Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: May 24, 2023
The Firm
201-896-4100 info@sh-law.comAfter being fired by his employer, Anheuser-Busch Companies, LLC, Matthew Brown filed suit in federal district court alleging that his termination was the result of racial discrimination and retaliation, in violation of Title VII.
In response, Anheuser-Busch filed a motion seeking to compel arbitration of Brown’s district court claims, asserting that at the time when he was hired, Brown had agreed to be bound by the company’s Arbitration Agreement, which required employees to arbitrate any such claims against the company. Brown disagreed that he was required to arbitrate his claims, insisting that he was entitled to have his claims adjudicated via district court proceedings, including a jury trial.
So far, there is nothing out of the ordinary here, procedurally. Specifically, employers typically seek to enforce arbitration agreements to lower costs and time in adjudicating claims. It is also quite typical for an employee to argue that said agreement is unenforceable.
Typically, when such a dispute arises, the court will interpret the at-issue agreement to determine whether the employee can be required to pursue his claims via arbitration instead of through a judicial proceeding.
Here is where it gets interesting. In International Brotherhood of Teamsters Local 947 v. Anheuser-Busch Brewing Properties, LLC, the National Labor Relations Board (“NLRB”) inserted itself into the proceedings, prior to resolution by the district court and ordered the defendant employer to cease and desist any efforts to require arbitration.
While there is precedent for the NLRB to direct persons under its jurisdiction to cease their particular litigation efforts, it is not typically done in this manner. After Anheuser-Busch asked the district court to compel arbitration, Brown filed an unfair labor practice charge with the NLRB, arguing that the defendant employer’s efforts to enforce its arbitration agreement contravened the collective bargaining agreement and constituted a unilateral change to the terms of Brown’s employment, in violation of the National Labor Relations Act (“NLRA”). Pending a determination by the NLRB. The district court action was stayed.
The Administrative Law Judge (“ALJ”) assigned to rule on the charge ordered Anheuser-Busch to withdraw portions of its motion to compel arbitration in the district court litigation. The matter then moved to a review panel of the NLRB. In a split two-one decision, the NLRB dismissed the charge. The Board declined to determine whether Anheuser-Busch’s motion to compel arbitration contravened relevant portions of the NLRA, and thereby constituted an unfair labor practice.
Instead, the Board held that even if Anheuser-Busch’s efforts to compel arbitration were unlawful under the NLRA, the Petition Clause of the First Amendment generally protected its right to give it a try in the district court litigation.
Further, the Board concluded that Anheuser-Busch’s motion to compel arbitration did not meet the exception to a litigant’s First Amendment right to petition that the Supreme Court had carved out in Bill Johnson’s Restaurants, Inc. v. NLRB, which exception permits the Board to enjoin even reasonably-based lawsuits when the latter have “an objective that is illegal under federal law.”
Anheuser-Busch filed an appeal arguing that the ALJ’s order requiring Anheuser-Busch to withdraw its motion to compel arbitration pursuant to the Dispute Resolution Policy violated Anheuser-Busch’s First Amendment Right to Petition.
In a blistering opinion, the Eleventh Circuit reversed the NLRB. 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 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.
The court found that the 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 a result, the court reversed the NLRB and remanded the case to determine whether, in fact, the arbitration agreement violates the NLRA.
This decision explores the intricacies and dichotomies between the First Amendment Petition Clause and the NLRA. The ruling here would essentially chill First Amendment-protected petitioning of the courts, as employers, unions, and employees alike have no clear way to determine whether something as simple as a motion to compel arbitration violates the NLRA. The decision may open the door for the Supreme Court to revisit Bill Johnson’s Restaurant and particularly footnote 5.
The court was extremely critical of the NLRB’s requirement that there must be an additional unlawful underlying act in addition to the litigation itself. The court specifically noted that the NLRB utterly failed to give any examples of what such underlying acts could be.
Employers with union employees will need to thoroughly review the pertinent CBA before going to the courts to attempt to compel arbitration. If your company has any questions concerning agreements to arbitrate, contact us today.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Before buying a New Jersey rental property, an investor should verify realistic operating numbers, the property’s legal and regulatory status, lead-based paint and flood compliance, the existing leases and tenant protections, and the right ownership structure. A rental property is more than a piece of real estate; it is an operating business subject to legal, […]
Author: Donald M. Pepe

In New Jersey, an irrevocable trust can sometimes be modified even though its name suggests otherwise, and one of the primary tools for doing so is a process called decanting. Whether decanting is available depends on the specific terms of the trust and the discretion given to the trustee. Key takeaways: New Jersey has no […]
Author: Marc J. Comer

Intellectual property valuation determines the monetary value of a business’s IP assets, and it drives outcomes in licensing deals, joint ventures, mergers and acquisitions, financing, and ownership disputes. The most valuable assets of a business are often the things that cannot be seen or touched: a proprietary process, a copyrighted work, brand recognition, or the […]
Author: Jay McDaniel

For New Jersey data center owners and operators, a service agreement may look routine when it is signed. The network is functioning, the vendor is meeting its installation schedule, and the parties have agreed on pricing and performance specifications. The provisions that seem most important at that stage are often the technical ones. That changes […]
Author: George McGowan

The Fort Monmouth redevelopment has entered its execution phase, and it is repositioning the broader Monmouth County real estate market. When Netflix and the Fort Monmouth Economic Revitalization Authority closed on the 292-acre Mega Parcel in December 2025, the transaction did more than hand over a deed. It marked the moment Fort Monmouth stopped being […]
Author: Donald M. Pepe

Owning a residential rental property in New Jersey involves more than finding tenants and collecting rent. Property owners must comply with a combination of state laws, municipal ordinances, building and housing codes, and zoning and land use regulations. These requirements can affect everything from the number of dwelling units permitted at a property to whether […]
Author: Donald M. Pepe
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!