AT&T MOBILITY SERVICES, LLC.

National Labor Relations Board - Board Decisions

Jan 21, 2016

363 NLRB No. 99 (N.L.R.B. 2016)

363 NLRB No. 99
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.
AT&T Mobility Services, LLC and Eudora Brooks.
AT&T Mobility Services, LLC and Juan
Figuereo. Cases 22–CA–127746 and 22–CA–
127781
January 21, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On June 26, 2015, 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 Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below, and to adopt the recommended Order, as
modified and set forth in full below.2
1. The Respondent contends that the complaint is time
barred by Section 10(b) because the initial unfair labor
practice charges were filed and served more than 6
months after the Charging Parties, Eudora Brooks and
Juan Figuereo, signed and became subject to the Man-
agement Arbitration Agreement (Agreement). We reject
this argument, as did the judge, because the Respondent
continued to maintain the unlawful Agreement during the
6-month period preceding the filing of the initial charges.
The Board has long held under these circumstances that
maintenance of an unlawful workplace rule, such as the
Respondent’s Agreement, constitutes a continuing viola-
tion that is not time barred by Section 10(b). See PJ
Cheese, Inc., 362 NLRB No. 177, slip op. at 1 (2015);
Neiman Marcus Group, 362 NLRB No. 157, slip op. at 2

1 The consolidated complaint alleged that the Respondent violated
Sec. 8(a)(1) of the Act both by maintaining its arbitration agreement
and by enforcing it to compel individual arbitration. The General
Counsel’s posthearing brief, however, limited the scope of the allega-
tions presented and the remedy sought to whether the maintenance of
the arbitration agreement violated Sec. 8(a)(1).
In affirming the judge’s findings, we do not rely on her citation to
Saigon Gourmet Restaurant, 353 NLRB 1063, 1064 (2009), a case
decided by a two-member Board. See New Process Steel v. NLRB, 560
U.S. 674 (2010).
2 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.
& fn. 6 (2015); and Cellular Sales of Missouri, LLC, 362
NLRB No. 27, slip op. at 2 & fn. 7 (2015).
2. We also reject the Respondent’s and our dissenting
colleague’s contention that the opt-out provision of its
Agreement places it outside the scope of the prohibition
against mandatory individual arbitration agreements un-
der Murphy Oil USA, Inc., 361 NLRB No. 72 (2014),
enf. denied in part, Murphy Oil USA, Inc. v. NLRB, No.
14-60800 (5th Cir. Oct. 26, 2015), and D. R. Horton, 357
NLRB No. 184 (2012), enf. denied in relevant part, 737
F.3d 344 (5th Cir. 2013). See D. R. Horton, slip op. at
13 fn. 28. The judge rejected this contention, and we do
as well for the following reasons. The Board has held
that an opt-out procedure still imposes an unlawful man-
datory condition of employment that falls squarely with-
in the rule of D. R. Horton and affirmed in Murphy Oil.
See On Assignment Staffing Services, 362 NLRB No.
189, slip. op at 1, 4–5 (2015); see also Nijjar Realty,
d/b/a Pama Management, 363 NLRB No. 38, slip op. at
2 (2015) (rejecting the employer’s assertion that the opt-
out provision of its arbitration agreement made the
agreement lawful); Bristol Farms, 363 NLRB No. 45,
slip op. at 1 (2015) (same); U.S. Xpress Enterprises, Inc.,
363 NLRB No. 46, slip op. at 1 (2015) (same). The
Board further held in On Assignment, slip op. at 1, 5–8,
that even assuming that an opt-out provision renders an
arbitration agreement not a condition of employment (or
non-mandatory), an arbitration agreement precluding
collective action in all forums is unlawful even if entered
into voluntarily because it requires employees to pro-
spectively waive their Section 7 right to engage in con-
certed activity. Indeed, the Board there stated that “such
non-mandatory agreements are contrary to the National
Labor Relations Act and to fundamental principles of
federal labor policy.” Id., slip op. at 6.3

3 The Respondent argues that On Assignment is distinguishable
from this case because it involved a 10-day opt-out period and an oner-
ous process to opt-out that required employees to either hand-deliver or
send, physically or electronically, a completed opt-out form to the
address specified by the employer. The Respondent notes that here, by
contrast, the employees had 2 full months to choose to opt-out, and the
process could be done quickly. We find this distinction immaterial. As
the Board in On Assignment explained, “[r]egardless of the procedures
required, the fact that employees must take any steps to preserve their
Section 7 rights burdens the exercise of those rights.” Slip op. at 4.
The employees here, as in On Assignment, must “make an observable
choice that demonstrates their support for or rejection of concerted
activity.” Id. [internal quotes omitted].
Our dissenting colleague observes that the Act “creates no substan-
tive right for employees to insist on class-type treatment of non-NLRA
claims.” This is surely correct, as the Board has previously explained
in Murphy Oil, 361 NLRB No. 72, slip op. at 2, 16 and Bristol Farms,
363 NLRB No. 45, slip op. at 2 and fn. 2 (2015). But what our col-
league ignores is that the Act does “creat[e] the right to pursue joint,
class, or collective claims in and as available without the interference of
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2.
“2. Respondent has violated Section 8(a)(1) of the Act
by maintaining an arbitration agreement that requires
employees, as a condition of employment, to waive the
right to maintain class or collective actions in all forums,
whether arbitral or judicial.”
ORDER
The National Labor Relations Board orders that the
Respondent, AT&T Mobility Services, LLC, Paramus,
New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a mandatory and binding arbitration
agreement 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 Management Arbitration Agreement in
all of its forms, or revise it in all of its forms to make
clear to employees that the agreement 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 or otherwise became bound to the Man-
agement Arbitration Agreement in any form that it has
been rescinded or revised and, if revised, provide them a
copy of the revised agreement.
(c) Within 14 days after service by the Region, post at
its facilities where the Management Arbitration Agree-
ment is or has been in effect copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 22, after

