ISS FACILITY SERVICES, INC.

National Labor Relations Board - Board Decisions

Apr 7, 2016

363 NLRB No. 160 (N.L.R.B. 2016)

363 NLRB No. 160
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.
ISS Facility Services, Inc. and United Food and
Commercial Workers Union, Local 99. Case 28–
CA–126024
April 7, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
Upon charges filed on April 4 and June 26, 2014, by
the Union, the General Counsel issued a complaint and
notice of hearing on June 30, 2014, alleging that the Re-
spondent has been violating Section 8(a)(1) of the Na-
tional Labor Relations Act since about October 4, 2013,
by maintaining on overly broad and discriminatory man-
datory arbitration agreement that: (1) requires employees
to waive the right to maintain class or collective actions
in all forums, whether arbitral or judicial; and (2) inter-
feres with employees’ access to the Board and its pro-
cesses.
On August 27, 2014, the Respondent, the Charging
Party, and the General Counsel filed a joint motion to
waive a hearing and a decision by an administrative law
judge and to transfer this proceeding to the Board for a
decision based on a stipulated record. On December 1,
2014, the Board granted the parties’ joint motion.
Thereafter, the General Counsel and the Respondent each
filed a brief, and the Respondent filed a responsive brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and a
place of business in Phoenix, Arizona, has been engaged
in providing janitorial services at Phoenix’s Sky Harbor
Airport, pursuant to a contract with the City of Phoenix.
In conducting its operations during the 12-month period
ending April 4, 2014, the Respondent purchased and re-
ceived at its facility goods valued in excess of $50,000
directly from points outside the State of Arizona, and the
Respondent has derived gross revenues in excess of
$500,000. The Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. The Charging Party has been a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Since about October 4, 2013, the Respondent has
maintained the Mutual Agreement to Arbitrate Claims
(MAAC or Agreement) as a condition of its employees’
employment. The MAAC is applicable to all employees
employed by the Respondent at the Respondent’s facility
and at Phoenix’s Sky Harbor Airport. The Respondent’s
employees are required to sign and date a copy of the
MAAC.
The MAAC states, in relevant part:
All disputes covered by this Agreement between
EMPLOYEE and EMPLOYER shall be decided by
an arbitrator through arbitration and not by way of
court or jury trial. (Emphasis in original).
. . .
(2) . . . Except as otherwise provided herein, this
Agreement applies, without limitation, to any claims
arising out of or related to EMPLOYEE’s employment
or separation of employment . . . .
. . .
(5) Regardless of any other terms in this Agree-
ment, claims may be brought before and remedies
awarded by an administrative agency if, and only if,
applicable law permits access to such an agency not-
withstanding the existence of an agreement to arbitrate.
Such administrative claims include without limitation
claims or charges brought before the Equal Employ-
ment Opportunity Commission, the U.S. Department of
Labor, or the National Labor Relations Board. . . .
. . .
(6) EMPLOYER AND EMPLOYEE hereby
waive any right for any dispute to be brought, heard,
decided, or arbitrated as a class and/or collective action
(“Class Action Waiver”). Notwithstanding any other
clause contained in this Agreement, the preceding sen-
tence shall not be severable from this Agreement in any
instance in which the claim is brought as a class and/or
collective action. . . . Notwithstanding this Class Action
Waiver and the Representative Action Waiver,
EMPLOYER and EMPLOYEE agree that
EMPLOYEE is not waiving rights under Section 7 of
the National Labor Relations Act and that
EMPLOYEE will not be retaliated against, disciplined,
or threatened with discipline if EMPLOYEE exercises
any such rights. EMPLOYER, however, may lawfully
seek enforcement of this Class Action Waiver and/or
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Representative Action Waiver under the Federal Arbi-
tration Act and seek dismissal of any class, collective
or representative action claims.
B. Discussion
The Board held in D. R. Horton, Inc., 357 NLRB 2277
(2012), enf. denied in relevant part 737 F.3d 344 (5th
Cir. 2013), and reaffirmed in Murphy Oil USA, Inc., 361
NLRB No. 72, slip op. at 1 (2014), enf. denied __ F.3d
__ (5th Cir. Oct. 26, 2015), that an employer violates
Section 8(a)(1) “when it requires employees covered by
the Act, as a condition of their employment, to sign an
agreement that precludes them from filing joint, class, or
collective claims addressing their wages, hours, or other
working conditions against the employer in any forum,
arbitral or judicial.” Additionally, an employer violates
Section 8(a)(1) if employees would reasonably believe
that its arbitration policy interferes with their ability to
file a Board charge or to access the Board’s processes.
U-Haul Co. of California, 347 NLRB 375, 377–378
(2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
Here, we find that the Respondent violated Section
8(a)(1) by maintaining the MAAC. First, we find that
the Respondent’s arbitration policy is facially unlawful
under D. R. Horton and Murphy Oil, supra. Like the
policies in those cases, the Respondent’s arbitration poli-
cy requires employees, as a condition of their employ-
ment, to submit their employment-related legal claims to
individual arbitration, thereby compelling employees to
waive their Section 7 right to pursue such claims through
class or collective action in all forums, arbitral and judi-
cial.1 See Murphy Oil, 361 NLRB No. 72, slip op. at 1;
D. R. Horton, 357 NLRB at 2277.
In addition, we find that the MAAC independently vio-
lates Section 8(a)(1) by interfering with employees’ right

