Amerisave Mortgage Corporation

National Labor Relations Board - Board Decisions

Apr 29, 2016

363 NLRB No. 174 (N.L.R.B. 2016)

363 NLRB No. 174
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.
Amerisave Mortgage Corporation and Amanda A.
Farahany. Case 10–CA–082519
April 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The issues presented are whether the Respondent,
Amerisave Mortgage Corporation, violated Section
8(a)(1) of the Act by requiring its employees to resolve
virtually all employment-related claims through individ-
ual arbitration, and by enforcing that requirement by
moving to compel individual arbitration in response to a
collective claim by its employees in federal district court
under the Fair Labor Standards Act (FLSA).1 We find,
consistent with the Board’s decisions in D. R Horton,
Inc.,2 and Murphy Oil USA, Inc.,3 that the Respondent’s
maintenance and enforcement of its individual arbitration
requirement unlawfully infringed on the employees’ right
to engage in concerted activity for mutual aid and protec-
tion, which includes the right to pursue employment-
related claims on a joint, class, or collective basis.
FINDINGS OF FACT4
I. JURISDICTION
The Respondent, a Georgia corporation with an office
and place of business in Atlanta, Georgia, is engaged in
the retail sale of residential mortgages and related prod-
ucts directly to consumers located throughout the United
States. During the 12-month period ending March 11,
2013, the Respondent purchased and received at its At-
lanta, Georgia, facility goods valued in excess of $50,000
directly from points outside the State of Georgia. The
parties have stipulated, and we find, that the Respondent

1 29 U.S.C. Sec. 201.
2 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344
(5th Cir. 2013).
3 361 NLRB No. 72 (2014), enf. denied in relevant part, Murphy Oil
USA, Inc. v. NLRB, 808 F.3d 1013, (5th Cir. 2015).
4 On March 11, 2013, the Respondent, the Charging Party, and the
General Counsel filed with the Board a joint stipulation of facts and a
motion to transfer this proceeding to the Board. The parties waived a
hearing before an administrative law judge and agreed to submit the
case directly to the Board for findings of fact, conclusions of law, and a
Decision and Order based on the stipulated record. On May 22, 2013,
the Board approved the stipulation of facts and granted the motion.
Thereafter, the Respondent and the General Counsel filed briefs, and
the Respondent filed a brief in response to the General Counsel. The
Respondent also filed a letter brief citing supplemental authority and
the General Counsel filed a reply.
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In the course of its business, the Respondent employs
senior mortgage processors (SMPs) who provide service
to loan applicants. SMPs are located throughout the U.S.
and most work from their homes. They are not represent-
ed by a union.
On May 31, 2011, three former SMPs filed a com-
plaint in federal court, alleging that the Respondent vio-
lated the FLSA during their employment by failing to
pay overtime.5 The three SMPs sought to represent a
class consisting of all current and former SMPs whose
FLSA rights were violated in that manner.
Prior to the filing of the lawsuit, the Respondent re-
quired some of its employees to sign a document titled
“Amerisave Business Partner Program Employment
Agreement” (Employment Agreement) providing that
“Employee agrees that all disputes between Employee
and [Amerisave] shall be settled by Arbitration.” The
agreement did not contain a class or collective action
waiver, and is not alleged by the General Counsel to be
unlawful. However, on June 8, 2011, shortly after the
filing of the FLSA lawsuit, the Respondent sent all of its
employees a Revised Arbitration Policy, which—as set
forth in the parties’ stipulation—“requires employees to
waive the right to pursue class and collective actions
before an arbitrator and mandates that certain employ-
ment-related disputes be arbitrated rather than litigated in
a court of law.” The list of employment-related covered
claims is extensive and includes claims arising under the
FLSA.6 The Policy also sets forth certain exceptions:
[C]laims for state employment insurance . . . or under
the National Labor Relations Act are a not covered
[sic], and thus not subject to arbitration. . . .
* * *
Nothing in this Arbitration Policy prohibits you from
filing at any time a charge or complaint with a govern-
ment agency such as the EEOC.
The Respondent informed all employees that contin-
ued employment constituted acceptance of the Revised
Arbitration Policy, and it required each employee to elec-
tronically acknowledge his or her agreement. Since June

5 Zulauf v. Amerisave Mortgage Corp., No. 1:11-cv-1784-WSD
(N.D. Ga. 2011).
6 The Revised Arbitration Policy is set forth in pertinent part in the
Appendix B to this decision.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22, 2011, the Respondent has maintained and enforced
its Revised Arbitration Policy.7
Pursuant to FLSA procedures and the Federal Rules of
Civil Procedure, a number of former and current SMPs
opted into the lawsuit as plaintiffs. On November 23,
2011, the court granted a motion by the Respondent to
stay the FLSA lawsuit and compel arbitration as to those
plaintiffs who had signed arbitration agreements. The
court conditionally certified a class consisting of current
and former employees who had worked overtime and had
not agreed to submit their claims to arbitration.
At the close of the opt-in period, the opt-in plaintiffs
included five individuals who had signed the Revised
Arbitration Policy. On April 16, 2012, the Respondent
filed a Motion to Compel Arbitration and Dismiss Col-
lective Action as to 32 plaintiffs, including those 5.8 On
May 22, 2012, all 32 plaintiffs named in the motion filed
a Notice of Withdrawal of Consent to Join the Civil Ac-
tion. They withdrew their consent in anticipation that the
court, consistent with its November 2011 ruling, would
compel arbitration.
On June 22, 2012, the Respondent filed a Motion to
Decertify Collective Action. On November 29, 2012, the
court granted the Respondent’s motion. The court addi-
tionally found that the Respondent’s April 16, 2012 Mo-
tion to Compel Arbitration was moot, because each of
the plaintiffs who was subject to that motion had with-
drawn his or her consent to join the litigation. Approxi-
mately 45 employees who signed either the Employment
Agreement or the Revised Arbitration Policy are pro-
ceeding to arbitrate their claims on an individual basis.
B. Procedural Background
Upon charges filed on June 6 and August 29, 2012, the
General Counsel on January 23, 2013, issued an unfair
labor practice complaint against the Respondent alleging
the unlawful maintenance and enforcement of its Revised
Arbitration Policy. The Respondent filed an answer,
subsequently amended, denying the commission of any
unfair labor practices and asserting various affirmative
defenses.
C. The Parties’ Contentions9
The General Counsel contends that the Respondent’s
Revised Arbitration Policy violates Section 8(a)(1) under
the Board’s decision in D. R. Horton because it prohibits

