Haynes Building Services, LLC

National Labor Relations Board - Board Decisions

Feb 23, 2016

363 NLRB No. 125 (N.L.R.B. 2016)

363 NLRB No. 125
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.
Haynes Building Services, LLC1 and J. Tadeo Gomez-
Flores. Case 31–CA–093920
February 23, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On February 7, 2014, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
General Counsel and Charging Party2 filed exceptions
and supporting briefs and the Respondent filed a reply
brief. The Respondent filed exceptions3 and a supporting
brief and the General Counsel filed an 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, findings, and conclusions only
to the extent consistent with this Decision and Order.
The judge found, applying the Board’s decision in D.
R. Horton,4 that the Respondent violated Section 8(a)(1)
of the Act by maintaining and requiring applicants for
employment to sign a Notice to Applicant containing
provisions that they would reasonably conclude preclud-
ed them from filing unfair labor practice charges with the
Board. The judge, however, dismissed allegations that
the Respondent violated Section 8(a)(1) by maintaining
and requiring applicants to execute an Employment
Agreement containing a provision entitled, “Agreement

1 We amend the caption to correct the name of the Respondent.
2 The Respondent argues that we should reject the Charging Party’s
exceptions because the Charging Party filed only a brief and not a
separate document enumerating specific exceptions to the administra-
tive law judge’s decision. The Board has the discretion to accept an
otherwise compliant brief in the absence of proper exceptions. Metta
Electric, 338 NLRB 1059 (2003), enfd. in relevant part JHP & Associ-
ates v. NLRB, 360 F.3d 904 (8th Cir. 2004). Because the Charging
Party’s brief proffers arguments pertaining to specific portions of the
judge’s decision, particularly the judge’s case discussion, we accept the
Charging Party’s brief in the absence of enumerated exceptions.
3 The Respondent's exceptions that the Board, Acting General Coun-
sel, and Regional Director for Region 31 acted without authority in this
case because the Board lacked a valid quorum when the complaint
issued are without merit. Neiman Marcus Group, 362 NLRB No. 157,
slip op. at 1 (2015). See also Benjamin H. Realty Corp., 361 NLRB
No. 103 (2014); Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10, slip op. at 1 fn. 1 (2014); Barstow Community Hospital,
31–CA–129445 (2015) (Regional Director for Region 31), citing Pallet
Cos., 361 NLRB No. 33, slip op. at 1–2 (2014).
4 357 NLRB 2277 (2012), enf. denied in part 737 F.3d 344 (5th Cir.
2013).
for Arbitrating Disputes” (hereinafter “Employment
Agreement” or “Arbitration Agreement”), and by enforc-
ing the Notice to Applicant and Arbitration Agreement
against the Charging Party when it demanded that he
submit to individual arbitration a class action wage and
hour lawsuit he had filed in State court and threatened
legal action if he did not do so.
In Murphy Oil USA, Inc.,5 which issued after the
judge’s decision, the Board reaffirmed the relevant hold-
ings of D. R. Horton, supra. Applying Murphy Oil and
D. R. Horton, and for the reasons stated by the judge and
below, we agree with the judge that the Respondent vio-
lated Section 8(a)(1) by maintaining and requiring appli-
cants to sign the Notice to Applicant. However, we re-
verse the judge and find that the Respondent also violat-
ed Section 8(a)(1) by maintaining and threatening to en-
force the Notice to Applicant and Arbitration Agreement
in a manner that required employees to waive their right
to collective action in all forums.6
Facts
The stipulated facts show that the Respondent requires
all applicants to sign a Notice to Applicant before they
begin working for the Respondent. This document,
translated from its original Spanish, reads as follows:
I agree to submit to an obligatory arbitration for
all disputes and complaints that arise from the sub-
mission of this application. Furthermore, if I am
hired by this Company, I am in agreement that all
disputes or complaints that cannot be resolved with-
in the Company and informally shall be submitted to
obligatory arbitration conducted under the Associa-
tion of Arbitration’s rules.
After receiving an offer of employment but prior to
commencing work for the Respondent, employees are
presented with, and asked to sign, a two-page Employ-
ment Agreement that includes the following Arbitration
Agreement:
Agreement for arbitrating disputes. All disputes, con-
troversies, or claims that arises [sic] from, involves, af-
fects or is in some way related to the current agreement
or is in breach [sic] that same agreement, or if it arises
from, involves, affects, or is in some way related with

5 361 NLRB No. 72 (2014), enf. denied in part 808 F.3d 1013 (5th
Cir. 2015),
6 We reject the judge’s “Further Analysis” portion of his decision,
which calls into question the continued viability of our decision in D. R.
Horton, Inc., supra. In Murphy Oil, the Board affirmed the holding of
D. R. Horton that the National Labor Relations Act protects the sub-
stantive right of employees to take collective action, including the
pursuit of collective legal action, and that this right is not extinguished
by the Federal Arbitration Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
your employment or with the conditions of your em-
ployment, or with the termination of your employment,
obligatory and definitive, in conformity with federal
arbitration law, in agreement with the rules of the
American Arbitration Association, of the state of Cali-
fornia. The arbitrator shall have the right to award at-
torney fees and reasonable cost to the prevailing party.
The award shall be in writing, signed by the arbitrator.
And it shall carry the reasons for the award. The arbi-
trator’s decision to award can be presented before any
court with jurisdiction for enforcement. In conformity
to the pertinent law, this agreement for arbitrating dis-
putes will not prevent you from filing a charge or com-
plaint with an administrative government agency.
The Employment Agreement cautions applicants to address
any concerns that they may have before signing the docu-
ment and to sign only after having read the document.
On October 11, 2012, the Charging Party, J. Tadeo
Gomez-Flores, a former employee, filed a wage and hour
lawsuit against the Respondent “on behalf of himself and
all others similarly situated” in a California State court.
In response, on November 19, 2012, the Respondent’s
attorney wrote Gomez-Flores’ counsel, stating in rele-
vant part:7
Because this lawsuit was only recently filed, you
may not be aware that Mr. Gamez-Flores signed the
enclosed “Notice to Applicant” and “Employment
Agreement” on January 27, 2009 and January 29,
2009, respectively (Bates Nos. DEFS-0000 I -
DEFS-00002; collectively, the “Agreement”). As
stated in the Agreement, Mr. Gamez-Flores has
agreed to submit all disputes and claims arising out
of his employment to final and binding arbitration
under the rules of the American Arbitration Associa-
tion.
. . . .
On behalf of the Company, we hereby demand
that Mr. Gamez-Flores submit his individual claims
alleged in the lawsuit to final and binding arbitration
in accordance with the terms of the Agreement.
Please let us know at your earliest convenience if
Mr. Gamez-Flores intends to abide by the Agree-
ment. If Mr. Gamez-Flores will not agree to dismiss
the lawsuit and pursue his individual claims in arbi-
tration, the Company will promptly move to compel
arbitration.

7 The judge noted that the Respondent frequently spelled the Charg-
ing Party’s name as “Gamez-Flores” but that the stipulation in this case
listed his name as Gomez-Flores.
[Emphasis in original.]
Discussion
1. The parties stipulated and the judge found that at all
relevant times the Respondent required applicants, as a
condition of employment, to execute the Notice to Ap-
plicant. The Notice specified that all unresolved em-
ployment-related disputes must be submitted to arbitra-
tion, and contains no exceptions or limiting language.
As found by the judge, applicants (and, later, employees)
reasonably would understand that, by signing the Notice
to Applicant, they were precluded from filing unfair la-
bor practice charges with the Board. Accordingly, we
agree with the judge that the Respondent violated Section
8(a)(1) by maintaining the Notice to Applicant and re-
quiring that all applicants sign it. See, e.g., Chesapeake
Energy Corp., 362 NLRB No. 80, slip op. at 2 (2015);
Murphy Oil, above, slip op. at 19, fn. 98; D. R. Horton,
above, 357 NLRB at 2278 fn. 2; U-Haul Co. of Califor-
nia, 347 NLRB 375, 377 (2006), enfd. mem. 255 NLRB
Fed.Appx. 527 (D.C. Cir. 2007).8
2. The parties further stipulated that, at all material
times, the Respondent maintained the Employment
Agreement that included the Arbitration Agreement.9
The judge found, and the Respondent does not dispute,
that, “at all material times, Respondent asked employees
to sign the Employment Agreement” at the time of their

8 In U-Haul, the Board found unlawful an Arbitration Policy requir-
ing binding arbitration for “all disputes relating to or arising out of . . .
employment . . . . or the termination of that employment,” including
federal statutes such as Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, “or any other legal or equita-
ble claims and causes of action recognized by local, state, or federal
law or regulations,” because such a policy would reasonably be inter-
preted by employees as prohibiting the filing of charges with the Board.
The Respondent argues that U-Haul and related cases were wrongly
decided because they conflict with the Federal Arbitration Act, which
encourages parties to fashion arbitration agreements as they see fit. As
we explained in Murphy Oil, slip op. at 6, we see no such conflict.
As found by the judge, language in the Arbitration Agreement stat-
ing that “in conformity to the pertinent law, this agreement for arbitrat-
ing disputes will not prevent you from filing a charge or complaint with
an administrative agency,” fails as a defense to this U-Haul violation.
That language is not included in the Notice to Applicant and the Arbi-
tration Agreement does not reference the Notice to Applicant. Further,
considered together, the language in the Notice to Applicant and Arbi-
tration Agreement are inconsistent. Such inconsistency creates an
ambiguity that is construed against the Respondent. See PJ Cheese,
362 NLRB No. 177, slip op at 2 fn. 6 (2015).
9 As in Countrywide Financial Corp., 362 NLRB No. 165, slip op.
3–4 (2015), the Notice to Applicant and Arbitration Agreement are
silent on whether employees are prohibited from arbitrating their em-
ployment claims on a class or collective basis. Accordingly, the Notice
to Applicant and Arbitration Agreement are not facially unlawful with
respect to the right to pursue collective claims as in D. R. Horton and
Murphy Oil, and the complaint does not so allege. See also Leslie’s
Poolmart, 362 NLRB No. 184, slip op. at 1 fn. 3 (2015).
HAYNES BUILDING SERVICES, LLC 3
hire. Although the judge further found that the Respond-
ent thereby created the reasonable impression among
employees that they were required to comply with the
Agreement’s requirements for arbitrating disputes as a
condition of employment, he found that the record failed
to establish that employees were actually required to sign
the Agreement as a condition of employment. In sup-
port, the judge found that the Respondent’s admission in
its answer that “some” applicants executed the document
permitted the inference that “some” applicants did not
sign the Agreement or signed after striking out the Arbi-
tration provision. Based on these conjectures and hypo-
thetical possibilities, the judge concluded that the evi-
dence supporting the General Counsel’s allegation that
the Respondent required its applicants to sign the Em-
ployment Agreement and Arbitration Agreement was
insufficient to outweigh the Respondent’s denial in its
answer.
We disagree. We find that an applicant would reason-
ably understand that signing the Employment Agreement
was a condition of hire. As the judge himself acknowl-
edged, the Respondent “created the reasonable impres-
sion that agreeing to the agreement for arbitrating dis-
putes was a condition of obtaining employment.” By the
time of their hire, the Respondent had already required
the applicants to sign the Notice to Applicant, which in-
cluded a sweeping arbitration provision applicable to
disputes arising out of the application process and subse-
quent employment.10 Nothing in the Employment
Agreement which the Respondent presented to employ-
ees and asked them to sign states that it nullified the No-
tice to Applicant requirements. Nor does anything in the
Employment Agreement indicate that signing the
Agreement was optional. To the contrary, the Employ-
ment Agreement specifically instructs applicants to ad-
dress any concerns before signing it, strongly indicating
that such signatures were required.11 In sum, we find
that the stipulated record supports the complaint allega-
tion that employees were required to sign the tendered
Employment Agreement, including the Arbitration
Agreement, as a condition of employment.12
Further, the Respondent interpreted and applied the
Employment Agreement to require that all employment
disputes be arbitrated on an individual basis. In response

