CALIFORNIA COMMERCE CLUB, INC.

National Labor Relations Board - Board Decisions

Jun 16, 2016

364 NLRB No. 31 (N.L.R.B. 2016)

364 NLRB No. 31
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.
California Commerce Club, Inc. and William J. Sauk.
Case 21–CA–149699
June 16, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
AND HIROZAWA
On January 6, 2016, Administrative Law Judge Amita
Baman Tracy issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decision in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in rele-
vant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), enf. denied in rele-
vant part 808 F.3d 1013 (5th Cir. 2015), that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing an Arbitration Agreement and Mandatory Dispute
Resolution Process (the Agreement) that requires em-
ployees, as a condition of employment and continued
employment since about February 2015, to waive their
rights to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial.1 The judge also found that the Respondent in-
dependently violated Section 8(a)(1) by requiring em-
ployees to keep arbitration proceedings confidential and
prohibiting disclosure of any “evidence or award/
decision beyond the arbitration proceeding.”
The Board has considered the decision and the record
in light of the exceptions and briefs and, based on the
judge’s application of D. R. Horton and Murphy Oil, we
affirm the judge’s rulings, findings,2 and conclusions and

1 See also Lewis v. Epic Systems, ___ F.3d ___ (7th Cir. May 26,
2016) (holding mandatory individual arbitration agreement that did not
permit collective action in any forum violates the Act and is also unen-
forceable under the Federal Arbitration Act, 9 U.S.C. §§1, et seq.).
2 On exceptions, the Respondent argues that D. R. Horton and Mur-
phy Oil were wrongly decided and should be overruled. We disagree
and adhere to the findings and rationale in those cases. The Respond-
ent also argues that the Agreement’s confidentiality provision is lawful.
We agree with the judge that the confidentiality provision of the
Agreement independently violates Section 8(a)(1). A workplace rule
that prohibits the discussion of terms and conditions of employment, as
the Respondent’s confidentiality provision does by prohibiting employ-
ees from “disclosure of evidence or award/decision beyond the arbitra-
tion proceeding,” is unlawfully overbroad. See, e.g., Century Fast
adopt the recommended Order as modified and set forth
in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, California Commerce Club, Inc., Com-
merce, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining an Arbitration Agreement and Manda-
tory Dispute Resolution Process that requires employees,
as a condition of employment, to waive the right to main-
tain employment-related class or collective actions in all
forums, whether arbitral or judicial.
(b) Maintaining an Arbitration Agreement and Man-
datory Dispute Resolution Process that requires employ-

Foods, 363 NLRB No. 197, slip op. at 1–2 fn. 4 (2016); Ralph’s Gro-
cery Co., 363 NLRB No. 128, slip op. at 3 (2016).
The Respondent also asserts that the complaint should be dismissed
because Charging Party Sauk was no longer employed by the Respond-
ent when the complaint issued and because Sauk did not engage in
protected concerted activity. However, while the Respondent filed
exceptions pertaining to these arguments, the Respondent failed to brief
the issues. Accordingly, the Respondent presented these assertions as
bare exceptions without any supporting argument and, under Sec.
102.46(b)(2) of the Board’s Rules & Regulations, such unsupported
exceptions may be disregarded. See Holsum de Puerto Rico, Inc., 344
NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). In
any event, the exceptions lack merit. Neither Sauk’s employment
status nor the protected nature of his conduct are relevant to the ulti-
mate issue of whether the Respondent’s maintenance of the Agreement
violates Sec. 8(a)(1).
Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, 361 NLRB No. 72, slip op. at 22–35 (2015), would find that
the Respondent’s Agreement does not violate Sec. 8(a)(1). He observes
that the Act does not “dictate” any particular procedures for the litiga-
tion of non-NLRA claims, and “creates no substantive right for em-
ployees to insist on class-type treatment” of such claims. This is all
surely correct, as the Board has previously explained in Murphy Oil,
above, slip op. at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2
& fn. 2 (2015). But what our colleague ignores is that the Act “does
create a right to pursue joint, class, or collective claims if and as avail-
able, without the interference of an employer-imposed restraint.” Mur-
phy Oil, above, slip op. at 2 (emphasis in original). The Respondent’s
Agreement is just such an unlawful restraint. See On Assignment Staff-
ing Services, 362 NLRB No. 189, slip op. at 4, 8–9 & fns. 28, 29, 31
(2015).
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
Agreement unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 3. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language for the violations found, and we
shall substitute a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees to keep confidential any arbitration proceedings un-
dertaken as the result of such agreement.
(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 Arbitration Agreement and Mandatory
Dispute Resolution Process in all of its forms, or revise it
in all of its forms to make clear to employees that the
Arbitration Agreement and Mandatory Dispute Resolu-
tion Process 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 require em-
ployees to keep confidential any arbitration proceedings
undertaken as a result of such agreement.
(b) Notify all current and former employees employed
since February 2015, who were required to sign or oth-
erwise become bound to the unlawful Arbitration
Agreement and Mandatory Dispute Resolution Process in
any form that it has been rescinded or revised and, if re-
vised, provide them a copy of the revised agreement.
(c) Within 14 days after service by the Region, post at
its Commerce, California facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since February 1, 2015.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 16, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting
in part.
In this case, my colleagues find that the Respondent’s
Arbitration Agreement and Mandatory Dispute Resolu-
tion Process violates Section 8(a)(1) of the National La-
bor Relations Act (the Act or NLRA) because the
Agreement waives the right to participate in class or col-
lective actions regarding non-NLRA employment claims.
I respectfully dissent from this finding for the reasons
explained in my partial dissenting opinion in Murphy Oil
USA, Inc.1
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.2 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was recently denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 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).
CALIFORNIA COMMERCE CLUB, INC. 3
just” grievances “at any time.”3 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;4 (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;5 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-