7 In April 2012, the Respondent issued a new employee manual in-
corporating the Revised Arbitration Policy.
8 The remaining 27 plaintiffs were bound only by the Employment
Agreement, which as noted above is not alleged by the General Counsel
to be unlawful.
9 The Charging Party did not file a brief to the Board but set forth
her position, which is consistent with that of the General Counsel, in
the parties’ motion to transfer this proceeding to the Board.
employees from litigating employment-related claims
concertedly in any forum. The General Counsel further
contends that the Revised Arbitration Policy is unlawful
because it was promulgated in response to activity pro-
tected by Section 7 of the NLRA, namely the employees’
filing of the FLSA lawsuit. The General Counsel argues
that the Respondent additionally interfered with employ-
ees’ Section 7 rights by seeking to enforce the unlawful
Revised Arbitration Policy through its April 16, 2012
motion to stay the collective FLSA lawsuit. The General
Counsel argues that the Respondent’s motion had an ille-
gal objective under federal labor law and, under the prin-
ciples enunciated in the Supreme Court’s decisions in
Bill Johnson’s Restaurants, Inc. v. NLRB10 and BE & K
Construction Co. v. NLRB,11 enjoys no protection under
the Petition Clause of the First Amendment.
The Respondent argues that D. R. Horton was incor-
rectly decided, and should be overruled, because (in the
Respondent’s view) it is contrary to the broad protection
afforded arbitration agreements under the Federal Arbi-
tration Act (FAA),12 and because procedural litigation
rights are governed not by the NLRA but by the Federal
Rules of Civil Procedure and the collective action proce-
dures of the FLSA. The Respondent further contends
that, in any event, its Revised Arbitration Policy does not
restrict the exercise of the right to engage in collective
legal activity under D. R. Horton, because the Revised
Arbitration Policy does not preclude employees from
filing complaints with government administrative agen-
cies which, in turn, have the power to seek class-wide
relief.
The Respondent additionally contends that its effort to
obtain court enforcement of the individual arbitration
requirement was lawful under BE & K Construction,
supra, because its litigation was not objectively baseless
in light of the endorsement by the courts of class action
waivers. The Respondent asserts that the illegal objec-
tive exception to Bill Johnson’s Restaurants and BE & K
Construction is limited to legal actions seeking to con-
trovert “established Board precedent,” which, the Re-
spondent contends, D. R. Horton is not.13

10 461 U.S. 731 (1983).
11 536 U.S. 516 (2002), on remand BE & K Construction Co., 351
NLRB 451 (2007).
12 9 U.S.C. Sec. 1 et seq. The Respondent cites in support, the Su-
preme Court’s decisions in American Express Co. v. Italian Colors
Restaurant, 133 S.Ct. 2304 (2013); CompuCredit Corp. v. Greenwood,
132 S.Ct. 665 (2012); AT&T Mobility LLC v. Concepcion, 131 S.Ct.
1740 (2011); and Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20
(1991). The Respondent also states that the rationale of Horton has
been rejected in lower court decisions.
13 The Respondent asserts that D. R. Horton is invalid because it was
issued by a panel that included Member Becker, whose appointment the
Respondent argues was invalid. The appointment of Member Becker
AMERISAVE MORTGAGE CORP. 3

was constitutionally valid, however, and thus the Board had a quorum
at the time it issued that decision. See NLRB v. Noel Canning, 134
S.Ct. 2550 (2014); Mathew Enterprise, Inc. 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).
The Respondent additionally argues that Regional Director Claude
T. Harrell was appointed at a time when the Board lacked a quorum,
and therefore lacked authority to issue and prosecute the complaint.
This argument is meritless. Regional Director Harrell was appointed
on December 22, 2011, prior to the loss of a quorum. See Bluefield
Regional Medical Center, 361 NLRB No. 154, slip op. at 2 fn. 5
(2014).
Finally, we reject the Respondent’s argument, raised for the first
time in a notice of supplemental authority filed August 29, 2013, that
the Acting General Counsel was not properly “appointed.” The notice
of supplemental authority referred to the decision in Hooks v. Kitsap
Tenant Support Services, Inc., 2013 WL 4094344 (W.D. Wash. August
13, 2013), which, the Respondent argues, supports a finding that the
Acting General Counsel was not properly “appointed” under the Feder-
al Vacancies Reform Act and therefore lacked authority to delegate his
responsibilities to Regional Director Harrell.
At the outset, we note that under the Federal Vacancies Reform Act
(FVRA), 5 U.S.C. §§ 3345 et seq., a person is not “appointed” to serve
in an acting capacity in a vacant office that otherwise would be filled
by appointment by the President, by and with the advice and consent of
the Senate. Rather, either the first assistant to the vacant office per-
forms the functions and duties of the office in an acting capacity by
operation of law pursuant to 5 U.S.C. § 3345(a)(1), or the President
directs another person to perform the functions and duties of the vacant
office in an acting capacity pursuant to 5 U.S.C. § 3345(a)(2) or (3).
On June 18, 2010, the President directed Lafe Solomon, then-
Director of the NLRB’s Office of Representation Appeals to serve as
Acting General Counsel pursuant to subsection (a)(3)—the senior
agency employee provision. Under the strictures of that provision,
Solomon was eligible to serve as Acting General Counsel at the time
the President directed him to do so. See S.W. General, Inc. v. NLRB,
796 F.3d 67 (D.C. Cir. 2015), petition for rehearing en banc denied,
Case No. 14-1107 (Jan. 20, 2016), petition for certiorari filed, No. 15-
1251 (Apr. 6, 2016). Thus, Solomon properly assumed the duties of
Acting General Counsel and we find no merit in the Respondent’s
affirmative defense that the Acting General Counsel was “improperly
and unlawfully appointed.”
We acknowledge that the court in S.W. General also held that Solo-
mon lost his authority as Acting General Counsel on January 5, 2011,
when the President nominated him to be General Counsel. While that
question is still in litigation, the Respondent never raised that argument
in this proceeding, and we find that it has waived the right do so.
Finally, on November 18, 2015, General Counsel Richard F. Griffin,
Jr., issued a Notice of Ratification which states, in relevant part,
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in S.W. General. Rather, my ratification authorizes the continued
prosecution of this matter and facilitates the timely resolution of the
charges that I have found meritorious. Congress expressly exempted
“the General Counsel of the National Labor Relations Board” from
the FVRA provisions that would otherwise preclude the ratification of
C. Discussion
1. The Respondent’s Revised Arbitration Policy Violates
Section 8(a)(1)
The Board held in D. R. Horton, Inc. and Murphy Oil
USA, Inc, that an employer violates Section 8(a)(1)
“‘when it requires employees covered by the Act, as a
condition of their employment, 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.’” 361 NLRB No. 72, slip op. at 1, quoting 357
NLRB at 2277. The Board in Murphy Oil found that the
arbitration agreement violated Section 8(a)(1) because it
expressly prohibited employees from concertedly pursu-
ing employment-related claims in any forum. See Mur-
phy Oil, slip op. at 13, 18. We reach the same conclusion
here.
The Revised Arbitration Policy, which employees
were required to sign as a condition of employment, pre-
cludes employees from initiating or maintaining a court
action concerning employment-related matters and from
pursuing a class or collective claim in arbitration. Under
the policy, employees are limited to filing individual
arbitration claims. Accordingly, for the reasons set forth
in D. R. Horton and Murphy Oil, we find that the Re-
spondent violated Section 8(a)(1) by maintaining the
Revised Arbitration Policy.14
Our conclusion that the terms of the Revised Arbitra-
tion Policy are unlawful is further supported by the cir-
cumstances surrounding its promulgation. The record

