Bloomingdales, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 2016

363 NLRB No. 172 (N.L.R.B. 2016)

363 NLRB No. 172
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.
Bloomingdale’s, Inc. and Fatemeh Johnmohammadi.
Case 31–CA–071281
April 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On June 25, 2013, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The General
Counsel, the Charging Party, and the Respondent all filed
exceptions and supporting briefs. The General Counsel
filed an answering brief to the Respondent’s exceptions,
and the Respondent filed a combined answering brief to
the other parties’ exceptions.
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 briefs1 and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.2
I. THE ABSENCE OF A BOARD QUORUM DOES NOT LIMIT
THE AUTHORITY OF THE GENERAL COUNSEL TO

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
The Respondent argues that the complaint is time-barred by Sec.
10(b) because the initial unfair labor practice charge was filed and
served more than 6 months after Charging Party Fatemeh
Johnmohammadi signed and became subject to the arbitration policy at
issue in this case. We reject this argument, as did the judge in denying
the Respondent’s motion for judgment on the pleadings, because the
Respondent continued to maintain the arbitration policy during the 6-
month period preceding the filing of the initial charge. The Board has
consistently held that maintenance of an unlawful workplace rule, such
as the Respondent’s arbitration policy, constitutes a continuing viola-
tion that is not time-barred by Sec. 10(b). See, e.g., PJ Cheese, Inc.,
362 NLRB No. 177, slip op. at 1 (2015); Neiman Marcus Group, Inc.,
362 NLRB No. 157, slip op. at 2 fn. 6 (2015); Cellular Sales of Mis-
souri, LLC, 362 NLRB No. 27, slip op. at 2 fn. 7 (2015). It is equally
well established that an employer’s enforcement of an unlawful rule,
like the arbitration policy here, independently violates Sec. 8(a)(1). See
Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 19–21 (2014), enf.
denied in relevant part 808 F.3d 1013 (5th Cir. 2015). The Respondent
initiated enforcement of its arbitration policy when it filed its motion to
compel arbitration in the Charging Party’s class action lawsuit in Fed-
eral district court. The motion to compel arbitration was filed on No-
vember 30, 2011, well within the statutory 6-month period preceding
Johnmohammadi’s filing and service of the charge in December 2011.
2 We shall modify the judge’s recommended Order to conform to
our findings and to the Board’s standard remedial language and in
accordance with Excel Container, Inc., 325 NLRB 17 (1997). We shall
substitute a new notice to conform to the Order as modified and in
accordance with Durham School Services, 360 NLRB No. 85 (2014).
INVESTIGATE AND PROSECUTE ALLEGED VIOLATIONS
OF THE ACT
On April 30, 2013, the Board issued an order denying
the Respondent’s motion to dismiss the complaint, in
which the Respondent argued that the complaint was
void ab initio because the Board lacked a quorum at the
time the complaint was issued. 359 NLRB No. 113
(2013). On October 9, 2014, the Respondent filed a mo-
tion for reconsideration of the April 30, 2013 order, argu-
ing that the Board lacked a quorum when it ruled on the
Respondent’s motion to dismiss the complaint. With
regard to the merits of the motion to dismiss, the Re-
spondent argues, as it did previously, that the then-
Acting General Counsel Lafe Solomon lacked authority
to prosecute this case while the Board lacked a quorum.
In addition, the Respondent specifically argues for the
first time that Regional Director Mori Rubin, who issued
the instant complaint, was not validly appointed because
the Board lacked a quorum at the time it approved her
appointment.3
We grant the Respondent’s motion for reconsideration.
At the time of the April 30, 2013 order denying the mo-

3 We reject the Respondent’s argument that the complaint should be
dismissed because the Board lacked a quorum at the time it originally
approved Regional Director Rubin’s appointment.
First, this argument is procedurally defective because it was not
properly raised in the Respondent’s exceptions and brief. Prior to filing
its motion for reconsideration, the Respondent made no effort to chal-
lenge the validity of Regional Director Rubin’s appointment directly.
Rather, as noted above, the Respondent focused entirely upon its argu-
ment that in the absence of a valid Board quorum there was no jurisdic-
tion to prosecute the complaint. Thus, the Respondent’s argument was
that no Regional Director could prosecute the complaint in the absence
of a valid Board quorum, not that Regional Director Rubin could not
prosecute the complaint because she was not validly appointed. Fur-
ther, while the Respondent’s exceptions generally questioned the va-
lidity of any appointments by the Board during the time it lacked a
quorum (exception 49 of 53), the Respondent did not raise this matter
with the judge and it did not elaborate on its argument in its brief to the
Board. Under Sec. 102.46(b)(2) of the Board’s Rules and Regulations,
this type of “bare exception” may be disregarded. Industrial Contrac-
tors Skanska, Inc., 362 NLRB No. 169, slip op. at 1 fn. 1 (2015);
Earthgrains Co., 351 NLRB 733, 733 fn. 1 (2007).
Second, even assuming we were to consider the Respondent’s argu-
ment regarding Director Rubin’s appointment, we would not find it
appropriate to dismiss the complaint. In this regard, while the Board
lacked a valid quorum on May 15, 2012, when it originally approved
the appointment of Regional Director Rubin, on July 18, 2014, the
Board ratified all administrative and personnel decisions made from
January 4, 2012, to August 5, 2013, and expressly authorized Regional
Director Rubin’s appointment. Further, on July 30, 2014, Regional
Director Rubin ratified all decisions made between her initial appoint-
ment and July 18, 2014. See Centinela Hospital Medical Center, 363
NLRB No. 44, slip op. at 1 fn. 2 (2015); Pallet Cos., 361 NLRB No. 33
(2014), enfd. mem. No. 14–1182, 2015 WL 9309133 (D.C. Cir. Dec.
18, 2015) (per curiam). Under these circumstances we find that any
alleged defect in Regional Director Rubin’s appointment has been
cured and there is no basis for dismissing the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tion to dismiss, the composition of the Board included
two persons whose appointments to the Board had been
challenged as constitutionally infirm. On June 26, 2014,
the United States Supreme Court issued its decision in
NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding
that the challenged appointments to the Board were not
valid. Accordingly, we set aside the April 30, 2013 order
and consider de novo the Respondent’s Motion to Dis-
miss.
In support of its original motion to dismiss, the Re-
spondent relied entirely upon its argument that in the
absence of a valid Board quorum there was no jurisdic-
tion to prosecute the complaint. We reject this argument.
As we stated in American Electric Power, 362 NLRB
No. 92, slip op. at 1 fn. 1 (2015), “[t]he authority of the
General Counsel to investigate unfair labor practice
charges, and to issue and prosecute unfair labor practice
complaints, is derived directly from the language of the
National Labor Relations Act . . . , not from any ‘power
delegated’ by the Board. Accordingly, the presence or
absence of a valid Board quorum has no bearing on the
General Counsel’s prosecutorial authority.” Similarly,
with respect to the validly delegated authority of other
Board officials, we reject any suggestion that the tempo-
rary absence of a Board quorum in any way limits such
authority. See Care One at Madison Avenue, LLC, 361
NLRB No. 159, slip op. at 1 fn. 2 (2014). Accordingly,
we deny the Respondent’s motion to dismiss the com-
plaint.
II. SW GENERAL DOES NOT PRECLUDE LITIGATION OF
THIS CASE
In SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir.
2015), rehearing en banc denied, Nos. 14–1107 & 14–
1121, 2016 U.S.App.LEXIS 981 (D.C. Cir. Jan. 20,
2016), the U.S. Court of Appeals for the District of Co-
lumbia Circuit held that Acting General Counsel Lafe
Solomon was qualified to serve in that capacity under the
Federal Vacancies Reform Act of 1998 (FVRA), 5
U.S.C. §§ 3345, et seq., and that he validly served as the
Acting General Counsel at the direction of the President
beginning June 21, 2010. The court further held that
Solomon’s authority as the Acting General Counsel
ceased on January 5, 2011, when the President nominat-
ed him for the position of the General Counsel.
Thereafter, on October 22, 2015, General Counsel
Richard F. Griffin, Jr. issued a Notice of Ratification in
this case which states, in relevant part,
I was confirmed as General Counsel on November 4,
2013. After appropriate review and consultation with
my staff, I have decided that the issuance of the com-
plaint in this case and its continued prosecution are a
proper exercise of the General Counsel’s broad and un-
reviewable discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appel-
late court ruling in SW General. Rather, my decision is
a practical response aimed at facilitating the timely res-
olution of the charges that I have found to be meritori-
ous while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by
expressly exempting “the General Counsel of the Na-
tional Labor Relations Board” from the FVRA provi-
sions that would otherwise preclude the ratification of
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.
On January 27, 2016, the Respondent filed a motion to
strike or otherwise nullify this Notice of Ratification,
arguing that General Counsel Griffin lacks the authority
to ratify the actions taken by former Acting General
Counsel Solomon because those actions were void under
SW General, and that General Counsel Griffin was pro-
hibited from taking prosecutorial actions in this matter by
the “separation of functions” provisions of the Adminis-
trative Procedure Act (5 U.S.C. § 554). We reject both
arguments.4

4 Notably, neither the Respondent’s motion for reconsideration nor
its motion to strike directly argue that the complaint should be dis-
missed because it was issued at a time when Acting General Counsel
Solomon lacked authority under SW General. Rather, the motion for
reconsideration is focused on the Board’s lack of a quorum at the time
the complaint was issued and when the motion to dismiss originally
was denied, and the motion to strike is focused on the authority of
General Counsel Griffin to ratify the actions taken by former Acting
General Counsel Solomon.
On March 11, 2016, the Respondent submitted to the Executive Sec-
retary a letter calling the Board’s attention to what it described as “per-
tinent and significant new authority” that issued after these two mo-
tions. Purporting to act pursuant to the Board’s decision in Reliant
Energy, 339 NLRB 66 (2003), the Respondent argues that the decision
of the Ninth Circuit in Hooks v. Kitsap Tenant Support Services., No.
13–35912, 2016 WL 860335 (9th Cir. Mar. 7, 2016) (finding Acting
General Counsel Solomon lacked authority to serve after the President
submitted his nomination to be the permanent General Counsel to the
Senate), supports the arguments it made in support of its motion for
reconsideration and motion to strike.
The Respondent misunderstands the Board’s decision in Reliant En-
ergy, supra. The purpose of the practice recognized in Reliant Energy
is to allow a party to bring to the Board’s attention new authority that
relates to the issues litigated by the parties and presented to the Board
through timely filed exceptions. Reliant Energy does not purport to
allow a party to circumvent the Board’s Rules and Regulations and
raise new issues that were not presented to the judge or preserved for
appeal through the filing of timely exceptions. See Sec. 102.46 of the
Board’s Rules and Regulations. In this regard, the record shows that
the Respondent did not raise any issue regarding the authority of Acting
General Counsel Solomon under the FVRA during the investigation, in
its motion to dismiss, before the judge, or in its exceptions to the Board.
BLOOMINGDALES’S, INC. 3
The Respondent has misstated the holding of SW Gen-
eral. In that case the court recognized that the General
Counsel of the National Labor Relations Board is one of
several officers expressly exempted from the “void-ab-
initio” and “no ratification” provisions of the FVRA.
796 F.3d at 78–79, citing 5 U.S.C. § 3348(e)(1). There-
fore, the court treated the actions of an improperly serv-
ing Acting General Counsel as “voidable, not void,” and
indicated that any statutory defect in actions could be
cured through ratification by a subsequent, properly ap-
pointed General Counsel. Id. (discussing 5 U.S.C. §
3348); see also Doolin Sec. Sav. Bank, F.S.B. v. Office of
Thrift Supervision, 139 F.3d 203 (D.C. Cir. 1998); Fed-
eral Election Commission v. Legi–Tech, Inc., 75 F.3d
704 (D.C. Cir. 1996).5
The Respondent has also misstated the import of the
“separation of functions” provisions of the Administra-
tive Procedure Act (5 U.S.C. § 554). Section 554(d) of
the APA provides, in relevant part,
An employee or agent engaged in the performance of
investigative or prosecuting functions for an agency in
a case may not, in that or a factually related case, par-
ticipate or advise in the decision, recommended deci-
sion, or agency review pursuant to section 557 of this
title, except as witness or counsel in public proceed-
ings.
The plain language of this provision restricts the abil-
ity of a person who has served in a prosecutorial role in a
particular matter from subsequently serving in an adjudi-
cative role in the same or a factually related matter. That
is not what has occurred in this case.
Before being confirmed as General Counsel of the Na-
tional Labor Relations Board, Richard Griffin first was
named as a recess appointee to the National Labor Rela-

