Acuity Specialty Products, Inc., d/b/a Zep Inc.

National Labor Relations Board - Board Decisions

May 16, 2016

363 NLRB No. 192 (N.L.R.B. 2016)

363 NLRB No. 192
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Acuity Specialty Products, Inc. d/b/a ZEP, Inc. and
Lynn Woodford and Doug Heffernan. Cases 32–
–CA–075221 and 32–CA–102838
May 16, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On July 21, 2014, Administrative Law Judge Mindy E.
Landow issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decision in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in rele-
vant part 737 F.3d 344 (5th Cir. 2013), that the Respond-
ent violated Section 8(a)(1) of the Act by promulgating,
maintaining, and enforcing an arbitration policy that re-
quires employees to waive their rights to pursue class or
collective actions involving employment-related claims
in all forums, whether arbitral or judicial. In Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), enf. denied in rele-
vant part 808 F.3d 1013 (5th Cir. 2015), the Board reaf-
firmed the relevant holdings of D. R. Horton, supra. The
judge also found, relying on D. R. Horton and U-Haul of
California, 347 NLRB 375, 377–378 (2006), enfd. 255
Fed.Appx. 527 (D.C. Cir. 2007), that maintaining the
arbitration policy violated Section 8(a)(1) because em-
ployees reasonably would believe that it bars or restricts
their right to file unfair labor practice charges with the
Board.
The Board has considered the decision and the record
in light of the exceptions and briefs and, based on the
judge’s application of D. R. Horton and on our subse-
quent decision in Murphy Oil, we affirm the judge’s rul-
ings,1 findings,2 and conclusions3 and adopt the recom-
mended Order as modified4 and set forth in full below. 5

1 The Respondent asserts that the D. R. Horton decision is invalid
because it was issued by a panel that included Member Becker. The
appointment of Member Becker was constitutionally valid and had not
expired, and thus the Board had a quorum at the time it issued D. R.
Horton. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014); Mathew
Enterprise v. NLRB, 771 F.3d 812, 814 (D.C. Cir. 2014); Gestamp
South Carolina, L.L.C. v. NLRB, 769 F.3d 254, 257–258 (4th Cir.
2014); Entergy Mississippi, Inc., 361 NLRB No. 89 (2014), affd. in
part, revd. in part on other grounds 810 F.3d 287 (5th Cir. 2015).

2 The parties have stipulated that the arbitration policy was promul-
gated by the Respondent and presented to its employees within the
10(b) period from the filing of the initial unfair labor practice charge.
No party has excepted to the judge’s finding that the Respondent’s
arbitration policy is voluntary, and therefore we do not pass on that
finding. The Respondent contends that a voluntary arbitration policy
does not fall within the proscriptions of Murphy Oil USA, Inc., and D.
R. Horton, Inc., supra, which involved policies that were imposed on
employees as a condition of employment. See D. R. Horton, supra, 357
NLRB at 2289 fn. 28. The Board has rejected this argument, holding
that an arbitration policy that precludes collective action in all forums is
unlawful even if entered into voluntarily, because it requires employees
to prospectively waive their Sec. 7 right to engage in concerted activity.
See Bristol Farms, 363 NLRB No. 45 (2015); On Assignment Staffing
Services, 362 NLRB No. 189, slip op. at 1, 5–8 (2015).
The Respondent argues that its arbitration policy includes an exemp-
tion allowing employees to file charges with a governmental agency,
such as the Equal Employment Opportunity Commission, and thus does
not, as in D. R. Horton, unlawfully prohibit them from collectively
pursuing litigation of employment claims in all forums. In support of
its argument, the Respondent cites Owen v. Bristol Care, Inc., 702 F.3d
1050, 1053–1054 (8th Cir. 2013), in which the court stated, in dicta,
that the arbitration agreement there did not bar all concerted employee
activity in pursuit of employment claims because the agreement permit-
ted employees to file charges with administrative agencies that could
file suit on behalf of a class of employees. We reject the Respondent’s
argument for the reasons set forth in SolarCity Corp., 363 NLRB No.
83 (2015).
We additionally agree with the judge, for the reasons set forth by
her, that the Respondent’s policy violates Sec. 8(a)(1) because employ-
ees reasonably would believe it restricts the right to file charges with
the National Labor Relations Board. In doing so, we do not rely on
Dish Network Corp., 358 NLRB 174 (2012), cited by the judge.
The judge’s finding that the Respondent enforced its arbitration pol-
icy in violation of Sec. 8(a)(1) did not reference the conduct that consti-
tuted the violation. The Respondent unlawfully enforced its arbitration
policy by filing its motion in federal district court to compel Charging
Parties Lynn Woodford and Doug Heffernan, and six other co-plaintiffs
who signed the arbitration policy, to individually arbitrate their wage
claims.
3 The Respondent filed a motion for administrative notice and/or for
limited reopening of the record requesting that the Board take notice of,
or admit into evidence, arbitral awards to employees who were com-
pelled to arbitrate pursuant to the Respondent’s court enforcement
actions; court judgments confirming certain arbitral awards; and the
Respondent’s satisfaction of the awards. The General Counsel filed an
opposition and the Respondent filed a reply. The Board takes adminis-
trative notice of the arbitral awards and court judgments. Consideration
of this additional evidence does not affect the result in this proceeding.
4 We have modified the judge’s recommended Order to conform to
the Board’s standard remedial language, and we shall substitute new
notices to conform to the Order as modified.
5 Our dissenting colleague, relying on his dissenting position in
Murphy Oil, 361 NLRB No. 72, slip op. at 22–35, would find that the
Respondent’s arbitration policy does not violate Sec. 8(a)(1), especially
because the policy contains an opt-in provision. He observes that the
Act “creates no substantive right for employees to insist on class-type
treatment” for the litigation of non-NLRA claims. This is correct, as
the Board has previously explained in Murphy Oil, above, slip op. at 2,
and Bristol Farms, 363 NLRB No. 45, slip op. at 2 & fn. 2 (2015). But
what our colleague ignores is that the Act “does create a right to pursue
joint, class, or collective claims if and as available, without the interfer-
ence of an employer-imposed restraint.” Murphy Oil, above, slip op. at
2 (emphasis in original). The Respondent’s arbitration policy is just
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The judge further found, and we agree, that the Re-
spondent violated Section 8(a)(1) by conditioning em-
ployees’ eligibility to participate in a sales bonus pro-
gram upon signing the arbitration policy. There is no
dispute that the program was a significant employee ben-
efit. It granted annual bonuses to individuals ranging
from $1300 to $97,500 and thus, as the judge found, of-
fered employees the opportunity to significantly increase
their wages. There can be little doubt that gaining eligi-
bility for a substantial monetary bonus would reasonably
tend to induce employees to sign the policy and surren-
der their core Section 7 right to act collectively. The
Respondent may not lawfully condition the receipt of
benefits—here, eligibility for the bonus program—upon
employees’ waiver of their Section 7 rights.6

such an unlawful restraint even considering its opt-in provision. See
On Assignment Staffing Services, supra, slip op. at 4, 8–9 & fns. 28, 29,
31; Bristol Farms, above.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the Re-
vised Arbitration Policy unlawful runs afoul of employees’ Sec. 7 right
to “refrain from” engaging in protected concerted activity. See Murphy
Oil, above, slip op. at 18; Bristol Farms, above, slip op. at 3. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
Further, we reject the position of our dissenting colleague that the
Respondent’s motion to compel arbitration was protected by the First
Amendment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB,
461 U. S. 731, 747 (1983), the Court identified two situations in which
a lawsuit enjoys no such protection: where the action is beyond a State
court’s jurisdiction because of Federal preemption, and where “a suit
. . . has an objective that is illegal under federal law.” 461 U. S. at 737
fn. 5. Thus, the Board may properly restrain litigation efforts such as
the Respondent’s motion to compel arbitration that have the illegal
objective of limiting employees’ Sec. 7 rights and enforcing an unlaw-
ful contractual provision, even if the litigation was otherwise meritori-
ous or reasonable. See Murphy Oil, supra, slip op. at 20–21; Convergys
Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
6 See, e.g., Monfort of Colorado, 284 NLRB 1429, 1430, 1470
(1987) (employer unlawfully promised increased benefits if employees
formed an “employee committee” instead of selecting a union and
promised employees a bonus if they did not vote for the union), affd.
sub nom. UFCW v. NLRB, 852 F.2d 1344 (D.C. Cir. 1988); Niagara
Wires, Inc., 240 NLRB 1326, 1327 (1979) (maintenance of a provision
in a pension plan making lack of union representation a qualification
for eligibility to participate in the plan interferes with the Sec. 7 rights
of employees who are otherwise eligible); Clay City Beverages, 176
NLRB 681, 681 (1969) (employer’s payment of bonuses only to those
who desisted from strike activity violated the Act), enfd. mem. 434
F.2d 1315 (6th Cir. 1971). Accord: NLRB v. Bratten Pontiac Corp.,
406 F.2d 349, 351 (4th Cir. 1969) (Sec. 8(a)(1) was violated “when the
company extracted from its salesmen a two-year agreement not to enter
into ‘any combination or association . . . as the price they must pay for
increased employment benefits.’”). As the Supreme Court has ex-
plained, “The act of paying accrued benefits to one group of employees
while announcing the extinction of the same benefits for another group
of employees who are distinguishable only by their participation in
protected concerted activity surely may have a discouraging effect on
ORDER
The National Labor Relations Board orders that the
Respondent, Acuity Specialty Products, Inc. d/b/a Zep
Inc., Los Gatos, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, and/or enforcing an ar-
bitration policy known as the Alternative Dispute Reso-
lution Policy (ADR arbitration policy) under which em-
ployees waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
(b) Promulgating and/or maintaining its ADR arbitra-
tion policy that employees reasonably would believe bars
or restricts the right to file charges with the National La-
bor Relations Board.
(c) Conditioning eligibility to participate in an annual
sales bonus program on employees’ execution of the
ADR arbitration policy.
(d) Withholding bonuses from employees because they
did not execute the ADR arbitration policy or because
they executed the ADR arbitration policy but filed or
participated in employment-related class or collective
claims against the Respondent.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful ADR arbitration policy in all
of its forms, or revise it in all of its forms to make clear
to employees that the policy does not constitute a waiver
of their right to maintain employment-related joint, class,
or collective actions in all forums, and that it does not bar
or restrict employees’ right to file charges with the Na-
tional Labor Relations Board.
(b) Notify all current and former employees who
signed the policy or to whom the policy was presented
that it has been rescinded or revised and, if revised, pro-
vide them a copy of the revised policy.
(c) Notify the United States District Court for the
Northern District of California, in Case No. 3:13-CV-
0563-RS that it has rescinded or revised the ADR arbitra-
tion policy upon which it based its motion to compel
arbitration of the claims of Lynn Woodford, Doug Hef-
fernan, and six coplaintiffs who signed the ADR arbitra-
tion policy, and inform the court that it no longer oppos-
es their lawsuit on the basis of the ADR arbitration poli-
cy.

either present or future concerted activity.” NLRB v. Great Dane Trail-
ers, 388 U.S. 26, 32 (1967). We do not rely on Saigon Gourmet Res-
taurant, Inc., 353 NLRB 1063 (2009), cited by the judge.
ACUITY SPECIALTY PRODUCTS 3
(d) Restore eligibility for participation in the Respond-
ent’s annual sales bonus program to employees who
qualified for bonuses under the performance standards of
that year’s annual sales bonus plan at any time since the
promulgation and implementation of the ADR arbitration
policy, for whom eligibility or participation or actual
compensation was withheld either because they did not
execute the ADR arbitration policy or because, notwith-
standing their execution of the ADR arbitration policy,
they filed or participated in employment-related class or
collective claims against the Respondent.
(e) Make employees whole for any losses they may
have suffered as a result of the Respondent’s unfair labor
practices and reimburse the Charging Parties and any
other plaintiffs for any reasonable attorneys’ fees and
litigation expenses that they may have incurred in oppos-
ing the Respondent’s motion to compel arbitration, in the
manner set forth in the remedy section of the judge’s
decision.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its California locations copies of the attached notice
marked “Appendix A”7 and at all other locations where
the ADR arbitration policy has been promulgated and/or
maintained, copies of the attached notice marked “Ap-
pendix B.”8 Copies of the notices, on forms provided by
the Regional Director for Region 32, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, or other electronic
means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
8 See fn. 7, above.
rial. If the Respondent has gone out of business or
closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice marked “Appendix A” to all current
employees and former employees employed by the Re-
spondent at any time since August 23, 2011, and any
former employees against whom the Respondent has
enforced its arbitration policy since August 23, 2011. If
the Respondent has gone out of business or closed any
facilities other than the ones involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice marked “Appendix B” to
all current employees and former employees employed
by the Respondent at those facilities at any time since
August 23, 2011.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 16, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, my colleagues find that the Respondent’s
“Alternative Dispute Resolution Policy and Agreement
for Disputes between a Sales Rep and Acuity Specialty
Products, Inc., doing business as Zep Sales and Service”
(the Agreement) violates Section 8(a)(1) of the National
Labor Relations Act (the Act or NLRA) because the
Agreement waives the right to participate in class or col-
lective actions regarding non-NLRA employment claims.
Charging Parties Lynn Woodford, Doug Heffernan, and
six other employees signed the Agreement, and later, 54
individuals, including Heffernan, Woodford, and the
other six employees who also signed the Agreement,
filed a lawsuit against the Respondent in Alameda Coun-
ty Superior Court alleging violations of California’s La-
bor Code and Business and Professions Code. The case
was removed to Federal district court, where, in reliance
on the Agreement, the Respondent filed a motion to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
compel Heffernan, Woodford, and the six other plaintiffs
who signed the Agreement to arbitrate their claims. The
Federal district court granted the motion to compel arbi-
tration. My colleagues find that the Respondent unlaw-
fully promulgated, maintained, and enforced its Agree-
ment. I respectfully dissent from these findings for the
reasons explained in my partial dissenting opinion in
Murphy Oil USA, Inc.1
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than the NLRA.2
However, I disagree with my colleagues’ finding that
Section 8(a)(1) of the NLRA prohibits agreements that
waive class and collective actions, and I especially disa-
gree with the Board’s finding here, similar to the Board
majority’s finding in Bristol Farms,3 that class-waiver
agreements violate the NLRA even when they contain an

