmbH draws attention to the link to the online platform of the European Commission for Online Dispute Resolution (so-called Odr platform) for out of court settlement, which is set on the homepage of the Bayreuther Festspiele GmbH; furthermore, attention is drawn to the fact that the Platform for Online Dispute Resolution – according to its own statement – will not be operational until 15/02/2016.

The e-mail of the Bayreuther Festspiele GmbH is as follows: [email protected]

Now how cool is that?  Here I am wasting time whinging because I won’t have the opportunity to spend money I don’t have seeing operas I already know, and I am unexpectedly treated to Colin-Rule-In-A-Can!

Does life get any more coherent than this, I ask you?


Global Pound Conferences: Singapore Report

Tue, 2016-12-27 09:19

We have previously noted the series of convenings under the auspices of the International Mediation Institute, Herbert Smith Freehills, and others, under the title “Global Pound Conference.”  The first was held in Singapore in March of this year, and a formal report on the proceedings, as well as a analysis of the data produced at the Conference, have been publicly posted.

The report is available here.  Reports of ensuing Conferences will be forthcoming.

NY Times: “Arbitration” = Secretive and Unfair

Wed, 2016-12-07 10:16

On the front page of today’s New York Times there appears an article reporting on a legal argument that is purportedly being advanced by Wells Fargo in response to claims brought on behalf of thousands of customers in whose name, and without whose knowledge, over 2,000,000 “sham” accounts were established.

The bank is reported to be arguing that the accounts that the customers did not authorize contained agreements that the customers did not see, containing provisions that the customers did not understand, pursuant to which judicial class actions were barred.  These provisions — drafted by the bank — apparently also unilaterally decreed that customers seeking redress were required to avail themselves of private arbitration as their exclusive method of redress.  The bank wants these provisions enforced and the judicial claims dismissed in favor of thousands of individual arbitrations.

In the fourth graf of this article, “arbitration” is defined as “a secretive legal process that often favors corporations.”

Will someone who gives a damn about dispute resolution in this country please take care of this?  I don’t mean teaching the Times reporters what arbitration is.  I mean unilaterally promulgating provisions in consumer contracts that are secretive and often favor corporations.

NJ Supreme Court on Agreements to Arbitrate

Wed, 2016-11-30 11:37

We have previously noted the New Jersey Supreme Court’s somewhat radical view of arbitration agreements — including the proposition that, to be enforceable, each party to the contract needs to understand what arbitration means.  This principle has been applied to a subsequent dispute before the State Supreme Court, resulting in the holding that a provision of an arbitration agreement in a student enrollment contract delegating the authority to determine arbitrability to the arbitrator is invalid where the students were not put on notice that (a) a court would not determine arbitrability, or (b) a court would not determine anything whatsoever inasmuch as the students had irrevocably waived their right to judicial access.

In Morgan v. Sanford Brown Institute, a complaint was brought in state court by students alleging fraud against Sanford Brown Institute (a for-profit educational institution offering medical ultrasound training).  Defendant Sanford Brown unsuccessfully argued a motion to compel arbitration, implicitly acknowledging that the court had authority to grant such relief.  The school neither relied upon the delegation clause in the arbitration agreement (empowering an arbitrator, not a court, to determine arbitrability of claims), nor cited any law with respect to the validity of such delegation provisions.  The trial court denied the motion but the school prevailed before the Appellate Division, which reversed the trial court, dismissed the students’ complaint, and directed that the claims be sent to arbitration.  Here, for the first time, the court held that “the parties ‘clearly and unmistakably’ agreed an arbitrator would determine issues of arbitrability.”  The trial court’s error, therefore, consisted of its not submitting the issue of arbitrability to an arbitrator.

Ignoring its own holding, the Appellate Division panel nevertheless made certain legal findings with respect to the arbitration agreement, determining inter alia that the arbitration agreement’s limitation on the award of statutory damages and exclusion of other protections of the New Jersey Consumer Fraud Act were unconscionable and unenforceable.

