Cowabunga, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 2016

363 NLRB No. 133 (N.L.R.B. 2016)

363 NLRB No. 133
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.
Cowabunga, Inc. and Chadwick Hines. Case 10–CA–
151454
February 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations of the complaint, and
that the Board should find, as a matter of law, that the
Respondent violated Section 8(a)(1) of the Act by main-
taining and enforcing an agreement that prohibits its em-
ployees from participating in collective or class litigation
in all forums and that employees reasonably would be-
lieve bars or restricts their right to file unfair labor prac-
tice charges with the Board.
Pursuant to a charge filed by Chadwick Hines on May
4, 2015, the General Counsel issued the complaint on
August 17, 2015. The complaint alleges that, since at
least March 20, 2014, the Respondent has maintained the
Mutual Agreement to Arbitrate (the Agreement) as a
condition of employment and that the Agreement prohib-
its employees from pursuing multiparty, class or collec-
tive claims regarding employees’ terms and conditions of
employment in all forums, judicial and arbitral. Employ-
ees are required to sign the Agreement, and the Charging
Party did so.
The relevant portions of the Agreement read as fol-
lows:
1. Binding Arbitration of Disagreements and Claims
We each hereby voluntarily promise, agree, and
consent to resolve any claim covered by this Agree-
ment through binding arbitration, rather than through
court litigation. We further agree that such binding
arbitration pursuant to this Agreement shall be the
sole and exclusive remedy for resolving any such
covered claims or disputes.
2. Claims Covered by This Agreement
a. Covered Claims: Claims and disputes covered
by this Agreement include all claims by Employee
against Cowabunga, Inc. (as defined below) and all
claims that Cowabunga, Inc., may have against Em-
ployee, including, without limitation, any claims
Employee may have relating to his/her hiring, terms
and conditions of employment, job assignments,
payment of any wages, benefits or other forms of
compensation, and/or separation from employment,
such as any claims involving:
(1) Any federal, state, or local laws, regula-
tions, or statutes prohibiting employment
discrimination (such as, without limitation,
race, sex, national origin, age, disability, re-
ligion), retaliation, and harassment, includ-
ing but not limited to claims arising under
Title VII of the Civil Rights Act of 1964, as
amended (“Title VII”), the Age Discrimina-
tion in Employment Act (“ADEA”), the
Americans with Disabilities Act (“ADA”),
the Equal Pay Act (“EPA”), the Civil Rights
Acts of 1866 and 1871, 42 U.S.C. § 1981,
the Family and Medical Leave Act
(“FMLA”), Pregnancy Discrimination Act
(“PDA”) and any state law equivalents.
. . . .
For all covered claims, Employee and
Cowabunga, Inc. expressly waive any right to a
trial by jury. No covered claims may be asserted
as part of a multi-plaintiff, class or collective ac-
tion. Moreover, no covered claims may proceed
to arbitration on a multi-plaintiff, class or collec-
tive basis. Rather, each allegedly aggrieved em-
ployee must proceed to arbitration separately and
individually, and the Employee's arbitration pro-
ceeding shall encompass only the covered claims
purportedly possessed by such individual Em-
ployee.
b. Claims Not Covered: The only disputes be-
tween Employee and Cowabunga, Inc. which are
not included within this Agreement are:
(1) Any claim by Employee for workers' com-
pensation or unemployment compensation bene-
fits.
(2) Any claim by Employee for benefits under
a company plan which provides its own arbitra-
tion procedure.
(3) Any claim by Cowabunga, Inc. for injunc-
tive relief for Employee's violation of contract,
common law, statutes related to trade secrets or
confidential information, covenants not to com-
pete or other restrictive covenants.
The complaint alleges that, by maintaining the Agree-
ment, which prohibits employees from pursuing multi-
party, class, or collective claims regarding their terms
and conditions of employment in all forums, judicial and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
arbitral, the Respondent interfered with employees’ Sec-
tion 7 rights to engage in protected concerted activities.
The complaint additionally alleges that the Respondent
violated the Act when it sought to enforce this Agree-
ment on April 30, 2015, by filing a motion to dismiss or,
in the alternative, to stay and compel arbitration in a
wage and hour class action filed by Charging Party Hines
in Federal district court.1
Lastly, the complaint alleges that maintaining the
Agreement independently violated Section 8(a)(1) be-
cause employees reasonably would believe that the
Agreement bars or restricts their right to file unfair labor
practices with the Board.
On September 8, 2015, the Respondent filed an an-
swer. On September 11, 2015, the Respondent filed an
amended answer admitting all of the factual allegations
in the complaint but denying the legal conclusions and
asserting certain affirmative defenses.
On October 22, 2015, the General Counsel filed a Mo-
tion for Summary Judgment. On December 14, 2015, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On January 11, 2016, the General
Counsel and the Respondent filed responses.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
1. In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014),
enf. denied in relevant part 808 F.3d 1013 (5th Cir.
2015), the Board reaffirmed the relevant holdings in D.
R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), and found
unlawful the maintenance and enforcement of a mandato-
ry arbitration agreement requiring employees to waive
the right to commence or participate in class or collective
actions in all forums, whether arbitral or judicial. As
stated above, the Respondent’s answer admits all of the
factual allegations in the complaint. Specifically, the
Respondent’s answer admits that it requires employees to
execute the Agreement as a condition of employment and
that the Agreement expressly requires that all employ-
ment-based claims be resolved through individual, bind-
ing arbitration. The Respondent’s answer further admits
that it filed a motion to dismiss or in the alternative stay
and compel arbitration in Chadwick Hines v.
Cowabunga, Inc. We therefore find that there are no

