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Cutting Arbitration Classes: Facing Court Defeats on Workplace Waivers, the NLRB Refuses To Back Down

Employment ADR

By Russ BleemerJanuary 2016 | Print

If 2015's final quarter is viewed as a leading indicator, the New Year's ADR landscape will be dominated by legal brawling over mandatory class-action waivers in employment arbitration. And the current battles put the issue closer to a conclusive U.S. Supreme Court decision on whether employers can force workers to agree to forego class actions in court or arbitration as a condition of taking their jobs.

The National Labor Relations Board, an independent federal agency that oversees workplace conduct by enforcing the National Labor Relations Act, 29 U.S.C. §§ 151-169 (available at http://1.usa.gov/1m0Cke5), got aggressive in defense of its four-year-old position banning the waivers.

Having seen the Fifth U.S. Circuit Court of Appeals overturn its 2012 D.R. Horton decision that barred mandatory pre-employment agreements requiring workplace disputes to be arbitrated individually, and under which employees were forced to waive class actions, the NLRB doubled down.

It rejected the Fifth Circuit's reasoning in issuing another Board decision, Murphy Oil USA Inc., and backed its original D.R. Horton interpretation. The Fifth Circuit fired back by sticking to its position, and overturned Murphy Oil on Oct. 26. (Cites and links to PDF downloads of the Board decisions and the full Fifth Circuit opinions appear in the accompanying box on page 13.)

Getting swatted down again in the Fifth Circuit couldn't have been a surprise to the NLRB. The agency was ready. Its actions last year appear to have revealed a Board strategy to get to the nation's top court for final vindication of its position, and end the controversy over the relationship between class waivers and arbitration in the workplace.

The NLRB was a party in the Fifth Circuit cases, and could have filed a petition for certiorari with the U.S. Supreme Court to have those decisions overturned. It chose not to do so in D.R. Horton, and has asked for an en banc rehearing before the full circuit court in Murphy Oil.

Still, a bigger plan appears to be in place. First, in early November, a week after the Fifth Circuit rejected the Board's Murphy Oil decision, the NLRB filed its first amicus brief backing its original reasoning in Murphy Oil, derived from D.R. Horton, in another employment arbitration class waiver case.

The case, Morris v. Ernst & Young LLP, No. 13-16599, in the Ninth U.S. Circuit Court of Appeals in San Francisco, may be the one the Board rides to a Supreme Court hearing.

But that's not all. Suddenly, last month, the NLRB issued two more decisions on the first day of December, striking arbitration agreements with class action waivers. Those cases come from Tampa, Fla., and Denver, and bring at least the potential of court challenges by the employers affected in new federal circuit courts.

The two cases were just the tip of the iceberg. Before 2015 closed, the NLRB had issued at least 16 more decisions on the same subject, all finding against employers' ADR and/or class waiver practices. The new NLRB decisions strongly reassert the Board's Murphy Oil and D.R. Horton decisions, and attack the Fifth Circuit's rejection.

The effect of the back and forth is that the Fifth Circuit set down the law—mandatory class waivers are fine and individual arbitrations are enforceable for employment disputes—in its jurisdiction, while the NLRB continues to have the power to interpret the NLRA as it sees fit. The Fifth Circuit is based in New Orleans and covers Louisiana, Mississippi, and Texas.

The Morris amicus brief used the NLRB's decisions in D.R. Horton and Murphy Oil to ask the appeals court to rule on behalf of a white-collar plaintiff who wanted to join with other executives to file a class suit, and distinguishes the reasoning of the Fifth Circuit and another court that has rejected the Board's position.

The rights of collective action under the NLRA address far more than union workplaces. The law applies to most employees. Exclusions include government workers, agricultural laborers, independent contractors, and most supervisors. Like Morris, the original D.R. Horton case also involved office workers.

Noting in its Morris amicus brief that the NLRB was making the filing because two more waiver cases in addition to Morris were on the Ninth Circuit's docket and its position needed to be defended, the NLRB argued that forcing employees to reject collective efforts in the form of a class action was a violation of the protected activity set out by NLRA Sections 7 and 8 at 29 U.S.C. § 157-158.