10 It is undisputed that all applicants were required to sign the No-
tice.
11 There is no evidence in the stipulated record that any employee re-
fused to sign the Employment Agreement.
12 The Board has further held that an arbitration agreement that pre-
cludes collective action in all forums is unlawful whether mandatory or
not. See On Assignment Staffing Services, 362 NLRB No. 189, slip op.
at 1, 5–8 (2015).
to the Charging Party’s filing of a class action wage and
hour lawsuit in State court on behalf of himself and other
employees, the Respondent demanded that the Charging
Party, having signed the Notice to Applicant and Arbitra-
tion Agreement (which the Respondent collectively
termed the Agreement), must submit his claim to indi-
vidual arbitration. Specifically, the Respondent wrote
the Charging Party’s counsel on November 12, 2012,
stating that
“[i]n Stolt-Neilsen S.A. v. AnimalFeeds Int’l Corp.
(2010) 130 S.Ct. 1758, the U.S. Supreme Court held
that where, as here, the arbitration agreement is silent
on class arbitration, class arbitration is not permitted.
. . .
Several recent decisions by the California Court of Ap-
peal have concluded that Stolt-Nielson …require[s] in-
dividual arbitration of wage and hour claims under ar-
bitration agreements that are indistinguishable from the
Agreement signed by [the Charging Party].
. . .
On behalf of the Company, we hereby demand
that [the Charging Party] submit his individual
claims alleged in the lawsuit to final and binding ar-
bitration . . .”
The Respondent’s letter further stated that if the Charging
Party did not agree to dismiss the lawsuit in favor of indi-
vidual arbitration, the Respondent would move to compel
arbitration. By its written demand on the Charging Party,
the Respondent made clear its interpretation and application
of the Notice to Applicant and Arbitration Agreement: arbi-
tration was the exclusive forum for resolving employment
claims, and arbitration could only be conducted on an indi-
vidual basis.
The Board has held that a workplace rule that does not
explicitly restrict activities protected by Section 7 of the
Act will be found unlawful under the third prong of Lu-
theran Heritage Village-Livonia, 343 NLRB 646 (2004),
where the “rule has been applied to restrict the exercise
of Section 7 rights.” Id. at 647. See, e.g., Hitachi Capi-
tal America Corp., 361 NLRB No. 19, slip op. at 3
(2014); Albertson’s Inc., 351 NLRB 254, 259 (2007). In
Countrywide Financial Corp., supra, 362 NLRB No.
165, slip op. at 3, the Board found that an arbitration
agreement that did not specify that mandatory arbitration
could proceed only on an individual basis was unlawful
as applied where the employer filed a motion to compel
individual arbitration of a collective suit. By this action,
the employer “act[ed] to compel employees to follow a
route that foreclosed them from collectively pursuing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
their employment claims in all forums, arbitral and judi-
cial.” Id., slip op. at 4. This is precisely what the Board
enjoined in D. R. Horton. 357 NLRB 2277, 2289. Ac-
cord: Employers Resource, 363 NLRB No. 59, slip op. at
1 fn. 2 (2015).
Here, too, the Respondent coerced the Charging Party
in the exercise of his Section 7 rights when it threatened
to compel individual arbitration if the Charging Party did
not withdraw his class action lawsuit and submit his in-
dividual claim to arbitration. Contrary to the judge, the
fact that the Respondent had not yet filed a motion in
court to dismiss the Charging Party’s lawsuit does not
preclude this finding. The Respondent’s threatened court
action was sufficient to coerce the Charging Party and
his fellow employees in the exercise of their statutory
rights.13
Further, were we to accept the Respondent’s argument
to the contrary, the success of the coercion would para-
doxically establish its lawfulness, because the Charging
Party’s withdrawal of the class action lawsuit would
eliminate the need for the Respondent to follow through
on its threat with additional legal action. Such faulty
logic severely undermines the Act’s protection of em-
ployees’ collective efforts to improve their terms and
conditions of employment.14
Accordingly, and contrary to the judge, we find that by
threatening to compel arbitration on an individual rather
than class or collective basis, the Respondent has applied
the Notice to Applicant and Arbitration Agreement to
restrict Section 7 rights, in violation of Section 8(a)(1)
under Lutheran Heritage Village-Livonia, supra. Leslie’s
Poolmart, supra, 362 NLRB No. 184, slip op. at 1 fn. 3;
Countrywide Financial Corp., supra.15

13 See, e.g., Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip
op. at 1 fn. 3 (2014), affd. 2015 WL 6161477, ___Fed.Appx. ___ (2d
Cir. 2015).
14 We reject our dissenting colleague’s view that the Respond-
ent’s stated intent to move to compel arbitration was protected by the
First Amendment’s Petition Clause. In Bill Johnson’s Restaurants v.
NLRB, 461 U.S. 731 (1983), the Court identified two situations in
which a lawsuit enjoys no such protection: where the action is beyond
a State court’s jurisdiction because of Federal preemption, and where
“a suit . . . has an objective that is illegal under federal law.” 461
U.S. at 737 fn. 5. Thus, the Board may properly restrain litigation
efforts such as the Respondent’s motion to compel arbitration that
have the illegal objective of limiting employees’ Sec. 7 rights and
enforcing an unlawful contractual provision, even if the litigation
was otherwise meritorious or reasonable. See Murphy Oil, supra,
slip op. at 20–21; Convergys Corp., 363 NLRB No. 51, slip op. at 2 fn.
5 (2015).
15 Our dissenting colleague, relying on his dissenting position in
Murphy Oil, supra, slip. op. at 22–35 (2015), would find that the Re-
spondent’s arbitration policy does not violate Sec. 8(a)(1). He observes
that the Act does not “dictate” any particular procedures for the
litigation of non-NLRA claims, and “creates no substantive right for
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 2.
“(2) By maintaining a mandatory Notice to Applicant
that employees would reasonably conclude precludes
them from filing unfair labor practice charges with the
Board, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act, and has violated Section 8(a)(1)
of the Act.”
2. Substitute the following for the judge’s Conclusion
of Law 3.
“(3) By maintaining or threatening to enforce/apply its
mandatory Notice to Applicant and Arbitration Agree-
ment in a manner that requires employees, as a condition
of employment, to waive the right to pursue class or col-
lective actions in any forum, whether arbitral or judicial,
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act, and has violated Section 8(a)(1) of the
Act.”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order the Respondent
to cease and desist and take certain affirmative action
designed to effectuate the policies of the Act. We shall
order the Respondent to rescind or revise the Notice to
Applicant and Arbitration Agreement.16
ORDER
The Respondent, Haynes Building Services, LLC,
Monrovia, California, its officers, agents, successors, and
assigns, shall

employees to insist on class-type treatment” of such claims. This is
all surely correct, as the Board has previously explained in Murphy
Oil, supra, slip op. at 2 and Bristol Farms, 363 NLRB No. 45, slip
op. at 2 fn. 2. (2015). But what our colleague ignores is that the Act
does “create a right to pursue joint, class, or collective claims if and
as available, without the interference of an employer-imposed re-
straint.” Murphy Oil, supra, slip. op. at 2 (emphasis in original). The
Respondent’s arbitration policy as set forth in the Notice to Applicants
and Arbitration Agreement and as applied by the Respondent consti-
tutes just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding its Notice
to Applicant and Arbitration Agreement unlawful runs afoul of em-
ployees’ Sec. 7 right to “refrain from” engaging in protected concerted
activity. See Murphy Oil, supra. slip op. at 18; Bristol Farms, supra,
slip op. at 3. Nor is he correct in insisting that Sec. 9(a) of the Act
requires the Board to permit individual employees to prospectively
waive their Sec. 7 right to engage in concerted legal activity. See Mur-
phy Oil, supra, slip op. at 17–18; Bristol Farms, supra, slip op. at 2.
16 Following the close of the hearing, the Board was advised that the
Respondent and Charging Party entered into a non-Board settlement
agreement that resolved the wage and hour lawsuit.
HAYNES BUILDING SERVICES, LLC 5
1. Cease and desist from
(a) Maintaining a mandatory Notice to Applicant that
employees reasonably would conclude bars or restricts
their right to file charges with the National Labor Rela-
tions Board.
(b) Maintaining or threatening to enforce/apply a man-
datory Notice to Applicant and Arbitration Agreement in
the Employment Agreement in a manner that requires
employees, as a condition of employment, to waive the
right to pursue class or collective actions in all forums,
whether arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Notice to Applicant in all of its forms,
or revise it in all of its forms to make clear to employees
that it does not restrict employees’ right to file charges
with the National Labor Relations Board, or constitute a
waiver of your right to maintain employment–related
joint, class, or collective actions in all forums.
(b) Notify all applicants and current and former em-
ployees who were required to sign or otherwise become
bound to the Notice to Applicant in any form that it has
been rescinded or revised and, if revised, provide them a
copy of the revised Notice to Applicant.
(c) Rescind the Arbitration Agreement in the Employ-
ment 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 constitute a waiver of their right to
maintain employment-related joint, class, or collective
actions in all forums.
(d) Notify all current and former employees who were
required to sign or otherwise become bound to the Arbi-
tration Agreement in the Employment Agreement in any
form that it has been rescinded or revised and, if revised,
provide them a copy of the revised Notice to Applicant.
(e) Within 14 days after service by the Region, post at
its Monrovia, California facility copies of the attached
notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 31,
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