an employer-imposed restraint.” Murphy Oil, slip op. at 16–17 (em-
phasis in original). The Respondent’s Agreement is just such an unlaw-
ful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
Agreement unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected activity. See Murphy Oil, supra, slip op. at
18; Bristol Farms, 363 NLRB No. 45, slip op. at 3. Nor is he correct in
insisting that Sec. 9(a) of the Act requires the Board to permit individu-
al employees to prospectively waive their Sec. 7 right to engage in
concerted legal activity. Murphy Oil, 361 NLRB No. 72, slip op. at 17–
18; Bristol Farms, 363 NLRB No. 45, slip op. at 2.
4 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.”
being signed by the Respondent’s authorized representa-
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, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable 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
business or closed the facility involved in these proceed-
ings, 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 November 1, 2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 22 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. January 21, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, my colleagues find that the Respondent’s
Management Arbitration Agreement (Agreement) vio-
lates 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 collective actions regarding
non-NLRA employment claims. I respectfully dissent
from this finding 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

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 recently denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, No. 14-60800, 2015 WL 6457613 (5th Cir. Oct. 26,
2015).
AT&T MOBILITY SERVICES, LLC 3
claim asserted under a statute other than NLRA.2 How-
ever, 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 disagree
with the Board’s finding here, similar to the Board ma-
jority’s finding in On Assignment Staffing Services,3 that
class-waiver agreements violate the NLRA even when
they contain an opt-out provision. In my view, Sections
7 and 9(a) of the NLRA render untenable both of these
propositions. As discussed in my partial dissenting opin-
ion in Murphy Oil, NLRA Section 9(a) protects the right
of every employee as an “individual” to “present” and
“adjust” grievances “at any time.”4 This aspect of Sec-
tion 9(a) is reinforced by Section 7 of the Act, which
protects each employee’s right to “refrain from” exercis-
ing the collective rights enumerated in Section 7. Thus, I
believe it is clear that (i) the NLRA creates no substan-
tive 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

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).
3 362 NLRB No. 189, slip op. at 1, 4–5 (2015).
4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees 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 respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual 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-
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).
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.”).
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-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA);7 and (iv) for the reasons stated in my
dissenting opinion in Nijjar Realty, Inc. d/b/a Pama
Management, 363 NLRB No. 38, slip op. at 3–5 (2015),
the legality of such a waiver is even more self-evident
when the agreement contains an opt-out provision, based
on every employee’s Section 9(a) right to present and
adjust grievances on an “individual” basis and each em-
ployee’s Section 7 right to “refrain from” engaging in
protected concerted activities. Although questions may
arise regarding the enforceability of particular agree-
ments 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 jurisdiction over such claims.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. January 21, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

6 The Fifth Circuit has twice denied enforcement of Board orders
invalidating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming 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 (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 reconsid-
eration of prior determination that class waiver in arbitration agreement
violated NLRA).
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).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 maintain a mandatory and binding arbi-
tration agreement that requires employees, as a condition
of employment, to waive the right to maintain class or
collective actions in all forums, whether arbitral or judi-
cial.
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 the Management Arbitration Agree-
ment 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 maintain employment-related joint, class, or col-
lective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise became bound to the
Management Arbitration Agreement in all of its forms
that it has been rescinded or revised and, if revised, WE
WILL provide them a copy of the revised agreement.
AT&T MOBILITY SERVICES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-127746 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.
Evamaria Kartzian and Michael Silverstein, Esqs., for the Gen-
eral Counsel.
Stephen J. Sferra and Meredith C. Shoop, Esqs. (Littler
Mendelson), of Cleveland Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. Based upon
charges filed by Nikki Amari,1 Eudora Brooks and Juan
Figuereo, as individuals, the Regional Director, Region 22,
issued an order consolidating cases, consolidated complaint and
notice of hearing (complaint) alleging that AT&T Mobility
Services, LLC, (Mobility, Employer or Respondent) violated
Section 8(a)(1) of the Act by promulgating, maintaining and
enforcing individual arbitration agreements thereby interfering
with employees’ Section 7 right to engage in collective legal
activity by binding employees to an irrevocable waiver of their
rights to participate in collective and class litigation in all fo-
rums, arbitral and judicial. Respondent filed an answer denying
the material allegations of the complaint and raising certain
affirmative defenses, as will be discussed below. A hearing in
this matter was held before me on February 6, 2015, in Newark,
New Jersey.
On the entire record,2 including the stipulations reached by
the parties, my observation of and evaluation of the testimony
and the demeanor of the witnesses, and after considering the
briefs filed by Counsel for the General Counsel and the Re-
spondent I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, and continuing to date, Respondent has
been a limited liability company with an office and place of
business in Paramus, New Jersey and has provided wireless
telecommunications services. Annually, the Respondent de-
rives gross revenues in excess of $100,000 from its business
operations, and purchases and receives equipment and other
goods and materials valued in excess of $50,000 directly from
suppliers located outside the State of New Jersey. Respondent
admits, and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
This case presents an issue, left unresolved, by the Board’s
decisions in D. R. Horton, 357 NLRB No. 184 (2012), enf.
denied in relevant part, 737 F.3d 344 (5th Cir. 2013), and Mur-
phy Oil USA Inc., 361 NLRB No. 72 (2014). The issue is
whether an arbitration agreement between an employee and an
employer, which includes a class action waiver and also in-
cludes a limited opt out provision, violates Section 8(a)(1) of
the Act.
Relevant Facts
The Respondent employs approximately 44,000 employees
who are represented by the Communication Workers of Ameri-
ca (CWA). These employees are not at issue here. The two
charging parties, Brooks and Figuereo, are statutory employees
in a classification not represented by CWA: Brooks worked for

