LESLIE'S POOLMART, INC.

National Labor Relations Board - Administrative Judge Opinions

Jan 17, 2014

21-CA-102332 (N.L.R.B. Jan. 17, 2014)

JD(SF)–02–14
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
LESLIE’S POOLMART, INC.
and Case 21–CA–102332
KEITH CUNNINGHAM, an Individual
Alice J. Garfield, Esq., for the General Counsel.
Frank M. Liberatore and Jaclyn Floryan, Esqs.,
for the Respondent.
Kyle R. Nordrehaug and Nicholas De Blouw, Esqs.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
LISA D. THOMPSON, Administrative Law Judge. This matter is before me on a stipulated
record. On April 8, 2013, Keith Cunningham (“Charging Party” or “Cunningham”) filed a charge in Case
21–CA–102332 against Leslie’s Poolmart, Inc. (“Respondent”). The General Counsel issued the
complaint and notice of hearing on June 28, 2013. On July 12, 2013, Respondent filed its answer,
denying all material allegations and setting forth its affirmative defenses to the complaint.
The complaint alleges that Respondent violated Section 8(a)(1) of the National Labor Relations
Act (the “NLRA” or the “Act”) when: (1) Respondent required its current and former employees,
including Cunningham, as a condition of employment, to enter into individual arbitration agreements that
do not expressly require employees to waive their right to pursue class, collective, or representative
actions, but Respondent intends for them to do so; and (2) on or about April 1, 2013, Respondent filed a
Motion to Compel with the United States District Court for the Central District of California (“District
Court”) in Case No. 13-02122 CAS (CWx) seeking an order compelling arbitration of Cunningham’s
individual claims, dismissing his lawsuit, and dismissing his class or collective action claims. (Jt. Mot.
Stip. Facts Exhs. 1–2.)1
On September 25, 2013, the parties submitted their Stipulation of Facts, Motion to Submit Case
on Stipulation, and their Motion Requesting Permission to Forego Submission of Short Position
Statements to Associate Chief Administrative Law Judge Gerald Etchingham. Judge Etchingham
directed the parties to submit post-hearing briefs by November 1, 2013, but ultimately, extended the post-
hearing brief deadline to December 2, 2013. On November 22, 2013, this case was reassigned to the

1 Abbreviations used in this decision are as follows: “Jt. Mot. Stip. Facts” for the parties’ Stipulation of Facts, Motion to Submit Case on
Stipulation and Motion Requesting Permission to Forgo Submission of Short Position Statements; “GC Br.” for the General Counsel’s brief; and
“R Br.” for Respondent’s brief.
JD(SF)–02–14
2
docket of the undersigned. On December 2, 2013, the parties submitted their respective post-hearing
briefs in this case.
Upon the stipulated record, and in full consideration of the briefs submitted, I make the following
5
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated to the following facts as to the nature of Respondent’s business and 10
jurisdiction:
1. At all material times, Respondent, a Delaware corporation operates and sells pool and spa
chemicals and supplies throughout the United States. Its principal office is located in Phoenix, Arizona,
but it has branch locations throughout the State of California. (Jt. Mot. Stip. Facts, Stip. 3.)15
2. During a 12-month period ending May 14, 2013, Respondent derived gross revenues in excess
of $500,000. At its California branch locations, Respondent purchased and received goods valued in
excess of $50,000 from outside the State of California. (Jt. Mot. Stip. Facts, Stip. 4.)
20
3. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6),
and (7) of the Act. (Jt. Mot. Stip. Facts, Stip. 5.)
4. Respondent further admits, and I find, Board jurisdiction as alleged in the complaint. (Jt. Mot.
Stip. Facts, Stip. 2(a).)25
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Background Facts
30
1. The Charging Party was employed by Respondent as a retail assistant store manager from
September 2011 to September 2012. (R. Br. 3.)
