In the case of Murphy Oil USA, Inc. v NLRB, the Fifth Circuit recently reaffirmed its position allowing class waivers in arbitration agreements, contrary to the NLRB’s position in D.R. Horton. Obviously, given the fact that this same Court of Appeals recently denied enforcement of the Board’s Order in D.R. Horton on this same subject matter most parties were interested as to whether the Court of Appeals would sanction or rebuke the Board for defending the appeal. Surprisingly the Court was extremely gracious, to say the least, saying they neither condemned nor celebrated the Board’s failure to follow the D.R. Horton reasoning.

The real question is whether or not there will be a further rehearing by the panel or an en banc court. Obviously an appeal before this panel probably is not warranted. And placing the case in the hands of an en banc court may put the Board in the position of receiving sanctions. In any event, it is another nail in the coffin with respect to the Board’s position on class waivers. To date, not one Court of Appeals has supported the NLRB’s position on this matter.