1 Amari subsequently withdrew her charge and is not a party to the
instant proceeding.
2 Respondent’s unopposed motion to amend the transcript dated
March 3, 2015, is hereby granted and made a part of the record herein.
AT&T MOBILITY SERVICES, LLC 5
Respondent from November 2008 until December 2013, as a
national retail account executive (NRAE). Figuereo, who has
been employed by Respondent since 2004, has been an NRAE
since about May 2009.
The testimony of these witnesses establishes that NRAE’s
spend the majority of their time in the field away from their
assigned office, promoting sales and marketing to retail store
accounts. In the course and furtherance of their duties, NRAEs
are provided with laptop computers, tablets (iPads), and a
smartphone, which are used to communicate not only with their
employer but with clients or potential clients.
Beginning in late-November 2011, Respondent began send-
ing, via email, notice of a Management Arbitration Agreement
(Agreement) to 24,000 of its nonbargaining-unit employees,
including managerial employees and NRAE’s. This Agreement
offered employees the option to have employment-related dis-
putes with Mobility resolved through third-party arbitration.3
Mobility also provided instructions for employees to electroni-
cally register their decision to opt out and to not participate in
the Agreement by February 6, 2012. Employees were advised
that their failure to opt out by that deadline would constitute an
agreement to the arbitration process, as set forth in the Agree-
ment.
In particular, the email initially sent to employees was enti-
tled, “Action Required: Notice Regarding Arbitration Agree-
ment” and stated in relevant part:
The decision on whether or not to participate is yours to
make. To help you make your decision, it is very important
for you to review the Management Arbitration Agreement
linked to this email. It provides important information on the
process and the types of disputes that are covered by the
Agreement.
Again, the decision is entirely up to you. To give you time to
consider your decision, the company has established a dead-
line of no later than 11:59 p.m. Central Standard Time on
Monday, Feb. 6, 2012 to opt out – that is, to decline to partici-
pate in the arbitration process – using the instructions below.
If you do not opt out by the deadline, you are agreeing to the
arbitration process as set forth in the agreement.
Each email additionally contained specific instructions for
opting out of the Agreement. Employees were further advised
that there were no adverse consequences for opting out of the
Agreement; that they could and should contact a hotline num-
ber of they believed they experienced pressure or retaliation in
connection with their decision and were also provided with a
toll-free number to call should they have any questions. This
was a telephone number that Employer management designated
to coordinate its response, through its human resources depart-
ment, to any such inquiries, rather than rely upon the responses
of individual managers to employee questions about the terms
or application of the Agreement.

3 The Agreement stated that it enabled “employees and AT&T to
use independent third-party arbitration rather than courts or juries to
resolve legal disputes,” and that it would apply “to any dispute to which
this Agreement applies” and that class arbitrations and class actions
were not permitted.
The intranet page containing the text of the Agreement con-
tained an electronic button marked “Review Completed.” This
was an acknowledgement that an employee had reviewed the
Agreement.
Employees were advised that:
Regardless of any other terms of this Agreement, you may
still bring certain claims before administrative agencies or
government offices or officials if applicable law permits ac-
cess to such agency, office or official, notwithstanding the ex-
istence of an agreement to arbitrate. Examples would include,
but not be limited to, claims or charges brought before the
Equal Employment Opportunity Commission …, the U.S.
Department of Labor…. The National Labor Relations
Board…, or the Office of Federal Contract Compliance Pro-
grams…. Nothing in this Agreement shall be deemed to pre-
clude or excuse a party from bringing an administrative
claims before any agency or employee benefit plan in order to
fulfill the party’s obligation to exhaust administrative reme-
dies before making a claim in arbitration.
The class and collective action waiver contained in the
Agreement provides, in relevant part:
To the maximum extent permitted by law, you hereby waive
any right to bring on behalf of persons other than yourself, or
to otherwise participate with other persons in: any class ac-
tion; collective action; or representative action, including but
not limited to any representative action under the California
Private Attorneys General Act (“PAGA”) or other, similar
state statute. You retain the right, however, to bring claims in
arbitration, including PAGA claims, but only for yourself as
an individual. If a court determines that you cannot waive
your right to bring a representative action under PAGA, any
such claim may only be brought in court and not in arbitra-
tion.
From late-November through the opt-out deadline, various
corporate compliance officials including Kathy Matyola and
Susan Bounds (who both testified herein) monitored and re-
viewed reports indicating those employees who had accessed
and completed a review of the Agreement. Employees who had
not done so were sent reminders on or about December 15,
2011, and January 18, 2012.
There is no current dispute that Brooks and Figueroa re-
ceived this email, and acknowledged that they had so received
it.
In particular, the evidence adduced at trial established that:
On December 1, 2011, an email with a link to the Agreement
was sent to Figuereo, and received by him; on December 8,
Figuereo accessed the Agreement and completed the “Review
Completed” button; and on January 10, 2012, Figuereo again
accessed the Agreement and clicked the “Review Completed”
button.
The evidence further shows that Brooks was sent the email
designated “Action Required: Arbitration Agreement” on De-
cember 5 and 16, 2011, and again on January 17, 2012. After
this latter transmission, Brooks accessed the Agreement and
clicked the “Review Completed” button.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There is also no dispute that both Figuereo and Brooks failed
to opt out of the Agreement by the terms and within the time
frame established by Respondent.
On June 20, 2013, Brooks, along with two other plaintiffs,
Nikki Amari and Lisa Locurto, filed a class action lawsuit
against Respondent in the United States District Court for the
Southern District of New York alleging violations of the Fair
Labor Standards Act (FLSA), and New York and New Jersey
wage and hour statutes. The lawsuit specifically alleged that
the Respondent failed to pay the named plaintiffs and all simi-
larly situated NRAEs proper overtime premiums for hours
worked beyond their regular 40-hour workweek. By letter
dated July 8, 2013, Mobility’s counsel, Patrick Shea, responded
to the class action and wrote a letter to Paul Rooney, counsel
for the Plaintiffs, in relevant part, as follows:
Pursuant to a Management Arbitration Agreement, Ms.
Brooks and Ms. Amari are each required to arbitrate their
claims in this lawsuit on an individual basis rather than pursu-
ing those claims in court. . . . Neither Ms. Brooks nor Ms.
Amari opted out of the [Agreement], although each had the
option to do so over an extended period of time, during which
each received multiple emails explaining the process. Accord-
ingly, both are bound by the terms of the [Agreement], and
each must arbitrate her respective claims on an individual ba-
sis if she wishes to pursue such claims.
Shea additionally noted that as Locurto had opted out of the
Agreement, she was not bound to arbitrate her wage and hour
claims but that she “will not, however, be able to assert claims
on behalf of any of the individuals in the purported class who
declined to opt out and who must therefore arbitrate any dispute
they have with AT&T on an individual basis.”
Shea continued:
AT&T Mobility Services (AT&T) hereby requests that Ms.
Brooks and Ms. Amari voluntarily dismiss their claims. If ei-
ther wishes to pursue a claim, she should file a request for ar-
bitration under the [Agreement]. If they do not dismiss their
claims, AT&T will file a motion with the District Court to
compel arbitration. Please advise me if Ms. Brooks and Ms.
Amari will be dismissing their claims.
Thereafter, Brooks and Amari voluntarily dismissed their
federal class-action lawsuit on July 23, 2013.4 On September 5,
2013, the Judicial Arbitration and Mediation Service (JAMS)
advised Mobility that Brooks had commenced arbitration with
regard to her wage and hour claims.
In November 2013, Brooks retained new counsel: Steven
Adler and Arla Cahill, replacing Rooney. Arbitrator Michael
D. Young was selected to hear the Brooks and Amari arbitra-
tion claims. On December 23, 2013, Brooks’ counsel and Shea
participated in a conference call with Arbitrator Young, at
which time, Adler announced his intention to amend Brooks’
statement of claim to assert class and collective claims against
Mobility. Shea replied that class and collective actions were
foreclosed by the Agreement and Second Circuit precedent.