It has become the NLRB's recurring argument: The ability to act collectively and not be forced into individual arbitrations is a substantive right under the NLRA.

PLOTTING REVIEW

There was far more than a turf battle between the FAA and the NLRA going on at the November Morris oral argument in San Francisco. Practitioners on both sides of the employment arbitration controversy say that with the filing, the NLRB appears to be picking and choosing its spots in an effort to bring the best case forward for the Supreme Court's review.

“It seems the Board is really pressing to find some federal court—somewhere—to agree with it,” noted Ron Chapman Jr., a shareholder in the Dallas office of Ogletree, Deakins, Nash, Smoak & Stewart, who led the legal team that overturned that first NLRB decision in this area, D.R. Horton. “So far,” he adds, “the Board isn't having any success, but that's not stopping it from trying.”

The tactics show that “it's simply very clear that the National Labor Relations Board has made a decision that they know that they are right,” says plaintiffs' side employment litigator Cliff Palefsky, of San Francisco's McGuinn, Hillsman & Palefsky.

He explains that the federal agency believes it is correct “both about the scope of the NLRA and the fact that there is no preemption issue here in light of the [Federal Arbitration Act 9 U.S.C. § 2] Savings Clause.”

Palefsky's pivotal points on the reach of both the NLRA and the FAA are deeper details out of what is basically a straightforward NLRB argument that banning class processes violates the National Labor Relations Act. Under the reasoning first presented in D.R. Horton, the Board found that the NLRA protects collective action under Section 7, and a restriction on it violates the act in Section 8.

Section 7 gives workers “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Section 8(a)(1) makes it “an unfair labor practice for an employer … to interfere with, restrain, or coerce employees in the exercise” of their Section 7 rights.

The Board says that the D.R. Horton and Murphy Oil holdings co-exist with arbitration because of the FAA's Savings clause. That clause says that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

The NLRB's recent Morrisamicus brief analyzes the Board decisions to conclude that the arbitration agreements in the cases unlawfully waive substantive, core federal rights under the NLRA. Illegality is a standard contract defense.

“Moreover,” the amicus brief notes, “an agreement that effects such a waiver falls within the FAA's [S]avings clause, which preserves all grounds sufficient ‘in equity for the revocation of any contract.’”

The brief later explains the interrelationship in these cases between the labor and arbitration laws:

[T]he FAA's policy favoring arbitration and the NLRA's specific right to concerted activity are “capable of co-existence.” … Congress gave no indication that the FAA must trump other statutory rights, including the NLRA, under those circumstances… . The Board's D.R. Horton and Murphy Oil decisions thus effectuate the congressional intent animating both the NLRA and the FAA by barring enforcement of only those arbitration agreements depriving parties of specific federal rights that Congress enacted legislation to protect. [Citations omitted.]

The Board's view on how the NLRA intersects with the FAA hasn't appeared in the U.S. Supreme Court's arbitration jurisprudence, and—in line with its mission—appears to be a solid reading on how the labor law it was set up to protect workers.

SHAKIER GROUND

But the Board is on shakier ground about how the Federal Arbitration Act actually fits into employment cases. The nation's top court has a line of arbitration cases that support the FAA and parties' agreements to arbitrate falling under it. Those cases indicate a strong deference to the FAA. In recent years, the Court has firmly backed class action waivers in consumer contract cases containing arbitration clauses. The lower courts have followed that view.

Federal Laws At Odds

The issue: Class action waivers linked to an employment arbitration agreement.

The clash: The Federal Arbitration Act v. the National Labor Relations Act.

The victor: So far, the FAA. But, as one commentator puts it, that's easier for lower courts with built-in antipathy to class actions. The Supreme Court will decide the issue. Maybe in 2016?

The Supreme Court cases launched into the general public's view last year when the fight over class actions in consumer arbitration agreements became the target of regulatory moves by the Consumer Financial Protection Bureau. See “Federal Agency Announces It Will Seek To Ban Class Waivers in Arbitration,” 33 Alternatives 155 (November 2015).