17 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.”
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 the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by Respondent at any
time since May 28, 2012.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 23, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, the Respondent required employees to
sign two documents, a Notice to Applicant and an Em-
ployment Agreement containing an Arbitration Agree-
ment (collectively, “the Agreement”), which provided for
the arbitration of non-NLRA employment-related claims.
The Agreement was silent regarding class arbitration.
Charging Party J. Tadeo Gomez-Flores signed the
Agreement and later filed a class action lawsuit against
the Respondent in California state court alleging wage
and hour violations. In reliance on the Agreement, the
Respondent’s counsel advised the Charging Party that, if
he did not agree to dismiss the lawsuit and arbitrate his
individual wage and hour claims, the Respondent would
promptly move to compel arbitration.
My colleagues find that the Respondent violated
NLRA Section 8(a)(1) under Lutheran Heritage Village–
Livonia1 on the basis that the Respondent applied the
Agreement to require individual arbitration. In other

1 343 NLRB 646 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
words, it applied the Agreement as a waiver of class-type
treatment of non-NLRA claims.2 I respectfully dissent
from this finding for the reasons explained in my partial
dissenting opinion in Murphy Oil USA, Inc.3 I concur,
however, in my colleagues’ finding that the Notice to
Applicant violates the Act because employees would
reasonably read it to restrict or preclude filing charges
with the Board.
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.4 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-

2 My colleagues rely on the Board’s holding in Lutheran Heritage,
which is sometimes referred to as Lutheran Heritage “prong three,”
that a policy, work rule or handbook provision will be unlawful if it
“has been applied to restrict the exercise of Section 7 rights.” Id. at
647. This differs from another holding in Lutheran Heritage, some-
times referred to as Lutheran Heritage “prong one,” under which a
policy, work rule or handbook provision is invalidated if “employees
would reasonably construe the language to prohibit Section 7 activity.”
Id. I have expressed disagreement with Lutheran Heritage prong one,
and I advocate that the Board formulate a different standard in an ap-
propriate future case regarding facially neutral policies, work rules, and
handbook provisions. See, e.g., Lily Transportation Corp., 362 NLRB
No. 54, slip op. at 1 fn. 3 (2015); Conagra Foods, Inc., 361 NLRB No.
113, slip op. at 8 fn. 2 (2014); Triple Play Sports Bar & Grille, 361
NLRB No. 31, slip op. at 10 fn. 3 (2014), affd. sub nom. Three D, LLC
v. NLRB, Nos. 14–3284, –3814, 2015 WL 6161477 (2d Cir. Oct. 21,
2015). In the instant case, for the reasons noted in the text, I disagree
with my colleagues’ finding in reliance on Lutheran Heritage prong
three that the Agreement has been unlawfully applied to restrict the
exercise of Section 7 rights.
3 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part); see also Philmar Care, LLC d/b/a San Fernando
Post Acute Hospital, 363 NLRB No. 57, slip op. at 3–5 (2015) (Mem-
ber Miscimarra, dissenting). The Board majority’s holding in Murphy
Oil invalidating class-action waiver agreements was recently denied
enforcement by the Court of Appeals for the Fifth Circuit. Murphy Oil
USA, Inc. v. NLRB, No. 14–60800, 2015 WL 6457613 (5th Cir. Oct.
26, 2015).
4 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
just” grievances “at any time.”5 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;6 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;7 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).8 Although questions may arise regard-

5 Murphy Oil, above, slip op. at 30-34 (Member Miscimarra, dissent-
ing in part). Sec. 9(a) states: “Representatives designated or selected
for the purposes of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the exclusive repre-
sentatives of all the employees in such unit for the purposes of collec-
tive bargaining in respect to rates of pay, wages, hours of employment,
or other conditions of employment: Provided, That any individual
employee or a group of employees shall have the right at any time to
present grievances to their employer and to have such grievances ad-
justed, without the intervention of the bargaining representative, as long
as the adjustment is not inconsistent with the terms of a collective-
bargaining contract or agreement then in effect: Provided further, That
the bargaining representative has been given opportunity to be present
at such adjustment” (emphasis added). The Act’s legislative history
shows that Congress intended to preserve every individual employee’s
right to “adjust” any employment-related dispute with his or her em-
ployer. See Murphy Oil, above, slip op. at 31–32 (Member Miscimarra,
dissenting in part).
6 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
7 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D.R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., 96 F.Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco
USA, Inc., 99 F.Supp. 3d 1072 (N.D. Cal. 2015), motion to certify for
interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30,
2015); Brown v. Citicorp Credit Services, No. 1:12-CV-00062-BLW,
2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration
of prior determination that class waiver in arbitration agreement violat-
ed NLRA).
8 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
HAYNES BUILDING SERVICES, LLC 7
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
Because I believe the Respondent’s Agreement, as ap-
plied, was lawful under the NLRA, I would find it was
similarly lawful for the Respondent to seek to enforce the
Agreement by informing the Charging Party’s attorney
that if the Charging Party did not agree to dismiss the
class action lawsuit and arbitrate his claims on an indi-
vidual basis, the Respondent would file a motion to com-
pel arbitration.9 That such a motion would be reasonably
based is supported by court decisions that have enforced
similar agreements.10 I also believe that any Board find-
ing of a violation based on the Respondent’s stated intent
to file a motion to compel arbitration in the Charging
Party’s state court lawsuit would improperly risk infring-
ing on the Respondent’s rights under the First Amend-
ment’s Petition Clause. See Bill Johnson’s Restaurants
v. NLRB, 461 U.S. 731 (1983); BE & K Construction Co.
v. NLRB, 536 U.S. 516 (2002); see also my partial dis-
sent in Murphy Oil, above, 361 NLRB No. 72, slip op. at
33–35.

ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
9 The Agreement was silent as to whether arbitration may be con-
ducted on a class or collective basis. In finding the Respondent’s letter
to Charging Party’s counsel unlawful, my colleagues rely on Country-
wide Financial Corp., 362 NLRB No. 165 (2015), and Leslie’s
Poolmart, Inc., 362 NLRB No. 184 (2015). In these cases, a Board
majority decided that the employer violated the Act by moving to com-
pel individual arbitration based on an arbitration agreement that, like
the Respondent’s, was silent regarding the arbitrability of class and
collective claims. For the reasons stated in former Member Johnson’s
dissent in Countrywide Financial, however, above, slip op. at 8–10, the
Board’s decisions in those cases are in conflict with the FAA and Su-
preme Court precedent construing that statute. The Court has held that
a “party may not be compelled under the FAA to submit to class arbi-
tration unless there is a contractual basis for concluding that the party
agreed to do so.” Stolt-Nielsen S. A. v. Animal Feeds International
Corp., 559 U.S. 662, 684–685 (2010) (emphasis in original). Obvious-
ly, where an arbitration agreement is silent regarding class arbitration,
there is no such contractual basis. Thus, because a motion to compel
individual arbitration would have been “well-founded in the FAA as
authoritatively interpreted by the Supreme Court,” Philmar Care, LLC
d/b/a San Fernando Post Acute Hospital, above, slip op. at 4 fn. 11
(Member Miscimarra, dissenting), it was not unlawful for the Respond-
ent to inform the Charging Party that a motion to compel arbitration
would be filed if he did not agree to dismiss his lawsuit and arbitrate his
claims on an individual basis.
10 See, e.g., Murphy Oil, Inc., USA v. NLRB, above;
Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D.
R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d
1050 (8th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290
(2d Cir. 2013).
Accordingly, as to these issues, I respectfully dissent.11
Dated, Washington, D.C. February 23, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

