IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60386

Summary Calendar 

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.

United States Court of Appeals

Fif h Circuit

FILED

December 13, 2016

Lyle W. Cayce

Clerk

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No. 16-60386

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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.

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No. 16-60386

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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. 

 Case: 16-60386 Document: 00513794593 Page: 3 Date Filed: 12/13/2016