Employment is a different area of law entirely. Nevertheless, the lower courts have not been making a distinction in arbitration cases. The result of the challenges to NLRB decisions in D.R. Horton three years ago and recently, in Murphy Oil USA Inc., have been victories for defendants and Fifth Circuit rejections of the NLRB's position, instead relying on the Supreme Court's view of the FAA's importance, courtesy of the consumer contract cases.

Though the NLRB maintained that the scope of the National Labor Relations Act worked to override an arbitration clause class waiver when the two federal statutes stood side by side, the Supreme Court cases that provided deference to the FAA have won the court arguments, repeatedly.

A key distinguishing point, potentially, is that in the oft-cited case of AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (available at http://bit.ly/1NSx2bC), the FAA took precedence over state law, not a conflict between federal laws.

But that hasn't troubled the Fifth Circuit. Most recently, a unanimous Fifth Circuit three-judge panel, in an October opinion by Circuit Judge Leslie H. Southwick in Murphy Oil overturning the Board, held that a gas station employee who had signed an arbitration agreement barring class ADR or court processes as a condition of employment must arbitrate her case individually.

The employee filed a collective action with three other employees under the Fair Labor Standards Act. She filed an unfair labor charge over the arbitration agreement with the NLRB while Murphy Oil's dismissal motion was pending on the class case.

The NLRB decided Murphy Oil on behalf of the plaintiff in October 2014, 10 months after the Fifth Circuit had rejected the Board's position in D.R. Horton, in an opinion also written by Circuit Judge Southwick. He succinctly summarized the earlier case in his fall 2015 Fifth Circuit Murphy Oil decision, noting that it held

  • (1)the NLRA does not contain a “congressional command overriding” the Federal Arbitration Act (“FAA”); and
  • (2)“use of class action procedures … is not a substantive right” under Section 7 of the NLRA. [Citation omitted.] 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.

Undeterred by Southwick's first decision, the NLRB had found that Murphy Oil had violated NLRA 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 concluded the Murphy Oil arbitration agreement, as well as an attempt to revise it, could be reasonably construed by employees to prevent filing charges with the NLRB.

Circuit Judge Southwick shrugged off the NLRB's failure to follow his D.R. Horton reasoning in the October 2015 Fifth Circuit reversal of the board in Murphy Oil, noting that “as far as we know, [the Board] has not failed to apply our ruling in D.R. Horton to the parties in that case.” (The Fifth Circuit had agreed that the D.R. Horton plan inhibited employees from filing charges, and the Board ordered remedial steps before the case was eventually closed in 2014.) Southwick wrote:

An administrative agency's need to acquiesce to an earlier circuit court decision when deciding similar issues in later cases will be affected by whether the new decision will be reviewed in that same circuit. See Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 735–43 (1989). Murphy Oil could have sought review in (1) the circuit where the unfair labor practice allegedly took place, (2) any circuit in which Murphy Oil transacts business, or (3) the United States Court of Appeals for the District of Columbia. 29 U.S.C. § 160(f). The Board may well not know which circuit's law will be applied on a petition for review. We do not celebrate the Board's failure to follow our D.R. Horton reasoning, but neither do we condemn its nonacquiescence.

At the outset of the opinion, Circuit Judge Southwick also had acknowledged Murphy Oil's arbitration-case litigation strategy, noting that the company, “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 company was appealing the Board's decision on activity at an Alabama facility not in the Fifth Circuit's jurisdiction.

The Fifth Circuit Murphy Oil opinion also cited cases in the Eleventh, Ninth, Eighth, and Seventh Circuits that had “either indicated or expressly stated that they would agree with [the Fifth Circuit's] holding in D.R. Horton if faced with the same question: whether an employer's maintenance and enforcement of a class or collective action waiver in an arbitration agreement violates the NLRA.”

