Since the 1960s Steelworker Trilogy cases, there has been strong federal support of arbitration agreements in contracts. Indeed, if a contract states that a party waives their right to a trial in lieu of arbitration, it is almost impossible to escape the arbitral clause and force litigation of the dispute. This push towards upholding arbitration provisions in contracts pursuant to the Federal Arbitration Act of 1925 (FAA) became nearly absolute following the Supreme Court's ruling in AT&T Mobility v. Concepcion which prevented class action arbitrations absent specific language in the arbitral clause allowing it (and why would a business allow an individual to collectively fight against it?). While the Concepcion ruling did not seem to run afoul of any other federal statutes, the application of the decision in the employment context has been troubling.
Post-Concepcion, employers have been preventing employees from bringing class action cases when the employment agreement is subject to an arbitration provision that either specifically prohibits class actions or is silent on the topic. Courts have been allowing this activity. However, the NLRB in Horton recognized the threat, because such a stance denies employees their right to concerted activity pursuant to sections 7 & 8 of the National Labor Relations Act (NLRA). Indeed, the hallmark purpose of concerted activity is to allow employees to come together as a collective force to address workplace concerns and attempt to amicably resolve the dispute(s). A class action lawsuit or arbitration is another form of concerted activity as it also brings employees together to address workplace concerns in an attempt to find resolution to the dispute(s).
Clearly the application of the FAA in Concepcion and the NLRA are at odds. Because the NLRA governs both unionized and non-unionized employers, a resolution of this conflict will have a major impact on the usage of arbitration provisions within the employment context. The Horton case is currently on appeal before the 5th Circuit Court. I am certain that before long the case will make its way to the Supreme Court's doorstep.