     Case: 15-60856      Document: 00513789282         Page: 1    Date Filed: 12/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fif h Circuit

                                                                                    FILED
                                                                               December 8, 2016
                                    No. 15-60856
                                  Summary Calendar                               Lyle W. Cayce
                                                                                      Clerk



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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-60856
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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                               No. 15-60856
     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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