2. At all material times, Respondent maintained a Mutual Agreement to Arbitrate Claims that
requires employees to resolve certain employment related disputes with Respondent exclusively through 35
binding arbitration. Specifically, the agreement provides that:
The Company and I mutually consent to the resolution by arbitration of all claims or
controversies (“claims”), past, present or future, whether or not arising out of my employment (or
its termination), that the Company may have against me or that I may have against . . . (1) the 40
Company, (2) its officers, directors, employees or agents in their capacity as such or otherwise,
(3) the Company’s parent, subsidiary and affiliated entities, (4) the Company’s benefit plans or
the plans’ sponsors, fiduciaries, administrators, affiliates and agents, and/or (5) all successors and
assigns of any of them.
45
The only claims that are arbitrable are those that . . . would have been justiciable [sic] under
applicable state or federal law. The claims covered by this Agreement include, but are not limited
to: claims for wages or other compensation due; claims for breach of any contract or covenant
(express or implied); tort claims; claims for discrimination (including, but not limited to, race,
JD(SF)–02–14
3
sex, sexual orientation, religion, national origin, age, marital status, physical or mental disability
or handicap, or medical condition); claims for benefits (with certain exceptions) . . . ; and claims
for violation of any federal, state, or other governmental law, statute, regulation, or ordinance.
(Jt. Mot. Stip. Facts, Exh. 4.)2
5
3. The Agreement does not, on its face, limit an employee’s employment related claims to
individual arbitration. It also does not expressly prohibit an employee’s right to assert classwide,
collective, or representative actions in an arbitral or judicial forum. (Id.)
4. On September 22, 2011, the Charging Party received and electronically executed 10
Respondent’s arbitration agreement described in paragraph 2. The concluding language in the agreement
states:
Voluntary Agreement. I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS
AGREEMENT, THAT I UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS 15
AND AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE
SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT I
HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON
ANY PROMISES OR REPRESENTATIONS BY PIE COMPANY OTHER THAN THOSE
CONTAINED IN THIS AGREEMENT ITSELF. I UNDERSTAND THAT BY SIGNING THIS 20
AGREEMENT I AM GIVING UP MY RIGHT TO A JURY TRIAL.
Employee initials: KC
I FURTHER ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO 25
DISCUSS THIS AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE
AVAILED MYSELF OF THAT OPPORTUNITY TO THE EXTENT I WISH TO DO SO
(capitalized in original).
Signature: Keith Cunningham Date: 9/22/2011 1:37 PM330
5. At all material times, and at least since October 10, 2012, as part of its hiring process,
Respondent required all new employees at its California branch locations to agree and execute the
arbitration agreement described in paragraph 2 as a condition of employment. (Jt. Mot. Stip. Facts, Stips.
6–7.35
6. On or about February 13, 2013, following his separation from employment with Respondent,
Cunningham filed a complaint in the Supreme Court of Los Angeles County on behalf of himself and
other similarly situated current and former employees of Respondent. (Jt. Mot. Stip. Facts, Exh. 5.)
7. The complaint alleged that the Respondent incorrectly and unlawfully calculated and paid 40
overtime to class members for overtime worked since 2009. (Id.)
8. On March 5, 2013, Respondent removed the case to District Court in Civil Case No. 13-02122
CAS (CWx). (R. Br. 5.)
45

2 The agreement expressly provided that either party could initiate an administrative charge with the Board.
3 Jt. Mot. Stip. Facts, Exh. 4.
JD(SF)–02–14
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9. On or about April 1, 2013, Respondent filed a Motion to Compel Arbitration and
Memorandum of Points and Authorities in Support Thereof with the District Court. (Jt. Mot. Stip. Facts,
Exh. 6.)
10. In its motion, Respondent sought an order to dismiss Cunningham’s lawsuit, compel 5
arbitration of Cunningham’s individual claims and dismiss his class/collective action claims, pursuant to
the terms of the arbitration agreement described in paragraph 2. (Id.)
11. On April 8, 2013, Cunningham filed an unfair labor practice complaint with the Board
alleging that Respondent’s arbitration agreement prohibited employees from filing class, collective and 10
representative actions regarding employment-related disputes in an arbitral or judicial forum violative of
Section 7 of the Act. (Jt. Mot. Stip. Facts, Exh. 1.)
12. On about June 25, 2013, the District Court granted Respondent’s Motion by dismissing all
classwide claims, finding that Cunningham’s individual claims must proceed to arbitration. (Jt. Mot. Stip. 15
Facts, Exh. 7.) However, the Court denied Respondent’s motion to the extent it sought to prevent
Cunningham from pursuing a representative claim under the Private Attorney General Act of 2004
(PAGA) (Cal. Labor Code §2699) in arbitration. (Id.)