But then, like in D.R. Horton, the Fifth Circuit backed the Board in noting that the arbitration requirement could reasonably lead employees to conclude that they could not file charges with the NLRA on labor law violations, though it declined to provide a specific remedy. “We do not hold that an express statement must be made that an employee's right to file Board charges remains intact before an employment arbitration agreement is lawful,” wrote Southwick.

LOOKING TO THE NINTH CIRCUIT

Meantime, while it waited for the Murphy Oil opinion, the NLRB decided to jump into the Morris v. Ernst & Young LLP matter in the Ninth Circuit. In the case, the plaintiffs—white collar executives—claimed that the accounting and consulting giant unlawfully classified them and other individuals as exempt from federal and California overtime laws.

They sought overtime pay under the Fair Labor Standards Act and California labor law. The case had begun in New York, but E&Y was successful in getting it transferred to California to consolidate it with similar cases. In the other cases, E&Y failed to compel arbitration because it had litigated six years before moving to enforce its employment arbitration program.

Among other arguments in the consolidated case, the plaintiffs cited a National Labor Relations Act violation because the arbitration agreement prevented collective action.

Senior U.S. District Court Judge Ronald M. Whyte, analogizing the Supreme Court's authorization of waiving court actions for arbitration under the Americans with Disabilities Act in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), backed E&Y's employee arbitration program, declining to defer to D.R. Horton. Morris v. Ernst & Young LLP Case No. C-12-04964 RMW (N.D. Cal. July 9, 2013)(available at http://bit.ly/1LVIGk3).

Whyte declared that collective action wasn't a substantive right under the FLSA. Moreover, he rejected D.R. Horton “because, although the NLRB is charged with interpreting the NLRA, it is not charged with interpreting the FAA. When an NLRB decision ‘trenches upon a federal statute or policy outside the Board's competence to administer, the Board's remedy may be required to yield.’” [Emphasis is Whyte's; citation omitted.]

Whyte, who sits in San Jose, Calif., cited two cases in declining to adopt D.R. Horton and turning back the plaintiffs' request to defeat arbitration. See Owen v. Bristol Care, Inc., 702 F.3d 1050, (8th Cir. Jan. 7, 2013)(available at http://bit.ly/1NIXcNc), and Jasso v. Money Mart Exp. Inc., 879 F. Supp. 2d 1038, 1046 (N.D. Cal. 2012)(available at http://bit.ly/1Siurx5).

Lead plaintiff Stephen Morris appealed, and the NLRB joined him as amicus, filing the brief in early November about two weeks before the argument. The agency stated that it entered the case because the Ninth Circuit had two more cases that rest on interpreting Murphy Oil and D.R. Horton, Countrywide Fin. Corp. v. NLRB, Case Nos. 15-72700, 15-73222 (opening brief due Mar. 15, 2016); Hoot Winc LLC v. NLRB, Case Nos. 15-72839, 15-72931 (opening brief due Feb. 18, 2016).

The NLRB amicus brief casts aside other federal circuit cases similar to the ones Whyte cited that back the integrity of waivers, noting that the Supreme Court hasn't spoken yet on the NLRA v. FAA issue.

It also presents the argument the Board will be using, presumably all the way up the Supreme Court. It counters the defense argument that the use of the waivers to provide for individual arbitration is a procedural move similar to Federal Rule of Civil Procedure 23, which details class action processes.

The brief, instead, states that the “Section 7 right to litigate employment claims concertedly is substantive and may not be prospectively waived.”

The NLRB explains that “the Supreme Court has never enforced an arbitration agreement that extinguishes a right core to the statute creating that right. And it has never examined whether Section 7 provides statutory employees with a substantive federal right to pursue work-related legal claims concertedly.”

The NLRB invokes the FAA to back up the interpretation, analyzing the FAA Section 2's Savings Clause. See discussion above.

The Board amicus concludes its “D.R. Horton and Murphy Oil decisions thus effectuate the congressional intent animating both the NLRA and the FAA by barring enforcement of only those arbitration agreements depriving parties of specific federal rights that Congress enacted legislation to protect.”

