LESLIE'S POOLMART, INC.

National Labor Relations Board - Board Decisions

Aug 25, 2015

362 NLRB No. 184 (N.L.R.B. 2015)

362 NLRB No. 184
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.
Leslie’s Poolmart, Inc. and Keith Cunningham. Case
21–CA–102332
August 25, 2015
DECISION AND ORDER
MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN
On January 17, 2014, Administrative Law Judge Lisa
D. Thompson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a limited cross-exception and 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 decision1 and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions4

1 The judge applied the Board’s decision in D.R. Horton, Inc., 357
NLRB No. 184 (2012), enf. denied in relevant part, 737 F.3d 344 (5th
Cir. 2013), to find that the Respondent violated Sec. 8(a)(1) by main-
taining and enforcing a Mutual Agreement to Arbitrate Claims
(Agreement), which required employees, as a condition of employment,
to agree to resolve certain employment-related disputes exclusively
through individual arbitration and to relinquish any right to resolve
such disputes through collective or class action. In Murphy Oil USA,
Inc., 361 NLRB No. 72 (2014), the Board reaffirmed the relevant hold-
ings of D.R. Horton. We affirm the judge’s findings and conclusions
based on her application of D.R. Horton and on our subsequent deci-
sion in Murphy Oil. The Respondent argues that Member Becker’s
appointment expired before the decision in D.R. Horton issued. For the
reasons set forth in Murphy Oil, above, slip op. at 2 fn. 16, we reject
this argument.
2 The Respondent argues that the complaint is time-barred by Sec.
10(b) because the Charging Party, Keith Cunningham, did not file an
unfair labor practice charge within six months of the date he became
subject to the Agreement. We agree with the judge that this argument
lacks merit. The complaint alleges that the Respondent violated the Act
by maintaining and enforcing the Agreement. The Respondent stipu-
lated that it has maintained the Agreement as a condition of employ-
ment at all material times and since at least October 10, 2012, and that
it has sought to enforce the Agreement since at least about April 1,
2013. These dates are within the 6-month period preceding the filing of
the charge. The Board has repeatedly held that the maintenance of an
unlawful rule is a continuing violation, regardless of when the rule was
promulgated. See Cellular Sales of Missouri, LLC, 362 NLRB No. 27,
slip op. at 12 (2015).
We further reject the Respondent’s argument that Cunningham does
not have standing to assert his unfair labor practice charge because he is
no longer an employee. The Board has long held that the broad defini-
tion of “employee” contained in Sec. 2(3) of the Act covers former
employees. See Briggs Mfg. Co., 75 NLRB 569, 571 (1947); accord
Cellular Sales of Missouri, LLC, supra, 362 NLRB No. 27, slip op. at 1
fns. 3, 7. Moreover, Sec. 102.9 of the Board’s Rules & Regulations
provides that a charge may be filed by “any person,” without regard to
whether that person is a Sec. 2(3) employee.