certain actions of other persons found to have served in violation of
the FVRA. [Citation omitted.]
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
Even if the Respondent had not previously waived its right to challenge
the continued authority of the Acting General Counsel following his
nomination by the President, this ratification by the General Counsel
would render moot any argument that the S.W. General holding con-
cerning the former Acting General Counsel’s authority precludes fur-
ther litigation in this matter.
14 The Respondent contends that its Revised Arbitration Policy is
lawful because it permits employees to file “a charge or complaint with
a government agency such as the EEOC,” and thus does not, as in D. R.
Horton and Murphy Oil, unlawfully prohibit them from collectively
pursuing litigation of employment claims in all forums. The Respond-
ent 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 permitted 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).
The Revised Arbitration Policy exempts claims under the NLRA,
and is not alleged by the General Counsel to unlawfully limit access to
the Board’s processes.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
makes clear that, prior to the filing here by the employ-
ees of their FLSA collective action, the Respondent re-
quired employees to sign a mandatory arbitration agree-
ment that did not contain a class action waiver. Only 1
week after the filing of the employees’ lawsuit, however,
the Respondent promulgated the instant Revised Arbitra-
tion Policy forbidding class or collective action in any
forum. The conclusion is inescapable that the Respond-
ent revised the policy in order to foreclose collective
action by employees in pursuit of their overtime claims.
The Respondent offers no legitimate explanation for the
timing of its action in issuing its Revised Arbitration
Policy, and none is apparent from the stipulated record.15
We accordingly find that the Respondent’s Revised Arbi-
tration Policy was promulgated in response to the em-
ployees’ protected activity of filing the FLSA lawsuit.16
For all these reasons, we find that the Respondent, by
maintaining its mandatory Revised Arbitration Policy,
violated Section 8(a)(1) of the Act.17

Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, 361 NLRB No. 72, slip op. at 22–35, would find that the Re-
spondent’s Revised Arbitration Policy does not violate Sec. 8(a)(1). He
observes that the Act does not “dictate” any particular procedures for
the litigation of non-NLRA claims, and “creates no substantive right for
employees to insist on class-type treatment” of such claims. This is all
surely 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 avail-
able, without the interference of an employer-imposed restraint.” Mur-
phy Oil, above, slip op. at 2 (emphasis in original). The Revised Arbi-
tration Policy is just such an unlawful restraint.
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.
15 See Gaetano & Associates, 344 NLRB 531, 532 (2005) (the tim-
ing of the employer’s actions in relation to employees’ protected activi-
ty may constitute persuasive evidence of unlawful conduct), enfd. mem.
183 Fed.Appx. 17 (2d Cir. 2006).
16 See Tarlton & Son, Inc., 363 NLRB No. 175 (2016) (violation es-
tablished when rule is promulgated in response to union or other pro-
tected activity); Lutheran Heritage Village-Livonia, 343 NLRB 646,
647 (2004) (same). Indeed, the policy is unlawful for this reason alone,
even absent our finding that it expressly prohibits Sec. 7 activity.
17 Our dissenting colleague agrees that employees were engaged in
protected concerted activity in connection with the FLSA collective-
action lawsuit. However, he argues that the Respondent did not prom-
ulgate the Revised Arbitration Policy in response to that activity but,
instead, to the “collective-action nature of the lawsuit itself.” We fail to
see a principled basis for the distinction that our dissenting colleague
attempts to draw. The salient point is that employees engaged in pro-
tected concerted activity when they filed and participated in the collec-
tive-action lawsuit and, in response, the Respondent promulgated a rule
2. The Respondent’s Enforcement of Its Unlawful
Policy Violates Section 8(a)(1)
We further find that the Respondent violated Section
8(a)(1) by enforcing its unlawful Revised Arbitration
Policy, by filing in federal court its April 16, 2012 mo-
tion to compel arbitration and dismiss collective action as
to the plaintiffs who had signed that policy. As the
Board explained in Murphy Oil, if an employer’s arbitra-
tion policy is unlawful, the employer violates Section
8(a)(1) by enforcing the policy. 361 NLRB No. 72, slip
op. at 19 (citing NLRB v. Washington Aluminum Co., 370
U.S. 9, 16–17 (1962), and Republic Aviation Corp., 324
U.S. 793 (1945)). That is precisely what the Respondent
did here through its motion to compel.18
The Respondent nevertheless contends that the en-
forcement allegations are moot because the court dis-
missed the Respondent’s motion to compel as moot after
the plaintiffs voluntarily withdrew their consent to join
the litigation. The infringement on employees’ rights
does not turn on the ultimate disposition of the motion,
however, but on the reasonable tendency of the motion
itself to interfere with and restrain employees’ exercise
of protected rights.19 Here, the motion resulted in the