3 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
4 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
5 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, above, slip op. at 34 (Member Miscimarra, dissenting
in part); id., slip op. at 36 fn. 5 (Member Johnson, dissenting) (collect-
ing cases); see also Patterson v. Raymours Furniture Co., Inc., 96 F.
Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco USA, Inc., 99 F.
Supp. 3d 1072 (N.D. Cal. 2015), motion to certify for interlocutory
appeal denied 2015 WL 4035072 (N.D. Cal. June 30, 2015); Brown v.
Citicorp Credit Services, Inc., No. 1:12-cv-00062-BLW, 2015 WL
1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration of prior
determination that class waiver in arbitration agreement violated
NLRA); Bell v. Ryan Transportation Service, Inc., No. 15-9857-JWL,
2016 WL 1298083 (D. Kan. Mar. 31, 2016); but see Lewis v. Epic
Systems Corp., No. 15-2997, 2016 WL 3029464 (7th Cir. May 26,
2016); Totten v. Kellogg Brown & Root, LLC, No. ED CV 14-1766
DMG (DTBx), 2016 WL 316019 (C.D. Cal. Jan. 22, 2016).
tion Act (FAA).6 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.7
Accordingly, as to these issues,8 I respectfully dissent.
Dated, Washington, D.C. June 16, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

6 For the reasons expressed in my Murphy Oil partial dissent, and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
7 Because I disagree with the Board’s decisions in Murphy Oil,
above, and D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
pert. part 737 F.3d 344, 362 (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 2288, by permitting
the filing of complaints with administrative agencies that, in turn, may
file class or collective action lawsuits. See Owen v. Bristol Care, Inc.,
702 F.3d 1050 (8th Cir. 2013).
8 I concur with my colleagues’ finding that the Agreement unlawful-
ly interferes with protected concerted activity in violation of Section
8(a)(1) based on its requirement that, “the arbitration shall be conduct-
ed on a confidential basis and there shall be no disclosure of evidence
or award/decision beyond the arbitration proceeding.” (emphasis add-
ed). Here, I rely on the fact that a central aspect of protected concerted
activity under the NLRA involves discussions and coordination be-
tween or among two or more employees regarding employment-related
disputes, including those that may be resolved in arbitration, see fn. 2,
above; such discussions and coordination would appear to be precluded
by “confidential” arbitration; and the record reveals no reasonable
limitations on or justifications for a blanket requirement of confidenti-
ality. Cf. Banner Estrella Medical Center, 362 NLRB No. 137, slip op.
at 13–19 (2015) (Member Miscimarra, dissenting in part) (describing
requirement that the Board strike a proper balance between asserted
business justifications and potential impact on NLRA rights).
I further concur with my colleagues’ finding to disregard the Re-
spondent’s bare exceptions. In my view, bare exceptions that lack any
explanation or support either in the exception or the supporting brief
should be disregarded, absent unusual circumstances. Here, the Re-
spondent has not pointed to any unusual circumstances, and my review
of the record discloses none. Accordingly, I agree with my colleagues
that it is appropriate to disregard the Respondent’s bare exceptions. In
doing so, I do not reach the merits of the bare exceptions.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this 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 an Arbitration Agreement and
Mandatory Dispute Resolution Process that requires our
employees, as a condition of employment, to waive the
right to maintain employment-related class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT maintain an Arbitration Agreement and
Mandatory Dispute Resolution Process that requires em-
ployees to keep confidential any arbitration proceedings
undertaken as a result of such agreement.
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 Arbitration Agreement and Man-
datory Dispute Resolution Process in all of its forms, or
revise it in all of its forms to make clear that the agree-
ment does not constitute a waiver of your right to main-
tain employment-related joint, class, or collective actions
in all forums, and that it does not require employees to
keep confidential any arbitration proceedings undertaken
as a result of such agreement.
WE WILL notify all current and former employees em-
ployed since February 2015, who were required to sign
or otherwise become bound to the unlawful Arbitration
Agreement and Mandatory Dispute Resolution Process in
any form that it has been rescinded or revised and, if re-
vised, WE WILL provide them a copy of the revised
agreement.
CALIFORNIA COMMERCE CLUB, INC.
The Board’s decision can be found at
www.nlrb.gov/case/21–CA–149699 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Lindsay R. Parker, Esq., for the General Counsel.
Jason Kearnaghan, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case
is before me on the parties’ October 15, 2015 motion to submit
case on stipulation and stipulation of facts (hereinafter, Joint
Motion), which I approved on October 23, 2015.1 William J.
Sauk (Sauk or Charging Party) filed the charge and amended
charge in Case 21–CA–149699 on April 7, 2015, and June 16,
2015, respectively. The General Counsel issued the complaint
(the complaint) on July 29, 2015.
The complaint alleges that California Commerce Club, Inc.
(Respondent) violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by implementing and maintaining an
Arbitration Agreement and Mandatory Dispute Resolution
Process (the Agreement) requiring its employees, as a condition
of employment, since about February 2015 to resolve employ-
ment-related disputes exclusively through individual arbitration
and to relinquish any rights they have to disputes through col-
lective or class action. Furthermore, Respondent required its
employees to comply with the Agreement as a condition of
continued employment and to execute a paper acknowledging
receipt of the Agreement. The complaint also alleges that Re-
spondent violated Section 8(a)(1) of the Act by requiring arbi-
tration proceedings to be confidential and prohibiting disclosure
of “any evidence or award/decision beyond the arbitration pro-
ceeding” thereby interfering with employees’ ability to discuss
topics protected by Section 7 of the Act.
Respondent filed a timely answer on August 11, 2015.
For the reasons that follow, I find that Respondent violated
Section 8(a)(1) of the Act when it implemented and maintained
the Agreement, and when it required arbitration proceedings to
remain confidential.
On the joint motion which consists of the stipulated facts and
exhibits, and after considering the briefs filed by the General
Counsel and Respondent, I make the following2

