By:  Ronald J. Kramer, Esq.

Earlier today, April 16, 2014, the Fifth Circuit Court of Appeals denied the NLRB’s petition for rehearing en banc in D.R. Horton v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013).  D.R. Horton is the decision in which the Fifth Circuit reversed the NLRB’s determination (357 NLRB No. 184) that employers could not enter into employment agreements in which employees waived their right to engage in class action lawsuits.  The Court treated the Board’s petition both as a petition for a panel rehearing and as a petition for rehearing en banc.  Both petitions were denied.  If the Board wishes to continue to contest this decision, its next step will be to file a petition for certiorari to the U.S. Supreme Court.

While some may expect the Board to petition the Supreme Court, it may decide to pass for now.  The Fifth Circuit’s decision is only the law of D.R. Horton. Technically it is not binding as to other pending Board cases on this issue.  Absent a Supreme Court ruling, the Board and its administrative law judges have expressed their willingness to apply the Board’s original  D.R. Horton decision.  The Board may wish to try its luck in front of another Circuit Court to obtain a more favorable ruling and a circuit split before it petitions the Supreme Court.  NLRB, it’s your move.