Arbitrator and NAA member Lise Gelenter discusses a motion filed by the NLRB asking to be allowed to present oral argument in a case involving Uber and its drivers.
The National Labor Relations Board (NLRB) will have the opportunity on September 20, 2017 to present oral argument in a case involving the rights of Uber drivers (O’Connor v. Uber Technologies, Docket No. No. 15-17420). Uber drivers brought a set of now-consolidated cases that are pending before the Ninth Circuit Court of Appeals in San Francisco in which the drivers argued that they should be allowed to bring a class action against Uber for misclassifying them as independent contractors instead of employees. Uber had argued that the arbitration agreements the drivers had signed waived their rights to bring a class action, but the trial court, the Northern District of California, had found those waivers unenforceable and had certified the class action.
Although the NLRB is not a party in any of the cases, the Ninth Circuit granted its request to orally argue as amicus curiae on behalf of the drivers. In its motion to argue, the NLRB contended that it has “a distinct perspective on the nature and scope of Section 7 and the interplay between the NLRA and federal arbitration policy.” The NLRB had held previously in the cases of D.R. Horton and Murphy Oil that class action waivers could violate Section 7 of the National Labor Relations Act NLRA), which protects employees’ right to engage in concerted activity with respect to the terms and conditions of work. Both those cases are now pending before the United States Supreme Court, with oral argument set for October 2, 2017.
The NLRB also stated that it “takes no position on whether Uber’s drivers are statutorily protected ‘employees’ under Section 2(3) of the NLRA, 29 U.S.C. § 152(3).” However, since only “employees” as defined in the NLRA are entitled to protection for engaging in concerted activity, the importance of the NLRB’s argument depends, in part, on a resolution of the issue that brought the Uber drivers to court in the first place: whether Uber drivers are in fact employees or independent contractors.
An article in Legal Times, NLRB to Argue Against Uber in Key Labor Fight in Ninth Circuit, has some more information about the NLRB’s argument.
The NLRB’s motion to argue before the Ninth Circuit can be found here.
 D.R. Horton, 361 NLRB No. 72, 2014 WL 5465454 (Oct. 28, 2014), enforcement denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), cert. granted, No. 16-307 (Jan. 13, 2017);Murphy Oil, 357 NLRB 2277 (2012), enforcement denied in relevant part, 737 F.3d 344 (5th Cir. 2013).