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 363 NLRB No. 45 (2015). The Agreement states: “If you do not
wish to accept this arbitration policy and agreement, you will not be
eligible to participate in the sales bonus program, but your employment
will not be affected in any other way.” In addition, as my colleagues
note, no party has excepted to the judge’s finding that the Agreement is
voluntary. I believe that it is reasonable to characterize the Agreement
as allowing employees to “opt in” to the Agreement. For my col-
leagues, however, the voluntariness of a class-waiver agreement is
immaterial. They hold that “an arbitration policy that precludes collec-
tive action in all forums is unlawful even if entered into voluntarily,”
citing On Assignment Staffing Services, 362 NLRB No. 189 (2015)
(finding class-action waiver agreement unlawful even where employees
are free to opt out of the agreement), and Bristol Farms, above (finding
class-action waiver agreement unlawful even where employees must
affirmatively opt in before they will be covered by a class-action waiv-
er agreement, and where they are free to decline to do so). By defini-
tion, every agreement sets forth terms upon which each party may insist
as a condition to entering into the relationship governed by the agree-
ment. Thus, conditioning eligibility to participate in a sales bonus
program on the execution of a class-action waiver does not make it
involuntary. However, the Board’s position is even less defensible
when the Board finds that NLRA “protection” operates in reverse—not
to protect employees’ rights to engage or refrain from engaging in
certain kinds of collective action, but to divest employees of those
rights by denying them the right to choose whether to be covered by an
agreement to litigate non-NLRA claims on an individual basis. See
Bristol Farms, above, slip op. at 2–4 (Member Miscimarra, dissenting).
opt-in provision. In my view, Section 7 and Section 9(a)
of the NLRA render untenable both of these proposi-
tions. As discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”4 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;5 (ii) a class-waiver agreement per-
taining 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;6 (iii) en-
forcement of a class-action waiver as part of an arbitra-

4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dissenting in
part). Sec. 9(a) states: “Representatives designated or selected for the pur-
poses of collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representatives of all
the employees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other conditions of
employment: Provided, That any individual employee or a group of employ-
ees shall have the right at any time to present grievances to their employer
and to have such grievances adjusted, without the intervention of the bar-
gaining representative, as long as the adjustment is not inconsistent with the
terms of a collective-bargaining contract or agreement then in effect: Pro-
vided further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legislative
history shows that Congress intended to preserve every individual employ-
ee’s right to “adjust” any employment-related dispute with his or her em-
ployer. See Murphy Oil, above, slip op. at 31–32 (Member Miscimarra,
dissenting in part).
5 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
6 The Fifth Circuit has repeatedly denied enforcement of Board or-
ders invalidating a mandatory arbitration agreement that waived class-
type treatment of non-NLRA claims. See, e.g., Murphy Oil, Inc., USA
v. NLRB, above; D. R. Horton, Inc. v. NLRB, above. The overwhelm-
ing majority of courts considering the Board’s position have likewise
rejected it. See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., 96 F.Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v.
Adecco USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to
certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal.
June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-
00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA); but see Totten v. Kellogg Brown & Root,
LLC, No. ED CV 14–1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal.
Jan. 22, 2016).
ACUITY SPECIALTY PRODUCTS 5
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA);7 and (iv) for the reasons stated in my
dissenting opinion in Bristol Farms, above, the legality
of such a waiver is even more self-evident when the
agreement contains an opt-in provision, based on every
employee’s 9(a) right to present and adjust grievances on
an “individual” basis and each employee’s Section 7
right to “refrain from” engaging in protected concerted
activities. Although questions may arise regarding the
enforceability of particular agreements that waive class
or collective litigation of non-NLRA claims, I believe
these questions are exclusively within the province of the
court or other tribunal that, unlike the NLRB, has juris-
diction over such claims.8
Because I believe the class-waiver agreement provi-
sions of the Respondent’s Agreement were lawful under
the NLRA, I would find it was similarly lawful for the
Respondent to file a motion in Federal court seeking to
enforce the Agreement.9 It is relevant that the Federal
court that had jurisdiction over the non-NLRA claims
granted the Respondent’s motion to compel arbitration.
That the Respondent’s motion was reasonably based is
also supported by court decisions that have enforced sim-
ilar agreements.10 As the Fifth Circuit recently observed
after rejecting (for the second time) the Board’s position

7 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
8 Because I disagree with the Board’s decisions in Murphy Oil,
above, and D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
pertinent part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA
does not render unlawful arbitration agreements that provide for the
waiver of class-type litigation of non-NLRA claims, I find it unneces-
sary to reach whether such agreements should independently be
deemed lawful to the extent they “leave[] open a judicial forum for
class and collective claims,” D. R. Horton, supra, at at 2286, by permit-
ting the filing of complaints with administrative agencies that, in turn,
may file class or collective action lawsuits. See Owen v. Bristol Care,
Inc., 702 F.3d 1050 (8th Cir. 2013).
9 As I explain below, I concur in my colleagues’ finding that the
Agreement unlawfully interfered with the right of employees to allege a
violation of the NLRA through the filing of an unfair labor practice
charge with the NLRB. However, the unlawfulness of the Agreement
in this regard is not material to the merits of the Respondent’s federal-
court motion to compel arbitration of non-NLRA claims. See Fuji
Food Products, Inc., 363 NLRB No. 118, slip op. at 4, 4–5 fn. 13
(2016) (Member Miscimarra, concurring in part and dissenting in part)
(finding that employer lawfully enforced class-waiver agreement by
filing motion to compel arbitration of non-NLRA claims, notwithstand-
ing additional finding that agreement unlawfully interfered with Board
charge filing).
10 See, e.g., Murphy Oil, Inc., USA v. NLRB, above; Johnmoham-
madi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton,
Inc. v. NLRB, above; Owen v. Bristol Care, Inc., above; Sutherland v.
Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
regarding the legality of class-waiver agreements: “[I]t
is a bit bold for [the Board] to hold that an employer who
followed the reasoning of our D.R. Horton decision had
no basis in fact or law or an ‘illegal objective’ in doing
so. The Board might want to strike a more respectful
balance between its views and those of circuit courts
reviewing its orders.”11 I also believe that any Board
finding of a violation based on the Respondent’s merito-
rious Federal court motion to compel arbitration would
improperly risk infringing on the Respondent’s rights
under the First Amendment’s Petition Clause. See Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983);
BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002);
see also my partial dissent in Murphy Oil, above, 361
NLRB No. 72, slip op. at 33–35. Finally, for similar
reasons, I believe the Board cannot properly require the
Respondent to reimburse the Charging Parties and any
other plaintiffs for their attorneys’ fees and litigation
expenses in the circumstances presented here. Murphy
Oil, above, 361 NLRB No. 72, slip op. at 35. According-
ly, on these issues, I respectfully dissent.12
One issue remains to be decided, which is whether the
Agreement unlawfully interferes with employees’ right
to file unfair labor practice charges with the Board. For
the reasons expressed below, I concur with my col-
leagues’ finding that the Agreement in this respect vio-
lates Section 8(a)(1) of the Act.13
In my view, three parts of the Agreement are relevant,
in varying degrees, to the question of whether the
Agreement unlawfully interferes with NLRB charge fil-
ing.
First, the list of “COVERED CLAIMS” refers to,
among other things, claims of discrimination or harass-
ment on an “unlawful basis”; claims of retaliation for
complaining about discrimination or harassment; claims
of retaliation for “exercising your protected rights under
any statute”; claims of “wrongful termination or con-

11 Murphy Oil, Inc., USA v. NLRB, above, 808 F.3d at 1021.
12 My colleagues also affirm the judge’s additional finding that the
Respondent violated Sec. 8(a)(1) by conditioning employees’ eligibility
to participate in a sales bonus program on signing the Agreement. I
respectfully disagree with this finding because, as I have described
above, I would find the Agreement lawful pursuant to my partial dis-
senting opinion in Murphy Oil USA, Inc. I believe it is particularly
inappropriate to declare unlawful an arrangement under which the
Respondent merely sought to ensure the enforceability of a lawful
Agreement as a matter of contract law by providing consideration—i.e.,
eligibility to participate in the sales bonus program—in exchange for
opting into the Agreement. Because I would find the Agreement law-
ful, I would also find distinguishable the cases cited by my colleagues
in fn. 5 of their opinion, which dealt with incentives offered to induce
employees to enter into unlawful agreements.
13 I also join my colleagues in rejecting the Respondent’s contention
that the Board’s decision in D. R. Horton, above, is invalid on the basis
that the Board lacked a quorum at the time it issued that decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
structive discharge”; and claims of “violations of any . . .
federal statute[,]” specifically including the “Taft-Hartley
Act.”
Second, the section of the Agreement entitled:
“WHAT IS NOT A COVERED CLAIM?” excludes
from the coverage of the Agreement “[m]atters within
the jurisdiction of the National Labor Relations Board.”
Finally, the section of the Agreement entitled: “THE
ROLE OF GOVERNMENT AGENCIES
CONCERNING CERTAIN COVERED CLAIMS” states
as follows:
Some Covered Claims are claims that may be filed
with a governmental agency, such as the Equal Em-
ployment Opportunity Commission (EEOC) or an
equivalent state agency. Such claims include those for
discrimination or harassment. For these Covered
Claims, you may either file a complaint with these
agencies or proceed to use the Company's dispute reso-
lution process set forth below. If you choose to pro-
ceed directly to the Company’s dispute resolution pro-
cess, you will be asked to sign a voluntary waiver of
the right to file charges with an agency. If you file a
charge with the EEOC or equivalent state agency, you
must file such a claim within the time period permitted
by law after the date the alleged event occurred. The
agency that receives the claim then has the right under
applicable law to investigate the claim. Once this in-
vestigation has been completed, the agency will make a
determination. The agency may determine that there is
not cause to believe that a law was violated and will is-
sue to you a document generally known as a “Notice of
Right-to-Sue” letter. If the agency believes that there is
cause to believe that a violation of law occurred, then
the agency will proceed to see if the charge may be set-
tled. If the charge is not settled, the agency may either
sue the Company on your behalf or it will issue a "No-
tice of Right-to-Sue" letter. Under either circumstance,
if you choose to bring a lawsuit, you must resolve the
dispute through binding arbitration. If you are em-
ployed in California and file a wage claim with the Cal-
ifornia Division of Labor Standards Enforcement
(DLSE), you may proceed through their process and
any administrative hearing. Any appeal of a decision
made by the DLSE, however, must be resolved through
binding arbitration. You must initiate the arbitration
process as described below within the applicable statute
of limitations for the claim at issue.
Applying Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), and U-Haul Co. of California, 347
NLRB 375 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir.
2007), among other cases, the judge found that employ-
ees would reasonably interpret the Agreement as restrict-
ing their right to file unfair labor practice charges with
the Board. The judge observed that the Agreement con-
tains broad language regarding the scope of its applica-
bility and that, although the Agreement exempts
“[m]atters within the jurisdiction of the National Labor
Relations Board,” this exception follows a list of covered
claims that include matters that could be the subject of
unfair labor practice charges, including discrimination or
harassment on an unlawful basis, retaliation for com-
plaining about discrimination or harassment, retaliation
for exercising protected rights under any statute, wrong-
ful termination or constructive discharge, and violations
of any Federal statute, including the Taft-Hartley Act.
Accordingly, the judge found the Agreement unclear and
held that the Respondent “must bear the burden of such
ambiguity.” The judge stated that a reasonable employ-
ee, unversed in labor and employment law, would not
necessarily glean from the competing terms of the
Agreement that he or she retained the right to invoke the
Board’s processes and procedures. My colleagues adopt
the judge’s finding of a violation for the reasons ex-
pressed in her decision.
For the reasons that follow, I concur in finding that the
Agreement violates Section 8(a)(1) because it interferes
with employees’ right to file unfair labor practice charges
with the Board.14
To begin, I agree with the judge and my colleagues
that the Agreement is ambiguous about whether NLRA
claims are subject to mandatory arbitration. On the one
hand, the Agreement includes, as covered claims, matters
that could be the subject of unfair labor practice charges
and “violations of any . . . federal statute[,]” including
the “Taft-Hartley Act.”15 On the other hand, the Agree-

14 As I have stated elsewhere, I disagree with prong one of the Lu-
theran Heritage test, including the principle that mere ambiguity is
sufficient to invalidate a workplace rule or policy. See William Beau-
mont Hospital, 363 NLRB No. 162, slip op. at 7–24 (2016) (Member
Miscimarra, concurring in part and dissenting in part). See also Apple-
bee’s Restaurant, 363 NLRB No. 75, slip op. at 3 fn. 7 (Member
Miscimarra, concurring in part and dissenting in part).
15 As I have previously observed, many people regard “Taft-Hartley
Act” as another name for the NLRA. See GameStop Corp., 363 NLRB
No. 89, slip op. at 4 fn. 10 (2016) (Member Miscimarra, concurring in
part and dissenting in part). As explained in GameStop:
The NLRA (also called the Wagner Act) was originally adopted in
1935. However, n 1947, Congress substantially amended the NLRA
as part of the Labor Management Relations Act (LMRA), also com-
monly called the Taft-Hartley Act. Here, it may be helpful to under-
stand that the Taft-Hartley Act consisted of multiple sections, orga-
nized by “Titles.” Thus, Taft-Hartley Sec. 101, set forth within Title I,
restated the entire amended NLRA, and the amended NLRA became
widely known as the “Taft-Hartley Act.” However, other sections and
Titles within the Taft-Hartley Act addressed labor-related matters to-
tally separate from the NLRA, such as the Federal Mediation and
ACUITY SPECIALTY PRODUCTS 7
ment specifically excludes from covered claims
“[m]atters within the jurisdiction of the National Labor
Relations Board.” Thus, the Agreement suggests that
NLRA claims are both excluded from and included with-
in its scope. Even if the Agreement covers NLRA
claims, however, I do not believe this aspect of the
Agreement, standing alone, establishes that the Agree-
ment unlawfully interferes with NLRB charge filing, at
least if the Agreement otherwise preserves the right of
employees to file charges with the NLRB.16
Nonetheless, for the reasons expressed below, I believe
that the Agreement does unlawfully interfere with the
right to file charges with the NLRB, notwithstanding the
section of the Agreement entitled: “THE ROLE OF
GOVERNMENT AGENCIES CONCERNING
CERTAIN COVERED CLAIMS,” quoted in full above.
In my view, the Agreement’s language regarding poten-
tial NLRB charge filing is problematic in several re-
spects.
First, the Agreement states that “[s]ome Covered
Claims are claims that may be filed with a governmental
agency, such as the Equal Employment Opportunity
Commission (EEOC) or an equivalent state agency.”
This language would seemingly permit the filing of
NLRB charges,17 and this is reinforced by subsequent
language that refers to two types of covered claims—
involving alleged “discrimination or harassment”—that
potentially may arise under the NLRA.18 However, the

