Century Fast Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 20, 2016

363 NLRB No. 97 (N.L.R.B. 2016)

363 NLRB No. 97
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.
Century Fast Foods, Inc. and William Lujan. Case
31–CA–116102
January 20, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On April 24, 2015, Administrative Law Judge Ariel L.
Sotolongo issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions,1
and to adopt the recommended Order, as modified and
set forth in full below.2
The judge found, applying the Board’s decisions in D.
R. Horton, 357 NLRB No. 184 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy
Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied __
F.3d __ (5th Cir. 2015), that the Respondent violated
Section 8(a)(1) of the Act by maintaining and enforcing
an Agreement to Arbitrate (Agreement) that requires
employees, as a condition of employment, to waive their
rights to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial.3 The judge also found, relying on D. R. Horton

1 We shall amend the judge’s conclusions of law to reflect that the
Respondent only maintained, but did not enforce, the provisions in the
Agreement that prohibit employees from accessing the Board’s pro-
cesses and that require employees to keep arbitration proceedings con-
fidential.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language for the violation found, and we
shall substitute new notices to conform to the Order as modified.
3 Our dissenting colleague observes that the Act does not “dictate”
any particular procedures for the litigation of non-NLRA claims, and
“creates no substantive right for employees to insist on class-type
treatment” of such claims. This is all surely correct, as the Board has
previously explained in Murphy Oil, supra, 361 NLRB No. 72, slip op.
at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2 and fn. 2
(2015). But what our colleague ignores is that the Act “does create a
right to pursue joint, class, or collective claims if and as available,
without the interference of an employer-imposed restraint.” Murphy
Oil, supra, slip op. at 2 (emphasis in original). The Respondent’s
Agreement is just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
Agreement unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil, 361
NLRB No. 72, slip op. at 18; Bristol Farms, 363 NLRB No. 45, slip op.
and U-Haul of California, 347 NLRB 375, 377-378
(2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007), that
maintaining the Agreement violated Section 8(a)(1) be-
cause employees reasonably would believe that it bars or
restricts their right to file unfair labor practice charges
with the Board.
Based on the judge’s application of D. R. Horton and
Murphy Oil, we affirm the judge’s findings and conclu-
sions,4 and adopt the recommended Order as modified
and set forth in full below.

at 2. 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 engage in concerted legal activity. See Murphy Oil, slip op.
at 17–18; Bristol Farms, slip op. at 2.
Finally, we reject our dissenting colleague’s view that the Respond-
ent’s motion to compel arbitration was protected by the First Amend-
ment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731 (1983), the Court identified two situations in which a lawsuit
enjoys no such protection: where the action is beyond a State court’s
jurisdiction because of Federal preemption, and where “a suit . . . has
an objective that is illegal under federal law.” 461 U.S. at 737 fn. 5.
Thus, the Board may properly restrain litigation efforts such as the
Respondent’s motion to compel arbitration that have the illegal objec-
tive of limiting employees’ Sec. 7 rights and enforcing an unlawful
contractual provision, even if the litigation was otherwise meritorious
or reasonable. See Murphy Oil, supra, slip op. at 20–21; Convergys
Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
4 Although the Agreement does not explicitly restrict class or collec-
tive employment claims, we find, contrary to our dissenting colleague,
that employees would reasonably read it to restrict their Sec. 7 right to
engage in collective action because it requires employees to use “confi-
dential” binding arbitration. See Lutheran Heritage Village–Livonia,
343 NLRB 646, 647 (2004). This requirement precludes employees
from discussing arbitral claims with their coworkers or learning that
coworkers are pursuing work-related claims in arbitration, effectively
thwarting their ability to pursue their claims on a class or collective
basis. We also find that the Agreement was applied to restrict Sec. 7
rights under the third prong of Lutheran Heritage. The Respondent
clearly interpreted and applied the Agreement to bar class or collective
action as it moved to compel arbitration on an individual rather than a
class or collective basis. See Countrywide Financial Corp., 362 NLRB
No. 165, slip op. at 3–5 (2015); Leslie’s Poolmart, Inc., 362 NLRB No.
184, slip op. at 1 fn. 3 (2015); Philmar Care, LLC, 363 NLRB No. 57,
slip op. at 1 (2015).
The Respondent contends that its arbitration agreement is voluntary
and therefore does not fall within the proscriptions of Murphy Oil and
D. R. Horton, supra, which involved agreements that were imposed on
employees as a condition of employment. See D. R. Horton, slip op. at
13 fn. 28. We agree with the judge that the Agreement was imposed as
a condition of employment. Even if the agreement were voluntary,
however, an arbitration agreement that precludes collective action in all
forums is unlawful because it requires employees to prospectively
waive their Sec. 7 right to engage in concerted activity. See On As-
signment Staffing Services, 362 NLRB No. 189, slip op. at 1, 5–8
(2015); Bristol Farms, 363 NLRB No. 45, slip op. at 1–2 (2015). For
this reason, we find it unnecessary to rely on the judge’s findings that
“at the time of signing, Lujan was under 18 years of age” and that “the
language of the [Agreement] was in very small print, barely legible.”
For the reasons stated by the judge, we agree that employees reason-
ably would construe the Agreement to restrict their access to the
Board’s processes. U-Haul Co. of California, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
AMENDED CONCLUSIONS OF LAW
1. Substitute the following as Conclusion of Law 4.
“4. Respondent violated Section 8(a)(1) of the Act by
maintaining a mandatory arbitration agreement that em-
ployees would reasonably believe bars or restricts the
right to file charges with the National Labor Relations
Board.”
2. Substitute the following as Conclusion of Law 5.
“5. Respondent violated Section 8(a)(1) of the Act by
maintaining a mandatory arbitration agreement that re-
quires employees to keep any arbitration confidential.”
ORDER
The National Labor Relations Board orders that the
Respondent, Century Fast Foods, Inc., Chatsworth, Cali-
fornia, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that
employees reasonably would believe bars or restricts the
right to file charges with the National Labor Relations
Board.
(b) Maintaining or enforcing a mandatory arbitration
agreement that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(c) Maintaining a mandatory arbitration agreement that
requires employees to keep confidential any arbitration
proceedings undertaken as the result of such agreement.
(d) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Rescind the mandatory arbitration agreement in all
of its forms, or revise it in all of its forms to make clear