prohibiting that exact conduct. Such a rule, by its very nature, inter-
feres with employees’ exercise of their Sec. 7 rights and constitutes a
straightforward violation of Sec. 8(a)(1). See Tarlton & Son, Inc.,
supra. Our dissenting colleague further argues that, even assuming that
the Respondent promulgated the Revised Arbitration Policy in response
to employees’ protected concerted activity, the Respondent had legiti-
mate justifications for adopting the policy that outweigh the impact on
employees’ Sec. 7 rights. The Board in Murphy Oil rejected this argu-
ment. 361 NLRB No. 72, slip op. at 14 (the proper balancing of the
respective rights of employees and employers is reflected in D. R. Hor-
ton’s recognition “that employees have no Section 7 right to class certi-
fication and, in turn, that employers may lawfully oppose class certifi-
cation on any legally available ground other than an unlawful waiver in
a mandatory arbitration agreement.”) See also D. R. Horton, above at
2286 fn. 24. Moreover, it is untenable to claim, as our dissenting col-
league does, that completely precluding employees from pursuing their
workplace claims collectively through litigation has “virtually no im-
pact” on Sec. 7 rights, when it actually extinguishes that Sec. 7 right.
See Murphy Oil, above, slip op. at 14.
18 We reject the position of the Respondent and our dissenting col-
league that the Respondent’s motion to compel arbitration was protect-
ed by the First Amendment’s Petition Clause. In Bill Johnson’s Res-
taurants v. NLRB, supra, 461 U. S. 731, 747, the Court identified two
situations in which a lawsuit enjoys no such protection: where the ac-
tion is beyond a State court’s jurisdiction because of federal preemp-
tion, 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 unlawful contractual provision, even if the litigation was
otherwise meritorious or reasonable. See Murphy Oil, supra, slip op. at
20–21; Convergys Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
19 See, e.g., Saginaw Control & Engineering, Inc., 339 NLRB 541,
541 (2003) (violation of 8(a)(1) is established if it is shown that the
AMERISAVE MORTGAGE CORP. 5
withdrawal of consent to opt into the class litigation by
those who had signed the Revised Arbitration Policy and
reasonably will have a chilling effect on future collective
efforts by the Respondent’s employees. The court’s rul-
ing, therefore, does not obviate the need for a Board
cease-and-desist order to deter future, similar violations
by the Respondent. See Dilling Mechanical Contractors,
357 NLRB 544, 546 fn. 12 (2011) (illegal objective
found and mootness argument rejected even where the
state court disposed of the litigation in the employees’
favor).20
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By maintaining and enforcing a mandatory arbitra-
tion policy under which employees are compelled, as a
condition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and has violated Section
8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Consistent with the
Board’s usual practice in cases involving unlawful litiga-
tion, we shall order the Respondent to reimburse the
plaintiffs who had signed the Respondent’s Revised Ar-
bitration Policy for all reasonable expenses and legal
fees, with interest,21 incurred in opposing the Respond-
ent’s unlawful April 16, 2012, motion to dismiss their
collective FLSA action and compel individual arbitra-
tion. See Murphy Oil, supra, slip op. at 21, quoting Bill
Johnson’s, 461 U.S. at 747 (“‘If a violation is found, the

employer’s conduct has reasonable tendency to interfere with, restrain,
or coerce employees in the exercise of their Sec. 7 rights).
20 The Board’s usual remedy under Murphy Oil for unlawful en-
forcement of an arbitration agreement includes ordering the respondent
to notify the court in which it sought enforcement that it has rescinded
or revised its arbitration policy and that it no longer opposes the plain-
tiffs’ collective action on the basis of the arbitration policy. See Mur-
phy Oil, supra, slip op. at 22. We are not ordering court notification
here because the court dismissed the Respondent’s motion to compel as
moot after the plaintiffs voluntarily withdrew their consent to join the
litigation.
21 Interest shall be computed in the manner prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). See Teamsters Local
776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole
orders for suits maintained in violation of the Act, it is appropriate and
necessary to award interest on litigation expenses.”), enfd. 973 F.2d
230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993).
Board may order the employer to reimburse the employ-
ees whom he had wrongfully sued for their attorneys’
fees and other expenses” and “any other proper relief that
would effectuate the policies of the Act.’”). We shall
also order the Respondent to rescind or revise the Re-
vised Policy in all of its forms and to notify employees
that it has done so. See Murphy Oil, supra, slip op. at 21.
Finally, because the parties stipulated that most senior
mortgage processors work directly from their homes, we
shall order that the Board’s remedial notice be mailed as
well as posted at the Respondent’s facility.
ORDER
The National Labor Relations Board orders that the
Respondent, Amerisave Mortgage Corporation, Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining and/or enforcing a mandatory arbitra-
tion policy that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(b) 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 Revised Arbitration Policy in all of its
forms or revise it in all of its forms to make clear to em-
ployees that the policy does not constitute a waiver of
their right to maintain employment-related joint, class, or
collective actions in all forums.
(b) Notify all current and former employees who were
required to sign the Revised Arbitration Policy that it has
been rescinded or revised and, if revised, provide them a
copy of the revised agreement.
(c) In the manner set forth in the remedy section of this
decision, reimburse the plaintiffs who were bound by the
Revised Arbitration Policy for any reasonable attorneys’
fees and litigation expenses that they may have incurred
in opposing the Respondent’s April 16, 2012, motion to
dismiss their wage claim and compel individual arbitra-
tion.
(d) Within 14 days after service by the Region, post at
its Atlanta, Georgia, facility copies of the attached notice
marked “Appendix A.”22 Copies of the notice, on forms
provided by the Regional Director for Region 10, after
being signed by the Respondent’s authorized representa-