3 Although the Agreement does not explicitly restrict activities pro-
tected by Sec. 7, we agree with the judge in finding, based upon the
parties’ stipulation, that the Agreement has been enforced to compel
arbitration on an individual rather than a class or collective basis. Ac-
cordingly, the Agreement has been applied to restrict the exercise of
Sec. 7 rights, and is thus unlawful under Lutheran Heritage Village-
Livonia, 343 NLRB 646, 647 (2004). Cf. Hitachi Capital America
Corp., 361 NLRB No. 19, slip op. at 2–3 (2014) (finding rule unlawful
because it was applied to restrict Sec. 7 rights, without reaching wheth-
er rule was facially overbroad). In affirming the judge’s finding, we do
not rely on Brighton Retail, Inc., 354 NLRB 441 (2009), a case decided
when the Board had only two sitting members. See New Process Steel,
L.P. v. NLRB, 130 S.Ct. 2635 (2010). Instead, we rely on the language
of Secs. 7 and 8(a)(1) of the Act. We additionally reject the Respond-
ent’s argument that its Motion to Compel Arbitration cannot be an
unfair labor practice because it is protected by the First Amendment.
See Countrywide Financial Corp., 362 NLRB No. 165 (2015).
We also reject the Respondent’s argument, with which our dissent-
ing colleague agrees, that Cunningham was not engaged in protected
concerted activity when he filed his class action suit. See Beyoglu, 362
NLRB No. 152, slip op. at 2 (2015) (“[T]he filing of an employment-
related class or collective action by an individual employee is an at-
tempt to initiate, to induce, or to prepare for group action and is there-
fore conduct protected by Section 7.”). Our dissenting colleague ob-
serves that the lawsuit filed by Cunningham is an “opt-out” form of
class action, which our colleague says does not demonstrate
concertedness because, by its nature, such a lawsuit does not require, or
seek to induce, “action” by other class members in order to participate.
As the Board has previously stated, whether a plaintiff class is styled as
“opt in” or “opt out” by the procedural rules governing any particular
class action is not relevant to the question of whether the filing of that
class action constitutes concerted activity:
Plainly, the filing of the action contemplates—and may well lead to—
active or effective group participation by employees in the suit,
whether by opting in, by not opting out, or by otherwise permitting the
individual employee to serve as a representative of his coworkers. It is
this potential “to initiate or to induce or to prepare for group action,” in
the phrase of Meyers II [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)]—collectively seeking legal re-
dress—that satisfies the concert requirement of Section 7.
Murphy Oil, 361 NLRB No. 72, slip op. at 13 (2014) (emphasis in original);
see also Beyoglu, supra, 362 NLRB No. 152, slip op. at 2 (quoting Murphy
Oil on this point). Moreover, as our colleague notes with respect to opt-out
classes, “class members must decide whether or not to opt out.” Hernandez
v. Vitamin Shoppes, 95 Cal. Rptr. 3d 734, 745 (Cal. App. 2009). Making
that decision whether to participate in the lawsuit is itself a form of “action.”
4 For the reasons set forth in detail in his dissents in Murphy Oil, slip
op. at 35–58, and Countrywide Financial Corp., above, Member John-
son would not find that the Respondent’s maintenance or enforcement
of the Agreement violates the Act. Because he does not find these
violations, Member Johnson finds it unnecessary to consider here
whether or under what circumstances the remedies related to the en-
forcement violation would be appropriate. See Murphy Oil, slip op. at
39 fn. 15 (Member Johnson, dissenting); see generally BE&K Con-
struction Co. v. NLRB, 536 U.S. 516 (2002). Because he finds no merit
to this allegation, he does not pass on the Respondent’s related argu-
ment that Cunningham was not engaged in concerted activity when, as
an individual plaintiff, he filed a complaint in the Supreme Court of
Los Angeles County on behalf of himself and other similarly situated
current and former employees of the Respondent. He observes, howev-
er, that the lawsuit filed by Cunningham is an “opt-out” form of class
action, typical under California law, where the entire class of employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
and to adopt the recommended Order, as modified and
set forth in full below.5
ORDER
The National Labor Relations Board orders that the
Respondent, Leslie’s Poolmart, Inc., Phoenix, Arizona,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing a mandatory arbitration
agreement that requires employees, as a condition of