The Respondent argues that its Agreement includes an exemption al-
lowing employees to file charges with administrative agencies and thus
does not, as in D. R. Horton and Murphy Oil, unlawfully prohibit them
from collectively pursuing litigation of employment claims in all fo-
rums. In support of its argument, the Respondent cites Owen v. Bristol
Care, Inc., 702 F.3d 1050, 1053–1054 (8th Cir. 2013), in which the
court stated, in dicta, that the arbitration agreement there did not bar all
concerted employee activity in pursuit of employment claims because
the agreement permitted employees to file charges with administrative
agencies that could file suit on behalf of a class of employees. We
reject this argument for the reasons stated in SolarCity Corp., 363
NLRB No. 83 (2015).
We also adopt the judge’s finding that the confidentiality provision
of the arbitration agreement independently violates Sec. 8(a)(1). See
Professional Janitorial Services of Houston, 363 NLRB No. 35, slip op.
at 1 fn. 3 (2015); Double Eagle Hotel & Casino, 341 NLRB 112, 115
(2004), enfd. 414 F. 3d 1249 (10th Cir. 2005), cert. denied 546 U.S.
1170 (2006). We agree with the judge that the Respondent failed to
show a legitimate and substantial business justification that outweighs
the employees’ Sec. 7 rights.
to employees that the arbitration agreement does not con-
stitute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums,
that it does not bar or restrict employees’ right to file
charges with the National Labor Relations Board, and
that it does not require employees to keep confidential
any arbitration proceedings undertaken as the result of
such agreement.
(b) Notify all applicants and current and former em-
ployees who were required to sign or otherwise become
bound to the unlawful arbitration agreement in any form
that it has been rescinded or revised and, if revised, pro-
vide them a copy of the revised agreement.
(c) Notify the Superior Court of the State of California
in Case No. BC513815 that it has rescinded or revised
the mandatory arbitration agreement upon which it based
its motion to stay William Lujan’s class lawsuit and to
compel individual arbitration of his claims, and inform
the court that it no longer opposes the lawsuit on the ba-
sis of the arbitration agreement.
(d) In the manner set forth in the remedy section of the
judge’s decision, reimburse William Lujan and any other
plaintiffs in Case No. BC513815 for any reasonable at-
torneys’ fees and litigation expenses that they may have
incurred in opposing the Respondent’s motion to stay the
class lawsuit and compel individual arbitration.
(e) Within 14 days after service by the Region, post at
its Chatsworth, California facility copies of the attached
notice marked “Appendix A,” and at all other facilities
where the unlawful arbitration agreement is or has been
in effect, copies of the attached notice marked “Appendix
B.”5 Copies of the notices, 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, the notices
shall be distributed electronically, such as by email, post-
ing on an intranet or 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 notic-
es are not altered, defaced, or covered by any other mate-
rial. 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

5 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.”
CENTURY FAST FOODS, INC. 3
copy of the notice marked “Appendix A” to all current
employees and former employees employed by the Re-
spondent at any time since April 30, 2013, and any em-
ployees against whom the Respondent had enforced its
mandatory arbitration agreement since October 24, 2013.
(f) 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. January 20, 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
Agreement to Arbitrate (Agreement) violates Section
8(a)(1) of the National Labor Relations Act (the Act or
NLRA) because the Respondent has applied it to require
individual arbitration of non-NLRA employment claims.1
Charging Party William Lujan signed the Agreement,
and later he filed a class action lawsuit against the Re-
spondent in State court alleging violations under the Cal-
ifornia Labor Code and the California Business and Pro-
fessions Code. In reliance on the Agreement, the Re-
spondent filed a Notice of Motion and Motion to Compel
Arbitration on an Individual Basis, Strike Class Allega-
tions, and Stay the Proceedings Pending Arbitration (Mo-
tion to Compel).2 My colleagues find that the Respond-
ent thereby unlawfully enforced its Agreement. I re-
spectfully dissent from these findings for the reasons
explained in my partial dissenting opinion in Murphy Oil
USA, Inc.3

1 The Agreement requires that non-NLRA employment claims be re-
solved through arbitration, but it does not expressly prohibit class or
collective arbitration.
2 The court struck the class allegations and stayed the litigation
pending completion of the arbitration of Lujan’s individual claim.
3 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was recently denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, No. 14-60800, 2015 WL 6457613 (5th Cir. 2015).
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.4 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-
just” grievances “at any time.”5 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;6 (ii) a class-waiver agreement per-

4 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting). Here, Lujan filed the lawsuit
by himself, and there is no evidence that he ever sought the support of
any other employee. Accordingly, the record fails to establish that
Lujan engaged in protected concerted activity. See Beyoglu, above
(Member Miscimarra, dissenting) (finding that employee’s individual
act of filing a collective action was not concerted activity).
5 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).
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)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).8 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.9
Because I believe the Respondent’s Agreement was
lawful under the NLRA, I would find it was similarly
lawful for the Respondent to file a motion in State court
seeking to enforce the Agreement.10 It is relevant that

(“[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 twice denied enforcement of Board orders in-
validating 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 overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., No. 14-CV-5882 (VEC), 2015 WL 1433219 (S.D.N.Y.
Mar. 27, 2015); Nanavati v. Adecco USA, Inc., No. 14-cv-04145-BLF,
2015 WL 1738152 (N.D. Cal. Apr. 13, 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
of prior determination that class waiver in arbitration agreement violat-
ed NLRA).
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 Because I disagree with the Board’s decisions in Murphy Oil and
D. R. Horton, Inc., 357 NLRB No. 184 (2012), enfd. denied in pert.
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 unnecessary to reach
whether such agreements should independently be deemed lawful to the
extent they “leave[] open a judicial forum for class and collective
claims,” D. R. Horton, 357 NLRB No. 184, slip op. at 12, by permitting
the filing of complaints with administrative agencies that, in turn, may
file class- or collective-action lawsuits on employees’ behalf. See
Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013). For the
same reasons, I also find it unnecessary to address the Respondent’s
argument that the Agreement, which was part of a 2-page employment
application, is voluntary under state law.
10 The Agreement was silent as to whether arbitration may be con-
ducted on a class or collective basis. In finding the Respondent’s Mo-
tion to Compel unlawful, my colleagues rely on Philmar Care, LLC,
363 NLRB No. 57 (2015), Countrywide Financial Corp., 362 NLRB
No. 165 (2015), and Leslie’s Poolmart, Inc., 362 NLRB No. 184
(2015). In these cases, a Board majority decided that the employer
the State court that had jurisdiction over the non-NLRA
claims granted the Respondent’s motion to compel arbi-
tration. That the Respondent’s motion was reasonably
based is also supported by court decisions that have en-
forced similar agreements.11 As the Fifth Circuit recently
observed after rejecting (for the second time) the Board’s
position regarding the legality of class-waiver agree-
ments: “[I]t is a bit bold for [the Board] to hold that an
employer who followed the reasoning of our D.R. Horton
decision had no basis in fact or law or an ‘illegal objec-
tive’ in doing so. The Board might want to strike a more
respectful balance between its views and those of circuit
courts reviewing its orders.”12 I also believe that any
Board finding of a violation based on the Respondent’s
meritorious State court motion to compel arbitration
would improperly risk infringing on the Respondent’s
rights under the First Amendment’s Petition Clause. See
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731
(1983); BE & K Construction Co. v. NLRB, 536 U.S. 516
(2002); see also my partial dissent in Murphy Oil, above,
361 NLRB No. 72, slip op. at 33–35. Finally, for similar
reasons, I believe the Board cannot properly require the
Respondent to reimburse the Charging Party and any
other plaintiffs in Case No. BC513815 for their attor-
neys’ fees in the circumstances presented here. Murphy
Oil, above, 361 NLRB No. 72, slip op. at 35.