DISCUSSION AND ANALYSIS20
The issue in this case is whether Respondent’s mandatory arbitration agreement violates Section
8(a)(1) of the Act even though the agreement does not expressly prohibit employees from engaging in
protected concerted activities.
25
The General Counsel alleges that Respondent violated the Act by maintaining and enforcing an
unlawful arbitration agreement which does not expressly preclude employees from filing classwide,
collective or representative actions in an arbitral or judicial forum, but is intended by the Respondent to
do so. Further, the General Counsel contends that, because Respondent moved to compel Cunningham to
resolve his individual claims through arbitration and sought to dismiss his class and collective claims in 30
District Court, it’s very actions in enforcing the agreement has the effect of leading employees to
reasonably believe they cannot engage in concerted activity protected by Section 7 of the Act.
Respondent counters that the complaint must be dismissed because: (1) Charging Party’s
complaint was untimely filed; (2) the Board lacked jurisdiction when it decided D. R. Horton, Inc., thus 35
the decision is invalid based on the ruling in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert.
granted 81 U.S.L.W. 3695 (U.S. June 24, 2013) (No. 12-1281); or alternatively, (3) I should stay
resolution of this decision pending the Supreme Court’s ruling in Noel Canning; (4) the Fifth Circuit
recently overruled the Board’s decision in D. R. Horton upholding mandatory arbitration of classwide,
collective and representative claims;4 (5) the Board’s decision in D. R. Horton is inapplicable since it is 40
contrary to controlling Supreme Court precedent and the Federal Arbitration Act (FAA); (6) the Charging
Party was not engaged in “concerted activity”; and (7) Respondent’s filing of its motion to compel
enforcement of its arbitration agreement does not constitute a violation of the Act.

4 On December 3, 2013, Respondent filed a letter brief in addition to a post-hearing brief. The letter brief addressed the recent decision
issued by the Fifth Circuit Court of Appeals in D. R Horton v. NLRB, 2013 WL 6231617 (C.A. 5, Dec. 3, 2013) (No. 12-60031) which effectively
overruled the Board’s decision in D. R. Horton, Inc. On December 5, 2013, the General Counsel also filed a letter brief opposing Respondent’s
letter brief and addressing the Fifth Circuit’s decision. Although I did not authorize the parties to file additional briefs beyond the post-hearing
briefs, I have considered the parties’ additional filings in this decision.
JD(SF)–02–14
5
Based on the evidence, I conclude that, even though the agreement is silent regarding the filing of
collective actions, Respondent violated Section 8(a)(1) of the Act because, by its own contentions and
actions, it essentially mandates that employees waive, as a condition of employment, their right to file
class, collective, or representative claims in any arbitral or judicial forum. As explained herein, I believe
this result is consistent with the current reasoning set forth in D. R. Horton, Inc., 357 NLRB No. 184 5
(2012) which, despite the recent Fifth Circuit decision, I am currently bound to adhere.
1. The complaint is timely
Respondent first contends that this case should be dismissed, because Cunningham’s charge is 10
time barred by Section 10(b) of the Act, because it was filed more than 6 months after September 22,
2011, the date he signed and was subject to the agreement. However, this argument is without merit as I
find a continuing violation exists that makes Cunningham’s charge timely.
Contrary to Respondent’s assertions, I find that the alleged unlawfulness of the arbitration 15
agreement is not related solely to circumstances existing in September 2011, when Cunningham signed
the agreement and became subject to it. Instead, at issue is the legality of Respondent’s continued
maintenance of the agreement. The Board has held that an employer commits a continuing violation of
the Act throughout the period that an unlawful rule is maintained. Lafayette Park Hotel, 326 NLRB 824,
825 (1998). More importantly, it is well settled that an agreement entered into outside the 10(b) period 20
may be found unlawful within the 10(b) period where its provisions are unlawful on their face or enforced
inside the 10(b) period. Teamsters Local 293 (R. L. Lipton Distributing), 311 NLRB 538, 539 (1993);
Whiting Milk Corp., 145 NLRB 1035, 1037–1038 (1964), enforcement denied on other grounds 342 F.2d
8 (1st Cir. 1965). In this case, the agreement mandated that Cunningham arbitrate certain employment
related claims, including wages and compensation, with Respondent even after his termination.5 The 25
evidence further shows that Respondent stipulated that it has continued and is continuing to require all
new hires to execute the agreement. Indeed, Respondent admits that, at least since April 1, 2013, it
sought to enforce its arbitration agreement with the Charging Party before the U.S. District Court.