1 Our dissenting colleague, relying on his dissenting position in
Murphy Oil, 361 NLRB No. 72, slip op. at 22–35 (2015), would find
that the MAAC does not violate Sec. 8(a)(1). He observes that the Act
does not “dictate” any particular procedures for the litigation of non-
NLRA claims, and “creates no substantive right for employees to insist
on class-type treatment” of such claims. This is all surely correct, as
the Board has previously explained in Murphy Oil, above, slip op. at 2,
and Bristol Farms, 363 NLRB No. 45, slip op. at 2 & fn. 2 (2015). But
what our colleague ignores is that the Act “does create a right to pursue
joint, class, or collective claims if and as available, without the interfer-
ence of an employer-imposed restraint.” Murphy Oil, above, slip op. at
2 (emphasis in original). The MAAC is just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
MAAC unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 3. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
to file charges with the Board. The Board applies its
Lutheran Heritage Village-Livonia test to determine
whether a reasonable employee would construe the
MAAC to prohibit the filing of Board charges, raising
the prospect that the employee would be chilled from
doing so. 343 NLRB 646, 647 (2004). In making that
determination, the Board recognizes that “[r]ank-and-file
employees do not generally carry lawbooks to work or
apply legal analysis to company rules as do lawyers, and
cannot be expected to have the expertise to examine
company rules from a legal standpoint.” Ingram Book
Co., 315 NLRB 515, 516 fn. 2 (1994). As a result, the
Board routinely has found insufficient language in work-
place rules purporting to except, or “save,” employees’
legal rights from restrictions on their conduct. See
SolarCity Corp., 363 NLRB No. 83, slip op. at 5 and fn.
18 (and cases cited therein) (2015). This is so even
where such exceptions referred to the “NLRA” or “the
National Labor Relations Act.” See id. at 5 and fn. 19
(and cases cited therein). “The rationale underlying these
decisions is that, absent language more clearly informing
employees about the precise nature of the rights suppos-
edly preserved, the rule remains vague and likely to leave
employees unwilling to risk violating the rule by exercis-
ing Section 7 rights.” Id. at 5.
The MAAC suffers from this vagueness, even with the
provision stating that the agreement does not prohibit the
filing of Board charges. The MAAC specifically applies
to “any claims” arising out of an employee’s employ-
ment and waives “any right” for “any dispute” to be arbi-
trated on a class or representative basis, thereby convey-
ing to employees that, as a condition of employment,
they must forfeit their substantive Section 7 right to act
collectively in pursuing an employment dispute in any
other forum. The Respondent and the dissent assert that
employees would not reasonably construe the MAAC to
interfere with an employee’s right to file charges with the
Board because it specifically states that filing charges
with the Board is permitted. Their assertions, however,
overlook the confusing language in the MAAC stating
that the filing of Board charges is permitted “if, and only
if, applicable law permits access to such an agency not-
withstanding the existence of an agreement to arbitrate.”
In SolarCity, the Board found that a virtually identical
caveat could not reasonably be understood by employees
as having no effect on their right to file Board charges.
See 363 NLRB No. 83, slip op. at 5 fn. 20. Thus, apply-
ing the Lutheran Heritage framework and for the reasons
provided in SolarCity, slip op. at 5–6, we find that em-
ployees would reasonably understand the vague, unex-
plained MAAC language to be coercive and, as a result,
would be restrained in exercising their Section 7 right to
ISS FACILITY SERVICES, INC. 3
file charges with the Board out of fear that doing so
would run afoul of the vague caveat discussed above.2
Moreover, we find that even if an employee could de-
termine from the MAAC that he could invoke the
Board’s processes, an inherent ambiguity in the MAAC
suggests that he must do it individually, and not in con-
cert with other employees. The MAAC’s class, collec-
tive, or representative action waiver requires the individ-
ual to waive “any right for any dispute to be brought,
heard, decided, or arbitrated” on a class, collective, or
representative basis. As in SolarCity, this broad lan-
guage clearly encompasses filing an unfair labor practice
charge with the Board when that charge purports to
speak to a group or collective action. 363 NLRB No. 83,
slip op. at 6. And it would be unclear to the reader, espe-
cially one without specialized legal knowledge, whether
and to what extent the MAAC’s exception for filing
charges with Federal agencies modifies the previous
broad prohibition on pursuing any form of collective or
representative activity, particularly since the exception
does not clarify that such charges may be filed on an
individual or collective basis. This ambiguity would lead
a reasonable employee to question whether he may file
an unfair labor practice charge, particularly when the
charge is filed with or on behalf of other employees, and
thus serves as another reason for finding the MAAC to
unlawfully interfere with employees’ right to file charges
with the Board.
Finally, our finding that the MAAC is unlawful effec-
tuates the Congressional policy of vigorously safeguard-
ing access to the Board’s processes. The Board and the
courts have long recognized that “filing charges with the
Board is a vital employee right designed to safeguard the
procedure for protecting all other employee rights guar-
anteed by Section 7.” Mesker Door, Inc., 357 NLRB
591, 596 (2011). For this reason, the Board must take
care to ensure that employer rules do not chill employees
from filing charges with the Board and instead are clear
that employees retain the “complete freedom” that Con-
gress sought.3 In our view, the MAAC here fails in this
fundamental respect.

