FAA CONCORD H, INC. d/b/a CONCORD HONDA

National Labor Relations Board - Board Decisions

Feb 24, 2016

363 NLRB No. 136 (N.L.R.B. 2016)

363 NLRB No. 136
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.
FAA Concord H, Inc. d/b/a Concord Honda and Au-
tomotive Machinists Lodge No. 1173, Interna-
tional Association of Machinists and Aerospace
Workers. Cases 32–CA–066979, 32–CA–070343,
and 32–CA–072231
February 24, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On October 23, 2013, Administrative Law Judge Elea-
nor Laws issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed limited exceptions and a supporting brief
and the Charging Party filed cross-exceptions and a sup-
porting brief. The General Counsel and the Respondent
filed answering briefs and the Respondent filed a reply
brief to the General Counsel’s answering 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,1 findings, and conclusions
only to the extent consistent with this Decision and Or-
der, and to adopt the recommended Order as modified
and set forth in full below.2
Applying the Board’s decision in D. R. Horton, 357
NLRB No. 184 (2012), enf. denied in relevant part, 737
F.3d 344 (5th Cir. 2013), the judge found that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing and enforcing a mandatory arbitration agreement
because it requires employees, as a condition of em-

1 At the hearing, the judge granted the General Counsel’s unopposed
motion to amend the complaint to reflect the correct name of the Charg-
ing Party. We have modified the case caption accordingly.
The Respondent’s argument that the Board, General Counsel, and
the Administrative Law Judge acted without authority in this case be-
cause the Board lacked a valid quorum when the complaint issued is
without merit. See Cellular Sales of Missouri, LLC, 362 NLRB No. 27,
slip op. at 1 fn. 3 (2015).
Contrary to the judge, we do not rely on Bloomingdale’s Inc., 359
NLRB No. 113 (2013), or Belgrove Post Acute Care Center, 359
NLRB No. 77 (2013). We note that Aggregate Industries, 359 NLRB
No. 156 (2013), also cited by the judge, was reaffirmed at 361 NLRB
No. 80 (2014).
2 We have modified the judge’s recommended Order to conform to
the Board’s standard remedial language and our findings, and we sub-
stituted a new notice to conform to the Order as modified and in ac-
cordance with Durham School Services, L.P., 360 NLRB No. 85
(2014). We reject the Charging Party’s request for additional remedies.
ployment, to waive their right to pursue class or collec-
tive actions involving employment-related claims in all
forums, whether arbitral or judicial. In Murphy Oil USA,
Inc., 361 NLRB No. 72 (2014), enf. denied in part, __
F.3d __, 2015 WL 6457613 (5th Cir. October 26, 2015),
the Board reaffirmed the relevant holdings of D. R. Hor-
ton, supra. Based on the judge’s application of D. R.
Horton, and on our subsequent decision in Murphy Oil,
we adopt the judge’s finding that the Respondent unlaw-
fully maintained the mandatory arbitration agreement.3
For the following reason, we reverse the judge’s find-
ing that the Respondent enforced the mandatory arbitra-
tion agreement in violation of Section 8(a)((1) of the Act.
The Charging Party initiated a classwide arbitration pro-
ceeding alleging that the Respondent unlawfully failed to
pay employees overtime wages. Relying on the class
representatives’ signed arbitration agreements, the Re-

3 We also adopt the judge’s findings that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by unilaterally implementing a bonus
plan, changing the employees’ work schedules, and bypassing the Un-
ion and directly dealing with employees with regard to the holding of
alternative workweek elections.
In adopting the judge’s finding that the Respondent unlawfully
changed employees’ work schedule from 4 days, 10 hours per day (“4-
10 schedule”) to 5 days, 8 hours per day (“5-8 schedule”), Member
McFerran does not rely on the judge’s characterizations that the Re-
spondent was trying to have its “cake . . . and eat it too” or that it was
trying to foist responsibility on the Union for its own failure to hold an
election on the alternative work schedule. Instead, she relies on the
judge’s finding that the Respondent failed to demonstrate exigent cir-
cumstances justifying the unilateral change under RBE Electronics of
S.D., Inc., 320 NLRB 80, 81 (1995). In agreeing with the latter ra-
tionale, Member McFerran emphasizes the following:
To comply with California law, the Respondent was required to pay
overtime for hours worked in excess of 8 hours per day unless the
schedule was adopted pursuant to a collective-bargaining agreement or
a secret ballot election that conformed to certain statutory requirements.
The Respondent apparently believed that it had conducted an appropri-
ate secret ballot election authorizing a 4–10 schedule, thereby excusing
it from paying daily overtime after 8 hours. In the midst of bargaining
over an initial collective-bargaining agreement, however, the Union
initiated an arbitration proceeding (under the Respondent’s existing
arbitration policy) challenging the Respondent’s longstanding failure to
pay daily overtime after 8 hours, arguing that the 4–10 schedule in fact
had never been appropriately authorized. In response, the Respondent
unilaterally changed to a 5–8 schedule, asserting that its ongoing accru-
al of potential liability was an exigent circumstance. But that assertion
is incorrect because the Respondent was not required to continue accru-
ing liability. The Respondent instead could have satisfied its legal
obligations simply by paying overtime as required by California law,
while maintaining all other terms and conditions of employment as
required by the Act. See e.g., Ideal Donut Shop, 148 NLRB 236, 245
(1964) (employer privileged to grant wage increase where purpose was
to comply with Federal minimum wage). Or, the Respondent could
have negotiated an interim tentative agreement with the Union, thereby
satisfying the alternative authorization mechanism provided by state
law. The availability of these two alternatives demonstrates that the
Respondent’s decision to unilaterally alter employees’ work schedules
was not privileged by exigent circumstances.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent refused to proceed on a classwide basis and
ultimately filed a motion to dismiss the class allegations
with the arbitrator. However, because the employees did
not pursue their wage claims as a class or collective ac-
tion in court, the Respondent never sought to enforce the
arbitration agreements as a waiver of employees’ right to
pursue class or collective actions in all forums. In
Citigroup Technology, Inc., 363 NLRB No. 55 (2015),
the Board held that an employer had not unlawfully en-
forced its unlawful mandatory arbitration agreement by
opposing an employee’s demand for class arbitration,
where the employee had initiated arbitration but had not
pursued claims in court as a class or collective action.4
Similarly, we find that the Respondent did not unlawful-
ly seek to enforce its arbitration agreement merely by
moving the arbitrator to dismiss the class allegations.
Accordingly, we dismiss the unlawful enforcement alle-
gation.
AMENDED REMEDY
Having found that the Respondent unlawfully failed to
bargain over changes to employees’ work schedules, we
shall order the Respondent, on request by the Union, to
restore the status quo ante and make the unit employees
whole for any loss of earnings and other benefits at-
tributable to its unlawful conduct. Backpay shall be
computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB
No. 8 (2010).
ORDER
The National Labor Relations Board orders that the
Respondent, FAA Concord H, Inc. d/b/a Concord Honda,
Concord, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unilaterally implementing a bonus program for
unit employees without first notifying the Union and
giving it an opportunity to bargain.
(b) Unilaterally changing the unit employees’ work
schedules without first notifying the Union and giving it
an opportunity to bargain.
(c) Bypassing the Union and dealing directly with unit
employees with regard to the holding of alternative
workweek elections.