violated the Act by moving to compel individual arbitration based on
an arbitration agreement that, like the Respondent’s, was silent regard-
ing the arbitrability of class and collective claims. For the reasons
stated in former Member Johnson’s dissent in Countrywide Financial,
however, above, slip op. at 8–10, the Board’s decisions in those cases
are in conflict with the FAA and Supreme Court precedent construing
that statute. The Court has held that a “party may not be compelled
under the FAA to submit to class arbitration unless there is a contractu-
al basis for concluding that the party agreed to do so.” Stolt-Nielsen
S.A. v. Feeds International Corp., 559 U.S. 662, 684–685 (2010) (em-
phasis in original). Obviously, where an arbitration agreement is silent
regarding class arbitration, there is no such contractual basis. Thus,
Respondent’s motion to compel individual arbitration was “well-
founded in the FAA as authoritatively interpreted by the Supreme
Court.” Philmar Care, above, slip op. at 4 fn. 11 (Member Miscimarra,
dissenting); see also Countrywide Financial, above, slip op. at 9
(Member Johnson, dissenting).
11 See, e.g., Murphy Oil USA, Inc. v. NLRB, above; Johnmohammadi
v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton, Inc. v.
NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir.
2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
12 Murphy Oil USA, Inc. v. NLRB, above, at fn. 6.
CENTURY FAST FOODS, INC. 5
Accordingly, as to these issues,13 I respectfully dissent.

13 I concur with my colleagues’ finding that the Agreement unlaw-
fully interferes with protected concerted activity in violation of Sec.
8(a)(1) based on its requirement that employees “use confidential bind-
ing arbitration” (emphasis added) to resolve covered disputes. Here, I
rely on the fact that a central aspect of protected concerted activity
under the NLRA involves discussions and coordination between or
among two or more employees regarding employment-related disputes,
including those that may be resolved in arbitration, see fn. 4, above;
such discussions and coordination would appear to be precluded by
“confidential” arbitration; and the record reveals no reasonable limita-
tions on or justifications for a blanket requirement of confidentiality.
Cf. Banner Estrella Medical Center, 362 NLRB No. 137, slip op. at
13–19 (Member Miscimarra, dissenting in part) (describing require-
ment that the Board strike a proper balance between asserted business
justifications and potential impact on NLRA rights).
Additionally, I agree with my colleagues that the Agreement unlaw-
fully interferes with the filing of charges with the Board, although I
disagree with their rationale. My colleagues find that employees would
reasonably construe the Agreement to restrict their access to the
Board’s processes “[f]or the reasons stated by the judge,” and the judge
principally relied on the fact that the Agreement broadly requires that
“any claims” between the employee and the Respondent be submitted
to binding arbitration. Contrary to the judge and my colleagues, I be-
lieve that parties may lawfully agree to submit NLRA claims to arbitra-
tion, provided their agreement does not otherwise interfere with NLRB
charge-filing. See The Rose Group d/b/a Applebee’s, 363 NLRB No.
75, slip op. at 3–5 (2015) (Member Miscimarra, dissenting in part); see
also GameStop Corp., 363 NLRB No. 89, slip op. at 4–7 (2015) (Mem-
ber Miscimarra, concurring in part and dissenting in part). Here, how-
ever, the Agreement requires the employee “first to present any . . .
claims in full written detail to TACO BELL,” “next, to complete any
TACO BELL internal review process,” and “finally, to complete any
external administrative remedy (such as with the Equal Employment
Opportunity Commission).” The first two provisions appear to restrict
the right to file Board charges unless and until employees “first” pre-
sent the claim “in full written detail” to the Respondent and “next”
complete the Respondent’s internal review process. Such a restriction,
to the extent it operates as a prerequisite for Board charge-filing, vio-
lates Sec. 8(a)(1). The Agreement does provide for employees “to
complete any external administrative remedy,” and a reference to an
“external administrative remedy” could encompass NLRB remedies.
However, as noted above, the Agreement appears to interpose mandato-
ry prerequisites before the filing of an “administrative” charge with an
“external” agency like the NLRB. Moreover, the requirement that
employees “complete any external remedy” does not fairly describe the
filing of an NLRB charge because, under the NLRB’s procedures,
filing a charge does not “complete” a potential Board remedy. Rather,
charge-filing represents the mere commencement of NLRB proceed-
ings. The filing of a charge is followed by a lengthy, multiple-step
progression, including an investigation, the potential issuance of a
complaint, a possible hearing before an administrative law judge, the
filing with the Board of potential exceptions to the judge’s decision and
recommended order, and potential compliance proceedings (among
other things). See Brinker International Payroll Company L.P., 363
NLRB No. 54, slip op. at 4 fn. 10 (2015) (Member Miscimarra, concur-
ring in part and dissenting in part). Accordingly, for these reasons, I
concur with my colleagues’ conclusion that the Agreement violates
Sec. 8(a)(1) by interfering with Board charge-filing. See U-Haul Co. of
California, 347 NLRB 375, 377 (2006), enfd. mem. 255 Fed.Appx. 527
(D.C. Cir. 2007).
Dated, Washington, D.C. January 20, 2016
______________________________________
Philip A. Miscimarra Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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 agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain or enforce a mandatory arbitra-
tion agreement 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 maintain a mandatory arbitration agree-
ment that requires employees to keep confidential any
arbitration proceedings undertaken as the 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 mandatory arbitration agreement
in all of its forms, or revise it in all of its forms to make
clear that the arbitration agreement does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board, and that it does not require
you to keep confidential any arbitration proceedings un-
dertaken as the result of such agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL notify all applicants and current and former
employees who were required to sign or otherwise be-
come bound to the mandatory arbitration agreement in all
of its forms that the arbitration agreement has been re-
scinded or revised and, if revised, WE WILL provide them
a copy of the revised agreement.
WE WILL notify the court in which William Lujan filed
his class lawsuit that we have rescinded or revised the
mandatory arbitration agreement upon which we based
our motion to stay his class lawsuit and compel individu-
al arbitration, and WE WILL inform the court that we no
longer oppose William Lujan’s class lawsuit on the basis
of that agreement.
WE WILL reimburse William Lujan and any other
plaintiffs for any reasonable attorneys’ fees and litigation
expenses that they may have incurred in opposing our
motion to dismiss the class lawsuit and compel individu-
al arbitration.
CENTURY FAST FOODS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-116102 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 agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain or enforce a mandatory arbitra-
tion agreement 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 maintain a mandatory arbitration agree-
ment that requires employees to keep confidential any
arbitration proceedings undertaken as the 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 mandatory arbitration agreement
in all of its forms, or revise it in all of its forms to make
clear that the arbitration agreement does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board, and that it does not require
you to keep confidential any arbitration proceedings un-
dertaken as the result of such agreement.
WE WILL notify all applicants and current and former
employees who were required to sign or otherwise be-
come bound to the mandatory arbitration agreement in all
of its forms that the arbitration agreement has been re-
scinded or revised and, if revised, WE WILL provide them
a copy of the revised agreement.
CENTURY FAST FOODS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-116102 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.
CENTURY FAST FOODS, INC. 7
Rudy L. Fong Sandoval, Esq., for the General Counsel.
Lonnie D. Giamela, Esq. (Fisher & Phillips, LLP), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. This is
another case in a steady stream of cases, by now numerous, that
raise issues related to the Board’s decisions in D. R. Horton,
Inc., 357 NLRB No. 184 (2012), enf. 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), and more re-
cently, Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), where
the Board reaffirmed and further elaborated on the principles
announced in D. R. Horton. This case is before me based on a
Joint Motion to Transfer Proceedings to the Division of Judges
and Stipulation of Issues Presented (Joint Motion), which con-
tained a stipulated record attaching certain documents, refer-
enced in the Stipulation of Facts that was also part of the Joint
Motion, as set forth below.1
FINDINGS OF FACT
In their Stipulation of Facts (SOF), which is part of the Joint
Motion, the parties agreed to the following facts:
1. (a) The charge in this proceeding was filed by the Charg-
ing Party on October 30, 2013, and a copy was served by regu-
lar mail on Respondent on November 5, 2013.
(b) The first amended charge in this proceeding was filed by
the Charging Party on January 28, 2014, and a copy was served
by regular mail on Respondent on February 3, 2014.
2. (a) At all material times, Respondent has been a corpora-
tion with an office and place of business in Los Angeles and a
facility in Chatsworth, California, where Respondent has been
engaged in operating public restaurants selling food and bever-
ages.
(b) In conducting its operations during the 12-month period
ending November 25, 2013, Respondent purchased and re-
ceived at its Chatsworth, California facility goods and services
valued in excess of $5,000 directly from points outside the
State of California.
(c) In conducting its operations during the 12-month period
ending November 25, 2013, Respondent derived gross revenues
in excess of $500,000.
3. At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.2
4. Charging Party William A. Lujan (Lujan) is a former em-