4 Counsel of record for Brooks and Amari made no claim that they
were not bound by the Agreement.
The Arbitrator directed Adler to submit any amended claim by
January 8, 2014, and requested that the parties confer regarding
the scope of the arbitration and the procedures and schedule to
be followed. Absent such agreement, the Arbitrator directed
each counsel to submit a letter of position regarding unresolved
issues. Thereafter, Shea wrote to Adler stating that he believed
Brooks’ class and collective actions were foreclosed and that
the issue of the Agreement’s enforceability on that point was a
matter for a federal court to decide.
On December 30, 2013, Shea sent an email to Adler which
stated in part:
We were surprised to learn last week of your intention to
amend Ms. Brooks’ Statement of Claims to include allega-
tions on behalf of a class/collective under federal and state
law. As you know the Management Arbitration Agreement
(MAA) Ms. Brooks entered into expressly waives the right to
bring any such claim, but you stated on our call that the waiv-
er is unenforceable because it conflicts with your client’s
rights under the National Labor Relations Act (NLRA). We
were equally surprised to learn of your position that this chal-
lenge to the class action waiver would be a question for reso-
lution by the arbitrator. Before you file such an amended
Statement of Claims, and we are forced to file an action in
federal court to stay arbitration of the class portion of your
claims, we wanted you to be aware that both of the above ar-
guments are foreclosed by controlling precedent.5
In January 2014, Brooks’ counsel notified Mobility and the
arbitrator that they had been retained by Amari to represent her
in her arbitration, they intended to file additional arbitration
claims similar in nature to Brooks’ claims, and that they wished
to consolidate these claims with Brooks’ claim. On January 22,
2014, Shea confirmed that Mobility was unwilling to consoli-
date such claims.
During the months of January and February 2014, Adler,
Shea and Arbitrator Young exchanged a series of email corre-
spondences regarding the filing of new individual arbitration
claims and the deadline for the filing of such claims. On about
February 19, 2014, Brooks’ counsel reiterated its request that
Mobility consent to consolidate Amari and Nelson Lopez’ arbi-
tration claims with Brooks’ claim. On February 21, 2014, Shea
responded to the request by again informing Brooks’ counsel
that: “in our view the Management Arbitration Agreement does
not authorize consolidation of separate claims . . . absent the
consent of the parties.”
On March 10, 2014, Arbitrator Young conducted a telephone
conference, and subsequently issued an order confirming the
agreements reached. In pertinent part, the parties agreed that
Brooks’ arbitration claims would be consolidated for discovery
purposes with the pending arbitration claims of Amari and
Lopez. The parties additionally agreed that at the end of dis-
covery, absent an agreement between the parties, the arbitrator
would decide whether any of the claims would be consolidated
for purposes of a hearing on the merits applying the standards
set forth in the JAMS Employment Arbitration Rules and Pro-