4 The Board noted, however, that if the employee had brought her
claims as a collective action in court, it would have been an unlawful
enforcement violation for the employer to move for the court to dismiss
the employee’s claims based on the mandatory arbitration agreement.
Id., slip op. at 1 fn. 3.
(d) Maintaining a mandatory arbitration agreement, as
a condition of employment, that employees would rea-
sonably construe as waiving their right to maintain class
or collective actions in all forums, whether arbitral or
judicial.
(e) 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) On request by the Union, rescind the unilaterally
implemented bonus program and the unilaterally imple-
mented workweek schedule.
(b) Make affected unit employees whole for any loss
of earnings and other benefits suffered as a result of the
failure to bargain over the changes to unit employees’
work schedules, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Compensate unit employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters for each employee.
(d) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, including the holding of alternative workweek
elections, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full-time and regular part-time technicians and lube
technicians employed by Respondent and performing
work at its Concord, California facility; excluding all
confidential employees, guards, and supervisors as de-
fined in the National Labor Relations Act.
(e) Rescind the mandatory arbitration agreement in all
of its forms, or revise it in all of its forms to make clear
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.
(f) Notify all current and former employees who were
required to sign or otherwise become bound to the man-
datory arbitration agreement in any form that it has been
rescinded or revised and, if revised, provide them a copy
of the revised agreement.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
FAA CONCORD H, INC. 3
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Concord, California facility copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice marked “Appen-
dix” to all current employees and former employees em-
ployed by the Respondent at any time since April 18,
2011.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 32 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 24, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unilaterally implement a bonus program
for unit employees without first notifying the Union and
giving it an opportunity to bargain.
WE WILL NOT unilaterally change the unit employees’
work schedules without first notifying the Union and
giving it an opportunity to bargain.
WE WILL NOT bypass the Union and deal directly with
unit employees with regard to the holding of alternative
workweek elections.
WE WILL NOT maintain a mandatory arbitration agree-
ment, as a condition of employment, that employees
would reasonably construe as waiving their right to
maintain class or collective actions in all forums, wheth-
er 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, on request by the Union, rescind the unilat-
erally implemented bonus program and the unilaterally
implemented workweek schedule.
WE WILL make affected unit employees whole for any
loss of earnings and other benefits suffered as a result of
our failure to bargain over the changes to employees’
work schedules.
WE WILL compensate unit employees for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file a report with the Social
Security Administration allocating the backpay award to
the appropriate calendar quarters for each employee.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, including the holding of alternative
workweek elections, notify and, on request, bargain with
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union as the exclusive collective-bargaining repre-
sentative of employees in the following bargaining unit:
All full-time and regular part-time technicians and lube
technicians employed by Respondent and performing
work at its Concord, California facility; excluding all
confidential employees, guards, and supervisors as de-
fined in the National Labor Relations Act.
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.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration agreement in any form that it has
been rescinded or revised and, if revised, provide them a
copy of the revised agreement.
FAA CONCORD H, INC. D/B/A CONCORD HONDA
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-066979 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Judith H. Chang, Esq., for the General Counsel.
Joshua J. Cliffe and Aurelio Perez, Esqs., for the Respondent.
David A. Rosenfeld and Caren P. Sencer, Esqs., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Oakland, California, on July 16, and 17, 2013. The
Machinists Automotive Trades District Lodge No. 90, Automo-
tive Machinists Lodge No. 1173 (the Union or Machinists) filed
the charge in Case 32–CA–066979 on October 18, 2011. The
Union filed the charge in Case 32–CA–070343 on December 7,
2011, and in Case 32–CA–072231 on January 11, 2012. On
March 22, 2012, the Acting General Counsel issued its first
consolidated complaint. The Union filed the charge in Case
32–CA–070343 on December 7, 2011. On February 26, 2013,
the Acting General Counsel issued a second complaint (the
complaint) consolidating Case 32–CA–070343 with the previ-
ous cases.
The complaint alleges that the Concord Honda (Respondent
or Concord) violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) when it implemented a bonus
plan and changed the bargaining unit employees’ work sched-
ule without bargaining with the Union. The complaint further
alleges that the Respondent, bypassing the Union, met with
employees to discuss holding alternative workweek elections
and held such elections in violation of Section 8(a)(1) and(5).
Lastly, the complaint alleges the Respondent violated Section
8(a)(1) of the Act by: (1) requiring its employees, as a condi-
tion of employment, to sign agreements that compel the em-
ployees to submit to binding arbitration; (2) maintaining and
enforcing the mandatory arbitration agreement since about July
2012; and (3) expressly taking a position that the mandatory
arbitration agreement prohibits employees from proceeding as a
class and/or on a collective basis in an arbitration proceeding.
The parties entered into numerous stipulations of fact, which
I approved. They are in the record as Joint Exhibit 1.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel, Respondent, and Charging
Party, I make the following2
FINDINGS OF FACT
I. JURISDICTION
Concord Honda, a corporation, sells and services automo-
biles at its dealership in Concord, California, where it annually
derives gross revenues in excess of $500,000. The Respondent
admits and I find that, at all material times, it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I also find that, at all material
times, the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Concord Honda, owned by Sonic Automotive, sells and ser-
vices new and used vehicles. At the time of the hearing, Con-
cord employed roughly 25 vehicle service technicians. Chris

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “Jt. Exh.” for joint exhibit; “R. Exh.” for Respondent’s exhibit;
“GC Exh.” for Acting General Counsel’s exhibit; “GC Br.” for the
Acting General Counsel’s brief; “R. Br. for the Respondents’ brief.
Although I have included several citations to the record to highlight
particular testimony or exhibits, I emphasize that my findings and con-
clusions are based not solely on the evidence specifically cited, but
rather are based on my review and consideration of the entire record.
2 I note the Respondent attached an exhibit to its closing brief. The
exhibit was not properly entered into evidence. It consists of a memo-
randum from a previous General Counsel of the Board regarding the
issue of whether employers can require employees to waive their right
to class or collective actions. Because I am required to follow Board
precedent, which does not include this memorandum, and because the
memo was not introduced at the hearing, I do not consider it.
FAA CONCORD H, INC. 5
Tastard, Concord’s service manager, is the technicians’ first-
line supervisor. He maintains an open-door policy whereby
any employees or group of employees may come to him with
concerns about workplace problems. Tastard reports to Mike
Cervantes, who has been the divisional fixed operations direc-
tor for the Western Division of Sonic Automotive since 2011.
Rax Patel is Concord’s general manager.
On May 14, 2010, the Board certified the Machinists Auto-
motive Trades District Lodge No. 190 as the designated exclu-
sive bargaining representative of the following employees,
hereinafter referred to as the unit:
All full-time and regular part-time technicians and lube tech-
nicians employed by Respondent and performing work at its
Concord, California facility; excluding all confidential em-
ployees, guards, and supervisors as defined in the National
Labor Relations Act.
Since June 2010, the Union and Respondent have been bargain-
ing for an initial collective-bargaining agreement. To date, the
Union and Respondent have not reached an overall agreement
nor has either declared impasse. They have reached tentative
agreements in some areas but have not come to agreement in
others. Most relevant here, the parties disagree about the inclu-
sion of a union-security clause.3 For the Union, Rick Rodgers,
area director and business representative/organizer, and Mark
Hollibush, area director/assistant directing business representa-
tive, have been the primary bargaining agents. Josh Cliffe, the
Respondent’s counsel, and Cervantes (as of 2011) have been
the Respondent’s primary bargaining representatives.
B. Alleged Unilateral Changes and Direct Dealing
1. June 2011 bonus
Once or twice a month, Tastard holds morning meetings with
the technicians. At a morning meeting in mid-June 2011, he
told them about a bonus incentive. If Concord made its June
budget, the technicians would receive an extra dollar for every
hour of service sold. In addition, technicians would receive
$100 if they maintained a positive attitude throughout June.
(GC Exh. 3.) The June 2011 bonus is the only bonus Tastard
has offered to the unit employees. (Tr. 52, 355.)4
The Respondent did not give the Union advance notice of its
intent to implement the bonus plan. During a June 29, 2011
bargaining session, Rodgers raised his frustration over the im-
plementation of the bonus plan without bargaining. (GC Exh.
6; Tr. 190.) On July 11, Cliffe sent an email to Rodgers with an
attachment detailing the “proposed” June bonus plan, and asked
if there was any problem with paying it. (GC Exh. 7.) Rodgers
was on vacation at the time and therefore did not immediately
respond. The bonus for maintaining a positive attitude was
paid to the technicians on July 15, 2011.5 (GC Exh. 2.) On

3 Other areas of disagreement include jury duty, sick leave, and pen-
sions.
4 The transcript contains some errors. P. 394, L. 12, “would” should
be replaced by “could.”
5 Bryan’s paycheck dated June 26 showed a bonus of $125. Other
employees’ pay checks showed bonus amounts for other months that
could not be explained. These bonuses are not at issue in this case,
July 19, Rodgers responded to Cliffe’s email, stating, “I have
no issues with the two bonus plans as long as they are applied
equally.” (GC Exh. 7.) By that point, Rodgers knew that the
bonus for maintaining a positive attitude had already been im-
plemented. Concord did not meet its budget goal, so no em-
ployees got the extra dollar-per-hour bonus. (Tr. 373.)
2. Alternative workweek meetings and elections
From at least July 2008 until November 13, 2011, the unit
employees at Concord have worked a 4-days per week, 10-
hours per day schedule (4/10 schedule).6 This is also referred
to as an “alternative workweek” schedule. The “normal”
workweek is considered to be to a 5-days per week, 8-hours per
day schedule (5/8 schedule). Under California State law, unless
employees in a work unit have voted for an alternative work-
week schedule in a secret ballot election or agreed to it as part
of a valid contract with the union, the employer must pay over-
time for work beyond 8 hours in a day. Specifically, Cal. Labor
Code, § 510(a) states, in relevant part:
Eight hours of labor constitutes a day’s work. Any work in
excess of eight hours in one workday and any work in excess
of 40 hours in any one workweek and the first eight hours
worked on the seventh day of work in any one workweek
shall be compensated at the rate of no less than one and one-
half times the regular rate of pay for an employee.
As noted, there are exceptions set forth in § 510(a):
The requirements of this section do not apply to the payment
of overtime compensation to an employee working pursuant
to any of the following:
(1) An alternative workweek schedule adopted pursu-
ant to Section511.
(2) An alternative workweek schedule adopted pursu-
ant to a collective bargaining agreement. . . .
Section 511, in turn, states in relevant part:
(a) Upon the proposal of an employer, the employees of an
employer may adopt a regularly scheduled alternative work-
week that authorizes work by the affected employees for no
longer than 10 hours per day within a 40-hour workweek
without the payment to the affected employees of an overtime
rate of compensation pursuant to this section. A proposal to
adopt an alternative workweek schedule shall be deemed
adopted only if it receives approval in a secret ballot election
by at least two-thirds of affected employees in a readily iden-
tifiable work unit. The regularly scheduled alternative work-
week proposed by an employer for adoption by employees
may be a single work schedule that would become the stand-
ard schedule for workers in the work unit, or a menu of work

