by Phil Wilson
Do you prefer checkers or chess?
I much prefer chess. Last weekend I played in my first “over the board” chess tournament. As my kid told one of my friends, “Dad somehow figured out a way to become an even bigger nerd.” Ouch. If you’ve never played in a chess tournament it can be intimidating at first. One of the players in our tournament holds the world record for playing chess blindfolded (he played 48 people at one time and won 35 of the games). I am basically playing blindfolded when my eyes are open! You have players of all ages and skill levels. I got killed by a 10-year old and am embarrassed by how good I felt beating an 8-year old. I’m sure that kid will crush me when he’s 9. The main thing I’ve learned since I started playing chess more seriously is how much it disciplines your thinking. It mostly does this by crushing your soul at your first wrong move. It requires you to think much more carefully than a game like checkers. There is some strategy in checkers, but it’s pretty straightforward. There are tactics in checkers, but they pale in comparison to the tactics you have to watch for in chess. 
Chess requires you to think strategically and tactically. You must anticipate your opponent’s next move. Calculate every possible outcome and react to the unexpected. It reminds me a LOT of labor law. Take the Supreme Court case this week in Murphy Oil. In a highly anticipated 5-4 decision, the Supreme Court ruled that class action waivers in pre-dispute arbitration agreements are valid and enforceable. They overruled the NLRB’s D.R. Horton decision which held that class-action waivers are protected concerted activity under the NLRA. The Court stated, “the law is clear: Congress has instructed that arbitration agreements… must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA—much less that it manifested a clear intention to displace the Arbitration Act.” It’s this last part of the decision that reminds me that this is not a checkers game. It’s chess. In 2012 when the Board issued its D.R. Horton decision it was clear that this was a huge departure. Few predicted that this huge blow to arbitration agreements would stand up to challenge. Fast forward 6 years. They ultimately got 3 Circuit Courts to side with them (along with 4 Supreme Court justices). In other words, this case was a razor-thin close as you can get. The idea that class action waivers can be protected concerted activity no longer seems outrageous. And this is just the beginning. Re-read that quote from Murphy Oil. The Supreme Court has already telegraphed the next move to unions (and the legislators they fund and help get elected). Amend the FAA or the NLRA (or both) to overrule Murphy Oil. That’s the next move. And Murphy Oil didn’t happen in a vacuum. There are a number of other areas where the Obama-era Board (not to mention the Department of Labor) pushed the envelope on things like the definition of “employee” and the validity of the franchise business model. These cases continue to wind their way through the courts. And while the traditional definitions may win out in these future Supreme Court cases, the chess match will continue in the other branches of the federal government. Move, counter-move. Looking multiple steps ahead. Don’t get me wrong. Over the next few months we will see a number of very positive Supreme Court decisions for employers. And these will remain the law of the land for some time. But the big picture, at least to me, is a lot murkier. Sometimes a chess move looks really good, right up until it doesn’t. And then it’s too late.