5 Shea went on to discuss both Second Circuit and Supreme Court
law which, it asserted, supported the above stated position.
AT&T MOBILITY SERVICES, LLC 7
cedures and such other legal authority as may be appropriate.
On March 10, 2014, Adler notified Shea that he intended to
file a wage and hour claim on behalf of Figuereo and requested
to consolidate his claims with those of Brooks, Amari and
Lopez in the event Figuereo had not opted out of the Agree-
ment. Adler sought confirmation on the latter point. Shea sub-
sequently confirmed that Figuereo did not opt out of the
Agreement and Adler requested that his arbitration claims be
consolidated with the claims of others for discovery purposes.
Shea agreed to do so, if Adler would agree not to add additional
claimants. Adler did not agree to this request.
On March 25, 2014, Figuereo filed with JAMS a statement
of claim and demand for arbitration asserting wage and hour
claims under the FLSA and New York and New Jersey law, the
same claims raised by Brooks and Amari. By email dated
March 31, 2014, Mobility represented to JAMS Case Manager
George R. Cuervos that it objected to consolidating Figuereo’s
claims with the Brooks and Amari claims for purposes of dis-
covery. However, on June 16, 2014, the parties ultimately
agreed that Figuereo’s claims would be consolidated with the
Brooks and Amari claims for purposes of discovery as reflected
in an order issued by Arbitrator Young.
Figuereo’s claims have since proceeded in arbitration. After
discovery, Figuereo and Mobility filed cross motions for sum-
mary judgment on his claims, still under submission at the time
of the hearing. The “LoCurto” action in which Brooks was
initially named as a plaintiff has continued in her absence. On
August 18, 2014, District Judge Torres issued a memorandum
and order granting conditional certification to a class including
NRAEs. The Judge’s Order excluded from the conditionally
certified class, all individuals who had reached a prior agree-
ment with Mobility and those who had consented to arbitrate
their claims pursuant to the Agreement. Those employees who
had opted out of the Agreement were given notice and an op-
portunity to join the collective action, approximately 175 em-
ployees. Of that number, approximately 20 exercised their
right to participate in the LoCurto action.
Contentions of the Parties
In its posthearing brief, the General Counsel concedes that,
notwithstanding the contentions of Brooks and Figueroa that
they did not recall receiving the email introducing the Agree-
ment, based upon the evidence adduced by the Respondent at
the hearing, it is apparent that the charging parties had, in fact,
received the email and failed to opt out of the Agreement.
Thus, as framed by the General Counsel in its brief, the sole
remaining issue in this matter is whether the maintenance of the
Agreement itself violates Section 8(a)(1) of the Act.
Respondent has advanced a number of defenses to the re-
maining allegation. As an initial matter, it is argued that it did
not violate Section 8(a)(1) of the Act because it did not require
the charging parties to participate in the Agreement as a manda-
tory condition of employment; therefore the Board’s decisions
in D. R. Horton and Murphy Oil are neither applicable nor dis-
positive of the issue. The Respondent has further argued that
the doctrine of the above-cited cases is inapposite because the
charging parties voluntarily consented to the Agreement with-
out coercion or interference. It is further urged that existing
Board law does not warrant invalidating such a voluntary
agreement to arbitrate employment disputes with an employer.
Respondent further argues that the lawfulness and validity of
the Agreement must be determined by the Federal Arbitration
Act (FAA) and Supreme Court law and not under Board doc-
trine as set forth in D. R. Horton and Murphy Oil. Moreover,
the Respondent argues that the charges and complaint are
barred by the 6-month limitations period under Section 10(b) of
the Act.6
Analysis and Conclusions
Respondent’s ADR policy violates Section 8(a)(1) of the Act.
It is well-settled that an employer’s maintenance of a work
rule which reasonably tends to chill employees’ exercise of
their Section 7 rights violates Section 8(a)(1) of the Act. Lafa-
yette Park Hotel, 326 NLRB 824, 825 (1998). A particular
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
“reading particular phrases in isolation” or assuming “improper
interference with employee rights.” Lutheran Heritage Village-
Livonia, supra at 646. Ambiguities in work rules are construed
against the party which promulgated them. See Supply Tech-
nologies, LLC, 359 NLRB No. 38 slip op. at p. 3; Lafayette
Park Hotel, supra at 828.
The Board has held that mandatory arbitration agreements
that bar employees from bringing joint, class or collective
workplace actions in any forum restrict the exercise of the Sec-
tion 7 right to act concertedly for mutual aid or protection,
Murphy Oil, supra, slip op. at 5–6; D. R. Horton, supra, slip op.
at 1–2 fn. 4. In D. R. Horton, the rationale of which was af-
firmed in Murphy Oil, the Board, relying upon cases dating
back to its earliest days 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