1 Chadwick Hines v. Cowabunga, Inc., Case No. 1:15-CV-00828-
LMM (United States District Court, Northern District of Georgia, At-
lanta Division). On May 5, 2015, Hines filed a Notice of Dismissal
Without Prejudice with the court.
material issues of fact; nor has the Respondent raised any
other issues warranting a hearing.
In its response to the Board’s Notice to Show Cause,
the Respondent presents a number of arguments to sup-
port its assertion that its maintenance and enforcement of
the Agreement did not violate the Act in any way.
First, the Respondent argues that D. R. Horton and
Murphy Oil, supra, were wrongly decided when finding
that similar mandatory arbitration provisions violated
Section 8(a)(1). We disagree. Accordingly, we apply D.
R. Horton and Murphy Oil USA here, and find that the
Respondent violated Section 8(a)(1) by maintaining and
enforcing the Agreement. The Agreement expressly re-
quires employees to bring all employment-related claims
to individual arbitration and to waive—in any forum—
their right to pursue claims on a class or collective basis.
We therefore find that the Respondent’s maintenance
of the Agreement violates the Act.
The Respondent next argues that the complaint should
be dismissed because Hines did not engage in concerted
activity in filing the FLSA lawsuit in Federal district
court. We reject this argument. As the Board made clear
in Beyoglu, 362 NLRB No. 152 (2015), “the filing of an
employment-related class or collective action by an indi-
vidual is an attempt to initiate, to induce, or to prepare
for group action and is therefore conduct protected by
Section 7.” Id., slip op. at 2. See also D. R. Horton, 357
NLRB at 2279.
We also reject the Respondent’s argument that Hines
does not meet the definition of an “employee” under the
Act because he was no longer employed by the Respond-
ent at the time the Respondent filed its motion to compel.
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: Leslie’s Poolmart, Inc., 362 NLRB
No. 184 slip op. at 1 fn. 2 (2015); PJ Cheese, Inc., 362
NLRB No. 177, slip op. at 3 fn. 9 (2015).
The Respondent additionally argues that the complaint
is time barred by Section 10(b) because the initial unfair
labor practice charge was filed and served more than 6
months after Hines signed and became subject to the
Agreement. We reject this argument, because the Re-
spondent continued to maintain the unlawful Agreement
during the 6-month period preceding the filing of the
initial charge. The Board has long held under these cir-
cumstances that maintenance of an unlawful workplace
rule, such as the Respondent’s Agreement, constitutes a
continuing violation that is not time barred by Section
10(b). See PJ Cheese, supra, slip op. at 1; Neiman Mar-
cus Group, 362 NLRB No. 157, slip op. at 2 fn. 6 (2015);
and Cellular Sales of Missouri, LLC, 362 NLRB No. 27,
COWABUNGA, INC. 3
slip op. at 2 fn. 7 (2015). It is equally well established
that an employer’s enforcement of an unlawful rule, like
the Agreement here, independently violates Section
8(a)(1). See Murphy Oil, supra at 19–21. The Respond-
ent enforced its arbitration Agreement on April 30, 2015,
within the relevant 6-month period before the charge was
filed and served.2
2. Additionally, we find that the Respondent unlawful-
ly sought to enforce the Agreement. In Murphy Oil, the
Board found that the employer’s motion in Federal dis-
trict court to dismiss a collective FLSA action and to
compel individual arbitration pursuant to its mandatory
arbitration agreement violated Section 8(a)(1) because
that enforcement action unlawfully restricted employees’
exercise of Section 7 rights. 361 NLRB No. 72, slip op.
at 19. As in Murphy Oil, the Respondent unlawfully
enforced its arbitration agreement when it petitioned the
district court to dismiss or to stay and compel arbitration
in order to compel employees to arbitrate their claims
individually.3
3. Lastly, we find the Agreement to be independently
unlawful because employees would reasonably believe

