Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Employers Beware: Compelling Arbitration Under a CBA May Be a Problem

Author: Scarinci Hollenbeck, LLC

Date: May 24, 2023

Key Contacts

Back

BACKGROUND:

After being fired by his employer, Anheuser-Busch Companies, LLC, Matthew Brown filed suit in federal district court alleging that his termination was the result of racial discrimination and retaliation, in violation of Title VII.

In response, Anheuser-Busch filed a motion seeking to compel arbitration of Brown’s district court claims, asserting that at the time when he was hired, Brown had agreed to be bound by the company’s Arbitration Agreement, which required employees to arbitrate any such claims against the company. Brown disagreed that he was required to arbitrate his claims, insisting that he was entitled to have his claims adjudicated via district court proceedings, including a jury trial.

So far, there is nothing out of the ordinary here, procedurally. Specifically, employers typically seek to enforce arbitration agreements to lower costs and time in adjudicating claims. It is also quite typical for an employee to argue that said agreement is unenforceable.

Typically, when such a dispute arises, the court will interpret the at-issue agreement to determine whether the employee can be required to pursue his claims via arbitration instead of through a judicial proceeding.

THE LITIGATION:

Here is where it gets interesting. In International Brotherhood of Teamsters Local 947 v. Anheuser-Busch Brewing Properties, LLC, the National Labor Relations Board (“NLRB”) inserted itself into the proceedings, prior to resolution by the district court and ordered the defendant employer to cease and desist any efforts to require arbitration.

While there is precedent for the NLRB to direct persons under its jurisdiction to cease their particular litigation efforts, it is not typically done in this manner. After Anheuser-Busch asked the district court to compel arbitration, Brown filed an unfair labor practice charge with the NLRB, arguing that the defendant employer’s efforts to enforce its arbitration agreement contravened the collective bargaining agreement and constituted a unilateral change to the terms of Brown’s employment, in violation of the National Labor Relations Act (“NLRA”). Pending a determination by the NLRB. The district court action was stayed.

THE NLRB DETERMINATION:

The Administrative Law Judge (“ALJ”) assigned to rule on the charge ordered Anheuser-Busch to withdraw portions of its motion to compel arbitration in the district court litigation. The matter then moved to a review panel of the NLRB. In a split two-one decision, the NLRB dismissed the charge. The Board declined to determine whether Anheuser-Busch’s motion to compel arbitration contravened relevant portions of the NLRA, and thereby constituted an unfair labor practice.

Instead, the Board held that even if Anheuser-Busch’s efforts to compel arbitration were unlawful under the NLRA, the Petition Clause of the First Amendment generally protected its right to give it a try in the district court litigation.

Further, the Board concluded that Anheuser-Busch’s motion to compel arbitration did not meet the exception to a litigant’s First Amendment right to petition that the Supreme Court had carved out in Bill Johnson’s Restaurants, Inc. v. NLRB, which exception permits the Board to enjoin even reasonably-based lawsuits when the latter have “an objective that is illegal under federal law.”

ANHEUSER-BUSCH APPEALS:

Anheuser-Busch filed an appeal arguing that the ALJ’s order requiring Anheuser-Busch to withdraw its motion to compel arbitration pursuant to the Dispute Resolution Policy violated Anheuser-Busch’s First Amendment Right to Petition.

THE DECISION:

In a blistering opinion, the Eleventh Circuit reversed the NLRB. The opinion turns largely on the meaning of a footnote in a 1983 Supreme Court decision that originated in Arizona, Bill Johnson’s Restaurants, Inc. v. NLRB. The Court of Appeals held that a court filing may lose its First Amendment protections and violate the NLRA when the filing has “an objective that is illegal under federal law,” which is precisely the standard established in Bill Johnson’s Restaurant case.

The court found that the motion to compel arbitration in this instance potentially had an objective that was, itself, illegal because it sought to enforce an arbitration agreement that itself might turn out to be a violation of the NLRA. As a result, the court reversed the NLRB and remanded the case to determine whether, in fact, the arbitration agreement violates the NLRA.

