News & Commentary May 4, 2023 (PART 2)

[Omaha Steve]

https://onlabor.org/may-4-2023/

bY Linh Tang

Linh is a student at Harvard Law School.

On Wednesday, the Eleventh Circuit significantly restored the NLRB’s power to stop unlawful litigation by vacating a Trump-era Board ruling. Prior to 2019, the NLRB enjoyed wide authority to block litigation if the result sought by the litigant would violate federal labor law. In 2019, however, when Anheuser-Busch filed a motion to compel arbitration in a former union employee’s racial discrimination lawsuit even when the company’s arbitration program didn’t apply to union workers, the Board allowed the employer’s filing to go forward. Finding that the motion did not have illegal aims, the Board advanced a novel theory that there must be an additional illegal underlying act, beyond the filing in question, before the Board can halt the employer’s litigation. The Eleventh Circuit vacated this problematic ruling on Wednesday, criticizing it as “eviscerat[ing]” the NLRB’s ability to stop litigation without giving a “hint” of what kind of action would qualify under its novel rule. The result, the Court said, was essentially to allow all litigation, even those with unlawful objectives, to go forward. The case has been sent back to the Board to determine whether Anheuser-Busch’s motion to compel arbitration can now be blocked.

FULL story at link above.