2 Contrary to the dissent, we have not contravened the Lutheran Her-
itage test by “selectively focus[ing]” on the MAAC’s caveat to the
exclusion of subsequent language stating that filing charges with the
Board is permitted. As indicated in Lutheran Heritage, supra, 343
NLRB at 647, workplace rules like the MAAC here are to be “read as a
whole” in construing their legality. We have done exactly that by ex-
amining the language relating to the filing of charges in the MAAC in
context with the language of the caveat.
3 NLRB v. Scrivener, 405 U.S. 117, 122 (1972).
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By maintaining a mandatory arbitration agreement
under which employees are compelled, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial,
and by maintaining a mandatory arbitration agreement
that employees reasonably would believe bars or restricts
them from filing charges with the National Labor Rela-
tions Board or to access the Board’s processes, the Re-
spondent 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.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall also order the
Respondent to rescind or revise its arbitration policy and
to notify employees that it has done so.
ORDER
The National Labor Relations Board orders that the
Respondent, ISS Facility Services, Inc., Phoenix, Arizo-
na, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that
requires employees, as a condition of employment, to
waive the right to maintain class or collective actions in
all forums, whether arbitral or judicial.
(b) Maintaining a mandatory arbitration policy that
employees reasonably would believe bars or restricts
employees’ right to file charges with the National Labor
Relations Board or to access the Board’s processes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Rescind the Mutual Agreement to Arbitrate Claims
(MAAC) in all of its forms, or revise it in all of its forms
to make clear to employees that the MAAC does not
constitute a waiver of their right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums, and that it does not restrict employees’ right to file
charges with the National Labor Relations Board or to
access the Board’s processes.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the
MAAC in any form that it has been rescinded or revised
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and, if revised, provide them a copy of the revised
agreement.
(c) Within 14 days after service by the Region, post at
all Phoenix, Arizona facilities where the MAAC applied
copies of the attached notice marked “Appendix.”4 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 28, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
marked “Appendix” to all current employees and former
employees employed by the Respondent since October 4,
2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 28 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. April 7, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, the Respondent and its employees entered
into the Mutual Agreement to Arbitrate Claims (MAAC),
which provides for the arbitration of non-NLRA em-
ployment-related claims, and under which employees
waive the right to pursue such claims through class or