1 Abbreviations used in this decision are as follows: “Jt. Mt.” for
Joint Motion; “Exh.” for exhibit; “GC Br.” for General Counsel’s brief;
and “R. Br.” for Respondent’s brief.
2 Although I have included several citations to the record to highlight
particular stipulations or exhibits, I emphasize that my findings and
conclusions are based not solely on the evidence specifically cited, but
rather are based on my review and consideration of the entire record.
CALIFORNIA COMMERCE CLUB, INC. 5
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, operates a hotel and
California card casino at its facility in Commerce, California,
where it annually derived gross revenues in excess of $500,000
and purchased and received at its facility in Commerce, Cali-
fornia goods valued in excess of $50,000 from other enterprises
within the State of California which had received those goods
directly from outside the State of California. Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Arbitration and Confidentiality Provision
Since February 2015, Respondent implemented and main-
tains the Agreement.3 The Agreement, a 2 page document,
states in pertinent part:
In consideration for California Commerce Club, Inc. (herein-
after the “Company”) employing you or continuing to employ
you, and the mutual promises set forth herein, you and the
Company, and its representatives, successors and assigns (col-
lectively referred to as “The Parties”), agree to the following:
[…]
In the event of any dispute, prior to commencing legal action,
I or the Company, whichever is the complaining party, shall
give prompt written notice to the other (as to the Company,
this person shall be the Executive Director of Human Re-
sources) of the nature of the dispute, claim or controversy.
Upon the receipt of such written notice, the Parties agree to
meet within 30 days in person to discuss in good faith the dis-
pute, claim or controversy for the purpose of attempting to re-
solve it informally.
If the Parties cannot resolve their differences in that informal
dispute resolution process, then all claims relating to my re-
cruitment, employment with, or termination of employment
from the Company shall be deemed waived unless submitted
to final and binding arbitration by JAMS, subject to the fol-
lowing requirements:
[…]
• The arbitration shall be conducted on a confiden-
tial basis and there shall be no disclosure of evi-
dence or award/decision beyond the arbitration
proceeding.

3 The General Counsel has no evidence as of the date of the joint
motion that Respondent has enforced the Agreement, or any provision
within, to restrict the exercise of employees’ Sec. 7 rights (Jt. Mt. at
4(10)). Nor does the General Counsel have any evidence that Re-
spondent has ever attempted to use the Agreement to compel arbitration
of a charge filed with the National Labor Relations Board, nor used the
Agreement to discourage employees from filing such charges, or any
charge filed with an administrative agency (Jt. Mt. at 5(11) and (12)).
[…]
• The arbitrator shall have the authority to award all
potential damages that may be awarded in court
and the decision and award of the arbitrator shall
be final, binding, and enforceable in the courts.
• Class Action Waiver: All claims must be brought
in the employee’s individual capacity, and not as
a plaintiff or participating class member in any
purported class, collective, consolidated or repre-
sentative proceeding, and must be brought in
within the time frame provided by the applicable
statute of limitations for such claim.
• The Arbitrator shall not have the authority to hear
or issue an award on any claim brought on a class,
collective, consolidated or representative basis.
In the event that either party files, and is allowed by the courts
to prosecute, a court action on any claim covered by this
agreement, the parties agree that they each agree not to re-
quest, and hereby waives his/her/its right to a trial by jury.
This pre-dispute resolution agreement covers all matters di-
rectly or indirectly related to my recruitment, employment, or
termination of employment by the Company […]
(emphasis in original) (Jt. Mt. at Exh. 5.)
Furthermore, the Agreement applies to various claims, in-
cluding the Fair Labor Standards Act (FLSA), but sets forth the
following where it does not apply:
This Agreement does not apply to any Claims by the employ-
ee: (a) for state Workers’ Compensation benefits; (b) for un-
employment insurance benefits filed with the appropriate
government entity; (c) arising under the National Labor Rela-
tions Act and filed through a charge with the National Labor
Relations Board; or (d) which are otherwise expressly prohib-
ited by law from being subject to arbitration under this
Agreement. This Agreement does not preclude filing an ad-
ministrative charge or complaint with the appropriate gov-
ernment entity if such filing is protected or required by law.
(Jt. Mt. at Exh. 5.)
The Agreement concludes with the following, along with the
employee’s signature and the signature of Jose Garcia, execu-
tive director of Respondent’s human resources:
YOU MAY WISH TO CONSULT WITH AN ATTORNEY
PRIOR TO SIGNING THIS AGREEMENT. IF SO, TAKE
A COPY OF THIS FORM WITH YOU. HOWEVER, YOU
WILL NOT BE OFFERED EMPLOYMENT UNTIL THIS
FORM IS SIGNED AND RETURNED BY YOU.
PLEASE READ THESE PROVISIONS CAREFULLY, BY
SIGNING BELOW, YOU ARE ATTESTING THAT YOU
HAVE READ AND UNDERSTOOD THIS DOCUMENT
AND ARE KNOWINGLY AND VOLUNTARILY
AGREEING TO ITS TERMS, INCLUDING YOUR
WAIVER OF A RIGHT TO HAVE THIS MATTER
LITIGATED IN A COURT OR JURY TRIAL, OR TO
HAVE THIS MATTER RESOLVED ON A CLASS,
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
COLLECTIVE, CONSOLIDATED OR
REPRESENTATIVE BASIS.
(emphasis in original) (Jt. Mt. at Exh. 5.)
Since February 2015, as a condition of employment, Re-
spondent required its employees to comply with and agree to be
bound by the Agreement by signing acknowledging receipt of
the Agreement. Since February 2015, through the date of the
stipulated record, Respondent has not terminated or otherwise
disciplined employees for refusing to sign the Agreement.
Along with the Agreement, Respondent provided the em-
ployees with a memorandum which described the Agreement.
The memorandum, dated February-March 2015, addressed to
all Respondent’s employees from the human resources depart-
ment states, in pertinent part:
Commerce Casino’s updated Arbitration Agreement and
Mandatory Dispute Resolution Process is attached for your
review and signature. Please be advised that your signed ac-
knowledgment attesting that you have read and understood
this document and are knowingly agreeing to its terms is re-
quired for Commerce Casino to continue to employ you.
[…]
You are free to take the agreement home, and as stated in the
document, you may wish to consult an attorney prior to sign-
ing the agreement. You have until 4/15/15 to consider this
document. Failure to sign and return this document to the
Human Resources department by 4/15/15 will result in termi-
nation of your employment with Commerce Casino.
(Jt. Mt. at Exh. 6.)
Contained with Respondent’s Agreement is a confidentiality
provision. Specifically, the Agreement states, “The arbitration
shall be conducted on a confidential basis and there shall be no
disclosure of evidence or award/decision beyond the arbitration
proceeding.” Respondent drafted the confidentiality provision
contained in the Agreement “to save resources and reputation
costs by arbitrating disputes outside of the public purview, and
not in response to union activity” (Jt. Mt. at 4(9)).4
B. The Charging Party’s Employment with Respondent
In February 2015, Respondent presented Sauk with the
Agreement. Sauk refused to sign the Agreement. Respondent
did not discipline or terminate Sauk for failing to sign the
Agreement. On May 8, 2015, Sauk voluntarily resigned from
Respondent.