6 There are other arguments raised by Respondent which, based up-
on the General Counsel’s apparent limitation of the scope of the viola-
tions alleged and remedy sought, are no longer of relevance here. In
particular, the Respondent has urged that it did not unlawfully seek to
enforce the Agreement by taking action consistent with the charging
parties’ voluntary agreement to arbitrate employment disputes and that
the charging parties’ claims are barred by waiver. In view of the limita-
tions of the General Counsel’s theory of the case, as set forth above, I
find it unnecessary to address such defenses.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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, 275–276 (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
New York, 321 NLRB 624, 633–636 (1996), the Board found
that an “opt-in” class action lawsuit alleging employer viola-
tions of the FLSA was protected concerted activity. In United
Parcel Service, Inc., 252 NLRB 1015, 1018, 1022 and fn. 26
(1980), enfd. 677 F.2d 421 (6th Cir. 1982), the Board found
that an employer unlawfully discharged an employee for bring-
ing a class action lawsuit regarding employee rest breaks. In
Saigon Gourmet Restaurant, 353 NLRB 1063, 1064 (2009), the
Board concluded that the employer 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 engaged in protected concerted activi-
ties. 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 Agreement is entirely voluntary,
rendering it lawful under the Act. In my view, the purported
“voluntary” nature of any employee’s decision as to whether to
abide by such a policy, promulgated and endorsed by their em-
ployer, is open to question. More significantly, there are diffi-
culties 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 which are, after all, afford-
ed to employees under the Act is an unreasonable one. There is
also a question as to whether an employer’s promulgation and
apparent endorsement of such a waiver would reasonably tend
to interfere, restrain or coerce employees in the exercise of
those rights. In this regard, I note that employees were in-
structed to direct any inquiries relating to the Agreement or its
terms to representatives chosen by their employer (in particular,
its human resources personnel) rather than to an independent
third party.7 There is also the undeniable fact that unless an
employee affirmatively chose to opt out of the Agreement,
rather than affirmatively agree to it, the scope and nature of the
legal options available to enforce or alter the terms and condi-
tions of any such employee would change irrevocably.
Thus, the question is not simply whether an employee may
choose to forego participation in the program. The issue, ra-
ther, is whether an employer and an individual employee may
enter into an agreement to waive, irrevocably, future rights
protected by the Act, thereby implicating a substantive right to
engage in the collective redress of grievances, which the Board
has long recognized as being at the core of Section 7 and cen-
tral to the Act’s purposes.
Here, there seems to be little dispute that participation in the
policy initially was not mandatory: employees were provided

7 There is no evidence in the record as to any such inquiry on the
part of an employee and the human resources department’s response
thereto.
with a specific period of time during which they choose to opt
out of participation in the Agreement.8 However, once an em-
ployee failed to exercise this option, certain “core” features of
that employee’s Section 7 rights were irrevocably waived pro-
spectively and Respondent retained the option seek to enforce
such a waiver, as happened in the instant case. There is no
opportunity for an employee to reconsider his or her decision,
assuming it was consciously and knowingly made, in light of
changed employment circumstances.9 It is solely the employee
who is relinquishing his or her rights--rights which are granted
by virtue of extant federal law.
The Board has found that such rights are substantive, as con-
trasted with merely procedural:
For almost 80 years, Federal labor law has protected the right
of employees to pursue their work-related legal claims togeth-
er, i.e., with one another, for the purpose of improving their
working conditions. The core objective of the National Labor
Relations Act is the protection of workers’ ability to act in
concert, in support of one another. Section 7 implements that
right by guaranteeing employees the “right …to engage in…
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.” Our national labor policy –
aimed at averting “industrial strife and unrest” and “restoring
equality of bargaining power between employer and employ-
ees” – has been built on this basic premise. In protecting a
substantive right to engage in collective action – the basic
premise of Federal labor policy – the National Labor Rela-
tions Act is unique among workplace statutes.
Murphy Oil, supra, slip op. at 1.
While the Board, in D. R. Horton or Murphy Oil, did not
have to consider the issue of individual agreements containing
an opt-out provision such as exists here, in other contexts, the
Board has had the occasion to consider such waivers and, has
found that an employer’s offer to an employee of an individual
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 separation agreement be-
tween an employee and the employer that restricted for a 1-year
period the employee from attempting “to hire, influence, or
otherwise direct any employee of the Company to leave em-
ployment 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 un-
ion-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
Section 7 rights. “Future rights of employees as well as the

