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Everglades College, Inc. v. National Labor Relations Board

United States Court of Appeals, Eleventh Circuit

June 26, 2018

EVERGLADES COLLEGE, INC., d.b.a. Keiser University, d.b.a. Everglades University, Petitioner-Cross Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner, LISA K. FIKKI, Intervenor-Respondent.

          Petitions for Review of a Decision of the National Labor Relations Board Agency No. 12-CA-096026

          Before MARTIN and HULL, Circuit Judges, and RESTANI, [*] Judge.

          HULL, Circuit Judge:

         In 2015, a three-member panel of the National Labor Relations Board ("NLRB") concluded that Everglades College, Inc. ("Everglades") violated the National Labor Relations Act by (1) maintaining and enforcing an employment agreement that required its employees to individually arbitrate employment-related claims and that waived its employees' rights to file class or collective action lawsuits against Everglades; (2) maintaining and enforcing an employment agreement that caused Everglades employees to reasonably believe that they were prohibited from filing unfair labor charges with the NLRB; and (3) unlawfully discharging one of its employees, Lisa K. Fikki, for refusing to sign its unlawful employment agreement. Everglades petitioned this Court to review the NLRB panel's order, and the NLRB filed a cross-application for enforcement of the NLRB panel's order. Fikki also filed a motion to intervene in the case, which this Court granted.

         After careful review, and with the benefit of oral argument, we (1) deny the NLRB's cross-application for enforcement, (2) grant Everglades' petition for review, and (3) reverse in part and remand in part the NLRB panel's order as set forth in this opinion.

          I. BACKGROUND

         A. Factual History

         On July 13, 2008, Lisa Fikki began working as a graduate admissions counselor for Everglades, a private, non-profit university in Fort Lauderdale, Florida. In early 2009, Everglades decided to implement mandatory arbitration as part of its personnel policies and procedures and required its existing employees, including Fikki, to sign a document titled, "Confidentiality, Non-Solicitation, and Arbitration Agreement." Fikki signed this agreement in 2010.

         In late 2011, Everglades did away with its paper employment agreements and adopted electronic personnel records for all of its employees, which included an electronic document setting forth employment terms and containing an arbitration clause. On June 15, 2012, Everglades sent an email to all of its employees requiring them to complete a "re-boarding" process in order for Everglades to move all of its personnel files to an electronic format. Everglades' e-mail asked all existing employees to complete the re-boarding process within one week, by June 22, 2012. The re-boarding process required employees, among other things, to sign an arbitration agreement, which included the following class-or collective-action waiver and required that employment disputes be resolved exclusively through individualized arbitration rather than court litigation, as follows:

Arbitration of Claims. Any controversy or claim arising out of or relating to Employee's employment, Employee's separation from employment, and this Agreement, including but not limited to, claims or actions brought pursuant to federal, state or local laws regarding payment of wages, tort, discrimination, harassment and retaliation, except where specifically prohibited by law, shall be referred to and finally resolved exclusively by binding arbitration in Fort Lauderdale, Florida, in accordance with the Employment Law Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the above, Employee agrees that there will be no right or authority, and hereby waives any right or authority, for any claims within the scope of this Agreement to be brought, heard or arbitrated as a class or collective action, or in a representative or private attorney general capacity on behalf of a class of persons or the general public. Filing and arbitration fees shall be in accordance with the arbitration rules and any applicable laws. The arbitrator shall have the authority to apportion the filing fee and costs of arbitration with the presumption that the prevailing party shall be entitled to recover all legitimate costs. Unless provided by statute to the contrary, each party shall bear its/his/her own attorneys' fees.

         On June 21, 2012, Fikki responded to Everglades' email, asking if she could print the re-boarding documents and have them reviewed. Everglades agreed to Fikki's request but reminded Fikki of the June 22, 2012 re-boarding deadline and asked her to notify Everglades if she needed more time.

         On June 26, 2012, Everglades sent Fikki (and two other Everglades employees) an email, asking them again to complete the re-boarding process given the June 22, 2012 deadline. Fikki replied that she needed more time to review the documents.

          On June 27, 2012, Everglades held mandatory meetings for those employees who had not yet completed the re-boarding process. During the meetings, Fikki told Everglades officials that she wanted to obtain legal advice regarding the documents. Dr. Arthur Keiser, Everglades' Chancellor, told Fikki that she could have more time to complete the re-boarding process so long as she could verify by June 29, 2012 that she had scheduled an appointment with an attorney.

         Fikki contacted an attorney on June 27, 2012, seeking review of the re-boarding documents. On June 29, 2012, Fikki provided Everglades with a letter from the attorney stating that Fikki was scheduled to meet with the ...

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