4 The General Counsel has no evidence that the confidentiality pro-
vision in the Agreement was promulgated in response to union activity
(Jt. Mt. at 4(9)). The General Counsel stipulated that it is not pursuing
this complaint on the grounds that any of the provisions contained in
the Agreement or the Agreement alone was promulgated by Respond-
ent in response to union activity or that the Agreement and its provi-
sions have been enforced by Respondent to restrict Sec. 7 rights (Jt. Mt.
at 5(13)).
III. ANALYSIS
In the Joint Motion, the parties agreed to the following is-
sues:
(1) Whether Respondent’s maintenance of the Agreement
violates Section 8(a)(1) of the Act;
(2) Whether employees would reasonably conclude that the
confidentiality provision of the Agreement precludes employ-
ees from engaging in conduct protected by Section 7 of the Act.
A. Respondent’s Agreement Violates Section 8(a)(1)
of the Act.
The complaint alleges, at paragraphs 4(a) and (b) and 5, that
since February 2015, Respondent has required employees, as a
condition of employment, to be bound by the Agreement which
requires individual arbitration proceedings and relinquishes any
rights to resolve disputes through collective or class action
thereby violating Section 8(a)(1) of the Act. The parties stipu-
lated that Respondent required the employees to comply with,
agree to be bound by, and sign the Agreement as a condition of
continued employment. I find that Respondent imposed a
mandatory rule, and as such the Agreement should be evaluated
in the same manner as any workplace rule. See D. R. Horton,
Inc., 357 NLRB 2277 (2012), enfd. denied in relevant part 737
F.3d 344 (5th Cir. 2013), petition for rehearing en banc denied
(5th Cir. No. 12–60031, April 16, 2014); Murphy Oil USA,
Inc., 361 NLRB No. 72 (2014), enfd. denied in relevant part
No. 14-60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26,
2015).
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right
“to form, join or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection . . .” The
Board has consistently held that collective legal action involv-
ing wages, hours, and/or working conditions is protected con-
certed activity under Section 7. See, e.g., Spandsco Oil & Roy-
alty Co., 42 NLRB 942, 949–950 (1942); United Parcel Ser-
vice, 252 NLRB 1015, 1018, 1022 fn. 26 (1980), enfd. 677 F.2d
421 (6th Cir. 1982); D. R. Horton, supra, slip op. at 2.
In Murphy Oil USA, the Board reaffirmed its ruling in D. R.
Horton, in which it held that mandatory arbitration agreements
which preclude the filing of joint, class, or collective claims
addressing wages, hours, or other working conditions in any
forum, arbitral or judicial, is protected concerted activity and
unlawfully restrict employees’ Section 7 rights, thus violating
Section 8(a)(1) of the Act.
Furthermore, the Board held that Section 8(a)(1) of the Act is
violated when an employer requires its employees to agree to
resolve all employment-related claims through individual arbi-
tration. Mandatory arbitration agreements which bar employ-
ees from bringing joint, class, or collective actions regarding
the workplace in any forum restrict employees’ substantive
right established by Section 7 of the Act to improve their work-
ing conditions through administrative and judicial litigation.
Countrywide Financial Corp., supra, slip op. at 4 (Board made
CALIFORNIA COMMERCE CLUB, INC. 7
clear in D. R. Horton, supra, slip op. at 12, that employers are
“free to insist” that employees arbitrate their employment
claims and to require that the “arbitral proceedings be conduct-
ed on an individual basis,” but only “[s]o long as [they left]
open an judicial forum for class and collective claims . . . “em-
phasis in original)).
When evaluating whether a rule, including a mandatory arbi-
tration provision, violates Section 8(a)(1), the Board applies the
test set forth in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004). See U-Haul Co. of California, 347 NLRB 375, 377
(2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D. R. Hor-
ton; Murphy Oil; Cellular Sales. Under Lutheran Heritage, the
first inquiry is whether the rule explicitly restricts activities
protected by Section 7. If it does, the rule is unlawful. If it
does not, the violation is dependent upon a showing of one of
the following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was prom-
ulgated in response to [Section 7] activity; or (3) the rule has
been applied to restrict the exercise of Section 7 rights. Luther-
an Heritage, 343 NLRB at 647. The Board in D. R. Horton and
Murphy Oil found that mandatory arbitration policies expressly
violated employees’ rights to engage in protected concerted
activity under the Lutheran Heritage analysis. See also Brinker
International Payroll Co. L.P., 363 NLRB No. 54 (2015). The
Board held that if an arbitration policy is required as a condi-
tion of employment, then that rule violates Section 8(a)(1) of
the Act if employees would reasonably believe the policy or
rule interferes with their ability to file a Board charge or access
to the Board’s processes, even if policy or rule does not ex-
pressly prohibit access to the Board. Cellular Sales, supra, slip
op. at fn. 4.
Here, it is undisputed that the Agreement had been main-
tained as a condition of employment since February 2015, and
explicitly prohibits employees from pursuing employment-
related claims on a class or collective basis. The Agreement
states that employees will bring their claims in an “individual
capacity,” and not in a “class, collective, consolidated or repre-
sentative proceeding.”
Thus, I find that the arbitration provision was a mandatory
rule imposed by Respondent as a condition of employment and
precludes the right to pursue concerted legal action violating
Section 8(a)(1) of the Act. See D. R. Horton, supra, slip op. at
5; Murphy Oil, supra, slip op. at 24. The Agreement requires
employees to agree to pursue any dispute they have against
Respondent solely through individual arbitration thereby violat-
ing Section 8(a)(1) of the Act.
Respondent’s Arguments
Many of Respondent’s arguments concerning the validity of
the Board’s decision in D. R. Horton and Murphy Oil have been
addressed previously by the Board. Respondent argues I
should not follow Murphy Oil and D. R. Horton, and its proge-
ny (R. Br. at 3). Respondent, however, failed to provide valid
arguments distinguishing its arbitration policy with the ones
found in D. R. Horton and Murphy Oil. Because Murphy Oil
and D. R. Horton are Board precedents that have not been over-
turned by the Supreme Court or altered by a Board majority, I
must follow them.5 Manor West, Inc., 311 NLRB 655, 667 fn.
43 (1993); see also Waco, Inc., 273 NLRB 746, 749 fn. 14
(1984) (“We emphasize that it is a judge’s duty to apply estab-
lished Board precedent which the Supreme Court has not re-
versed. It is for the Board, not the judge, to determine whether
precedent should be varied.”). Overall, Respondent has not
raised novel arguments, and moreover, any appeal to change
Board law must be made directly to the Board.
First, Respondent argues that Sauk did not engage in con-
certed activity (R. Br. at 5–6). Respondent specifically argues
that “it cannot be presumed” that Sauk engaged in protected
concerted activity when he refused to sign the Agreement, and
that he filed the Board charge only on behalf of himself. I re-
ject Respondent’s argument. At issue in this complaint is the
maintenance of a rule prohibiting the filing of class claims, not
whether Sauk has engaged in activity prohibited by the rule.
See The Rose Group, 363 NLRB No. 75, slip op. at 3 (2015).
Respondent’s Agreement essentially invokes a term and
condition of continued employment for all employees at Re-
spondent, including Sauk. The Agreement precludes the em-
ployees, including Sauk, from acting in concert to file collec-
tive or class litigation regarding wages, hours, or other working
conditions. The Agreement forces employees to pursue their
claims against Respondent individually which fundamentally
interferes with employees’ core Section 7 rights of acting in
concert to support one another. Sauk engaged in concerted
activity when he refused to sign the Agreement, thereby pre-
serving his Section 7 rights. In other words, Sauk engaged in
concerted activity when he refused to prospectively waive his
Section 7 right to engage in concerted activity. See On As-
signment Staffing Services, 362 NLRB No. 189, slip op. at 1, 5–
8 (2015).
In addition, Sauk’s action of protesting the Agreement and
filing the Board charge falls within the ambit of seeking to
further the rights of all his coworkers even if he did not discuss
his actions with them.6 Furthermore, a rule such as the Agree-
ment may be found unlawful even when a covered employee
does not engage in protected concerted activity prohibited by
the rule. Murphy Oil, supra, slip op. at 13 (citing World Color
(USA) Corp., 360 NLRB No. 37, slip op. at 2 (2014)) (“[A]n
employer may violate Section 8(a)(1) even where an employee
has not engaged in protected concerted activity—if, for exam-
ple, the employer maintains a rule that reasonably would be
interpreted by the employees as prohibiting Section 7 activity
. . . .”); D. R. Horton, supra, slip op. at 2–3. Thus, Sauk en-
gaged in protected concerted activity when he refused to sign
the Agreement. Furthermore, Sauk filed the instant unfair labor
practice charge on behalf of all Respondent’s employees.