11 For the following reasons, however, I concur with my colleagues’
finding that the Respondent’s Notice to Applicant unlawfully interferes
with NLRB charge-filing in violation of Sec. 8(a)(1). All job appli-
cants were required to sign the Notice to Applicant, which reads as
follows:
I agree to submit to an obligatory arbitration for all disputes and com-
plaints that arise from the submission of this application. Further-
more, if I am hired by this Company, I am in agreement that all dis-
putes or complaints that cannot be resolved within the Company and
informally shall be submitted to obligatory arbitration conducted un-
der the Association of Arbitration’s rules.
For the reasons stated in my separate opinion in Rose Group d/b/a
Applebee’s Restaurant, 363 NLRB No. 75, slip op. at 3–5 (2015)
(Member Miscimarra, dissenting in part), I believe that an agreement
may lawfully provide for the arbitration of NLRA claims, and such an
agreement does not unlawfully prohibit the filing of charges with the
Board, particularly when the right to do so is expressly stated in the
agreement itself. Here, however, the Notice to Applicant does not
make clear that employees retain the right to file charges with the
Board or, more generally, with administrative agencies. Moreover, the
Notice to Applicant is not rendered lawful by the statement in the sepa-
rate Arbitration Agreement that “[i]n conformity to the pertinent law,
this agreement for arbitrating disputes will not prevent you from filing
a charge or complaint with an administrative government agency.”
First, while there is no contention that the Arbitration Agreement itself
interferes with NLRB charge-filing, that document was only provided
to those applicants who were offered employment, so its statement
preserving the right to file charges with an administrative agency would
have no effect on applicants who signed the Notice to Applicant but
were not offered employment. Second, by its terms the language quot-
ed above only applies to “this agreement,” i.e., the Arbitration Agree-
ment. The separate Notice to Applicant does not refer to or incorporate
the Arbitration Agreement. Rather, the Notice to Applicant is worded
as a separate, free-standing agreement, and it does not similarly pre-
serve employees’ right to file charges with an administrative agency.
For these reasons, I join my colleagues in finding that the Notice to
Applicant interferes with NLRB charge-filing in violation of Sec.
8(a)(1). See U-Haul Co. of California, 347 NLRB 375, 377(2006),
enfd. mem. 255 Fed.Appx. 527 (D.C. Cir. 2007); Murphy Oil, above,
slip op. at 22 fn. 4 (Member Miscimarra, dissenting in part); The Rose
Group d/b/a Applebee’s Restaurant, above, slip op. at 4–5 (Member
Miscimarra, dissenting in part). I also join my colleagues in rejecting
the Respondent’s view that such a finding is precluded by the Federal
Arbitration Act. See Sec. 10(a) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory Notice to Appli-
cant that employees reasonably would believe bars or
restricts their right to file charges with the National La-
bor Relations Board.
WE WILL NOT maintain or threaten to enforce/apply a
mandatory Notice to Applicant and Arbitration Agree-
ment in our Employment Agreement in a manner that
requires employees, as a condition of employment, to
waive the right to pursue class or collective actions in all
forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Notice to Applicant in all of its
forms, or revise it in all of its forms to make clear that
the Notice to Applicant does not restrict your right to file
charges with the National Labor Relations Board, and
does not constitute a waiver of your right to maintain
employment–related joint, class, or collective actions in
all forums.
WE WILL notify all applicants and current and former
employees who were required to sign or otherwise be-
come bound to the Notice to Applicant in all of its forms
that the Notice to Applicant has been rescinded or re-
vised and, if revised, WE WILL provide them a copy of the
revised agreement.
WE WILL rescind the Arbitration Agreement in the
Employment Agreement in all of its forms, or revise it in
all of its forms to make clear that the Arbitration Agree-
ment does not constitute a waiver of your right to main-
tain employment-related joint, class, or collective actions
in all forums.
WE WILL notify all employees who were required to
sign or otherwise become bound to the Arbitration
Agreement in all of its forms that the Arbitration Agree-
ment has been rescinded or revised and, if revised, WE
WILL provide them a copy of the revised agreement.
HAYNES BUILDING SERVICES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/31–CA–093920 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
Nicole Pereira, Esq., for the General Counsel.
Jeffrey P. Fuchsman, Esq. (Ballard, Rosenberg, Golper &
Savitt), of Glendale, California, for the Respondent.
Ari E. Moss, Esq., of Sherman Oaks, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Based on
the parties’ stipulated record, I conclude that the Respondent
violated Section 8(a)(1) of the Act by including, in a notice to
job applicants, language that applicants reasonably would un-
derstand to preclude them from filing unfair labor practices
with the National Labor Relations Board. However, I recom-
mend that the Board dismiss allegations that Respondent vio-
lated the Act by requiring employees to sign an “Agreement for
Arbitrating Disputes” and enforcing it in a manner which ex-
cluded class actions.
Procedural History
This case began on November 28, 2012, when the Charging
Party, J. Tadeo Gomez-Flores, filed an unfair labor practice
charge against the Respondent, Haynes Building Services, LLP.
Region 31 of the National Labor Relations Board docketed the
charge as Case 31–CA–093920. On January 15, 2013, the
Charging Party amended this charge.
On June 27, 2013, after an investigation, the Regional Direc-
tor for Region 31, acting with authority delegated by the
Board’s General Counsel, issued a complaint against the Re-
spondent. On July 3, 2013, the General Counsel issued a cor-
rected complaint. (For brevity, the corrected complaint will be
referred to simply as the “complaint.”) Respondent filed a
timely answer.
On November 14, 2013, the Respondent and the Charging
Party, by counsel, executed a joint motion to transfer proceed-
ings to the Division of Judges and stipulation of facts. On No-
vember 15, 2013, counsel for the General Counsel executed this
same document. There, the parties expressly waived a hearing
before an administrative law judge, submitted the matter direct-
ly to the Division of Judges for decision, and moved that the
HAYNES BUILDING SERVICES, LLC 9
administrative law judge set a deadline for filing briefs.
On November 21, 2013, I issued an order accepting stipulat-
ed record and waiver of hearing and establishing briefing date.
Although that order set a December 23, 2013 deadline for re-
ceipt of briefs, a subsequent order extended that deadline to
January 13, 2013.
I base the following findings of fact and conclusions of law
on the parties’ stipulation, considered in light of the arguments
which counsel raised in their respective briefs.
Facts
The parties stipulated, and I find, that at all material times
the Respondent, a corporation with an office and place of busi-
ness in Monrovia, California, has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Further, based on the parties’ stipulation that, during
the calendar year ending December 31, 2012, Respondent per-
formed services valued in excess of $50,000 in states other than
California, I conclude that Respondent meets the Board’s dis-
cretionary standards for the exercise of its jurisdiction.
At all material times, the Respondent has maintained a “No-
tice to Applicant” document which all applicants, including the
Charging Party, have been required to sign before beginning
work. The original “Notice to Applicant” is in Spanish. It
includes a provision regarding submission of disputes to arbi-
tration. In English translation, that provision states as follows:
I agree to submit to an obligatory arbitration for all
disputes and complaints that arise from the submission of
this application. Furthermore, if I am hired by this Com-
pany, I am in agreement that all disputes or complaints
that cannot be resolved within the Company and informal-
ly shall be submitted to obligatory arbitration conducted
under the Association of Arbitration’s rules.
At all material times, Respondent has maintained an em-
ployment agreement which includes a provision titled,
“Agreement for Arbitrating Disputes.” The original employ-
ment agreement is in Spanish. The following is an English
translation of the “Agreement for Arbitrating Disputes” (with
capitalization and grammar as rendered by the translator):
AGREEMENT FOR ARBIRTATING DISPUTES. ALL
DISPUTES, CONTROVERSIES, OR CLAILMS THAT
ARISES FROM, INVOLVES/AFFECTS OR IS IN SOME
WAY RELATED TO THE CURRENT AGREEMENT OR
IS IN BREACH THAT SAME AGREEMENT, OR IF IT
ARISES FROM, INVOLVES, AFFECTS, OR IS IN SOME
WAY RELATED WITH YOUR EMPLOYMENT OR
WITH THE CONDITIONS OF YOUR EMPLOYMENT,
OR WITH THE TERMINATION OF YOUR
EMPLOYMENT, OBLIGATORY AND DEFINITIVE, IN
CONFORMITY WITH FEDERAL ARBITRATION LAW,
IN AGREEMENT WITH THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, OF THE
STATE OF CALIFORNIA. THE ARBITRATOR SHALL
HAVE THE RIGHT TO AWARD ATTORNEY FEES AND
REASONABLE COST TO THE PREVAILING PARTY.
THE AWARD SHALL BE IN WRITING, SIGNED BY
THE ARBITRATOR. AND IT SHALL CARRY THE
REASONS FOR THE AWARD. THE ARBITRATOR’S
DECISION TO AWARD CAN BE PRESENTED BEFORE
ANY COURT WITH JURISDICTION FOR
ENFORCEMENT. IN CONFORMITY TO THE
PERTINENT LAW, THIS AGREEMENT FOR
ARBITRATING DISPUTES WILL NOT PREVENT YOU
FROM FILING A CHARGE OR COMPLAINT WITH AN
ADMINISTRATIVE GOVERNMENT AGENCY.
On October 11, 2012, the Charging Party, formerly em-
ployed by Respondent, filed a class action lawsuit against Re-
spondent in the Superior Court for the State of California,
County of Los Angeles. It alleged, among other things, that the
Respondent did not provide accurate wage statements and
committed other wage and hour violations of the California
Labor Code.
On November 19, 2012, Respondent’s attorney sent a letter
to the lawyer representing the Charging Party in the wage and
hour lawsuit.1 That letter stated, in pertinent part, as follows:
Because this lawsuit was only recently filed, you may
not be aware that Mr. Gamez-Flores signed the enclosed
“Notice to Applicant” and “Employment Agreement” on
January 27, 2009 and January 29, 2009, respectively
(Bates Nos. DEFS-0000 I - DEPS-00002; collectively, the
“Agreement”). As stated in the Agreement, Mr. Gamez-
Flores has agreed to submit all disputes and claims arising
out of his employment to final and binding arbitration un-
der the rules of the American Arbitration Association.
In Stolt-Nielsen S.A. v. AnimalFeeds Intl Corp. (2010),
130 S.Ct. 1758, the U.S. Supreme Court held that where,
as here, the arbitration agreement is silent on class arbitra-
tion, class arbitration is not permitted. More recently, in
AT & T Mobility v. Concepcion (2011) 131 S.Ct. 1740, the
U.S. Supreme Court held that California’s “Discover
Bank” rule which purports to prohibit class action waivers
in arbitration agreements is preempted by the Federal Ar-
bitration Act.
Several recent decisions by the California Court of
Appeal have concluded That Stolt-Nielson and Concep-
cion require individual arbitration of wage and hour claims
under arbitration agreements that are indistinguishable
from the Agreement signed by Mr. Gomez-Flores.
Kinecta Alternative Financial Solutions, Inc. v. Superior
Court (2012) 205 Cal.App.4th 506; Reyes v, Liberman
Broadcasting, Inc. (2012) 2012 Cal.App. LEXIS 945; Nel-
son v. Legacy Partners Residential, Inc. (2012) 207
Cal.App.4th 1115; Truly Nolen of America v. Superior
Court (20(2) 208 Cal.App.4th 487.
On behalf of the Company, we hereby demand that
Mr. Gamez-Flores submit his individual claims alleged in

1 The letter from Respondent’s attorney frequently, but not always,
spelled the Charging Party’s name as “Gamez–Flores” rather than
“Gomez–Flores,” and included a footnote stating that the complaint in
the lawsuit “erroneously refers to Plaintiff as Gomez–Flores.” Howev-
er, various documents in the present case, including the stipulation of
facts and the complaint, spell the Charging Party’s name “Gomez–
Flores” and I will follow that practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
the lawsuit to final and binding arbitration in accordance
with the terms of the agreement. Please let us know at
your earliest convenience if Mr. Gamez-Flores intends to
abide by the agreement. If Mr. Gamez-Flores will not
agree to dismiss the lawsuit and pursue his individual
claims in arbitration, the Company will promptly move to
compel arbitration.
Please let us know if you have any questions regarding
our clients’ position, or would like to discuss further at this
time. Thank you. [Footnote omitted.]
Alleged Violations
Complaint Allegations
Complaint paragraph 7 alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by engaging in certain conduct described
in complaint paragraphs 4, 5, and 6. Complaint paragraph 4
states:
At all material times, Respondent has maintained and required
applicants to execute a Notice to Applicant, which contains
provisions that employees would reasonably conclude pre-
clude them from filing unfair labor practice charges with the
Board.
In the stipulation discussed above, Respondent has admitted
that at all material times it has maintained and required appli-
cants to execute a Notice to Applicant, a copy of which is in the
record. However, it denies that this document contains provi-
sions that employees would reasonably conclude preclude them
from filing unfair labor practice charges with the Board.
Accordingly, I must decide whether the notice to applicant
includes provisions which employees reasonably would con-
clude preclude them from filing charges with the Board, and, if
so, whether the Respondent thereby violated Section 8(a)(1) of
the Act.
Complaint paragraph 5 states as follows:
At all material times, Respondent has maintained and required
applicants to execute an Employment Agreement, which con-
tains a provision titled “Agreement for Arbitrating Disputes”
(herein referred to as the “Arbitration Agreement”).
The Respondent has stipulated that at all material times, it
maintained an employment agreement containing a provision
titled, “Agreement for Arbitrating Disputes” and I so find. A
copy of this document is included in the stipulated record.
However, the Respondent has not stipulated that it required
applicants to sign the employment agreement or the agreement
for arbitrating disputes within it. Respondent’s answer “admits
that some applicants have executed a document entitled, ‘Em-
ployment Agreement’ which includes a provision which re-
quires arbitration of certain employment disputes (“Arbitration
Agreement”). Except as admitted herein, Respondent denies
each and every remaining allegation set forth therein.”
Based on the stipulated record, I cannot conclude that Re-
spondent required job applicants to sign either the Employment
Agreement or the Arbitration Agreement as a condition of be-
ing hired. Respondent’s admission that some applicants exe-
cuted the document would be consistent with a conclusion that
other applicants did not sign the documents but were hired
nonetheless. Similarly, the stipulation leaves open the possibil-
ity that Respondent may have hired one or more job applicants
who signed the “Employment Agreement” but scratched out the
“Arbitration Agreement.”
The parties’ stipulation did include a statement of the legal
issues which seems to assume that Respondent required all job
applicants to sign the Arbitration Agreement.2 The parties’
included among the legal issues the question of whether Re-
spondent violated Section 8(a)(1) by “maintaining and requir-
ing applicants to execute an Employment Agreement, which
contains a provision titled ‘Agreement for Arbitrating Dis-
putes’. . .”
However, Respondent’s answer denied that it required all job
applicants to sign these provisions as a condition of employ-
ment and the language of the stipulation does not clearly estab-
lish the contrary. In these circumstances, and considering the
possibility that a job applicant might have crossed out the arbi-
tration agreement language yet still have been hired, I do not
feel comfortable concluding that Respondent invariably re-
quired all job applicants to agree to this particular term. I find
that at all material times, Respondent asked employees to sign
these provisions, but do not find that Respondent denied em-
ployment to any applicant who refused to sign or who marked
these provisions, by lining or scratching out, to signify that he
or she did not agree to them.
Complaint paragraph 6 states, in pertinent part, as follows:
Since at least November 19, 2012, Respondent has main-
tained and enforced its Arbitration Agreement described
above in paragraph 5 by asserting it in a letter to Kenneth A.
Goldman, Esq., Charging Party’s attorney in his wage and
hour class action lawsuit and demanding that the Charging
Party submit his individual claims to arbitration per the Arbi-
tration Agreement described above in paragraph 5.
In its answer, Respondent admitted these allegations. Addi-
tionally, the stipulated record includes the November 19, 2012
letter, which is quoted above.
It should be noted that the complaint does not allege that Re-
spondent violated the Act by requiring that the Charging Party
agree to the arbitration provisions. The Charging Party did so
in 2009, which was more than 6 months before he filed the
unfair labor practice charge. The 6-month “statute of limita-
tions” in Section 10(b) of the Act would have barred the litiga-