The Respondent’s first reference to the Kitsap litigation was a passing
reference to the underlying district court decision, which it cited in
support of its “lack of quorum” argument. See Respondent’s motion
for reconsideration, p. 5 (citing Hooks ex rel. NLRB v. Kitsap Tenant
Support Services, No. C13–5470 BHS, 2013 US.Dist.LEXIS 114320
(W.D. Wash. Aug. 13, 2013)). Under these circumstances, we find that
the Respondent has waived its right to challenge the authority of Acting
General Counsel Solomon under the FVRA, and we reject the Re-
spondent’s March 11, 2016 letter as an untimely effort to file additional
exceptions. See Boeing Co., 362 NLRB No. 195, slip op. at 1 fn. 1
(2015).
5 Although the court in SW General also found that the subsequent
final Board order “did not ratify or otherwise render harmless the
FVRA defect in the ULP complaint,” it did so because, given the scope
of prosecutorial discretion of the General Counsel under the Act, it
could not be confident that the complaint against Southwest would have
been issued by a different General Counsel. 796 F.3d at 80–81. In the
instant matter there is no similar uncertainty—the issuance of the com-
plaint and its continued prosecution were expressly ratified by General
Counsel Griffin, a subsequent, properly appointed General Counsel.
tions Board. His recess appointment was challenged, and
it ultimately was determined that his appointment as a
Board Member was not valid. To the extent relevant to
this litigation, his only alleged action as an “adjudicator”
was to determine that his recess appointment was valid,
that the Board therefore had a quorum, and to deny the
Respondent’s motion to dismiss, which was based on the
argument that the Board lacked a quorum. 359 NLRB
No. 113 (2013). In doing so, Griffin did not take any
action as an adjudicator with respect to any matter in
which he previously served in a prosecutorial role.
As to the ability of Griffin to act in a prosecutorial
role, there is no basis under the APA for disqualifying
Griffin from prosecuting this or any other matter. As
noted above, Section 554(d) is focused on who can serve
as an adjudicator, and disqualifies as an adjudicator any-
one who has previously served in the performance of
investigative or prosecuting functions in the same or a
factually related case. There is no similar language ad-
dressing who may serve in a prosecutorial role.
For the foregoing reasons, we deny the Respondent’s
motion to strike or otherwise nullify this Notice of Rati-
fication. Furthermore, assuming arguendo that the Re-
spondent had timely raised the FVRA (see fn. 4, supra),
in view of the independent decision of General Counsel
Griffin to continue prosecution of this matter, we reject
as moot any challenge to the authority of Acting General
Solomon under the FVRA.
III. THE 8(A)(1) WAIVER OF CLASS AND COLLECTIVE
ACTIONS IN ALL FORUMS
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by maintaining and enforcing
the mandatory individual arbitration procedure set forth
in its Solutions InSTORE Early Dispute Resolution pro-
gram (SIS program)6 because the SIS program’s opt-out
procedure placed it outside the scope of the Board’s
holding in D. R. Horton, Inc., 357 NLRB 2277 (2012),
enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013);
reaffirmed in Murphy Oil, supra, which held that an em-
ployer violates Section 8(a)(1) of the Act when it re-
quires employees, as a condition of their employment, to
enter into an agreement “that precludes them from filing

6 The plan document setting forth the SIS program provides that
“[t]he Arbitrator shall not consolidate claims of different Associates
[i.e., employees] into one (1) proceeding, nor shall the Arbitrator have
the power to hear an arbitration as a class action (a class action involves
representative members of a large group, who claim to share a common
interest, seeking relief on behalf of the group).” The first clause clearly
precludes joinder of claims, and the definition of “class action” is
broadly worded so as to make clear that the second clause prohibits all
forms of concerted arbitration and not just class-action arbitration
properly so called. In short, the SIS program rules out all but individu-
al arbitration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
joint, class, or collective claims addressing their wages,
hours or other working conditions against the employer
in any forum, arbitral or judicial.” Id. at 2277. After the
judge issued his decision, the Board, rejecting the ra-
tionale relied upon by the judge here, held in On Assign-
ment Staffing Services, 362 NLRB No. 189, slip op. at 1,
4–5 (2015), that “an agreement that limits resolution of
all employment-related claims to individual arbitration,
unless employees follow a procedure to opt out of the
agreement,” imposes an unlawful mandatory condition of
employment that falls squarely within the rule of D. R.
Horton, supra, and Murphy Oil, supra. The Board fur-
ther held in On Assignment Staffing Services, supra, slip
op. at 1, 5–8, that even if we were to assume that an opt-
out provision renders an arbitration policy not a condi-
tion of employment, and therefore voluntarily entered
into, an arbitration policy that precludes employees from
pursuing protected concerted legal activity in all forums
is unlawful because it requires employees to prospective-
ly waive their Section 7 right to engage in concerted ac-
tivity.7 Accordingly, we reverse the judge’s dismissal of
these allegations and find that the Respondent violated
Section 8(a)(1) by maintaining and enforcing an arbitra-
tion policy that requires employees, as a condition of
employment, to waive their rights to pursue class or col-
lective actions involving employment-related claims in
all forums, whether arbitral or judicial.8

7 The dissent asserts that “[t]he class-action waiver agreements were
entered into voluntarily, even though the Respondent was willing to
hire employees only if they entered into the agreements.” This assertion
does not withstand scrutiny. Under established law in Horton and the
many cases following it, the material question is whether the employees
were required to sign the waiver agreements “as a condition of their
employment.” D. R. Horton, supra, 357 NLRB at 2277. By the dis-
sent’s own admission, they were. Moreover, employees who sign the
agreements after being told that, if they don’t sign, they can look else-
where for a job, can hardly be said to have signed “voluntarily.”
8 The Respondent argues that its arbitration policy includes an ex-
emption allowing employees to file charges with administrative agen-
cies, including the Board, and thus does not, as in D. R. Horton, unlaw-
fully prohibit them from collectively pursuing litigation of employment
claims in all forums. See Owen v. Bristol Care, Inc., 702 F.3d 1050,
1053–1054 (8th Cir. 2013) (stating, in dicta, that the arbitration agree-
ment at issue there did not bar all concerted employee activity in pur-
suit of employment claims because the agreement permitted employees
to file charges with administrative agencies that could file suit on be-
half of a class of employees). We reject this argument for the reasons
stated in SolarCity Corp., 363 NLRB No. 83 (2015).
Pursuant to Reliant Energy, 339 NLRB 66 (2003), the Respondent
filed two postbrief letters drawing attention to the fact that the United
States Court of Appeals for the Ninth Circuit, affirming the decision of
the Federal district court, concluded that the enforcement of the SIS
program against the Charging Party did not violate the National Labor
Relations Act. See Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072
(9th Cir. 2014). As explained above, we respectfully disagree with the
court’s conclusion. In its exceptions, the Respondent contends that the
lower court’s unreversed decision is binding on the Board “under the
IV. THE 8(A)(1) PROHIBITION AGAINST FILING
NLRB CHARGES

doctrines of res judicata or collateral estoppel.” In its supporting brief,
however, the Respondent failed to present any argument in support of
this exception. Accordingly, we disregard the exception. See Holsum
de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d
265 (1st Cir. 2006). Even if we were to consider it, we would reject it
as unmeritorious. “The Board adheres to the general rule that if the
Government was not a party to the prior private litigation, it is not
barred from litigating an issue involving enforcement of Federal law
which the private plaintiff has litigated unsuccessfully.” Field Bridge
Associates, 306 NLRB 322, 322 (1992), enfd. 982 F.2d 845 (2d Cir.
1993), cert. denied 509 U.S. 904 (1993).
Consistent with our decision in Murphy Oil, supra, slip op. at 21, we
shall order the Respondent to reimburse Fatemeh Johnmohammadi and
any other plaintiffs for all reasonable expenses and legal fees, with
interest, incurred in opposing the Respondent’s unlawful motion to
compel arbitration. See Bill Johnson’s Restaurants v. NLRB, 461
NLRB 731, 747 (1983) (“If a violation is found, the Board may order
the employer to reimburse the employees whom he had wrongfully
sued for their attorneys’ fees and other expenses” as well as “any other
proper relief that would effectuate the policies of the Act.”). Interest
shall be computed in the manner prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky 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). Because the lawsuit has been
dismissed, we find it unnecessary to order the Respondent—as in Mur-
phy Oil, supra, slip op. at 21–22—to remedy its enforcement violation
by notifying the court that it no longer opposes the lawsuit on the basis
of its unlawful arbitration policy.
The dissent observes that the Act “creates no substantive right for
employees to insist on class-type treatment of non-NLRA claims.”
This is correct, as the Board has previously explained in Murphy Oil,
supra, slip op. at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2
& fn. 2 (2015). But what the dissent ignores is that the Act does “cre-
ate a right to pursue joint, class, or collective claims if and as available,
without the interference of an employer-imposed restraint.” Murphy
Oil, supra, slip op. at 2 (emphasis in original). The Respondent’s 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 the dissent’s argument that finding the arbi-
tration policy 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, supra, slip op. at 2. Nor is the dissent 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. See Murphy Oil, supra, slip op. at 17–18;
Bristol Farms, supra, slip op. at 2.
We also reject our dissenting colleague’s view that the Respondent’s
motion to compel arbitration was protected by the First Amendment’s
Petition Clause. In Bill Johnson’s Restaurants v. NLRB, supra, the
Court identified two situations in which a lawsuit enjoys no such pro-
tection: where the action is beyond a state court’s jurisdiction because
of Federal preemption, and where “a suit . . . has an objective that is
illegal under federal law.” 461 U.S. at 737 fn. 5. Thus, the Board may
properly restrain litigation efforts such as the Respondent’s motion that
have the illegal objective of limiting employees’ Sec. 7 rights and en-
forcing 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).
BLOOMINGDALES’S, INC. 5
As more fully explained in the judge’s decision, the
Respondent informs employees of its SIS arbitration
program by providing them with three separate docu-
ments. The most comprehensive is a 17-page plan doc-
ument that sets out four steps of the program. The fourth
step specifies a litany of employment disputes that are
covered by the arbitration program, followed by a para-
graph containing a statement that “claims . . . under the
National Labor Relations Act are . . . not subject to Arbi-
tration under Step 4.”
Employees also are given a 12-page brochure summa-
rizing the arbitral steps of the plan document, and an
acknowledgment form stating that they have received the
plan document and summary brochure. Neither the
summary brochure nor the acknowledgment form states
that NLRA claims are not subject to mandatory arbitra-
tion.
The judge found that the conflict between the plan
document and the summary brochures and acknowledg-
ment form “creates an ambiguity that could reasonably
lead employees to believe that they did not have a right
to file charges with the Board.” We agree, and affirm the
judge’s 8(a)(1) finding on the basis of the inconsistency
among the various documents, in accord with our deci-
sions in Ralph’s Grocery Co., 363 NLRB No. 128, slip
op. at 2 (2016), and Amex Card Services Co., 363 NLRB
No. 40, slip op. at 2-3 (2015). 9
We further find that even considering the SIS plan
document in isolation, it violates Section 8(a)(1) of the
Act because employees reasonably would be confused as
to whether they could file Board charges, In this regard,
the plan document broadly provides on page 5 that
“[a]ssociates agree, as a condition of employment, to
arbitrate any and all disputes, including statutory and
other claims, not resolved at Step 3.” This requirement is
repeated two more times on page 6 with provisions stat-
ing that “all employment-related legal disputes, contro-
versies or claims arising out of, or relating to, employ-
ment or cessation of employment, whether arising under
federal, . . . or statutory law, . . . shall be settled exclu-
sively by final and binding arbitration,” and that
“[a]ssociates agree, as a condition of employment, to
arbitrate any and all disputes, including statutory and
other claims” and “[a]ll unasserted employment-related
claims as of January 1, 2007 arising under federal . . .
statutory or common law, shall be subject to arbitration.”
In the context of these broad and repeated pronounce-
ments is the unexplained phrase that “[c]laims . . . under