5 As Respondent points out, the Fifth Circuit disagreed with the
Board in D. R. Horton, and denied enforcement of the Board’s hold-
ings. The Board explicitly addressed this issue in Murphy Oil, supra,
slip op. 6–11.
6 The charge states: Beginning in or about February 2015, the Em-
ployer has required all employees, as a condition of employment, to
agree to an updated mandatory arbitration agreement seeking to prohib-
it class and representational actions in court and requiring employees to
waive their right to participate in class and/or representational actions
as a condition of continued employment.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Next, Respondent argues that Sauk “has no standing” be-
cause he resigned prior to the complaint being issued (R. Br. at
6–7). On the contrary, Sauk retained “standing” even though
he resigned before this complaint was issued.7 The Board has
long held that the broad definition of “employee” contained in
Section 2(3) of the Act covers former employees. See Briggs
Mfg. Co., 75 NLRB 569, 571 (1947); accord Cellular Sales of
Missouri, supra, slip op. at 1 fns. 3, 7; see also Frye Electric
Inc., 352 NLRB 245, 357 (2008); Redwood Empire, Inc., 296
NLRB 369, 391 (1989). Moreover, Section 102.9 of the
Board’s Rules & Regulations provides that a charge may be
filed by “any person” without regard to whether that person is a
Section 2(3) employee. See also Leslie’s Poolmart, Inc., 362
NLRB No. 184, slip op. at fn. 2 (2015) (charge filed by former
employee).
Respondent cites to Model A & Model T Car Corp., 259
NLRB 555 (1981), cited in Halstead Metal Products v. NLRB,
940 F.2d 66, 70 (4th Cir. 1991), for the proposition that an
employee who voluntarily resigned was not protected by the
Act.8 The situation here is not analogous. In Model A & Model
T Car Corp., the General Counsel alleged a violation of the Act
when an employer sent a letter to a former employee threaten-
ing to sue her for libel when after she resigned, she testified
before a state agency regarding her working conditions while
employed. The Board determined that the employer’s action of
a libel lawsuit against the former employee was not covered by
the Act since the employee was no longer employed by the
employer. In contrast, while employed by Respondent, Sauk
filed his charge regarding the Agreement with the Board. Even
though Sauk resigned on May 8, 2015, Sauk still retained
standing since the Act covers former employees. Thus, Sauk
clearly retains standing in this matter.
Respondent then alleges that the Federal Arbitration Act
(FAA), 9 U.S.C. §§ 1 et. seq., preempts the Board from prohib-
iting class or collective actions waivers in arbitration agree-
ments (R. Br. at 7–11). However, the Board clearly set forth its
reasons why the Act does not conflict with or undermine the
FAA. See Murphy Oil, supra, slip op. at 6; see also D. R. Hor-
ton, supra, slip op. at 10–16. First, the Board found that man-
datory arbitration agreements are unlawful under the FAA’s
savings clause because they extinguish substantive rights guar-