Conciliation Service (FMCS) and procedures for resolving national
emergencydisputes (Title II), and various unlawful payments involv-
ing employers or labor organizations and court jurisdiction over cer-
tain labor disputes (Title III), among other things.
Id.
16 As I have previously indicated, decades of Board and court case
law, including the Board’s decision in Babcock & Wilcox Construction
Co., 361 NLRB No. 132 (2014), establish that parties may lawfully
agree to submit NLRA claims to arbitration, provided they do not oth-
erwise interfere with NLRB charge filing. See Applebee’s Restaurant,
363 NLRB No. 75, slip op. at 2–5 (Member Miscimarra, concurring in
part and dissenting in part); GameStop, 363 NLRB No. 89, slip op. at 4-
5 fn. 10 (Member Miscimarra, concurring in part and dissenting in
part); Ralph’s Grocery Co., 363 NLRB No. 128, slip op. at 6–7 & fn.
15 (2016) (Member Miscimarra, concurring in part and dissenting in
part).
17 If an arbitration agreement encompasses NLRA claims while pre-
serving the right of employees to file charges with an administrative
agency, I believe this may be sufficient to protect NLRB charge filing,
even though the NLRB is not mentioned by name. See, e.g., Apple-
bee’s Restaurant, above, slip op. at 4 (Member Miscimarra, concurring
in part and dissenting in part) (finding the employer’s Dispute Resolu-
tion Program did not unlawfully interfere with Board charge filing
where the Program stated that it “will not prevent [employees] from
filing a charge with any state or federal administrative agency”).
18 Sec. 8(a)(3) of the Act makes it unlawful for an employer to en-
gage in “discrimination . . . to encourage or discourage membership in
any labor organization.” The Act does not expressly prohibit harass-
more detailed agency procedures described in this section
of the Agreement are associated with the Equal Em-
ployment Opportunity Commission and equivalent State
agencies, and the described procedures differ substantial-
ly from those applicable to NLRB charges and com-
plaints.19
Second, not only does the Agreement potentially en-
compass NLRA violations among those that are deemed
“Covered Claims,” it further states that if an employee
chooses to utilize arbitration, he or she “will be asked to
sign a voluntary waiver of the right to file charges with
an agency” (emphasis added). This statement is prob-
lematic because it is unlawful for an employer or union,
in connection with the arbitration of NLRA claims, to
interfere with the right to file NLRB charges, and seek-
ing an employee waiver of the right to file NLRB charg-
es constitutes such interference.20 Requiring or seeking

ment, but “harassment” could reasonably characterize retaliation
against an employee based on NLRA-protected concerted activity
(which would violate Sec. 8(a)(1) of the Act) or based on the employ-
ee’s filing of charges or giving testimony in an NLRB proceeding
(which would violate Sec. 8(a)(4) of the Act).
19 For example, claims alleging violations of the NLRA are initiated
with the filing of a charge with an NLRB Regional Office. From that
point forward, the NLRB’s General Counsel decides whether or not to
issue a complaint, and under NLRA Sec. 3(d) the General Counsel’s
decision is unreviewable. If the General Counsel decides not to issue a
complaint, that is the end of the matter: there is no private right of
action under the NLRA, so the charging party cannot file a lawsuit in
State or Federal court alleging a violation of the NLRA. By contrast,
the Agreement here describes procedures that apply to the processing of
claims filed with the Equal Employment Opportunity Commission or
equivalent State agencies. It states that if the “agency” determines
“there is not cause to believe that a law was violated,” it “will issue to
you a document generally known as a ‘Notice of Right-to-Sue’ letter.”
Alternatively, if the agency believes that a law has been violated, it will
attempt to settle the matter, and if the matter is not settled, the agency
“may either sue the Company on your behalf or it will issue a ‘Notice
of Right-to-Sue’ letter,” whereupon the complainant may “choose to
bring a lawsuit.” None of these procedures has anything to do with the
filing of charges with, or the processing of charges by, the NLRB.
Indeed, almost all of the language in this section of the Agreement
refers to EEOC-type claims.
The section also discusses wage claims filed with the California Di-
vision of Labor Standards Enforcement and mandates that any appeal
of a decision made through that entity must be resolved through bind-
ing arbitration. This also has no relationship to NLRB charge filing.
20 See SolarCity Corp., 363 NLRB No. 83, slip op. at 11 (2015)
(Member Miscimarra, dissenting) (“The protection afforded to Board
charge-filing is important because the filing of a charge is prerequisite
to Board review of unfair labor practice issues. Consequently, an
agreement that prohibits filing Board charges violates Section 8(a)(1) if
entered into by an employer, and Section 8(b)(1)(A) if entered into by a
union.”) (fns. omitted).
The nature of the waiver request here distinguishes this case from
Banner Estrella Medical Center, 362 NLRB No. 137 (2015). In Ban-
ner Estrella, I found that an employer did not violate the NLRA by
requesting that employees refrain, for the duration of a workplace in-
vestigation, from disclosing what was discussed during an investigative
meeting. Id., slip op. at 7-21 (Member Miscimarra, dissenting in part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
such a waiver would purport to limit the Board’s
postarbitration review of any resulting arbitrator’s award,
contrary to Section 10(a) of the Act21 and the Board’s
longstanding case law regarding deferral to arbitration.22
As noted above, it remains possible that the Agreement
was not intended to require the arbitration of NLRA
claims. The Agreement states that “[m]atters within the
jurisdiction of the National Labor Relations Board” are
excluded from the term “Covered Claims.” However,
the Agreement also includes within the term “Covered
Claims” allegations that the employer has violated the
“Taft-Hartley Act.” See fn. 22, below. Although this
presents a close question, I believe the inclusion of
claims under the Taft-Hartley Act among “Covered
Claims” would prompt employees to reasonably regard
the Agreement as requiring the arbitration of NLRA
claims. And as to the arbitration of NLRA claims, the
Agreement’s further statement that the Respondent
would seek a waiver “of the right to file charges” with an
agency (like the NLRB) impermissibly interferes with
the filing of the very charges that would be prerequisite
to obtaining postarbitration Board review. In this re-
spect, I believe the Agreement violates Section 8(a)(1) of
the Act.
Accordingly, I respectfully dissent in part and concur
in part in the instant case.
Dated, Washington, D.C. May 16, 2016

