NLRB General Counsel Directs Regions to Wait on Class Arbitration Cases Until Murphy Oil Is Decided

This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.

As reported in JD Supra, the General Counsel’s office of the National Labor Relations Board has issued a memorandum to regional offices in response to the Supreme Court’s grant of certiorari in Murphy Oil, Ernst & Young, and Epic Systems.  The instructions state that “in cases alleging that the employer is either maintaining and/or enforcing an agreement prohibited by Murphy Oil, Regions, after determining the case has merit, are directed to propose that the parties enter informal settlement agreements conditioned on the Agency prevailing before the Supreme Court in Murphy/Epic/Ernst & Young.”  In cases with multiple allegations at issue, the General Counsel’s office has directed the regional offices to enter into this type of informal settlement, but if other meritorious allegations cannot be settled, the regional officers are directed to move the litigation forward.  In instances in which the mandatory arbitration agreement contains an opt in/opt out clause or the agreement can be distinguished from the type of agreement in Murphy Oil, the General Counsel’s office has directed the regional offices to hold these cases in abeyance.