4 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.”
collective actions. The MAAC specifically excludes
from its scope the filing of charges with the National
Labor Relations Board (NLRB or Board). Relying on
the majority opinion in Murphy Oil,1 my colleagues find
that the Respondent violated Section 8(a)(1) of the Act
by maintaining the MAAC because it contains a class-
action waiver. Relying on Lutheran Heritage Village–
Livonia2 and SolarCity,3 my colleagues additionally find
the MAAC unlawful on the basis that employees would
reasonably believe it interferes with their right to file
charges with the Board. For the reasons set forth below,
I respectfully dissent.4
1. The class-action waiver is not unlawful. I agree
that an employee may engage in “concerted” activities
for “mutual aid or protection” in relation to a claim as-
serted under a statute other than NLRA.5 However, Sec-
tion 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 ren-
der 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

1 Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in
relevant part 808 F.3d 1013 (5th Cir. 2015).
2 343 NLRB 646 (2004).
3 SolarCity Corp., 363 NLRB No. 83 (2015).
4 In analyzing whether an arbitration agreement is unlawfully over-
broad with respect to whether employees may file Board charges, the
Board has applied the first prong of the Lutheran Heritage standard,
i.e., whether “employees would reasonably construe the language [of
the agreement] to prohibit Section 7 activity.” 343 NLRB at 647. See,
e.g., U-Haul Co. of California, 347 NLRB 375, 377 (2006) (quoting
Lutheran Heritage, supra), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
As I explained in my partial dissenting opinion in Triple Play Sports
Bar & Grille, 361 NLRB No. 31, slip op. at 10 fn. 3 (2014), enfd. mem.
sub nom. Three D, LLC v. NLRB, No. 14–3284, -3814, 2015 WL
6161477 (2d Cir. Oct. 21, 2015), I would reexamine this standard in an
appropriate future case, but here, even under the Lutheran Heritage
standard, I believe the MAAC should be found lawful.
5 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting). Here, the MAAC expressly
states that “[n]otwithstanding this Class Action Waiver, EMPLOYER
and EMPLOYEE agree that EMPLOYEE is not waiving rights under
Section 7 of the National Labor Relations Act.” There is no allegation
that the Respondent has retaliated against any employee for engaging in
protected concerted activity in connection with any class or collective
action, and the MAAC makes explicit that “EMPLOYEE will not be
retaliated against, disciplined, or threatened with discipline if
EMPLOYEE exercises any . . . rights” under Section 7 of the Act.
ISS FACILITY SERVICES, INC. 5
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”6 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;7 (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;8 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-