This is entirely different from seeking a waiver of the right to file
NLRB charges in connection with the arbitration of NLRA claims
because (among other things) an employee would regard such a waiver
as precluding him or her from seeking postarbitration NLRB review of
the award.
21 Sec. 10(a) of the Act states that the Board’s authority to resolve
unfair labor practices “shall not be affected by any other means of
adjustment or prevention that has been or may be established by
agreement, law, or otherwise.”
22 See, e.g., Spielberg Mfg. Co., 112 NLRB 1080 (1955); Olin
Corp., 268 NLRB 573 (1984); Babcock & Wilcox Construction Co.,
above. I dissented from the Board majority’s substantial modification
in Babcock of the standards governing deferral to arbitration, see Bab-
cock, above, slip op. at 14–24 (Member Miscimarra, concurring in part
and dissenting in part), but I agree that parties cannot lawfully seek to
foreclose potential postarbitration NLRB review. Indeed, when the
Board prospectively defers an unfair labor practice charge to arbitration
under Collyer Insulated Wire, 192 NLRB 837 (1971), the Board retains
jurisdiction for the purpose of possible postarbitration review. See,
e.g., United Technologies Corp., 268 NLRB 557, 561 (1984) (“Juris-
diction of this proceeding is hereby retained for the limited purpose of
entertaining an appropriate and timely motion for further consideration
upon a proper showing that either (a) the dispute has not, with reasona-
ble promptness after the issuance of this Decision and Order, either
been resolved by amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the grievance or arbitration
procedures have not been fair and regular or have reached a result
which is repugnant to the Act.”).
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate, maintain, and/or enforce an
arbitration policy known as the Alternative Dispute Res-
olution Policy (ADR arbitration policy) under which our
employees waive their right to maintain class or collec-
tive actions in all forums, whether arbitral or judicial.
WE WILL NOT promulgate and/or maintain our ADR
arbitration policy that our employees reasonably would
believe bars or restricts their right to file charges with the
National Labor Relations Board.
WE WILL NOT condition eligibility to participate in an
annual sales bonus program on our employees’ execution
of the ADR arbitration policy.
WE WILL NOT withhold bonuses from our employees
because they did not execute the ADR arbitration policy
or because they executed the ADR arbitration policy but
filed or participated in employment-related class or col-
lective claims against us.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our unlawful ADR arbitration policy
in all of its forms, or revise it in all of its forms to make
clear that the arbitration policy does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
signed the policy or to whom the policy was presented
ACUITY SPECIALTY PRODUCTS 9
that it has been rescinded or revised and, if revised, pro-
vide them a copy of the revised agreement.
WE WILL notify the court in which Lynn Woodford,
Doug Heffernan, and six coplaintiffs who signed the
ADR arbitration policy filed their wage claim that we
have rescinded or revised the ADR arbitration policy
upon which we based our motion to compel arbitration,
and WE WILL inform the court that we no longer oppose
the plaintiffs’ claim on the basis of the ADR arbitration
policy.
WE WILL restore eligibility for participation in our an-
nual sales bonus program to our employees who quali-
fied for bonuses under the performance standards of that
year’s annual sales bonus plan at any time since the
promulgation and implementation of the ADR arbitration
policy, for whom eligibility or participation or actual
compensation was withheld either because they did not
execute the ADR arbitration policy or because, notwith-
standing their execution of the ADR arbitration policy
they filed or participated in employment-related class or
collective claims against us.
WE WILL make employees whole for any losses they
may have suffered as a result of our unfair labor practic-
es, plus interest, and WE WILL reimburse the Charging
Parties and any other plaintiffs for any reasonable attor-
neys’ fees and litigation expenses that they may have
incurred in opposing our motion to compel arbitration,
plus interest.
ACUITY SPECIALTY PRODUCTS, INC. D/B/A ZEP,
INC.
The Board’s decision can be found at
www.nlrb.gov/case/32–CA–075221 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate and/or maintain an arbitra-
tion policy known as the Alternative Dispute Resolution
Policy (ADR arbitration policy) under which our em-
ployees waive their right to maintain class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT promulgate and/or maintain our ADR
arbitration policy that our employees reasonably would
believe bars or restricts their right to file charges with the
National Labor Relations Board.
WE WILL NOT condition eligibility to participate in an
annual sales bonus program on our employees’ execution
of the ADR arbitration policy.
WE WILL NOT withhold bonuses from our employees
because they did not execute the ADR arbitration policy
or because they executed the ADR arbitration policy but
filed or participated in employment-related class or col-
lective claims against us.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our unlawful ADR arbitration policy
in all of its forms, or revise it in all of its forms to make
clear that the arbitration policy does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
signed the policy or to whom the policy was presented
that it has been rescinded or revised and, if revised, pro-
vide them a copy of the revised agreement.
WE WILL restore eligibility for participation in our an-
nual sales bonus program to our employees who quali-
fied for bonuses under the performance standards of that
year’s annual sales bonus plan at any time since the
promulgation and implementation of the ADR arbitration
policy, for whom eligibility or participation or actual
compensation was withheld either because they did not
execute the ADR arbitration policy or because, notwith-
standing their execution of the ADR arbitration policy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
they filed or participated in employment-related class or
collective claims against us.
WE WILL make employees whole for any losses they
may have suffered as a result of our unfair labor practic-
es, plus interest.
ACUITY SPECIALTY PRODUCTS, INC. D/B/A ZEP,
INC.
The Board’s decision can be found at
www.nlrb.gov/case/32–CA–075221 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Amy L. Berbower, Esq., for the General Counsel.
Kurt A. Powell and Aja D. Moore, Esqs. (Hunton & Williams,
LLP), of Atlanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. This is an-
other case raising issues related to D. R. Horton, Inc., 357
NLRB 2277 (2012), enf. granted in part and denied in part 737
F.3d 433 (5th Cir. 2013). It was tried based upon a joint motion
and stipulation of facts dated April 15, 2014, which I approved
on April 17, 2014.
The initial charge in Case 32–CA–075221 was filed by Lynn
Woodford (Woodford) on February 23, 2012, and an amended
charge on January 24, 2013. On January 31, 2013, the Regional
Director for Region 32 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing in Case
32–CA–075221 alleging that Acuity Specialty Products, Inc.
d/b/a Zep inc. (Acuity or Respondent) violated the National
Labor Relations Act (the Act). Respondent filed an answer
denying the material allegations of the complaint and raising
certain affirmative defenses.
On March 13, 2013, the Regional Director for Region 32 of
the Board issued an amended complaint and notice of hearing
in Case 32–CA–075221 and an answer to this amended com-
plaint was filed on March 26, 2013.
The initial charge in Case 32–CA–102838 was filed by Doug
Heffernan (Heffernan) against the Respondent on April 15,
2013. On July 30, 2013, the Woodford case (32–CA–075221)
was consolidated with the Heffernan case (32–CA–102838)
pursuant to an order consolidating cases, consolidated com-
plaint, and notice of hearing (the consolidated complaint). Re-
spondent filed an answer to the consolidated complaint on Au-
gust 13, 2013, denying the material allegations of the consoli-
dated complaint and raising certain affirmative defenses.
On the entire record and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Georgia corporation with a principal office
and place of business in Atlanta, Georgia, and with various
other office locations throughout the United States including
Los Gatos, California. Respondent is engaged in the nonretail
sale and distribution of various product lines, including chemi-
cal cleaning products and equipment, which it sells to custom-
ers through its outside and inside sales representatives and other
distribution channels.
During the calendar year ending December 31, 2012, Re-
spondent, in conducting its operations described above, sold
and shipped goods from its Atlanta, Georgia facility valued in
excess of $50,000 to points in states outside the State of Geor-
gia. The parties have stipulated and I find that at all material
times, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges that Respondent violated
Section 8(a)(1) of the Act by promulgating, maintaining, and
enforcing an Alternative Dispute Resolution (ADR) Policy (the
ADR Policy or Policy) which: (1) interferes with employees’
Section 7 rights to engage in collective legal activity by binding
employees to an irrevocable waiver of their rights to participate
in collective and class litigation; (2) contains language which
employees would reasonably conclude prohibits or restricts
their right to file charges with the National Labor Relations
Board; (3) conditions employees’ eligibility to participate in
Respondent’s annual sales bonus program on their execution of
the ADR Policy; and (4) by construing the ADR Policy to deny
annual sales bonuses to employees who executed the Policy but
refused to waive their participation in class action or collective
legal activity.
Apart from denying the material allegations of the consoli-
dated complaint, and contesting the remedy sought by the Gen-
eral Counsel, Respondent further asserts that: (1) the ADR
Policy is not premised on unlawful considerations; (2) the
claims of the Charging Parties are preempted by the require-
ments of the Federal Arbitration Act (FAA) as it relates to the
Charging Parties’ agreement to arbitrate with Respondent; (3)
the consolidated complaint is based upon NLRB precedent
which was decided by an unlawfully constituted Board; (4) that
Respondent has paid bonuses to the Charging Parties because
they satisfied certain bonus program eligibility requirements
notwithstanding their execution of the ADR Policy and filing
individual claims in court after such execution; and (5) even if
the ADR Policy did not contain the provisions alleged to be
unlawful in the consolidated complaint, Respondent would
have taken the same actions regardless of such provisions.
ACUITY SPECIALTY PRODUCTS 11
III. FACTS
A. Respondent’s ADR Policy
Since December 2011, Respondent has maintained the fol-
lowing policy applicable to its sales representatives:
Alternative Dispute Resolution Policy and Agreement for
Disputes between a Sales Rep and Acuity Specialty Products,
Inc., doing business as Zep Sales and Service
December 1, 2011
Acuity Specialty Products, Inc. (the "Company") is commit-
ted to resolving all disputes in a fair, effective, and cost-
efficient manner. In an effort to achieve this goal, the Compa-
ny has designed and is implementing the alternative dispute
resolution (ADR) policy set forth below. The policy was
adopted to prevent the occurrence of costly and damaging
lawsuits between the Company and its Sales Representatives.
For the policy to be effective, the Company must rigorously
enforce it.
This policy and agreement does not have any effect on the
Company's Ethics Hotline. A Sales Representative who be-
lieves that Company personnel have committed violations of
the Company's Code of Conduct should continue to report the
violations by means of the Company's reporting system. The
Company reserves the right to exercise discretion in disciplin-
ing employees.
If you do not wish to accept this arbitration policy and agree-
ment, you will not be eligible to participate in the sales bonus
program, but your employment will not be affected in any
other way.
I. COVERED CLAIMS
A. This policy covers the following types of claims
which already exist or may arise in the future ("Covered
Claims"):
Commercial claims regarding the amount of money that one
party owes the other resulting from a transaction that has been
completed, such as the following examples:
Disputes regarding a Sales Representative's entitlement to a
commission on a specific sale.
Disputes regarding a Sales Representative's obligation to
share a commission with another Sales Representative.
Disputes regarding the Company's deduction of amounts from
a Sales Representative's commission.
Disputes among Sales Representatives regarding customers.
Disputes regarding the definition of a Sales Representative's
territory or right to service a particular customer.
Disputes regarding the compensation paid, owed or promised
to a Sales Representative.
Disputes regarding the Company's Sales Bonus Program.
Claims of discrimination or harassment on the basis of race,
sex, religion, national origin, age, disability or other unlawful
basis.
Claims of retaliation for complaining about discrimination or
harassment.
Claims of violations of any common law or constitutional
provision or federal, state, county, municipal or other gov-
ernmental statute, ordinance, regulation or public policy relat-
ing to workplace health and safety, voting, state service let-
ters, minimum wage and overtime, pay days, holiday pay, va-
cation pay, severance/separation pay, whistleblowing and
payment at termination.
Claims of violations of any other common law or constitu-
tional provision or federal, state, county, municipal or other
governmental statute, ordinance, regulation or public policy.
The following list reflects examples of some, but not all such
laws. This list is not intended to be all inclusive but simply
representative: Consolidated Omnibus Budget Reconciliation
Act (COBRA), Davis Bacon Act, Drug Free Workplace Act
of 1988, Electronic Communications Privacy Act of 1986,
Employee Polygraph Protection Act of 1988, Fair Credit Re-
porting Act, Fair Labor Standards Act, Family and Medical
Leave Act of 1993, Federal Omnibus Crime Control and Safe
Streets Act of 1968, The Hate Crimes Prevention Act of 1999,
The Occupational Safety and Health Act, Omnibus Transpor-
tation Employee Testing Act of 1991, Privacy Act of 1993,
Portal to Portal Act, The Taft-Hartley Act, Veterans
Reemployment Rights Act, and Worker Adjustment and Re-
training Notification Act (WARN).
Claims for breach of fiduciary duty.
Claims of retaliation for filing a protected claim for benefits
(such as workers' compensation) or exercising your protected
rights under any statute.
Claims of wrongful termination or constructive discharge.
Claims related to exceptions to the employment-at-will doc-
trine under applicable law.
Breach of any common law duty of loyalty, or its equivalent.
Claims to remedy a violation of contractual non-compete or
non-solicitation agreements, or the use or disclosure of trade
secrets or confidential information. However, except as pro-
vided in the following sentence, this policy and agreement
does not prevent the Company from seeking immediate and
temporary injunctive relief in court in connection with a vio-
lation of a contractual non-compete or non-solicitation
agreement or the use or disclosure of trade secrets or confi-
dential information. The Company will not have the right to
seek injunctive relief with respect to a claim involving a Sales
Representative who is a resident of the State of California and
who is subject to California law.
Any common law claim, including but not limited to defama-
tion, tortious interference, intentional infliction of emotional
distress or whistleblowing.
B. SPECIAL NOTICE REGARDING BRITTO LAWSUIT
Britto, et al v. Zep, Inc., Case No. VG-10553718, Alameda
Superior Court
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
This putative class action was filed by two sales representa-
tives who allege violations of California Labor Code §§
221and 2802 and California Business and Professions Code §
17200. The plaintiffs allege that Zep failed to reimburse Cali-
fornia sales representatives for out-of-pocket business ex-
penses and also took unlawful commission deductions. Zep's
position is that it properly reimbursed its California sales rep-
resentatives for all out-of-pocket business expenses and did
not take any unlawful commission deductions. While this
lawsuit was filed as a class action, no class has yet been certi-
fied.
YOU MAY BE A PUTATIVE CLASS MEMBER IN THIS
CLASS ACTION. IF YOU SIGN THIS ARBITRATION
AGREEMENT AND IF THE LAWSUIT IS NOT
CERTIFIED AS A CLASS ACTION, YOU WILL BE
PRECLUDED FROM FILING A LAWSUIT INDIVIDUALLY AGAINST
THE COMPANY WITH RESPECT TO THE MATTERS ALLEGED IN THE
LAWSUIT. YOU WOULD STILL BE ABLE TO PURSUE YOUR
POTENTIAL CLAIMS WITH RESPECT TO THE MATTERS ALLEGED IN
THE BRITTO ACTION BUT ONLY UNDER THE TERMS OF THIS
ARBITRATION AGREEMENT.
IF YOU SIGN THIS ARBITRATION AGREEMENT AND IF THE
LAWSUIT IS CERTIFIED AS A CLASS ACTION, THIS ARBITRATION
AGREEMENT WILL HAVE NO EFFECT ON YOUR CONTINUED OR
FUTURE PARTICIPATION IN THE CLASS ACTION. PLEASE CONSULT
AN ATTORNEY IF YOU HAVE ANY QUESTIONS ABOUT THIS
ARBITRATION AGREEMENT OR ITS EFFECT.
THE ROLE OF GOVERNMENT AGENCIES CONCERNING CERTAIN
COVERED CLAIMS
Some Covered Claims are claims that may be filed with a
governmental agency, such as the Equal Employment Oppor-
tunity Commission (EEOC) or an equivalent state agency.
Such claims include those for discrimination or harassment.
For these Covered Claims, you may either file a complaint
with these agencies or proceed to use the Company's dispute
resolution process set forth below. If you choose to proceed
directly to the Company's dispute resolution process, you will
be asked to sign a voluntary waiver of the right to file charges
with an agency. If you file a charge with the EEOC or equiva-
lent state agency, you must file such a claim within the time
period permitted by law after the date the alleged event oc-
curred. The agency that receives the claim then has the right
under applicable law to investigate the claim. Once this inves-
tigation has been completed, the agency will make a determi-
nation. The agency may determine that there is not cause to
believe that a law was violated and will issue to you a docu-
ment generally known as a "Notice of Right-to-Sue" letter. If
the agency believes that there is cause to believe that a viola-
tion of law occurred, then the agency will proceed to see if the
charge may be settled. If the charge is not settled, the agency
may either sue the Company on your behalf or it will issue a
"Notice of Right-to-Sue" letter. Under either circumstance, if
you choose to bring a lawsuit, you must resolve the dispute
through binding arbitration. If you are employed in California
and file a wage claim with the California Division of Labor
Standards Enforcement (DLSE), you may proceed through
their process and any administrative hearing. Any appeal of a
decision made by the DLSE, however, must be resolved
through binding arbitration. You must initiate the arbitration
process as described below within the applicable statute of
limitations for the claim at issue.
WHAT IS NOT A COVERED CLAIM?
Disputes regarding the interpretation of the Sales Repre-
sentative Exclusive Account Agreement or any similar doc-
ument between the Company and you that describes the
terms of your employment and the basis of your compensa-
tion, other than those claims specifically listed under
"Covered Claims."
Claims for workers' compensation benefits, except for claims
of retaliation.
Claims for benefits under a written employee pension or wel-
fare benefit plan, including claims covered under ERISA.
Claims for unemployment compensation benefits.
Criminal charges.
Matters within the jurisdiction of the National Labor Rela-
tions Board.
ii. INTERNAL DISPUTE RESOLUTION PROCEDURES
If a Sales Representative has a dispute concerning a Covered
Claim with the Company, the Sales Representative and the
Company must follow the procedures described in this Policy
to resolve the dispute.
If a Sales Representative believes that he or she has a Covered
Claim, the Sales Representative should notify his or her Re-
gional Sales Manager and Director of Sales (Regional Sales
Management). If a Sales Representative feels uncomfortable
reporting a Covered Claim to his or her supervisor, he or she
should immediately report the matter to the Vice President,
General Counsel of the Company. The Company's Vice Pres-
ident, General Counsel may use his or her discretion to refer
the matter to the appropriate level for handling.
If the Sales Representative and his or her Regional Sales
Management cannot resolve a dispute concerning a Covered
Claim, and the dispute was not directly reported to the Vice
President, General Counsel of the Company, the Sales Rep-
resentative will refer the dispute to the Executive Vice
President of the Eastern Region or the Western Region, as the
case may be for Zep Sales and Service, North America.
The Sales Representative will refer the dispute to the Execu-
tive Vice President by sending him or her an e-mail, request-
ing that the dispute be resolved by the Executive Vice Presi-
dent.
The Sales Representative will copy the Vice President, Gen-
eral Counsel of the Company on the e-mail so that he or she
can make sure that this procedure is followed.
The Sales Representative will send to the Executive Vice
President any information, such as documents, copies of e-
mails or summaries of conversations that he or she believes is
relevant to the dispute.
ACUITY SPECIALTY PRODUCTS 13
The Executive Vice President will arrange a face-to-face
meeting with the Sales Representative at a time and place that
is mutually convenient for both parties.
The Executive Vice President will attempt to conduct the
face-to-face meeting within two weeks of receipt of materials
from the Sales Representative. However, for the purpose of
minimizing expense, the meeting may be delayed until the
Executive Vice President's next visit to the Sales Representa-
tive's vicinity, unless the delay would be unreasonable. In any
event, the Executive Vice President will conduct the face-to-
face meeting with the Sales Representative within six weeks
of receipt of material from the Sales Representative.
The Executive Vice President may discuss the dispute with
anyone who may, in his or her opinion, have relevant infor-
mation, including the Sales Representative's Regional Sales
Management. However, the Regional Sales Management will
not participate in the face-to-face meeting.
The Sales Representative may ask other Company personnel
who have knowledge relevant to the dispute to participate in
the meeting.
The Executive Vice President will document his or her find-
ings regarding the dispute in a letter to the Sales Representa-
tive. The letter will state the Executive Vice President's con-
clusions regarding the relevant facts, will include a discussion
of the relevant Company policies or practices and will explain
the decision reached. He or she will assemble a file of the
material considered in case it becomes necessary for the dis-
pute to receive further consideration.
If the Sales Representative and the Executive Vice President
are unable to resolve the dispute, the dispute will be referred
to a panel consisting of the Group President, Zep Sales &
Service - North America, the Chief Administrative Officer of
the Company and the Vice President, Human Resources of
the Company.
The panel will review the file assembled by the Executive
Vice President. It may ask the Sales Representative or other
Company personnel to supply additional information. It may
discuss the dispute with other Company personnel, including
the Regional Sales Management and the Executive Vice Pres-
ident.
The panel will conduct a face-to-face meeting with the Sales
Representative at a mutually convenient time, generally with-
in two weeks of the referral of the matter to them.
Neither the Executive Vice President nor the Regional Sales
Management will participate in the face-to-face meeting.
The panel will document its findings regarding the dispute in
a letter to the Sales Representative. Such letter shall be sent
by a nationally recognized overnight courier service, with de-
livery requiring the signature of an adult resident of the
household, to the sales representative’s most current home
address on file with Human Resources. It is the responsibility
of each sales representative to ensure that Human Resources
has his or her current home address. The letter will state the
panel's conclusions regarding the relevant facts, will include
a discussion of the relevant Company policies or practices
and will explain the decision reached. The panel will as-
semble a file of the material considered in case it becomes
necessary for the dispute to receive further consideration.
III. ARBITRATION AGREEMENT
If the Sales Representative and the Company are unable
to resolve a dispute concerning a Covered Claim through
the procedure described above, the dispute will be deter-
mined by binding arbitration in Atlanta, Georgia, before a
single neutral arbitrator. Any arbitration under this Agreement
will take place on an individual basis; class arbitrations and
class actions are not permitted and are waived under this
Agreement.
NO COVERED CLAIM MAY BE INITIATED OR
MAINTAINED ON A CLASS, COLLECTIVE OR
REPRESENTATIVE ACTION BASIS EITHER IN
COURT OR UNDER THESE RULES, INCLUDING IN
ARBITRATION. ANY COVERED CLAIM
PURPORTING TO BE BROUGHT AS A CLASS
ACTION, COLLECTIVE ACTION OR
REPRESENTATIVE ACTION WILL BE DECIDED
UNDER THESE RULES AS AN INDIVIDUAL CLAIM.
THE EXCLUSIVE PROCEDURE FOR THE
RESOLUTION OF ALL CLAIMS THAT MAY
OTHERWISE BE BROUGHT ON A CLASS,
COLLECTIVE OR REPRESENTATIVE ACTION BASIS,
WHETHER PARTICIPATION IS ON AN OPT-IN OR
OPT-OUT BASIS, IS THROUGH THESE RULES,
INCLUDING FINAL AND BINDING ARBITRATION,
ON AN INDIVIDUAL BASIS. A PERSON COVERED BY
THESE RULES MAY NOT PARTICIPATE AS A CLASS
OR COLLECTIVE ACTION REPRESENTATIVE OF A
CLASS, COLLECTIVE OR REPRESENTATIVE
ACTION MEMBER OR BE ENTITLED TO A
RECOVERY FROM A CLASS,COLLECTIVE OR
REPRESENTATIVE ACTION.
ANY ISSUE CONCERNING THE VALIDITY OF THIS
CLASS ACTION, COLLECTIVE ACTION AND
REPRESENTATIVE ACTION WAIVER MUST BE
DECIDED BY A COURT, AND AN ARBITRATOR DOES
NOT HAVE AUTHORITY TO CONSIDER THE ISSUE
OF THE VALIDITY OF THIS WAIVER. IF FOR ANY
REASON THIS CLASS, COLLECTIVE AND
REPRESENTATIVE ACTION WAIVER IS FOUND TO
BE UNENFORCEABLE, THE CLASS, COLLECTIVE OR
REPRESENTATIVE CLAIM MAY ONLY BE HEARD IN
COURT AND MAY NOT BE ARBITRATED UNDER
THESE RULES. AN ARBITRATOR APPOINTED
UNDER THESE RULES SHALL NOT CONDUCT A
CLASS, OR COLLECTIVE OR REPRESENTATIVE
ACTION ARBITRATION AND SHALL NOT ALLOW
YOU TO SERVE AS A REPRESENTATIVE OF OTHERS
IN AN ARBITRATION CONDUCTED UNDER THESE
RULES.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
This Agreement evidences a transaction in inter-
state commerce, and thus the Federal Arbitration
Act governs the interpretation and enforcement of
this Agreement or if that Act is held to be inapplica-
ble for any reason, the arbitration law in the State of
Georgia will apply.
A. Notice of Intent to Arbitrate
A Sales Representative who intends to seek arbitration must
first send to the Company, by certified mail, a written Notice
of Intent to Arbitrate ("Notice"). The Notice to the Compa-
ny should be addressed to: Vice President, General Coun-
sel, Acuity Specialty Products, Inc., 1310 Seaboard Industrial
Dr., Atlanta, GA 30318 ("Notice Address"). The Notice must
(a) describe the nature and basis of the claim or dispute; and
(b) set forth the specific relief sought. If the Company in-
tends to seek arbitration, it must first send to the Sales Repre-
sentative, by certified mail, a written Notice of Intent to Arbi-
trate ("Notice"). The Notice to the Sales Representative
should be addressed to the current address on file for the Sales
Representative. ("Notice Address for Sales Representative").
The Notice must (a) describe the nature and basis of the claim
or dispute; and (b) set forth the specific relief sought. If the
Company and the Sales Representative do not reach an
agreement to resolve the claim within 30 days after the Notice
is received, the Sales Representative or the Company may
commence an arbitration proceeding. During the arbitration,
the amount of any settlement offer made by the Company or
the Sales Representative, if any, shall not be disclosed to the
arbitrator.
B. Deadline for Filing Notice of Intent to Arbitrate
Any claim brought under this Agreement must be submitted
within the applicable statute of limitations for the claim at is-
sue
C. Arbitration Venue and Rules
The arbitration will be administered by JAMS pursuant to
JAMS' Streamlined Arbitration Rules and Procedures.
JAMS is a private, for-profit provider of alternative dispute
resolution services. The Company does not have any agree-
ment with JAMS related to any subject.
A copy of the JAMS Streamlined Arbitration Rules and Pro-
cedures have been attached to this Agreement and are availa-
ble online at http://www.jamsadr.com/rules¬ streamlined-
arbitration/. It is the responsibility of each Sales Representa-
tive to review and abide by JAMS' arbitration rules. Sales
Representatives agree that they have been advised that they
may have counsel of their choosing review and explain the
arbitration rules to them at their expense. Sales Representa-
tives may retain a lawyer to assist him or her in the arbitration
at their own expense.
JAMS will charge the Company a fee for arbitrating the dis-
pute between the Company and the Sales Representative. The
Company will pay the fee unless the arbitrator decides that the
Sales Representative was not entitled to any recovery or any
aspect of the non-monetary relief sought, in which case, the
Sales Representative will pay the fee. In the event that the
Sales Representative is required to pay the fee, the amount the
Sales Representative will be required to pay will be capped at
or below the equivalent state or federal court filing fee,
whichever is lower. If state law does not allow for payment
of a fee to access arbitration, the requirement for the Sales
Representative to pay the fee will be waived or, if the Sales
Representative mistakenly sends a fee payment when it is not
required, it will be refunded.
Any offers, promises or statements, whether oral or written,
made in the course of the negotiation by the Company and
the Sales Representative prior to the referral of the dispute for
resolution by JAMS are confidential, privileged and inadmis-
sible for any purpose, including impeachment, in the arbitra-
tion.
Other than the issues expressly excluded by this Agreement,
all issues are for the arbitrator to decide, including the scope
of this arbitration provision, but the arbitrator is bound by the
terms of this Agreement.
Remedies, including statutory awards of attorneys' fees and
costs but excluding class remedies, are available through the
arbitration process, if permitted by the applicable state or fed-
eral law.
Initiation of, participation in, or removal of a court proceeding
does not constitute waiver of the right or obligation to arbi-
trate under these Rules.
D. Severability
If any one or more of the terms or provisions of this Agree-
ment shall be determined by a court of competent jurisdiction
to be unconscionable, invalid, void or unenforceable, the re-
mainder of the terms, provisions, covenants and restrictions
shall remain in full force and effect, and the invalid, void or
unenforceable provisions shall be deemed severable. Moreo-
ver, any term or provision found to be unconscionable, inva-
lid, void or unenforceable shall be reformed by limiting and
reducing it to the minimum extent necessary, so as to be en-
forceable to the extent compatible with the applicable law.
E. Entire Agreement
This Agreement sets forth the entire agreement between the
parties hereto and fully supersedes any and all prior agree-
ments or understandings, written or oral, between the parties
hereto pertaining to the subject matter hereof.
F. Amendment
This Agreement may be amended only in writing signed by
you and by a duly authorized representative of the Company
(other than you).
YOU SHOULD READ THE PROVISIONS OF THIS
ARBITRATION POLICY AND AGREEMENT
CAREFULLY, AS IT PROVIDES THAT ANY EXISTING
AND FUTURE DISPUTES RELATED TO YOUR
EMPLOYMENT RELATIONSHIP, INCLUDING YOUR
INDIVIDUAL CLAIM, IF ANY, WITH RESPECT TO THE
MATTERS ALLEGED IN THE BRITTO v. ZEP
ACUITY SPECIALTY PRODUCTS 15
LITIGATION (IF SUCH LAWSUIT IS NOT CERTIFIED
AS A CLASS ACTION), MUST BE RESOLVED ONLY
THROUGH BINDING ARBITRATION. IF YOU DO NOT
WISH TO ACCEPT THIS ARBITRATION AGREEMENT.
YOU WILL NOT BE ELIGIBLE TO PARTICIPATE IN
THE SALES BONUS PROGRAM. BUT YOUR
EMPLOYMENT WILL NOT BE AFFECTED IN ANY
OTHER WAY. THIS AGREEMENT TO ARBITRATE
DISPUTES WILL SURVIVE THE SALES BONUS
PROGRAM AND IS IRREVOCABLE.
By signing and dating below, I am choosing to arbitrate both
existing and future claims in accordance with this arbitration
policy and agreement. I understand that my decision to sign or
not sign this form will not be used as a basis for the Company
to take any adverse employment action against me.
B. STIPULATIONS OF THE PARTIES AND SUPPORTING EVIDENCE
The stipulations of the parties and the documents in support
thereof reflect the following:
At all material times, Tom Moffett has held the position of
President and has been a supervisor of Respondent within the
meaning of Section 2(11) of the Act and an agent of Respond-
ent within the meaning of Section 2(13) of the Act.
Woodford has been employed by Respondent as an outside
sales representative in Northern California since 1990 and Hef-
fernan was employed by Respondent as an outside sales repre-
sentative in Northern California from 1983 until June 30, 2013.
Respondent pays its sales representatives, including Wood-
ford and Heffernan (while he was employed), compensation
based upon a commission of their sales. For purposes of this
litigation only, the Employer admits that all of its sales repre-
sentatives working in the United States, including Woodford
and Heffernan (during his period of employment with Re-
spondent), are employees within the meaning of Section 2(3) of
the Act.
During the time period for 2007 to the present, Respondent
has offered its sales representatives various bonus programs.
The bonus programs have been offered at the discretion of Re-
spondent and at no time have been guaranteed.
During the time period for 2007 to the present, and for each
year during that period, Respondent has offered annual sales
bonus programs under which sales representatives nationwide
have been eligible to earn an annual sales bonus. Under these
annual sales bonus programs, sales representatives have been
required to satisfy certain performance standards which have
changed over time. The basic structure of the program has gen-
erally required sales representative to meet baseline sales goals
for each year and has provided incentives for increases in sales
and commission rates, attaining certain sales targets and man-
aging the past due status of accounts receivable.1
On December 30, 2010, two of Respondent’s employees
filed a putative class action in the Superior Court of the State of
California, Alameda County, Keith Britto et al. v. Zep, Inc., et
al., Case No. VG 10553718 (the Britto Action), alleging viola-
tions of California’s Labor Code with respect to the sales repre-