22 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.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive, shall be posted by the Respondent and maintained
for 60 consecutive 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, posting on an intranet or an internet site, or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice marked “Appendix A” to all
current employees and former employees employed by
the Respondent at any time since June 22, 2011.
(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, a copy of the notice
marked “Appendix A,” to all current senior mortgage
processor employees and former senior mortgage proces-
sors employees employed by the Respondent at any time
since June 22, 2011.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 10 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. April 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
In this case, three former employees jointly filed a col-
lective action against the Respondent in federal district
court alleging violations of the Fair Labor Standards Act
(FLSA). After the Respondent was served with the col-
lective-action complaint, it revised its arbitration policy
to include, for the first time, a class- and collective-action
waiver, which it required all its current employees to
acknowledge electronically. Subsequently, after several
current and former employees opted into the lawsuit, the
Respondent filed a motion to compel individual arbitra-
tion. The district court granted the Respondent’s motion
as to opt-in plaintiffs who were bound by the Respond-
ent’s Revised Arbitration Policy (the Revised Policy).
My colleagues find that the Revised Policy violates Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act
or NLRA) because (i) the Revised Policy waives the
right to participate in class or collective actions regarding
non-NLRA employment claims, and (ii) the Revised Pol-
icy was promulgated in response to the collective-action
lawsuit. Further, my colleagues find that the Respondent
violated Section 8(a)(1) by enforcing the Revised Policy.
For the reasons set forth below, I respectfully dissent.
1. The Class-Action Waiver. I believe the Revised
Policy’s class- and collective-action waiver is lawful 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 pro-
tection” in relation to a claim asserted under a statute
other than NLRA.2 However, Section 8(a)(1) of the Act
does not vest authority in the Board to dictate any partic-
ular procedures pertaining to the litigation of non-NLRA
claims, nor does the Act render unlawful agreements in
which employees waive class-type treatment of non-
NLRA claims. To the contrary, as discussed in my par-
tial dissenting opinion in Murphy Oil, NLRA Section
9(a) protects the right of every employee as an “individu-
al” to “present” and “adjust” grievances “at any time.”3

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). Indeed, such was the case here, as I
explain below. 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 em-
ployee 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 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or se-
lected for the purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the exclu-
sive representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That any
individual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
AMERISAVE MORTGAGE CORP. 7
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 Sec-
tion 7. Thus, I believe it is clear that (i) the NLRA cre-
ates no substantive right for employees to insist on class-
type treatment of non-NLRA claims;4 (ii) a class-waiver
agreement pertaining to non-NLRA claims does not in-
fringe on any NLRA rights or obligations, which has
prompted the overwhelming majority of courts to reject
the Board’s position regarding class-waiver agreements;5
and (iii) enforcement of a class-action waiver as part of
an arbitration agreement is also warranted by the Federal
Arbitration Act (FAA).6 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 prov-
ince of the court or other tribunal that, unlike the NLRB,
has jurisdiction over such claims.7

tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
4 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.”).
5 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).
6 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).
7 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-
2. Promulgation in Response to the Collective-Action
Lawsuit. My colleagues find that the Respondent violat-
ed Section 8(a)(1) of the Act by promulgating the Re-
vised Policy in response to protected concerted activity.
I believe the stipulated record supports a finding that
employees engaged in protected concerted activity in
connection with the federal district court FLSA collec-
tive-action lawsuit. However, I do not believe that the
Respondent adopted the Revised Policy in response to
that activity. Rather, I believe the Revised Policy was
adopted in response to the collective-action nature of the
lawsuit itself, which is not protected under the NLRA.
But even assuming otherwise, in my view the justifica-
tions for adopting the Revised Policy outweigh any po-
tential impact on employees’ Section 7 rights.
Section 7’s “ʻmutual aid or protection’ clause protects
employees from retaliation by their employers when they
seek to improve working conditions through resort to
administrative and judicial forums,” Eastex, Inc. v.
NLRB, 437 U.S. 556, 565–566 (1978), and I agree that
some protected concerted activity occurred in connection
with the federal district court lawsuit. But unlike my
colleagues, I believe it is immaterial whether or not
class-type procedures were applicable to the lawsuit.
Rather, Section 7 protection existed because Section 7’s
statutory requirements were met: three former employ-
ees engaged in concerted activity (jointly initiating and
pursuing the federal court lawsuit) with the purpose of
mutual aid or protection (challenging the Respondent’s
overtime practices).8 See Murphy Oil, above, slip op. at
23–25 (Member Miscimarra, dissenting); see also
Beyoglu, above, slip op. at 4–5.
Moreover, although the Respondent promulgated the
Revised Policy shortly after the three former employees
jointly initiated the federal district court lawsuit, I do not
believe the promulgation of the Revised Policy constitut-
ed unlawful restraint or coercion of or interference with
NLRA-protected activity in violation of Section 8(a)(1)
of the Act. In my view, the record fails to establish that
the Revised Policy was adopted in response to NLRA-
protected employee activity. As noted above, the “pro-
tected concerted activity” issue (whether two or more
employees engaged in lawsuit-related concerted activity