however, and the parties have stipulated that the employees were paid
the $100 bonus. The pay checks for the pay date July 15 uniformly
denote a $100 bonus. (GC Exh. 2.) The Acting General Counsel ar-
gues that clearly some of the bonus at issue was paid in June. I disa-
gree, but this makes no difference to the outcome.
6 The parties dispute whether the 4/10 schedule was lawfully imple-
mented in accordance with California State law governing alternative
work schedules.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
schedule options, from which each employee in the unit
would be entitled to choose.
There are specific adoption procedures that must be followed as
set forth in California Industrial Welfare Commission (IWC)
Order No. 4-2001, governing professional, technical, clerical,
mechanical and similar occupations.
During early 2011, Rodgers received information leading
him to suspect that Concord did not properly implement the
4/10 schedule. Specifically, he read a February 16, 2000 letter
of compliance from Concord to the State of California Depart-
ment of Industrial Relations. The letter stated that Concord
held a secret ballot election of the work unit on February 14,
2000, and all three of the affected employees voted in favor of
the 4/10 workweek. (GC Exh. 11.) Rodgers learned there were
more than three technicians employed during February 2000.
Among those remaining, none recalled a secret ballot alterna-
tive workweek election.
At a bargaining session on March 9, 2011, Rodgers asked
whether it was safe to assume there would not be an issue re-
garding union security at the end of negotiations. In response,
Cliffe said that was not a safe assumption, the Company took it
seriously, and “it would be wrong to think that it would just go
away at the end.” Cervantes, who was there, described the
Union’s response to this as “very vocal, very heated.”7 (Tr.
434.)
On March 14, 2011, Union Attorney David Rosenfeld sent a
letter to Cliffe stating that none of the unit employees recalled
having an election to establish the alternative workweek. He
instructed Cliffe to provide to the Union any documentation to
prove the 4/10 schedule had been implemented pursuant to an
election. (Jt. Exh. 1 at Exh. P.)
At the next bargaining session on May 11, the Union re-
scinded its tentative agreement on safety and submitted an in-
formation request pertaining to safety. (R. Exh. 4.)
As discussed in detail below, beginning in July 2011, coun-
sel for the Union and Concord began exchanging correspond-
ence regarding the arbitration demands of certain unit employ-
ees. On July 8, 2011, Union Attorney Karen Sencer sent a
written demand for arbitration on behalf of some unit employ-
ees alleging they were owed overtime money as a result of
Concord’s failure to implement the alternative workweek
schedule properly. (Jt. Exh. 1 at Exh. Q.) That same day,
Cliffe and Cervantes called Rodgers and said they were think-
ing of holding an alternative workweek election because they
were concerned that employees wanted to go to a 5/8 schedule.
Rodgers responded that, through contract negotiations, the par-
ties had already reached a tentative agreement to maintain the
4/10 schedule.
On October 13, 2011, Cliffe informed Rodgers via email that
a number of the unit employees had demanded arbitration over
issues related to the 4/10 schedule. He stated that this raised an
issue as to whether the technicians still wanted to work the 4/10
schedule that had been authorized by vote on February 14,

7 At some undetermined point in time, Rodgers said the Union
would never agree to a contract without a union-security provision.
The Respondent pinpoints this statement to March 9, but the testimony
fails to establish the date. (Tr. 434; R. Br. 6.)
2000. As a result, Concord was proposing an election. Cliffe
attached documents pertaining to the election. One such docu-
ment was an October 17 letter to the employees stating that the
Company was proposing an election to determine if the unit
wanted to retain the 4/10 schedule. The letter further stated the
employees would vote by secret ballot on November 2 and 3.
Finally, the letter set forth the details of Concord’s proposed
4/10 work schedule. (GC Exh. 12.)
During the bargaining session on October 14, Cliffe brought
up the 4/10 work schedule election. Rodgers informed him
they had already tentatively agreed to the 4/10 schedule in bar-
gaining, he objected to an election, and he would consider it
self-dealing. (GC Exh. 8.) Cervantes and Cliffe told the Union
representatives that Concord felt it was necessary to go forward
with the elections. (Tr. 515.)
On October 17 and 18, 2011, Tastard, Patel, and Larry
Brock, Concord’s director of associate development, met with
unit employees to discuss holding alternative workweek elec-
tions. At the meeting, the employees received the October 17
alternative workweek schedule proposal described above. The
employees also signed a receipt for the proposal as well as an
attendance record.
On November 2, and 3, 2011, the Respondent held secret
ballot elections with unit employees. The elections took place
in Concord’s breakroom. Tastard and Patel were present for
the Respondent. The Union opted not to be present. The Re-
spondent distributed a voter list for each employee to sign and
date, indicating their participation in the election and attesting
that they cast a vote of their choice.
To establish (or here retain) the 4/10 schedule, two-thirds of
the technicians needed to vote for it. Because less than two-
thirds of the technicians voted in favor of the 4/10 schedule, the
Respondent was required to change to a 5/8 schedule within 60
days under California IWC Order 4 § 3(C)(5). As a result of
the need to change the schedule, Cervantes determined there
were not enough stalls for all of the unit employees to continue
as service technicians. Accordingly, management decided they
would need to lay off the two technicians with the least skill
and seniority.
On November 4, Cliffe informed Rodgers there were not
enough votes to retain the 4/10 schedule and the technicians
would be moved to a 5/8 schedule on November 7. Rodgers
was also told of the plan to lay off 2 technicians. In response,
Rodgers demanded that the schedule not change and said he
would file unfair labor practices if unit employees were laid off.
Though precise accounts of how the employees learned about
the impending schedule change and proposed layoffs vary, the
information sparked concern and confusion among them.
Later on November 4, Cliffe told Rodgers that Concord
wanted to delay implementing the schedule change until No-
vember 14, and hold another alternative workweek election.
Cliffe proposed to transfer the two employees who were slated
to be laid off into the parts room to work. Rodgers thought this
was a temporary move pending the election. According to
Cervantes, the transfer was not intended to be temporary. (Tr.
465–466.)
On November 8, Rodgers wrote Cliffe to tell him he thought
the alternative workweek issue must be resolved through col-
FAA CONCORD H, INC. 7
lective bargaining rather than a new election, and offered some
bargaining dates. He further instructed that if Concord man-
agement intended to circumvent collective bargaining and hold
the election, they should do it soon. (R. Exh. 1.)
The parties met for another bargaining session on November
11. The Union wanted to come to a global settlement whereby
it would withdraw pending claims against Concord if the par-
ties could reach agreement on a final contract. The parties,
however, could not agree on union security. The Respondent
announced that it wanted to have another alternative workweek
election and Cervantes said he wanted to bargain over the se-
cond election. Rodgers expressed his viewpoint that the elec-
tion was unlawful and therefore he would not bargain over it or
otherwise participate.8
On November 15, 2011, the Respondent again met with the
unit employees to discuss holding a second election. The Re-
spondent once again invited the Union to participate in the
meeting, but the Union opted not to participate. As with the
earlier meeting, the employees were presented with an alterna-
tive workweek proposal similar to the October 17 proposal, but
dated November 11. Also in line with the earlier meeting, the
employees signed a receipt for the proposal as well as an at-
tendance record.
On November 21, 2011, the Respondent reverted back to a
4/10 schedule. The work schedule has not changed since that
time. The second election took place on November 30 at the
same place and in the same manner as the November 2 and 3
elections. Likewise, the Respondent distributed a voter list for
employees to sign and date, indicating their participation in the
election and attesting that they cast a vote of their choice. The
Respondent invited the Union to participate in the elections, but
the Union opted not to participate. The unit employees voted
unanimously in favor of the 4/10 schedule.
C. The Arbitration Agreement
At all material times, the Respondent has required unit em-
ployees to sign, as a condition of their employment, agreements
covering employment at will and binding arbitration. An
agreement is set forth below in the analysis section for ease of
reference.
On July 8, 2011, Sencer made an initial demand to invoke
the alternative dispute resolution system and binding arbitration
on behalf of unit employees. Specifically, the Union alleged
violations of the California Labor Code and Business and Pro-
fessions Code regarding a dispute over, inter alia, the Respond-
ent’s alternative workweek schedule and allegedly unpaid over-
time wages. (Jt. Exh. 1 at Exh. Q.) Cliffe responded on July
21, acknowledging the arbitration demand and requesting the
names of the employees seeking arbitration. (Jt. Exh. 1 at Exh.
R.) On July 25, Sencer informed Cliffe of the Union’s intent to
arbitrate claims on a classwide basis, and identified three class
representatives: Lucio Amaya, Brian Brock, and Paul Bryan.
(Jt. Exh. 1 at Exh. S.) On August 9, 2011, Cliffe replied, stat-
ing Concord’s position that class arbitration was inappropriate
under the Federal Arbitration Act because the arbitration