2 In the “Statement of Issues” section of the stipulated record, the
parties agreed that the legal issues to be resolved are whether the Re-
spondent violated Sec. 8(a)(1) of the Act by:
(1) maintaining and requiring applicants to execute a notice to
applicant, which contains provisions that employees would rea-
sonably conclude preclude them from filing unfair labor practice
charges with the Board;
(2) maintaining and requiring applicants to execute an em-
ployment agreement, which contains a provision titled “Agree-
ment for Arbitrating Disputes;” and
(3) maintaining and enforcing its employment agreement by
asserting it in a letter to Charging Party’s Attorney Kenneth A.
Goldman, Esq., dated November 19, 2012, regarding his wage
and hour class action lawsuit and demanding that Charging
Party submit his individual claims to arbitration per the
employment agreement.
HAYNES BUILDING SERVICES, LLC 11
tion of such an allegation.
However, as discussed above, the complaint does allege that
Respondent violated the Act by maintaining and enforcing the
arbitration agreement requirement. The General Counsel’s
Brief, citing Control Services, 305 NLRB 435, 435 fn. 2
(1990), 442 (1991), enfd. mem. 961 F.2d 1568 (3d Cir. 1992)
and Guard Publishing Co., 351 NLRB 1110, 1110 fn. 2 (2007),
argues, in part, as follows:
Here, although the arbitration policy as set forth in the Notice
to Applicant and Employment Agreement had been promul-
gated more than six months before the charge was served, Re-
spondent continued to maintain and enforce the arbitration
policy into the Section 10(b) period as amply evidenced by
Respondent’s attempt to enforce it through its November 19,
2012 letter to the Charging Party. As such, the maintenance
and enforcement of Respondent’s arbitration policy within the
Section 10(b) period was unlawful even though the Notice to
Applicant and Employment Agreement were promulgated be-
fore then.
In agreement with the General Counsel, I conclude that Sec-
tion 10(b) does not bar litigation of the allegations raised in
complaint paragraphs 4, 5, and 6. Guard Publishing Co.,
above; Fluor Daniel, Inc., 333 NLRB 427 (2001).
Analysis
Complaint Paragraph 4
Complaint paragraph 4 alleges that at all times Respondent
has required job applicants to execute a Notice to Applicant
containing provisions that employees reasonably would con-
clude preclude them from filing unfair labor practice charges
with the Board. The Notice to Applicant, set forth in full
above, includes two sentences, each a separate agreement,
which will be discussed individually.
The first sentence agrees to submit to arbitration all disputes
arising from the application process. However, the notice to
applicant includes no limiting language which would make
clear that it does not preclude the filing of an unfair labor prac-
tice charge. I conclude that someone reading this notice rea-
sonably would conclude that it applied to unfair labor practices
such as a refusal to hire or a refusal to consider for hire because
of the applicant’s union activities or membership. Therefore, I
further conclude that it violates Section 8(a)(1) of the Act. See
D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. in pertinent
part 737 F.3d 344 (5th Cir. 2013).
The second sentence of the notice to applicant amounts to
the applicant’s promise that, if hired, he or she would submit all
employment-related disputes to arbitration. If considered in
isolation, it also reasonably would lead to the conclusion that it
precluded filing of a charge with the Board, but I must consider
whether the Respondent has cured the problem through further
communication.
This second sentence on the Notice to Applicant has no im-
mediate effect but only applies to matters that arise after the
applicant is hired. However, if an applicant is hired he or she
receives another form to sign. This “Agreement for Arbitrating
Disputes” includes the following sentence: “IN
CONFORMITY TO THE PERTINENT LAW, THIS
AGREEMENT FOR ARBITRATING DISPUTES WILL NOT
PREVENT YOU FROM FILING A CHARGE OR
COMPLAINT WITH AN ADMINISTRATIVE
GOVERNMENT AGENCY.” (Capitalization in original.)
Arguably, even if the applicant felt precluded from filing an
unfair labor practice charge, this disclaimer would assure that
such a misimpression would not continue. However, I reject
that argument. The disclaimer specifically applies to “this
agreement,” namely the agreement for arbitrating disputes
which the applicant receives when hired. It says nothing about
the previous agreement, embodied in the second sentence of the
notice to applicant. Someone reading the disclaimer reasonably
would conclude that the previous agreement had not been re-
pealed or superseded but remained in effect. Although the
agreement for arbitrating disputes did not preclude the filing of
an unfair labor practice charge, the agreement in the notice to
applicant reasonably would be understood to continue to have
that preclusive effect.
Accordingly I recommend that the Board find that Respond-
ent, by the conduct alleged in complaint paragraph 4, violated
Section 8(a)(1) of the Act.
Complaint Paragraphs 5 and 6
Complaint paragraph 5 alleges that, at all material times, Re-
spondent required applicants to sign an employment agreement
which included an agreement for arbitrating disputes. For the
reasons discussed above, I do not believe that the stipulated
facts are sufficient to contradict and overcome the denial in
Respondent’s answer.
The stipulated facts do support an inference that the Re-
spondent routinely tendered the employment agreement to ap-
plicants at the time of hire and thereby created the reasonable
impression that agreeing to the agreement for arbitrating dis-
putes was a condition of obtaining employment. However, I
stop short of finding that the Respondent denied employment to
any applicant who refused to sign, because the stipulated facts
do not address such a situation.
Complaint paragraph 6 pertains to a letter which Respond-
ent’s counsel sent to the Charging Party’s lawyer, who had filed
a wage and hour class action lawsuit against Respondent. This
letter, set forth above, demanded that the Charging Party submit
the wage and hour claims to arbitration, pursuant to the agree-
ment which the Charging Party had signed in 2009 when he
began work for Respondent. The complaint alleges that the
Respondent “maintained and enforced” the arbitration agree-
ment by sending this letter.
However, the complaint does not allege that the Respondent
took any other action to “maintain and enforce” the agreement
to arbitrate. The letter stated that if the Charging Party “will
not agree to dismiss the lawsuit and pursue his individual
claims in arbitration, the Company will promptly move to com-
pel arbitration.” However, the complaint does not allege that
Respondent moved to compel arbitration or took any other step,
apart from sending the letter, to enforce the agreement to arbi-
trate.
At the time Charging Party filed the class action wage and
hour lawsuit, he no longer was working for Respondent. The
complaint does not allege that the Respondent took any em-
ployment-related action against the Charging Party for filing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
the lawsuit. Nonetheless, the General Counsel argues that the
Respondent’s letter sufficed to violate Section 8(a)(1). The
General Counsel’s brief states, in part, as follows:
Under the test set forth in Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004), specifically applied by the Board
to mandatory arbitration agreements in D. R. Horton, a Sec-
tion 8(a)(1) violation will be found where, as in this case, a
rule or policy has been applied to restrict the exercise of Sec-
tion 7 rights. Like the agreement in D. R. Horton, the Re-
spondent’s arbitration policy as invoked by the [Respondent’s
counsel’s] November 19, 2012 letter, plainly limits Section 7
activity and, as a term or condition of employment, violates
Section 8(a)(1).
The General Counsel thus argues that “a rule or policy has
been applied to restrict the exercise of Section 7 rights.” It is
appropriate to ask what Section 7 rights have been restricted,
and how?
Without doubt, by “exercise of Section 7 rights,” the General
Counsel refers to the Charging Party’s class action wage and
hour lawsuit against Respondent. As will be discussed below,
the Government contends that this class action lawsuit consti-
tutes concerted activity protected by Section 7. Moreover, the
stipulated record reveals no other Section 7 activity.
The General Counsel’s brief, quoted above, argues that the
Respondent’s November 19, 2012 letter invoked an arbitration
policy. That is not strictly correct. The letter referred to a spe-
cific agreement, the one signed by the Charging Party in 2009.
The government has not alleged that Respondent acted unlaw-
fully when the Charging Party signed this agreement and, be-
cause of Section 10(b), litigation of such an allegation would be
barred.
The Respondent did not threaten to take any action against
the Charging Party except to respond to the lawsuit by seeking
a court order to compel arbitration pursuant to the agreement.
Moreover, there is no evidence that the Respondent did even
that. In these circumstances, I conclude that Respondent took
no action to interfere with, restrain, or coerce an employee in
the exercise of Section 7 rights. Therefore, I recommend that
the Board dismiss this allegation.
It is possible, of course, that the Board will disagree with this
analysis and, if so, further questions must be addressed. There-
fore, I include the analysis below. It is my conclusion that
Supreme Court decisions, issued after the Board’s decision in
D. R. Horton, relieve that case’s rationale of its vitality.
Further Analysis
For clarity, it is appropriate to begin by addressing some ra-
ther unusual aspects of this case. At first blush, the Charging
Party’s status as an employee may seem somewhat attenuated.
He filed the lawsuit against Respondent after he stopped work-
ing for Respondent and had received his final pay, which was
not as much as he believed he was owed. However, under es-
tablished precedent, he continued to meet the statute’s broad
definition of employee and remained under the Act’s protec-
tion. As the Board stated in Waco, Inc., 273 NLRB 746, 747
(1984),
The fact that these employees were no longer em-
ployed by the Respondent does not strip them of their Sec.
7 rights. It is well settled that employees are not protected
merely for activity within the scope of their employment
relationship, but may engage in other activities for mutual
aid or protection. Eastex, Inc. v. NLRB, 437 U.S. 556
(1978). The Act provides in Sec. 2(3) that “The term ‘em-
ployee’ shall include any employee, and shall include any
individual whose work has ceased as a consequence of, or
in connection with, any current labor dispute. . . .” Thus,
we have held that a discharged employee remains a statu-
tory employee entitled to the full protection of the Act.
Little Rock Crate & Basket Co., 227 NLRB 1406 (1977),
and cases cited therein.
Accordingly, I conclude that the Charging Party met the Act’s
definition of “employee” and was fully entitled to the Act’s
protection.
The Charging Party’s protected activity also differs from the
typical concerted activity often seen in unfair labor practice
cases. Apart from cases involving union activity, one familiar
form of protected activity involves two or more employees
discussing a work-related problem. See, e.g., Ellison Media
Co., 344 NLRB 1112 (2005) (two employees talking about
sexually suggestive comments by a supervisor). Another not
uncommon form of protected concerted activity involves an
employee voicing the concerns of other employees about terms
or conditions of employment. See, e.g., Five Star Transporta-
tion, Inc., 349 NLRB 42 (2007) (statements concerning em-
ployees’ working conditions were protected but statements
unrelated to working conditions and disparaging the employer
were not).
In the present case, it is not so intuitive that the Charging
Party’s activities were concerted. The record does not establish
that the Charging Party spoke with any other employee before
going to the courthouse and filing the lawsuit. Moreover, alt-
hough some activities, such as a picket line, have the “flavor”
of concerted action, one person filing a lawsuit does not fit
within that stereotype. Nonetheless, I conclude that it consti-
tuted concerted activity which the statute protects.
The Charging Party’s class action lawsuit concerned an un-
disputed, and indeed central, term and condition of employ-
ment: Wages. Moreover, the pleadings filed by the Charging
Party unequivocally identified him as seeking to represent not
only himself but an entire class of Respondent’s employees.
Such seeking to represent a class of employees was, implicitly,
an effort to enlist fellow employees in a common, work-related
cause.
Clearly, filing the class action lawsuit constituted protected
activity. Board precedent long has established that the “activity
of a single employee in enlisting the support of his fellow em-
ployees for their mutual aid and protection is as much ‘concert-
ed activity’ as is ordinary group activity.” Such individual
action is concerted as long as it is engaged in with the object of
initiating or inducing group action. Cibao Meat Products, 338
NLRB 934 (2003); Kvaerner Philadelphia Shipyard, 347
NLRB 390 (2006).
The General Counsel’s theory rests on the Board’s decision
HAYNES BUILDING SERVICES, LLC 13
in D. R. Horton, Inc., above, which, as the Board observed,
involved an issue of first impression, whether an employer
violates the Act by requiring an employee to sign an agreement
which waives the right to bring claims against the employer in a
court and also waives bringing class action claims before an
arbitrator. The General Counsel’s brief states:
In D. R. Horton, the Board held that a policy or agreement
that is imposed as a condition of employment and that pre-
cludes employees from pursuing employment-related collec-
tive claims in any court or arbitral forum unlawfully restricts
employees’ Section 7 right to engage in protected concerted
activity. Such policies, therefore, violate Section 8(a)(1) of the
Act. Just as in D. R. Horton, Respondent’s arbitration pro-
gram violates Section 8(a)(1) of the Act because it prohibits
collective dispute resolution in any forum. As is true with
any other protected concerted activity, Respondent may not
require that employees waive their right to participate in such
collective action.
In D. R. Horton, an employer required all employees, as a
condition of employment, to sign an agreement which waived
“the right to file a lawsuit or other civil proceeding relating to
Employee’s employment” and which also provided that all
employment-related disputes (with certain exceptions the Board
did not deem pertinent) would be decided by an arbitrator who
only could hear individual claims. The agreement specifically
provided that the arbitrator did not have authority to “fashion a
proceeding as a class or collective action” and did not have
authority “to award relief to a group or class of employees in
one arbitration proceeding. . .”
The Board found that D. R. Horton’s arbitration agreement
requirement interfered with employees’ statutory right to en-
gage in concerted activities for their “mutual aid or protection.”
In reaching this conclusion, the Board relied on previous cases
in which it had found that employees were engaged in protected
concerted activity when they filed lawsuits against their em-
ployers on employment-related matters. See, e.g., Trinity
Trucking & Materials Corp., 221 NLRB 364, (1975), citing
Leviton Manufacturing Co., 203 NLRB 309 (1973) for the “ap-
plicable principle that the filing of the civil action by a group of
employees is protected activity unless done with malice or in
bad faith.” See also Le Madri Restaurant, 331 NLRB 269, 275
(2000).
In D. R. Horton, an attorney had notified the respondent em-
ployer that his law firm had been retained to represent a par-
ticular employee “and a nationwide class of similarly situated”
employees in a lawsuit under the federal wage and hour law.
For reasons discussed above, the Board deemed that the Charg-
ing Party had engaged in “concerted activities” when he filed
the class action lawsuit on behalf of other employees as well as
himself. The Board cited Meyers Industries, 281 NLRB 882,
887 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988), for the principle
that “concerted activity includes conduct by a single employee
if he or she ‘seek[s] to initiate or to induce or to prepare for
group action.’” The Board further stated:
Clearly, an individual who files a class or collective action re-
garding 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.
357 NLRB 2277, 2279.
The Board thus concluded that the Act protected, among
other things, an employee’s filing of a class action lawsuit. The
Board further found that the respondent’s arbitration agree-
ment, which employees had to sign as a condition of employ-
ment, prevented employees from engaging in this particular
form of protected, concerted activity. By signing the agree-
ment, employees waived the right to go to court and therefore
could not engage in the concerted activity implicit in a class
action lawsuit. The arbitration agreement also prevented the
arbitrator from hearing a class action grievance or issuing an
award granting relief to a class of employees.
The remaining logical steps in the D. R. Horton decision can
be described concisely in a syllogism. The first premise of that
syllogism flows from the Board’s conclusion that D. R. Horton,
by requiring employees to sign its arbitration agreement, pre-
vented them from engaging in the protected concerted activity
of filing a class action lawsuit in either a judicial or arbitral
forum.
The second premise of the syllogism is simply that Section
8(a)(1) of the Act makes it unlawful for an employer “to inter-
fere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7” of the Act. 29 U.S.C. §
158(a)(1). The syllogism thus reasons as follows:
(A) D. R. Horton prevented employees from exercising a right
under the Act by requiring them to sign the arbitration agree-
ment. (B) It is unlawful for an employer to interfere with the
exercise of a right guaranteed by the Act. Therefore: Requir-
ing employees to sign the arbitration agreement was unlawful.
If the National Labor Relations Act were the only star in the
universe, this conclusion would meet no challenge. However,
the Act lives in the United States Code, a galaxy of statutes,
another of them being the Federal Arbitration Act (FAA). The
FAA provides, in part, as follows:
A written provision in any. . .contract evidencing a transaction
involving commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction. . .shall be
valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2.
The D. R. Horton opinion noted that where a possible con-
flict exists between the National Labor Relations Act and the
FAA,
The Board is required, when possible, to undertake a “careful
accommodation” of the two statutes. Southern Steamship Co.
v. NLRB, 316 U.S. 31, 47 (1942). That does not mean, of
course, that the Act must automatically yield to the FAA or
the other way around. Instead, when two federal statutes “are
capable of co-existence,” both should be given effect “absent
a clearly expressed congressional intention to the contrary.”
Morton v. Mancari, 417 U.S. 535, 551 (1974).
357 NLRB 2277, 2284.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
After an extensive analysis, the Board concluded that the
FAA did not stand in the way of finding that D. R. Horton
committed an unfair labor practice when it required employees
to sign the arbitration agreement or ordering that the violation
be remedied. The Board discussed and distinguished Supreme
Court opinions regarding the application of the FAA, and it
stressed the limited nature of its holding:
We need not and do not mandate class arbitration in
order to protect employees’ rights under the NLRA. Ra-
ther, we hold only that employers may not compel em-
ployees to waive their NLRA right to collectively pursue
litigation of employment claims in all forums, arbitral and
judicial. So long as the employer leaves open a judicial
forum for class and collective claims, employees’ NLRA
rights are preserved without requiring the availability of
classwide arbitration. Employers remain free to insist that
arbitral proceedings be conducted on an individual basis.
357 NLRB 2277, 2288.
The United States Court of Appeals for the Fifth Circuit dis-
agreed with the Board’s conclusion and denied enforcement of
this portion of the Board’s decision. D. R. Horton, Inc. v.
NLRB, 737 F.3d 344 (5th Cir. 2013). However, as the General
Counsel’s brief correctly points out, “it is well settled that the
Board’s administrative law judges are required to follow estab-
lished Board precedent that the Supreme Court has not re-
versed. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Los
Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979).” (G
C Br. at 11.)
Both the Board’s decision in D. R. Horton and the Charging
Party’s brief in the present case liken an agreement which re-
quires arbitration on an individual-only basis to a “yellow dog
contract.” Indeed, the Charging Party’s brief calls such pacts
“classic ‘yellow dog’ agreements that constitute an unenforcea-
ble interference with Section 7 rights and the Board’s mandate
to protect such rights.”
To those specializing in labor law and familiar with its histo-
ry, the reference to “yellow dog contracts” carries a meaning
laden with significance and even emotion. A century ago,
some employers required each worker to sign an agreement
promising not to become or remain a union member.
A number of states outlawed these “yellow dog contracts.”
For example, Kansas made it a misdemeanor for an employer to
require an employee to sign such a contract. However, the
United States Supreme Court held the Kansas law to be uncon-
stitutional: “A state cannot, by designating as ‘coercion’ con-
duct which is not such in truth, render criminal any normal and
essentially innocent exercise of personal liberty, for to permit
this would deprive the Fourteenth Amendment of its effective
force in this respect.” Coppage v. Kansas, 236 U.S. 1, 2
(1915).
Needless to say, federal law on this point has changed, but
the term “yellow dog contract” continues to signify a written
waiver of federal rights which an applicant or employee must
sign to obtain a job or keep it. When such an agreement re-
quires the relinquishment of Section 7 rights, it is repugnant to
the Act. Statutory rights would turn into mere toothless wishes
if employers could insist that an applicant or employee forfeit
them.
Respondent’s “Agreement to Arbitrate Disputes” deprives
employees not of the right to join a union but of the right to act
in concert with other employees to challenge a term or condi-
tion of employment either in court of before an arbitrator.3 An
employee who signs this agreement waives his right to take his
dispute with the employer to court, thereby precluding not just
individual action in that forum but also concerted activity on
behalf of other employees, through a class action lawsuit. In-
stead, the employee must take the dispute to an arbitrator, but
can appear before the arbitrator only individually, and not as
part of a class of employees.
If one accepts the conclusion that an employee filing a class
action lawsuit on behalf of other employees is engaging in ac-
tivity protected by the Act, then an agreement waiving this
right, and also precluding a class action before an arbitrator,
clearly would be a form of “yellow dog contract.” It requires,
as a condition of employment, the relinquishment of Section 7
rights recognized in Board precedent. However, to say that the
Act protects an employee’s right to file a class action lawsuit
does not address how much weight a court might accord this
form of protected activity when it strikes a balance between the
Act and the FAA.
The Board’s decision in D. R. Horton seeks to undo the lim-
iting effect of the arbitration agreement and thereby protect the
Section 7 right of employees to engage in concerted action in
either an arbitral or judicial forum. However, after the Board
decided D. R. Horton, the Supreme Court issued opinions
which erode the foundation on which D. R. Horton is based.
The D. R. Horton decision issued on January 3, 2012. One
week later, the Supreme Court issued its opinion in
CompuCredit Corp. v. Greenwood, ___ U.S. ___, 132 S.Ct.
665, 181 L. Ed. 2d 586 (2012). That case focused on a poten-
tial clash between the FAA’s strong proarbitration policy and
some language in the Credit Repair Organization Act (CROA),
which required certain companies to place a “disclosure state-
ment” in contracts with their customers. One part of the disclo-
sure statement informed customers “You have the right to sue a
credit repair organization that violates the Credit Repair Organ-
ization Act.” Another provision stated, “You have a right to
sue a credit repair organization that violates the Credit Repair
Organization Act.” Still another stated that “Any waiver by
any consumer of any protection provided by or any right of the
consumer under this subchapter—(1) shall be treated as void;
and (2) may not be enforced by any Federal or State court or
any other person.”
Based on this language, lower courts concluded that Con-
gress did not intend the FAA’s proarbitration policy to apply to
disputes arising under the CROA. The Supreme Court disa-
greed, concluding that these provisions were insufficient to
overcome an arbitration clause in the contract customers
signed. The “right to sue” did not necessarily mean a right to