Cunningham filed his unfair labor practice charge on April 8, 2013. Thus, I find that, as late as
April 1, 2013, a continuing violation existed such that the charge is not timebarred. Control Services, 305 30
NLRB 435, 435 fn. 2, 442 (1991), enfd. mem. 961 F.2d 1568 (3d Cir. 1992); Guard Publishing Co., 351
NLRB 1110, 1110 fn. 2 (2007).
2. The Board had jurisdiction in D. R. Horton, Inc.
35
Respondent next asserts that the Board’s ruling in D. R. Horton, Inc. is invalid, because the Board
lacked the requisite quorum when the decision was issued. See Noel Canning v. NLRB, 705 F.3d 490
(D.C. Cir. 2013). Here, Respondent argues that President Obama’s appointments of Board Members
Sharon Block and Richard Griffin were invalid since they were not made during a constitutionally valid
Senate recess. As such, Respondent avers that the Board has lacked a quorum to issue any decisions, 40
including in D. R. Horton, Inc., since the expiration of Member Becker’s term on January 3, 2012 (citing
New Process Steel v. NLRB, 1380 S.Ct. 2635, 2640 (2010) (held “two [remaining Board] members may
[not] continue to exercise that delegated authority once the group’s (and the Board’s) membership falls to
two.”)
45
However, the Board has repeatedly rejected any ruling that it did not have the requisite three-
board member authority. Although the D.C. Circuit in Noel Canning concluded that the President’s
recent recess appointments to the Board were invalid, the Court also noted that this conclusion is in

5 Specifically, the language of the agreement Cunningham signed expressly provides that, “This Agreement to arbitrate shall survive the
termination of my employment. . . .”
JD(SF)–02–14
6
conflict with several other courts of appeals’ rulings. See Evans v. Stephens, 387 F.3d 1220 (11th Cir.
2004), cert denied 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); and U.S. v.
Allocco, 305 F.2d 704 (2d Cir. 1962). While the Fourth Circuit recently agreed with the decision in Noel
Canning, see NLRB v. Enterprise Leasing Co. Southeast, LLC, 722 F.3d. 609 (4th Cir. 2013), the Board
declined to follow the Fourth Circuit’s rationale. See Bloomingdale’s Inc., 359 NLRB No. 113 (2013)5
(citing Evans v. Stephens, supra; U.S. v. Woodley, supra; and U.S. v. Allocco, supra). Indeed, even the
Fifth Circuit in its decision in D. R. Horton agreed that the Board had the requisite authority to issue
decisions. See D. R. Horton v. NLRB, 2013 WL 6231617, (5 C.A. Dec. 3, 2013) (No. 12-60031). Thus,
the Board has rejected Respondent’s lack of authority argument, because the issue regarding the validity
of recess appointments “remains in litigation, and pending a definitive resolution, [so] the Board is 10
charged to fulfill its responsibilities under the Act.” See G4S Regulated Security Solutions, 359 NLRB
No. 101, slip op. at 1 fn. 1 (2013), citing Belgrove Post Acute Care Center, 359 NLRB No. 77, slip op. at
1 fn. 1 (2013). Accordingly, Respondent’s argument fails and the Board’s decision and reasoning in
D. R. Horton is currently binding upon me.
15
3. Respondent’s Request to Stay Resolution of this case is denied
Alternatively, Respondent requests that I stay resolution of this decision pending the Supreme
Court’s ruling in Noel Canning. This argument is also unavailing, and I decline to stay this decision for
the reasons stated in Bloomingdale’s Inc., supra.20
4. D.R. Horton, Inc. is the controlling law in this matter and does not conflict
with the FAA or U.S. Supreme Court precedent
Respondent next avers that this matter should be dismissed as the Fifth Circuit’s recent decision 25
in D. R Horton v. NLRB, 2013 WL 6231617, (5 C.A. Dec. 3, 2013) (No. 12-60031) effectively overruled
the Board’s prior decision and is binding on the undersigned. In addition, Respondent avers that U.S.