1 I granted the initial joint motion on December 19, 2014. Thereaf-
ter, on March 26, 2015, the parties submitted a corrected joint motion,
which included some missing pages from the attached documents in the
original Joint Motion. I granted the corrected joint motion on the same
day.
2 In light of the factual stipulation contained in paragraph 2(a)
through (c) above, I concur with the stipulation contained in paragraph
3, and conclude that at all times material herein, the Respondent has
been an employer engaged in commerce within the meaning of Sec.
2(2), (6), and (7) of the Act.
ployee of Respondent. Lujan worked for Respondent from
about November 2, 2012 through February 13, 2013.
5. In seeking employment with Respondent, Lujan filled
out, signed and dated, an application for employment on Octo-
ber 22, 2012, attached hereto as Exhibit A [of the Joint Motion]
(employment application). The employment application does
not have an “opt out” provision.
6. (a) The employment application signed by Lujan is stand-
ardized and contains a section entitled “Agreement to Arbi-
trate,” (arbitration provision) which reads:
Agreement to Arbitrate. Because of the delay and expense of
the court system, TACO BELL and I agree to use confidential
binding arbitration, instead of going to court, for any claims
that arise between me and Taco Bell, its related companies,
and/or their current or former employees. Without limitation,
such claims would include any concerning compensation,
employment including, but not limited to, any claims con-
cerning sexual harassment or discrimination, or termination of
employment. Before arbitration I agree: (i) first to present any
such claims in full written detail to TACO BELL; (ii) next, to
complete any TACO BELL internal review process; and (iii)
finally, to complete any external administrative remedy (such
as with the Equal Employment Opportunity Commission). In
any arbitration, the then prevailing employment dispute reso-
lution rules of the American Arbitration will apply, except
that TACO BELL will pay the arbitrator’s fees, and TACO
BELL will pay that portion of the arbitration filing fee in ex-
cess of the similar court filing fee had I gone to court.
(b) Multiple former and current employees of Respondent
have executed the arbitration provision given to Lujan on Octo-
ber 22, 2012, as part of Respondent’s hiring process.
7. As part of Respondent’s hiring process, from October 22,
2012 through February 12, 2013, Respondent required all job
applicants, including Lujan, to sign and date the employment
application described above, in paragraph 5.
8. It is Respondent’s position that agreement to abide by the
arbitration provision contained in employment application was
not a required condition of employment for an applicant to be
hired by Respondent.
9. It is General Counsel’s position that agreement to abide
by the arbitration provision contained in the employment appli-
cation was a required condition of employment for an applicant
to be hired by Respondent.
10. About July 2, 2013, Charging Party Lujan filed a class
action complaint in the Superior Court of the State of Califor-
nia, County of Los Angeles, Case No. BC513815 (Superi-
or Court), attached hereto as Exhibit B [of the Joint Motion],
alleging wage-and-hour and other violations under the Califor-
nia Labor Code and the California Business and Professions
Code.
11. About October 24, 2013, Respondent filed a Notice of
Motion and Motion to Compel Arbitration on an Individual
Basis, Strike the Class Allegations and to Stay the Proceedings
Pending Arbitration, filed concurrently with Notice of Motion;
Declaration of Sheila Cook; Declaration of Lonnie D. Giamela,
collectively attached hereto as Exhibit C [of the Joint Motion],
(Motion to Compel) with the Superior Court.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
12. About January 6, 2014, Charging Party Lujan filed an
opposition to Respondent’s Motion to Compel, filed concur-
rently with Lujan’s declaration, attached hereto as Exhibit D [of
the Joint Motion]. As noted by Lujan in Lujan’s Declaration in
support of the opposition, at paragraph 4: “During my applica-
tion process, I was given a job application form. I was told by
Jesse Suarez, the store manager that I needed to fill out the
application, sign and date it. I was not given an opportunity to
negotiate the employment application’s terms or strike any
terms in the application—it was a take-it-or-leave-it form.”
Nowhere in Lujan’s declaration does it indicate that any agent
of Respondent indicated that the application was a “take it or
leave it form.”
13. Lujan was under the age of eighteen at the time he
signed the employment application containing the arbitration
provision. As noted in Lujan’s opposition to Respondent’s
Motion to Compel, noted above and attached hereto as Exhibit
D [of the Joint Motion], Lujan’s legal counsel took the position
in those proceedings that Lujan was protected by the “infancy
doctrine” which permitted him to disaffirm the arbitration pro-
vision.
14. On March 10, 2014, the Superior Court granted Re-
spondent’s Motion to Compel, attached hereto as Exhibit F [of
the Joint Motion], severing from the arbitration provision the
three-part internal review procedure as well as the “confiden-
tial” nature of the arbitration provision. Charging Party ap-
pealed the matter to the California Court of Appeals.
15. Respondent and Charging Party, on August 22, 2014,
came to a resolution of all claims to the underlying class action
complaint, including resolution of the Motion to Compel and
appeal noted herein. The settlement did not resolve any class
allegations as the class allegations were dismissed by the civil
court. Thereafter, the Regional Director of the NLRB Region
31, did not approve Charging Party’s withdrawal request of the
underlying unfair labor practice matter, because the Regional
Director determined settlement of the underlying civil class
action complaint does not remedy the Section 8(a)(1) allega-
tions in the instant complaint.
Discussion and Analysis
The parties, in the Joint Motion, also stipulated that the is-
sues presented in this case are as follows:
ISSUE 1(a): Did Respondent violate Section 8(a)(1) by
maintaining and enforcing its mandatory arbitration provi-
sion, which it required employees to sign as a condition of
employment, as alleged in the instant Complaint, by filing
its October 24, 2013 Motion to Compel Charging Party
Lujan to individually arbitrate class wage and hour
claims?
ISSUE 1(b): Did Respondent violate Section 8(a)(1)
by maintaining and enforcing its mandatory arbitration
provision, as alleged in the instant Complaint, by filing its
October 24, 2013 Motion to Compel Charging Party Lujan
to individually arbitrate class wage and hour claims, even
if employees were not required to sign the arbitration pro-
vision as a condition of employment.
ISSUE 2: Whether Respondent’s mandatory arbitration
provision, subject of Respondent’s October 24, 2013 Mo-
tion to Compel Charging Party Lujan to individually arbi-
trate class wage and hour claims, violates Section 8(a)(1)
of the Act by restricting access to the Board and its pro-
cesses, as alleged in the instant Complaint.
ISSUE 3: Whether Respondent’s mandatory arbitration
provision, executed by Charging Party Lujan, subject of
Respondent’s October 24, 2013 Motion to Compel Arbi-
tration on an Individual Basis, violates Section 8(a)(1) of
the Act by requiring that employees use “confidential arbi-
tration” thereby prohibiting employees from discussing
their terms and conditions of employment, as alleged in
the instant Complaint.
1. Whether the “Agreement To Arbitrate” is a condition
of employment
In order to decide the above-stipulated issues, however, a
more basic and fundamental issue must first be decided, the
answer to which is the key to decide the rest: Did Lujan enter
into the above-described Agreement to Arbitrate (ATA) volun-
tarily or was agreeing to the ATA a condition of hire and thus a
term and condition of employment? Respondent avers that
Lujan agreed to enter the ATA voluntarily, whereas the General
Counsel argues that it was a condition of employment. As
discussed below, if I find that the ATA was a mandatory condi-
tion of employment, the Board’s rulings in D.R. Horton and
Murphy Oil, supra, would suggest that at least some aspects of
the ATA and its ramifications violated Section 8(a)(1) of the
Act. If, on the other hand, I find that Lujan entered into the
ATA voluntarily, and that it was not a condition of employ-
ment, the same violations might not exist.
Initially, I note that the ATA is silent on the issue; there is no
language in the ATA itself that explicitly mandates that an
employee sign it in order to gain or maintain employment.
Accordingly, I must decide whether in light of the circumstanc-
es there was an implicit requirement that Lujan sign the ATA as
a condition of employment.
In that regard, I first note that at the time of signing, Lujan
was under 18 years of age, and thus a minor. (Stipulation of
Facts [SOF], ¶ 17). Second, I note that the ATA appears to be
part of the employment application itself, appearing on the
bottom half of the second page, just above the signature line for
the applicant, and that the language of the ATA is in very small
print, barely legible.3 Additionally, I note that Respondent’s
Store Manager, Jesse Suarez, gave Lujan the application and
told him to fill it out and sign it, without more, and that alt-
hough no one told Lujan that it was a “take it or leave it” prop-
osition, that is how Lujan interpreted it. (SOF, ¶ 12). Finally, I
note that there is no “opt out” provision in the ATA (SOF ¶ 5),
and that multiple former and current employees of Respondent
have executed the same ATA as part of Respondent’s hiring
process (SOF ¶ 6(b)). Although the SOF is silent on this issue,