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, 357 NLRB at 2288, by
permitting 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).
8 Former employees of an employer are “employees” as defined in
the NLRA. See Briggs Mfg. Co., 75 NLRB 569, 570-571 (1947) (hold-
ing that “employee” as defined in Sec. 2(3) of the Act “covers . . . for-
mer employees of a particular employer”); Eastex, above at 564.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for mutual aid or protection) is distinct from the “class
action procedures” issue (whether or not class-type pro-
cedures applied to the non-NLRA lawsuit). Although the
timing of the promulgation of the Revised Policy sug-
gests that the Respondent was motivated by a desire to
provide an alternative to class action procedures, there is
no evidence that the Revised Policy would preclude em-
ployees from engaging in NLRA-protected activity asso-
ciated with non-NLRA claims.9 In finding that the Re-
spondent promulgated the Revised Policy in response to
protected activity, my colleagues conflate class litigation
procedures with NLRA-protected activity. However, as
explained above and in my partial dissent in Murphy Oil,
when employees pursue non-NLRA claims, the applica-
bility of class action procedures does not necessarily
mean employees are engaged in NLRA-protected activi-
ty, and the unavailability of class action procedures does
not preclude employees from engaging in NLRA-
protected activity. See Murphy Oil, above, slip op. at
24–26 (Member Miscimarra, dissenting in part).
Moreover, even if the Respondent adopted the Revised
Policy in response to NLRA-protected activities associ-
ated with the federal district court collective-action law-
suit, this does not automatically mean the Respondent
has violated Section 8(a)(1). In Eastex v. NLRB, the Su-
preme Court stated that, when determining whether an
employer’s adverse action taken in response to employee
conduct violated Section 8(a)(1), “[t]wo distinct ques-
tions” must be considered: first, whether the employee
conduct is protected by Section 7, and second, whether
the employer’s “countervailing interest . . . outweighs the
exercise of § 7 rights.” 437 U.S. at 563; see also City
Market, 340 NLRB at 1260 fn. 2 (employer may demon-
strate that “‘promulgation of a [new rule] upon the com-
mencement of [Section 7 activity] . . . was justified be-
cause the [Section 7 activity] brought about substantial
work disruption’”) (quoting NLRB v. Roney Plaza
Apartments, 597 F.2d at 1049). Thus, even if the Re-
vised Policy was implemented in response to NLRA-
protected activity in connection with the lawsuit, the
Board must assess the legality of that action under Sec-
tion 8(a)(1) by taking into account not only the potential
impact on NLRA rights, but also relevant justifications
unrelated to NLRA-protected activity. See NLRB v. Erie
Resistor Corp., 373 U.S. 221, 229 (1963) (stating that the

9 See City Market, Inc., 340 NLRB 1260, 1260 (2003) (rule promul-
gated in context of Section 7 activity not unlawful if the timing can be
explained by matters apart from the Section 7 activity); see also NLRB
v. Roney Plaza Apartments, 597 F.2d 1046, 1049 (5th Cir. 1979) (“Rea-
sonable restrictions . . . are not per se invalid because imposed during
[Section 7 activity]. The Act does not require an employer to anticipate
all problems and provide for them by written rule.”), enfg. 232 NLRB
409 (1977).
Board must discharge the “delicate task” of “weighing
the interests of employees in concerted activity against
the interest of the employer in operating his business in a
particular manner”).10
Here, as noted above, the Revised Policy has virtually
no impact on rights afforded under the NLRA. The Re-
vised Policy does not impose job-related consequences
on any employees who concertedly file a lawsuit covered
by the Revised Policy. Nor does the Revised Policy pe-
nalize employees for or prevent them from pursuing their
non-NLRA claims against the Respondent.11 Although
the Revised Policy requires employees to pursue their
claims in arbitration, the Supreme Court has held that
electing an arbitral rather than a judicial forum does not
unlawfully prevent litigants from effectively vindicating
their claims.12 Questions regarding whether the Revised
Policy can be relied upon by the Respondent as a defense
in a non-NLRA lawsuit should be resolved by the court
that, unlike the NLRB, has jurisdiction over the claims
asserted in that litigation.13 It is true that the Revised
Policy precludes employees from using class- or collec-
tive-action procedures when pursuing non-NLRA claims.

10 See also Republic Aviation v. NLRB, 324 U.S. 793, 797–798
(1945); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–34 (1967);
cf. Banner Estrella Medical Center, 362 NLRB No. 137, slip op. at 13–
18 (2015) (Member Miscimarra, dissenting in part).
11 Under the Revised Policy, employees are free to engage in a broad
range of concerted activities for the purpose of mutual aid or protection
in connection with non-NLRA legal claims. The Revised Policy in no
way interferes with the right of employees, among other things, to meet
with one another to identify evidence supporting non-NLRA employ-
ment-related claims; to engage in work stoppages (if not prohibited by
a collective-bargaining agreement) or otherwise express solidarity and
mutual support for one another in connection with non-NLRA em-
ployment-related claims; to concertedly meet with an attorney or attor-
neys regarding non-NLRA employment-related proceedings; or to
publicize and/or raise funds for non-NLRA employment-related agency
or court cases. The right of employees to engage in these types of
protected concerted activities is central to the NLRA—in contrast to the
procedural treatment afforded to non-NLRA claims, which does not
implicate the NLRA.
12 See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 249 (2009)
(agreement to arbitrate ADEA claims did not prevent their effective
vindication because agreement did not “waive the statutory right to be
free from workplace age discrimination; it waives only the right to seek
relief from a court in the first instance”); Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 26 (1991) (“‘By agreeing to arbitrate a statu-
tory claim, a party does not forgo the substantive rights afforded by the
statute; it only submits to their resolution in an arbitral, rather than a
judicial, forum.’”) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 626 (1985)).
13 As I stated in Beyoglu, we are not permitted to “‘tak[e] it upon
ourselves to assist in the enforcement of other statutes. The Board was
not intended to be a forum in which to rectify all the injustices in the
workplace.’” Beyoglu, 362 NLRB No. 152, slip op. at 5 (Member
Miscimarra, dissenting) (quoting Meyers Industries, 281 NLRB 882,
888 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)).
AMERISAVE MORTGAGE CORP. 9
Again, however, the existence or unavailability of class-
type procedures has no bearing on whether employees
can engage in NLRA-protected activity.14 In Eastex, for
example, the Supreme Court cited numerous cases where
employees were found to have engaged in NLRA-
protected activity in connection with an agency or court
proceeding involving a non-NLRA claim or complaint,15
and none of the cases involved or turned on the availabil-
ity of class-type procedures.
I also believe that the Respondent had legitimate and
substantial justifications for adopting the Revised Policy.
Contrary to the views expressed by my colleagues, who
fault the Respondent for its desire to avoid class-type
lawsuits, the Supreme Court has recognized that it is en-
tirely legitimate to use arbitration agreements, including
those that prohibit class claims, as a means to avoid
class-action litigation in courts.16 Class-action lawsuits
may result in high costs, lengthy proceedings, and “‘in
terrorem’ settlements.”17 Arbitration agreements that