1 Copies of the Fiscal Year (FY) 2008, 2009, 2010, and 2011 bonus
plans are reflected in Jt. Exhs. N through Q respectively.
sentatives’ expense reimbursements and pay structure. The
Britto Action involved a putative class of approximately 175
current and former California sales representatives of Respond-
ent, including Woodford and Heffernan.
In November 2011, Respondent presented its sales repre-
sentatives in the United States with an opportunity to partici-
pate in an alternative dispute resolution program that was im-
plemented on a national basis. Sales representatives had the
opportunity to participate in the alternative dispute resolution
program by executing the “Alternative Dispute Resolution Pol-
icy and Agreement for Disputes between a Sales Rep and Acui-
ty Specialty Products, Inc., doing business as Zep Sales and
Service” (the ADR Policy, as set forth above).
Respondent communicated the opportunity to participate in
the ADR Policy program to its sales representatives in Novem-
ber of 2011. The ADR Policy was explained to its sales repre-
sentatives, including Woodford and Heffernan in writing via a
letter dated November 18, 2011.2 The letter also enclosed the
ADR Policy.3 Respondent’s sales representatives were not re-
quired to sign the ADR policy as a condition of continued em-
ployment with Respondent.
The ADR Policy was further explained in writing to its sales
representatives including Woodford and Heffernan, via a letter
dated December 5, 2011.4
Beginning in Fiscal Year (FY) 2012, Respondent included
participation in the ADR Policy program as an eligibility re-
quirement for the sales bonus program. The requirement of
participation is in addition to the performance standards. Prior
to FY 2012, Respondent did not require sales representatives to
sign an ADR Policy or any other agreement to arbitrate dis-
putes in order to be eligible to participate in its annual sales
bonus program.
Respondent’s fiscal year runs from September 1 through
August 31 of the following year. Sales representatives who
qualify for an annual sales bonus are generally paid the bonus
in October following the end of the fiscal year in which it was
earned.
Bonus payments under the sales bonus programs from FY
2012 to FY 2013 ranged from approximately $1300 to approx-
imately $97,500. The lowest bonus reflected approximately 4
percent of the annual compensation of the sales representative
receiving it, and the largest bonus reflected approximately 15
percent of the annual compensation of the sales representative
receiving it.
For FY 2012, Respondent offered the ADR Policy to its 651
sales representatives nationwide. Four-hundred fifty-four (454)
representatives accepted and executed the ADR Policy. One-
hundred ninety-seven (197) representatives declined to partici-
pate in the ADR Policy program. Approximately 24 of the 197
sales representatives who did not sign the ADR Policy would
have qualified for the annual sales bonus based upon the per-
formance criteria established for the FY 2012 annual sales bo-
nus program, but were not eligible to participate in the FY 2012

2 A copy of the letter sent to sales representatives, including Wood-
ford and Heffernan is in the record as Jt. Exh. R.
3 Jt. Exh. S.
4 Jt. Exh. T.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
annual sales bonus program because they did not sign the ADR
Policy. Sales representatives who elected not to sign the ADR
Policy were not eligible to participate in the annual bonus pro-
gram. The General Counsel is unaware of, and does not con-
tend that, any other adverse action was taken by Respondent as
a result of a sales representative not signing the ADR Policy.
Aside from implementing the ADR Policy, the General Counsel
is unaware of, and does not contend that, any adverse action
was taken by Respondent as a result of any sales representative
bringing any matter before the NLRB.
On or about February 3, 2012, Respondent sent a follow-up
letter to sales representatives regarding the ADR Policy.5
Woodford signed the ADR Policy on or about February 14,
2012 and Heffernan signed it on February 16, 2012.6
The ADR Policy given to Respondent’s California
sales representatives included a provision permitting participa-
tion in the Britto Action. The Britto Action involved a putative
class of approximately 175 current and former California sales
representatives of Respondent, including Woodford and Hef-
fernan, until the Superior Court denied class certification on
May 7, 2012.
On June 4, 2012, following the denial of class certification in
the Britto Action, approximately 55 California sales representa-
tives, including Woodford and Heffernan, filed a motion to
intervene in the Britto Action. While the Superior Court initial-
ly granted the motion to intervene, on December 20, 2012, the
California Court of Appeal reversed the decision to grant inter-
vention in the Britto Action.
On August 30, 2012, Respondent , by Moffett, sent letters to
Woodford and Heffernan regarding their eligibility for annual
sales bonuses in FY 2012 advising each of them, in pertinent
part, as follows:7
On August 1, 2012, you filed a complaint as a named plaintiff
in the Superior Court of the State of California against the
Company and its parent, Zep, Inc. The Company considers
your suit to be a material breach of your ADR Agreement.
This letter is your notice that, because of your material breach
of the ADR Agreement, you are no longer eligible to partici-
pate in the Company’s bonus plan for California sales reps.
Therefore, you will not receive a bonus for fiscal year 2012.
In the event you notify us by September 7 that you will with-
draw the complaint you filed in court and proceed to arbitra-
tion, the Company will reconsider its position as to your bo-
nus eligibility
At all material times, sales representatives were not automat-
ically entitled to receive a bonus upon the execution of the
ADR Policy. Upon execution of the ADR Policy, sales repre-
sentatives became eligible to participate in the annual sales
bonus program. To earn a bonus under the program, eligible
sales representatives must satisfy the performance standards
and requirements set forth in the bonus plan for that year.98