3 Although the SOF makes no mention of this, I assume that the
copy of the application that is attached as SOF Exh.A, pp. A-1 and A-2,
is a true copy of the application for employment submitted by Lujan,
which reflects the actual size of the application and the font size con-
tained in such document. Even if a true copy of the application and the
size of the font was larger, however, it would not impact my conclu-
sions, as discussed below.
CENTURY FAST FOODS, INC. 9
I find that it is reasonable to infer that no successful job appli-
cant has ever refused to agree to the ATA, since the hiring of
such individual under those circumstances would be a signifi-
cant, even crucial, fact in favor of Respondent’s position that
the ATA was not a condition of employment. Thus, the mere
fact that Respondent has not proffered such evidence or insisted
that it be made part of the SOF signals that this has never oc-
curred, most likely because no applicant believed that the job
application would be accepted or approved if the candidate did
not sign such provision. Indeed, as described above, looking at
the application itself, there are no separate signature lines for
the ATA and the rest of the application; there is only one single
signature line at the bottom of page 2 of the application imme-
diately after the ATA. (SOF Exh. A, p. 1–2). Thus, the ATA
appears to be an organic component of the application for em-
ployment itself, and not a separate or separable component.
There is absolutely no indication in the application form that
would even indirectly suggest to the applicant that the ATA
portion could be declined or severed from the rest of the appli-
cation.
Taking all the above factors into account, I conclude that any
job applicant in the same circumstances would reasonably con-
clude that he/she could not “opt out” of the ATA, and would
reasonably believe that agreeing to the ATA was a necessary
and mandatory component of the application process itself. I
find that it was thus reasonably for Lujan—and any other can-
didate—to conclude that the whole application, including the
ATA, was a “take it or leave it” proposition. Indeed, there is
additional circumstantial evidence suggesting that Respondent
viewed the ATA as a mandatory condition of employment.
Thus, as described in the SOF, on or about October 4, 2013,
Respondent filed a Motion to Compel Arbitration in the Supe-
rior Court of the State of California (SOF ¶ 11). In its Memo-
randum of Points and Authorities in support of its Motion to
Compel (SOF Exhibit C, p. 14–15) filed with the court, Re-
spondent, citing California case precedent, indicates that when
an employer imposes mandatory arbitration as a condition of
employment (emphasis supplied), the employee cannot be made
to bear the costs of arbitration. In refuting the claimant’s de-
fense in its state court pleadings that the ATA was “uncon-
scionable” under California law, Respondent argues that the
ATA provides that Respondent bears the costs of any arbitra-
tion under its terms, and therefore complied with California law
requiring that employers bear the cost of arbitration imposed on
employees. Such argument reasonably implies that Respondent
concedes that the ATA was a mandatory condition of employ-
ment, or would likely be found to be such in state court. Simp-
ly put, I cannot imagine that Respondent would otherwise have
included such language in the ATA agreeing to bear the costs
of arbitration.
Accordingly, and for the reasons set forth above, I conclude
that the ATA was a mandatory condition of employment. This
conclusion partly answers issues 1(a) and 1(b) as stipulated by
the parties and as set forth above, which posed the question
whether the ATA was a mandatory condition of employment.
2. Whether Respondent violated the Act by maintaining and
enforcing a mandatory arbitration provision
I now turn to the rest of the substantive issues posed by is-
sues 1(a) and 1(b), namely whether Respondent violated Sec-
tion 8(a)(1) of the Act, as alleged in the complaint paragraph(s)
5(b) and (c), by filing its October 24, 2013 Motion to Compel
Lujan to individually arbitrate class wage and hour claims.
It is clear that the Board’s decisions in D.R. Horton and
Murphy Oil, supra, are dispositive of these issues. In Murphy
Oil, the Board reaffirmed its ruling in D.R. Horton that an em-
ployer violates Section 8(a)(1) of the Act when it requires em-
ployees, as a condition of employment, to enter into arbitration
agreements that preclude them from filing class action suits
regarding their wages, hours and other conditions of employ-
ment. As discussed above, I have concluded that the ATA was
a mandatory condition of employment. Although the ATA itself
is silent on the issue of employees bringing class actions, Re-
spondent tipped its hand when it filed its Motion to Compel
Arbitration on an Individual Basis (and striking class action) in
California State Court. This type of action was found unlawful
by the Board in Murphy Oil, citing D. R. Horton, the only dis-
tinction being that the court action filed by the employer in that
case was in Federal court, as opposed to a state court action in
the present case—a distinction without a difference. I find it
unnecessary to explain or elaborate regarding the Board’s ra-
tionale for its rulings in D. R. Horton and Murphy Oil, both
which provide lengthy analysis and discussions of these issues.
By now, there have been multiple cases heard by Board admin-
istrative law judges throughout the country regarding these
issues since the Board decided D. R. Horton, and multiple cases
now pending before the Board on these matters. Although the
facts in each of these cases may vary somewhat, the universal
theme in most, if not all of them, is the validity of compulsory
arbitration agreements that preclude employees from seeking
class action litigation to vindicate their rights. Almost without
exception, these types of compulsory arbitration agreements
have been found to be unlawful, as have employer actions to
enforce such agreements. These issues can fairly be described
as controversial, particularly in light of the 5th Circuit Court of
Appeals’—and arguably other Circuits’—disagreement with
the Board’s ruling in D. R. Horton, but by now the Board’s
position on these matters is clear and well publicized.
In that regard, I note that in its brief Respondent makes an
impassioned argument against the Board’s ruling in D.R. Hor-
ton and Murphy Oil, citing the courts’ rejection of the Board’s
ruling and rationale in D. R. Horton, which Respondent argues
was wrongly decided. Suffice it to say, however, that in the
absence of a Supreme Court ruling on this line of cases, I am
compelled to follow the Board’s rulings, not the rulings of any
Circuit court. Pathmark Stores, 342 NLRB 378, fn. 1 (2004);
Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Iowa Beef
Packers, 144 NLRB 615, 616 (1963), enfd. in part 331 F.2d
176 (8th Cir. 1964). Thus, unless there is an unexpected rever-
sal by the Board on its views in these matters in the near future,
it is reasonable to infer that the Board will continue on this path
unless the Supreme Court overrules it, or until all Circuit courts
disagree with the Board and its orders become unenforceable.
This last scenario would, at least in the near future, be very
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
unlikely for purely logistical reasons if nothing else. In that
regard I note that many of the cases now pending before the
Board were not actually litigated, but rather submitted via
stipulated records, as the present case was, in order to “fast
track” these issues to the Board, and eventually to the Circuit
courts in order for employers to test the Board’s Horton doc-
trine. Thus, employers—and their representatives—are by now
on notice that the Board will continue to find these types of
compulsory arbitration agreements and actions to enforce them
to be unlawful.4
Respondent additionally makes what I believe is a novel ar-
gument: that the State of California (or its Supreme Court)
should be joined as an indispensable party in this matter be-
cause the California Supreme Court has ruled that under Cali-
fornia law class action waivers are enforceable, and because the
lower state court (California Superior Court) was responsible
for the ruling that the ATA’s silence regarding class actions
must be interpreted as prohibiting such actions.5 This argument
is not valid, for a couple of reasons. First, in Iskanian (see fn.
5, below), the California Supreme Court indicated that its ruling
finding class action waivers enforceable was mandated by the
U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concep-
cion, ___ U.S.___, 131 S.Ct. 1740 (2011) (Concepcion), which
pursuant to the Federal Arbitration Act (FAA) reversed a prior
California Supreme Court ruling that had restricted class action
waivers in arbitration agreements. Thus, it is incorrect to sug-
gest, as Respondent does, that its actions are mandated by Cali-
fornia law in contravention of the Board’s D. R. Horton and
Murphy Oil rulings. In both Horton and Murphy Oil the Board
explains why the U.S. Supreme Court’s ruling in Concepcion is
inapplicable to situations involving employees in the exercise
of Section 7 rights. Simply put, California law or its interpreta-
tion by the California courts has nothing to do with the legality
of Respondent’s conduct, which in this case is subject to federal
labor laws.6 Thus, Board law is controlling in this instance, and
to the extent that California law conflicts with federal law in