14 See above fns. 2-5 and accompanying text.
15 See Eastex, 437 U.S. at 565, citing Walls Mfg. Co., 137 NLRB
1317, 1319 (1962) (employee’s discharge in retaliation for letter to
“State regulatory agency”—the state health department—complaining
about unsanitary conditions violated Sec. 8(a)(1)), enfd. 321 F.2d 753
(D.C. Cir. 1963), cert. denied 375 U.S. 923 (1963); Socony Mobil Oil
Co., 153 NLRB 1244, 1245, 1248 (1965) (employee suspension in
retaliation for alleged insolent and insubordinate behavior “during the
Coast Guard investigation aboard ship” and “complaint to the Coast
Guard” violated Sec. 8(a)(1)), enfd. 357 F.2d 662 (2d Cir. 1966); Altex
Ready Mixed Concrete Corp. v. NLRB, 542 F.2d 295, 297 (5th Cir.
1976) (two employee discharges based on alleged failure to read affi-
davits filed in union’s state court injunction proceeding violated Sec.
8(a)(1); court finds that “filing by employees of a labor related civil
action is protected activity under section 7”), enfg. 223 NLRB 696
(1976); Wray Electric Contracting, Inc., 210 NLRB 757, 761 (1974)
(employee discharge for filing “a complaint with OSHA” on behalf of
union violated Sec. 8(a)(3) and (1)); King Soopers, Inc., 222 NLRB
1011, 1018 (1976) (employee discharge in retaliation for employee’s
filing of “civil rights charges” with EEOC and state EEO agency vio-
lated Sec. 8(a)(1)); Triangle Tool & Engineering, Inc., 226 NLRB
1354, 1357 (1976) (employee discharge in retaliation for union activity
and “soliciting the aid of the Wage and Hour Division” of the U.S.
Dept. of Labor violated Sec. 8(a)(3) and (1)); Alleluia Cushion Co., 221
NLRB 999 (1975) (employee discharge in retaliation for employee’s
filing of “letter of complaint to the California OSHA office” violated
Sec. 8(a)(1)). The Board’s decisions in Alleluia Cushion and its proge-
ny—where the conduct of a solitary employee was deemed “concerted”
whenever the purpose of that activity was one the Board wished to
protect—was overruled in Meyers Industries, 268 NLRB 493 (1984)
(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985), supplemented Meyers Indus-
tries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB,
835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
16 See American Express Co. v. Italian Colors Restaurant, 133 S.Ct.
2304, 2312 (2013) (arbitration agreement containing class-action waiv-
er enforceable); AT&T Mobility LLC v. Concepcion, 563 U.S. 333,
345–346 (2011) (the Federal Arbitration Act “was designed to promote
arbitration” and “embod[ies] a national policy favoring arbitration”).
17 Concepcion, above at 350.
include restrictions on class claims may permit legal dis-
putes to be resolved more efficiently in a streamlined
manner that is tailored to the type of dispute,18 increasing
the speed of dispute resolution and substantially reducing
the costs.19 Moreover, the availability of arbitration as an
alternative to court litigation may also substantially bene-
fit employees, who may lack the resources or time re-
quired to litigate their non-NLRA claims in court.20 For
these reasons, even if the Revised Policy’s adoption were
found to have some adverse impact on NLRA-protected
activity, in the circumstances presented here I believe
such an impact would be outweighed by legitimate justi-
fications unrelated to NLRA-protected activity. These
considerations, and those discussed above, warrant a
finding that the Respondent did not violate Section
8(a)(1) when it adopted the Revised Policy.
3. Enforcing the Revised Policy. Because I believe
the Respondent’s Revised Policy was lawful under the
NLRA, I would find it was similarly lawful for the Re-
spondent to file a motion in federal district court seeking
to enforce the Revised Policy. It is relevant that the dis-
trict court that had jurisdiction over the non-NLRA
claims granted the Respondent’s motion to compel arbi-
tration. That the Respondent’s motion was reasonably
based is also supported by court decisions that have en-