8 The record is silent as to how Mobility addresses this issue with its
employees hired and subject to the Agreement after the February 2012.
9 There is no evidence that employees were apprised, in layman’s
terms, of the “real-life” consequences of the choice they were being
asked to make; in particular what they were being asked to relinquish.
Rather, as is evident from the excerpts cited above, and the Agreement
as a whole, it is couched in terms that are best interpreted by a legal
professional.
AT&T MOBILITY SERVICES, LLC 9
rights of the public may not be traded away in such a man-
ner.” Mandel Security Bureau, Inc., 202 NLRB 117, 119
(1973) (release used by employer was overly broad and un-
lawfully prohibited filing of unfair labor charges concerning
future incidents. See generally Metro Networks, Inc. 336
NLRB 63 (2001).
See also, Goya Foods of Florida, 358 NLRB No. 43, slip op.
at 2–3 (2012), where the Board concluded that settlement
agreements which prohibited employees from engaging in un-
ion activity relating to the employer and/or its employees were
unlawful.
It should be noted that, from its earliest days, the Board has
adhered to this fundamental 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 em-
ployment contracts that required employees to attempt to re-
solve employment disputes 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 dispute, the employee is denied the right to
act through a representative and is compelled to pit his individ-
ual bargaining strength against the superior bargaining power
of the employer.” In affirming the Board’s holding, the Sev-
enth Circuit found that the contract clause as a per se violation
of the act even if “entered into without coercion,” because “it
obligated [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 precedents and policy considerations which
underlie the Act from its earliest days warrant the conclusion
that the Agreement violates the Act, notwithstanding the fact
that employees may, for a proscribed and limited period of
time, choose not to enter into such an agreement with their
employer.
Respondent has further argued that the validity of the
Agreement must be evaluated under the Federal Arbitration Act
(FAA) and controlling Supreme Court precedent decided after
the Board’s D. R. Horton decision; and that such precedent has
discredited the framework principle that Section 7 ostensibly
creates a substantive right for employees to pursue employment
claims on a collective basis. In support of these contentions,
Respondent relies initially upon the refusal of the Fifth Circuit
to enforce D. R. Horton, D. R. Horton, Inc., v. NLRB, 737 F.3d
344 (5th Cir. 2013), and notes that other Federal courts have
rejected Horton to the extent it found the Board’s decision to
run afoul of the FAA. See Sutherland v. Ernst & Young LLP,
726 F.3d 290 (2d Cir. 2013) and Owens v. Bristol Care, Inc.,
702 F.3d 1050 (8th Cir. 2013).
In Horton, on review, the Fifth Circuit concluded that neither
the Act’s statutory text nor its legislative history contained a
congressional command against application of the FAA and
that, in the absence of an inherent conflict between the FAA
and the Act’s purpose, an arbitration agreement, such as the one
at issue here, should be enforced according to its terms, 737
F.3d at 361–363. Accordingly, the Court denied enforcement
of the Board’s order invalidating the arbitration provision at
issue in D. R. Horton.
In Murphy Oil, the Board acknowledged the Fifth Circuit’s
rejection of the Board’s Horton decision on appeal, by a divid-
ed panel, as well as decisions of the Second and Eighth Circuits
also indicating disagreement with Horton, but cited the well-
established rule that “[t]he Board is not required to acquiesce in
adverse decisions of the Federal courts in subsequent proceed-
ings not involving the same parties.” Murphy Oil, supra, slip
op. at 2 fn. 17 (citations omitted). In Murphy Oil, a Board pan-
el majority expressly reaffirmed Horton stating that “[t]he ra-
tionale of D. R. Horton was straightforward, clearly articulated
and well supported at every step,” Murphy Oil, supra, slip op. at
6 and that “[w]ith due respect to the courts that have rejected D.
R. Horton, and to our dissenting colleagues, we adhere to its
essential rationale for protecting workers’ core substantive
rights under the National Labor Relations Act.” Id., slip op. at
7.
Respondent, relying on the Supreme Court’s decisions in
American Express Co. v. Italian Colors Restaurant, 133 S.Ct.
2304 (2013), CompuCredit Corp. v. Greenwood, 132 S.Ct. 665,
669 (2012) and AT&T Mobility v. Concepcion, 131 S.Ct 24, 24
(2001), additionally argues that D. R. Horton and Murphy Oil
were wrongly decided and should not be controlling in this
matter. In particular, it is contended that these cases demon-
strate that the FAA proclaims a strong policy in favor of arbi-
tration and, accordingly, that statute requires the enforcement
of arbitration agreements according to their terms. It is further
contended that where the FAA’s goals clash with those of an-
other Federal statute, the FAA’s mandate in favor of arbitration
prevails unless it has been overridden by a contrary congres-
sional command see e.g. American Express v. Italian Colors
Restaurant, supra. In addition, Respondent references numer-
ous other cases which have examined this issue and concluded
that waivers of class or collective actions are enforceable.
The Board has recently rejected such arguments. In Chesa-
peake Energy Corp., 362 No. 80 (2015), the Board considered
the determination of the administrative law judge that D. R.
Horton’s holding “cannot be sustained” because it is contrary to
Supreme Court precedent under the FAA enforcing arbitration
agreements that waive class arbitration of state and federal
statutory claims.10
In Chesapeake, the Board noted that in Murphy Oil, it had
reiterated that no post-Horton decision of the Supreme Court
speaks directly to that issue. To the contrary, the Board found:
Insofar as an arbitration agreement prevents employees from
exercising their Section 7 right to pursue legal claims concert-
edly – by, as here, precluding them from filing joint, class or
collective claims addressing their working conditions in any
forum, arbitral or judicial – the arbitration agreement amounts
to a prospective waiver of a right guaranteed by the NLRA.
(The Act, of course, does not create an entitlement to class
certification or the equivalent; it protects the right to seek that
result.) Being required to proceed individually is no proper
substitute for proceeding together, insofar as otherwise legally

