06/16/2026: Board Finds Employer's Motion to Compel Arbitration Violated the NLRA
The 11th Circuit rejects the Board's effort to narrow the illegal-objection exception.
Anheuser-Busch, LLC, 374 NLRB No. 133, 12-CA-094114 (Published Board Decision)
The Board on remand has reversed itself, finding that Anheuser-Busch, LLC violated Section 8(a)(5) and (1) of the NLRA by trying to force a fired Teamsters-represented employee into arbitration.
Matthew Brown, fired in 2010, sued the company in federal court alleging race discrimination and retaliation under Title VII. Anheuser-Busch moved to compel arbitration under its Dispute Resolution Program (DRP), even though the DRP’s own terms excluded union-represented employees like Brown. The company instead pointed to a 2004 job application in which Brown, before joining the bargaining unit, had agreed to arbitrate claims under the DRP.
In 2019, a divided Board dismissed the unfair labor practice complaint. Under Bill Johnson’s Restaurants v. NLRB, an employer’s litigation is generally protected by the First Amendment’s right to petition unless it is both baseless and retaliatory, or, per footnote 5 of that decision, has an objective that is independently illegal. The Board held that this footnote 5 exception didn’t apply: because the DRP wasn’t itself unlawful, the company’s effort to enforce it against Brown didn’t involve any illegal “underlying act,” so the motion fell outside the exception and remained protected.
The Teamsters petitioned for review, and the Eleventh Circuit vacated in Teamsters Local 947 v. NLRB, rejecting the Board’s “underlying act” gloss as an unsupported narrowing of the footnote 5 exception. The court remanded with instructions to determine whether the relief Anheuser-Busch actually sought — compelled arbitration of Brown’s claims under the DRP — would itself violate the NLRA.
Accepting that instruction as the law of the case, the Board now finds it would. Implementing a dispute-resolution program covering bargaining-unit employees is a mandatory subject of bargaining under NLRB v. Katz, and the company never gave the Union notice or a chance to bargain over applying the DRP to Brown. The DRP’s own text excluded union employees, and any individual waiver Brown gave couldn’t override the Union’s bargained-for grievance procedure: a contractual waiver of the right to sue must be “clear and unmistakable” under 14 Penn Plaza LLC v. Pyett, and an employee cannot personally waive rights belonging to the bargaining unit under J.I. Case Co. v. NLRB. The Board also rejected arguments that the Federal Arbitration Act or Epic Systems Corp. v. Lewis required a different result, or that Brown’s changing employment status altered the analysis.
The Board ordered Anheuser-Busch to withdraw the arbitration-related portions of its court motion and to reimburse Brown’s legal expenses with interest; Member Mayer dissented from the reimbursement remedy.
Significant Cases Cited
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983): Set the standard that an employer’s litigation is protected by the First Amendment unless baseless and retaliatory, or aimed at an independently illegal objective.
Teamsters Local 947 v. NLRB, 66 F.4th 1294 (11th Cir. 2023): Vacated the Board’s narrowing of the illegal-objective exception and ordered it to decide whether the relief sought would itself violate the NLRA.
NLRB v. Katz, 369 U.S. 736 (1962): Held that employers must bargain before unilaterally changing mandatory subjects of bargaining.
14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009): Held that a union contract waives employees’ right to sue in court only through clear and unmistakable language.
J.I. Case Co. v. NLRB, 321 U.S. 332 (1944): Held that an individual employee cannot personally waive rights secured through collective bargaining.
United States Postal Service, 374 NLRB No. 132, 05-CA-287508 (Published Board Decision)
Strategized condensing legal content while maintaining citations
The NLRB affirmed an administrative law judge’s finding that the U.S. Postal Service violated the NLRA by maintaining an overly broad no-solicitation rule and by ordering an employee to stop posting safety flyers on a break-room bulletin board.
The dispute began when motor vehicle operator David Covarrubias posted flyers raising workplace safety concerns at a Merrifield, Virginia facility. A manager ordered him to stop, citing a USPS policy barring “collecting signatures on petitions, polls, or surveys” on postal property. The Board’s reasoning, concentrated in its footnotes, rejected USPS’s claim that this rule applied only to the public: a neighboring provision expressly limits itself to “members of the public,” while the solicitation rule contains no such limit and even references “employee bulletin boards” as an exception. The Board also rejected USPS’s argument that the agency lacked authority to order rescission, noting Congress folded USPS labor relations into the NLRA framework.
The underlying ALJ decision, left intact, applied the Stericycle standard to find the rule presumptively unlawful because employees could reasonably read it as restricting their organizing rights, and USPS failed to show it couldn’t write a narrower rule. The judge also found no “clear and unmistakable” union waiver of these rights under Metropolitan Edison, and that Covarrubias’s flyers about safety hazards were protected concerted activity.
On remedy, the Board required nationwide notice given the rule’s companywide reach, but modified the order so USPS need not physically post at all 30,000-plus facilities, since electronic distribution through its intranet was sufficient.
Significant Cases Cited
Stericycle, Inc., 372 NLRB No. 113 (2023): Sets the standard for evaluating workplace rules based on how a reasonable employee would interpret them.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Bans on solicitation during nonworking time generally unlawfully impede organizing.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983): A union waiver of employees’ statutory rights must be “clear and unmistakable.”
Guardsmark, LLC, 344 NLRB 809 (2005): Unlawful work rules should generally be rescinded immediately, not merely revised.
Mastec Advanced Technologies, 357 NLRB 103 (2011): Company-wide unlawful rules require notice posting at all employer facilities.