The Supreme Court reversed, holding the entire arbitration agreement unenforceable and remanded to the trial court for (presumably) reinstatement of the students’ claim.  The rationale for the Supreme Court’s action was consistent with, but an extension of, its previous holding in Atalese v. U.S. Legal Services Group.  That case, in turn, was founded on the proposition that, pursuant to the Federal Arbitration Act, the enforceability of agreements to arbitrate was to be determined by generally applicable state law principles of contract, which (in New Jersey) meant that “a consumer had to have some understanding that, by accepting arbitration, she is surrendering her common-law and constitutional right of access to the courthouse.”  Because, in the court’s view, “state law governs not only whether the parties formed a contract to arbitrate their disputes, but also whether the parties formed an agreement to delegate the issue of arbitrability to an arbitrator,”  those state law principles — such as the requirement of mutual assent and a common understanding of the contract terms — defeat this agreement.  The court held that a waiver of a constitutionally guaranteed right must be clear and unmistakable — and, under New Jersey law, explained “in sufficiently broad terms” in the agreement itself.  The agreement at issue “[did] not explain, in broadly worded language or any other manner, that plaintiffs are waiving their right to seek relief in court for breach of the enrollment agreement or for a statutory violation,” and thus did not satisfy the elements necessary for the formation of a contract.

Several concerns are raised by this decision.  First, it seems to be restricted to consumers who enter into arbitration agreements.  That is, could General Motors rely on Atalese or Sanford Brown to argue that its arbitration agreement with DuPont is unenforceable because the contract did not explain the consequences of arbitration or delegation with respect to waiver of constitutionally guaranteed access to the courts?  Indeed, could any party to any contract contest its validity on the ground that the party did not understand the consequences of its agreement to certain of its provisions?  If General Motors is presumed to understand the meaning of an arbitration agreement, and students enrolled in an ultrasound technician training course are presumed not to understand it and require it to be explained to them, then where do I fall in the continuum?  And where do you?

In addition, there is the issue of futility.  The court itself noted that the arbitration provision in the 4-page enrollment agreement was in 9-point type, single-spaced, and therefore difficult to read.  Would the insertion of a definition of arbitration, waiver, and delegation have cured the defect that the court complained of?  And would certain prospective students reconsider their intention to enroll in Sanford Brown Institute because of an additional inserted phrase in the arbitration clause of the enrollment agreement?

Finally, and perhaps of greatest concern, is the prospect that, in order to be enforceable in New Jersey, arbitration agreements now must feature certain provisions that arbitration agreements in the neighboring states of Pennsylvania, New York and Delaware need not.  The Sanford Brown court saw no difficulty here —  “no greater burden is placed on an arbitration agreement than other agreements waiving constitutional or statutory rights.”  It refers to cases cited in Atalese that require notice when a consumer or employee agrees to waive appeals of the denial of a license and other administrative acts.  This somehow doesn’t hold water.  It is the very nature of agreements to arbitrate that the parties mutually waive access to the courts.  One could argue that there is nothing of substance in an arbitration agreement other than a waiver of access to the courts.

It seems apparent that the driving force behind this opinion is hostility to judicial arbitration, at least in the consumer context.  The court is deeply skeptical that courts should be carved out of claims of consumer fraud by private contracts of adhesion unilaterally promulgated by the stronger party.  So are many of us — but as a matter of policy, not common law, and not because we think judges are any better equipped to decide fraud claims than arbitrators are.  Forcing all these claims to be asserted in New Jersey Superior Court does no favor to the students or to the courts.

I invite readers to articulate the broad legal contract principles that render unenforceable, as to students and consumers, contracts that are perfectly enforceable between businesses, and that render unenforceable in New Jersey arbitration agreements that are enforceable in every other state.



Upcoming Volume on Transforming Justice and Lawyers

Thu, 2016-11-03 12:49

Prof. Marjorie Silver of Touro Law Center has sent me the proofs of a book that she is editing, scheduled to be released in January 2017 by Carolina Academic Press.  Titled Transforming Justice, Lawyers and the Practice of Law, the volume collects brave and insightful essays on the sometimes uncomfortable juxtaposition between teaching and practicing law on the one hand, and being a spiritually congruent human being on the other.