9 In affirming the judge’s finding, we do not rely on Supply Tech-
nologies, LLC, 359 NLRB No. 38 (2012).
the National Labor Relations Act are … not subject to
Arbitration at Step 4.” 10
We find this phrase is insufficiently clear to ensure that
employees with no legal training understand that they
retain the right to file an unfair labor practice charge with
the Board and that they can do so with or on behalf of
other employees. See Labor Ready Southwest, Inc., 363
NLRB No. 138, slip op. at 1 fn. 2 (2016); SolarCity
Corp., 363 NLRB No. 83, slip op. at 4–6 (2015); U-Haul
Co. of California, 347 NLRB 375, 377 (2006), enfd.
mem. 255 Fed. Appx. 527 (D.C. Cir. 2007); see also In-
gram Book Co., 315 NLRB 515, 516 fn. 2 (1994)
(“Rank-and-file employees do not generally carry
lawbooks to work or apply legal analysis to company
rules as do lawyers, and cannot be expected to have the
expertise to examine company rules from a legal stand-
point.”); McDonnell Douglas Corp., 240 NLRB 794, 802
(1979) (finding facially overbroad no-distribution rule
with an exception for “matter the distribution of which is
protected by Section 7 of the National Labor Relations
Act” unlawful, explaining that “it can reasonably be fore-
seen that employees would not know what conduct is
protected by the National Labor Relations Act and, rather
than take the trouble to get reliable information on the
subject, would elect to refrain from engaging in conduct
that is in fact protected by the Act”).
Contrary to our colleague, we cannot agree that the
single phrase referencing NLRA claims as exempt from
arbitration makes clear to employees that they may file
charges with the Board. The all-encompassing preceding
language, emphasizing that “all employment-related le-
gal disputes” are to be resolved by arbitration, including
those arising under “federal” law, could reasonably be
understood by employees to encompass unfair labor
practice charges. Viewed in this context, we find that
employees would not reasonably understand the exclu-
sion of “[c]laims . . . under the National Labor Relations
Act” to refer specifically to their unobstructed right to

10 The full relevant paragraph in the SIS plan document reads as fol-
lows: “Claims by Associates that are required to be processed under a
different procedure pursuant to the terms of an employee pension or
benefit plan shall not be subject to arbitration. Claims by Associates
for state employment insurance (e.g., unemployment compensation,
workers' compensation, worker disability compensation) or under the
National Labor Relations Act shall not be subject to Arbitration under
Step 4. Statutory or common law claims made outside of the state
employment insurance system alleging that the Company retaliated or
discriminated against an Associate for filing a state employment insur-
ance claim, however, shall be subject to arbitration.” The reference to
claims under the National Labor Relations Act is buried within a welter
of other exclusions many employees would find difficult to understand.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
file unfair labor practice charges with the National Labor
Relations Board.11
ORDER
The National Labor Relations Board orders that the
Respondent, Bloomingdale’s, Inc., Sherman Oaks, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that
employees reasonably would believe bars or restricts the
right to file charges with the National Labor Relations
Board.
(b) 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.
(c) 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 mandatory arbitration policy in all of
its forms, or revise it in all of its forms to make clear to
employees that the arbitration policy does not constitute
a waiver of their right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not bar or restrict employees’ right to file charges
with the National Labor Relations Board.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the man-
datory arbitration policy in any form that it has been re-
scinded or revised and, if revised, provide them a copy of
the revised policy.
(c) In the manner set forth in this decision, reimburse
Fatemeh Johnmohammadi and any other plaintiffs for
any reasonable attorneys’ fees and litigation expenses
that they may have incurred in opposing the Respond-
ent’s motion to compel individual arbitration.
(d) Within 14 days after service by the Region, post at
its Sherman Oaks, California facility copies of the at-
tached notice marked “Appendix A,” and post copies of
the attached notice marked “Appendix B” at all other
facilities where the unlawful arbitration policy is current-

11 Indeed, our colleague’s opinion acknowledges that employees
may not be familiar with that terminology. For the reasons stated
above, we disagree with his conclusion that the SIS program does not
unlawfully interfere with employees’ right to file unfair labor practice
charges with the Board. We note that our colleague repeats an argu-
ment previously made, that an individual arbitration agreement lawfully
may require the arbitration of unfair labor practice claims if the agree-
ment reserves to employees the right to file charges with the Board. As
explained in Ralphs Grocery, 363 NLRB No. 128, slip op. at 3, that
argument is at odds with well-established Board law.
ly in effect or has been in effect at any time since June
23, 2011.12 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix A” to all former
employees employed by the Respondent at its Sherman
Oaks, California facility at any time since June 23, 2011.
If the Respondent has gone out of business or closed any
other facility or facilities where it maintained the unlaw-
ful arbitration policy at any time since June 23, 2011, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice marked “Appendix B” to all former
employees employed by the Respondent at that facility or
those facilities at any time since June 23, 2011.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 31 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

12
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.”
BLOOMINGDALES’S, INC. 7
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, my colleagues find that the Respondent’s
Solutions InSTORE Early Dispute Resolution program
(SIS program) violates Section 8(a)(1) of the National
Labor Relations Act (the Act or NLRA) because the SIS
program waives the right to participate in class or collec-
tive actions regarding non-NLRA employment claims.
Charging Party Fatemeh Johnmohammadi was informed
of the SIS program, did not exercise her right to opt out,
and later filed a state court class action lawsuit against
the Respondent alleging violations of wage-and-hour
laws, which the Respondent removed to Federal district
court. In reliance on the SIS program, the Respondent
filed a motion to compel individual arbitration. The dis-
trict court granted the Respondent’s motion, and the
Ninth Circuit subsequently affirmed.1 My colleagues
find that the Respondent thereby unlawfully enforced the
SIS program. I respectfully dissent from these findings
for the reasons explained in my partial dissenting opinion
in Murphy Oil USA, Inc.2 However, I concur with my
colleagues’ finding that the SIS program—specifically,
one component of that program, the “Solutions InSTORE
New Hire Acknowledgement”—violates Section 8(a)(1)
by interfering with the right of employees to file unfair
labor practice charges with the Board.
1. The class-action waiver is lawful, and so was
the Respondent’s motion to compel arbitration
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.3 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-

1 Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir.
2014).
2 361 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).
3 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, above, slip op. at 23–25 (Member Miscimarra,
dissenting in part). However, the existence or absence of Sec. 7 protec-
tion does not depend on whether non-NLRA claims are pursued as a
class or collective action, but on whether Sec. 7’s statutory require-
ments are met—an issue separate and distinct from whether an individ-
ual 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).
jority’s finding in On Assignment Staffing Services,4 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.”5 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;6 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;7 (iii) en-

4 362 NLRB No. 189, slip op. at 1, 4–5 (2015).
5 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-
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).
6 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.”).
7 The Fifth Circuit has consistently denied enforcement of Board
orders invalidating a mandatory arbitration agreement that waived
class-type treatment of non-NLRA claims. See Murphy Oil USA, Inc.
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., 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, No. 1:12-CV-00062-BLW,
2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
forcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA);8 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 9(a) right to present and adjust
grievances on an “individual” basis and each employee’s
Section 7 right to “refrain from” engaging in protected
concerted activities.9 Although questions may arise re-
garding 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.10

