Persistence.

The NLRB consistently holds that an agreement requiring arbitration of individual claims (and thus foreclosing class actions) violates federal labor law; the Fifth Circuit consistently reverses the NLRB on this point. After again reversing the NLRB and citing the Circuit’s “rule of orderliness” about deference to prior panel decisions, the Court noted the NLRB’s remarkably candid litigation position: “The Board concedes that this court has squarely rejected both of those decisions, and that our precedents necessitate rejecting its arguments here. The Board further acknowledges that it seeks to manufacture a circuit split in order to ‘facilitate Supreme Court review.'”  Employers Resource v. NLRB, No. 16-60034 (Nov. 1, 2016, unpublished).