Murphy Oil USA, Inc. v. Nat'l Labor Relations Bd., 14–60800.

Citation808 F.3d 1013
Decision Date26 October 2015
Docket NumberNo. 14–60800.,14–60800.
Parties MURPHY OIL USA, INCORPORATED, Petitioner/Cross–Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

808 F.3d 1013

MURPHY OIL USA, INCORPORATED, Petitioner/Cross–Respondent
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.

No. 14–60800.

United States Court of Appeals, Fifth Circuit.

Oct. 26, 2015.


808 F.3d 1015

Jeffrey A. Schwartz (argued), Jackson Lewis, P.C., Atlanta, GA, Daniel D. Schudroff, Jackson Lewis, P.C., New York, N.Y., for Petitioner/Cross–Respondent.

Linda Dreeben, Esq., Deputy Associate General Counsel, Jeffrey William Burritt, Esq. (argued), Kira Dellinger Vol, National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, for Respondent/Cross–Petitioner.

Richard Paul Rouco, Glen M. Connor, Quinn, Connor, Weaver, Davies & Roucco, Birmingham, AL, for Intervenor, Sheila Hobson.

Hal K. Gillespie, Gillespie Sanford, L.L.P., Dallas, TX, for Amicus Curiae, Labor law Scholars.

On Petitions for Review of an Order of the National Labor Relations Board.

Before JONES, SMITH, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

The National Labor Relations Board concluded that Murphy Oil USA, Inc., had unlawfully required employees at its Alabama facility to sign an arbitration agreement waiving their right to pursue class and collective actions. Murphy Oil, aware that this circuit had already held to the contrary, used the broad venue rights governing the review of Board orders to file its petition with this circuit. The Board, also aware, moved for en banc review in order to allow arguments that the prior decision should be overturned. Having failed in that motion and having the case instead heard by a three-judge panel, the Board will not be surprised that we adhere, as we must, to our prior ruling. We GRANT Murphy Oil's petition, and hold that the corporation did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court.

We DENY Murphy Oil's petition insofar as the Board's order directed the corporation to clarify language in its arbitration agreement applicable to employees hired prior to March 2012 to ensure they understand they are not barred from filing charges with the Board.

FACTS AND PROCEDURAL BACKGROUND

Murphy Oil USA, Inc., operates retail gas stations in several states. Sheila Hobson, the charging party, began working for Murphy Oil at its Calera, Alabama facility in November 2008. She signed a "Binding Arbitration Agreement and Waiver of Jury Trial" (the "Arbitration Agreement"). The Arbitration Agreement provides that, "[e]xcluding claims which must, by ... law, be resolved in other forums, [Murphy Oil] and Individual agree to resolve any and all disputes or claims ... which relate ... to Individual's employment ... by binding arbitration." The Arbitration Agreement further requires employees to waive the right to pursue class or collective claims in an arbitral or judicial forum.

In June 2010, Hobson and three other employees filed a collective action against Murphy Oil in the United States District Court for the Northern District of Alabama alleging violations of the Fair Labor Standards Act ("FLSA"). Murphy Oil moved to dismiss the collective action and compel individual arbitration pursuant to the Arbitration Agreement. The employees opposed the motion, contending that the FLSA prevented enforcement of the Arbitration Agreement because that statute grants a substantive right to collective action that cannot be waived. The employees also argued that the Arbitration Agreement interfered with their right under the National Labor Relations Act

808 F.3d 1016

("NLRA") to engage in Section 7 protected concerted activity.

While Murphy Oil's motion to dismiss was pending, Hobson filed an unfair labor charge with the Board in January 2011 based on the claim that the Arbitration Agreement interfered with her Section 7 rights under the NLRA. The General Counsel for the Board issued a complaint and notice of hearing to Murphy Oil in March 2011.