of prior determination that class waiver in arbitration agreement violat-
ed 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).
8 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).
9 The class-action waiver agreements were entered into voluntarily,
even though the Respondent was willing to hire employees only if they
entered into the agreements. Every agreement sets forth terms upon
which each party may insist as a condition to entering into the relation-
ship governed by the agreement. Thus, conditioning employment on
the execution of a class-action waiver does not make it involuntary.
For my colleagues, however, the voluntariness of such a waiver is
immaterial. They believe that even if a waiver is nonmandatory, it is
still unenforceable. See On Assignment Staffing Services, above (find-
ing class-action waiver agreement unlawful even where employees are
free to opt out of the agreement); Bristol Farms, 363 NLRB No. 45
(2015) (finding class-action waiver agreement unlawful even where
employees must affirmatively opt in before they will be covered by a
class-action waiver agreement, and where they are free to decline to do
so). I disagree with my colleagues’ position on class-waiver agree-
ments, but their position is even less defensible when they find that
NLRA “protection” operates in reverse—not to protect employees’
rights to engage or refrain from engaging in certain kinds of collective
action, but to divest employees of those rights by denying them the
right to choose whether to be covered by an agreement to litigate non-
NLRA claims on an individual basis. See Bristol Farms, above, slip
op. at 2–4 (Member Miscimarra, dissenting).
10 Because I disagree with the Board’s decisions in Murphy Oil,
above and D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA
does not render unlawful arbitration agreements that provide for the
waiver of class-type litigation of non-NLRA claims, I find it unneces-
sary to reach whether such agreements should independently be
deemed lawful to the extent they “leave[] open a judicial forum for
class and collective claims,” D. R. Horton, above at 2286, 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).
Because I believe the Respondent’s SIS program was
lawful under the NLRA, I would find it was similarly
lawful for the Respondent to file a motion in Federal
district court seeking to enforce the SIS program.11 It is
relevant that the district court that had jurisdiction over
the non-NLRA claims granted the Respondent’s motion
to compel arbitration and that the Ninth Circuit affirmed
the lower court’s decision. Johnmohammadi v. Bloom-
ingdale’s, above. That the Respondent’s motion was
reasonably based is also supported by other court deci-
sions that have enforced similar agreements.12 As the
Fifth Circuit recently observed after rejecting (for the
second time) the Board’s position regarding the legality
of class-waiver agreements: “[I]t is a bit bold for [the
Board] to hold that an employer who followed the rea-
soning of our D. R. Horton decision had no basis in fact
or law or an ‘illegal objective’ in doing so. The Board
might want to strike a more respectful balance between
its views and those of circuit courts reviewing its or-
ders.”13 I also believe that any Board finding of a viola-
tion based on the Respondent’s meritorious federal court
motion to compel arbitration would improperly risk in-
fringing on the Respondent’s rights under the First
Amendment’s Petition Clause. See Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983); BE & K Con-
struction 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 re-
imburse the Charging Party and any other plaintiffs for
their attorneys’ fees in the circumstances presented here.
Murphy Oil, above, 361 NLRB No. 72, slip op. at 35.
2. The “acknowledgment form” component of the SIS
program interferes with NLRB charge filing
The SIS program comprises four steps: (i) “open
door,” where employees are encouraged to discuss their
situation with their supervisor or another member of lo-
cal management: (ii) review by a divisional senior human

11 As I explain below, I find that one aspect of the SIS program un-
lawfully interferes with the right of employees to allege a violation of
the NLRA through the filing of an unfair labor practice charge with the
NLRB. However, the unlawfulness of the SIS program in this regard is
not material to the merits of the Respondent’s motion to compel indi-
vidual arbitration of the Charging Party’s non-NLRA claims. See Fuji
Food Products., 363 NLRB No. 118, slip op. at 4, 4–5 fn. 13 (2016)
(Member Miscimarra, concurring in part and dissenting in part) (find-
ing that employer lawfully enforced class-waiver agreement by filing
motion to compel arbitration of non-NLRA claims, notwithstanding
additional finding that agreement unlawfully interfered with Board
charge filing).
12 See, e.g., Murphy Oil USA v. NLRB, above; D. R. Horton v.
NLRB, above; Owen v. Bristol Care, above; Sutherland v. Ernst &
Young LLP, 726 F.3d 290 (2d Cir. 2013).
13 Murphy Oil USA v. NLRB, 808 F.3d at 1021.
BLOOMINGDALES’S, INC. 9
resources manager; (iii) “request for reconsideration,”
where employees can choose to have their dispute re-
viewed by either a peer panel or the Solutions InSTORE
office; and (iv) arbitration, which employees are free to
opt out of. The SIS program is set forth in three interre-
lated documents distributed to new hires in a single
packet: an SIS plan document, a summary brochure, and
an acknowledgment form. For the following reasons, I
do not believe the SIS plan document or the summary
brochure unlawfully interferes with employees’ right to
file unfair labor practice charges with the Board, but the
acknowledgment form does.
(a) The SIS plan document and the summary brochure
Article 2 of the plan document is headed “Claims Sub-
ject to or Excluded from Arbitration,” and the first sen-
tence of article 2 states: “Except as otherwise limited, all
employment-related legal disputes, controversies or
claims arising out of, or relating to, employment or ces-
sation of employment, whether arising under federal,
state or local decisional or statutory law (‘Employment-
Related Claims’), shall be settled exclusively by final
and binding arbitration” (emphasis added). Thus, alt-
hough the term “Employment-Related Claims” is broadly
defined in terms that would encompass claims arising
under the NLRA, the heading of article 2 announces that
some claims are excluded from arbitration, and the
phrase “[e]xcept as otherwise limited” qualifies the broad
definition of “Employment-Related Claims” so as to
make clear that it is subject to one or more exceptions.
The plan document then unequivocally informs employ-
ees that “[c]laims . . . under the National Labor Relations
Act shall not be subject to arbitration.” For the reasons
stated in my separate opinion in Rose Group d/b/a Ap-
plebee’s Restaurant,14 I believe that an agreement may
lawfully provide for the arbitration of NLRA claims, and
such an agreement does not unlawfully prohibit the filing
of charges with the NLRB, particularly when the right to
do so is expressly stated in the agreement itself. Neces-
sarily, then, an arbitration agreement that altogether ex-
cludes NLRA claims from its scope cannot reasonably be
found to interfere with employees’ right to file charges
with the Board.
My colleagues find that the SIS plan document unlaw-
fully interferes with NLRB charge filing notwithstanding
its express exclusion of NLRA claims because the exclu-
sion of “[c]laims . . . under the National Labor Relations

14 363 NLRB No. 75, slip op. at 3–5 (2015) (Member Miscimarra,
dissenting in part). See also Ralph’s Grocery Co., 363 NLRB No. 128,
slip op. at 6–8 (2016) (Member Miscimarra, concurring in part and
dissenting in part); GameStop Corp., 363 NLRB No. 89, slip op. at 5
(2015) (Member Miscimarra, concurring in part and dissenting in part).
Act” is “insufficiently clear to ensure that employees
with no legal training understand that they retain the
right to file an unfair labor practice charge with the
Board and that they can do so with or on behalf of other
employees.” I disagree. The plan document unambigu-
ously excludes NLRA claims by making express refer-
ence to the statute itself. To the extent that some em-
ployees may be unfamiliar with the statute, this does not
provide reasonable support for a finding that the plan
document is “insufficiently clear” as to the exclusion of
NLRA claims. As the Fifth Circuit stated in Murphy Oil
USA, Inc. v. NLRB, above, “it would be unreasonable for
an employee to construe the [plan document] as prohibit-
ing the filing of Board charges when [it] says the oppo-
site.”15

15 808 F.3d at 1020. Even assuming arguendo that some employees
may be unfamiliar with the concept of “[c]laims . . . under the National
Labor Relations Act,” this is not materially different from many con-
cepts expressed in collective-bargaining agreements that are routinely
deemed enforceable by the Board and the courts, even if they are ex-
pressed in “general and flexible terms,” Archibald Cox, Reflections
Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1491 (1959), or are
based on practices that may be “unknown, except in hazy form, even to
the negotiators,” Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574, 580–581 (1960). Although the SIS Plan Document expressly
excludes all “[c]laims . . . under the National Labor Relations Act”
without stating that employees retain the right to file charges with the
NLRB, I believe this is a distinction without a difference. The exclu-
sion of all NLRA claims from the Plan Document’s scope precludes a
finding that the Plan Document interferes with NLRB charge filing,
since a charge filed with the NLRB is the very means by which
“[c]laims . . . under the National Labor Relations Act” are initiated.
Where an agreement does not encompass NLRA claims, I believe it is
unreasonable for the Board to require an affirmative statement that
employees retain the right to file a charge with the NLRB.
In support of their position, my colleagues cite cases where the
Board applied the sound principle that an otherwise illegal rule will not
be rendered lawful based on language that would predictably be under-
stood only by someone with specialized legal knowledge. See U-Haul
Co. of California, 347 NLRB 375, 377 (2006) (arbitration agreement
reasonably encompassing NLRA claims, with no exception for charge
filing, not saved by provision in separate document stating arbitration
process “limited to disputes . . . that a court would be authorized to
entertain”; among other things, language insufficient to alert nonlawyer
employees of remote possibility that NLRB charges were thereby ex-
empted), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007); Ingram
Book Co., 315 NLRB 515, 516 fn. 2 (1994) (facially overbroad distri-
bution rule not saved by disclaimer that “[t]o the extent any policy may
conflict with state or federal law, the Company will abide by the appli-
cable state or federal law”); McDonnell Douglas Corp., 240 NLRB 794
(1979) (facially overbroad no-distribution rule unlawful despite an
exception for distribution “protected by Section 7 of the National Labor
Relations Act”; employee would need to know what distribution Sec-
tion 7 protects to understand what the exception allows). Unlike the
general disclaimers in these cases, which would have no meaning to
employees (or anyone else) not versed in labor law, every employee
who reads English would understand that “[c]laims . . . under the Na-
tional Labor Relations Act” are not covered by the SIS Plan Docu-
ment—and therefore that the Plan Document cannot possibly limit his
or her right to initiate an NLRA claim by filing a charge with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
My colleagues’ contention that the SIS plan document
is “insufficiently clear to ensure that employees with no
legal training understand that they retain the right to file
an unfair labor practice charge with the Board and that
they can do so with or on behalf of other employees”
(emphasis added), together with their citation to
SolarCity, above, refers to and incorporates a three-stage
argument set forth more fully in the majority opinion in
SolarCity.16 Adapted to the language of the SIS plan
document, the argument goes like this: (i) the plan doc-
ument states that “[t]he Arbitrator shall not consolidate
claims of different Associates into one (1) proceeding,
nor shall the Arbitrator have the power to hear an arbitra-
tion as a class action,” (ii) an NLRB charge sometimes
can be filed “with or on behalf of other employees,” and
(iii) entering into an agreement under which the arbitra-
tor cannot consolidate the claims of two or more em-
ployees would interfere with the right to file Board
charges “with or on behalf of other employees,” and spe-
cialized legal knowledge is required to understand that
NLRB charge filing—including filing charges with or on
behalf of other employees—cannot lawfully be prohibit-
ed. The problem with this argument is its false, circular
premise that the language in the SIS plan document stat-
ing that “[t]he Arbitrator shall not consolidate claims of
different Associates into one (1) proceeding, nor shall the
Arbitrator have the power to hear an arbitration as a class
action” can be reasonably construed to interfere with the
filing of Board charges, despite the plan document’s ex-
press exclusion of “[c]laims . . . under the National Labor
Relations Act,” which contradicts such a construction.17
In this respect, I believe my colleagues turn precedent
upside down. Any reasonable interpretation of the plan
document reveals that it has no impact on NLRB charge
filing, since the plan document excludes all “[c]laims . . .
under the National Labor Relations Act”; and my col-
leagues—though armed with good intentions—devise an
implausible interpretation that, in my view, could only be
advocated or adopted by lawyers.