8 IWC 4-2001 § 3(C)(5) provides for a 12-month interval between
elections. http://www.dir.ca.gov/IWC/IWCArticle4.pdf.
agreements did not authorize class arbitration. He offered to
arbitrate the threshold issue of class arbitrability. (Jt. Exh. 1 at
Exh. T.) On September 13, Sencer informed Cliffe that the
three class representatives would proceed with separate indi-
vidual arbitrations. She requested a list of arbitrators for each
individual grievant. (Jt. Exh. 1 at Exh. U.)
Having received no response to her September 13 letter,
Sencer wrote Cliffe on October 13, stating that unless the Un-
ion received a list of arbitrators for each grievant before the end
of the month, the Union would take steps either to compel arbi-
tration or be excused from the arbitration agreement. On Octo-
ber 31, Cliffe sent Sencer an email stating that Concord would
provide a list of arbitrators, and stated Concord’s desire to con-
solidate the now 19 individual actions. Sencer responded on
November 3, stating that the Union would only agree to consol-
idate the claims if Concord provided a list of all current and
former employees, notified them of the arbitration, and permit-
ted them to join their claims in the consolidated complaint.
Receiving no response, Sencer proposed six arbitrators for the
first six cases. Again receiving no response, Sencer prompted
Cliffe in a December 5 email. Cliffe responded on December
7, stating he did not agree to any of the arbitrators she pro-
posed. Instead, he proposed to have a different arbitrator hear
and decide Concord’s motion to consolidate. Sencer responded
on December 13, questioning the authority for an arbitrator to
hear a consolidation motion without the parties’ consent. (Jt.
Exh. 1 at Exh. V.)
Following a telephone conversation, Cliffe sent Rosenfeld
and Sencer a letter on January 10, setting forth legal authority
that, in his view, supported Concord’s proposal of submitting
its motion to consolidate to an arbitrator. (Jt. Exh. 1 at Exh.
W.)
On April 20, 2012, Amaya, Brock, and Bryan sought arbitra-
tion on behalf of themselves and similarly situated current and
former employees, alleging that Concord violated the Califor-
nia Labor Code. (Jt. Exh. 1 at Exh. X.) On November, 13,
2012, Respondent filed a motion to dismiss the class allega-
tions, which the arbitrator granted on February 6, 2013. The
arbitration is currently proceeding on a consolidated basis with
19 plaintiffs. (Jt. Exh. 1 at Exhs. Y, Z.)
III. DECISION
A. Bonus Plan
The complaint, at paragraph 8(a), alleges that in about June
2011, Respondent unilaterally implemented a bonus plan in
violation of Section 8(a)(1) and (5) of the Act.
When employees have duly elected a collective-bargaining
representative, an employer violates the Act when it bypasses
the Union and takes unilateral action regarding a term and con-
dition of employment. NLRB v. Katz, 369 U.S. 736 (1962).
This is so even if the unilateral changes increase rather than
decrease the employees’ wages or benefits. The Daily News of
Los Angeles, 304 NLRB 511 (1991). More to the point, the
Board has held that implementing bonuses without bargaining
with the Union violates Section 8(a)(1) and (5) of the Act.
Koenig Iron Works, 282 NLRB 717 (1987), enfd. in relevant
part 681 F.2d 130 (2d Cir. 1988); Johnson-Bateman, 295
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 180, 182 (1989) (wage incentive program is mandatory
subject of bargaining).
The Respondent, citing to Board case law, argues that Con-
cord was excused from bargaining because the Acting General
Counsel failed to meet its prima facie burden to present evi-
dence of:
(1) an established past practice or condition of em-
ployment;
(2) a change to that past practice or condition of em-
ployment; and
(3) a change that has a material, substantial, and signif-
icant impact on the terms or conditions of employment of
unit employees.
(R. Br. 21.) This is an incorrect statement of the Acting Gen-
eral Counsel’s initial burden of proof, and not surprisingly the
cases to which the Respondent cites do not support it. Specifi-
cally, it is upside down on the burden regarding past practice.
Correctly stated, if the Acting General Counsel shows that the
employer made material unilateral changes to mandatory sub-
jects of bargaining, the burden shifts to the employer to prove
the change was in some way privileged, such as being con-
sistent with an established past practice. NLRB v. Katz, 369
U.S. 736 (1962); Fresno Bee, 339 NLRB 1214 (2003). Thus
the past practice burden is by no means prima facie and it rests
squarely with the employer.
As to whether the bonus was “material, substantial, and sig-
nificant,” the Acting General Counsel bears the burden of
proof. North Star Steel Co., 347 NLRB 1364, 1367 (2006).
The Board has found similar and lesser bonus payments to be
mandatory subjects of bargaining. See Gas Machinery Co.,
221 NLRB 862, 863–865 (1975) ($25 bonus); Southern States
Distribution, 264 NLRB 1, 2–3 (1982) ($25 Christmas bonus);
Rubatex Corp., 235 NLRB 833, 835 (1978) ($100 bonus); Czas
Publishing Co., 205 NLRB 958, 969–971 (1973), enfd. 495
F.2d 1367 (2d Cir. 1974) ($50 Christmas bonus); Aero-Motive
Mfg. Co., 195 NLRB 790 (1972), enfd. 475 F.2d 27 (6th Cir.
1973) ($100 bonus); General Telephone Co. of Florida, 149
NLRB 311, 313–314 (bonuses from $5 to $10). Accordingly, I
find the bonus was material.
Because the Acting General Counsel has established a uni-
lateral material change, to avoid liability the Respondent must
show that it was privileged to act as it did. The Respondent’s
arguments in this regard are grounded in its incorrect impres-
sion that the Acting General Counsel must show no such privi-
lege existed. As such, the Respondent argues that because
there was no “well established status quo ante of announcing
and bargaining employee bonuses with the Union” there could
be no unilateral change. (R. Br. 22.) There could not be an
established practice for bargaining over bonuses. First of all,
the Union was recently certified and initial contract negotia-
tions were ongoing. Moreover, as Tastard stated, “June 2011 is
the only bonus.” (Tr. 355.) The change was from an estab-
lished practice of not offering bonuses to offering and imple-
menting a bonus. The Respondent argues that the record con-
tradicts Tastard’s testimony because payments that also ap-
peared to be bonuses appeared on various employees’
paychecks at different times. None of the Respondents’ wit-
nesses, however, including Tastard and Cervantes, could ex-
plain the reason behind this.9 No employee recalled having
been incented to receive any other bonus. Absent record evi-
dence of specific bonuses the Respondent offered and paid, the
unexplained references to various amounts paid on certain em-
ployees’ paychecks do not prove a well established past prac-
tice of bypassing the Union and unilaterally implementing bo-
nus plans.
Because Concord implemented the June 2011 bonus plan
without notifying or bargaining with the Union, I find it violat-
ed of Section 8(a)(1) and (5) of the Act.
B. The Alternative Workweek Meetings, Elections,
and Schedule Change
Because I find the issues in complaint paragraphs 8 and 9 are
intertwined, I will analyze each as part of a larger whole.
Paragraph 9 alleges that on about October 17 and 18, and
November 15, 2011, the Respondent bypassed the Union and
dealt directly with unit employees by meeting with them to
discuss holding alternative workweek elections and by holding
said elections on November 2, 3, and 30, 2011. Paragraph 8(b)
of the complaint alleges that, as a result of the November 2 and
3 elections, the Respondent unilaterally changed the bargaining
unit employees’ work schedule from four 10-hour days per
week to five 8-hour days per week from November 14–18,
2011, in violation of Section 8(a)(1) and (5).
1. Unilateral changes
In Bottom Line Enterprises, 302 NLRB 373 (1991), the
Board held:
[W]hen, as here, the parties are engaged in negotiations, an
employer’s obligation to refrain from unilateral changes ex-
tends beyond the mere duty to give notice and an opportunity
to bargain; it encompasses a duty to refrain from implementa-
tion at all, unless and until an overall impasse has been
reached on bargaining for the agreement as a whole. [Foot-
note omitted.]
There are two limited exceptions to this rule: (1) when a un-
ion employs delay tactics in bargaining, and (2) “when eco-
nomic exigencies compel prompt action.” RBE Electronics of
S.D., Inc., 320 NLRB 80, 81 (1995). See also Visiting Nurses
Services of Western Massachusetts, 325 NLRB 1125, 1130
(1998), enfd. 177 F.3d 52 (1st Cir. 1999), cert. denied 528 U.S.
1074 (2000).
The parties have stipulated that the meetings and elections
occurred as alleged. The Respondent argues that the parties
reached impasse on the issue of the alternative workweek elec-
tions. The burden to prove impasse rests with the Respondent.
Coastal Cargo Co., 348 NLRB 664, 668 (2006). As set forth in
Bottom Line, absent an overall impasse (which the parties have
stipulated did not exist) this argument fails unless the Respond-

9 The Respondent attempts to attack Bryan’s credibility based in part
on his confused testimony regarding the bonus payments. It is clear,
however, that none of the witnesses could decipher what the relevant
portion of the paychecks represented, so this attempt is unconvincing.
FAA CONCORD H, INC. 9
ent can prove of one of the RBE Electronics exceptions ap-
plies.10
Turning to the first exception, the Respondent asserts that the
Union engaged in delay tactics.11 The Respondent cites to Jef-
ferson Smurfit Corp., 311 NLRB 41, 60 (1993), as permitting
piecemeal implementation when a union has engaged in con-
duct that prevents either agreement or impasse. The Board has
held that an employer may make unilateral changes absent an
overall impasse “when a union, in response to an employer’s
diligent and earnest efforts to engage in bargaining, insists on
continually avoiding or delaying bargaining.” See M & M Con-
tractors, 262 NLRB 1472 (1982). To being with, I find the
Respondent did not make “diligent and earnest” efforts to bar-
gain over the alternative workweek meetings or elections. The
Respondent’s proposal to meet with the employees about the
election was transmitted to the Union on October 13. The pro-
posal was to meet with the employees a mere 4 days later and
hold the election less than 3 weeks later. The Union opposed
the elections, stating they had already reached tentative agree-
ment over the alternative workweek during negotiations. None-
theless, on November 14, Cervantes and Cliffe told the union
representatives that Concord felt it was necessary to go forward
with the election. (Tr. 515.) In this context and with this tim-
ing, I do not find the Respondent’s attempts to bargain about
the election were genuine. Instead, I find the meetings and
elections, when presented to the Union, were a fait accompli.
See Ciba Geigy Pharmaceuticals, 264 NLRB 1013, 1017
(1982); Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023
(2001). As such, the Union was under no obligation to bargain
to impasse. Dorsey Trailers, Inc., 327 NLRB 835, 858 (1999).
I further note that the Respondent did not offer to bargain
over the effects of the election. Instead, it initially announced
that two technicians would be laid off and later announced they
would be transferred. There is no evidence that the Union was
given an opportunity to bargain as to the timing of the schedule
change following the first election or any proposed layoffs
and/or transfers.
Assuming the Respondent made diligent and earnest at-
tempts to bargain, I turn to the Respondent’s argument that the
Union engaged in delaying tactics. The Respondent begins this
argument by discussing witness credibility, asserting that I
should not believe Bryan’s denial that the Union was engaged
in delaying tactics. The Respondent, however, does not cite to
any testimony or other evidence of Bryan’s purported denial,
and I could find none in the record. (R. Br. 26.) In any event,
my decision as to whether the Union engaged in delaying tac-
tics does not rely on Bryan’s testimony.
The Respondent next asserts that Rodgers is not a reliable
witness because of the implausible positions he has taken dur-
ing bargaining. Straying from any real argument about delay-