3 Unlike the arbitration agreement in the D. R. Horton case, which
specifically precluded class arbitrations, the language of the arbitration
agreement at issue here includes no such prohibition. However, the
Respondent takes the position that recent court decisions, cited in the
November 19, 2012 letter of Respondent’s counsel, have that effect.
HAYNES BUILDING SERVICES, LLC 15
bring an action in court but also could refer to a proceeding
before an arbitrator.
The Court compared the CROA’s requirements with more
specific language in certain other statutes. It quoted provisions
which were quite specific about the right to sue in District
Court but still had been insufficient to defeat the FAA’s general
proarbitration policy. For example, the Court noted that a pro-
vision of the Racketeer Influenced and Corrupt Organizations
Act stated that a person injured by certain violations “may sue
therefor in any appropriate United States district court. . .” 18
U.S.C. § 1964(c) (italics added). Similarly, the Court cited a
section of the Clayton Act which provided that an injured party
“may sue therefor in any district court of the United States. . .”
15 U.S.C. § 15(a) (italics added). Notwithstanding these quite
specific references to suing in district court, the language was
not strong enough to override a contractual agreement to arbi-
trate.
Although these statutes indeed created causes of action, and
even though they referred to lawsuits in “district court,” that
language did not guarantee litigation before a federal judge.
Parties could still enter into a contract providing for submission
of the dispute to an arbitrator, and such contractual language
would be binding.
To render an agreement to arbitrate unenforceable, the Su-
preme Court required that the statutory language go beyond a
reference to a lawsuit in court. Rather, the statute must mani-
fest a “Congressional command” that the FAA would not ap-
ply. With only slight exaggeration, I gather that to convey such
a “command,” a statute must speak very specifically, best end-
ing with “that’s an order, mister,” in a raised voice.
The Supreme Court issued its CompuCredit Corp. opinion a
week after the Board’s D. R. Horton decision, but CompuCredit
was not the Court’s last word on the subject. Almost a year and
a half later, the Court decided American Express Co. v. Italian
Colors Restaurant, ___ U.S. ___, 133 S. Ct. 2304, 186 L. Ed.
2d 417 (2013). For the reasons discussed below, I conclude
that, as a result of the American Express Co. holding, the
Board’s D. R. Horton rationale no longer remains viable.
In American Express Co., the Supreme Court forcefully ap-
plied the principle, articulated in earlier decisions, that courts
must “rigorously enforce” arbitration agreements according to
their terms. It further stressed that courts remain obligated to
enforce an arbitration agreement even if the dispute concerns
the alleged violation of a federal statute.
The Court noted one narrow exception to the principle that
an arbitration agreement must be enforced. That exception
arises when the FAA’s arbitration mandate has been “overrid-
den by a contrary congressional command.” American Express
Co. v. Italian Colors Restaurant, 133 S.Ct. at 2309. The word
“command” again suggests that Congress must express clearly
and unmistakably its intent to override the FAA’s mandate.
Leaving no doubt, the Court cited its previous CompuCredit
Corp. decision.
As discussed above, the CompuCredit Corp. opinion pointed
out that even a specific statutory authorization to bring suit in
“district court” did not neutralize the parties’ agreement to
submit a dispute to arbitration and courts remained obligated to
enforce that arbitration agreement. Thus, even when the law
itself referred to litigation in district court, that language did not
rise to the level of a “congressional command” contradicting
the FAA’s mandate.
The National Labor Relations Act does not include any lan-
guage resembling a “congressional command” to lift the FAA’s
arbitration mandate. Therefore, I must conclude that the strong
government policy favoring arbitration applies here. That con-
clusion is consistent with the Supreme Court’s decision in an
earlier case, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20 (1991).
In Gilmer, the Supreme Court considered whether an arbitra-
tion agreement should be honored in a dispute arising under the
federal Age Discrimination in Employment Act (ADEA). Tak-
ing into account that the FAA “manifests a liberal federal poli-
cy favoring arbitration” and that neither the text nor the legisla-
tive history of the ADEA precluded arbitration, the Court found
that the agreement to arbitrate was binding.
Although the Equal Employment Opportunity Commission
plays a significant role in the enforcement of the ADEA, the
Court held that the mere involvement of an administrative
agency in the enforcement scheme was not sufficient to pre-
clude arbitration. The Court cautioned that “questions of
arbitrability must be addressed with a healthy regard for the
federal policy favoring arbitration.” Gilmer v. Inter-
state/Johnson Lane Corp., 500 U.S. at 26, citing Cone Memori-
al Hospital v. Mercury Construction Corp., 460 U.S. 1, 24
(1983).
In Gilmer, the Court also noted that “the ADEA is designed
not only to address individual grievances, but also to further
important social policies.” Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. at 27, citing EEOC v. Wyoming, 460 U. S. 226,
460 U. S. 231 (1983). However, the Court did not perceive any
inconsistency between these policies and the FAA policy favor-
ing arbitration. It appears especially relevant here that the
Court, as noted above, held that “an administrative agency’s
mere involvement in a statute’s enforcement is insufficient to
preclude arbitration.” Id. at 21.
One other aspect of Gilmer also warrants mention. In its re-
cent American Express Co. decision, the Supreme Court ob-
served that, in Gilmer, “we had no qualms in enforcing a class
waiver in an arbitration agreement even though the federal
statute at issue, the Age Discrimination in Employment Act,
expressly permitted collective actions.” American Express Co.
v. Italian Colors Restaurant, 133 S.Ct, at 2311.
The D. R. Horton decision sought to distinguish Gilmer by
stressing that the arbitration agreement in Gilmer “contained no
language specifically waiving class or collective claims.”4
However, the arbitration agreement need not specify such an
exclusion. As the D. R. Horton decision itself noted, in
Stolt-Nielsen S. A. v. Animal Feeds International Corp., 559 U.
S. 662 (2010), the Court held that imposing class arbitration on
parties who had not agreed to authorize class arbitration was