NLRB. See also my separate opinion in SolarCity Corp., 363 NLRB
No. 83 (2015).
16 See 363 NLRB No. 83, slip op. at 6. My colleagues did not ex-
pressly separate their analysis into three stages. However, I believe it is
difficult to understand the analysis without breaking it into its compo-
nent parts, and it consists of the three elements set forth in the text.
17 I believe the SIS Plan Document is sufficiently clear that the only
disputes an employee agrees to bring as an individual are those subject
to arbitration under the Plan Document, which expressly excludes
“[c]laims . . . under the National Labor Relations Act.” Therefore,
contrary to my colleagues, I do not believe one can reasonably interpret
this language as interfering with the right to file NLRB charges (the
only way in which “[c]laims . . . under the National Labor Relations
Act” are initiated) “with or on behalf of other employees.”
Nor do I believe that the Respondent’s summary bro-
chure interferes with the right to file Board charges. On
the one hand, the summary brochure does broadly state
that when covered by the SIS program, “you and the
Company agree to use arbitration as the sole and exclu-
sive means to resolving [sic] any dispute regarding your
employment,” and the summary brochure does not repeat
the language contained in the plan document stating that
“[c]laims . . . under the National Labor Relations Act
shall not be subject to arbitration.” However, the sum-
mary brochure clearly states: “More specific details are
in the program’s plan document, which is included here.
You should read it.”18 It reiterates these messages—
highlighted in red—on the next page, stating: “This
booklet is a summary of some of the provisions, benefits,
and limitations of the Solutions InSTORE program. You
are directed to read the plan document for the actual de-
tails.” I believe the summary brochure constitutes a type
of summary description that is familiar in the employ-
ment setting.19 The Board has never held that a lawful
employment-related program or agreement becomes un-
lawful whenever a party provides a less formal oral or
written summary that fails to repeat or reproduce each
and every provision that might affect some NLRA-
related right or obligation. The importance and complex-
ity of the SIS program warrant the detailed treatment set
forth in the plan document, and I believe it is lawful for
the Respondent to utilize a summary document that
clearly identifies itself as “a summary of some of the
provisions, benefits, and limitations of the Solutions
InSTORE program,” states that “[m]ore specific details”
and “the actual details” of the SIS program are contained
in the plan document, and urges and directs employees to
read the plan document.20
(b) The acknowledgment form
The third and final component of the SIS program is
the Respondent’s “Solutions InSTORE New Hire
Acknowledgement,” which reads in relevant part as fol-
lows:

18 When the SIS program was first rolled out, the Plan Document
was mailed to employees’ homes, not handed to employees in a packet
including the Plan document, summary brochure and acknowledgment
form—so the summary brochure distributed at that time omitted the
phrase “which is included here.” Thus, the introductory version of the
summary brochure stated: “More specific details are in the program’s
Plan Document. You should read it.” These statements were followed
by information regarding four different ways a copy of the Plan Docu-
ment could be obtained (in addition to receiving it when mailed).
19 For example, summary plan descriptions, which are short-form
descriptions of more detailed benefit plan documents, are required
under the Employee Retirement Income Security Act (ERISA).
20 See GameStop Corp., 363 NLRB No. 89, slip op. at 6 (Member
Miscimarra, concurring in part and dissenting in part).
BLOOMINGDALES’S, INC. 11
Solutions InSTORE New Hire Acknowledgement
I have received a copy of the Solutions InSTORE bro-
chure and Plan Document and acknowledge that I have
been instructed to review this material carefully. . . .
I understand that I am covered by and have agreed to
use all 4 steps of Solutions InSTORE automatically by
my taking or continuing a job in any part of Macy’s,
Inc.
This means that if at any time I have a dispute or claim
relating to my employment, it will be resolved using
the Solutions InSTORE process described in the bro-
chure and Plan Document. The process continues to
apply to such employment-related disputes even after
my employment ends. The Solutions InSTORE pro-
cess includes Step 4, Arbitration, where disputes are re-
solved by a professional not affiliated with Macy’s, Inc.
in an arbitration proceeding, instead of by a judge or ju-
ry in a court proceeding. I can read all about Solutions
InSTORE, including the benefits and tradeoffs of Step
4, in the brochure and Plan Document. Questions or
comments about the program can be directed to my
Human Resources Representative or the Office of So-
lutions InSTORE.
The Respondent’s acknowledgment form is materially
indistinguishable from the acknowledgment form I found
to interfere with Board charge filing in GameStop Corp.,
above. In GameStop, the document that paralleled the
Respondent’s plan document in this case was called, “the
GameStop C.A.R.E.S. Rules for Dispute Resolution,” or
“Rules.” Instead of simply stating that the employee
agreed to the Rules, the acknowledgment form in
GameStop set forth an independent one-sentence agree-
ment stating, without qualification: “I agree that all
workplace disputes or claims will be resolved under the
GameStop C.A.R.E.S. program rather than in court.”
Similarly here, the Respondent’s acknowledgment form
states that “I understand that I . . . have agreed to use all
4 steps of Solutions InSTORE,” and “[t]his means that if
at any time I have a dispute or claim relating to my em-
ployment, it will be resolved using the Solutions
InSTORE process described in the brochure and Plan
Document.” Moreover, and also like the acknowledg-
ment form in GameStop, although the Respondent’s ac-
knowledgment form references the plan document, it
contains no language indicating that under the more de-
tailed provisions of the plan document, some “dispute[s]
or claim[s] relating to my employment”—including
claims under the National Labor Relations Act—are not
subject to step 4 of the SIS program (arbitration) and will
not be “resolved using the Solutions INSTORE process.”
Accordingly, for the reasons set forth in my opinion in
GameStop, I find that the acknowledgment form in the
instant case unlawfully interferes with NLRB charge
filing in violation of Section 8(a)(1).21
Accordingly, I respectfully dissent in part from my
colleagues’ decision, and I concur in part with other as-
pects of their decision.22
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

21 I recognize that a different interpretation is possible, under which
the language stating that the employee has agreed that any “dispute or
claim relating to my employment . . . will be resolved using the Solu-
tions InSTORE process described in the brochure and Plan Document”
expressly permits filing charges with the NLRB because the Plan Doc-
ument excludes “[c]laims . . . under the National Labor Relations Act”
from arbitration (emphasis added). However, this way of viewing the
acknowledgment form’s language gives a strained interpretation to the
phrase “resolved using.” It suggests that having a “dispute or claim
relating to my employment . . . resolved using the Solutions InSTORE
process” actually means that some disputes may be resolved using the
Board’s processes following the filing of an unfair labor practice
charge. If a dispute or claim ends up being resolved by the NLRB
rather than through arbitration, one would not normally regard the
dispute or claim as having been “resolved using the Solutions
InSTORE process.”
The purpose of an acknowledgment form is (as its name indicates) to
acknowledge that other, more detailed source documents have been
received, and I am not suggesting—nor do I believe one can reasonably
expect—that an acknowledgment form should reproduce all of the
source documents’ definitions, qualifications and exclusions. However,
when an acknowledgment form is reasonably interpreted to provide that
all employment-related disputes must be resolved through arbitration
and only through arbitration, I believe such a form unlawfully interferes
with employees’ charge-filing rights. Elsewhere, I suggested several
ways in which an employer that wishes to use an acknowledgment form
as a component of its arbitration program in tandem with a more com-
plex and detailed source document could avoid the risk of violating the
Act. See GameStop Corp., above, slip op. at 7 fn. 21 (Member
Miscimarra, concurring in part and dissenting in part).
22 I agree with my colleagues that the complaint is not time-barred
under Sec. 10(b) of the Act. I also join my colleagues in granting the
Respondent’s motion for reconsideration, setting aside the order dated
April 30, 2013, and denying the Respondent’s motion to dismiss the
complaint. I further join my colleagues in denying the Respondent’s
motion to strike or otherwise nullify the General Counsel’s Notice of
Ratification.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration policy
that our employees reasonably would believe bars or
restricts their right to file charges with the National La-
bor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration policy that requires our employees, as a condi-
tion 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 the mandatory arbitration policy in
all of its forms, or revise it in all of its forms to make
clear that the arbitration policy does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration policy in all of its forms that the
arbitration policy has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pol-
icy.
WE WILL reimburse Fatemeh Johnmohammadi and any
other plaintiffs for any reasonable attorneys’ fees and
litigation expenses that they may have incurred in oppos-
ing our motion to compel individual arbitration, plus
interest compounded daily.
BLOOMINGDALE’S, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/31–CA–071281 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration policy
that our employees reasonably would believe bars or
restricts their right to file charges with the National La-
bor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration policy that requires our employees, as a condi-
tion 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 the mandatory arbitration policy in
all of its forms, or revise it in all of its forms to make
clear that the arbitration policy does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration policy in all of its forms that the
arbitration policy has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pol-
icy.
BLOOMINGDALES’S, INC. 13
BLOOMINGDALE’S, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/31–CA–071281 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Michelle Scannell, Esq., for the Acting General Counsel.
David S. Bradshaw, Esq. (Jackson Lewis, LLP) and David E.
Martin, Esq. (Macy’s, Inc.), for the Respondent Company.
Dennis F. Moss, Esq., for Charging Party Johnmohammadi.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. This is
another case raising issues related to D. R. Horton, Inc., 357
NLRB 2277 (2012), petition for review filed No. 12–60031
(5th Cir. Jan. 13, 2012). The Board in that case found that D.
R. Horton violated Section 8(a)(1) of the National Labor Rela-
tions Act (NLRA) by requiring its employees, as a condition of
employment, to sign an “agreement” that any and all future
employment claims against the company would be determined
on an individual basis by final and binding arbitration. The
Board held that the mandatory arbitration “agreement” was
unlawful for two reasons: (1) it did not contain an exception for
unfair labor practice allegations, and thus would reasonably
lead employees to believe that they could not file charges with
the Board; and (2) it required employees to waive their substan-
tive right under the NLRA to pursue concerted (i.e., classwide
or collective) legal action in any forum, arbitral or judicial.
The issue in this case is whether Bloomingdale’s likewise
violated the NLRA, even though (1) the plan documents gov-
erning its mandatory arbitration procedure—step 4 of its so-
called Solutions InStore (SIS) early dispute resolution pro-
gram—explicitly excludes claims under the NLRA, but the
exclusion is not mentioned in the brochures or booklets summa-
rizing the plan; and (2) employees are provided an opportunity
to affirmatively opt out of the arbitration provisions within a
prescribed period after they are hired and/or notified of the
plan, thereby forfeiting the ability to arbitrate any future claims,
but retaining the right to pursue them in court on either an indi-
vidual or a classwide/collective basis.
The case arises from a wage and hour dispute between
Bloomingdale’s and Fatemeh Johnmohammadi, a former sales
associate at its Sherman Oaks, California store from November
2005 to November 2010. In July 2011, several months after
she was terminated,Johnmohammadi filed a class action suit
against the Company in State court seeking to recover unpaid
overtime and other wages under the State labor code. The
Company responded by, first, removing the case to Federal
district court under the 2005 Class Action Fairness Act, and,
second, filing a motion with the district court on November 30,
2011 to stay the proceeding and compel arbitration. In support
of the latter, the Company argued that Johnmohammadi had
voluntarily agreed, by failing to opt out of the SIS arbitration
provisions within the prescribed 30 days after she was hired, to
resolve any future employment disputes through final and bind-
ing arbitration on an individual basis, and had thereby explicitly
waived both the right to sue in court and the right to bring class
claims on behalf of other employees.
Johnmohammadi opposed the Company’s motion to compel
arbitration. Moreover, on December 12, 2011, she filed an
unfair labor practice charge with the Board’s Regional Office
alleging that, by invoking the SIS class action ban in the court
case, the Company was unlawfully interfering with the right of
employees to engage in protected concerted activities.
After considering the parties’ briefs and oral arguments, by
order dated February 29, 2012, the district court granted the
Company’s motion to compel arbitration and dismissed
Johnmohammadi’s suit without prejudice. However,
Johnmohammadi subsequently filed an appeal with the Ninth
Circuit (No. 12-55578), which remains pending. Further, on
October 31, 2012, the Regional Director found merit in
Johnmohammadi’s unfair labor practice charge and issued a
complaint against the Company. The complaint alleges that the
Company has violated Section 8(a)(1) of the NLRA by main-
taining and enforcing the SIS mandatory arbitration program,
both because the summary descriptions of the program could
lead employees to reasonably believe they are prohibited or
restricted from filing unfair labor practice charges with the
Board, and because the program requires employees to forgo
the right to pursue their employment claims on a collective or
classwide basis.
Following two pretrial conferences, a hearing on the com-
plaint was held before me on April 2 in Los Angeles, Califor-
nia. The parties thereafter filed their briefs on May 7. After
considering the briefs and the entire record, I find as follows.1
FINDINGS OF FACT
The SIS dispute resolution program was first implemented
by Bloomingdale’s and other stores owned by Federated De-
partment Stores (now Macy’s) effective January 2004. The
governing rules and procedures are set forth in two plan docu-
ments. The first is the original 2004 plan document, which
applied when Johnmohammadi was hired in 2005. The second
is a subsequent 2007 SIS plan document, which applies to em-
ployees of Bloomingdale’s and other Macy’s divisions, subsid-

