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<xTITLE>Fifth Circuit Again Rejects NLRB’s Position on Class Action Waivers in Arbitral Agreements</xTITLE>

Fifth Circuit Again Rejects NLRB’s Position on Class Action Waivers in Arbitral Agreements

by Beth Graham
August 2016

Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes

Beth Graham

The United States Court of Appeals for the Fifth Circuit has once again rejected a National Labor Relations Board’s (“NLRB”) order stating a class action waiver included in an agreement to arbitrate violates the National Labor Relations Act (NLRA).  In Citi Trends Inc. v. NLRB, No. 15-60913 (5th Cir. August 10, 2015), a formerCiti Trends employee filed an unfair labor-practices charge against the company over the terms included in its mandatory arbitration agreement.  An administrative law judge ruled that Citi Trends violated the NLRA and the NLRB later affirmed the judge’s decision.

On appeal to the Fifth Circuit, Citi Trends claimed the court’s existing precedent overruled the NLRB’s order.  In a brief per curiam opinion, the appellate court agreed with Citi Trends.  The court stated:

The Board concedes, as it must, that its order contravenes our published decisions in D.R. Horton, Inc. v. NLRB and Murphy Oil USA, Inc. v. NLRB, which hold that “an employer does not engage in unfair labor practices by maintaining and enforcing an arbitration agreement prohibiting employee class or collective actions and requiring employment-related claims to be resolved through individual arbitration.” Although the Board asks us to reconsider our holdings in D.R. Horton and Murphy Oil, this Court is bound by its prior published decisions.

Ultimately, the nation’s Fifth Circuit Court of Appeals granted Citi Trends’ petition for review of the NLRB’s order and denied the NLRB’s cross-application for enforcement of the order.

Interestingly, the Seventh Circuit sided with the NLRB in a similar case earlier this year.  Due to the current splitamong the circuit courts, it is likely only a matter of time before the issue of class waivers included in an employer’s arbitration agreement is appealed to the Supreme Court of the United States.


Beth Graham received a J.D. from the University of Nebraska College of Law in 2004 and a M.A. in Information Science and Learning Technologies from the University of Missouri in 2006. She also holds a B.S. in Public Administration from the University of Nebraska-Omaha. She is licensed to practice law in Texas and the District of Columbia.

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