The publisher’s advance note provides:

Transforming Justice, Lawyers and the Practice of Law is a forthcoming anthology compiled by the editor of The Affective Assistance of Counsel: Practicing Law as a Healing Profession (Carolina Academic Press 2007). This new work is a collection of writings by participants in the Project for Integrating Spirituality, Law and Politics (PISLAP) and others actively engaged in transforming law, legal education and social justice into something that is collaborative rather than adversarial, that seeks to heal brokenness rather than merely resolve disputes, and that moves us toward The Beloved Community envisioned by the Reverend Martin Luther King, Jr. more than fifty years ago. The book will showcase the abundant ways in which lawyers, judges, law professors and others are employing more communitarian, peaceful and healing ways to resolve conflicts and achieve justice. It is written for those who share similar goals and are eager to learn new ways to practice law and create a legal system that fosters empathy, compassion and constructive change.

PISLAP, referred to in the description, is part-community, part-movement that seeks to “develop a new spiritually-informed approach to law and social change.”  It is a far-sighted and ambitious group of devoted and capable practitioners and academics whose work merits being on the radar screen of the legal community, and especially those of us who seek to practice in the field of resolving conflicts.

I am proud to be a chapter contributor to this volume and hope that it has a wide readership.

Keynote at Asian Mediation Conference

Fri, 2016-10-21 20:42

I was honored to address the 4th Conference of the Asian Mediation Association in Beijing,  held 20-21 October, 2016, as a keynote speaker.  My remarks appear below.

* * *

What the West Can Learn from Chinese Mediation


Peter Phillips[1]

I first visited China almost 15 years ago as a representative of the CPR Institute in New York.  The Institute is a coalition of corporations, and their law firms, who seek ways to resolve disputes with each other that do not involve entering American courts.  Over the course of five or six years, I worked with CCPIT on a project that eventually became known as the US-China Business Mediation Center.

Although I was very proud of the work that my Chinese friends and I were able to accomplish, I value our personal friendships even more.  During my brief visit for this conference I have been meeting some of my friends and I find my life enriched by their kindness, loyalty and happiness.

At some point during the creation of the US-China Mediation Center, it was made clear to me that many Chinese lawyers, judges, arbitrators and business people wanted to learn how American businesses mediate.  This was a little bit of a surprise to me, because I thought that I had come to China so that I may learn from the Chinese, not to teach them.  But an American professor, Dwight Golann, and I conducted a 3-day training session to explain how America companies mediate.

The training session did not go as we had planned.  Many Chinese judges and very experienced CIETAC arbitrators attended the event, and they were seriously confused.  For one thing, they were accustomed to listening to the professor lecture.  In America, mediators learn, not through lecture, but instead by doing exercises and practicing.  Professor Golann and I were teaching the way you might buy a suit, or ride a bicycle – by trying it and learning what fits.  This process made some of our Chinese friends uncomfortable – they were used to writing notes while someone talked.

The other, more serious, miscommunication was more substantive.  It had to do with what mediation was for – what the very purpose of it was.  The Professor and I were teaching a process where companies who had a dispute went into a private room and hammered out a solution that worked for them, usually by offering some money and also a change to the contract going forward.  One very esteemed Chinese participant found this approach to be completely useless.  He said that he had conciliated over 10,000 cases in his court, and he explained his process.  He said that he told them to stop lying and explain what really happened.  Then he consulted the civil code to determine what the correct outcome would be.  Then he called the parties into his office and told them that Party One owed Party Two 50,000 RMB, and should pay.  He added that he could not force Party One to pay Party Two, but if it did not pay 50,000 RMB, then he would continue the trial and at the end, in front of family, neighbors, and the community, he would order Party One to pay Party Two 50,000 RMB.  “Every one of my cases settled,” he said.

“And they settled on the right terms,” he added.

It was this idea – that the terms of mediation should be “right” – that began the process of learning from my Chinese friends that I sought in the first place.