2 Our dissenting colleague, relying on his dissenting position in
Murphy 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 litigation of non-NLRA claims, and “creates no substantive right for
employees to insist on class-type treatment” of such claims. This is all
surely correct, as the Board has previously explained in Murphy Oil,
above, slip op. at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2
fn. 2 (2015). But what our colleague ignores is that the Act “does
create a right to pursue joint, class, or collective claims if and as avail-
able, without the interference of an employer-imposed restraint.” Mur-
phy Oil, above, slip op. at 2 (emphasis in original). The 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,
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 reject the position of our dissenting colleague that the Re-
spondent’s motion to dismiss or to compel arbitration was protected by
the First Amendment’s Petition Clause. In Bill Johnson’s Restaurants
v. NLRB, 461 U. S. 731, 747 (1983), the Court identified two situations
in which a lawsuit enjoys no such protection: where the action is be-
yond 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 objective of limiting employees’ Sec. 7 rights and enforcing
an unlawful contractual provision, even if the litigation was otherwise
meritorious or reasonable. See Murphy Oil, supra, slip op. at 20–21;
Convergys Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
that it waived or limited their right to file a charge with
the Board or to access the Board’s processes.
It is well settled that a work rule violates Section
8(a)(1) if employees would reasonably believe that the
rule interferes with their ability to file Board charges,
even if the policy does not expressly prohibit access to
the Board. See Murphy Oil, supra, slip op. at 19 fn. 98;
D. R. Horton, supra, 357 NLRB at 2278 fn. 2; U-Haul
Co. of California, 347 NLRB 375, 377–378 (2006), enfd.
mem. 255 Fed.Appx. 527 (D.C. Cir. 2007). Furthermore,
it is settled that production of extrinsic evidence, such as
testimony showing that employees interpreted the rule to
preclude access to the Board, is not a precondition to
finding that a rule is unlawful by its terms. See, e.g.,
Murphy Oil, supra, slip op. at 13 fn. 79; Hills & Dales
General Hospital, 360 NLRB No. 70, slip op. at 1–2
(2014) (citing Lutheran Heritage Village-Livonia, 343
NLRB 646, 646–647 (2004); Claremont Resort & Spa,
344 NLRB 832, 832 (2005)).
Here, the Respondent admits that it maintains the
Agreement as a condition of employment. The Agree-
ment requires that all “claims” between the employee
and the Respondent “relating to his/her hiring, terms and
conditions of employment, job assignments, payment of
any wages, benefits or other forms of compensation,
and/or separation from employment” be decided exclu-
sively by arbitration. The term “claims” includes
any claims involving . . . [a]ny federal, state, or local
laws, regulations, or statutes prohibiting employment
discrimination (such as, without limitation, race, sex,
national origin, age, disability, religion), retaliation, and
harassment, including but not limited to claims arising
under Title VII of the Civil Rights Act of 1964, as
amended (“Title VII”), the Age Discrimination in Em-
ployment Act (“ADEA”), the Americans with Disabili-
ties Act (“ADA”), the Equal Pay Act (“EPA”), the Civ-
il Rights Acts of 1866 and 1871, 42 U.S.C. § 1981, the
Family and Medical Leave Act (“FMLA”), Pregnancy
Discrimination Act (“PDA”) and any state law equiva-
lents.
Although the Agreement does not explicitly prohibit
employees from filing charges with the Board, employ-
ees would reasonably read it to do so—particularly in
light of the breadth of the provision quoted above, its
reference to “any claim” under Federal laws or statutes,
and its specific inclusion of claims of discrimination,
retaliation, payment of wages, and “separation from em-
ployment.” See Hoot Winc LLC, 363 NLRB No. 2, slip
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
op. at 1 (2015); U-Haul Co. of California, supra, 347
NLRB at 377.4
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a Georgia corpora-
tion with an office and place of business in Alpharetta,
Georgia, has been engaged in the operation of a number
of retail restaurant facilities in Georgia, Alabama, and
South Carolina.
During the 12-month period ending December 31,
2014, the Respondent, in conducting its operations de-
scribed above, derived gross revenues in excess of
$500,000 and purchased and received at its Georgia facil-
ities goods or services valued in excess of $5000 which
originated outside the State of Georgia.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since at least March 20, 2014, the Respondent has re-
quired its current and former employees to sign the
Agreement as a condition of employment. The Agree-
ment requires that employees bring all “claims” between
the employee and the Respondent “relating to his/her
hiring, terms and conditions of employment, job assign-
ments, payment of any wages, benefits or other forms of
compensation, and/or separation from employment” to
individual binding arbitration, thereby interfering with
employees’ Section 7 right to engage in collective legal
activity and interfering with employees’ access to the
Board and its processes. On April 30, 2015, the Re-
spondent sought to enforce the Agreement described
above by filing a motion to dismiss or in the alternative
stay and compel arbitration to compel individual arbitra-
tion rather than class-wide litigation of claims in a class-
action wage-and-hour complaint filed against the Re-
spondent by the Charging Party in Chadwick Hines v.
Cowabunga, Inc., Case No. 1:15-CV-00828-LMM
(United States District Court, Northern District of Geor-
gia, Atlanta Division).