10 Even without the stipulation, the evidence is clear that the actions
at issue herein took place when the parties were continuing to conduct
negotiations.
11 In its answer, the Respondent asserted that it was excused from
bargaining to the extent the Union bargained in bad faith. During open-
ing statements, the Respondent alleged the Union used stalling tactics.
I find, therefore, that the Respondent has adequately asserted this af-
firmative defense.
ing tactics, the Respondent essentially contends that the Un-
ion’s objection to the alternative workweek election made no
sense in light of its assertion in a separate arbitration claim that
the alternative workweek had not been lawfully established.
This is neither here nor there for my purposes. The Respondent
has steadfastly asserted that it implemented its alternative
workweek schedule pursuant to prior valid election(s). At the
time of the elections at issue before me, the parties had reached,
through bargaining, a tentative agreement for an alternative
workweek schedule and the employees had been working that
schedule for years. The election of course could change this,
and as discussed below and in the statement of facts, it did for a
time. For the Union not to agree to it does not strike me as a
delaying tactic, regardless of the positions the parties may have
taken in other forums.12
The Respondent makes further arguments about the unrelia-
bility of Rodgers’ testimony regarding whether there is such
thing as a confirmation election. These arguments do not,
without more, meet the Respondent’s burden to prove that the
Union engaged in delaying tactics. Next, the Respondent ar-
gues that Rodgers really should have supported the second
election and his claimed ignorance that he had no idea how to
bargain over a confirmation election “provides no defense for
his refusal to bargain over the second election.” (R. Br. 31.)
This again has nothing to do with delaying tactics and is seem-
ingly misplaced. It also ignores Rodgers’ assertion that he
believed the election was illegal. In any event, this argument is
only potentially persuasive if there was overall impasse or an
exception under RBE Electronics. Otherwise, Rodgers need
not defend his refusal to bargain over the elections.13 Regard-
less of the Union’s reasons, any contention that its refusal to
bargain on this topic falls within an exception under RBE Elec-
tronics must fail because it would result in the exception swal-
lowing the rule.
In its brief, the Respondent mentions the Union’s revocation
of the tentative agreement on safety and subsequent requests for
information as part of its statement of facts, but does not pre-
sent argument that these were delaying tactics. Because the
Acting General Counsel addressed these actions and the Re-
spondent’s brief mentions them, I will address them here.
When determining if a union is engaging in delay tactics, the
Board will look at overall conduct. See, e.g., Register-Guard,
339 NLRB 353, 354–355 (2003). Delaying tactics have been

12 It is clear the parties had concerns about the impact of this litiga-
tion on the wage-and-hour claim asserted through arbitration and vice
versa. It is also clear these concerns resulted in legal maneuvering and
posturing all around. I don’t share these concerns, however, lacking
jurisdiction over the claims not before me and having no investment
whatsoever in the outcome of the arbitration.
The Respondent faults Rodgers for failing to explain what he meant
by the “status quo” during his testimony at the hearing. Rodgers was
subject to cross-examination, however, so the Respondent could have
elicited this information.
13 The same rationale holds true for the Respondent’s next assertion,
i.e., that Rodgers cannot defend himself by virtue of his asserted fears
of tainting the vote. Ditto for the Respondent’s arguments regarding
Rodgers’ testimony about the number of employees potentially facing
layoff and whether he talked to employees about whether they were
upset about the first election.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found where the union’s “entire course and conduct, prior to the
start of collective bargaining and during the instant negotiations
evidenced ‘a legal strategy to obstruct negotiations,’ one
grounded in the tactics of avoidance and delay. . . .”
Serramonte Oldsmobile, 318 NLRB 80, 100–101 (1995), enf.
granted in part, denied in part on other grounds 86 F.3d 227
(D.C. Cir. 1996). Specifically, in Serramonte, the union avoid-
ed bargaining altogether for over 3 months, disingenuously
pretended the employer had failed to give timely notice of its
intent to open negotiations, and did not ask unit employees
what they wanted out of bargaining. See also M&M Contrac-
tors, 262 NLRB 1472 (1982) (union’s refusal for 7 months to
respond to a date to meet for bargaining was delaying tactic).
No similar pattern of delaying tactics is present here. On the
contrary, the Union maintained that the work schedule should
be resolved through bargaining and it proposed bargaining
dates. It is true that rescission of proposals tentatively agreed
to may be considered elements of bad faith. See, e.g., NLRB v.
Industrial Wire Prod. Corp., 455 F.2d 673 (9th Cir. 1972),
enforcing 177 NLRB 328 (1969); but see Loggins Meat Co.,
206 NLRB 303 (1973) (lawful for employer to withdraw two
proposals after acceptance by union). The rescission of the
safety proposal and the requests for information occurred well
before the unilateral changes to the work schedules, and the
parties continued to bargain in the interim.14 There is no evi-
dence the Union avoided or caused any overall delay with re-
gard to its bargaining obligations. As such, I find the Respond-
ent has failed to meet its burden to prove the Union engaged in
delaying tactics under RBE Electronics.
Next, the Respondent argues its actions of holding the elec-
tions and changing the employees’ work schedules were taken
to comply with legal obligations and therefore did not violate
the Act. The Respondent, however, has consistently main-
tained that it implemented the alternative workweek schedule
pursuant to a valid election, as is shown by the certificate it
filed with the State of California.15 In essence, the Respondent
faults the Union for not helping to fix its legal problems while
simultaneously alleging no problems exist. It wants to have its
proverbial cake by arguing it has complied with the election
requirements to establish an alternative workweek (and by ex-

14 The Respondent points out that the specific safety incidents the
Union pointed to in support of its decision to rescind the proposal oc-
curred after the rescission. Rodgers supported the decision to rescind
the proposal on “ongoing safety concerns.” I note concerns about
dumping of water, invalid safety forms, and improper write-ups for
safety violations in the Union’s bargaining notes. (GC Exhs. 6, 8.)
Even if this single instance of regressive bargaining in May, however,
was a bargaining tactic, it is not sufficient to establish the overall delay
required to excuse the Respondent’s unilateral actions in October and
November.
15 I have reviewed the cases the Respondent cited to in its brief in
support of its legal obligations defense. None of the cases involves a
situation like the one present here, where the employer asserts it has
already complied with the law.
The Respondent asserts that any reliance on Pratt Industries, 358
NLRB No. 52 (2012), is misplaced. My decision on this issue does not
rely on that case but instead rests squarely on precedent from the Su-
preme Court and Board decisions rendered at times when the validity of
the Board Members’ appointments is not disputed.
tension has complied with wage-and-hour law), and eat it too
by holding new seemingly redundant elections and attempting
to blame the Union for not agreeing to them. If the Respond-
ent’s contention that it lawfully established the alternative
workweek schedule is found to be correct in arbitration, there
will be no liability for unpaid overtime compensation. If it is
not, any relief to the employees will be determined by arbitra-
tion.16 The Respondent’s argument that the Act should not be
construed to discourage or prohibit an employer’s attempt to
comply with other laws is, as applied here, an ill-conceived
attempt to foist responsibility for its own conduct on the Union,
the Acting General Counsel, and in turn, the Board. I reject the
Respondent’s attempts to deflect the potential fallout from a
lawsuit in another forum based on actions it maybe took or
maybe didn’t take in the past—actions the Union has no obliga-
tion to mitigate in this forum.
Finally, the Respondent argues that the second RBE Elec-
tronics exception, economic exigency, applies. The economic
exigency exception requires “a heavy burden” to show “cir-
cumstances which require implementation at the time the action
is taken or an economic business emergency that requires
prompt action.” 320 NLRB at 81 (footnotes and internal cita-
tions omitted). Unless there is a dire financial emergency,
events such as losing significant accounts or contracts (Farina
Corp., 310 NLRB 318, 321 (1993)), operating at a competitive
disadvantage (Triple A Fire Protection, 315 NLRB 409, 414,
418 (1994)), or a supply shortage (Hankins Lumber Co., 316
NLRB 837, 838 (1995)), will not excuse unilateral action. To
successfully prove an economic exigency defense, the employ-
er must show that “the exigency was caused by external events,
was beyond the employer’s control, or was not reasonably fore-
seeable.” RBE Electronics, supra. at 82.
I find the Respondent has not met its burden to prove eco-
nomic exigency because the circumstances placing them in the
position to seek the new elections were in Concord’s control
and were reasonably foreseeable. It was Concord’s responsibil-
ity to comply with the legal requirements for establishing an
alternative workweek schedule. Any failure to do so was not
the result of an external event beyond its control. In fact it
could not conceivably be in anyone else’s control. Potential
liabilities associated with a failure to hold elections properly
and to file a legitimate record of the elections with the State are
plainly reasonably foreseeable. Rodgers’ discovery of the 2000
certificate of compliance and the ensuing arbitration likewise
cannot be seen as an unforeseeable external event beyond the
Respondent’s control. If a corporate officer files an erroneous
tax return, whether intentionally or inadvertently, it is reasona-
bly foreseeable the company may face liability. If someone
discovers the error and reports it to the Internal Revenue Ser-
vice, this does not change the fact that the corporate officer’s
actions are the reason for the exigency, regardless of the dis-
coverer’s motive. Similarly, here it cannot rationally be argued
that anyone other than the Respondent created the situation
giving rise to the claimed exigency.

