Jack in the Box, Inc. v. National Labor Relations Board

Case: 16-60386 Document: 00513794593 Page: 1 Date Filed: 12/13/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit

No. 16-60386 FILED
Summary Calendar December 13, 2016
Lyle W. Cayce
Clerk
JACK IN THE BOX, INCORPORATED,

Petitioner Cross-Respondent

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent Cross-Petitioner

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
NLRB No. 32-CA-145068

Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
In this Petition for Review and Cross-Application for Enforcement of the
Order of the NLRB (“Board”), the parties’ respective summaries of their
arguments set forth in their briefs to this court serve to articulate our
disposition of this matter. The “Summary of the Argument” of Petitioner
Cross-Respondent states:

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
 Case: 16-60386 Document: 00513794593 Page: 2 Date Filed: 12/13/2016

No. 16-60386
The Board’s Decision ignores the Supreme Court’s binding analytical
framework and the precedent of this Court. In at least three cases, along
with a slew of granted summary dispositions, this Court has considered
whether arbitration agreements with class and collective action waivers
are permissible under the NLRA. In all cases, with slight variations, it
has upheld the agreements. See, e.g., D.R. Horton, Inc. v. NLRB,
737 F.3d 344 (5th Cir. 2013); Murphy Oil USA v. NLRB, 808 F.3d 1013
(5th Cir. 2015); Chesapeake Energy Corp. v. NLRB, No. 15-60326,
2016 WL 573705, at 2 (5th Cir. February 12, 2016). This Court has
repeatedly explained that in deciding these cases, the NLRB has failed
to give proper deference to policies favoring arbitration under the FAA.
Moreover, this Court has provided the Board clear guidance on the
boundaries of lawfulness for specific verbiage of those agreements.
Despite this, the Board continues to issue decisions based on its rejected
precedent. In addition, in finding JIB’s confidentiality rule in this case
to be unlawful, the NLRB failed to follow its own precedent and to
consider the actual verbiage of the rule at issue.

As set forth below, the Board erred in its Decision. JIB’s Agreement—
which by the Board’s own words was never alleged to be enforced—
does not violate the NLRA. JIB respectfully requests that its Petition
for Review be granted, and the Board’s Order not be enforced.

The salient concession in the Board’s Decision and Order reads:
The Board has considered the decision and the record in light of
the exceptions and briefs and, based on the judge’s application of
D.R. Horton and Murphy Oil, has decided to affirm the judge’s
rulings, findings, 1 and conclusions as amended, and to adopt the
recommended Order, as modified and set forth in full below . . .

1 The Respondent contends that its Arbitration Agreement includes an exemption
allowing employees to file charges with administrative agencies and thus does not, as in D.R.
Horton, unlawfully prohibit them from collectively pursuing litigation of employment claims
in all forums. We reject this argument for the reasons set forth in SolarCity Corp., 363 NLRB
No. 83, slip op. at 2-4(2015).
In finding the Arbitration Agreement unlawful, we do not rely on Supply Technologies,
LLC, 359 NLRB No. 38 (2012), cited by the judge.
2
 Case: 16-60386 Document: 00513794593 Page: 3 Date Filed: 12/13/2016

No. 16-60386
Given the Board’s candid concession, we GRANT Jack In The Box,
Incorporated’s Petition for Review, REVERSE the Board’s decision adverse to
Jack In The Box, Incorporated, and DENY the Board’s Cross-Application for
Enforcement.

3