7 Respondent also argues that Sauk has no “standing” under Art. III
of the United States Constitution because he did not sign the Agree-
ment, and suffered no injury since he was not disciplined or terminated
for failing to sign the Agreement (R. Br. at 6 fn. 4). Sauk, on the con-
trary, has suffered an “injury.” Respondent forced Sauk to make a
choice between waiving his Section 7 rights or face adverse conse-
quences. Simply because Respondent did not follow through on its
consequences does not mean that Sauk suffered no harm. See On As-
signment Staffing Services, 362 NLRB No. 189, slip op. 5 (2015) (opt-
out provision of arbitration agreement forced employees to reveal their
sentiments concerning Sec. 7 activity).
8 Respondent also cites to other court cases including a Supreme
Court case for the proposition that since Sauk resigned he no longer has
the right to improve the working conditions of his former employer (R.
Br. at 6–7). As explained, any person can file a charge alleging unfair
labor practices as an employer. The relief the General Counsel and
Sauk seek is on behalf of all Respondent’s employees since the invoca-
tion of the Agreement.
anteed by Section 7. Second, Section 7 amounts to a “contrary
congressional command” overriding the FAA. Finally, the
Board found that the Norris-LaGuardia Act indicates that the
FAA should yield to accommodate Section 7 rights. The Nor-
ris-LaGuardia Act prevents enforcement of private agreements
that prohibit individuals from participating in lawsuits arising
out of labor disputes. In Murphy Oil, the Board stated, “Arbi-
tration [under the FAA] is a matter of consent, and not coer-
cion,” and a valid arbitration agreement may not require a party
to prospectively waive its “right to pursue statutory remedies.”
Murphy Oil, supra, slip op. 1–2. Applying the Board’s holding
recited above, in this instance the FAA does not preclude a
finding that Respondent’s waiver is invalid.
Furthermore, Respondent argues that AT & T Mobility v.
Concepcion, 131 S.Ct. 1740, 1746 (2011), a Supreme Court
decision issued after D. R. Horton, and other related case law,
support the argument that D. R. Horton must be rejected (R. Br.
at 3, 9–11, 14–15). Respondent argues that I am bound by
these Supreme Court cases (R. Br. at 3–4). Again, the Board in
Murphy Oil addressed those arguments, distinguishing that
Section 7 of the Act substantively guarantees employees the
right to engage in collective action, including collective legal
action, for mutual aid and protection concerning wages, hours,
and working conditions. See Murphy Oil, supra, slip op. at 7–9;
Chesapeake Energy Corp., supra, slip op. at 3. Further, as to
contrary circuit court decisions, the Board is not required to
acquiesce in adverse decisions of the Federal courts in subse-
quent proceedings not involving the same parties. Murphy Oil,
supra, slip op. 2 fn. 17, citing Enloe Medical Center v. NLRB,
433 F.3d 834, 838 (D.C. Cir. 2005).
Thereafter, Respondent alleges that Section 7 of the Act does
not include the right to pursue class action complaint, and does
not constitute protected concerted activity (R. Br. at 11–13).
However, as the majority reaffirmed in Murphy Oil, “the
NLRA does not create a right to class certification or the equiv-
alent, but as the D. R. Horton Board explained, it does create a
right to pursue joint, class, or collective claims if and as availa-
ble, without the interference of an employer-imposed restraint.”
Murphy Oil, supra, slip op. at 2 (citing D. R. Horton, supra, slip
op. at 10 fn. 24). Here, Respondent’s Agreement, as a condi-
tion of employment, precludes employees from pursuing claims
concertedly and thus “amounts to a prospective waiver of a
right guaranteed by the NLRA.” Murphy Oil, supra, slip op. at
9 (citing National Licorice Co. v. NLRB, 309 U.S. 350, 361
(1940), and J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944)).
This preclusion infringes on employees’ Section 7 rights, and
thus violates Section 8(a) (1) of the Act.
Respondent finally argues that “even if Section 7 confers a
right to class action procedures, Section 7 rights can be waived”
(R. Br. at 13–14). Again, the Board found in D. R. Horton that
“employers may not compel employees to waive their NLRA
right to collectively pursue litigation of employment claims in
all forums arbitral and judicial” as a condition of employment.
Supra, slip op. at 12 (emphasis in original). In Murphy Oil, the
Board stated, “That an employer may collectively bargain a
particular grievance-and-arbitration procedure with a union is
not to say that it may unilaterally impose any dispute-resolution
procedure it wishes on unrepresented employees, including a
CALIFORNIA COMMERCE CLUB, INC. 9
procedure that vitiates Section 7 rights, simple because it takes
the form of an agreement.” Supra, slip op. at 15. In addition,
“Federal labor law and policy . . . prohibit agreements in which
employees prospectively waive their right to engage in concert-
ed activity for mutual aid or protection.” On Assignment Staff-
ing Services, supra, slip op. at 8 (2015). The Board has con-
sistently struck down agreements that require employees to
prospectively waive their Section 7 rights. See Mandel Securi-
ty Bureau, 202 NLRB 117, 119 (1973) (Board found unlawful
an agreement requiring discharged employee to waive right to
“future charges and concerted activities” in exchange for rein-
statement); Ishikawa Gasket America, Inc., 337 NLRB 175,
175–176 (2001) (Board found settlement agreement overly
broad when employer offered monetary settlement in exchange
“for refraining from protected concerted activities for a 1-year
period”). Thus, Respondent may not require its employees to
waive their Section 7 rights.
Accordingly, I find that Respondent’s maintenance of the
Agreement, as a mandatory condition of employment, prohibit-
ed employees from bringing forth claims against Respondent in
a concerted manner which thereby violates Section 8(a)(1) of
the Act as set forth in D. R. Horton and Murphy Oil.
B. Respondent’s Confidentiality Provision
The complaint alleges, at paragraph 4(c), that Respondent
violated Section 8(a)(1) of the Act by requiring that any arbitra-
tion proceedings be confidential and prohibiting any discussion
of “any evidence or award/decision beyond the arbitration pro-
ceeding” thereby interfering with employees’ ability to discuss
topics covered by Section 7 of the Act which precludes em-
ployees from engaging in conduct protected by Section 7.9
The right of employees to discuss workplace matters, includ-
ing any evidence or arbitration award or decision, is a funda-
mental Section 7 right. Although the confidentiality provision
of the Agreement only prohibits discussion of evidence ob-
tained during the course of the arbitration proceeding, it still
explicitly limits employees’ right to discuss terms and condi-
tions of employment such as wages. It is well settled that any
work rule which prohibits employees from discussing their
working conditions such as wages is unlawful. Professional
Janitorial Services of Houston, Inc., 363 NLRB No. 35 (2015)
(finding confidentiality provision of employer’s arbitration
policy was unlawfully overbroad: “all statements and infor-
mation made or revealed during arbitration . . . except on a
‘need to know’ basis or as permitted or required by law), citing
Rio All-Suites Hotel & Casino, 362 NLRB No. 190, slip op. at
1–3 (2015) (finding unlawful rule that prohibited disclosure of
“any information about the Company which has not been
shared by the Company with the general public) ; Fresh & Easy
Neighborhood Market, 361 NLRB No. 8, slip op. at 2–3
(2014); Lily Transportation Corp., 362 NLRB No. 54, slip op
at fn. 2 (2015). In as much as workplace rules precluding em-
ployees to discuss grievances and disciplinary actions violate
the Act, the rule set forth by Respondent does the same. Dou-