16 As previously stated, I do not pass judgment on the validity of the
earlier election, only the Respondent’s position on its validity in rela-
tion to the issues before me.
FAA CONCORD H, INC. 11
In addition, the Respondent presented no evidence that it
faced a dire economic emergency, and in fact presented no
evidence of its financial situation whatsoever. See Bottom
Line, 302 NLRB at 374 (no evidence of circumstances requir-
ing economic action at time it was taken). Though the Re-
spondent argues the liability it potentially faces if it loses the
wage-and-hour and arbitration could amount to hundreds of
thousands of dollars, it presented no evidence of what this po-
tential liability would be measured against. Moreover, if the
Respondent is correct in its position that it lawfully established
the alternative workweek schedule, then there will be no liabil-
ity. Arbitrator Hodge, while presiding over the arbitration,
shared his frustration over feeling as if parties tried to use him
as a pawn for other objectives and expressed his resolve not to
take the bait. (GC Exh. 15, p. 8.) Like Arbitrator Hodge, in
making my ruling here, I decline to speculate about what might
happen in another lawsuit in another forum.
The Respondent points to Seaport Printing & Ad Specialties,
Inc., 351 NLRB 1269, 1270, enfd. 589 F.3d 812 (5th Cir.
2009), for support. In that case, a hurricane and mandatory
evacuation followed by significant destruction to the employ-
er’s facility resulted in layoffs. I need not spend time con-
trasting the difference between the level of the employer’s con-
trol in Seaport Printing versus here. The same holds true for
Brooks-Scanlon, Inc., 246 NLRB 476 (1979), where a timber
shortage caused lumber milling to cease. The Respondent also
cites to Raskin Meat Packing Co., 246 NLRB 78, 82–42
(1979). Raskin involved a meat packing plant that was forced
to close when its line of credit, which had been keeping the
plant in business, was discontinued. In addition, the Depart-
ment of Agriculture filed a complaint against the bank for pur-
chasing livestock without being properly bonded. The Depart-
ment of Agriculture complaint against the plant was clearly
brought about by actions within the plant’s control. The dis-
continuation of the line of credit, which the bank had extended
to the plant for many years, was not within the plant’s control,
however. It came about only because, due to the plant’s dire
economic situation, it was unable to secure a bond. Here, the
Respondent presented no evidence of such a dire economic
situation or an event beyond its control leading to its demise.
Likewise, in the other cases the Respondent cites, the employer
came forward with specific evidence of a complete lack of
funds or a loss of a significant portion of its business. As noted
above, no such evidence was presented here.
Accordingly, I find the Respondent’s economic exigency ar-
gument fails.
2. Direct dealing
I will next turn to whether the meetings the Respondent held
to discuss holding the elections constituted direct dealing.
The Board’s criteria for finding an employer has engaged in
unlawful direct dealing with represented employees is articulat-
ed in Southern California Gas Co., 316 NLRB 979 (1995), as
follows:
(1) the employer was communicating directly with un-
ion-represented employees;
(2) the discussion was for the purpose of establishing
or changing wages, hours, and terms and conditions of
employment or undercutting the Union’s role in bargain-
ing; and (3) such communication was made to the exclu-
sion of the Union.
I find the Respondent communicated directly with union-
represented employees for the purposes of establishing or
changing hours in satisfaction of the first two criteria. In addi-
tion, the discussion about the upcoming election also clearly
undermined the Union’s role in collective bargaining.17 See
Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1, 7 (1st Cir. 2001)
(employer solicitation permits it to “gain intelligence on em-
ployees’ views and to gauge the level of support for a particular
position, undermining the chosen representative’s exclusive
right to perform these functions.”).
The more difficult question is whether the communications
were made to the exclusion of the Union. It is undisputed that
the Union was invited to attend the meetings and opted not to
come. This does not end the inquiry, however. As noted, I
have found the elections were presented to the Union as a fait
accompli. The meetings were held while the employees were
on the clock, attendance was taken, and the employees had to
sign a sheet stating they had received the Respondent’s pro-
posal. Under these circumstances, it is clear employee attend-
ance was expected and monitored. Attending the meetings
would have put the Union in the position of telling all of its unit
employees that though it had bargained for and reached a tenta-
tive agreement about the work schedule, the employer was
holding an election for them to vote on it anyway.
As the Board stated early on in Union Mfg. Co., 27 NLRB
1300, 1306 (1940):
Employees’ designation of a collective bargaining representa-
tive and the Board’s certification thereof would be futile and
meaningless, could an employer, shortly thereafter, at any
designated stage of the bargaining procedure, demand proof
that the exclusive representative was acting in accordance
with the desires of the employees. By such demand the em-
ployer would refuse to grant the exclusive representative of
his employees that recognition to which under the Act it is en-
titled.
Though Union Mfg. was a refusal to bargain case, the point is
applicable to a direct dealing case, as shown in Darlington
Veneer Co., 113 NLRB 1101 (1955). There, the Board af-
firmed the intermediate report, which concluded that employer
ratification of contract proposals was not only a refusal to bar-
gain, but was also direct dealing:
To compel the Union to submit the contract for ratification as
proposed by Respondent would also violate the well-
established principle that where the employees have designat-
ed a representative as provided in the Act, the employer may
not deal directly with the employees. . . . It follows, therefore,
that the employer may not insist on a contractual right, in ef-