10 That case involved a mandatory waiver. I conclude, however,
that the rationale applied by the Board insofar as it relates to any poten-
tial conflict with the FAA and related Court precedent would be appli-
cable to the circumstances here.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
permitted, and only channels employee collective activity into
disruptive forms of action. The “remedial and deterrent” func-
tion of the NLRA, which protects the right to concerted legal
action, cannot possibly be served by an exclusive arbitral fo-
rum that denies the right of employees to proceed collectively.
Murphy Oil, supra, slip op. at 8–9 (footnotes omitted)(emphasis
in original).
The Board further concluded that there is no conflict be-
tween the FAA and the NLRA because Section 2 of the FAA
provides that arbitration agreements may be invalidated in
whole or in part pursuant to its savings clause for the same
reason that any contract may be invalidated, including that it is
unlawful or contrary to public policy. Murphy Oil, supra slip
op. at 9. Here the General Counsel urges, in essence, that the
arbitration agreement at issue is unlawful because it interferes,
restrains or coerces employees from the exercise of their sub-
stantive right to engage in Section 7 conduct. I agree.
The Murphy Oil Board further found that Section 7 of the
Act presents a “contrary congressional command” overriding
the FAA. Id at 9. In this regard, the Board stated, “[w]e see no
compelling basis for the [Fifth Circuit’s] conclusion that to
override the FAA, Section 7 was required to explicitly provide
for a private cause of action for employees, a right to file col-
lective legal action and the procedures to be employed. That
standard . . . reflects a fundamental misunderstanding of the
NLRA and the collective, substantive rights it creates for the
Board to enforce.” Id.
As has been observed by numerous administrative law judg-
es evaluating claims brought under D. R. Horton and its proge-
ny, I am bound by Board law until either the Board or the Su-
preme Court mandates otherwise. Waco, Inc., 273 NLRB 746,
729 fn. 14 (1984) (it is the judge’s duty to apply Board prece-
dent which the Supreme Court has not reversed and for the
Board and not the judge to determine whether precedent should
be varied). In this regard, any argument raised by the Respond-
ent that the Board’s actions are misguided, do not comport with
applicable precedent, do not fall within the FAA’s savings
clause and that there is no contrary congressional command that
employees’ substantive rights under the NLRA trump the FAA
are appropriately addressed to the Board for its consideration or
reconsideration, as the case may be.
Respondent additionally contends that the charges in this
matter are barred by the 6-month limitations period under Sec-
tion 10(b) of the Act. In support of these contentions, Re-
spondent asserts that the Agreement is a binding, bilateral
agreement between Mobility and an individual employee and
not a work rule maintained during the limitations period. It is
argued that the charges filed by the charging parties are barred
because they agreed to be bound more than 2 years prior to
filing their respective charges. Additionally, Respondent cites
to attorney Shea’s letter in July, 2013, where he notified coun-
sel for Brooks about her agreement to arbitrate her wage and
hour claims, which was sent 10 months prior to the filing of the
charge. I do not agree with such contentions.
As the General Counsel has noted, the complaint alleges and
it is urged that Respondent, since December 2011, and at all
material times, has promulgated, maintained and enforced the
Agreement, with the terms set forth, in relevant part, above.
Respondent has admitted that the charging parties consented to
the terms of the agreement containing, among other things, the
terms set forth above. The evidence shows, and there can be no
genuine dispute, that Respondent continues to maintain the
Agreement and has done so during the relevant limitations pe-
riod. I further find that the Agreement is tantamount to a work
rule insofar as it affects terms and conditions of employment,
and limits its employees’ efforts to enforce or change them.
The Board has repeatedly held that the maintenance of an
unlawful rule is a continuing violation, regardless of when the
rule was first promulgated. Chesapeake Energy Corp, supra
slip op. at 1 fn. 3 (and cases cited therein).
Here, Respondent first distributed the Agreement to employ-
ees in November 2011. It is clear, however that Respondent
continued to maintain and enforce the Agreement and the poli-
cy contained therein within the 10(b) period. In this regard,
Shea’s December 30, 2013 email to Adler specifically refer-
enced the Agreement and Respondent’s position that it prohib-
its the filing of class or collective actions. As discussed above,
Shea reiterated Respondent’s position in subsequent communi-
cations dated January 22, 2014, February 21, 2014, and March
31, 2014. There is no evidence or any contention by Respond-
ent that the Agreement has been rescinded.
As the charging parties filed their respective charges on May
1, 2014, it is apparent that the Agreement was maintained dur-
ing the 10(b) period. I therefore find that Respondent’s affirm-
ative defense regarding the timeliness of the charges and com-
plaint must be rejected.
CONCLUSIONS OF LAW
1. The Employer, AT&T Mobility Services, LLC, is an em-
ployer within the meaning of Section 2(2), (6) and (7) of the
Act.
2. At all material times, Respondent has violated Section
8(a)(1) of the Act by maintaining an arbitration policy that
waives the rights of its employees to file and maintain class and
collective actions in all forums, arbitral and judicial and is ap-
plicable to those employees who have failed to opt out of cov-
erage under the arbitration policy during a one-time initial opt
out period permitted to each employee.
3. The above violations are unfair labor practices within the
meaning of the Act
4. The unfair labor practices described above affect com-
merce 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 the Respondent’s
Management Arbitration Agreement (Agreement) is unlawful,
Respondent shall be ordered to rescind or revise it to make
clear to employees (in all of its facilities in which the Agree-
ment has been implemented), that the Agreement does not con-
stitute or require a waiver in all forums of their right to main-
tain or participate in collective and/or class actions, and shall
notify employees of the rescinded or revised Agreement by
AT&T MOBILITY SERVICES, LLC 11
providing them a copy of the revised policy or specific notifica-
tion that the Agreement has been rescinded. Respondent is also
ordered to distribute appropriate remedial notices to its em-
ployees electronically, such as by email, posting on an internet
or intranet site, and/or other appropriate electronic means, if it
customarily communicates with its employees by such means.
J. Picini Flooring, 356 NLRB No. 9 (2010).11
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, AT&T Mobility Services, LLC, Paramus,
New Jersey, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining any arbitration agreement or policy that
waives the right of employees to file and maintain class or col-
lective actions in all forums, arbitral and judicial, and which
applies irrevocably to those employees who fail to opt out.
(b) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise the Management Arbitration Agree-
ment (Agreement) currently applied to its employees, at all
locations where it is in effect, to make clear to employees that
the Agreement does not constitute or require a waiver in all
arbitral or judicial forums of their right to maintain employ-
ment-related class or collective actions.
(b) Notify employees of the rescinded or revised Agreement
by providing them a copy of the new revised Agreement and/or
specific written notification that the Agreement has been re-
scinded.
(c) Within 14 days after service by the Region, post at its fa-
cilities where the Agreement has been in effect copies of the
attached notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 22, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are

11 The record here so indicates.
12 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.
13 If 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.”
not altered, defaced, or covered by any other material. In addi-
tion to the physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on internet
or intranet site, and/or other electronic means. In the event that,
the Respondent has gone out of business or closed any 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 such facility or facilities at any time since November 2011.
(d) 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. June 26, 2015
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 maintain any arbitration agreement or policy
that waives the right of employees to file and maintain class or
collective actions in all forums, arbitral and judicial, and which
applies irrevocably to those employees who fail to opt out.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce you in the exercise of your rights under the
Act.
WE WILL rescind or revise the Management Arbitration
Agreement (Agreement) currently applied to our employees, at
all locations where it is in effect, to make clear to employees
that such an agreement does not constitute or require a waiver
in all arbitral or judicial forums of their right to maintain em-
ployment-related class or collective actions.
WE WILL notify employees of the rescinded or revised
Agreement by providing them a copy of the new revised
Agreement and/or specific written notification that the Agree-
ment has been rescinded.
AT&T MOBILITY SERVICES, LLC