9 The confidentiality provision of the Agreement states, “The arbitra-
tion shall be conducted on a confidential basis and there shall be no
disclosure of evidence or award/decision beyond the arbitration pro-
ceeding.”
ble Eagle Hotel & Casino, 341 NLRB 112, 116–117 (2004),
enfd. 414 F.3d 1249 (10th Cir. 2005), cert. denied 546 U.S.
1170 (2006) (finding unlawful handbook rule that prohibited
disclosure of “confidential information,” including “griev-
ance/complaint information”). Thus, the confidentiality provi-
sion in the Agreement violates Section 8(a)(1) of the Act.
Respondent’s Arguments
Respondent argues that the Federal Arbitration Act requires
enforcement of the arbitration terms, including any confidenti-
ality provisions. Respondent states, “Confidentiality ensures
that parties save resources and reputation costs by arbitra-
tion disputes outside the public purview” (R. Br at 4, 18–21,
emphasis in original). Respondent also argues that the confi-
dentiality provision of the Agreement does not “prevent an
employee from discussing anything else related to their em-
ployment, including the very events or circumstances that give
rise to arbitration proceedings” (R. Br. at 17, emphasis in orig-
inal). In other words, employees may still discuss terms and
conditions of employment. I disagree with all Respondent’s
arguments. Respondent’s confidentiality language is broadly
written with language that encompasses all aspects of the dis-
pute. These “very events or circumstances that give rise to
arbitration proceedings” could be “any evidence” as precluded
by the confidentiality provision. Nothing in the provision sug-
gests that the prohibition is as limiting as Respondent suggests.
“[E]mployees should not have to decide at their own peril what
information is not lawfully subject to such a prohibition.”
Hyundai American Shipping Agency, Inc., 357 NLRB 860, 871
(2011).
Respondent claims that its confidentiality provision ensures
that employees do not discuss “confidential business records or
information protected by the right of privacy produced in the
course of discovery” (R. Br. at 17). Respondent cites to two
Board decisions which found lawful employers’ handbook
rules. In Lafayette Park Hotel, 326 NLRB 824, 826 (1998),
enfd. 203 F.3d 52 (D.C. Cir. 1999), the Board found lawful an
employer rule setting forth unacceptable conduct as divulging
private employer information to employees and other individu-
als or entities not authorized to receive such information. The
employer argued that it had the right to keep its business rec-
ords confidential. With regard to the factual circumstances in
Lafayette Park Hotel, the Board reasoned that a reasonable
employee would know that the rule would not prohibit discus-
sion of wages and working conditions among employees or a
union. In K-Mart, 330 NLRB 263, 263 (1999), the Board, cit-
ing Lafayette Park Hotel, found the employer’s confidentiality
provision in its handbook lawful. The provision stated that
company business and documents are confidential, and disclo-
sure of such information is prohibited.
The above cases may be distinguished from the facts pre-
sented here. The above rules occurred in employee handbooks
while the instant confidentiality provision occurred in the
Agreement which requires mandatory arbitration while prohib-
iting class or collective action. Furthermore, the confidentiality
provision in the Agreement does not specify what may not be
shared with others such as confidential business records and
what may be shared with others such as the “very events” lead-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing to the arbitration proceeding as Respondent suggests. As
discussed above, the Board recently determined that a similar
confidentiality provision in an arbitration agreement violated
the Act as unlawfully overbroad. See Professional Janitorial
Services of Houston, supra, slip op. at 1. Contrary to Respond-
ent’s assertions, the confidentiality provision is unlawfully
overbroad as it prohibits the discussion of terms and conditions
of employment. See also Rio All-Suites Hotel & Casino, supra,
slip op. at 1–3 (2015) (finding unlawful rule that prohibited
disclosure of any information about the Company which has
not been shared by the Company with the general public).
Accordingly, I find that Respondent’s confidentially provi-
sion within the Agreement violates the Act. In doing so, I find
that Respondent restricted the exercise of employees’ Section 7
rights in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. By requiring employees to sign and maintain since Febru-
ary 2015, an Arbitration Agreement and Mandatory Dispute
Resolution Process under which employees are compelled, as a
condition of employment, to waive the right to maintain class
or collective actions in all forums, whether arbitral or judicial,
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act, and has violated Section 8(a)(1) of the Act.
3. By requiring that any arbitration proceedings be confiden-
tial and prohibiting any discussion of any evidence or
award/decision beyond the arbitration proceeding, Respondent
violated Section 8(a)(1) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist there from
and to take certain affirmative action designed to effectuate the
policies of the Act.
As I have concluded that the Agreement is unlawful, the rec-
ommended Order requires that Respondent revise or rescind it
in all its forms to make clear to employees that the Agreement
does not constitute a waiver of their right to maintain employ-
ment–related joint, class, or collective actions in all forums.
Respondent shall notify all current and former employees since
February 2015, who were required to sign the Agreement in
any form that it has been rescinded or revised, and if revised,
provide them a copy of the revised Agreement.
In addition, any revised Agreement shall inform employees
that the arbitration proceedings are not confidential and em-
ployees are not prohibited from discussing any evidence or
award/decision beyond the arbitration proceeding.
Respondent shall post a notice in all locations where the
Agreement, or any portion of it requiring all and/or enumerated
employment-related disputes to be submitted to individual arbi-
tration, was in effect. See, e.g., U-Haul of California, supra, fn.
2; D. R. Horton, supra, slip op. at 17; Murphy Oil, supra, slip
op. at 22. Respondent is also ordered to distribute appropriate
remedial notices to its employees electronically, such as by
email, posting on an intranet or internet site, and/or other ap-
propriate electronic means, if it customarily communicates with
its employees by such means. J. Picini Flooring, 356 NLRB
11 (2010).
On these findings of fact and conclusions of law and the en-
tire record, I issue the following recommended10
ORDER
Respondent, California Commerce Club, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that requires
employees, as a condition of employment, to waive the right to
maintain class or collective actions in all forums, whether arbi-
tral or judicial.
(b) Maintaining a rule that prohibits the discussion of terms
and conditions of employment by prohibiting employees from
discussing matters regarding an arbitral proceeding.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the Agreement in all its forms, or revise it in all
its forms to make clear that the Agreement does not constitute a
waiver of employees’ right to initiate or maintain employment-
related joint, class, or collective actions in all forums, and that
it does not prohibit employees’ discussion of terms and condi-
tions of employment by prohibiting employees from discussing
matters regarding an arbitral proceeding.
(b) Notify all current and former employees since February
2015 who were required to sign the Agreement of the rescind-
ed, or revised, arbitration provision, to include providing them
with a copy of any revised provisions, acknowledgment forms,
or other related documents, or specific notification that the
arbitration provision has been rescinded.
(c) Within 14 days after service by the Region, post at its fa-
cility in Commerce, California, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including 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 Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,