17 Whether or not the meetings had the purpose of undermining the
Union, they clearly had the effect. Regardless, the Union met the first
part of the second prong of the Southern California Gas Co. test as the
meetings were to discuss an election to establish (or re-establish) and/or
change the work schedule.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fect, to bypass the exclusive representative as the Company
seeks to do in this case.
Id. at 1107. The October 17 meetings were held to introduce
the Respondent’s plan to bypass the Union and demand proof
from the employees that the Union was acting in accordance
with their desires. While the Union was permitted to be present
for the meeting, it is unclear what meaningful role it could play.
As to the November 15 meeting, the Union contended that
holding the second election without waiting 12 months violated
California law, as articulated above. Again, it is unclear what
meaningful role the Union could play at the meeting other than
to watch while the Respondent discussed its plans to hold an-
other election the Union deemed illegal about a work schedule
that had already been agreed upon through bargaining. By
holding meetings to announce its intent to conduct elections
with the employees, the Respondent denied the Union the
recognition to which it was entitled under the Act, and I there-
fore find the communications were effectively made to the
Union’s exclusion. Darlington, supra; see also Aggregate In-
dustries, 359 NLRB No. 156 (2013).
Based on the foregoing, I find the Respondent’s meetings
with unit members about the elections constituted direct dealing
in violation of Section 8(a)(1) and (5).
C. Arbitration
Complaint paragraphs 10–12 allege that since around July
2011, the Respondent has required employees to sign mandato-
ry arbitration agreements (MAAs) as a condition of employ-
ment, and has enforced the MAAs to preclude class or collec-
tive litigation in violation of Section 8(a)(1).
A representative MAA states:
I also acknowledge that the Company utilizes a system of al-
ternative dispute resolution which involves binding arbitration
to resolve all disputes which may arise out of the employment
context. Because of the mutual benefits (such as reduced ex-
pense and increased efficiency) which private binding arbitra-
tion can provide both the Company and myself, I and the
Company both agree that any claim, dispute, and/or contro-
versy that either party may have against one another (includ-
ing, but not limited to, any claims of discrimination and har-
assment, whether they be based on the California Fair Em-
ployment and Housing Act, Tills VII of the Civil Rights Act
of 1964, as amended, as well as all other applicable local,
state or federal laws or regulations) which would otherwise
require or allow resort to any court or other governmental dis-
pute resolution forum between myself and the Company (or
its owners, directors, officers, managers, employees, agents,
and parties affiliated with its employee benefit and health
plans) arising from, related to, or having any relationship or
connection whatsoever with my seeking employment with,
employment by, or other association with the Company,
whether based on tort, contract, statutory, or equitable law, or
otherwise, (with the sole exception of claims arising under the
National Labor Relations Act which are brought before the
National Labor Relations Board, claims for medical and disa-
bility benefits under the California Workers’ Compensation
Act, and Employment Development Department claims) shall
be submitted to and determined exclusively by binding arbi-
tration. I understand and agree that after I exhaust administra-
tive remedies through the Department of Fair Employment
and Housing and/or the Equal Employment Opportunity
Commission, I must pursue any such claims through this
binding arbitration procedure. I acknowledge that the Com-
pany’s business (repairing automobiles and selling automo-
biles and parts coming from outside the State) and the nature
of my employment in that business affect interstate com-
merce. I agree that the arbitration and this Agreement shall be
controlled by the Federal Arbitration Act, in conformity with
the procedures of the California Arbitration Act (Cal. Code
Civ. Proc. sec 1280 et seq., including section 1283.05 and all
of the Act’s other mandatory and permissive rights to discov-
ery). However in addition to requirements imposed by law,
any arbitrator herein shall be a retired California Superior
Court Judge and shall be subject to disqualification on the
same grounds as would apply to a judge of such court. To the
extent applicable in civil actions in California courts, the fol-
lowing shall apply and be observed: all rules of pleading (in-
cluding the right of demurrer), all rules of evidence, all rights
to resolution of the dispute by means of motions for summary
judgment, judgment on the pleadings, and judgment under
Code of Civil Procedure Section 631.8. The arbitrator shall
be vested with authority to determine any and all issues per-
taining to the dispute/claims raised, any such determination
shall be based solely upon the law governing the claims and
defenses pleaded, and the arbitrator may not invoke any basis
(including, but not limited to, motions of “just cause”) for
his/her determinations other then such controlling law. The
arbitrator shall have the immunity of a judicial officer from
civil liability when acting in the capacity of an arbitrator,
which immunity supplements any other existing immunity.
Likewise, all communications during or in connection with
the arbitration proceedings are privileged in accordance with
Cal. Civil Code Section 47(b). As reasonably required to al-
low full use and benefit of this agreement’s modifications to
the Act’s procedures, the arbitrator shall extend the times set
by the Act for the giving of notices and setting of hearings.
Awards shall include the arbitrator’s written reasoned opin-
ion. If CCP § 1284.2 conflicts with other substantive statutory
provision or controlling case law, the allocation of costs and
arbitrator fees shall be governed by said statutory provisions
or controlling case law instead of CCP § 1284.2. (Jt. Exh. 1,
L–O.)
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right
“to form, join or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection. . . .” The
Board has consistently held that collective legal action involv-
ing wages, hours, and/or working conditions is protected con-
certed activity under Section 7. See, e.g., Spandsco Oil & Roy-
alty Co., 42 NLRB 942, 948–949 (1942); United Parcel Ser-
FAA CONCORD H, INC. 13
vice, 252 NLRB 1015, 1018, 1022 fn. 26 (1980), enfd. 677 F.2d
421 (6th Cir. 1982).
The parties do not dispute that the MAA is a condition of
employment, and it is therefore treated in the same manner as
other unilaterally implemented workplace rules. When evaluat-
ing whether a rule, including a mandatory arbitration policy,
violates Section 8(a)(1), the Board applies the test set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
See U-Haul Co. of California, 347 NLRB 375, 377 (2006),
enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007); D.R. Horton, Inc.,
357 NLRB No. 184 (2012). Under Lutheran Heritage, the first
inquiry is whether the rule explicitly restricts activities protect-
ed by Section 7. If it does, the rule is unlawful. If it does not,
“the violation is dependent upon a showing of one of the fol-
lowing: (1) employees would reasonably construe the language
to prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.” Lutheran Heritage,
supra at 647.
The MAA does not expressly restrict Section 7 activity, and
neither the Acting General Counsel nor the Union asserts that it
was promulgated in response to union activity. The first dis-
puted question therefore is whether employees would reasona-
bly construe the MAA’s language to prohibit Section 7 activity.
For the following reasons I find that they would.
The MAA is written with singular language, referring re-
peatedly to actions between “myself” and the Company. The
second sentence, which incidentally contains 213 words, refers
to the benefits that “private binding arbitration can provide both
the Company and myself.” It further states that “I and the
Company both agree that any claim, dispute, and/or controver-
sy that either party may have against one another” will be de-
cided through binding arbitration. This singular language, with
no reference to the ability to pursue claims about working con-
ditions jointly (other than through the Board’s procedures)
would lead an employee to read the MAA as applicable to indi-
vidual employment disputes. Moreover, the MAA states, “all
communications during or in connection with the arbitration
proceedings are privileged in accordance with Cal. Civil Code
Section 47(b).” By stating that any communication made in
connection with arbitrations proceeding is privileged, the MAA
would reasonably be construed as prohibiting employees from
discussing with each other information about employment dis-
putes subject to arbitration.
The Respondent asserts that, by incorporating the state’s
procedural rules, i.e., the California Code of Civil Procedure
(CCP), which permit joinder of claims, the MAA is distin-
guishable from the agreement the Board found unlawful in
D. R. Horton. The MAA does not incorporate the entire CCP,
however. Instead, certain provisions are referenced and incor-
porated by description and/or section number. The MAA does
incorporate the procedures of the California Arbitration Act and
cites to them as “Cal. Code Civ. Proc. sec 1280 et seq., includ-
ing section 1283.05 and all of the Act’s other mandatory and
permissive rights to discovery.” Unlike section 1283.05 and
the provisions related to discovery rights, the MAA does not
expressly reference section 1281.3, which addresses consolida-
tion of arbitration claims as follows:
A party to an arbitration agreement may petition the court to
consolidate separate arbitration proceedings, and the court
may order consolidation of separate arbitration proceedings
when:
(1) Separate arbitration agreements or proceedings exist be-
tween the same parties; or one party is a party to a separate
arbitration agreement or proceeding with a third party; and
(2) The disputes arise from the same transactions or series of
related transactions; and
(3) There is common issue or issues of law or fact creating the
possibility of conflicting rulings by more than one arbitrator
or panel of arbitrators.
Compounding its failure to specifically reference CPP §
1281.3, the MAA does not mention the word “joinder” nor does
it incorporate CPP § 378 which permits joinder of plaintiffs in
civil court actions. By contrast, other CPP provisions applica-
ble to civil court actions, such the rules of pleading and rules of
evidence, are specifically mentioned and incorporated. The
MAA’s lack of any direct reference to joinder or consolidation
as well as the absence of any specific citation to procedures that
permit such render it silent on the matter for the average em-
ployee/technician. Accordingly, I find employees would rea-
sonably construe the MAA as permitting individual arbitration
actions only.
The Acting General Counsel asserts that the MAA has also
been applied to restrict employees from exercising Section 7
activity. Though I need not decide this in light of my findings
above, I will address the argument in the event a reviewing
authority disagrees that employees would reasonably construe
the MAA as permitting individual claims only.
In D. R. Horton, supra, slip op. at 1, the Board explained that
an employer violates Section 8(a)(1) of the Act by imposing, as
a condition of employment, a mandatory arbitration agreement
that precludes employees from “filing joint, class, or collective
claims addressing their wages, hours, or other working condi-
tions against the employer in any forum, arbitral or judicial.”
Citing to Spandsco Oil & Royalty Co., 42 NLRB 942, 948–949
(1942), Salt River Valley Water Users Assn., 99 NLRB 849,
853–854 (1952), enfd. 206 F.2d 325 (9th Cir. 1953), and a
string of other cases, the Board noted that concerted legal ac-
tion addressing wages, hours, and working conditions has con-
sistently fallen within Section 7’s protections. D. R. Horton,
supra at fn.4. The Board stopped short of requiring employers
to permit both classwide arbitration and classwide suits in a
court or administrative forum, finding that “[s]o long as the
employer leaves open a judicial forum for class and collective
claims, employees’ NLRA rights are preserved without requir-
ing the availability of classwide arbitration.” Id. at 16.
It is clear that by seeking to consolidate the 19 separate indi-
vidual arbitration actions, the Respondent has not been utilizing
the MAA to prohibit collective arbitrations. Indeed, the Charg-
ing Party has opposed consolidation, insisting on either class
action arbitration or separate individual arbitrations. I find,
therefore, that the MAA has not been applied to restrict collec-
tive action. Whether that ends the inquiry, however, depends
on the scope of the Board’s decision in D. R. Horton. More
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
specifically, I must determine whether D. R. Horton requires an
employer to permit both class and collective claims in one fo-
rum or another.
The Board in D. R. Horton was not forced with resolving this
precise issue because the arbitration agreement it considered
completely barred all class and collective claims. The Board,
however, clearly held that filing a class action is protected ac-
tivity. It relied on Meyers Industries, 281 NLRB 882, 887, for
the proposition that the actions of a single employee are pro-
tected if he or she “seek[s] to initiate or to induce or to prepare
for group action.” D. R. Horton, supra, slip op. at 4. The
Board concluded that “an individual who files a class or collec-
tive action regarding wages, hours, or working conditions,
whether in court or before an arbitrator, seeks to initiate or
induce group action and is engaged in conduct protected by
Section 7.” Id. The Board further noted that “if the Act makes
it unlawful for employers to require employees to waive their
right to engage in one form of activity, it is no defense that
employees remain able to engage in other concerted activities.”
Id. at 6. The Board, therefore, clearly found both class and
collective claims are protected Section 7 activities. The Re-
spondent argues that collective actions align better with em-
ployees’ Section 7 rights not to engage in concerted activities
because employees who do not wish to participate need not opt
out. This argument fails because, regardless of its merits, the
Board has held that class action claims are protected by Section
7. Id.
The Respondent sets forth multiple arguments contending
that D. R. Horton was wrongly decided. Because D. R. Horton
is Board precedent that has not been overturned by the Supreme
Court, I must follow it. Any arguments regarding its legal in-
tegrity are properly addressed to the Board. Though the Re-
spondent cites to Supreme Court cases that were decided after
D. R. Horton, nothing in those decisions overrules the Board’s
decision. Relying on CompuCredit Corp. v. Greenwood, 132
S.Ct. 665, 672 fn. 4 (2012), and American Exp. Co. v. Italian
Colors Restaurant, 133 S.Ct. 2304 (2013), the Respondent
argues that the Board ignored the requirement of a “congres-
sional command” to override the FAA. The Board has found,
however, that Section 7 of the Act substantively guarantees
employees the right to engage in collective action, including
collective legal action, for mutual aid and protection concerning
wages, hours, and working conditions. As such, I find this
argument fails.
Finally, I will address the Respondent’s argument that D. R.
Horton is void because the Board lacked a quorum when it
issued the decision. This argument derives from the D.C. Cir-
cuit’s decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C.
Cir. 2013), which the Board has rejected and so must I. See,
e.g., Bloomingdale’s Inc., 359 NLRB No. 113 (2013); Belgrove
Post Acute Care Center, 359 NLRB No. 77, slip op. at fn. 1
(2013). Though the Fourth Circuit recently agreed with Noel
Canning when it decided NLRB v. Enterprise Leasing Co.
Southeast, LLC, Nos. 12–1514, 12–2000, 12–2065, 2013 WL
3722388 (4th Cir. 2013), the Board has noted that at least three
courts of appeals have reached a different conclusion on similar
facts. Bloomingdales, supra (citing Evans v. Stephens, 387
F.3d 1220 (11th Cir. 2004), cert. denied 544 U.S. 942 (2005);
U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v.
Allocco, 305 F.2d 704 (2d Cir. 1962)). Consistent with Board
precedent, the Respondent’s defense based on Noel Canning
and a lack of quorum fails.18
The Union asserts that the FAA, which derives its authority
from the commerce clause, does not apply here because the
manner in which the parties resolve the instant dispute does not
impact interstate commerce. This argument is based on the
Supreme Court’s decision in National Federation of Independ-
ent Businesses v. Sebelius, 567 U.S. ___, (2012), 132 S.Ct.
2566 (2012), which held that the Affordable Care Act’s indi-
vidual mandate is not subject to regulation under the Commerce
Clause. This is because, the Court reasoned, the Commerce
Clause cannot be used to require individuals to engage in com-
merce.
The path from the Court’s rationale upholding the individual
mandate in the Affordable Care Act to the Respondent’s argu-
ment that the choice of forum to resolve a dispute alleging vio-
lation of State law does not impact interstate commerce is rela-
tively obscure. In determining whether employment contracts
with arbitration clauses are subject to the FAA, the Supreme
Court has focused on whether the work the employees at issue
perform involves interstate commerce. In Bernhardt v.
Polygraphic Co. of America, 350 U.S. 198, 200–201 (1956),
the Court found the FAA did not apply to an employment con-
tract where there was “no showing that petitioner while per-
forming his duties under the employment contract was working
‘in’ commerce, was producing goods for commerce, or was
engaging in activity that affected commerce. . . .”19 In making
this determination, the work activity is looked at in the aggre-
gate. Citizen’s Bank v. Alafabco, Inc., 539 U.S. 52, 56–57
(2003). Thus the proper inquiry here is whether the techni-
cians’ work activity affects commerce, not whether their choice
of dispute resolution forum affects commerce. The Union fails
to point out how National Federation has changed this inquiry,
and there is no Board precedent on point to serve as guidance.
It appears the only court to consider the issue so far has contin-
ued to focus on the scope of the employer’s business and/or the
employees’ duties to determine the FAA’s applicability to an
employment contract.20 McElveen v. Mike Reichenbach Ford
Lincoln, Inc., No. 4:12–874–RBH–KDW, 2012 WL 3964973
(D.S.C. 2012). As I cannot find authority to support the Un-
ion’s assertion that I should consider the choice of forum for
the employment dispute resolution rather than the technicians’
employment itself, its argument fails.