5 Jt. Exh. U.
6 Jt. Exhs. V and W.
7 Jt. Exhs. X and Y, respectively.
8 Copies of the FY 2012, 2013, and 2014 bonus plans are set forth in
Jt. Exhs. Z through BB, respectively.
On or about November 21, 2012, Respondent sent a letter to
sales representatives giving them another opportunity to sign
the ADR Policy in order to become eligible for the FY 2013
sales bonus plan.9
For FY 2013, 428 sales representatives had ADR Policies in
place and were eligible to participate in the sales bonus plan.
For FY 2013, 169 sales representatives did not sign the ADR
Policy. Approximately six (6) of the 169 sales representatives
who did not sign the ADR Policy would have qualified for the
annual sales bonus based upon the performance criteria estab-
lished for the FY 2013 annual sales bonus program, but were
not eligible to participate in the FY 2013 annual sales bonus
program because they did not sign the ADR Policy. Sales rep-
resentatives who elected not to sign the ADR Policy were not
eligible to participate in the annual bonus program. The Gen-
eral Counsel is unaware of, and does not contend that, any other
adverse action was taken by Respondent as a result of a sales
representative not signing the ADR Policy.
On December 24, 2012, following the denial of class certifi-
cation and motion to intervene in the Britto Action, 54 former
putative class members, including Heffernan and Woodford,
filed another lawsuit alleging the same or similar claims as in
Britto. This pending lawsuit is styled Aguilar et al. v. Zep Inc.,
et al., U.S. District Court for the Northern District of California,
Case No. 3:13-CV-0563-RS (the Aguilar Action). 10
After the Aguilar Action was filed, Respondent moved to
compel arbitration as to Heffernan, Woodford and six (6) other
plaintiffs who signed the ADR Policy. The United States Dis-
trict court for the Northern District of California granted Re-
spondent’s motion to compel arbitration.11
After proceeding to arbitration pursuant to the ADR policy
and Court Order compelling arbitration, Respondent paid Hef-
fernan his bonus payment under the sales bonus program for
2012. He received a gross bonus of $27,894.51 for FY 2012.12
A final award has been issued in Heffernan’s arbitration.
After proceeding to arbitration pursuant to the ADR Policy
and the Court’s Order compelling arbitration, Respondent paid
Woodford her bonus payment under the sales bonus program
for FY 2012. She received a gross bonus of $17,319.19 for FY
2012.13 A final award has been issued in Woodford’s arbitra-

9 Jt. Exh. CC.
10 The complaint and answer in the Aguilar Action are Joint Exhibits
DD and EE respectively.
11 Joint Exhibits FF through MM reflect those documents filed in the
Aguilar Action relating to Respondent’s motion to compel arbitration.
These are, respectively: Defendants’ Notice of Motion and Motion to
Compel Arbitration filed on 02/11/13; Declaration of Y. Anna Suh in
Support of Defendants’ Motion to Compel Arbitration filed on
02/11/13; Declaration of Thomas Moffett in Support of Defendants’
Motion to Compel Arbitration filed on 02/11/13; Plaintiffs’ Opposition
to Motion to Compel Arbitration; Memorandum of Points and Authori-
ties in Support of same filed on 02/22/13; Evidence in Support of Plain-
tiffs’ Opposition to Motion to Compel Arbitration, filed on 02/22/13;
Supplemental Evidence in Support of Plaintiffs’ Opposition to Motion
to Compel Arbitration filed on 02/25/13; Order Denying Motion to
Enforce Settlement, Granting Motion to Compel Arbitration issued on
05/09/13.
12 A copy of the bonus check paid to Heffernan is Jt. Exh. NN.
13 A copy of the bonus check paid to Woodford is Jt. Exh. OO.
ACUITY SPECIALTY PRODUCTS 17
tion.
The ADR Policy was not promulgated in response to union
activity. Respondent’s sales representatives are not represented
by a labor organization.
IV. ANALYSIS AND CONCLUSIONS
A. Positions of the Parties
The General Counsel contends that Respondent has violated
Section 8(a)(1) of the Act by soliciting employees to sign, and
by maintaining and/or by enforcing the ADR Policy as the Pol-
icy interferes with employees’ Section 7 rights to engage in
collective legal activity. It is also contended that the Policy
violates the Act insofar as it interferes with employees’ access
to the Board and its processes. The complaint further alleges
that Respondent unlawfully conditioned employees’ eligibility
for and receipt of annual sales bonuses upon their execution of
and adherence to this policy. In support of the foregoing con-
tentions, the General Counsel relies primarily upon the Board’s
decision in D. R. Horton, Inc., 357 NLRB 2277 (2012).
The General Counsel urges that, notwithstanding the volun-
tary nature of the Policy, once signed it becomes a condition of
employment which precludes participation in Section 7 conduct
and that employees may reasonably expect that they may be
disciplined or face legal action if they breach the Policy. It is
further contended that the Policy interferes with the statutory
rights of all employees because even those employees who
decline to sign, are precluded from acting concertedly with
those who do.
Respondent argues that the ADR policy is lawful and en-
forceable under applicable Supreme Court precedent. It is fur-
ther contended that D.R. Horton is invalid and even if it was
valid such authority it would not be applicable to the instant
matter. Respondent further maintains that the Policy does not
violate the Act as it is voluntary and not a condition of contin-
ued employment; that it unambiguously exempts matters aris-
ing under the Act from coverage and does not restrict employ-
ees’ rights to file charges and seek redress before the Board.
Respondent further contends that conditioning employees’
eligibility to participate in the annual sales bonus program upon
execution of the Policy does not violate the Act.
B. The Board’s decision in D. R. Horton
Respondent has raised a number of arguments concerning
what it contends is the invalidity of the Board’s Decision and
Order in D.R. Horton, supra.
Respondent has argued that the Board's decision in D.R. is
invalid, because the Board lacked a valid quorum at the time
the decision issued. In particular, it challenged the validity of
Member Becker’s appointment to the Board. In National Labor
Relations Board v. Noel Canning, --- S.Ct. --- 2014, WL
2882090 U.C. Dist Col. 2014 (June 26, 2014), the Court found
that appointments made during a three day period beginning on
January 4, 2012 were unconstitutional. That decision does not
affect the composition of the Board at the time D. R. Horton
was issued, on January 3, 2012.14 Additionally, as was noted by

14 Although the D.C. Circuit held that then-Members Griffin and
Block were not validly appointed because they were appointed during
the Fifth Circuit upon review of D. R. Horton, Horton did not
challenge the constitutionality of Member Becker’s appoint-
ment, but argued instead that Member Becker’s appointment
expired before the decision issued, a contention echoed by the
Respondent here in its post hearing brief. The Fifth Circuit
asked the parties to submit briefing on the issue of the validity
of Member Becker’s appointment for jurisdictional reasons and
concluded review was warranted. In addition, the court found
that the issue of whether the Board’s decision was entered prior
to the expiration of Member Becker’s appointment was “un-
clear from the record” noting an “absence of proof” on that
issue. Noel Canning v. NLRB, 737 F.3d 344, 350–351 (D.C.
Cir. 2013). Moreover, I note that despite continuing challenges
to the composition of the Board at any particular time, it has
repeatedly held that it “is charged to fulfill its responsibilities
under the Act.” See, e.g., Universal Lubricants, LLC, 359
NLRB No. 157 at fn. 1 (2013); Belgrove Post Acute Care Cen-
ter, 359 NLRB No. 77, slip op. at 1 (2013). I conclude there-
fore, that unless and until reversed by the Board or the Supreme
Court, D. R. Horton remains extant Board law which, as an
administrative law judge, I am bound to follow. In addition, for
the reasons set forth below, I further adopt the reasoning and
conclusions reached by the Board in D. R. Horton, a result
which is supported by decades of well-established Board law
and doctrine.15
Respondent further relies upon the refusal of the Fifth Circuit
to enforce, in relevant part, that portion of the Board's Decision
and Order finding that an arbitration agreement which eliminat-
ed the right to initiate and pursue class or collective claims
violated Section 8(a)(1). D. R. Horton, Inc. v. NLRB, 737 F.3d
at 362. Respondent notes that other circuits addressing the issue
have held that arbitration agreements requiring the waiver of
class or collective actions do not violate Section 8(a)(1). Rich-
ards v. Ernst & Young, LLP, 734 F.3d 871 (9th Cir. 2013);
Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir.
2013); Owen v. Bistol Care, Inc., 702 F.3d 1050 (8th Cir.
2013).

an intrasession recess, the Supreme Court decided the matter on differ-
ent grounds. In particular, when the Supreme Court granted certiorari it
instructed the parties to brief and argue a question not initially present-
ed in the writ for certiorari: “Whether the President’s recess-
appointment power may be exercised when the Senate is convening
every three days in pro forma sessions.” Order Granting Certiorari,
NLRB v. Noel Canning, ---U.S. ---, 133 S.Ct. 2861 (2013); see also
D.R. Horton v. NLRB, 737 F. 3d at 350, fn. 3.
15 To the extent Respondent may contest the authority of the Gen-
eral Counsel to issue complaint in this matter, I note that the Board has
found that the General Counsel has independent authority to issue and
prosecute the complaint in this matter. Bloomingdale’s Inc., 359 NLRB
No. 113, slip op. at 1 (2013): “[u]nder the NLRA, the General Counsel
is an independent officer appointed by the President and confirmed by
the Senate, and staff engaged in the investigation and prosecution of
unfair labor practices are directly accountable to the General Counsel.”
(citing 29 U.S.C. Sec. 153(d); NLRB v. Food & Commercial Workers
Local 23, 484 U.S. 112, 127–128 (1987); NLRB v. FLRA, 613 F. 3d
275, 278 (D.C. Cir. 2010)). Thus, “[t]he authority of the General coun-
sel to investigate unfair labor practices and prosecute complaints de-
rives not from any ‘power delegated’ by the Board, but rather directly
from the language of the NLRA.” Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
With regard to these cited decisions, is well-settled that the
Board generally applies a “non-acquiescence policy” with re-
spect to contrary views of the Federal Courts of Appeal. See
D.L. Baker, Inc., 351 NLRB 515, 529, fn. 42 (2007); Pathmark
Stores, Inc., 342 NLRB 378, fn. 1 (2004). Thus, an administra-
tive law judge is required to “apply established Board precedent
which the Supreme Court has not reversed.” Pathmark Stores,
Inc., 342 NLRB at 378, fn. 1; see also Gas Spring Co., 296
NLRB 84, 97–98 (1989), enf. 908 F.2d 966 (4th Cir. 1990).
Respondent further argues that the Supreme Court has re-
peatedly recognized a long standing “liberal federal policy
favoring arbitration agreements” as embodied in the Federal
Arbitration Act (“FAA”) CompuCredit Corp. v. Greenwood, ---
U.S. ---, 132 S.Ct. 665, 668–669 (2012); see also American
Express Co. v. Italian Colors Restaurant, --- U.S. ---, 133 S.Ct.
2304, 2309 (2013). As the Court has stated, “[t] he principal
purpose of the FAA is to ensure that private arbitration agree-
ments are enforced according to their terms. This purpose is
readily apparent from the FAA’s text.” AT&T Mobility LLC v.
Concepcion, 131 S.Ct. 1740, 1748 (2011). Respondent argues
that this holds true for claims that allege a violation of a federal
statute, unless the FAA’s mandate has been overridden by a
“contrary Congressional command.” American Express Co.,
supra at 2309. Respondent has concluded therefore that the
ADR Policy lawfully precludes class or collective legal actions
because no such “contrary Congressional command” exists and
there is decisional law in other employment-related contexts
which supports the enforceability of arbitration agreements. See
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24
(1991) (holding that that a claim under the Age Discrimination
in Employment Act (ADEA) could be subjected to compulsory
arbitration pursuant to an agreement in a securities registration
application). Respondent further argues that the right to bring
or participate in a class action is a procedural device which is
subject to waiver. See Deposit Guar. Nat’l Bank v. Roper, 445
U.S. 326, 332 (1980).
I note that, in D. R. Horton, the Board considered these ar-
guments and related precedent and reached a different conclu-
sion to which I am bound.16 Moreover, I find, contrary to Re-
spondent, that the above cited precedent is not dispositive in the
context of the instant matter. In particular, the above-discussed
cases generally involve commercial transactions of a nature not
at issue here.17 The one case relied upon to demonstrate an

