     Case: 17-60368      Document: 00514560897         Page: 1    Date Filed: 07/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-60368                     United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                          July 18, 2018
DISH NETWORK, L.L.C.,
                                                                         Lyle W. Cayce
              Petitioner Cross-Respondent                                     Clerk


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. 27-CA-158916


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       In the order under review, the National Labor Relations Board (Board)
determined that Dish Network, L.L.C. (DISH) violated Section 8(a)(1) of the
National Labor Relations Act, 29 U.S.C. § 157, in three ways. First, the Board
found that DISH maintained an arbitration agreement with exclusivity
requirements a reasonable employee would construe as limiting access to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60368
Board processes. Second, the Board found that the arbitration agreement’s
confidentiality clause unlawfully limited an employee’s ability to discuss terms
and conditions of employment. Third, the Board found that a DISH manager
had orally instructed an employee not to discuss his discipline pending the
company’s investigation and that DISH failed to offer a substantial
justification for that instruction.
      Following DISH’s appeal, however, the Board informed us that it had
overruled precedent relevant to the first two findings. See Boeing Co., 365
N.L.R.B. No. 154, at *16 (2017) (overruling “reasonably construe” standard
from Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004) and
announcing new standard). The new Boeing standard applies retroactively to
all pending cases. Boeing Co. at *17-18. Both DISH and the Board thus agree
remand is necessary as to the first two findings. We accordingly remand those
two findings to the Board. See, e.g., NLRB v. Food Store Emps. Union, Local
347, 417 U.S. 1, 10 n.10 (1974) (explaining “a court reviewing an agency
decision following an intervening change of policy by the agency should
remand”).
      The parties dispute whether Boeing impacts the third finding related to
the oral instruction and therefore disagree about the need to remand that
question. Whether or not Boeing impacts that third finding, however, we
conclude remand is appropriate in the interest of judicial efficiency. See, e.g.,
Grill Concepts Servs., Inc. v. NLRB, 722 F. App’x 1, 2 (D.C. Cir. 2018)
(“Although these determinations are unaffected by the new Boeing test, we
believe it would waste judicial resources to hear and decide them now while,




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                                       No. 17-60368
at the same time, a substantial part of the case is remanded.”). 1 Accordingly,
we also remand the Board’s determination concerning the oral instruction.
       The case is REMANDED in its entirety to the Board for further
consideration. All pending motions are DENIED as moot.




       1We cite our sister circuit’s decision for its persuasive value only. See also D.C. CIR.
R. 32.1(b)(1)(B) (providing that the D.C. Circuit’s “unpublished orders or judgments …
entered on or after January 1, 2002, may be cited as precedent” in that court).
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