Young people often scoff that their parents do not understand them or the world – that because they are old, they are ignorant.  A famous American writer, Mark Twain, once wrote “when I was a boy of 14, my father was so ignorant I could hardly stand to have the old man around. But when I got to be 21, I was astonished at how much the old man had learned in seven years.”

So it is, too often, with young America and the older, wiser, more sophisticated Asian countries.  I do not mean to suggest that Americans are stupid.  Rather, they are so eager to teach what they think they know that they often underestimate the lessons that they can learn from older cultures such as China. This is especially true in fields like conciliation, where centuries of experience have developed a different approach to dispute resolution – one that deserves respect.

Western culture emphasizes individual liberty.  Indeed, one of my great heroes, Thomas Jefferson, wrote that the only reason governments exist at all is to protect the liberty of individual people, and the only authority that governments have is the authority that the people grant to it.  This sounds like an appealing idea, and of course it is.  But it can result in a nation that sometimes goes off-course.  As an example, I point you to the election that will take place in three weeks, in which Americans will choose between two presidential candidates that most Americans do not want to be president in the first place.

This emphasis on individuals, and individual liberty, is reflected in the way Americans mediate.  When I learned to mediate, I was trained to listen closely to individual disputants, and probe to find out as much as I could about what they wanted to gain, or to avoid, in this conflict.  I was trained to seek out areas in which their individual desires might be shared without their recognizing it, and how to identify the distinct areas in which they differed.  I was trained to help parties to measure the risk of failing to agree – the risk of going to an American court and losing money, time and reputation in a public and uncertain forum.  I was trained to be alert to possible trade-offs or exchanges or compromises, so that each party to the dispute got the things that were most important to them, by offering to exchange things that were less important to them.  And I was trained that a “successful” mediation was one in which the parties privately agreed to a solution that each thought was the best for them – the best under the circumstances they were faced with, and better than going to court.

But I was never trained to counsel them in what the law was.  That was for their personal lawyers to help with, not for the neutral and unbiased mediator.  Indeed, I was trained never, never to express an opinion about anything other than what might be best for the specific parties in front of me – and even then, always to defer to their own business judgment.

I will add that this emphasis on personal self-interest has a peculiar and uncomfortable relationship to our personal values in America.  As a child I was taught never to take the largest piece of pie, but instead to offer it to others first.  I was taught to apologize and admit responsibility if, by mistake, I threw a baseball through my neighbor’s window while I was playing.  And I was taught to be fair when playing with my schoolmates on the playground, not to bully others and not to take advantage of younger children.  Yet when American businesses engage in litigation, and even mediation, they consistently deny responsibility and seek every advantage they can obtain – and they do so on the strict advice of their legal counsel.

Compare this approach to the practice in China.  In 2009 I was given a copy of this book that I hold in my hand, which celebrated the 20th anniversary of the CCPIT Mediation Centers.  It is a beautiful volume and I was honored to receive it.  Many of my friends worked on it, including ZHUNG Rungao, CHENG Hui, and our host today WANG Fang.  There is a lovely picture of WAN Jifei addressing the 2005 US-China Mediation Center Congress, with a (younger) me listening to his words.  And here is a picture of the training session that Professor Golann conducted.

But the reason I treasure this book, and the reason I sometimes bring it down from the shelf to read it again, is because it seems to me to contain a different and valuable insight – the emphasis on social harmony.  On page 143 there are several quotations on the idea of harmony from the sages, including Confucius’ teaching that harmony is the most valuable thing, and the selection from Zisi’s Doctrine of the Mean that “Harmony is the universal path.”  I understand these teachings to be similar to those of Jefferson, in that they are aimed at how individuals should hope to act – but different because they emphasize balance, discretion and harmony rather than mere self-interest.

Our approach to mediation differs in the same way.  The pages in the book that follow these quotations contain statements by CCPIT mediators.  These statements are startling to a Western reader, because of the consistent emphasis on the idea of harmony.  WANG Fang writes that, in China, “mediation should actively promote the spirits of harmony and cooperation.”  LI Huanting understands the purpose of mediation to be “to promote business harmony.”  LI Yong says, “Mediation is to develop the qualities of human nature so as to resolve contradictions, and pursue harmony which benefits the society and the individual.”  Time and time again, these skilled Chinese mediators reveal that the reason they do their work is not only to get the parties what they want, but also with an eye to building what ZHAO Jie calls “a harmonious society.”