16 Although the Act does not reference class or collective actions,
the Board in D. R. Horton distinguished it from other statutes the Court
has considered by finding that Section 7 provides substantive guaran-
tees of the right to engage in collective action, including collective legal
action, for mutual aid and protection. As the Board stated, “the intent of
the FAA was to leave substantive rights undisturbed.” 357 NLRB, slip
op. at 11.
17 AT&T Mobility involved the claim that a class action waiver in an
arbitration clause of any contract of adhesion in the State of California
was unconscionable; CompuCredit Corp., involved actions brought by
consumers against the marketer of credit cards and application of the
Federal Credit Repair Organization Act (CROA). The Court held that
CROA provisions requiring credit repair organizations disclose to
consumers the right to sue over violations of CROA and prohibiting
waiver of that right nonetheless did not preclude enforcement of an
employment-related context, Gilmer, addresses neither the
substantive rights guaranteed under Section 7 nor the issue of a
class action waiver. The claim asserted in there was an individ-
ual one, and the arbitration agreement at issue contained no
language specifically waiving class or collective claims.18
In short, I conclude that the authority relied upon by Re-
spondent fails to address those fundamental substantive federal
labor rights of the nature, established by congressional legisla-
tion, as are involved here.
In this regard, I note, as did the Board in D. R. Horton, that
Section 2 of the FAA provides that arbitration agreements may
be invalidated in whole or in part upon any “grounds that exist
at law and in equity for the revocation of any contract.” 9
U.S.C. Section 2.
Here, the General Counsel does not contend, and it is not
subject to question that employees may enter into individual
agreements with their employers; the question is whether they
may do so at the expense of substantive rights conferred by the
Act. As the Supreme Court has found:
Individual contracts no matter what their circumstances that
justify their execution or what the terms, may not be availed
to defeat or delay procedures prescribed by the National La-
bor Relations Act . . . Wherever private contracts conflict with
[the Board’s] functions, they must obviously yield or the Act
would be reduced to a futility.
J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944).
Thus, as the Supreme Court has held, Respondent may enter
into various agreements with individual employees; however, it
is not privileged to reach those agreements with individuals
which conflict with rights protected by the Act. See also Na-
tional Licorice Co., v. NLRB, 309 U.S. 350, 360 (1940) (up-
holding Board’s finding that individual employment contracts
that included a clause discouraging, if not forbidding, a dis-
charged employee from presenting his grievance to the em-
ployer “through a labor organization or his chosen representa-
tives, or any way except personally” was unlawful and unen-
forceable.)
Moreover, even if one were to find a conflict between the
FAA and the NLRA, the Supreme Court has further held that
when two federal statutes conflict, the later enacted statute, here

arbitration agreement the parties had also executed. American Express
Co., decided after D. R. Horton, involved merchants who contracted
with American Express to accept American Express cards at their busi-
nesses, and were unhappy with the rates charged for use of their cards
at their respective businesses. Their agreements with American Express
provided for arbitration of disputes arising between the merchant and
American Express and further precluded any claims from being arbi-
trated as a class action. The statutes evaluated there were the Sherman
and Clayton Acts, which fail to reference class or collective actions.
The Court concluded that the “antitrust laws do not guarantee an af-
fordable procedural path to the vindication of every claim.” 133 S.Ct at
2309.
18 I further note that in Gilmer, supra, the Court found that there
would be a basis for invalidating an arbitration agreement where there
is an “inherent conflict between that arbitration and the underlying
purposes of another Federal statute, 500 U.S. at 26.
ACUITY SPECIALTY PRODUCTS 19
the NLRA,19 must be understood to have impliedly repealed
inconsistent provisions in the earlier enacted statute. See
Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976);
Chicago & N.W. Ry Co., v. United Trans. Union, 402 U.S. 570,
582 fn. 18 (1971); Posadas v. Nat’l City Bank, 296 U.S. 497,
503 (1936).
C. Respondent’s ADR Policy as Applied to its Employees Vio-
lates Section 8(a)(1) of the Act
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer to interfere with, restrain or coerce employees
in the exercise of rights guaranteed in Section 7. These rights
include the right “to form, join or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.”
In D. R. Horton, supra, slip op. at 2277, the Board held that
an employer violates Section 8(a)(1) of the Act, when it “re-
quires employees covered by the Act, as a condition of em-
ployment, to sign an agreement that precludes them from filing
joint, class or collective claims addressing their wages, hours or
other working conditions against the employer in any forum,
arbitral or judicial.” 20 The Board, relying upon cases dating
back through its tenure as a decisional body, found that con-
certed legal action addressing wages, hours and working condi-
tions has consistently fallen within the protections of Section 7
of the Act.
For example, in Trinity Trucking & Materials Corp., 221
NLRB 364, 365 (1975), enfd. mem. 567 F.2d 391 (7th Cir.
1977), cert. denied 438 U.S. 914 (1978), the Board held that the
filing of a lawsuit by a group of employees alleging that their
employer had failed to pay them contract scale was protected
activity. (“It is settled that the filing of a civil action by em-
ployees is protected activity unless done with malice or is in
bad faith . . .[B]y joining together to file the lawsuit [the em-
ployees] engaged in concerted activity”). In Le Madri Restau-
rant, 331 NLRB 269, 275-76 (2000), the Board found that an
employer unlawfully discharged two employees for engaging in
protected concerted activity, which included filing a lawsuit in
federal court on behalf of 17 other employees. The lawsuit
alleged violations of federal and state labor laws. In Novotel

19 The FAA was enacted in 1925, the Norris-LaGuardia Act was en-
acted in 1932 and the NLRA was enacted in 1935. While the FAA was
pro forma reenacted in 1947 it was done without substantive amend-
ment. See Bulova Watch Co. v. United States, 365 U.S. 753, 758
(1961); see also H.R Rep. No 80–251 (1947), reprinted in 1947
U.S.C.C.A.N. 1511 (expressly stating that the 1947 bill made “no at-
tempt” to amend the existing FAA); H.R. Rep. No. 80–225 (1947),
reprinted in 1947 U.S.C.C.A.N 1515 (same).
20 In D. R. Horton, the Board also found that the arbitration policy at
issue violated the Act by requiring all employees to submit all em-
ployment-related disputes to arbitration. The Board found that this
violated Section 8(a)(1) of the act because it would employees to rea-
sonably believe that they were prohibited from filing unfair labor prac-
tices with the Board. Here, the Respondent’s ADR Policy excludes
from its coverage matters within the jurisdiction of the Board, but the
General Counsel has contended that an employee would reasonably
believe that such charges were prohibited under the Policy. This con-
tention is discussed below.
New York, 321 NLRB 624, 633–636 (1996), the Board found
that an “opt-in” class action lawsuit alleging employer viola-
tions of the Fair Labor Standards Act (FSLA) was protected
concerted activity. In United Parcel Service, Inc., 252 NLRB
1015, 1018, 1022 and fn. 26 (1989), enfd. 677 F.2d 421 (6th
Cir. 1982), the Board found that an employer unlawfully dis-
charged an employee for bringing a class action lawsuit regard-
ing employee rest breaks. In Saigon Gourmet Restaurant, 353
NLRB 1063, 1064 (2009), the Board concluded that the em-
ployer violated the Act when it promised to raise delivery
workers’ wages if they abandoned their plan to file a wage and
hour lawsuit and by discharging employees because they en-
gaged in protected concerted activities. See also D.R. Horton,
slip op. at 2, fn. 4 (and additional authority cited therein).
Respondent contends, in the first instance, that the decision
as to whether to agree to the ADR Policy is entirely voluntary,
rendering it lawful under the Act. As is evident, the Policy is
lengthy and contains numerous references to matters more
properly within the purview of a legal professional. Thus, there
are questions as to whether employees are fully apprised, in a
manner they may appreciate, of the consequences of any such
decision and whether the burden of having to decide as to
whether one should irrevocably relinquish rights afforded to
employees under the Act is an unreasonable one. As discussed
in further detail below (see sec. II.D), the Board has long rec-
ognized that employees may fail to recognize the full scope of
rights they are entitled to under the Act, and therefore, what
they may be relinquishing.
Leaving aside, for the moment, the issue of whether condi-
tioning employees’ eligibility for the annual sales bonus pro-
gram is an unlawful inducement to enter into a waiver of statu-
tory rights, I find that, as a more general matter, the purported
voluntariness of the ADR Policy does not obviate its unlawful
nature.
The question is not whether an employee may choose to
forego participation in the program. The issue, rather, is wheth-
er an employer and an individual employee may enter into an
agreement to waive, irrevocably, future rights protected by the
Act. Such rights include a substantive right to engage in collec-
tive redress of grievances, which the Board and the Supreme
Court have long recognized as being at the core of Section 7
and central to the Act’s purposes. J.I Case, supra; National
Licorice Co., supra.
Here, there seems to be little dispute that participation in the
Policy has been deemed to be voluntary. However, once an
employee decides to enter into this agreement, certain core
features of that employee’s Section 7 rights are irrevocably
waived prospectively and Respondent may seek to enforce such
a waiver, as happened in the instant case.
While the Board, in D.R. Horton, did not have to consider
the issue of voluntary individual agreements, in other contexts,
the Board has had the occasion to consider such waivers and,
has found that an individual’s waiver of core Section 7 rights,
central to the purposes of the Act to be unlawful. For example,
in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd.
354 F.3d 534 (6th Cir. 2004), the Board found unlawful a sepa-
ration agreement between an employee and the employer that
restricted for a one-year period the employee from attempting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
“to hire, influence, or otherwise direct any employee of the
Company to leave employment of the Company or to engage in
any dispute or work disruption with the Company, or to engage
in any conduct which is contrary to the Company’s interests in
remaining union-free.” As the Board found:
In our view, this separation agreement is overly broad in that
it forces [the employee] to prospectively waive her lawful Sec-
tion 7 rights. “Future rights of employees as well as the rights
of the public may not be traded away in such a manner.” Man-
del Security Bureau, Inc., 202 NLRB 117, 119 (1973) (release
used by employer was overly broad and unlawfully prohibited
filing of unfair labor charges concerning future incidents. See
generally Metro Networks, Inc. 336 NLRB 63 (2001).
From its earliest days, the Board has adhered to this funda-
mental construction of the Act. In J. H. Stone & Sons, 33
NLRB 1014 (1941), enfd. in relevant part 125 F.2d 752 (7th
Cir. 1942), the Board found individual employment contracts
that required employees to attempt to resolve employment dis-
putes individually with the employer and then provided for
arbitration to be unlawful: “The effect of this restriction, is that,
at the earliest and most crucial stages of adjustment of any dis-
pute, the employee is denied the right to act through a repre-
sentative and is compelled to pit his individual bargaining
strength against the superior bargaining power of the employ-
er.” In affirming the Board’s holding, the Seventh Circuit found
that the contract clause in question was a per se violation of the
act even if “entered into without coercion,” because “it obligat-
ed [the employee] to bargain individually and was a “restraint
upon collective action.” NLRB v. Stone, 125 F.2d 752, 756 (7th
Cir. 1942).
The foregoing precedent, construed in light of the overarch-
ing purpose of the Act, warrants the conclusion that the ADR
Policy violates the Act, notwithstanding the fact that employees
may choose not to enter into such an agreement with their em-
ployer.
D. The ADR Policy is Reasonably Interpreted to Restrict Ac-
cess to the Board, its Processes and Procedures
General Counsel further contends that the ADR Policy vio-
lates Section 8(a)(1) in that it may reasonably be interpreted to
preclude or restrict access to the Board and its processes, and
would therefore tend to chill employees' exercise of their rights
under Section 7. It is well settled that an employer's mainte-
nance of a work rule which reasonably tends to chill employees'
exercise of their Section 7 rights violates Section 8(a)(1) of the
Act. Lafayette Park Hotel, 326 NLRB 824, 825 (1998). A par-
ticular work rule which does not explicitly restrict Section 7
activity will be found unlawful where the evidence establishes
one of the following: (i) employees would “reasonably construe
the rule's language” to prohibit Section 7 activity; (ii) the rule
was “promulgated in response” to union or protected concerted
activity; or (iii) “the rule has been applied to restrict the exer-
cise of Section 7 rights.” Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004). The Board has cautioned that rules
must be afforded a “reasonable” interpretation, without “read-
ing particular phrases in isolation” or assuming “improper in-
terference with employee rights.” Lutheran Heritage Village-
Livonia, 343 NLRB at 646. Ambiguities in work rules are con-
strued against the party which promulgated them. See Supply
Technologies, LLC, 359 NLRB No. 38, slip op at 3 (2012);
Lafayette Park Hotel, supra at 828. 21
Under the circumstances here, I find that employees would
reasonably interpret Respondent's ADR Policy as restricting
their right to file unfair labor practice charges, and that Re-
spondent's promulgation, maintenance and enforcement of the
Policy therefore violates Section 8(a)(1) on this basis as well.
The ADR policy contains broad language regarding the
scope of its applicability. Although the ADR Policy exempts
“matters within the jurisdiction of the National Labor Relations
Board” this exception comes after the recitation of a litany of
“covered claims” which are defined to include claims of “dis-
crimination or harassment on [an] unlawful basis,” “retaliation
for complaining about discrimination or harassment,” retalia-
tion for . . . “exercising your protected rights under any statute,
“wrongful termination or constructive discharge,” and “viola-
tions of any . . . federal. . .statute,” specifically including the
Taft Hartley Act as such a law. As the General Counsel notes,
all of these categories of claims include matters which could be
the subject of unfair labor practice charges. To the extent that
the provisions of the Policy are unclear, Respondent, as the
proponent of the policy, must bear the burden of such ambigui-
ty. Supply Technologies, supra; Lafayette Park Hotel, supra;
Aroostook County Regional Ophthalmology Center, 317 NLRB
218 (1995).22
Furthermore, in the context of the reasonable interpretation
analysis the Board generally has rejected any assumption that
employees have specialized legal knowledge or experience
which they would bring to bear on an arbitration agreement's
language. For example, in 2 Sisters Food Group, Inc., 357
NLRB 1816, 1816–1817, 1829 (2011), the Board found that
language limiting the employer’s policy to claims “that may be
lawfully resolve[d] by arbitration” was not susceptible to the
interpretation by “most nonlawyer employees,” who would be
unfamiliar with the Act's limitations on compulsory arbitration,
that unfair labor practice charges were thereby excluded. Simi-
larly, in U-Haul Co. of California, supra at 377–378, the Board
concluded that employees without legal training could not be
reasonably expected to understand that language limiting arbi-
tration to disputes or claims “that a court of law would be au-
thorized to entertain or would have jurisdiction over” conse-
quently excluded unfair labor practice charges from the scope
of the agreement. In Allied Mechanical, 349 NLRB 1077 at fn.
1 (2007), the Board concluded that the respondent violated the
Act by conditioning the settlement of wage claims where the

