Cellular Sales of Missouri v. NLRB (8th Cir 06/02/2016) has rejected the NLRB's position that employment agreements containing class action waivers are a violation of the National Labor Relations Act. This comes six days after the 7th Circuit announced precisely the opposite conclusion in Lewis v. Epic Systems (7th Cir 05/26/2016) [discussed here]. So, add in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), and the official score card is
-- Employers 2 NLRB 1 --
The 8th Circuit's words:
"[W]e conclude that Cellular Sales did not violate section 8(a)(1) by requiring its employees to enter into an arbitration agreement that included a waiver of class or collective actions in all forums to resolve employment-related disputes. *** Because the class-action waiver did not violate section 8(a)(1), Cellular Sales’s attempt to enforce the class-action waiver likewise did not violate section 8(a)(1)."
Will the Supreme Court grant certiorari in one or both of these recent cases? In normal times the answer would be a resounding "Yes." But with only eight Justices on the Court, and no sign of a ninth any time soon, times are not normal. If the Court grants cert in both cases, and then splits 4-4, we would have the odd result that both sides of the issue would be "affirmed by an equally divided Court." So perhaps they'll review only one. But then the outcome could depend simply one which one they review. So, my guess is that this is not the season for the Court to jump into this fray.