It is as if, when parties meet in a Western mediation room, they contemplate the concept of fa and seek ways to avoid it; while in a Chinese mediation room they contemplate the ideal of li and seek to embrace it.

I am not proposing that Western mediators become Chinese mediators.  No one should become someone else.  Americans mediate the way they do, primarily because that is what American companies expect them to do.  This is of course one of the challenges of mediation that involves American and Chinese companies – they have different expectations of the process and of the people involved.  Still, we have much to learn from our Chinese friends.

At the core of my concern is a lesson I learned from my grandmother.  When, as a small child, a plate of sweets was passed around the dinner table, I took three.  She leaned over and put two back on the plate, whispering to me, “There are others.”  I wish that this concept would be considered more actively by Americans when they mediate – in addition to our own self-interest, and not ignoring it, to exhibit some sensitivity to the idea that “there are others,” who have their own legitimate self-interests, and who may be affected by our decisions.  To be clear, I suggest this consideration of “others,” not as an exercise in virtue, but a practical way of improving our society as a whole.  It is possible, as my older and wiser colleague explained in our Beijing training, that there is a “right way” for business mediations to conclude.

I speak this morning to urge us to listen better to each other.  I especially voice the hope that Americans will listen more closely to our Chinese friends.  Perhaps the time has come when our exchanges should not simply be Western mediators like Professor Golann and myself coming to Beijing to teach American styles of mediation.  Perhaps it is time for Chinese mediators to visit America and train American mediators not only about Chinese mediation, but also about the Chinese outlook on conflict and harmony, and the service that mediation provides, not just to the people at the table, but more broadly to the society in which we live, the world we hope to create, and the lessons we offer to our children.


[1] F. Peter Phillips is an arbitrator and mediator who practices in the New York City area.  He is Adjunct Professor and Director of the Alternative Dispute Resolution Skills Program at New York Law School, and can be reached at

Report from Asian Mediation Association Conference

Fri, 2016-10-21 20:24

I write from Beijing, where the two-day Conference of the Asian Mediation Association has been held, organized by the China Council for Promotion of International Trade (CCPIT) Mediation Centers.  I was very excited to return to Beijing after nine years’ absence and to meet so many like-minded, but differently-situated, colleagues.

The Conference, held by the AMA every two years, attracted over 300 participants from 16 countries.  A total of 42 speakers shared fascinating perspectives on commercial mediation, including legislative and court-annexed  systems as well as private provision of business dispute resolution.

Many of the themes articulated by the first morning’s speakers resonated throughout the conference.  Several speakers used the term “non-confrontational” when describing the central utility of business mediation.  The concept was that face-to-face accusations are unhelpful in resolving problems and affirmatively harmful in maintaining business relationships, so the intervention of a mediator to keep talks positive and forward-looking was highly valued.

ZHOU Quaing, President of the Supreme People’s Count of the People’s Republic of China, emphasized the beneficial consequences of such an approach to society as a whole: Mediation, he proposed, was not just a private agreement, and the social consequences of dispute resolution were so great that it has become recognized as an important component of the Chinese legal system, with consequent concerns that it be performed professionally by trained mediators.

Andrew PHANG Boon Leong, Judge of Appeal of the Supreme Court of Singapore, suggested that formulations of “rights and entitlements” do not give sufficient weight to equally important societal virtues such as “compassion, duty and economic relationships.”  He suggested that the purpose of separate caucuses in mediation was not, as often supposed in America, to determine the underlying interests of a disputant, but rather “to unearth issues that may cause one party embarrassment.”

LONG Fei, Director of the Supreme People’s Court’s Judicial Reform Office, linked gradations of mediation expertise with the challenges that the process is designed to address.  “people’s mediators” give way to “industrial mediators,” “commercial mediators,” “invited [i.e., specialized] mediators” and finally “professional mediators.  She also observed that dispute resolution outside of adjudicative judicial processes is a matter in which public resources ought to be directed, inasmuch as the process is inexplicably intertwined with the same matters of public concern that justify public maintenance of the court systems.