4 Although our colleague concurs in our finding that employees
would reasonably believe that the Agreement waived or limited their
right to file a charge with the Board or to access the Board’s processes,
we note his view that an individual arbitration agreement lawfully may
require the arbitration of unfair labor practice claims, if the agreement
reserves to employees the right to file charges with the Board. We
disagree with that view for the reasons stated in Ralphs Grocery, 363
NLRB No. 128 (2016).
CONCLUSIONS OF LAW
1. The Respondent, Cowabunga, Inc., is an employer
within the meaning of Section 2(6) of the Act.
2. By maintaining a mandatory and binding arbitration
agreement that employees reasonably would believe bars
or restricts them from filing charges with the National
Labor Relations Board or from accessing the Board’s
processes, and by maintaining and enforcing a mandatory
arbitration agreement that requires employees, as a con-
dition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and has violated Section
8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Consistent with our
decision in Murphy Oil, supra, slip op. at 21, and the
Board’s usual practice in cases involving unlawful litiga-
tion, we shall order the Respondent to reimburse plain-
tiffs in the wage and hour class action lawsuit for all rea-
sonable expenses and legal fees, with interest, that they
may have incurred in opposing the Respondent’s unlaw-
ful motion to dismiss the class action and to compel arbi-
tration.5 See Bill Johnson’s Restaurant v. NLRB, 461
U.S. 731, 747 (1983) (“If a violation is found, the Board
may order the employer to reimburse the employees
whom he had wrongfully sued for their attorneys’ fees
and other expenses” and “any other proper relief that
would effectuate the policies of the Act.”). Interest shall
be computed in the manner prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835
fn. 10 (1991) (“[I]n make-whole orders for suits main-
tained in violation of the Act, it is appropriate and neces-
sary to award interest on litigation expenses”), enfd. 973
F.2d 230 (3d Cir. 1992). We shall also order the Re-
spondent to rescind or revise the Agreement and to notify
employees that it has done so.6

5 The General Counsel represents that no attorneys’ fees accrued to
Charging Party Hines in defending against the Respondent’s motion to
dismiss and does not seek reimbursement of expenses and legal fees for
Hines in connection with the Respondent’s motion. We leave to com-
pliance the determination of whether other plaintiffs in the class action
lawsuit accrued expenses and legal fees in opposing the Respondent’s
motion.
6 We reject the Respondent’s argument that its motion to dismiss
and to compel arbitration was protected by the First Amendment’s
COWABUNGA, INC. 5
ORDER
The Respondent, Cowabunga, Inc. Alpharetta, Geor-
gia, 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 or to access the Board’s processes.
(b) Maintaining and/or enforcing a mandatory arbitra-
tion 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) 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 Mutual Agreement to Arbitrate
(Agreement) in all of its forms, or revise it in all of its
forms to make clear to employees that the Agreement
does not constitute a waiver of their right to maintain
employment-related joint, class, or collective actions in
all forums, and that it does not restrict employees’ right
to file charges with the National Labor Relations Board
or to access the Board’s processes.
(b) Notify all current and former employees 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.
(c) In the manner set forth in the remedy section of this
decision, reimburse plaintiffs for any reasonable attor-
neys’ fees and litigation expenses that they may have
incurred in opposing the Respondent’s motion to dismiss
the collective lawsuit and compel arbitration.
(d) Within 14 days after service by the Region, post at
its Savannah, Georgia facility copies of the attached no-
tice marked “Appendix A,” and at all other facilities
where the unlawful Agreement has been in effect, copies