Supreme Court precedent has determined that, to the extent the NLRA conflicts with the Federal
Arbitration Act (FAA) vis-à-vis the permissibility of mandatory binding arbitration of employment
matters, the NLRA is preempted by the FAA. However, neither argument is persuasive.30
The Supreme Court has increasingly shown great deference to enforcement of arbitration
agreements. See AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740, 1749 (2011). In Concepcion, the
Court emphasized that its cases “place it beyond dispute that the FAA was designed to promote
arbitration.” The Court explained that the purpose of the FAA is to “ensur[e] that private arbitration 35
agreements are enforced according to its terms.” See Volt Information Sciences, Inc. v. Board of Trustees
of Leland Stanford Junior Univ., 109 S.Ct. 1248 (1989). Indeed, the Board also acknowledges that the
provisions of the FAA evince a “liberal policy favoring arbitration agreements.” See D. R. Horton, Inc.,
supra, slip op. at 8, so long as the agreements do not preclude employees from exercising their substantive
rights under Section 7 of the Act. Id. at 9.40
In D. R. Horton, Inc., 357 NLRB No. 184 (2012), the charging party was required, as a condition
of employment, to sign an arbitration agreement which required him to resolve all claims through
mandatory, binding arbitration. The agreement did not have an opt-out clause. In addition, the arbitration
agreement contained a clause precluding the charging party and other employees covered by the Act from 45
filing joint, class, or collective claims in arbitral and judicial forums. However, the Board held that an
employer violates Section 8(a)(1) of the Act “by requiring employees to waive their right to collectively
pursue employment-related claims in all forums, arbitral and judicial” which the Board found to be a
substantive right protected under Section 7 of the Act. While the Board acknowledged the interplay
between the FAA and the NLRA, the Board reasoned that the ruling in D. R. Horton was consistent with 50
Supreme Court precedent which found the FAA inapplicable when an arbitration agreement precludes
JD(SF)–02–14
7
employees from exercising a substantive right. Thus, the Board found the arbitration agreement fell
under the exception to enforcement under the FAA since the agreement prohibited employees from filing
collective and class actions, a substantive right protected under Section 7 of the NLRA.
I find that the Supreme Court has not expressly overruled D. R. Horton. Although the Court has 5
upheld the enforcement of individual arbitration agreement in employment related matters, see, e.g.,
Concepcion, supra, and American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013), the
Court has not addressed or resolved the issue of exclusive arbitration over class and/or collective actions.
As such, D. R. Horton is the controlling law applicable in this case. Even in the face of other Federal
circuit decisions to the contrary, D. R. Horton represents current Board precedent that I must follow. 10
Manor West, Inc., 311 NLRB 655, 667 fn. 43 (1993); see also Waco, Inc., 273 NLRB 746, 749 fn. 14
(1984) (“We emphasize that it is a judge’s duty to apply established Board precedent which the Supreme
Court has not reversed. It is for the Board, not the judge, to determine whether precedent should be
varied”) (citation omitted). This is true even in the face of criticism of the rule of D. R. Horton by some
Federal courts. See Pathmark Stores, 342 NLRB 378 fn. 1 (2004). Moreover, because I find that 15
Respondent has effectively precluded Charging Party from exercising his right to engage in protected
concerted activity, a substantive right under Section 7 of the Act, the NLRA is not preempted by the
FAA.