In a separate case of first impression, the Board held in January 2012 that an employer violates Section 8(a)(1) of the NLRA by requiring employees to sign an arbitration agreement waiving their right to pursue class and collective claims in all forums. D.R. Horton, Inc., 357 N.L.R.B. 184 (2012). The Board concluded that such agreements restrict employees' Section 7 right to engage in protected concerted activity in violation of Section 8(a)(1). Id. The Board also held that employees could reasonably construe the language in the D.R. Horton arbitration agreement to preclude employees from filing an unfair labor practice charge, which also violates Section 8(a)(1). Id. at *2, *18.

Following the Board's decision in D.R. Horton, Murphy Oil implemented a "Revised Arbitration Agreement" for all employees hired after March 2012. The revision provided that employees were not barred from "participating in proceedings to adjudicate unfair labor practice[ ] charges before the" Board. Because Hobson and the other employees involved in the Alabama lawsuit were hired before March 2012, the revision did not apply to them.

In September 2012, the Alabama district court stayed the FLSA collective action and compelled the employees to submit their claims to arbitration pursuant to the Arbitration Agreement.1 One month later, the General Counsel amended the complaint before the Board stemming from Hobson's charge to allege that Murphy Oil's motion to dismiss and compel arbitration in the Alabama lawsuit violated Section 8(a)(1) of the NLRA.

Meanwhile, the petition for review of the Board's decision in D.R. Horton was making its way to this court. In December 2013, we rejected the Board's analysis of arbitration agreements. D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir.2013). We held: (1) the NLRA does not contain a "congressional command overriding" the Federal Arbitration Act ("FAA");2 and (2) "use of class action procedures ... is not a substantive right" under Section 7 of the NLRA. Id. at 357, 360–62. This holding means 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. Id. at 362.

In analyzing the specific arbitration agreement at issue in D.R. Horton, however, we held that its language could be "misconstrued" as prohibiting employees from filing an unfair labor practice charge,

808 F.3d 1017

which would violate Section 8(a)(1). Id. at 364. We enforced the Board's order requiring the employer to clarify the agreement. Id. The Board petitioned for rehearing en banc, which was denied without a poll in April 2014.

The Board's decision as to Murphy Oil was issued in October 2014, ten months after our initial D.R. Horton decision and six months after rehearing was denied. The Board, unpersuaded by our analysis, reaffirmed its D.R. Horton decision. It held that Murphy Oil violated Section 8(a)(1) by "requiring its employees to agree to resolve all employment-related claims through individual arbitration, and by taking steps to enforce the unlawful agreements in [f]ederal district court." The Board also held that both the Arbitration Agreement and Revised Arbitration Agreement were unlawful because employees would reasonably construe them to prohibit filing Board charges.

The Board ordered numerous remedies. Murphy Oil was required to rescind or revise the Arbitration and Revised Arbitration agreements, send notification of the rescission or revision to signatories and to the Alabama district court, post a notice regarding the violation at its facilities, reimburse the employees' attorneys' fees incurred in opposing the company's motion to dismiss and compel arbitration in the Alabama litigation, and file a sworn declaration outlining the steps it had taken to comply with the Board order.

Murphy Oil timely petitioned this court for review of the Board decision.

DISCUSSION

Board decisions that are "reasonable and supported by substantial evidence on the record considered as a whole" are upheld. Strand Theatre of Shreveport Corp. v. NLRB, 493 F.3d 515, 518 (5th Cir.2007) (citation and quotation marks omitted); see also 29 U.S.C. § 160(e). "Substantial evidence is such relevant evidence as a reasonable mind would accept to support a conclusion." J. Vallery Elec., Inc. v. NLRB, 337 F.3d 446, 450 (5th Cir.2003) (citation and quotation marks omitted). This court reviews the Board's legal conclusions de novo, but "[w]e will enforce the Board's order if its construction of the statute is reasonably defensible." Strand Theatre, 493 F.3d at 518 (citation and quotation marks omitted).

I. Statute of Limitations and Collateral Estoppel

Murphy Oil asserts that Hobson filed her charge too late after the execution of the Arbitration Agreement and the submission of Murphy Oil's motion to compel in the Alabama litigation. By statute, "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board." 29 U.S.C. § 160(b). Murphy Oil also contends...

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