TANG Weijian, of the Chinese People’s Political Consultative Conference, expressed an underlying theme of the event by suggesting that “power, interest and self-realization” are virtues that are secondary to harmony, the sustenance of which is essential to society.

Each of the many panels and keynote speakers at the Conference contributed fresh and interesting perspectives, especially to this Western student of dispute resolution.  Among the many other speakers at the Conference were:

LU Pengqi, Vice-Chairman of CCPIT

JAING Zengwei, Chairman of CCPIT/CCIOC

Richard WAGNER, of the American firm Steptoe & Johnson LLP

David LIM, Court Mediator of the State Court in Singapore


Laurence BOULLE, Director of the Mediator Standards Board in Australia

Robert RHODES QC, Outer Temple Chambers in London

Francis LAW Wai Hung, President of the Hong Kong Mediation Centre

Fahmi SHAHAB, Executive Director of the Idonesian Mediation Center

LOONG Seng Onn, Executive Director of the Singapore Mediation Centre

Judge Suthatip Jullamon TASANACHAIKUL, Judge of Office of the President of the Supreme Court of Thailand

Shane PICKERING, Mediator at the Ministry of Employment, Fiji

The hero of the event was WANG Fang, Deputy Director of the Secretariat of the CCPIT Mediation Center and current Secretary-General of AMA.  Her leadership of her staff and vision of the conference were exceptional and resulted in one of the finest and most intellectually robust international mediation events I have ever attended.

Waiver of Class Action Without Arbitration Provision

Fri, 2016-09-30 19:09

In considering the debates raging about the enforceability of class action waiver provisions in arbitration clauses, I have always assumed that the arbitration clause was there just as a vessel to hold the class action provision.  That is, I thought that there was no vehicle to waive class actions outright.  Indeed, I once wasted a good portion of my not-much-remaining youth trying to find any instance where a party to a contract included a waiver of FRCP 23 while contemplating litigation, and I couldn’t find one.

Well, I wan’t looking in the right places.

Many thanks to Karl Bayer, whose indispensable blog has alerted us to an appeal before the Fifth Circuit Court of Appeals that was argued earlier this week.  In Convergys Corporation (363 NLRB No. 51, Nov. 30, 2015), an employer was found to have violated  Section 8(a)(1) of the National Labor Relations Act by requiring employees, as a condition of employment, “to agree that they would not pursue any claim or lawsuit relating to their employment on an individual basis.”  The rule was found unlawful because it explicitly restricts activities protected by Section 7 of the Act.  Noted the Board:

The Board has long and consistently held, with uniform judicial approval, that the Act protects the right of employees to join together to improve their terms and conditions of employment through litigation.  Accordingly, by requiring employees to waive their right to engage in class or group litigation as a condition of employment, the Respondent has interfered with their Section 7 right and violated Section 8(a)(1) of the Act.

Two things spring to mind.  The first is that the NLRB’s rulings in previous cases such as D.R. Horton were in the context of class action waivers embedded in arbitration clauses, and judicial challenges to the Board’s findings were couched in terms of federal support for agreements to arbitrate (assuming, arguendo, that these are agreements rather than unilaterally promulgated policies of employment, and assuming further that the employer’s policy was intended to ensure arbitration rather than to prohibit class actions).  Without the decades-old pro-arbitration judicial policy to rely upon, the employer here  may be less protected from challenge.

The other issue is that, in the event the NLRB’s Decision and Order is upheld, it will necessarily be restricted to agreements of employment.  Other efforts to restrict individual protections afforded by Rule 23, such as consumer, financial, nursing home, and other “agreements,” would of course remain unaffected by the Fifth Circuit’s actions.

The CFPB is acting to eliminate class action waivers in arbitration clauses in consumer financial transactions, and recent word has it that the Obama administration is acting to make entire arbitration provisions unenforceable in nursing home contexts.  Maybe the game of inserting class action waivers, with or without arbitration clauses, has about run its course?