Petition Clause. In Bill Johnson’s Restaurants v. NLRB, supra, the
Court identified two situations in which a lawsuit enjoys no such pro-
tection: where the action is beyond a State court’s jurisdiction because
of Federal preemption, and where “a suit . . . has an objective that is
illegal under federal law.” 461 U.S. at 737 fn. 5. Thus, the Board may
properly restrain litigation efforts such as the Respondent’s motion to
compel arbitration that have the illegal objective of limiting employees’
Sec. 7 rights and enforcing an unlawful contractual provision, even if
the litigation was otherwise meritorious or reasonable. See Murphy
Oil, supra, slip op. at 20–21; Convergys Corp., 363 NLRB No. 51, slip
op. at 2 fn. 5 (2015).
Because the lawsuit has been voluntarily dismissed, we find it un-
necessary to order the Respondent, as in Murphy Oil (slip op. at 21–
22), to notify the court that it no longer opposes Hines’s lawsuit. See,
e.g,. RPM Pizza, 363 NLRB No. 83, slip op. at 2 fn. 5 (2015).
of the attached notice marked “Appendix B.”7 Copies of
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal 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 Re-
spondent customarily 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 covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
marked “Appendix A” to all current employees and for-
mer employees employed by the Respondent at its Sa-
vannah, Georgia facility at any time since November 4,
2014. If the Respondent has gone out of business or
closed any facilities other than the one involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice marked “Appendix
B” to all current and former employees employed by the
Respondent at those facilities at any time since Novem-
ber 4, 2014.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.

7 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
In this case, my colleagues find that the Respondent’s
Mutual Agreement to Arbitrate (MAA) violates Section
8(a)(1) of the National Labor Relations Act (the Act or
NLRA) because the MAA waives the right to participate
in class or collective actions regarding non-NLRA em-
ployment claims. Charging Party Chadwick Hines
signed the MAA, and later he filed a class action lawsuit
against the Respondent in Federal district court alleging
wage and hour violations. In reliance on the MAA, the
Respondent filed a motion to dismiss or, in the alterna-
tive, to stay and compel arbitration.1 My colleagues find
that the Respondent thereby unlawfully enforced its
MAA. I respectfully dissent from these findings for the
reasons explained in my partial dissenting opinion in
Murphy Oil USA, Inc.2
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.3 How-
ever, 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.”4 This aspect of Section

1 A few days after the Respondent filed its motion, Hines filed a No-
tice of Dismissal Without Prejudice with the court.
2 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
3 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 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).
4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
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;5 (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;6 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).7 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.
Because I believe the Respondent’s MAA was lawful
under the NLRA, I would find it was similarly lawful for
the Respondent to file a motion in Federal court seeking

further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
5 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
6 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, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco
USA, Inc., 99 F.Supp. 3d 1072 (N.D. Cal. 2015), motion to certify for
interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30,
2015); Brown v. Citicorp Credit Services, No. 1:12-CV-00062-BLW,
2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration
of prior determination that class waiver in arbitration agreement violat-
ed NLRA); but see Totten v. Kellogg Brown & Root, LLC, No. ED CV
14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal. Jan. 22, 2016).
7 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
COWABUNGA, INC. 7
to enforce the MAA. That the Respondent’s motion was
reasonably based is supported by court decisions that
have enforced similar agreements.8 As the Fifth Circuit
recently observed after rejecting (for the second time) the
Board’s position regarding the legality of class-waiver
agreements: “[I]t is a bit bold for [the Board] to hold that
an employer who followed the reasoning of our D. R.
Horton decision had no basis in fact or law or an ‘illegal
objective’ in doing so. The Board might want to strike a
more respectful balance between its views and those of
circuit courts reviewing its orders.”9 I also believe that
any Board finding of a violation based on the Respond-
ent’s meritorious motion in Federal district court to com-
pel arbitration would improperly risk infringing on the
Respondent’s rights under the First Amendment’s Peti-
tion 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 Mur-
phy 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 plaintiffs
in the class action lawsuit for their attorneys’ fees in the
circumstances presented here. Murphy Oil, above, 361
NLRB No. 72, slip op. at 35.
Accordingly, as to these issues, I respectfully dissent.10

