Petitions for Review of a Decision of the National Labor
Relations Board Agency No. 10-CA-151454
MARTIN and HULL, Circuit Judges, and RESTANI, [*] Judge.
2016, a three-member panel of the National Labor Relations
Board ("NLRB") concluded that Cowabunga, Inc.
("Cowabunga") violated the National Labor Relations
Act by maintaining and enforcing an employment agreement that
(1) required its employees to individually arbitrate
employment-related claims and waived its employees'
rights to file class or collective action lawsuits against
Cowabunga and (2) caused Cowabunga employees to reasonably
believe that they were prohibited from filing unfair labor
charges with the NLRB. Cowabunga petitioned this Court to
review the NLRB panel's order, and the NLRB filed an
application for enforcement of the NLRB panel's order.
careful review, and with the benefit of oral argument, we (1)
deny the NLRB's cross-application for enforcement, (2)
grant Cowabunga's petition for review, and (3) reverse in
part and remand in part the NLRB panel's order as set
forth in this opinion.
April 2014 until October 2014, Chadwick Hines worked as a
pizza delivery driver for Cowabunga in Savannah, Georgia. On
March 23, 2015, Hines filed a collective action under the
Fair Labor Standards Act ("FLSA"), 29 U.S.C. §
201, et seq., against Cowabunga. Hines alleged that
Cowabunga violated the FLSA by under-reimbursing him for
automobile expenses he incurred when making pizza deliveries,
which caused his net pay to fall below the federal minimum
wage. Hines filed his collective action on behalf of himself
and similarly situated pizza delivery drivers employed by
April 30, 2015, Cowabunga filed a motion to dismiss
Hines' complaint, or in the alternative, to stay and
compel arbitration. In support of its motion to compel,
Cowabunga attached a copy of Hines' employment agreements
with Cowabunga (the "Agreement"). In the Agreement,
Cowabunga and Hines agreed to resolve any "covered
claim"-defined as including any claims arising from
Cowabunga's compensation practice or any wage and payment
claims arising under the FLSA-exclusively through
individualized arbitration rather than court litigation, as
We each hereby voluntarily promise, agree, and consent to
resolve any claim covered by this Agreement through binding
arbitration, rather than through court litigation. We further
agree that such binding arbitration pursuant to this
Agreement shall be the sole and exclusive remedy for
resolving any such covered claims or disputes.
addition, in the Agreement Hines waived his right to bring a
covered claim against Cowabunga in a collective action
lawsuit, as follows:
No covered claims may be asserted as part of a
multi-plaintiff class or collective action. Moreover, no
covered claims may proceed to arbitration on a
multi-plaintiff, class or collective basis. Rather, each
allegedly-aggrieved employee must proceed to arbitration
separately and individually, and the Employee's
arbitration proceedings shall encompass only the covered
claims purportedly possessed by such individual Employee.
5, 2015, Hines dismissed his FLSA lawsuit without
§ 8(a)(1) ...