4 The Board also stated in D. R. Horton: “Gilmer addresses neither
Section 7 nor the validity of a class action waiver. The claim in Gilmer
was an individual one, not a class or collective claim, and the arbitra-
tion agreement contained no language specifically waiving class or
collective claims.” 357 NLRB 2277, 2285–2286.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
inconsistent with the Federal Arbitration Act. Therefore, an
arbitration agreement which says nothing about class action
implicitly excludes it.
In its recent American Express Co. decision, the Supreme
Court went beyond its requirement that a party must specifical-
ly agree to class arbitration. The Court questioned whether the
concepts of arbitration and “class action” were even compati-
ble:
Truth to tell, our decision in AT&T Mobility [LLC v. Concep-
cion, 563 U.S. ___, 131 S. Ct. 1740, 179 L. Ed. 2d 742
(2011)] all but resolves this case. There we invalidated a law
conditioning enforcement of arbitration on the availability of
class procedure because that law “interfere[d] with fundamen-
tal attributes of arbitration.” 563 U.S., at ___ (slip op., at 9).
“[T]he switch from bilateral to class arbitration,” we said,
“sacrifices the principal advantage of arbitration-its informali-
ty-and makes the process slower, more costly, and more likely
to generate procedural morass than final judgment.” Id., at
___ (slip op., at 14). We specifically rejected the argument
that class arbitration was necessary to prosecute claims “that
might otherwise slip through the legal system.” Id., at ___
(slip op., at 17).
Id. at 2312. The Court’s skepticism about the compatibility of
arbitration and class action, and its opinion that combining the
two was “more likely to generate procedural morass than final
judgment,” certainly suggest that should the Court balance the
Section 7 right to engage in a class action arbitration and the
FAA policy, class action arbitration would receive little weight.
It bears repeating that, in D. R. Horton, the Board stressed
that it was not mandating class arbitration. “Rather, we hold
only that employers may not compel employees to waive their
NLRB right to collectively pursue litigation of employment
claims in all forums, arbitral and judicial. So long as the em-
ployer leaves open a judicial forum for class and collective
claims, employees’ NLRA rights are preserved without requir-
ing the availability of classwide arbitration.” 357 NLRB 2277,
2288.
However, in view of its previous decisions, the Court might
well conclude that the Board was affording only a Hobson’s
choice. A requirement to leave open a judicial forum neuters
the effect of most arbitration agreements, and thus conflicts
with the FAA’s mandate. The alternative, to find unlawful all
arbitration agreements except those specifically authorizing
class action, would impose a form of arbitration which the Su-
preme Court considers likely to create a procedural morass.
More than that, it would collide head-on with the strong FAA
policy favoring arbitration.
The Supreme Court’s recent decision in American Express
Co., considered in the context of its earlier opinions concerning
the Federal Arbitration Act, leaves no doubt; the FAA policy
would prevail. When all the recent Supreme Court decisions
interlock, they create a space in which the D. R. Horton ra-
tionale has no oxygen.
One other matter should be included in this analysis because
it may shed light on the tension between the policies embodied
in the National Labor Relations Act and the mandate of the
Federal Arbitration Act, as articulated in the Supreme Court’s
decisions discussed above. Those decisions do not treat an
agreement to arbitrate as any different from other contracts, but
focus instead on when a Federal court should be allowed to
upset or modify its terms. The answer: Very rarely.
However, the agreement to arbitrate in this case, as in many
other cases, was not the result of negotiations between two
parties of roughly equal bargaining power. Rather, it was a
“contract of adhesion” which an individual had to sign as a
condition of obtaining or keeping employment. This kind of
lopsided situation, in which a strong party can dictate and im-
pose terms unilaterally, concerned Congress when it passed the
National Labor Relations Act. Thus, it included the following
in the Act’s preamble:
The inequality of bargaining power between employees who
do not possess full freedom of association or actual liberty of
contract and employers who are organized in the corporate or
other forms of ownership association substantially burdens
and affects the flow of commerce, and tends to aggravate re-
current business depressions, by depressing wage rates and
the purchasing power of wage earners in industry and by pre-
venting the stabilization of competitive wage rates and work-
ing conditions within and between industries.
29 U.S.C. § 151. When Congress considered passage of the
National Labor Relations Act, its sponsor, Sen. Robert Wagner,
gave a similar explanation on the Senate floor:
Caught in the labyrinth of modern industrialism and dwarfed
by the size of corporate enterprise, [the employee] can attain
freedom and dignity only by cooperation with [other employ-
ees].
Morris, Developing Labor Law, at 28 (5th ed. 1939), citing 79
Cong. Rec. 7565 (1935). Thus, concern about an employee’s
“actual liberty of contract” resides, as it were, in the Act’s
DNA. The Act itself creates a mechanism, collective bargain-
ing, which employees can use to enhance their economic
strength, but which also protects their right to choose whether
or not to take this step.
Indeed, the Act seems to inoculate its practitioners with these
values, producing distinctive antibodies. Any contract of adhe-
sion seems antithetical to the world the Act’s drafters contem-
plated: Parties of equal dignity working out their differences
through the give and take of negotiations. However, whatever
be labor lawyers’ antibodies and allergies, they must yield to
court precedent.
The Supreme Court’s recent decision in American Express
Co. v. Italian Colors Restaurant, above, involved a dispute
between the credit card company and merchants that accepted
the credit cards. The merchants filed a class action lawsuit
alleging that the credit card company had violated Federal anti-
trust laws.
The merchants went to court even though each had entered
into an arbitration agreement which purported to waive the
right to a judicial forum and to require arbitration individually.
The merchants decided to act concertedly, bringing a class
action lawsuit, because they could not afford to act individual-
ly.
Pressing an antitrust claim against the credit card company
HAYNES BUILDING SERVICES, LLC 17
typically would require retaining an economist to prepare an
expert analysis, costing hundreds of thousands of dollars and
possibly more than a million dollars. An individual merchant
lacked the economic wherewithal to bear this burden alone.
The credit card company moved to dismiss the class action
lawsuit, asserting that each merchant had signed an agreement
to arbitrate, and to arbitrate only on an individual basis. The
federal district court granted the motion and dismissed the law-
suit. However, the Court of Appeals for the Second Circuit
reversed. It reasoned that because of the prohibitive costs the
merchants would face if they had to arbitrate the claims, their
class-action waivers were unenforceable and arbitration could
not proceed.
Reversing the Court of Appeals, the Supreme Court held that
the Federal Arbitration Act did not permit courts to invalidate a
contractual waiver of class arbitration on the ground that each
plaintiff’s cost of arbitrating a federal statutory claim individual
would exceed the potential recovery.
The Supreme Court rejected the merchants’ argument that
enforcing their waivers of class arbitration barred effective
vindication of their statutory rights. The Court held that the
fact that it would not be worth the expense involved in proving
a statutory remedy does not constitute the elimination of the
right to pursue that remedy. American Express Co. v. Italian
Colors Restaurant, 133 S.Ct. at 2311.
In a dissent joined by Justice Ginsburg and Justice Breyer,
Justice Kagan wrote:
Throughout, the majority disregards our decisions’ central
tenet: An arbitration clause may not thwart federal law, irre-
spective of exactly how it does so. Because the Court today
prevents the effective vindication of federal statutory rights, I
respectfully dissent.
Id. 133 S.Ct. at 2313. Although the Court’s majority opinion
took issue with portions of the dissent, and certainly did not
concede that the decision “prevents the effective vindication of
federal statutory rights,” it still left no doubt that, absent a clear
congressional order to the contrary, the duty to follow the terms
of the arbitration agreement trumps other concerns:
[C]ourts must “rigorously enforce” arbitration agreements ac-
cording to their terms, Dean Witter Reynolds Inc. v. Byrd, 470
U.S. 213 , 221 (1985), including terms that “specify with
whom [the parties] choose to arbitrate their disputes,”
Stolt-Nielsen, supra, at 683, and “the rules under which that
arbitration will be conducted,” Volt Information Sciences, Inc.
v. Board of Trustees of Leland Stanford Junior Univ., 489
U.S. 468, 479 (1989). That holds true for claims that allege a
violation of a federal statute, unless the FAA’s mandate has
been “‘overridden by a contrary congressional command.’”
CompuCredit Corp. v. Greenwood, 565 U.S. ___ , ___ (2012)
(slip op., at 2-3) (quoting Shearson/American Express Inc. v.
McMahon, 482 U.S. 220, 226 (1987)).
Id., 133 S.Ct. 2310. As discussed above, the Court will find a
“contrary congressional command” only when Congress has
spoken in the clearest of terms. Congress has not done so with
respect to the National Labor Relations Act.
In assessing how the American Express Co. decision will af-
fect the viability of D. R. Horton, differences in the two cases
should be taken into account. They decided different issues.
The American Express Co. case focused on the effect of an
agreement to arbitrate, not on the lawfulness of requiring
someone to sign such an agreement. Moreover, different stat-
utes would govern whether it would be lawful for a credit card
company to require merchants to sign arbitration agreements
and whether it would be lawful for employers to require em-
ployees to do so as a condition of employment.
Nonetheless, the American Express Co. decision reflects a
strong public policy in favor of arbitration, and in light of this
muscular policy, it seems quite unlikely that the Court would
hold it unlawful for an employer to condition employment on
the employee’s signing an arbitration agreement. Moreover,
the Court’s decision in American Express Co. should be read in
conjunction with its other opinions concerning the Federal Ar-
bitration Act, including Gilmer v. Interstate/Johnson Lane
Corp., above.
The Gilmer decision and other Supreme Court precedent dis-
cussed by the Board in D. R. Horton did not shut the door on
the D. R. Horton rationale. However, because of the two Su-
preme Court decisions which issued after D. R. Horton, that
door no longer is ajar.
REMEDY
The Respondent’s Notice to Applicant violates Section
8(a)(1) of the Act because a reader reasonably could conclude
that the obligatory arbitration agreement in it restricted access
to the Board or barred the filing of unfair labor practice charg-
es. To remedy this violation, I recommend that the Board order
the Respondent either to remove the arbitration agreement from
the Notice to Applicant or else clarify it by adding explicit lan-
guage informing applicants that they retained the right to con-
tact the Board and to file unfair labor practice charges. Addi-
tionally, the Respondent should be required to provide copies
of the revised notice to all employees or notify them that the
obligatory arbitration agreement has been rescinded.
The Respondent also should be required to post the Notice to
Employees attached to this decision as Exhibit A.
CONCLUSIONS OF LAW
1. The Respondent, Haynes Building Services, LLP, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent, at all material times here, has violated
Section 8(a)(1) of the Act by maintaining an obligatory arbitra-
tion provision in a document given to and signed by job appli-
cants, which they reasonably could believe bars access to or
restricts their right to file charges with the National Labor Rela-
tions Board.
3. The Respondent did not violate the Act in any other man-
ner alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended5