6 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
7 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.”).
8 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., Inc., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v.
Adecco USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to
certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal.
June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-
00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA); but see Totten v. Kellogg Brown & Root,
LLC, No. ED CV 14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal.
Jan. 22, 2016).
tion Act (FAA).9 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
2. The MAAC does not interfere with NLRB charge fil-
ing. Nor do I agree that the MAAC violates Section
8(a)(1) by interfering with the filing of Board charges or
their resolution by the Board. In my view, any reasona-
ble construction of the MAAC reveals that it excludes
the filing of NLRB charges from its scope. The MAAC
states that it applies to “any” disputes, “past, present or
future,” that employees may have with their employer,
but these statements are qualified so as to make clear
they are subject to certain exceptions.10 The MAAC then
explicitly informs employees that they retain the right to
file charges with the NLRB.11
I agree that an employment agreement may constitute
unlawful interference with NLRA-protected rights to the
extent that it purports to limit the right of employees to
file charges with the Board.12 However, the MAAC does
not limit this right. The Fifth Circuit reached precisely
the same conclusion based on similar facts in Murphy Oil
USA, Inc. v. NLRB, above. Although the court agreed
that the employer’s original arbitration agreement violat-
ed NLRA Section 8(a)(1) because it broadly required
arbitration of “any claims” with no language that permit-
ted the filing of NLRB charges, 808 F.3d at 1019, the
court held lawful a revised agreement that stated:
“[N]othing in this Agreement precludes [employees] . . .
from participating in proceedings to adjudicate unfair
labor practice[] charges before the [Board],” id. at 1019–
1020 (alterations in original). Based on this provision,
the court held that, reading the agreement “as a whole, it
would be unreasonable for an employee to construe the

9 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
10 Thus, the MAAC includes the clause “[e]xcept as otherwise pro-
vided in this Agreement.”
11 The MAAC states: “Regardless of any other terms of this Agree-
ment, claims may be brought before and remedies awarded by an ad-
ministrative agency if, and only if, applicable law permits access to
such an agency notwithstanding the existence of an agreement to arbi-
trate. Such administrative claims include without limitation claims or
charges brought before . . . the National Labor Relations Board.”
12 See, e.g., GameStop Corp., 363 NLRB No. 89, slip op. at 4–7
(2015) (Member Miscimarra, concurring in part and dissenting in part);
The Rose Group d/b/a Applebee’s Restaurant, 363 NLRB No. 75, slip
op. at 3–5 (2015) (Member Miscimarra, concurring in part and dissent-
ing in part).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Revised Arbitration Agreement as prohibiting the filing
of Board charges when the agreement says the opposite.”
Id. at 1020.
Notwithstanding express language to the contrary, my
colleagues find the MAAC prohibits filing charges with
the Board. They purport to apply prong one of the Lu-
theran Heritage test—i.e., whether a reasonable employ-
ee would construe the MAAC to prohibit charge filing—
but Lutheran Heritage contradicts their analysis. There,
the Board held that a policy, rule or employee handbook
provision would be deemed unlawful when “employees
would reasonably construe the language to prohibit Sec-
tion 7 activity,” and the Board expressly warned against
“presum[ing] improper interference” with Section 7
rights and finding interference “simply because the rule
could be interpreted” that way.13 My colleagues base
their finding on what they deem to be ambiguity in the
MAAC, but the MAAC is not ambiguous. After stating
that “claims may be brought before and remedies award-
ed by an administrative agency if, and only if, applicable
law permits access to such an agency notwithstanding the
existence the existence of an agreement to arbitrate,” the
MAAC makes clear that “[s]uch administrative claims
include without limitation claims or charges brought
before . . . the National Labor Relations Board” (empha-
sis added). In other words, “claims or charges brought
before . . . the National Labor Relations Board” are in-
cluded within the class of claims that “may be brought
before . . . an administrative agency.” No other reasona-
ble interpretation is possible.14
My colleagues pursue an analysis that prompts one to
wonder whether any language would suffice to protect
NLRB charge filing, even when an arbitration agreement
expressly indicates that employees may file charges with
the Board. As I have just explained, the agreement at
issue here provides that claims that “may be brought be-
fore . . . an administrative agency . . . . include . . .
claims or charges brought before . . . the National Labor
Relations Board.” Nonetheless, my colleagues, relying
on cases they cited in SolarCity,15 find this language no
more effective than generalized savings clauses that have
been discounted or disregarded by the Board. In these
cases, the Board has applied the sound principle that an
otherwise illegal rule will not be rendered lawful based