21 In this regard, the Board has repeatedly held that mandatory arbi-
tration policies that interfere with employees’ rights to file unfair labor
practice charges are unlawful. See Bill’s Electric, Inc., 350 NLRB 292,
296 (2007); Dish Network Corp.,358 NLRB 174, 179–180; U-haul Co.
of California, 347 NLRB 375, 377–378, enfd. mem. 255 F.Appx. 527
(D. C. Cir. 2007).
22 Respondent has argued that the Charging Parties were not dis-
suaded from filing charges in the instant matter and there is no evidence
that any other employee construed the ADR Policy as prohibiting them
from doing so. This argument overlooks the fact that when evaluating
work rules and policies, the Board applies an objective test and does
not require actual evidence of interference, coercion or restraint.
ACUITY SPECIALTY PRODUCTS 21
release was “ambiguous and self-contradictory.” As the judge
there found, the first part of the release waives the signing em-
ployees’ Section 7 right to assist other employees with their
wage claims, and the second part of the release purports to
cancel that waiver by excluding conduct “permitted by . . . the
National Labor Relations Act.” The problem, as the judge ob-
served, is that assumes employees “are knowledgeable enough
to understand that the Act permits the very thing prohibited in
the first portion” of the release. The Board concluded that the
release contained language “calculated to restrain its employees
from engaging in specific protected activity while simultane-
ously shielding itself from liability through a generally worded
‘savings clause’ it had to know would not negate the Sec. 7
restraint.” Id. Similarly, here, there is no basis to assume that a
reasonable employee, unversed in labor and employment law,
would necessarily glean from the competing terms of the Policy
that he or she retained the right to invoke the Board’s processes
and procedures. This is particularly the case in light of the
Policy’s otherwise sweeping language relegating virtually all
employment-related disputes into the category of “covered
claims.”
Accordingly, because I conclude that a reasonable employee
would be unable to discern the difference between any number
of “covered claims” and those which fall within the jurisdiction
of the National Labor Relations Board, and that the Policy is
otherwise “ambiguous and self-contradictory” I find that the
ADR Policy would reasonably tend to interfere with and other-
wise chill employees in the exercise of their Section 7 rights, in
particular their right to seek redress before the Board, and is
therefore unlawful. Lutheran Heritage-Village Livonia, supra;
D. R. Horton, supra, at 2289.
E. Respondent Unlawfully Conditioned Participation in its
Employee Bonus Program upon Execution of and Adherence to
its ADR Policy
The General Counsel has argued that Respondent further
violated Section 8(a)(1) by conditioning employees’ annual
sales bonuses under its long-standing bonus program on em-
ployees’ executing the unlawful ADR Policy. It is further urged
that an employer violates the Act by threatening or acting to
adversely affect employees’ terms and conditions of employ-
ment in reprisal for their engaging in union or other protected
conduct, or by promising employees benefits if they refrain
from engaging in protected activity, as Respondent did here.
Respondent argues that the General Counsel’s contentions
are dependent upon a finding that the ADR Policy was unlaw-
ful and that, as has been argued above, the Policy is lawful and
enforceable under binding Supreme Court precedent. It is fur-
ther contended that the ADR policy did not interfere with the
exercise of Section 7 rights because the class action is a proce-
dural device and not a substantive right guaranteed by the Act.
In support of this contention , Respondent relies upon Deposit
Guar. Nat’l Bank v. Roper, 445 U.S. at 332 (1980) (“the right
of a litigant to employ Rule 23 is a procedural right only, ancil-
lary to the litigation of substantive claims); D. R. Horton, v.
NLRB, 737 F.3d at 357 (5th Cir. 2013) (The use of class action
procedures . . . is not a substantive right”); see also Gilmer v.
Interstate/Johnson Lane Corp., 111 S.Ct. at 1655 (1991). The
sum and substance of Respondent’s argument as a point of law
is that conditioning employees’ eligibility to participate in the
bonus program does not interfere with, restrain or coerce em-
ployees in the exercise of their Section 7 rights because the
ability to bring or participate in a class action is not a right
guaranteed by Section 7.
In disagreement with Respondent, I conclude that condition-
ing employee eligibility for its ongoing sales bonus program
upon the execution and continuing adherence to its ADR Policy
is violative of Section 8(a)(1) of the Act.
As has been noted above, but bears repetition in this context,
the Act provides that employees shall have the right to “engage
in . . . concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection. . .” As has been well
noted, Section 7 of the Act protects a broad range of concerted
activities, because, “[Congress] knew well enough that labor’s
cause often is advanced on fronts other than collective bargain-
ing and grievance settlement within the immediate employment
context.” Eastex, Inc., v. NLRB, 437 U.S. 556, 566
(1978)”[Congress] recognized this fact by choosing as the lan-
guage of [Section] 7 makes clear, to protect concerted activities
for the somewhat broader purpose of ‘mutual aid and protec-
tion’ as well as for the narrower purposes of ‘self-organization’
and ‘collective bargaining.’” Id.
As discussed above, the Board historically has found pro-
tected, concerted activity to include the filing of collective and
class action lawsuits involving employment matters. In other
words, the Board found that the right to engage in collective
legal action is a core substantive right conferred by the Act.
Thus, class action lawsuits that can be characterized as having
been filed for mutual aid and protection implicate fundamental
rights under the Act. Unlike other statutory contexts—where a
class action lawsuit might well be viewed as merely a proce-
dural mechanism for enforcing a separate underlying right—the
Act’s cornerstone principle is that employees are empowered to
band together to advance their work-related interests on a col-
lective basis.
Here, the ADR Policy requires that employees forego not a
merely procedural device, as Respondent suggests, but a sub-
stantive right conferred by the Act, as has been defined by dec-
ades of decisional law. Further I agree with the General Coun-
sel that employees’ eligibility for the annual sales bonus pro-
gram, a program which had been in existence since 2007, had
become a term and condition of employment upon which em-
ployees had come to rely. And as the stipulations of the parties
reflect, employees were thereby offered the opportunity to sig-
nificantly increase their wages. Accordingly, I find that by con-
ditioning employees’ eligibility to participate in this program,
and increase their compensation, upon their waiver of core,
substantive rights conferred by the Act, Respondent has violat-
ed Section 8(a)(1) of the Act. See, e.g., Pittsburg & Midway
Coal Mining Co., 355 NLRB 1210, 1214 (2010)(employer
violated Act by modifying employees’ bonus plan in response
to their protected activity); Saigon Grill Restaurant, supra at
1064 (employer violated Section 8(a)(1) by promising benefits
conditioned upon cessation of protected, concerted activity).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
CONCLUSIONS OF LAW
1. The Respondent, Acuity Specialty Products, Inc., d/b/a/
Zep, Inc., is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By promulgating, maintaining and enforcing an Alterna-
tive Dispute Resolution Policy (ADR Policy) which (a) inter-
feres with employees’ Section 7 rights to engage in collective
legal activity by binding employees to an irrevocable waiver of
their rights to participate in class or collective litigation; (b)
contains language that employees would reasonably conclude
prohibits or restricts their right to file charges with the National
Labor Relations Board; (c) conditions employees’ eligibility to
participate in Respondent’s annual sales bonus program on
their execution of the ADR Policy and (d) by denying eligibil-
ity for participation in its annual sales bonus program to em-
ployees to employees who executed the ADR Policy but re-
fused to waive their participation in class action or collective
legal activity, Respondent has violated Section 8(a)(1) of the
Act.
3. The unfair labor practices set forth above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent’s ADR Policy is unlawful, the
Respondent shall be ordered to rescind or revise it to make
clear to employees in all of its facilities in which the ADR Poli-
cy has been implemented that it does not require a waiver in all
forums of their right to maintain class or collective action, and
shall notify employees of the rescinded or revised policy by
providing them with a copy of the revised policy or specific
notification that the ADR Policy has been rescinded. Employ-
ees shall also be advised that any revised ADR Policy does not
require arbitration of claims or unfair labor practice charges
falling under the jurisdiction of the National Labor Relations
Act, as amended.
Respondent shall also be required to withdraw any motions
for individual arbitration, if pending, or move the appropriate
court to vacate its order for individual arbitration, if Respond-
ent’s motion has already been granted and a motion to vacate
can be timely filed. Any such motion to vacate should be made
jointly with the affected employees, if they so request. This
remedy should not be construed so as to preclude Respondent
from amending its motion to seek lawful class or collective
arbitration rather than a class or collective lawsuit.
Respondent also shall be required to make employees whole
by restoring their eligibility for participation in the annual sales
bonus programs to which they would have been entitled but for
the unlawful ADR Policy, paying to employees any bonus that
they qualified for under the performance standards of that
year’s annual sales bonus plan but which was withheld because
they did not execute the ADR Policy or otherwise participated
in class or collective legal action and reimbursing employees
for any litigation expenses, including attorney’s fees that they
incurred that are directly related to Respondent’s motion to
compel individual arbitration. Interest on all monies owed to
employees will be determined at the applicable rate of interest
as outlined in New Horizons for the Retarded, 283 NLRB 1173
(1987), and shall be computed on a daily basis as prescribed in
Kentucky River Medical Center, 356 NLRM 8(2010), enf. de-
nied on other grounds sub. nom Jackson Hospital Corp. v.
NLRB 647 F.3d 1137 (D.C. Cir. 2011).
Respondent shall post an appropriate informational notice, as
set forth in the attached appendix. This notice shall be posted in
all of Respondent’s facilities where the ADR Policy has been in
effect, wherever notices to employees are regularly posted for
60 days without anything covering it up or defacing its con-
tents. In additional to the physical posting of paper notices,
notices shall be distributed electronically, such as by email,
posting on an intranet or internet site and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of busi-
ness or closed a facility at which the ADR Policy has been in
effect, the Respondent shall duplicate and mail at its own ex-
pense a copy of the notice to all affected employees and former
employees employed by Respondent since December 1, 2011.
The Respondent shall also disseminate, on the first day of no-
tice posting as required herein, a copy of this notice on the
same basis and to the same group or class of employees as the
ADR Policy was made available to them.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23
ORDER
The Respondent, Acuity Specialty Products, Inc, d/b/a Zep,
Inc., Los Gatos, California, (Respondent) its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining and enforcing its Alternative
Dispute Resolution Policy (ADR Policy) which requires em-
ployees to waive their right to maintain employment-related
class and collective claims in all forums, whether arbitral or
judicial;
(b) Promulgating, maintaining and enforcing its ADR Policy
that restricts access to the Board and its processes;
(c) Conditioning eligibility to participate in an annual sales
bonus program on employees’ execution of the ADR Policy;
(d) Withholding bonuses from employees because: (1) they
did not execute the ADR Policy; or (2) because they executed
the ADR Policy but filed or participated in employment-related
class or collective claims against Respondent; and
(e) In any like or related manner interfering with, restraining
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act.

23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ACUITY SPECIALTY PRODUCTS 23
(a) Rescind or revise the ADR Policy that requires employ-
ees to waive their right to maintain employment related class
and collective claims in all forums, whether arbitral or judicial;
(b) Rescind or revise the ADR Policy so as to ensure that
employees are aware that claims arising under the National
Labor Relations Act, as amended, are not required to be sub-
mitted to arbitration and they are free to seek the processes and
procedures of the National Labor Relations Board (the Board),
including its administrative procedures and that employees are
not prohibited from filing unfair labor practice charges before
the Board.
(c) Advise all employees to whom the ADR Policy was
promulgated, by all means that employees are customarily ad-
vised of matters pertaining to their terms and conditions of
employment, including the manner in which they were initially
informed of the ADR Policy, that the Policy has been rescinded
or revised and that employees are not prohibited from filing
charges and participating in matters before the Board;
(d) Restore eligibility for participation in Respondent’s an-
nual sales bonus program to employees who qualified for bo-
nuses under the performance standards of that year’s annual
sales bonus plan at any time since the promulgation and im-
plementation of the ADR Policy, for whom eligibility or partic-
ipation or actual compensation was withheld either because
they did not execute the ADR Policy or because, notwithstand-
ing their execution of the ADR Policy they filed or participated
in employment-related class or collective claims against Re-
spondent;
(e) Make employees whole for any losses they may have
suffered as a result of Respondent’s unfair labor practices, with
interest as set forth in the Remedy section of this Decision;
(f) Withdraw any pending motions for individual arbitration
in which Respondent seeks enforcement of the ADR Policy’s
unlawful restriction on class or collective claims; or if such a
motion has already been granted, move the appropriate court to
vacate any orders for individual arbitration, if agreed to by the
affected employee and if such a motion can timely be made;
and reimburse employees for any litigation expenses including
attorney’s fees, directly related to opposing Respondent’s mo-
tions to compel individual arbitration;
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of reim-
bursement or other sums due under the terms of this Order;
(h) Within 14 days after service by the Region, post at its
locations nationwide where the ADR Policy has been promul-
gated, maintained or enforced copies of the attached notice
marked “Appendix.”24 Copies of the notice, on forms provided

24 I f this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
by the Regional Director for Region 32 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to the physical posting of
paper notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or internet site, and /or
other electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In addi-
tion, a copy of this notice will be made available to employees
on the same basis and to the same group or class of employees
as the ADR Policy was made available to them. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since December 1, 2011.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. July 21, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT promulgate, maintain, or enforce an alternative
dispute resolution policy that interferes with your Section 7
rights to engage in collective legal activity by precluding your
rights to participate in class and collective claims against us.
WE WILL NOT promulgate, maintain, or enforce an alternative
dispute resolution policy that contains ambiguous language
regarding filing unfair labor practice charges at the National
Labor Relations Board suggesting that you are prohibited or
restricted from filing unfair labor practice charges or otherwise
interfering with your access to the Board and its processes.
WE WILL NOT condition your eligibility to participate in our
annual sales bonus program on your execution of an alternative
dispute resolution policy or withhold eligibility for bonuses
from you if you signed such a policy but filed or participated in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
employment-related class and collective claims against us.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the Act.
WE WILL rescind or revise our alternative dispute resolution
policy to make it clear to you that any such policy does not
waive your rights to participate in employment-related class
and collective litigation, does not interfere with your access to
the Board to file unfair labor practice charges and participate in
proceedings before the Board, and does not condition your
eligibility to participate in our annual sales bonus program on
execution of the alternative dispute resolution policy.
WE WILL notify you of the rescinded or revised policy, in-
cluding by providing you with a copy of the revised policy or
specific notification that the policy has been rescinded.
WE WILL make whole those employees who were denied a
bonus because they failed or refused to sign the alternative
dispute resolution policy as well as those employees who
signed the alternative dispute resolution policy but were denied
a bonus because they still filed or participated in employment-
related collective or class claims against us.
WE WILL withdraw any pending motions for individual arbi-
tration in which we seek to enforce our alternative dispute reso-
lution policy; and if such a motion has already been granted,
WE WILL move the appropriate court to vacate any orders for
individual arbitration, if it is possible and agreed to by the af-
fected employee, and reimburse those employees for any litiga-
tion expenses, including attorney’s fees, they incurred that were
directly related to opposing our motions to compel individual
arbitration.
ACUITY SPECIALTY PRODUCTS, INC. D/B/A ZEP, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32–CA–075221 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.