1 Commerce jurisdiction under Sec. 2(2), (6), and (7) of the Act is
undisputed and well established. Factual findings are based on the
record as a whole, including but not limited to the transcript pages and
exhibits specifically cited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
iaries, or related entities who were hired on or after January 1,
2007, as well as former employees of another company (May
Department Stores) and its affiliates who became such employ-
ees pursuant to an August 30, 2005 merger (R. Exhs. 1, 2; Tr.
82).
As set forth in both plans (which are materially the same),
the SIS program contains four steps. The first three steps are
internal reviews by supervisors, managers, or, in some cases,
peers. These steps are available to any and all employees for
any and all employment-related disputes, with the exception of
the third step which applies only to employment disputes in-
volving legally protected rights.
As indicated above, the fourth and last step is final and bind-
ing individual arbitration. All employees (unless covered by a
collective-bargaining agreement) also have access to this step;
indeed, they have no other option if they are dissatisfied with
the outcome of the third step. That is, the dissatisfied employ-
ee’s only option is to take the legal claim before a neutral arbi-
trator, 2 who under the terms of the program may hear the case
only on an individual basis, i.e., may not consolidate claims by
more than one employee or hear “class actions.”
However, there is an exception for employees who had pre-
viously opted out of the SIS arbitration provisions, i.e. had
elected not to be covered by the arbitration provisions by exe-
cuting and mailing a form to the Company’s SIS office in Ohio
within the prescribed time period. Claims by such an employee
may not be submitted to arbitration after the third step; howev-
er, the employee is free to continue pursuing the claims in a
judicial forum on either an individual or collective/class basis.
In addition, unlike the first three steps, certain types of legal
claims are specifically excluded from this step. Thus, the plan
documents state that claims required to be processed under a
different procedure pursuant to the terms of employee pension
or benefit plans, and claims for State employment insurance
(e.g. unemployment compensation, workers’ compensation, and
worker disability compensation) or under the National Labor
Relations Act are not subject to arbitration. The plan docu-
ments also state that nothing in the SIS program prohibits an
employee from filing a charge or complaint with a government
agency such as the EEOC, but upon receipt of a right to sue
letter or similar administrative determination, the employee’s
claim becomes subject to arbitration.
Employees have received different notice and opportunities
to opt out of the step 4 arbitration provisions depending on
whether they were current employees or new hires. Employees
who were already employed by Bloomingdale’s or other Feder-
ated stores at the time of the initial rollout in late 2003 were
notified and provided an opportunity to opt out of arbitration
twice, once when the program was announced and again a year
later. Former employees of May Department Stores who be-
came employees of Bloomingdales or other Federated stores as
a result of the August 2005 merger likewise received two such
notices and opportunities to opt out. However, new hires such
as Johnmohammadi were/are given only one notice and oppor-

2 There is no contention in this proceeding that the rules and proce-
dures governing the selection of the arbitrator or the conduct of the
arbitration hearing are substantively unfair.
tunity to opt out within 30 days of hire.
The manner in which employees have been notified of the
SIS program and/or the arbitration provisions has also differed
somewhat. During the initial rollout by Federated in late 2003,
employees of Bloomingdale’s were given a brief letter from
Federated’s CEO introducing the “important new benefit.”
This was accompanied by a 12-page brochure, which summa-
rized the program and referred employees to the SIS plan doc-
ument, “which governs Plan administration,” for “more specific
details.” Employees were also shown a short video about the
SIS program (which included a supportive statement by a re-
tired Federal circuit court judge), and a poster was also dis-
played at each store summarizing the program. Finally, the SIS
plan document itself was mailed to each employee’s home,
along with an “election” form that employees had to complete
and mail to the SIS office, postmarked no later than October 31,
2003, in order to opt out of the arbitration provisions, i.e. to
elect “not to be covered by the benefits of Arbitration.” (R.
Exh. 3; Tr. 94–100.)3
A year later, a second mailing was sent to those Blooming-
dale’s and other employees who did not timely return an opt-
out form during the initial rollout (approximately 90 percent of
Federated’s 112,000 employees). Included in the mailing were
another brief message about the program from Federated’s
CEO, a “By the numbers” newsletter and “We’ve got you cov-
ered” brochure summarizing the program and how well it had
worked during the past year, and another election form that
employees had to complete and mail to the SIS office, post-
marked by November 15, 2004, in order to opt out of the arbi-
tration provisions. The 20-page plan document itself was not
again included in the mailing, but the newsletter, brochure, and
election form stated that it could be found on the SIS website or
received by mail on request. (R. Exh. 4; Tr. 94, 108–116, 150.)
As indicated above, following the 2005 merger, the former
May Department Store employees were likewise given two
opportunities to opt out. The first time in late 2006, the em-
ployees were notified in much the same way as Federated’s
employees in 2003. They were given a brief letter from Feder-
ated’s CEO introducing them to the SIS program, accompanied
by a 12-page brochure or booklet. They were also shown the
video and a poster was displayed. In addition, the 2007 plan
document that would cover them was mailed to their homes,
along with an election form that the employees had to complete
and mail to the SIS office, postmarked no later than October 31,
2006, to opt out. (R. Exh. 5; Tr. 119–121.) The second time, in
late 2007, a “Program update” and “We’ve got you covered”
brochure was mailed to them, along with another election form
that they had to complete and mail to the SIS office, post-
marked by November 15, 2007, to opt out. The 17-page plan
document itself was not sent to them again, but the program
update and election form stated that it could be found on the
SIS website or received by mail on request. (R. Exh. 6; Tr.

3 According to the uncontradicted testimony of the Company’s wit-
nesses, a preaddressed return envelope was always provided to employ-
ees with the election form. However, contrary to the Company’s
posthearing brief, there is no record evidence that the envelopes includ-
ed prepaid postage.
BLOOMINGDALES’S, INC. 15
123–124.)
As for new hires, in 2005,when Johnmohammadi was hired,
the employment application form itself stated:
Solutions InSTORE. Please note that if you are hired, you
will be given thirty (30) days from your date of hire to decide
if you want to participate in the fourth step of the Company’s
early dispute resolution program, Solutions InSTORE, which
is final and binding arbitration. It is important that you read
all the materials and ask any questions you have so that you
are fully informed about what Solutions InSTORE has to of-
fer.
Once hired, the new employees were also given (1) a copy of
the employee handbook, which briefly described the SIS pro-
gram and advised them to “refer to your Solutions InStore
booklet” for “further details” on the program; (2) a 12-page SIS
brochure describing the program, which in turn referred em-
ployees to “the Plan Document” for “more specific details”;
and (3) an election form that they had to complete and mail to
the SIS office, postmarked no later than 30 days from their hire
date, to opt out of the arbitration provisions.4 Although new
employees were not given a copy of the 2004 SIS plan docu-
ment, both the brochure (p. 11) and the election form stated that
they could obtain a copy of it by logging onto the SIS website,
requesting it from the local HR representative, sending an email
to the SIS address, or calling the SIS office number. Finally, as
indicated above, an SIS poster was also displayed at the stores.
(Jt. Exhs. 1, 8A–E.)
Currently, new hires continue to receive a similar 12-page
SIS brochure and election form. Unlike Johnmohammadi and
other new hires in 2005, they are also given a hardcopy of the
2007 SIS plan document. Indeed, they are now required to
execute an acknowledgement form stating that they have re-
ceived a copy of both the brochure and plan document and
understand that they have 30 days from hire to review the in-
formation and postmark the election form to the SIS office if
they wish to be excluded from step 4. (Jt. Exh. 7; R. Exh. 7; Tr.
155–156.)
Of all the above-described past and current materials refer-
encing the SIS program, only the 2004 and 2007 plan docu-
ments mention both the exclusion of claims under the NLRA
and the ban on class actions at step 4. Several of the brochures
or booklets briefly indicate that class actions are not available
at step 4.5 However, none mention the exclusion for ULP alle-