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
ORDER
The Respondent, Haynes Building Services, LLP, Monrovia,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an obligatory arbitration agreement which
employees reasonably could believe bars access to or restricts
their right to file charges with the National Labor Relations
Board.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cilities in Monrovia, California, copies of the attached notice
marked “Appendix A.”6 Copies of the notice, on forms provid-
ed by the Regional Director for Region 31, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In addition to physical posting of paper notices, no-
ticed shall be distributed electronically, such as by email, post-
ing on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. J. Picini Flooring, 356 NLRB 11
(2010). In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 28, 2012. Excel Container,

adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
6 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.”
Inc., 325 NLRB 17 (1997).
(b) Rescind the obligatory arbitration agreement in its notice
to applicants or else revise it to make clear that it does not re-
strict or bar employees from contacting the National Labor
Relations Board or from filing unfair labor practice charges.
(c) Notify each of its employees in writing that the obligato-
ry arbitration agreement has been rescinded or revised and, if it
has been revised, provide each of its employees a copy of the
revised agreement.
(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 Regional Director attesting to the
steps that the Respondent has taken to comply.
Dated Washington, D.C. February 7, 2014
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain with us on your be-
half.
Act together with other employees for your benefit and
protection.
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain an obligatory arbitration agreement
that you reasonably could believe bars or restricts your right to
file charges with the National Labor Relations Board.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind or revise the obligatory arbitration agree-
ment to make it clear the agreement does not in any manner bar
or restrict your right to contact or file charges with the National
Labor Relations Board.
WE WILL provide to you copies of the revised agreement or
notify you in writing that we have rescinded the agreement.
HAYNES BUILDING SERVICES, LLP