18 Id. at 344 (arbitration “allow[s] for efficient, streamlined proce-
dures tailored to the type of dispute”).
19 Id. at 345 (“[T]he informality of arbitral proceedings is itself de-
sirable, reducing the cost and increasing the speed of dispute resolu-
tion.”); Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S.
662, 685 (2010) (benefits of arbitration include “lower costs, greater
efficiency and speed, and the ability to choose expert adjudicators to
resolve specialized disputes”); Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 123 (2001) (“Arbitration agreements allow parties to avoid
the costs of litigation, a benefit that may be of particular importance in
employment litigation, which often involves smaller sums of money
than disputes concerning commercial contracts.”).
20 Arbitration provisions in collective-bargaining agreements have
been celebrated by Congress and the courts. See, e.g., Labor Manage-
ment Relations Act Sec. 203(d) (“Final adjustment by a method agreed
upon by the parties is hereby declared to be the desirable method for
settlement of grievance disputes arising over the application or interpre-
tation of an existing collective-bargaining agreement.”); Steelworkers v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960) (“Arbitra-
tion is the means of solving the unforeseeable by molding a system of
private law for all the problems which may arise and to provide for
their solution in a way which will generally accord with the variant
needs and desires of the parties.”). As I stated in Murphy Oil, our stat-
ute does not render individual arbitration agreements “inherently sus-
pect or unenforceable, particularly when the agreements relate exclu-
sively to non-NLRA legal rights,” Murphy Oil, above, slip op. at 33
(Member Miscimarra, dissenting in part), and the Supreme Court has
stated that “[n]othing in the law suggests a distinction between the
status of arbitration agreements signed by an individual employee and
those agreed to by a union representative,” 14 Penn Plaza, above, 556
U.S. at 258.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forced similar agreements.21 As the Fifth Circuit recently
observed after rejecting (for the second time) the Board’s
position regarding the legality of class-waiver agree-
ments: “[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 objec-
tive’ in doing so. The Board might want to strike a more
respectful balance between its views and those of circuit
courts reviewing its orders.”22 I also believe that any
Board finding of a violation based on the Respondent’s
meritorious 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 plaintiffs for their attor-
neys’ fees in the circumstances presented here. Murphy
Oil, above, 361 NLRB No. 72, slip op. at 35.
Accordingly, as to the foregoing issues, I respectfully
dissent.23
Dated, Washington, D.C. April 29, 2016
______________________________________
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
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

21 See, e.g., Murphy Oil, Inc., USA v. NLRB, above;
Johnmohammadi 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).
22 Murphy Oil USA v. NLRB, 808 F.3d at 1021.
23 I join my colleagues in finding that the Board had a quorum at the
time it issued its decision in D. R. Horton, above, and when it appoint-
ed Regional Director Claude T. Harrell, and in rejecting the Respond-
ent’s arguments regarding former Acting General Counsel Lafe Solo-
mon.
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 maintain and/or enforce a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.
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 Revised Arbitration Policy in all
of its forms or revise it in all of its forms to make clear
that it does not constitute a waiver of your right to main-
tain employment-related joint, class, or collective actions
in all forums.
WE WILL notify all current and former employees who
were required to sign our Revised Arbitration Policy that
it has been rescinded or revised and, if revised, provide
them a copy of the revised agreement.
WE WILL reimburse the plaintiffs who were bound by
the Revised Arbitration Policy for any reasonable attor-
neys’ fees and litigation expenses that they may have
incurred in opposing our April 16, 2012, motion to dis-
miss their wage claim and compel individual arbitration,
plus interest.
AMERISAVE MORTGAGE CORP.
The Board’s decision can be found at
www.nlrb.gov/case/10–CA–082519 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
AMERISAVE MORTGAGE CORP. 11
APPENDIX B
1. Any “covered claim” that you may have against
Amerisave (or its owners, directors, officers, managers,
employees or agents) or that Amerisave may have against
you shall be submitted exclusively to and determined
exclusively by binding arbitration under the Federal Ar-
bitration Act, 9 U.S.C. § 1 et seq., regardless of the state
in which the arbitration is held or the substantive law
applied in the arbitration.
2. Covered claims include, but are not limited to,
claims prior and/or subsequent to this policy, regardless
of when the claims have occurred or accrued arising un-
der the Age Discrimination in Employment Act (ADEA),
Title VII of the Civil Rights Act of 1964, the Americans
with Disabilities Act (ADA), the Family and Medical
Leave Act (FMLA), the Fair Labor Standards Act (FLSA),
42 U.S.C.§ 1981, including amendments to all the forego-
ing statutes, the Employee Polygraph Protection Act,
state discrimination statutes, state wage statutes, and/or
common law regulating employment termination, misap-
propriation, breach of the duty of loyalty, the law of con-
tract or the law of tort, including, but not limited to,
claims for malicious prosecution, wrongful discharge,
wrongful arrest/wrongful imprisonment, intention-
al/negligent infliction of emotional distress or defama-
tion.
Conversely, claims for state employment insurance
(e.g., unemployment compensation, workers’ compensa-
tion, worker disability compensation) or under the Na-
tional Labor Relations Act are a not covered [sic], and
thus not subject to arbitration. If applicable, statutory or
common law claims made outside of the state employ-
ment insurance system alleging that Amerisave retaliated
or discriminated against an employee for filing a state
employment insurance claim, however, are covered
claims, and shall be subject to arbitration.
3. Amerisave and you are required to bring all claims
subject to arbitration in one arbitration proceeding.
Any such claims not brought in one arbitration shall be
waived and precluded. The arbitrator shall have the pow-
er to hear as many claims you or Amerisave may have
against each other consistent with the terms of this Agree-
ment.
The arbitrator has no authority to and shall not con-
solidate claims of different employees into one proceed-
ing, nor shall the arbitrator have the power to hear an
arbitration as a class or collective action (a class or
collective action involves an arbitration or lawsuit
where representative members of a group who claim to
share a common interest seek class or collective relief),
and you shall not be allowed to submit your claim(s)
against Amerisave to arbitration as a representative of or
participant to a class or collective action or a claim seek-
ing class or collective relief.
4. The arbitration is administered by the American
Arbitration Association (AAA) and the employment arbi-
tration portion of the AAA’s Employment Arbitration
Rules and Mediation Procedures. Arbitration is held
before one neutral, third-party Arbitrator. If there are
any differences between this Agreement and the em-
ployment arbitration portion of the AAA’s Employment
Arbitration Rules and Mediation Procedures, this
Agreement shall apply.
5. Nothing in this Arbitration Policy prohibits you
from filing at any time a charge or complaint with a gov-
ernment agency such as the EEOC. However, upon re-
ceipt of a right to sue letter or similar administrative de-
termination, your claims become subject to arbitration as
defined herein.
6. Neither Amerisave nor you can file a civil lawsuit
in court against the other party relating to such covered
claims. If a party files a lawsuit in court to resolve
claims subject to arbitration, both agree that the court
shall dismiss the lawsuit and require the claim to be re-
solved through arbitration.
The Board’s decision can be found at
www.nlrb.gov/case/10–CA–082519 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.