LogistiCare Solutions, Inc. v. National Labor Relations Board, 2017 U.S. App. LEXIS 14691

LogistiCare required employees and applicants to sign a "Class Action and Collective Action Waiver" as a condition of employment, disavowing participation as class/collective representatives and waiving jury trial for employment-related suits.
An applicant who signed the waiver filed an unfair-labor-practice charge with the NLRB; the Board brought a complaint alleging violations of Section 8(a)(1) of the NLRA.
The ALJ found the waiver unlawful; a 2–1 NLRB panel affirmed, holding (1) Section 7 protects participation in class/collective litigation and (2) the waiver could reasonably be read to bar filing unfair labor practice charges with the Board.
LogistiCare petitioned for review in the Fifth Circuit; the Board cross-petitioned for enforcement of its order requiring cessation and notice to employees.
The Fifth Circuit majority held that under binding precedent (D.R. Horton and Convergys) Section 7 does not create a substantive right to class/collective litigation, so no explicit Section 8(a)(1) violation; the court also held that the waiver, read as a whole, would not reasonably be interpreted to bar filing charges with the NLRB.
Two judges issued partial concurrences/dissents: one would defer to the Board on reasonable interpretation; another would find a bare waiver outside arbitration violates the Act but agreed the waiver here did not reasonably preclude Board charges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Section 7 protects the right to participate in class or collective litigation such that the waiver explicitly violates § 8(a)(1)	Waiver interferes with Section 7 concerted activity by forbidding class/collective lawsuits	D.R. Horton/Convergys interpretation: Section 7 does not confer a substantive right to class/collective litigation	Held for defendant: under binding Fifth Circuit precedent, Section 7 does not create that substantive right; no explicit § 8(a)(1) violation
Whether the waiver would reasonably be construed by employees to prohibit filing unfair labor practice charges with the NLRB	The waiver’s references to "lawsuits" and "trial" could be read by lay employees to include administrative charges	Waiver explicitly mentions trial-related terms (jury, trial lawyers, lawsuits) tied to courts; it lacks broad "claims/disputes/any forum" language that previously supported NLRB wins	Held for defendant: reading the document as a whole, a reasonable employee would not interpret it to bar Board charges; no independent § 8(a)(1) violation

D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) (arbitration agreement with broad "claims/disputes" language could be read to prohibit Board charges)
Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015) (broad "any and all disputes or claims" arbitration clause could reasonably suggest waiver of administrative rights)
Convergys Corp. v. NLRB, 866 F.3d 635 (5th Cir. 2017) (applies D.R. Horton to reject Board’s view that Section 7 confers right to class/collective litigation)
Flex Frac Logistics, L.L.C. v. NLRB, 746 F.3d 205 (5th Cir. 2014) (standard for when an employer rule is reasonably construed to prohibit Section 7 activity)
Pattern Makers’ League of N. Am., AFL-CIO v. NLRB, 473 U.S. 95 (U.S. 1985) (Board orders enforceable if their statutory construction is reasonably defensible)
NLRB v. Arkema, Inc., 710 F.3d 308 (5th Cir. 2013) (employer rule must be reasonably, not merely possibly, construed to inhibit Section 7 rights)
Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772 (8th Cir. 2016) (broad arbitration clause covering "all claims, disputes or controversies" violated § 8(a)(1))