The Eleventh Circuit Court of Appeals recently issued a decision that is highly critical of the NLRB, yet its end result promises significant mischief when it comes to employment litigation. International Brotherhood of Teamsters Local 947 v. Anheuser-Busch Brewing Properties, LLC. Don't get us wrong--we love a good bench-slap of the NLRB. But this case is problematic to say the least.

To oversimplify the incredibly tortuous proceedings in this case, Brown was an employee at Anheuser-Busch ("AB") when he was disciplined and subsequently discharged. Brown separately filed union grievances, an EEOC charge, and a Title VII lawsuit. AB defended the Title VII lawsuit by moving to compel Brown to arbitrate the claim under the terms of an onboarding document he signed pre-employment. Brown then ran to the NLRB and filed an unfair labor practice charge, claiming that AB's motion to compel arbitration of the Title VII claim violated the NLRA because it sought to enforce an arbitration agreement (the onboarding document) that was not bargained for through Brown's union. An Administrative Law Judge found in favor of Brown and ordered AB to withdraw portions of its arbitration motion in the Title VII lawsuit. A majority panel of the Trump-era NLRB overturned the decision on appeal. It reasoned that AB's motion to compel was protected by the Petition Clause of the First Amendment, which protects the right to access the courts, among other things. The NLRB essentially held that a court filing, by itself, is always protected by the First Amendment's Petition Clause, even if the filing is in furtherance of an illegal objective. The NLRB held that, to find that a court filing violates the NLRA and loses First Amendment protection, the filing must be accompanied by proof of some independent, unlawful act that itself violates the NLRA. The NLRB found no such act in this case, as there was no evidence suggesting that AB filed the arbitration motion for an unlawful reason.

The Eleventh Circuit reversed the NLRB in a blistering, overly-long, 49-page opinion. The opinion turns largely on the meaning of a footnote in a 1983 Supreme Court decision that originated in Arizona, Bill Johnson's Restaurants, Inc. v. NLRB. The Court of Appeals held, instead, that a court filing may lose its First Amendment protections and violate the NLRA when the filing has "an objective that is illegal under federal law," which is precisely the standard established in Bill Johnson's Restaurant case. But the court found that AB's motion to compel arbitration in this instance potentially had an objective that was, itself, illegal because it sought to enforce an arbitration agreement that itself might turn out to be a violation of the NLRA, as Brown alleged in his unfair labor practice charge. As a result, the court reversed the NLRB and remanded the case to determine whether, in fact, the arbitration agreement violates the NLRA. If it does, then the NLRB is required to order AB to withdraw the motion or the parts of the motion that supposedly offend the NLRA.

This decision seeks to answer what happens when the First Amendment Petition Clause intersects with the NLRA and what that means in the context of our very strong federal policy favoring arbitration. Unfortunately, the Eleventh Circuit made little or no mention of the latter. More unfortunately, the court seemed to de-emphasize the Constitutional significance of the Petition Clause. And in doing so, it appears to have created (or by its reasoning, restored) a rule that is tautological in its reasoning -- a court filing whose objective is unlawful loses First Amendment protection and potentially violates the NLRA when the court filing violates the NLRA. The predictable result of this decision is to chill First Amendment-protected petitioning of the courts, as employers, unions, and employees alike have to guess whether something as simple as a motion to compel arbitration violates the NLRA. This seems to put the NLRA cart well before the First Amendment horse. And, the decision may open the door for the Supreme Court to revisit its decision in Bill Johnson's Restaurant and particularly footnote 5 of the decision. Stay tuned.

Yet, the Board’s gloss on this standard—requiring an additional unlawful underlying act in addition to the litigation itself—appears to create an empty set. As noted, we are unclear what example the Board might proffer as an example of litigation that would meet its new standard. In short, we conclude that the Board erred when it injected this new “underlying act” requirement into the inquiry whether Anheuser-Busch’s motion to compel arbitration constituted litigation with an unlawful objective.

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