At the three-judge Ninth Circuit panel argument on Nov. 17, Circuit Judge Andrew D. Hurwitz prodded the attorneys on both sides to come up with a formula for NLRA and FAA co-existence.

“Isn't the correct procedure to sever the waiver and proceed with the arbitration?” Hurwitz asked plaintiffs' attorney Max Folkenflik, a name partner in New York's Folkenflik & McGerity. Folkenflik conceded that was a possible solution.

Under similar questioning, E&Y's lawyer, Rex S. Heinke, a partner in the Los Angeles office of Akin Gump Strauss Hauer & Feld, said that the plaintiffs are merely waiving their Federal Rules of Civil Procedure Rule 23 rights, which would not exist had Congress not enacted the procedural rule. “The right to an NLRA concerted action is no broader than what Rule 23 provides,” he said.

When Hurwitz pressed Heinke, and asked the attorney to assume that NLRA Sec. 7 prohibits class action waivers of concerted activity, Heinke said simply that the result is still an arbitration agreement, with the process determinations in the hands of the arbitration panel.

“I don't dispute that Congress could say it can't be waivable” in light of the NLRA, said Heinke, “but it hasn't.” The question is, “Has Congress created a substantive, nonwaivable right?” argued Heinke, adding, “and all Congress has created is Rule 23, which is waivable.”

A video of the oral argument is available here: http://1.usa.gov/1RwTlc0.

SAME DECISIONS, SAME DISSENTS

While Morris was in the pipeline, the NLRB prepared and released two more case decisions that endorsed its view of Murphy Oil and D.R. Horton, and almost guaranteeing further court challenges.

First, on Dec. 1, the NLRB issued Brinker Intern'l Payroll Co. L.P., affirming an administrative law judge's finding of a violation of the NLRA's Sec. 7 and 8(a)(1) by a Dallas-based subsidiary of the big restaurant chain company. Brinker had required as a condition of employment that workers in a Denver restaurant execute an arbitration agreement that waives the right to commence or be a party to any representative, collective or class action.

On the same day, in a case originally filed against a Tampa, Fla., Citicorp unit, in which the plaintiffs requested class arbitration under the financial service giant's employment arbitration program, and were rejected, the NLRB again confirmed an ALJ's finding that the program and its waiver of class processes violated the NLRA.

Both cases [see full cites in links in page 13 box] acknowledged the effects of AT&T Mobility v. Concepcion and other consumer decisions that tilted to the FAA to allow arbitration, but the NLRB also noted in the opinions that the Supreme Court had not yet passed on the relationship between the two statutes.

Both opinions also were 2-1 decisions, and the subject of dissents by NLRB member Philip A. Miscimarra, who also dissented from the Board's Murphy Oildecision. In each of the dissenting opinions, Miscimarra notes that NLRA Section 9(a) protects the right of workers to present grievances individually, while Section 7, protects employees' right to refrain from exercising the collective rights Section 7 details.

“Thus,” writes Miscimarra,

I believe it is clear that (i) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims; (ii) a class-waiver agreement pertaining to non-NLRA claims does not infringe on any NLRA rights or obligations, which has prompted the overwhelming majority of courts to reject the Board's position regarding class waiver agreements; and (iii) enforcement of a class-action waiver as part of an arbitration agreement is also warranted by the Federal Arbitration Act (FAA).

[Citations, including a footnote tracing the case history of court rejections of D.R. Horton, are omitted.]

As Alternatives was going to press near the holidays, the NLRB opened the floodgates, adding more evidence of a bigger strategy. In December's final three weeks, the agency unloaded years of litigation over the arbitration and class waiver issue, posting at least 16 opinions, all with reasoning similar to the Brinker and the Citicorp cases, along with the similar dissents by Board member Miscimarra. [See the Links and Cites box on the following page for a list of the year-end NLRB decisions.]

The amicus brief would have been the NLRB statement move but for the stunning volume and Christmas timing of the NLRB decisions re-asserting D.R. Horton and Murphy Oil. Arbitration experts agree that the Morris brief, in the face of other circuit cases with results opposite from the NLRB's advocacy, as well as the decisions, isn't a coincidence.

