U.S. Court of Appeals for the Fifth Circuit

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Fifth Circuit issues split decision regarding NLRB anti-arbitration holding

December 03, 2013

In a split decision, the Fifth Circuit granted D.R. Horton's petition for review and set aside the holding by the NLRB on class action waivers.

U.S. Chamber challenges NLRB's anti-arbitration decision

June 12, 2012

The U.S. Chamber urged the U.S. Court of Appeals for the Fifth Circuit to hold that the NLRB exceeded its authority under the National Labor Relations Act (“NLRA”) when it prohibited all class action waivers contained in arbitration agreements, and that the NRLB's decision conflicts with the pro-arbitration policies reflected in the Federal Arbitration Act (“FAA”) and U.S. Supreme Court precedent, including AT&T Mobility v. Concepcion. According to the Chamber’s amicus brief, under the FAA, all arbitration agreements must be enforced “according to their terms” absent a “contrary congressional command,” and the NLRA does not include such a command. The Chamber warned that the Board's order, if left to stand, would have the practical effect of eliminating employment arbitration as a fast, fair, and efficient alternative to costly litigation, to the detriment of employers and employees alike.

NCLC amicus brief filed 6/13/12. 28(j) letter regarding Noel Canning decision filed 1/29/13. Petitioner's supplemental letter brief filed 2/22/13. Respondent's supplemental letter brief filed 2/22/13. SEIU motion to file amicus brief filed 2/22/13. Motion to reconsider permission for SEIU to file amicus filed 2/26/13. 28(j) in re to NLRB v. New Vista filed 5/16/13. Response letter filed 6/10/13. 28(j) letter in re American Express v. Italian Colors Restaurant filed 6/24/13. Response filed 6/25/13. 28(j) letter filed 8/16/13. Decided 12/2/13.

Petition for rehearing filed 3/13/2014; denied 4/16/2014.

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