4 Although Johnmohammadi testified that she does not remember
receiving the brochure and election form, I find that she was, in fact,
given both.
5 See, for example, the chart on the last page of the 2004 “We’ve
got you covered” brochure (R. Exh. 4). The chart, which appears under
the heading “facts about arbitration,” compares “arbitration” to “litiga-
tion” with respect to various factors, including the average length of
time, company cost, and employee cost. With respect to “class ac-
tions,” the chart says “No” under “arbitration,” and “Yes” under “litiga-
tion—without any further discussion or explanation. Thus, the chart
suggests that class actions are never available or permitted in arbitration
(even though this actually depends on the parties’ arbitration agreement
and intent, see Oxford Health Plans LLC v. Sutter, ___ S.Ct. ___, 2013
WL 2459522 (June 10, 2013)), and are always available or permitted in
gations. Indeed, they state that “any kind of dispute that could
be heard in a court of law,” including “wrongful” or “improper”
terminations, are covered by steps 3 and 4, and that, unless an
employee opts out of step 4, he/she agrees to use arbitration “as
the sole and exclusive means to resolving any dispute” regard-
ing employment. And the election forms, posters, video, em-
ployee handbook, Johnmohammadi’s application, and current
acknowledgment form, do not mention either. In fact, similar
to the brochures/booklets, the current acknowledgment form
states, “if at any time I have a dispute or claim relating to my
employment, it will be resolved using the Solutions InStore
process described in the brochure and Plan Document.”
Finally, the record indicates that relatively few employees
have actually returned an election/opt-out form. As indicated
above, only 10 percent of Federated’s employees returned the
form following the initial rollout in late 2003. And only 3 per-
cent returned the form at the second opportunity a year later.
Similarly, only 2 percent of May Department Store employees
returned the form at the first opportunity in 2006 following the
merger, and only 1 percent at the second opportunity in 2007.
As for Bloomingdale’s itself, only 3 percent of its approximate-
ly 10,000 current employees (including former Federated and
May employees and new hires) have returned the election/opt-
out form. (Tr. 66–67, 108, 116, 122, 125.)
Analysis
I. THE EXCLUSION OF NLRA CLAIMS
As indicated above, this case is different from Horton in that
the governing plan documents here specifically exclude claims
under the NLRA from arbitration.6 However, this exclusion is
not mentioned in any of the company brochures, booklets, or
other documents summarizing or discussing the SIS program.
On the contrary, both the brochures/booklets and the current
acknowledgment form indicate that such claims are covered.
Cf. U-Haul Co. of California, 347 NLRB 375, 377 (2006),
enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007) (unpub.) (statement
in company memo that the arbitration policy applies to disputes
that a “court of law” would be entitled to entertain could rea-
sonably be construed by employees to include unfair labor
practice allegations).7
In agreement with the General Counsel, I find that this con-
flict between the plan descriptions and the summary bro-

litigation. Compare the more recent charts in the 2006 and 2007 bro-
chures that were given or sent to the former May Department Store
employees (R. Exhs. 5, 6), and in the current brochures given to new
hires (R. Exh. 7). These charts more precisely say “Not Permitted”
under “Step 4 arbitration,” and under “Litigation (national perspec-
tive),” say “Permitted, but they require employees to prove that a class
is proper under various legal tests.”
6 As indicated above, the plan documents here also specifically state
that nothing in the SIS program prohibits an employee from filing a
charge or complaint with a government agency such as the EEOC;
however, upon receipt of a right to sue letter or similar administrative
determination, the employee’s claim becomes subject to arbitration.
But see Horton, 357 NLRB 2277, 2278 fn. 2 (finding similar language
ambiguous).
7 See also the Supreme Court’s recent discussion of such terms in
CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 670 (2012).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
chures/booklets and acknowledgment form creates an ambigui-
ty that could reasonably lead employees to believe that their
right to file unfair labor practice charges with the Board is pro-
hibited or restricted. I further find, consistent with Board prec-
edent, that the Company is properly held legally accountable
for the ambiguity. See generally Supply Technologies, LLC,
359 NLRB No. 38, slip op. at 3 (2012), and cases cited there.
To paraphrase the Ninth Circuit in Bergt v. Retirement Plan for
Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1145–1146
(2002), “the law should provide as strong an incentive as possi-
ble for employers to write [summary plan descriptions] so that
they are consistent with [the governing plan] documents, a
relatively simple task,” to avoid chilling the free exercise of
employee rights. Unlike under the Employee Retirement In-
come Security Act (ERISA), there is no legal requirement un-
der the Federal Arbitration Act (FAA) that employers provide
employees with a summary plan description. Nevertheless,
where employers do so, there is no apparent reason—and none
is offered by the Company—why they should not be required to
avoid inconsistencies, such as that here, that impact employee
statutory rights. Indeed, to hold otherwise would encourage
both ambiguity and brinkmanship, i.e., “conscious overstate-
ments [the employer] has reason to believe will mislead [its]
employees.” NLRB v. Gissel Packing Co., 395 U.S. 575, 620
(1969).
This does not mean that simplicity, the very purpose of a
summary,8 must be sacrificed completely to avoid violating the
NLRA. At a minimum, however, mandatory arbitration plan
summaries should clearly and consistently indicate that there
are exceptions or exclusions, and direct employees to the gov-
erning plan document(s) to find them. Here, both the summary
brochures/booklets (some of which are nearly as long and oth-
erwise detailed as the plan documents themselves) and the ac-
knowledgment form indicate, incorrectly, that there are no ex-
ceptions or exclusions, and only generally refer employees to
the plan documents for more specific details of the SIS pro-
gram. Cf. Kummetz v. Tech Mold, Inc., 152 F.3d 1153 (9th Cir.
1998) (employee was not contractually bound by mandatory
arbitration clause in employee handbook where the acknowl-
edgment form employee signed indicated that the handbook did
not constitute a contract and did not specifically mention the
arbitration clause).
Accordingly, I find that the Company has violated Section
8(a)(1) of the NLRA by maintaining and distributing to em-
ployees the overbroad SIS summary brochures/booklets and
acknowledgment form, as alleged.
II. THE CLASS ACTION BAN
As indicated above, this case is also different from Horton in
that the Bloomingdale’s mandatory arbitration provisions per-
mit employees to opt out of arbitration altogether, and thereby
preserve their right to pursue future claims in court on either an
individual or collective/class basis. The Company argues that
this is a significant difference because, as found by numerous
Federal and State courts, it renders the SIS arbitration proce-

8 CIGNA Corp. v. Amara, 131 S.Ct. 1866, 1877–1878 (2011). See
also CompuCredit, 132 S.Ct. at 671–672.
dure truly voluntary.9 The Company argues that this case there-
fore squarely presents “the more difficult question” that the
Board in Horton expressly left open in footnote 28 of its deci-
sion:
[W]hether, if arbitration is a mutually beneficial means of dis-
pute resolution, an employer can enter into an agreement that
is not a condition of employment with an individual employee
to resolve either a particular dispute or all potential employ-
ment disputes through non-class arbitration rather than litiga-
tion in court.10
The Company submits that this question must be answered in
the affirmative, and that the SIS arbitration/opt-out provisions
be found lawful, consistent with both the FAA, which “reflects
an emphatic federal policy in favor of arbitration,” KPMG, LLP
v. Cocchi, 132 S.Ct. 23, 25 (2011), quoting Mitsubishi Motors
Corp. v. Soler Chrysler-Pllymouth, Inc., 473 U.S. 614, 631
(1985), and the NLRA, which protects employee rights to en-
gage in and “to refrain from” concerted activities, NLRB v.
Magnavox Co. of Tennessee, 415 U.S. 3223, 324 (1974), quot-
ing Section 7 of the NLRA, 29 U.S.C. § 157.11
The General Counsel and Johnmohammadi, on the other
hand, argue that the difference is of no legal significance. They
argue that the opt-out opportunity does not render the SIS pro-
gram truly “voluntary,” at least with respect to new hires, as it
is only available within the initial 30 days of hire, a time when
they are not likely to have any awareness of employment issues
or their rights under the NLRA to engage in collective legal and
other concerted activity. They further argue that the opt-out
procedure places an unlawful burden on employees, both by

9 The Company’s posthearing brief cites numerous Federal and
State court decisions finding employee assent in these circumstances,
including Quevedo v. Macy's, Inc., 798 F.Supp.2d 1122 (C.D. Cal.
2011); Outland v. Macy’s Dept. Stores, 2013 WL 164419 (Cal. Ct.
App. Jan. 16, 2013) (unpub.), and 13 additional, unpublished decisions
involving the same Macy’s/ Bloomingdale’s SIS arbitration program
involved here.
10 See also fn. 18 of the Horton decision, distinguishing Webster v.
Guillermo Perales, 2008 WL 282305 (N.D. Tex. Feb. 1, 2008)
(unpub.).
11 The Company additionally or alternatively argues that Horton
was wrongly decided, noting that the Eighth Circuit and most lower
courts have declined to follow it to date. See, e.g., Owen v. Bristol
Care, Inc., 702 F.3d 1050 (8th Cir. 2013); Miguel v. JPMorgan Chase
Bank, 2013 WL 452418 (C.D. Cal. Feb. 5, 2013); Carey v. 24 Hour
Fitness USA, Inc., 2012 WL 4754726 (S.D. Tex. Oct. 4, 2012), and
cases cited therein. See also Walthour v. Chipio Windshield Repair,
LLC, ___ F.Supp.2d ___, 2013 WL 1932655 (N.D. Ga. Feb. 27, 2013)
(finding Horton persuasive, but requiring the parties to proceed with
individual arbitration anyway given the judicial trend upholding class
waivers and the strong presumption in favor of arbitration). However,
I am bound by Board precedent unless and until it is reversed by the
Supreme Court. See Pathmark Stores, Inc., 342 NLRB 378 fn. 1
(2004). The Company also challenges both Horton and the instant
proceeding for lack of a valid Board quorum, citing Noel Canning v.
NLRB, 705 F.3d 490 (D.C. Cir. 2013), petition for certiorari granted,
No. 12-1281 (June 24, 2013). However, the Company’s prehearing
motion to dismiss the complaint on this ground was denied by the
Board on April 30, 2013 (359 NLRB No. 113). Again, I am bound by
the Board’s ruling.
BLOOMINGDALES’S, INC. 17
requiring them to take affirmative steps to regain or preserve
those rights, and by requiring them to do so openly—i.e., to
“publicly self-identify” their unwillingness to go along with the
Company’s preferred, nonjudicial and noncollective, dispute
resolution procedure—at a “highly vulnerable time when they
are new employees.” (GC Br. 15–16) (citing Special Touch
Home Care Services, 357 NLRB 4, 9 (2011) (“a requirement of
individual notice is . . . an impediment to Section 7 activity”),
affd. on point but enf. denied on other grounds 708 F.3d 447
(2d Cir. 2013)).
Moreover, they argue that upholding the SIS opt-out proce-
dure would be inconsistent with Board precedent finding un-
lawful and unenforceable employee separation agreements that
waive or “trade away” the employee’s right to engage in future
concerted activity. See Ishikawa Gasket America, Inc., 337
NLRB 175 (2001), quoting Mandel Security Bureau, 202
NLRB 117, 119 (1973). As pointedly stated by
Johnmohammadi, the “voluntariness of the waiver herein [is]
irrelevant.” Rather,
the core issue is whether or not Bloomingdale's can buy, with
any consideration, such as a raise, arbitration promise, a job,
or a decent parking space in the employee parking lot, an em-
ployee's agreement not to engage, in the future, in concerted
activity.
. . . .
Obviously, a voluntary agreement between an employer and
an employee, wherein the employee agrees not to join a union
in the future for $1,000, would run afoul of the [Norris
LaGuardia Act] and NLRA. There is no analytical reason to
hold otherwise if, in exchange for the "benefits" of arbitration,
instead of $1,000, an employee agrees not to engage in the fu-
ture in a concerted activity other than joining a union—
agrees, for example, not to pursue concerted litigation, not to
join with others in a judicial forum, or other forum to litigate
wage claims [CP Br. 3, 25].
Having carefully considered the parties’ arguments and cited
cases, in agreement with the Company, I find that the opt-out
procedure is sufficient to render the individual arbitration pro-
gram voluntary. While the Company’s overall SIS presentation
has consistently been one-sided,12 neither the General Counsel
nor Johnmohammadi contend that the Company has failed to
adequately notify employees about the class action ban. Fur-
ther, at least some of the SIS brochures have encouraged em-
ployees to educate themselves about both “the benefits and
limitations of arbitration,” and provided them with the website
address of the American Arbitration Association to find more
information. (See R. Exhs. 5 and 7.) Moreover, new hires have
been given 30 days in which to do so, a not insubstantial or
unjustifiable period of time. Cf. California Saw & Knife
Works, 320 NLRB 224, 235 (1995) (generally approving of 30-
day deadline for nonmember employees to object to, and there-
by opt out of, paying fair-share union fees for noncollective
bargaining activities); reaffirmed on point in Auto Workers
Local 376 (Colt’s Mfg. Co.), 356 NLRB 1320, 1322 fn. 11