RATIONALE REJECTED

“I suspect it's the beginning of a larger strategic plan to try to find some support somewhere,” notes Ogletree Deakins' Ron Chapman Jr., adding, “Notably, the Board could have petitioned the Supreme Court to review the Fifth Circuit's D.R. Horton decision, but it elected not to. Instead of seeking resolution by the Supreme Court, the Board is simply ignoring the string of court decisions rejecting its rationale.”

Morris appears to be an “attempt to set up a conflict among the circuits,” says Austin, Texas, attorney-arbitrator Karl Bayer, who writes extensively on arbitration at his website www.disputingblog.com.

“I think the [NLRB commissioners have] made their decision that they are not going to allow defendants to run around the country picking and choosing appellate courts,” says McGuinn Hillsman's Cliff Palefsky, referring to Murphy Oil's choice of the Fifth Circuit for an out-of-circuit challenge against the NLRB ruling. Palefsky adds that he believes the NLRB now “wants the Supreme Court to decide the issue.”

Chapman also believes that high court review is inevitable, and may be nearing. He writes in an email to Alternatives that the “two paths—the Board sticking to its rationale and the courts continuing to reject it—will cross at some point, resulting in the Supreme Court ruling on the legal question.”

Bayer says that Morriscould be a good candidate, depending on the Ninth Circuit outcome, because of its legal theory dynamics. He explains, “It is the intersection of three longstanding statutes in the United States and how they affect one another—obviously the Federal Arbitration Act and the National Labor Relations Act, but also the Administrative Procedure Act.”

Procedure arguments on the level of deference courts need to pay to a federal agency consumed Morris argument time in November; the Ninth Circuit panel likely will address the administrative procedure issue in its opinion, which had not yet been released at press time.

Bayer says it's ironic that the statutes are facing off in this way. “[O]ne of the principal drivers behind the Federal Arbitration Act [which became law in 1925] was labor feeling they could not get a fair shake in the federal court system for their disputes,” he says.

“There is something different about employment cases from those class action cases the Supreme Court has decided involving consumers and antitrust,” says Bayer, who says he believes the Supreme Court should back the NLRB on D.R. Horton and Murphy Oil.

Noting the antipathy the U.S. Supreme Court exhibited toward class actions in AT&T Mobility and American Express Co., et al. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) (available at http://bit.ly/1ISQ8wb), Bayer explains, “It's pretty easy for lower courts that already have a propensity against class actions, and view class actions strictly as a procedural device … to over-read [AT&T Mobility] and that progeny, and Stolt-Nielsen and that progeny, [and] find stuff in there to support an almost knee-jerk reaction that, ‘The Federal Arbitration Act wins and we don't need to think about substantive rights.’” (Stolt-Nielsen v. AnimalFeeds International Corp., 559 U.S. 662 (2010)(available at http://bit.ly/1Y0ntfB), held that parties must explicitly agree to class arbitration processes, which may not be imposed by courts or tribunals.)

Regardless of the path that leads to the Court, it's likely that Morris or whichever case is accepted will have plenty of precedent with mandatory arbitration agreements and class waivers at the NLRB, and in the courts, waiting for a definitive decision.

In addition to the two cases in the Ninth Circuit queue cited by the NLRB Morris amicus brief, Rex Heinke says that he now has five cases in the pipeline at varying stages at the NLRB. Cliff Palefsky, who said he had been awaiting an NLRB decision for more than two years on opting out of arbitration agreements with class waivers, finally won that case in flurry of year-end decisions.