10 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.
11 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.”
CALIFORNIA COMMERCE CLUB, INC. 11
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondent at any time since February 1,
2015.
(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
Respondent has taken to comply.
Dated, Washington, D.C. January 6, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain a mandatory arbitration agreement
that requires employees, as a condition of employment, to
waive the right to maintain class or collective actions in all
forums, whether arbitral or judicial.
WE WILL NOT maintain a rule that prohibits employees from
discussion of terms and conditions of employment by prohibit-
ing employees from discussing any evidence or award/decision
beyond the arbitration proceeding.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the requirement that employees enter into
or sign the arbitration provision that is currently in effect, as a
condition of employment, and expunge all such provisions at
all of Respondent’s facilities where Respondent has required
employees to sign such provisions.
WE WILL rescind the Arbitration Agreement and Mandatory
Dispute Resolution Process (the Agreement) in all its forms, or
revise it in all its forms to make clear that the Agreement does
not constitute a waiver of your right to initiate or maintain em-
ployment-related joint, class, or collective actions in all forums,
and that it does not prohibit your discussion of terms and condi-
tions of employment by prohibiting you from discussing mat-
ters regarding an arbitral proceeding.
WE WILL notify all current and former employees who were
required to sign or otherwise become bound to the Agreement
in all its forms that the Agreement has been rescinded or re-
vised and, if revised, WE WILL provide them a copy of the re-
vised policy.
CALIFORNIA COMMERCE CLUB, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21–CA–149699 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.