12 See, e.g., Quevedo, 798 F.Supp.2d at 1136.
(2011), vacated as moot 487 Fed. Appx. 661 (2d Cir. 2012)
(unpub.). To paraphrase the Seventh Circuit in Nielsen v. Ma-
chinists Local 2569, 94 F.3d 1107, 1116 (7th Cir. 1996), cert.
denied 117 S.Ct. 1426 (1997), “life is full of deadlines, and
[there is] nothing particularly onerous about this one.” See
also Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1199–
2000 (9th Cir. 2002) (mandatory arbitration agreement was not
procedurally unconscionable because it only allowed employ-
ees to opt out during the first 30 days of employment). Finally,
there is no allegation or record evidence that the Company has
threatened employees with reprisals or retaliated against them
for opting out. Cf. Circuit City Stores v. Mantor, 335 F.3d
1101 (9th Cir. 2003), cert. denied 124 S.Ct. 1169 (2004) (find-
ing arbitration agreement procedurally unconscionable where
the employer threatened employee’s job if he opted out).
I also reject the General Counsel’s and Johnmohammadi’s
argument that the opt-out procedure unlawfully burdens em-
ployees. A one-time requirement that employees sign and post
a preprinted election form, by regular mail in a preaddressed
envelope, seems a minimal administrative burden, and no au-
thority is cited holding otherwise. As for the possibility that
new employees in particular would be reluctant to opt out due
to fear of retaliation, this is certainly a reasonable concern giv-
en the Company’s clearly stated preference for arbitration.13
However, as indicated by the Company, the SIS mail-in proce-
dure addresses this concern by having employees return the
form remotely and impersonally to the corporate SIS office,
rather than directly and personally to their immediate store
supervisor or manager.14 Moreover, there would be no less
reason for employees to fear retaliation with an opt-in proce-
dure; either way the Company would know whether employees
had elected “not to be covered by the benefits of arbitration.”
Thus, if the General Counsel’s and Johnmohammadi’s argu-
ment were adopted, employers could never lawfully offer an
arbitration agreement to an employee, no matter how beneficial
or whether it covered one dispute or all disputes, that waived
the employee’s right to pursue class litigation.
As for the General Counsel’s and Johnmohammadi’s argu-
ment that Ishikawa prohibits trading away Section 7 rights in
this manner, if the answer were so simple the Board’s comment
in Horton that voluntary agreements presented a “more difficult
question” would have to be considered gratuitous. Certainly,
the Board was well aware of its decision in Ishikawa; indeed,
another case was pending before the Board at that time raising a
similar issue. See Goya Foods of Florida, 358 NLRB 345
(2012) (citing Ishikawa in disapproving a settlement agreement
in which the two alleged discriminatees each received over
$20,000 in exchange for, among other things, agreeing not to

13 See id. at 1137–1138.
14 The same concerns might be met by affording employees the even
easier and faster option of making their election online, through the SIS
website. Indeed, the Company has admittedly required new hires to
sign the acknowledgement form online since 2007, using their social
security number and other identifying information, “so that it could be
more easily done and recorded” (Tr. 137–138). However, neither the
General Counsel nor Johnmohammadi argue that the availability of
such an alternative renders the mail-in requirement unduly burdensome.
And I would not reach this conclusion on this record in any event.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
engage in any union activity related to the employer’s employ-
ees).15
What makes the issue here “more difficult” is that there is no
“emphatic federal policy” in favor of employees getting sever-
ance pay, a raise, or a parking space. As indicated by the Com-
pany, there is, on the other hand, such a policy in favor of arbi-
trating disputes. In short, arbitration is not just any benefit; it is
a federally favored and supported benefit. The question, there-
fore, is whether it is a benefit of such overriding Federal im-
portance that the Board must or should look away when em-
ployees voluntarily enter into mandatory arbitration agree-
ments, even if they are conditioned on employees completely
and irrevocably relinquishing their right under the NLRA to
engage in collective legal action against their employer.
The General Counsel and Johnmohammadi provide no real
answer to this question. Rather, they simply recite the Board’s
reasoning in Horton, i.e., that concerted activity is a substantive
right and the Supreme Court’s opinions indicate that arbitration
agreements may not require a party to forgo such rights. How-
ever, again, if the answer were so straightforward, there would
be nothing “more difficult” about this case than Horton.
Moreover, as indicated above, there could be very real and
adverse consequences, not only for existing arbitration agree-
ments, but also for future agreements, if the position of the
General Counsel and Johnmohammadi here were adopted.
Thus, employers might no longer offer arbitration agreements
to employees if they are unable thereby to avoid future class
action litigation in court. This concern could be addressed by
requiring only that such voluntary agreements permit employ-
ees to pursue class claims in arbitration. However, “the com-
mercial stakes of class-action arbitration are comparable to
those of class-action litigation.” Stolt-Nielsen S.A. v.
AnimalFeeds Int’l. Corp., 130 S.Ct. 1758, 1776 (2010). Fur-
ther, arbitration is “poorly suited” for class claims. AT&T Mo-
bility LLC v. Concepcion, 131 S.Ct. 1740, 1753 (2011). See
also American Express Co. v. Italian Colors Restaurant, ___ S.
Ct. ___, 2013 WL 3064410 (June 20, 2013). Thus, while small
companies with only 20–25 employees might be willing to live
with this alternative (see Horton, 357 NLRB 2277, 2285–2286,
it is unlikely that large corporations with thousands of employ-
ees such as Bloomingdale’s and its parent Macy’s would be

15 Recent administrative law judge decisions relying on Ishikawa to
invalidate similar arbitration/opt-out provisions are distinguishable.
Each of the decisions also relied heavily on the fact that the arbitration
policies expressly forbade employees who participated in arbitration
(i.e., employees who had not opted out) from disclosing to other em-
ployees the existence, content, or results of any arbitration without the
written consent of all parties. See 24 Hour Fitness USA, Inc., JD(SF)–
51–12, 2012 WL 5495007 (Nov. 6, 2012), respondent’s exceptions
filed Jan. 3, 2013; and Mastec Services, JD(NY)–25–13, 2013 WL
2409181 (June 3, 2013). Although the SIS plan documents here also
contain confidentiality provisions (R. Exh. 1, p. 14; R. Exh. 2, p. 13),
which are arguably objectionable as well (see Teimouri v. Macy’s, Inc.,
2013 WL 2006815 at *32–34 (Cal. App. May 14, 2013) (unpub.)),
neither the General Counsel nor Johnmohammadi rely on this as sup-
port for finding the arbitration provisions unlawful. In any event, ad-
ministrative law judge decisions (including this one) lack precedential
authority unless and until reviewed and affirmed by the Board.
(see AT&T, 131 S.Ct. at 1752).
Accordingly, for all the foregoing reasons, I find that the
General Counsel has failed to carry the burden of proof and/or
persuasion, and that the Company therefore did not violate
Section 8(a)(1) of the NLRA by maintaining and enforcing
against Johnmohammadi the individual arbitration provisions
of the SIS plan.16
CONCLUSIONS OF LAW
1. By maintaining and distributing, since at least June 2011,
summary descriptions of the Solutions InStore dispute resolu-
tion plan that would reasonably lead employees to believe that
their right to file unfair labor practice charges with the Board
had been eliminated or restricted, the Company has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the NLRA.
2. The Company has not otherwise violated Section 8(a)(1)
of the NLRA by maintaining and enforcing against Charging
Party Johnmohammadi the individual arbitration provisions of
the Solutions InStore plan since June 2011.
REMEDY
The appropriate remedy for the violation found is an order
requiring the Company to cease and desist and to take certain
affirmative action. Specifically, the Company shall be required
to rescind or revise the Solutions InStore summary bro-
chures/booklets and acknowledgment form to be consistent
with the governing SIS plan documents with respect to the
exclusion of unfair labor practice allegations under the NLRA
and the right of employees to file charges with the Board. In
addition, the Company shall be required to notify employees
that this has been done and to also post a notice regarding the
violation. Finally, because the SIS brochures/booklets and
acknowledgment form containing the overbroad language are
used on a corporatewide basis, the Company shall be required
to take these actions at all of its stores where the SIS program is
in effect. See Horton, 357 NLRB 2277, 2287; and U-Haul of
California, 347 NLRB at 375 fn. 2.
Accordingly, based on the foregoing findings of fact and
conclusions of law and on the entire record, I issue the follow-
ing recommended17
ORDER
The Respondent, Bloomingdale’s, Inc., Sherman Oaks, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or distributing to current or new em-
ployees summary descriptions, including but not limited to
brochures, booklets, or acknowledgment forms, regarding the
Solutions InStore (SIS) dispute resolution plan, which would
reasonably lead employees to believe that their right to file

16 In light of this finding, it is unnecessary to address the Compa-
ny’s various affirmative defenses to these allegations.
17 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.
BLOOMINGDALES’S, INC. 19
unfair labor practice charges with the Board had been eliminat-
ed or restricted.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise the SIS brochures/booklets and ac-
knowledgment form to be consistent with the SIS plan docu-
ments with respect to the exclusion of unfair labor practice
allegations under the NLRA and the right of employees to file
charges with the Board.
(b) Notify employees of the revisions or rescissions by
providing them with a copy of the revised SIS bro-
chures/booklets and acknowledgment form, or by specifically
notifying them that the SIS brochures/booklets and acknowl-
edgement form have been rescinded for the reasons set forth in
this decision and order.
(c) Within 14 days after service by the Region, post at its fa-
cility in Sherman Oaks, California, and any other facility where
the SIS brochures/booklets and acknowledgment form have
been used, copies of the attached notice marked “Appendix.”18
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the
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. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 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 25, 2013
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

18 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.”
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 or distribute summary descriptions,
including but not limited to brochures, booklets, or acknowl-
edgment forms, regarding our Solutions InStore (SIS) dispute
resolution plan, which would reasonably lead you to believe
that your right to file unfair labor practice charges with the
Board had been eliminated or restricted.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the National Labor Relations Act (NLRA).
WE WILL rescind or revise the SIS brochures/booklets and
acknowledgment form to be consistent with the SIS plan docu-
ments with respect to the exclusion of unfair labor practice
allegations under the NLRA and your right to file charges with
the Board.
WE WILL notify you of the revisions or rescissions by provid-
ing you with a copy of the revised SIS brochures/booklets and
acknowledgment form, or by specifically notifying you that the
SIS brochures/booklets and acknowledgement form have been
rescinded for the reasons set forth in the Board’s decision and
order.
BLOOMINGDALE’S , INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-071281 or by using the QR code be-
low. 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.