LINKS AND CITES

Here's a resource guide to the key decisions involving the Federal Arbitration Act and the National Labor Relations Act on employment arbitration and class action waivers made by the National Labor Relations Board and the Fifth Circuit:

  • D.R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274 (Jan. 3, 2012)(PDF download link at http://1.usa.gov/1IMkHn8), enforcement denied in relevant part, 737 F.3d 344 (5th Cir. 2013) (Graves, J., dissenting)(PDF download link at http://bit.ly/1XRvjrM), reh'g denied, No. 12-60031 (Apr. 16, 2014).
  • Murphy Oil USA Inc., Case 10–CA–038804, 361 NLRB No. 72, 2014 WL 5465454 (Oct. 28, 2014) (PDF download link at http://bit.ly/1LVnR8d), enforcement denied in relevant part, 2015 WL 6457613 (5th Cir. Oct. 26, 2015)(PDF download link at http://bit.ly/1TMfDFO).
  • Brinker Intern'l Payroll Company L.P., 363 NLRB No. 54, Case 27–CA–110765 (Dec. 1, 2015)(PDF download at http://1.usa.gov/1N3J5on).
  • Citigroup Technology Inc., and Citicorp Banking Corp. (parent), a subsidiary of Citigroup Inc., 363 NLRB No. 55, Case No. 12-CA-130742)(PDF download at http://1.usa.gov/1PVW0Nb).
  • Here is a listing and links to the late December NLRB decisions: Employers Resource, 363 NLRB No. 59, Case 31–CA–097189 (Dec. 17)(PDF download available at http://1.usa.gov/1OvY12D); The Pep Boys Manny Moe & Jack of California, 363 NLRB No. 65, Case 31–CA–104178 (Dec. 23)(PDF download: http://1.usa.gov/1UeUPX3); Kmart Corp., 363 NLRB No. 66, Cases 06–CA–091823 and 06–CA–100022 (Dec. 16)(petition for review submitted to the Fifth U.S. Circuit Court of Appeals (Dec. 23)(Board decision and appellate filings available at http://1.usa.gov/1IAwqLc)); Advanced Services Inc., 363 NLRB No. 71. Cases 26–CA–063184 (Dec. 22)(PDF download: http://1.usa.gov/1RP4Qg2); Citi Trends Inc., 363 NLRB No. 73, Case 10–CA–133697 and 26–CA–071805 (Dec. 22)(PDF download: http://1.usa.gov/1kpg0cU); Everglades College Inc. d/b/a Keiser University and Everglades University, 363 NLRB No. 73, Case 12–CA–096026 (Dec. 23)(PDF download: http://1.usa.gov/1Oq7O3V); The Rose Group d/b/a Applebee's Restaurant, 363 NLRB No. 75, Case 05–CA–135360 (Dec. 22)(PDF download: http://1.usa.gov/1QXiiOJ); Domino's Pizza LLC, 363 NLRB No. 77, Case 29–CA–103180 (Dec. 22)(PDF download: http://1.usa.gov/1Ow0z0F); Ross Stores Inc., 363 NLRB No. 79, Cases 31–CA–109296 and 31–CA–114107 (Dec. 23)(PDF download: http://1.usa.gov/1QTQ33M); Covenant Care California LLC, 363 NLRB No. 80, Case 21–CA–090894 (Dec. 22)(PDF download: http://1.usa.gov/1IAyXFc); MasTec Services Co., 363 NLRB No. 81, Case 16–CA–086102 (Dec. 24)(PDF download: http://1.usa.gov/1JGqScU); RPM Pizza LLC, 363 NLRB No. 82, Case 15–CA–113753 (Dec. 22)(PDF download: http://1.usa.gov/1RP6CO9); SolarCity Corp., 363 NLRB No. 83, Case 32–CA–128085 (Dec. 22)(PDF download: http://1.usa.gov/1Jdiuqx); 24 Hour Fitness USA Inc., 363 NLRB No. 84, Case 20–CA–035419 (Dec. 24)(PDF download: http://1.usa.gov/1SkfKcO); Logisticare Solutions Inc., 363 NLRB No. 85, Case 16–CA–134080 (Dec. 24)(PDF download: http://1.usa.gov/1Ow2B0C)(case involved a waiver of class processes, but no arbitration agreement), and CPS Security (USA) Inc., 363 NLRB No. 86, Cases 28–CA–072150, 28–CA–075432, and 28–CA–075450 (Dec. 24)(PDF download: http://1.usa.gov/1mnAjsk).

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