Applying Board precedent to this case, I find that Respondent’s arbitration agreement violates the 20
Act. While the arbitration agreement does not, on its face, prohibit collective or class action, it has the
effect of doing so as evinced when Respondent, in moving to compel arbitration of his claims, sought to
preclude Cunningham from filing a class action lawsuit and maintained that “arbitration is the elected and
required forum for resolving [Charging Party’s] individual claims.” (Jt. Mot. Stip. Exh. 6) (emphasis in
original). The NLRA “protects employees’ ability to join together to pursue workplace grievances, 25
including through litigation.” D. R. Horton, supra, slip op. at 2. By filing a class action lawsuit in court,
both Cunningham (and the charging party in D. R. Horton) were engaging in conduct that the Board noted
is “not peripheral but central to the Act’s purposes.” Id. at 4. The Board found that there was no conflict
between the NLRA and the FAA “so long as the employer leaves open a judicial forum for class and
collective claims, [thus] employees’ NLRA rights are preserved without requiring the availability of 30
classwide arbitration.” Id., slip op. at 16. While the agreement is silent as to collective or class actions, in
practice, Respondent closed the avenue to pursue collective and/or classwide litigation when it sought to
limit Cunningham and other similarly situated employees to arbitration of their individual claims.
Because I am currently bound by the ruling in D. R. Horton until it is reversed by the Supreme Court, I do
not find anything meaningfully distinguishable between Respondent’s arbitration agreement and the one 35
in D. R. Horton, which the Board found violative of the Act.
5. Charging Party engaged in protected concerted activity
Respondent next claims that Cunningham’s filing of his lawsuit in State court is not protected 40
concerted activity under Section 7 of the Act, because “although [his] complaint contained class
allegations and a description of a putative class, he had no co-plaintiff and there was no evidence that
anyone other than Cunningham and his counsel were involved in the initiation or prosecution of the case.”
(R Br. 17.) The General Counsel counters that Cunningham engaged in protected activity because
whether class member status existed is immaterial since the Act “protects employees who engage in 45
individual action . . . with the objective of initiating or inducing group action.” (GC Br. 10 citing
Mushroom Transportation Co. v. NLRB, 330 F.2d. 683, 685 (3d Cir. 1964).)
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. The 50
rights guaranteed in Section 7 include the right “to form, join, or assist labor organizations, to bargain
JD(SF)–02–14
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collectively through representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.” See Brighton Retail, Inc., 354
NLRB 441, 441 (2009).
In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and in Meyers Industries (Meyers II), 5
281 NLRB 882 (1986), the Board held that “concerted activities” protected by Section 7 are those
“engaged in with or on the authority of other employees, and not solely by and on behalf of the employee
himself.” However, the activities of a single employee in enlisting the support of fellow employees in
mutual aid and protection is as much concerted activity as is ordinary group activity. Individual action is
concerted if it is engaged in with the object of initiating or inducing group action. Whitaker Corp., 289 10
NLRB 933 (1988). The “mutual aid or protection” clause of the Act includes employees acting in concert
to improve their working conditions through administrative and judicial forums.
In this case, it is clear under Board law that Cunningham engaged in protected concerted activity
when he filed his class action lawsuit in State court. See Harco Trucking, LLC, 344 NLRB 478 (2005); 15
Host International, 290 NLRB 442, 443 (1988) (filing a collective action to address wages, hours, and
other terms and conditions of employment constitutes protected activity unless done with malice or in bad
faith). Even without class member status, the evidence demonstrates that, by filing his classwide lawsuit,
Cunningham sought to “enlist the support of fellow employees in mutual aid and protection” and intended
to “initiat[e] or induc[e] group action” regarding alleged overtime pay violations against Respondent.20
Whitaker, supra. Consequently, Respondent’s action to force Cunningham, and other employees covered
under the Act, to waive their right to file a classwide action in any arbitral or judicial forum, interfered
with and restrained them from exercising their Section 7 rights. Accordingly, Respondent’s argument
fails on this point.
25
Therefore, based on the foregoing, I find that Respondent’s actions violated Section 8(a)(1) of the
Act when, by its actions and practices, it mandates that employees covered by the Act must waive, as a
condition of employment, their right to file joint, class, or collective claims in any arbitral or judicial
forum.
