Acuity Specialty Products, Inc v. NLRB

Filing

UNPUBLISHED OPINION FILED. [16-60367 Petition for Review is Granted and the Cross-Application for Enforcement is Denied] Judge: EHJ , Judge: EBC , Judge: SAH Mandate pull date is 06/12/2017 [16-60367]

Case: 16-60367

Document: 00513961534

Page: 1

Date Filed: 04/20/2017

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

FILED
No. 16-60367

April 20, 2017
Lyle W. Cayce
Clerk

ACUITY SPECIALTY PRODUCTS, INCORPORATED, doing business as
Zep, Incorporated,
Petitioner Cross-Respondent
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner

Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
NLRB No. 32-CA-75221
NLRB No. 32-CA-102838
Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
A panel of the National Labor Relations Board (Board) declared Acuity
Specialty Products, Inc., d/b/a Zep, Inc.’s (Zep) alternative dispute resolution
policy unlawful because it “requires employees to waive their rights to pursue
class or collective actions involving employment-related claims in all forums,
whether arbitral or judicial,” and could be reasonably construed by employees
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60367
as barring or restricting their right to file unfair labor practice charges with
the Board. Zep petitioned this court for review of the Board’s order. The Board
filed a cross-application for enforcement of its order.
The Board admits that its order directly contravenes our decisions in
D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344 (5th Cir. 2013), and Murphy Oil
USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015). 1 Those decisions hold
that “an employer does not engage in unfair labor practices by maintaining and
enforcing an arbitration agreement prohibiting employee class or collective
actions and requiring employment-related claims to be resolved through
individual arbitration.” Murphy Oil, 808 F.3d at 1016 (citing D.R. Horton,
737 F.3d at 362). Notwithstanding the Board’s request that we reevaluate
those decisions, this court is bound by its prior published opinions. Jacobs v.
Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a wellsettled Fifth Circuit rule of orderliness that one panel of our court may not
overturn another panel’s decision, absent an intervening change in law, such
as by a statutory amendment, or the Supreme Court, or our en banc court.”).
Zep also challenges the Board’s conclusion that the policy violates the
National Labor Relations Act because “employees reasonably would believe
that it bars or restricts their right to file unfair labor practice charges with the
Board.” The agreement states that certain “covered claims” are subject to the
class-waiver provision, and provides a comprehensive list of what qualifies as
a “covered claim.” It explicitly excludes “matters within the jurisdiction of the
National Labor Relations Board” from coverage under the agreement. Further
bolstering the clarity of the exclusion is its location below a section heading

This issue is currently before the Supreme Court, which recently consolidated and
granted certiorari in Murphy Oil and two other cases. See N.L.R.B. v. Murphy Oil USA, Inc.,
137 S. Ct. 809 (2017); Ernst & Young, LLP v. Morris, 137 S. Ct. 809 (2017); Epic Sys. Corp.
v. Lewis, 137 S. Ct. 809 (2017).
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titled, “WHAT IS NOT A COVERED CLAIM?” If there be any doubt, Zep
asserts, and we agree, that this provision does not bar the bringing of unfair
labor practice claims.
Accordingly, Zep’s petition for review of the Board’s order is GRANTED
and the Board’s cross-application for enforcement of its order is DENIED.

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