4 A possible exception to the likelihood of this outcome involves
situations where employees are allowed to “opt out” of arbitration
agreements, so that those who choose not to opt out can be said to have
voluntarily agreed to such arbitrations. This possibility was raised by
the Board in fn. 28 of its Horton decision, where it indicated that a
“more difficult question” would be posed where an employer and em-
ployee entered into an arbitration agreement that was not a condition of
employment to resolve either a particular dispute or all potential dis-
putes through nonclass arbitration rather that litigation in court. The
Board has yet to answer its own question, but at least two administra-
tive law judge decisions have addressed this issue, finding that these
types of voluntary agreements do not violate the Act. See, e.g., Bloom-
ingdale’s, Inc., JD (SF)-29–13 (May 25, 2013); and Valley Health
System LLC, JD(SF)-08–15 (March 18, 2015). Other administrative
law judges have disagreed—See, e.g., Kenai Drilling Limited, JD (SF)-
13–15 (April 13, 2015); RPM Pizza, JD (ATL)-20-14 (July 11, 2014).
5 Respondent cites the California Supreme Court’s ruling in
Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348,
366–374 (2014).
6 Thus, the fact that the California Supreme Court, in Iskanian,
agreed with the Fifth Circuit’s ruling on D. R. Horton and rejected the
Board’s rationale in that case is of little consequence, since a state
court’s rulings carry no weight on matters oFederal labor law.
this matter, federal law preempts California law, which was the
very basis for the Concepcion ruling.
Secondly, regarding Respondent’s argument that it was the
lower state court (California Superior Court) which ruled that
the ATA’s silence on the issue of class arbitrations amounted to
a prohibition of such class actions—thus implying that Re-
spondent had no choice in the matter —, such ruling was again
mandated by an earlier U.S. Supreme Court decision in Stolt-
Nielsen S.A. v. Animal Feeds International Corp, 559 U.S. 662
(2010), a ruling which was followed by the California Court of
Appeal in Nelsen v. Legacy Partners Residential, Inc., 207
Cal.App.4th 1115, 1128 (2012). Indeed, this is pointed out by
Respondent in its Memorandum of Points and Authorities in
support of its Motion to Compel (SOF Exhibit C, p. 12–13).
Thus, Respondent knew, or should have known, as early as
2010, when the Supreme Court decided Stolt-Nielsen, and cer-
tainly by 2012, when the California Court of Appeal decided
Nelsen, that an arbitration agreement’s silence on the issue of
class arbitration meant that such class actions would be pre-
cluded.7 When Respondent proffered Lujan the job application
containing the ATA on October 22, 2012, for him to sign, it
knew, or should have known, that the ATA’s silence sealed the
fate of class arbitrations, as a matter of Federal and State law.
Respondent could have proffered Lujan an arbitration agree-
ment that explicitly did not preclude class action, or at least
allowed him to “opt out” of any restrictive arbitration agree-
ment, but did not do so. Respondent thus knew it was forcing
Lujan and others into individual arbitrations when it proffered
the application form, including the ATA, to its job applicants.
Accordingly, Respondent’s attempt to divert responsibility for
its conduct to the state of California fails, and it is not necessary
to join California, or any of its political subdivisions, as an
“indispensable” party, because they are not.
For the above reasons, I conclude that Respondent violated
Section 8(a)(1) of the Act by maintaining and enforcing a man-
datory arbitration provision, as alleged in paragraphs 5(a), 5(b),
and 8 of the complaint.
3. Whether Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing a mandatory arbitration provision
that restricts access to the Board and its processes
I now turn to the question of whether the language of the
ATA restricted Lujan, or other employees, from access to the
Board’s processes in violation of Section 8(a)(1) of the Act.
Pursuant to the Board’s ruling in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), I must first determine if the
ATA explicitly restricts activities protected by Section 7. If so,
the ATA is unlawful. If the ATA does not explicitly restrict
Section 7 rights, I must examine the following criteria: (1)
whether employees would reasonably construe the language to
prohibit (or restrict) Section 7 activity; (2) whether the ATA
was promulgated in response to union activity; (3) whether the
ATA has been applied to restrict the exercise of Section 7
rights. Lutheran Heritage, at 647. See also U-Haul Co. of
California, 347 NLRB 375, 377 (2006), enfd. 255 Fed.Appx.
527 (D.C. Cir. 2007); D. R. Horton, supra.

