IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60856 

Summary Calendar 

CITIGROUP TECHNOLOGY, INCORPORATED; CITICORP BANKING 

CORPORATION, (parent) a subsidiary of Citigroup, Incorporated, 

Petitioners Cross-Respondents 

v. 

NATIONAL LABOR RELATIONS BOARD, 

Respondent Cross-Petitioner 

On Petitions for Review and Cross-Application 

for Enforcement of an Order of the 

National Labor Relations Board 

NLRB No. 12-CA-130742

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 

 

* 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.

United States Court of Appeals

Fif h Circuit

FILED

December 8, 2016

Lyle W. Cayce

Clerk

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disposition of this matter. The “Summary of the Argument” of Petitioners 

Cross-Respondents (collectively “Citigroup”) states: 

 In D.R. Horton Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) 

and Murphy Oil, USA v. NLRB, 808 F.3d 1013 (5th Cir. 2015), 

petition for rehearing en banc denied (5th Cir. No. 14-60800, May 

13, 2015), petition for writ of certiorari filed September 9, 2016, 

this Court found that the Board erroneously held that an employer 

violates the NLRA by requiring employees to sign an arbitration 

agreement containing collective/class action waivers. Relying upon 

controlling United States Supreme Court precedent, this Court 

explained that the Board’s decision failed to afford proper 

deference to the policies favoring arbitration pursuant to the FAA. 

In defiance of this Court’s clear directive in both of these cases, the 

Board has issued decisions reaffirming the erroneous legal 

conclusions that the Board reached in D.R. Horton and Murphy 

Oil, USA. 

 Contrary to the Board’s erroneous Decision and Order in the 

instant case, the EAP does not violate the Act. Through this 

Petition for Review, Citigroup is not asking this Court to address 

a typical unfair labor practice case that can be decided in a vacuum 

of Board precedent. Rather, Citigroup asks that this Court 

continue to apply its own precedent, which is binding on the Board 

here, on issues which Congress has chosen to regulate through 

another statute, namely, the FAA. Four recent decisions of the 

United States Supreme Court have established the broad

preemptive sweep of the FAA. These decisions by the High Court 

mandate that arbitration agreements be enforced according to 

their terms, and they reject the application of other state and 

federal statutes to arbitration agreements in the absence of an 

express “congressional command” to override the FAA. 

Additionally, contrary to the Board’s erroneous conclusions, the 

contractual defenses enumerated in the FAA’s saving clause are 

inapplicable to the instant matter and cannot be used to validate 

the Board’s erroneous position in Citigroup. 

In addition, the Board erred in failing to find this matter to 

be untimely, as it was clearly filed outside the six-month statute of 

limitations established by Section 10(b) of the Act. Additionally, 

the Board erred in concluding Smith was engaged in protected 

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concerted activity when she joined the demand for arbitration in 

the instant case. 

 The salient concession in the Board’s “Summary of Argument” reads: 

The Board also acknowledges that [the D.R. Horton and 

Murphy Oil] cases are dispositive of the issue on review and 

currently preclude enforcement of the Board’s Order. 

Nevertheless, the Board seeks to preserve the issue in the event of 

possible en banc or Supreme Court review.

Given the Board’s candid – and greatly appreciated – concession, we 

GRANT Citigroup’s Petition for Review, REVERSE the Board’s decision 

adverse to Citigroup, and DENY the Board’s Cross-Application for 

Enforcement. 

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