13 Lutheran Heritage, 343 NLRB at 646–647.
14 Even if the MAAC were ambiguous, mere ambiguity is not
enough under Lutheran Heritage to condemn a rule as unlawful. The
word ambiguous means “capable of being understood in two or more
possible senses or ways.” http://www.merriam-webster.com/
dictionary/ambiguous. Thus, a rule is ambiguous if it could be read to
prohibit Section 7 activity, among other possible interpretations, re-
gardless whether employees reasonably would read it that way.
15 363 NLRB No. 83, slip op. at 5 & fn. 18.
on language that would predictably be understood only
by someone with specialized legal knowledge.16 How-
ever, the relevant provisions in the MAAC merely re-
quire the ability to read and understand the English lan-
guage.17 In this respect, I believe my colleagues turn
precedent upside down. Every employee who reads Eng-
lish would understand the MAAC has no impact on
NLRB charge filing, since this is precisely what the
MAAC says, while my colleagues devise an implausible
interpretation that, in my view, could only be advocated
or adopted by lawyers.
Contrary to the majority, I do not believe the MAAC
contains language that is vague, unexplained, or ambigu-
ous so as to warrant a finding that the MAAC unlawfully
interferes with an employee’s right to file charges with
the Board. Here, my colleagues advance two rationales,
neither of which is sufficient, in my view, to establish a
violation of Section 8(a)(1).
First, my colleagues selectively focus on language
broadly stating that the MAAC applies to “any claims”
and waives “any right” for “any dispute” to be arbitrated
on a class or collective basis, plus other language exclud-
ing the filing of Board charges from this broadly inclu-
sive language “if, and only if, applicable law permits
access to such an agency notwithstanding the existence
of an agreement to arbitrate”—a clause they characterize
as “vague” and “unexplained.” But the majority’s analy-
sis fails to quote the relevant language of the MAAC in
its entirety, as follows:

16 For example, in McDonnell Douglas Corp., 240 NLRB 794
(1979), the Board found a facially overbroad no-distribution rule un-
lawful despite an exception for distribution “protected by Section 7 of
the National Labor Relations Act.” Id. at 802. That exception was
insufficient to save the rule because an employee would need to know
what distribution Section 7 protects to understand what the exception
allows. Here, the language in the MAAC expressly permits NLRB
charge filing, and that language is self-explanatory. There is nothing
else an employee needs to know to understand it. In Hoot Winc, LLC,
363 NLRB No. 2 (2015), the only case my colleagues cited in SolarCity
that involved an arbitration agreement or filing charges with the Board,
the Board found an exclusion for “any dispute that cannot be arbitrated
as a matter of law” insufficient to inform employees that they could still
file Board charges on the basis that Board charges can be resolved
through arbitration. Id., slip op. at 1–2. And unlike here, the agree-
ment in Hoot Winc did not inform employees of their right to file Board
charges.
17 Although the MAAC list statutes and refers to some concepts with
which some employees may be unfamiliar, this is not materially differ-
ent from many collective-bargaining agreements, which are routinely
deemed enforceable by the Board and the courts even if they incorpo-
rate concepts that are expressed in “general and flexible terms,” Archi-
bald Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482,
1491 (1959), or are based on practices that may be “unknown, except in
hazy form, even to the negotiators,” Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 580–581 (1960).
ISS FACILITY SERVICES, INC. 7
Regardless of any other terms of this Agreement,
claims may be brought before and remedies awarded
by an administrative agency if, and only if, applicable
law permits access to such an agency notwithstanding
the existence of an agreement to arbitrate. Such admin-
istrative claims include without limitation claims or
charges brought before the Equal Employment Oppor-
tunity Commission, the U.S. Department of Labor, or
the National Labor Relations Board.
My colleagues cannot and do not dispute that some claims
are excluded from the MAAC. After all, the MAAC states
that “[r]egardless of any other terms of this Agreement,
claims may be brought before . . . an administrative agency
if . . . applicable law permits access to such an agency not-
withstanding the existence of an agreement to arbitrate.”
My colleagues’ point is that many employees would not
know whether the NLRB is an administrative agency access
to which is permitted by “applicable law . . . notwithstand-
ing the existence of an agreement to arbitrate.” I agree.
However, the majority ignores the very next sentence,
which explains that “[s]uch administrative claims”—i.e.,
claims that “may be brought before . . . an administrative
agency”—”include . . . claims or charges brought before
the . . . National Labor Relations Board” (emphasis added).
My colleagues’ analysis, though relying on Lutheran Herit-
age, contravenes principles set forth in that decision, which
stated it was improper to rely on “particular phrases in isola-
tion” and to “presume improper interference with employee
rights.”18 It simply is not true that the language of the
MAAC, read as a whole, is “vague” or “unexplained.” No
further explanation is required to make clear that the MAAC
protects bringing “claims or charges . . . before . . . the Na-
tional Labor Relations Board.”
Second, even though the MAAC expressly states em-
ployees retain the right to bring “claims or charges . . .
before . . . the National Labor Relations Board,” my col-
leagues make a three-stage argument19 that the class-
action waiver in the MAAC creates “an inherent ambigu-
ity” because (i) the MAAC states that employees waive
“any right for any dispute to be brought, heard, decided,
or arbitrated” on a class, collective or representative ba-
sis, (ii) an NLRB charge sometimes “purports to speak to
a group or collective action,” and (iii) the MAAC’s class-
action waiver would interfere with the right to file these
types of Board charges. The problem with this argument
is its false, circular premise that the MAAC’s class-