7 Nelsen was decided on July 18, 2012.
CENTURY FAST FOODS, INC. 11
As discussed previously, the ATA is silent on the question of
class action preclusion, and does not explicitly prohibit filing
charges with the Board or explicitly restrict other Section 7
activity-except, as will be discussed below, with regard to the
confidentiality of the arbitration process. Additionally, there is
no evidence that the ATA was promulgated in response to un-
ion activity, so criteria number 2, above, is not applicable. Fi-
nally, there is no evidence that Respondent applied the ATA to
restrict employee access to the Board’s processes, so criteria
number 3 is likewise not applicable. The question of whether
the ATA restricts access to the Board’s processes thus turns on
the answer to the first criteria above, namely whether employ-
ees could reasonably interpret or construe the ATA’s language
to restrict access to the Board’s processes.
I conclude that given the breadth of the ATA’s initial lan-
guage, which mandates arbitration “for any claims that arise
between me and Taco Bell . . . (w)ithout limitation, such claims
would include any concerning compensation, employment
(SIC) including, but not limited to, any claims of sexual har-
assment or discrimination, or termination of employment” (em-
phasis supplied), employees could reasonably and likely inter-
pret or construe it to restrict access to the Board’s processes.
Respondent argues that the phrase that immediately precedes
the above-quoted language, which states “I agree to confiden-
tial arbitration, instead of going to court, for any claims” (em-
phasis added) negates any unlawful inference, because going to
the Board is not the same as going to court. The Board has
rejected similar arguments, however, noting that typical
“nonlawyer employees” do not have specialized legal
knowledge to making the fine distinction between administra-
tive and judicial processes. 2 Sisters Food Group, Inc., 357
NLRB No. 168 slip op. at 2 (2011); U-Haul Co. of California,
347 NLRB at 377–378.8 Thus, any non-legally trained em-
ployee—which, presumably includes most employees of Taco
Bell—could reasonably conclude that the above-cited language
of the ATA would preclude them from seeking any legal reme-
dy prior to submitting to arbitration, including filing charges
with the Board. The same holds true for the language on sub-
section (iii) of the ATA which follows the above-quoted broad
language, which states that prior to going to arbitration, the
employee must “complete any external administrative remedy
(such as with the Equal Employment Opportunity Commis-
sion.” This language is similar to other “savings clauses” that
have been held insufficient by the Board in light of the broader
and sweeping mandatory arbitration language in the rest of the
agreement, including Murphy Oil, where the savings clause
actually appeared to permit employees to proceed to the NLRB.
See also Bill’s Electric, Inc., 350 NLRB 292, 296 (2007); Cel-
lular Sales, 362 NLRB No. 27 fn. 4. Moreover, such a clause
at best creates an ambiguity which must be construed against
Respondent as the ATA’s drafter. Lafayette Park Hotel, 326
NLRB 824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
Accordingly, for the above reasons, I conclude that the ATA
violates Section 8(a)(1) of the Act by interfering with employ-

