Case: 16-60034      Document: 00513741822         Page: 1    Date Filed: 11/01/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                      No. 16-60034
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                            November 1, 2016

EMPLOYERS RESOURCE,                                                           Lyle W. Cayce
                                                                                   Clerk
               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


Before CLEMENT, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Employers Resource (“Employers”) is a company that provides payroll
and other personnel services to businesses. Employers required new clients to
complete an enrollment packet. One form within the packet was an
“Employment Agreement,” which included an arbitration provision requiring
that clients’ employees submit “any claim” against Employers for adjudication
“exclusively by binding arbitration.” Talina Torres (“Torres”), an employee of
one of Employers’ clients, filed a class-action wage and hour suit in California


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 16-60034
state court against Employers and others. Employers moved to compel
individual arbitration of Torres’ suit, contending that the arbitration provision
of the Employment Agreement did not cognize class arbitration. The state
court granted the motion and dismissed the case against Employers.
       Based on a charge Torres filed, the National Labor Relations Board’s
(“Board”) General Counsel issued a complaint alleging that Employers had
violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §
158(a)(1). An administrative law judge (“ALJ”) agreed, holding that an
arbitration provision mandating individual arbitration—and therefore
effectively foreclosing class-action in any forum—violates Section 8(a)(1).
Relying on its own precedent, a panel of the Board affirmed the ALJ’s unfair-
labor-practice finding.
                                   *      *       *
       In affirming the ALJ, the Board relied on its decisions in D.R. Horton,
Inc., 357 N.L.R.B. 2277 (2012), enforcement denied in relevant part, 737 F.3d
344 (5th Cir. 2013), petition for reh’g en banc denied, 5th Cir. No. 12-60031
(April 16, 2014), and Murphy Oil USA, Inc., 361 N.L.R.B. No. 72, 2014 WL
5465454 (Oct. 28, 2014), enforcement denied in relevant part, 808 F.3d 1013
(5th Cir. 2015), petition for reh’g en banc denied, 5th Cir. No. 14-60800 (May
13, 2016). The Board concedes that this court has squarely rejected both of
those decisions, and that our precedents necessitate rejecting its arguments
here. The Board further acknowledges that it seeks to manufacture a circuit
split in order to “facilitate Supreme Court review.” 1



       1  We held in D.R. Horton and Murphy Oil that the Federal Arbitration Act (“FAA”)
mandates enforcement of arbitration provisions such as the one at issue here. Some of our
sister circuits have recently disagreed. See Morris v. Ernst & Young, LLP, No. 13-16599, 2016
WL 4433080 (9th Cir. Aug. 22, 2016); Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1157-60 (7th
Cir. 2016); see also Patterson v. Raymours Furniture Co., No. 15-2820-cv, 2016 WL 4598542,
at *2 (2d Cir. Sep. 2, 2016) (concluding that Second Circuit precedent necessitated holding
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                                    No. 16-60034
      “It is a well-settled Fifth Circuit rule of orderliness that one panel of our
court may not overturn another panel’s decision, absent an intervening change
in the law, such as by a statutory amendment, or the Supreme Court, or our
en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th
Cir. 2008). The Board concedes that no such intervening change in the law has
occurred since our decisions in D.R. Horton and Murphy Oil. Consequently,
Employers’ Petition for Review is GRANTED. The Board’s Cross-Application
for Enforcement is DENIED.




that the FAA requires enforcement, but noting that, if the panel were “writing on a clean
slate, [it] might be persuaded . . . to join the Seventh and Ninth Circuits”).
                                           3