18 The Respondent’s argument that the Board lacked authority to act
on the charges filed in this case based on a lack of quorum also fails for
the reasons set forth in Bloomingdales, Inc.
19 Though not discernible from the decision, the petitioner’s brief to
the Supreme Court states that he worked as a plant superintendent.
1995 WL 72431.
20 There appears to be uncertainty among the courts as to whether the
employees’ duties or the employer’s operations should be the primary
consideration. Analysis of this is not required to address the Union’s
argument or render my decision.
FAA CONCORD H, INC. 15
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally implementing the July 2011 bonus, meeting
with employees about alternative workweek elections, holding
alternative workweek elections, and unilaterally changing em-
ployees’ work schedules.
3. The Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing a mandatory arbitration agreement
which required employees to resolve employment-related dis-
putes exclusively through arbitration proceedings and by en-
forcing that agreement to preclude resolution of such disputes
through class action.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
As I have concluded that the mandatory arbitration agree-
ments are unlawful, the recommended Order requires that the
Respondent revise or rescind them, and advise its employees in
writing that they have been so revised or rescinded.
At the hearing, the Acting General Counsel requested that I
order the Respondent to “move the arbitrator to rescind the
order granting Respondent’s motion to dismiss class action
allegations and to consolidate the cases pursuant to the unlaw-
ful policies contained in the unlawful mandatory arbitration
agreements.” (Tr. 9.) The law does not require the employer to
permit class action arbitrations. Instead, D. R. Horton states
that a forum for class or collective claims must be available. It
is therefore beyond my authority to require the Respondent to
permit classwide arbitration. Instead, the employees must be
permitted to proceed with class action claims regarding wages,
hours and/or working conditions in some forum, whether arbi-
tral or judicial.
The Acting General Counsel also requested “an Order re-
quiring Respondent to reimburse the unit employees and/or the
Union for any litigation expenses directly related to its opposi-
tion to the Respondent’s unlawful motion to prohibit class arbi-
tration.” (Tr. 9.) The Respondent argues that, until D. R. Hor-
ton was decided, the Board’s position on the issue was unclear.
I agree, and therefore find that no litigation expenses are appro-
priate prior to January 3, 2012, the date D. R. Horton was is-
sued. Neither the Acting General Counsel nor the Union sub-
mitted any argument or legal authority to support a request for
reimbursement of litigation expenses. Presumably, the request
is premised on the Acting General Counsel’s belief that the
Respondent’s objective in opposing class action arbitration was
unlawful. Given the absence of any supporting argument, and
in light of the fact that the Respondent did not preclude collec-
tive action among the employee-plaintiffs, I decline to grant
this remedy.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
The Respondent, FAA Concord Honda Inc. d/b/a Concord
Honda, Concord, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unilaterally implementing an employee bonus or changes
in the workweek schedule in the absence of an overall agree-
ment or a lawful impasse in collective-bargaining negotiations.
(b) Bypassing the Union and dealing directly with its em-
ployees with regard to their terms and conditions of employ-
ment.
(c) Maintaining mandatory arbitration agreements that em-
ployees would construe as prohibiting class or collective ac-
tions.
(d) Enforcing the mandatory arbitration agreements to pro-
hibit class actions.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise the MAAs to make it clear to employ-
ees that the agreement does not constitute a waiver in all fo-
rums of their right to maintain employment-related class or
collective actions.
(b) Notify the employees of the rescinded or revised agree-
ments to include providing them copies of the revised agree-
ments or specific notification that the agreements have been
rescinded.
(c) Within 14 days after service by the Region, post at its fa-
cility in Concord, California, copies of the attached notice
marked “Appendix.”22 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if 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 al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and

21 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.
22 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.”
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
former employees employed by the Respondent at any time
since October 18, 2011.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. October 23, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
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 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 fail and refuse to bargain collectively and in
good faith with Automotive Machinists Lodge No. 1173, Inter-
national Association of Machinists and Aerospace Workers (the
Union) as the designated exclusive collective-bargaining repre-
sentative of the employees in the following unit:
All full-time and regular part-time technicians and lube tech-
nicians employed by FAA Concord H, Inc. d/b/a Concord
Honda (the Employer) and performing work at its Concord,
California facility; excluding all confidential employees,
guards, and supervisors as defined in the National Labor Rela-
tions Act.
WE WILL NOT implement the June 2011 bonus or the change
in your weekly work schedule from a 4-day/10-hour schedule
to a 5-day/8-hour schedule in the absence of an overall agree-
ment or a lawful impasse in collective-bargaining negotiations.
WE WILL NOT bypass the Union and deal directly with you
with regard to the holding of alternative workweek elections or
any other changes to your terms and conditions of employment.
WE WILL NOT solicit employees to sign and then maintain
and enforce any provision of our mandatory arbitration agree-
ments that we have interpreted in a way that interferes with
your Section 7 rights to engage in collective legal activity by
precluding you from participating in class actions relating to
your wages, hours, or other terms and conditions of employ-
ment brought in any arbitral or judicial forum.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind the June 2011 bonus and the November 14–
18, 2011 change to the workweek schedule which we unilater-
ally implemented without bargaining with the Union and/or
without an overall agreement or a lawful impasse in negotia-
tions.
WE WILL rescind the mandatory arbitration agreements or re-
vise them to make clear to employees that they may bring col-
lective and class claims in an arbitral or judicial forum under
the terms of the agreements.
WE WILL no longer object to our employees bringing or par-
ticipating in class actions under the terms of the agreements.
FAA CONCORD H, INC. D/B/A CONCORD HONDA