30
6. Respondent’s Motion to Compel Arbitration violates Section 8(a)(1) of the Act
Lastly, the General Counsel advances the same arguments and cited authority to this allegation as
it does to the charge contesting the arbitration agreement. (GC Br. 5–6, fn. 6.) Respondent argues that
filing its motion to compel is not violative of the Act, because its filing constitutes a “constitutionally 35
protected petitioning of the government under the First Amendment.” (R Br. 11–13.) However,
Respondent’s argument misses the point. Rather, this matter involves whether Respondent’s actions in
enforcing its mandatory arbitration agreement (by filing a motion to compel in district court) interferes,
restrains, or coerces Cunningham and similarly situated employees from exercising their substantive
rights to file classwide litigation. Under D. R. Horton, Inc. and other Board precedent, I find that 40
Respondent’s action violates the Act.
Therefore, I find that Respondent’s action violated Section 8(a)(1) of the Act when it moved to
restrict Cunningham’s exercise of his Section 7 rights by filing a motion in District Court to compel
arbitration and dismissal of Cunningham’s collective and class claims.45
CONCLUSIONS OF LAW
1. Respondent, Leslie’s Poolmart is an employer within the meaning of Section 2(6) and (7) of
the Act.50
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2. Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing a mandatory and
binding arbitration agreement which required employees to resolve certain employment-related disputes
exclusively through individual arbitration and, though not expressly, but in practice, required them to
relinquish any right they have to resolve such disputes through collective or class action.5
3. Respondent violated Section 8(a)(1) of the Act by seeking to enforce its unlawful arbitration
agreement by filing a motion in District Court compelling arbitration and dismissing Charging Party’s
collective and class claims.
10
REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I find that it must be
ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the
Act.15
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended.6
ORDER20
The Respondent, Leslie’s Poolmart, Inc. of Phoenix, Arizona, its officers, agents, successors, and
assigns, shall
1. Cease and desist from25
(a) Maintaining and enforcing a mandatory and binding arbitration policy that, either expressly
or impliedly, or by Respondent’s actions or practice, waives the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
30
(b) Seeking court action to enforce a mandatory and binding arbitration policy that, either
expressly or impliedly, or by Respondent’s actions or practice, waives the right to maintain class or
collective actions in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, restraining, or coercing employees in the 35
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind or revise the arbitration agreement to make it clear to employees that the 40
agreement does not constitute a waiver of their right to maintain employment related class or collective
actions in all forums.
(b) Notify the employees of the rescinded or revised agreement to include providing them a
copy of the revised agreement or specific notification that the agreement has been rescinded.45

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(c) File a motion with the United States District Court for the Central District of California in
Civil Case No. 13-02122 CAS (CWx) asking that the court vacate its order to compel arbitration.
(d) Reimburse Charging Party and/or any other employees who joined in Civil Case No. 13-5
02122 CAS (CWx) for any litigation expenses: (i) directly related to opposing Respondent’s Motion to
Compel; and/or (ii) resulting from any other legal action taken in response to Respondent’s efforts to
enforce the arbitration agreement.
(e) Within 14 days after service by the Region, post at all facilities where the arbitration 10
agreement applied, copies of the attached notice marked “Appendix”7 in both English and Spanish.
Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, 15
such as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees and former employees by such means.
Respondent also shall duplicate and mail, at its own expense, a copy of the notice to all former employees
who were required to sign the mandatory and binding arbitration policy during their employment with
Respondent. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 20
defaced, or covered by any other material. In the event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed the facility involved in these proceedings, 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 January 1, 2011.
25
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated: Washington, DC January 17, 201430

____________________________________
Lisa D. Thompson35
Administrative Law Judge

7 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
National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain or enforce a mandatory and binding arbitration policy that, expressly
or impliedly, by our actions or practices, waives the right to maintain class or collective actions
in all forums, whether arbitral or judicial.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
WE WILL rescind or revise the arbitration agreement to make it clear to employees that the
agreement does not constitute a waiver of their right to maintain class or collective actions in all
forums.
WE WILL notify employees of the rescinded or revised agreement, including providing them
with a copy of the revised agreement or specific notification that the agreement has been
rescinded.
WE WILL reimburse Charging Party and/or any other employees who joined in the collective
litigation for litigation expenses incurred which were directly related to opposing our Motion to
Compel Arbitration and/or reimburse employees for any other legal action taken in response to
our efforts to enforce the agreement.
LESLIE’S POOLMART, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor, Los Angeles, CA 90017-5449
(213) 894-5200, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (213) 894-5184.