8 Indeed, the arbitration agreement found unlawful by the Board in
Murphy Oil, supra, used similar language requiring employees to use
arbitration instead of suing in court.
ees’ right to access the Board’s processes.
4. Whether the ATA violates Section 8(a)(1) of the Act by
requiring employees to keep any arbitration
proceedings “confidential”
As described above, the language of the ATA requires em-
ployees to use “confidential” arbitration to resolve any em-
ployment-related disputes. This language explicitly commands
that any arbitration proceedings be kept confidential, which
reasonably implies that employees cannot discuss with each
other the facts, circumstances, history, tactics, justification,
motivation or outcome regarding any arbitration proceeding
they are compelled by the ATA to use in order to vindicate
their employment-related rights. The right of employees to
discuss these matters with each other lies at the very core of
Section 7, which protects—and encourages—concerted activity
for their mutual aid and protection. It is well-settled that any
work rules that prohibit, or can reasonably be interpreted to
prohibit, employees from discussing their wages, hours, or
working conditions which each other are unlawful. Fresh &
Easy Neighborhood Market, 361 NLRB No. 8, slip op. at 2–3
(2014); Lily Transportation Corp., 362 NLRB No. 54 fn. 2
(2015); Flamingo Hilton-Laughlin, 330 NLRB 287 (1999).
Accordingly, I conclude that by maintaining an arbitration
policy, which I have previously concluded was a mandatory
condition of employment, that requires that any arbitration used
by employees be kept confidential, Respondent violated Sec-
tion 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent at all times material herein has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by main-
taining and enforcing a mandatory arbitration agreement that
mandates individual arbitration and precludes class actions by
employees for wage and hour claims or other employment-
related claims in any forum, arbitral or judicial.
3. Respondent violated Section 8(a)(1) of the Act by filing a
Motion to Compel Arbitration on an Individual Basis in Cali-
fornia Superior Court in Case No. BC513815 on or about Octo-
ber 24, 2013.
4. Respondent violated Section 8(a)(1) of the Act by main-
taining and enforcing a mandatory arbitration agreement that
employees could reasonably construe to preclude filing of
charges with the Board.
5. Respondent violated Section 8(a)(1) of the Act by main-
taining and enforcing a mandatory arbitration agreement that
requires employees to keep any arbitration confidential.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist and to take
certain affirmative action designed to effectuate the policies of
the Act.
As I have concluded that the Agreement to Arbitrate (ATA)
is unlawful, Respondent must revise or rescind the ATA and
advise their employees in writing that the ATA has been re-
vised or rescinded. Further, Respondent shall post notices in all
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
locations where the ATA was in effect informing employees of
the revision or rescission of the ATA, and shall provide said
employees with a copy of any revised agreement. Any revision
should clarify that such agreement does not bar or restrict em-
ployees from seeking class wage and hour actions or any other
type of class employment-related actions in any forum, and
specifically does not bar or restrict employees from filing
charges with the NLRB. Additionally, any such revised agree-
ment shall inform employees that they are not barred or re-
stricted from communicating or discussing with each other any
matters regarding their wages, hours or working conditions,
including any such matters covered by arbitration.
Respondent shall further be ordered to notify the State Court
in Case No. BC513815 that it no longer opposes the plaintiffs’
claims on the basis of the ATA, which has been rescinded or
revised because it was found unlawful, and to move the court to
vacate its order compelling individual arbitration on the basis of
the ATA.9 Respondent shall also be ordered to reimburse
Charging Party Lujan for all reasonable expenses and legal
fees, with interest, incurred in opposing Respondent’s unlawful
petition to compel individual arbitration in a collective action.
Interest shall be computed as prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB No. 8 (2010).
Upon the entire record, I issue the following recommended.10
ORDER
Respondent, Century Fast Foods, Inc., a corporation with an
office and principal place of business in Chatsworth, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory and binding arbitration agree-
ment that require employees, as a condition of employment, to
waive their right to pursue class or collective claims in all fo-
rums, whether arbitral or judicial.
(b) Maintaining a mandatory and binding arbitration agree-
ment that employees would reasonably believe bars or restricts
employees’ rights to file unfair labor practice charges with the
National Labor Relations Board or to access the Board’s pro-
cesses.
(c) Maintaining a mandatory and binding arbitration agree-
ment that requires employees to keep confidential any arbitra-
tion proceedings undertaken as the result of such agreement.
(d) Filing a petition to enforce its Agreement to Arbitrate to
thereby compel individual arbitration and preclude employees
from pursuing employment-related disputes with the Respond-
ent on a class or collective basis in any forum.

9 Pursuant to the Board’s D. R. Horton and Murphy Oil rulings, Re-
spondent is free to oppose class certification on any basis other that an
unlawful arbitration agreement compelling employees to arbitrate em-
ployment disputes on an individual basis. As the Board observed,
employees have Section 7 rights to seek class actions, not to have such
class actions approved.
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.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the mandatory and binding arbitration agree-
ments in all of its forms, or revise them in all of its forms to
make clear to employees that the arbitration agreement does not
constitute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums, whether
arbitral or judicial; that they do not restrict employees’ right to
file charges with the National Labor Relations Board or to ac-
cess the Board’s processes; and that they do not restrict em-
ployees’ right to discuss arbitration proceedings with each oth-
er.
(b) Notify all current and former employees who were re-
quired to sign the arbitration agreement in any form that they
have been rescinded or revised and, if revised, provide them a
copy of the revised agreement.
(c) Within 14 days after service by the Region, notify the
Superior Court of the State of California in Case No.
BC513815 that it has rescinded or revised the mandatory arbi-
tration agreement upon which it based, its motion to dismiss
William Lujan’s collective action and to compel individual
arbitration of his claim, and inform the court that it no longer
opposes the action on the basis of the arbitration agreement.
(d) In the manner set forth in this decision, reimburse Wil-
liam Lujan for any reasonable attorneys’ fees and litigation
expenses that he may have incurred in opposing Respondent’s
petition to dismiss the wage claim and compel individual arbi-
tration.
(e) Within 14 days after service by the Region, post at all its
locations in California where notices to employees are custom-
arily posted, copies of the attached notice marked “Appen-
dix.”11 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 consecutive days in conspicuous 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 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 facilities 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 October 22, 2012.

11 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
CENTURY FAST FOODS, INC. 13
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 31, 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. April 24, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain with us on your be-
half.
Act together with other employees for your benefit and
protection.
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain a mandatory and binding arbitration
agreement that our employees reasonably would believe bars or
restricts their right to file charges with the National Labor Rela-
tions Board or to access the Board’s processes.
WE WILL NOT maintain and/or enforce a mandatory and bind-
ing arbitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain class
or collective actions in all forums, whether arbitral or judicial.
WE WILL NOT maintain and/or enforce an arbitration agree-
ment that prohibits employees from discussing arbitration pro-
ceedings with each other.
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 mandatory and binding Arbitration
Agreement in all of its forms, or revise it in all of its forms to
make clear that the arbitration agreement does not constitute a
waiver of your right to maintain employment-related joint,
class, or collective actions in all forums; that it does not restrict
your right to file charges with the National Labor Relations
Board or to access the Board’s processes; and does not prohibit
you from discussing arbitrations with each other.
WE WILL notify all current and former employees who were
required to sign the mandatory Agreement to Arbitrate in all of
its forms that the arbitration agreement has been rescinded or
revised and, if revised, provide them a copy of the revised
agreement.
WE WILL notify the court in which William Lujan filed his
collective wage claim that we have rescinded or revised the
mandatory Agreement to Arbitrate upon which we based our
petition to dismiss his collective wage claim and compel indi-
vidual arbitration, and
WE WILL inform the court that we no longer oppose William
Lujan’s collective claim on the basis of that agreement.
WE WILL reimburse William Lujan for any reasonable attor-
neys’ fees and litigation expenses that he may have incurred in
opposing our motion to dismiss his collective wage claim and
compel individual arbitration.
CENTURY FAST FOODS INC.