8 See, e.g., Murphy Oil, Inc., USA v. NLRB, above; Johnmohammadi
v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton, Inc. v.
NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir.
2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
9 Murphy Oil, Inc., USA v. NLRB, 808 F.3d at 1021.
10 I agree with my colleagues that the Charging Party’s status as a
former employee does not deprive him of standing to file and pursue
the unfair labor practice charge here. I also agree with the majority’s
finding that the complaint is not time barred by Sec. 10(b).
For the following reasons, I concur in my colleagues’ finding that
the MAA unlawfully interferes with NLRB charge filing in violation of
Sec. 8(a)(1). All employees were required to sign the MAA, which in
pertinent part requires employees to resolve by arbitration “all claims
by Employee against Cowabunga, Inc. . . . and all claims that
Cowabunga, Inc., may have against Employee, including, without
limitation, any claims Employee may have relating to his/her hiring,
terms and conditions of employment, job assignments, payment of any
wages, benefits or other forms of compensation, and/or separation from
employment, such as any claims involving [a]ny federal, state, or local
laws, regulations, or statutes prohibiting employment discrimination
. . . .” For the reasons stated in my separate opinion in Rose Group
d/b/a Applebee’s Restaurant, 363 NLRB No. 75, slip op. at 3–5 (2015)
(Member Miscimarra, concurring in part and dissenting in part), I be-
lieve that an agreement may lawfully provide for the arbitration of
NLRA claims, and such an agreement does not unlawfully interfere
with Board charge filing, at least where the agreement expressly pre-
serves the right to file claims or charges with the Board or, more gener-
ally, with administrative agencies. Here, however, the Agreement does
not qualify in any way the requirement that “any claims Employee may
have relating to his/her hiring, terms and conditions of employment, job
assignments, payment of any wages, benefits or other forms of com-
pensation, and/or separation from employment,” including “any claims
Dated, Washington, D.C. February 26, 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 employees reasonably would believe bars or
restricts the right to file charges with the National Labor
Relations Board or to access the Board’s processes.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.

involving [a]ny federal . . . statutes prohibiting employment discrimina-
tion,” must be resolved in binding arbitration and in this manner only.
To the contrary, the MAA states that “binding arbitration pursuant to
this Agreement shall be the sole and exclusive remedy for resolving
any such covered claims or disputes.” These provisions of the MAA,
taken together, appear to preclude the filing of a Board charge, and
nothing in the MAA states otherwise. For these reasons, I join my
colleagues in finding that the Agreement violates the Act by unlawfully
restricting the filing of charges with the Board. See U-Haul Co. of
California, 347 NLRB 375, 377 (2006), enfd. mem. 255 Fed. Appx.
527 (D.C. Cir. 2007); Murphy Oil, above, slip op. at 22 fn. 4 (Member
Miscimarra, dissenting in part); GameStop Corp., 363 NLRB No. 89,
slip op. at 6–7 (Member Miscimarra, concurring in part and dissenting
in part); Rose Group d/b/a Applebee’s Restaurant, above (Member
Miscimarra, concurring in part and dissenting in part); FUJI Foods, 363
NLRB No. 118, slip op. at 4 fn. 13 (2016) (Member Miscimarra, con-
curring in part and dissenting in part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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 Mutual Agreement to Arbitrate
(the Agreement) in all of its forms, or revise it in all of its
forms to make clear that the Agreement does not consti-
tute a waiver of your right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not restrict your right to file charges with
the National Labor Relations Board or to access the
Board’s processes.
WE WILL notify all current and former employees who
were required to sign the Agreement in any of its forms
that the Agreement has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised
agreement.
WE WILL reimburse plaintiffs for any reasonable attor-
neys’ fees and litigation expenses that they may have
incurred in opposing our motion to dismiss the collective
lawsuit and compel arbitration.
COWABUNGA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/10–CA–151454 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., Room 5011, Washing-
ton, 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 employees reasonably would believe bars or
restricts the right to file charges with the National Labor
Relations Board or to access the Board’s processes.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Mutual Agreement to Arbitrate
(the Agreement) in all of its forms, or revise it in all of its
forms to make clear that the Agreement does not consti-
tute a waiver of your right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not restrict your right to file charges with
the National Labor Relations Board or to access the
Board’s processes.
WE WILL notify all current and former employees who
were required to sign the Agreement in any of its forms
that the Agreement has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised
agreement.
COWABUNGA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/10–CA–151454 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.