This decision explores the intricacies and dichotomies between the First Amendment Petition Clause and the NLRA. The ruling here would essentially chill First Amendment-protected petitioning of the courts, as employers, unions, and employees alike have no clear way to determine whether something as simple as a motion to compel arbitration violates the NLRA. The decision may open the door for the Supreme Court to revisit Bill Johnson’s Restaurant and particularly footnote 5.

The court was extremely critical of the NLRB’s requirement that there must be an additional unlawful underlying act in addition to the litigation itself. The court specifically noted that the NLRB utterly failed to give any examples of what such underlying acts could be.

TAKEAWAY FOR EMPLOYERS:

Employers with union employees will need to thoroughly review the pertinent CBA before going to the courts to attempt to compel arbitration. If your company has any questions concerning agreements to arbitrate, contact us today.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Are Your Conversations with AI Shielded from Discovery? Courts Are Split post image

Are Your Conversations with AI Shielded from Discovery? Courts Are Split

Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]

Author: Chris Seelinger

Link to post with title - "Are Your Conversations with AI Shielded from Discovery? Courts Are Split"
Guardianships in New Jersey: When a Loved One Can No Longer Manage Personal or Financial Affairs post image

Guardianships in New Jersey: When a Loved One Can No Longer Manage Personal or Financial Affairs

When a family member can no longer make important decisions for themself, the question is often not whether the family will step in, but whether they have the legal authority to do so. A spouse may manage household finances, or an adult child may arrange medical care and pay bills. Still, informal assistance does not […]

Author: Marc J. Comer

Link to post with title - "Guardianships in New Jersey: When a Loved One Can No Longer Manage Personal or Financial Affairs"
New Jersey’s Revised UHAC Regulations: What Residential Developers Need to Know About Affordable Housing Commitments post image

New Jersey’s Revised UHAC Regulations: What Residential Developers Need to Know About Affordable Housing Commitments

New Jersey residential developers with affordable housing obligations should carefully review their existing approvals, development agreements, and proposed deed restrictions in light of the State’s revised UHAC regulations (Uniform Housing Affordability Controls). The regulations, which took effect on November 6, 2025, significantly change the administration and physical requirements for affordable housing units. For developers with […]

Author: Wendy Rubinstein Quiroga

Link to post with title - "New Jersey’s Revised UHAC Regulations: What Residential Developers Need to Know About Affordable Housing Commitments"
“No Comment” Culture: Why Silence Is Often the Riskiest Legal Strategy post image

“No Comment” Culture: Why Silence Is Often the Riskiest Legal Strategy

A “no comment” response is sometimes the right call when a legal problem arises. As a blanket policy, however, it lets allegations go unanswered, deadlines pass, evidence disappear, and manageable disputes grow into expensive litigation. The businesses that fare best are usually the ones that say little publicly while acting decisively behind the scenes. When […]

Author: Sean M. Pena

Link to post with title - "“No Comment” Culture: Why Silence Is Often the Riskiest Legal Strategy"
Utility-Scale Battery Storage Projects: A Legal Roadmap for Developers, Property Owners and Other Stakeholders post image

Utility-Scale Battery Storage Projects: A Legal Roadmap for Developers, Property Owners and Other Stakeholders

Utility-scale battery energy storage systems (BESS) are becoming an increasingly important component of the electric grid throughout New Jersey, New York, and Pennsylvania. As renewable generation expands, electricity demand increases and grid operators seek greater flexibility, battery storage can help balance supply and demand while providing additional capacity and reliability. For developers, battery storage presents […]

Author: Nicholas Wall

Link to post with title - "Utility-Scale Battery Storage Projects: A Legal Roadmap for Developers, Property Owners and Other Stakeholders"
Navigating Disputes: Hire a Partnership Dispute Lawyer post image

Navigating Disputes: Hire a Partnership Dispute Lawyer

A falling out between partners can be disastrous for any business. In many cases, the partnership will not survive. If you are in an unworkable situation with your partners, it may be time to consult a partnership dispute lawyer experienced in handling partnership breakups and dissolutions before the situation deteriorates any further. It is easy […]

Author: Jay McDaniel

Link to post with title - "Navigating Disputes: Hire a Partnership Dispute Lawyer"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!