18 Lutheran Heritage, 343 NLRB at 646.
19 The majority presents this argument without separating it into
three stages. However, I believe the majority’s argument is difficult to
understand without breaking it into its component parts, and it consists
of the three elements set forth in the text.
action waiver can be construed to interfere with the filing
of Board charges, despite other language in the MAAC
that specifically addresses Board charge filing and con-
tradicts such a construction. As noted previously, the
MAAC categorically permits the filing of Board charg-
es—all Board charges, including those that “purport[] to
speak to a group or collective action.” Here as well, only
lawyers could argue for the interpretation reflected in my
colleagues’ three-stage “inherent ambiguity” analysis.
As the Fifth Circuit stated in Murphy Oil USA, Inc. v.
NLRB, above, “it would be unreasonable for an employee
to construe the [MAAC] as prohibiting the filing of
Board charges when the agreement says the opposite.”
The protection afforded to Board charge filing is im-
portant because the filing of a charge is prerequisite to
Board review of unfair labor practice issues.20 Conse-
quently, an agreement that prohibits filing Board charges
violates Section 8(a)(1) if entered into by an employer,
and Section 8(b)(1)(A) if entered into by a union.21 My
colleagues and I agree that the Board should safeguard
the right to file charges with the Board. In the instant
case, however, the MAAC clearly states it does not im-
pose any restriction on the right to file Board charges.
Therefore, I believe the Board cannot reasonably con-
clude that the MAAC unlawfully interferes with Board
charge filing in violation of Section 8(a)(1).
Accordingly, for the reasons explained above, I re-
spectfully dissent.
Dated, Washington, D.C. April 7, 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

20 See Chamber of Commerce of the United States v. NLRB, 721
F.3d 152, 162–163 (4th Cir. 2013) (“The NLRB serves expressly reac-
tive roles: conducting representation elections and resolving ULP
charges. . . . [The Board’s] processes . . . are not set in motion until a
party files a representation petition or a ULP charge.”).
21 Sec. 8(a)(1) makes it an unfair labor practice for any employer “to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7.” Sec. 8(b)(1)(A) makes it an unfair labor
practice for any union “to restrain or coerce . . . employees in the exer-
cise of the rights guaranteed in section 7.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration policy
that requires our employees, as a condition of employ-
ment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT maintain a mandatory arbitration policy
that our employees reasonably would believe bars or
restricts their right to file charges with the National La-
bor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Mutual Agreement to Arbitrate
Claims (MAAC) in all of its forms, or revise it in all of
its forms, to make clear that the MAAC does not consti-
tute a waiver of your right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not restrict your right to file charges with
the National Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
MAAC in all of its forms that the arbitration policy has
been rescinded or revised and, if revised, WE WILL pro-
vide them a copy of the revised policy.
ISS FACILITY SERVICES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-126024 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, DC
20570, or by calling (202) 273–1940.