LOGISTICARE SOLUTIONS, INCORPORATED, Petitioner Cross-Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge.
Solutions, Incorporated, requires its employees and
applicants for employment to sign a class or collective
action waiver by which the employee or applicant waives any
right to be a representative for, or member of, a class or
collective action lawsuit against LogistiCare. An
Administrative Law Judge and a three-member panel of the
National Labor Relations Board concluded that the waiver
violates Section 8(a)(1) of the National Labor Relations Act.
Because we conclude, under our binding precedent, that the
waiver does not violate Section 8(a)(1) explicitly, and
because we conclude that the waiver cannot otherwise be
reasonably understood to violate the Act, we GRANT
LogistiCare's petition for review and DENY the
Board's cross-petition for enforcement.
requires its employees and applicants for employment to sign
a "Class Action and Collective Action Waiver" in
order to be eligible for employment. The waiver provides:
Action and Collective Action Waiver
Class and Collective action lawsuits have been abused
recently by trial lawyers forcing American Companies to pay
large settlements, not because the cases have merit or
because the Company violated any laws, but because the suits
are too expensive to litigate and the company is left with no
reasonable alternative. Class and Collective action suits
primarily benefit the trial lawyers and rarely accomplish any
other objective. There are more effective ways to protect
your individual employment related rights than through a
Class or Collective action law suit. Your signature on this
document indicates that you agree to waive any right you may
have to be a member of a Class or Collective action lawsuit
or a representative of a Class or Collective action lawsuit
against the Company.
I hereby acknowledge and understand that as a condition of my
employment:  I am waiving my right to have a trial by jury
to resolve any lawsuit related to my application or
employment with the Company;  I am waiving my right to
participate as a member of a Class or Collective action
lawsuit and/or serve as a class representative of similarly
situated employees in any lawsuit against the
applicant who signed the waiver brought an
unfair-labor-practice charge with the National Labor
Relations Board. The Board in turn brought a complaint
alleging that LogistiCare violated Section 8(a)(1) of the
National Labor Relations Act, 29 U.S.C. § 158(a)(1)
(NLRA or Act), by requiring employees and applicants to sign
the waiver. In particular, the Board alleged that: (1) the
waiver's prohibition on engaging in class or collective
litigation violates Section 8(a)(1) of the NLRA by infringing
rights protected by Section 7 of the Act; and (2) the waiver
independently violates Section 8(a)(1) because employees
would reasonably interpret the waiver to restrict their right
to file charges with the Board.
dispute was first heard by an Administrative Law Judge, who
accepted both of the Board's grounds for finding a
Section 8(a)(1) violation. In a two-to-one decision, a
three-member panel of the Board affirmed the ALJ's order.
The Board first concluded that Section 7 of the Act
guarantees employees the right to participate in class or
collective actions. In so doing, it distinguished our
decisions in D.R. Horton, Inc. v. NLRB, 737 F.3d 344
(5th Cir. 2013) and Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015) because the waivers in those
cases were contained within arbitration agreements, which are
governed by the Federal Arbitration Act, 9 U.S.C. § 1,
et seq. Rather than relying on these cases, the
Board looked to its own decision in Convergys
Corporation, et al., 363 NLRB No. 51
(2015). The Board next concluded
that the waiver is "independently unlawful" because
"employees would reasonably read the rule as restricting
their right to file unfair labor practice charges with the
Board." Member Miscimarra dissented on both issues.
found two Section 8(a)(1) violations, the Board ordered
LogistiCare to cease and desist from the unlawful conduct and
to take steps to notify all applicants and current employees
that the waiver was no longer enforceable. LogistiCare
petitioned for review of the Board's order and the Board
cross-petitioned for enforcement.
review the Board's factual findings under a substantial
evidence standard. Flex Frac Logistics, L.L.C. v.
NLRB, 746 F.3d 205, 207 (5th Cir. 2014) (quoting
Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422,
428 (5th Cir. 2008)). Substantial evidence is such relevant
evidence "sufficient for a reasonable mind to accept as
adequate to support [the] conclusion"; it is "more
than a mere scintilla and less than a preponderance."
Id. (alteration omitted). While we review the
Board's legal conclusions de novo, we will
"enforce the Board's order if its construction of
the statute ...