ees is denominated as plaintiffs, and post-certification, will be consid-
ered plaintiffs if they do not subsequently opt out. See Cal. Code Civ.
Proc. 382; see also, e.g., Hernandez v. Vitamin Shoppes, 95 Cal. Rptr.
3d 734, 745 (Cal. App. 2009) (in case of post-certification class settle-
ment, “class members must decide whether or not to opt out”). Consid-
ering the realities of the opt-out class action, therefore, Member John-
son believes that the mere filing of such an action falls outside of the
framework created by Meyers II for determining protected, concerted
activity. See Meyers Industries, Inc., 281 NLRB No. 118 (1986)
(“Meyers II”), enfd., Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied, 487 U.S. 1205 (1988). This kind of filing, as a matter of
procedural law, is not a request for class member employees to actually
do anything, and thus it does not “initiate” or “induce” those employees
to engage in action, as described by Meyers II. Id. at 887 (“We reiter-
ate, our definition of concerted activity…encompasses those circum-
stances where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bringing truly
group complaints to the attention of management.”) In fact, the named
plaintiff(s) in an opt-out class action would logically seek to induce
inaction by other employees (i.e., not opting out) in response to the
litigation. Nor do such filings constitute preparation for actual group
action or a “truly group complaint,” under Meyers II. Here, the con-
cept that everyone within the ambit of the complaint’s class description
supports the class action—merely upon the filing of that complaint—is
a legal fiction created by the class action procedure, not an actuality.
See also Murphy Oil, slip op. at 43–44 (Member Johnson, dissenting).
5 Consistent with our decision in Murphy Oil, we amend the judge’s
remedy and shall order the Respondent to reimburse Cunningham for
all reasonable expenses and legal fees, with interest, incurred in oppos-
ing the Respondent’s unlawful motion in the United States District
Court for the Central District of California to compel individual arbitra-
tion of his class or collective claims. See Bill Johnson’s Restaurants v.
NLRB, 461 U.S. 731, 747 (1983) (“If a violation is found, the Board
may order the employer to reimburse the employees whom he had
wrongfully sued for their attorneys’ fees and other expenses” as well as
“any other proper relief that would effectuate the policies of the Act.”).
Interest shall be computed in the manner prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010). See Teamsters Local
776 (Rite Aid Corp.), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-
whole orders for suits maintained in violation of the Act, it is appropri-
ate and necessary to award interest on litigation expenses.”), enfd. 973
F.2d 230 (3d Cir. 1992).
We also amend the judge’s remedy to order the Respondent to notify
the district court that the Respondent has rescinded or revised the
Agreement and to inform the court that it no longer opposes the plain-
tiff’s claims on the basis of the Agreement.
Finally, we shall modify the judge’s recommended Order and substi-
tute a new notice to conform to our amended remedy and the Board’s
standard remedial language.
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(b) 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
(Agreement) in all of its forms, or revise it in all of its
forms to make clear to employees that the Agreement
does not constitute a waiver of their right to maintain
employment-related joint, class, or collective actions in
all forums.
(b) Notify all applicants and current and former em-
ployees who were required to sign the Agreement in any
form that the Agreement has been rescinded or revised
and, if revised, provide them a copy of the revised
agreement.
(c) Notify the United States District Court for the Cen-
tral District of California that it has rescinded or revised
the mandatory arbitration agreement upon which it based
its motion to dismiss Keith Cunningham’s class and rep-
resentative claims, and inform the court that it no longer
opposes the plaintiff’s action on the basis of that agree-
ment.
(d) In the manner set forth in this decision, reimburse
Keith Cunningham for any reasonable attorneys’ fees
and litigation expenses that he may have incurred in op-
posing the Respondent’s motion to dismiss his class and
representative claims.
(e) Within 14 days after service by the Region, post at
its City of Industry, California facility copies of the at-
tached notice marked “Appendix A” and at all other fa-
cilities nationwide copies of the attached notice marked
“Appendix B,”6 in both English and Spanish. Copies of
the notices, on forms provided by the Regional Director
for Region 21, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, 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,

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LESLIE’S POOLMART, INC. 3
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
marked “Appendix A” to all current employees and for-
mer employees employed by the Respondent at any time
since October 10, 2012.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 21 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. August 25, 2015
Kent Y. Hirozawa, Member
Harry I. Johnson, III, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain or enforce a mandatory arbitra-
tion agreement that requires our employees, as a condi-
tion of employment, to waive the right to maintain class
or collective actions in all forums, whether arbitral or
judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Mutual Agreement to Arbitrate
Claims (Agreement) in all of its forms, or revise it in all
of its forms to make clear that the Agreement does not
constitute a waiver of your right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums.
WE WILL notify all applicants and current and former
employees who were required to sign the Agreement in
any of its forms that the Agreement has been rescinded
or revised and, if revised, provide them a copy of the
revised agreement.
WE WILL notify the court in which we moved to dis-
miss Keith Cunningham’s class and representative claims
that we have rescinded or revised the mandatory arbitra-
tion agreement upon which we based our motion and WE
WILL inform that court that we no longer oppose the
plaintiff’s action on the basis of that agreement.
WE WILL reimburse Keith Cunningham for any rea-
sonable attorneys’ fees and litigation expenses that he
may have incurred in opposing our motion to dismiss his
class and representative claims.
LESLIE’S POOLMART, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/21-CA-102332 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 or enforce a mandatory arbitra-
tion agreement that requires our employees, as a condi-
tion of employment, to waive the right to maintain class
or collective actions in all forums, whether arbitral or
judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Mutual Agreement to Arbitrate
Claims (Agreement) in all of its forms, or revise it in all
of its forms to make clear that the Agreement does not
constitute a waiver of your right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums.
WE WILL notify all applicants and current and former
employees who were required to sign the Agreement in
any of its forms that the Agreement has been rescinded
or revised and, if revised, provide them a copy of the
revised agreement.
LESLIE’S POOLMART, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/21-CA-102332 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Alice J. Garfield, Esq., for the General Counsel.
Frank M. Liberatore and Jaclyn Floryan, Esqs., for the Re-
spondent.
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 employ-
ment, 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 in-
tends for them to do so; and (2) on or about April 1, 2013, Re-
spondent filed a Motion to Compel with the United States Dis-
trict 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 Stipula-
tion 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 posthearing briefs by November 1, 2013, but
ultimately, extended the posthearing brief deadline to Decem-
ber 2, 2013. On November 22, 2013, this case was reassigned
to the docket of the undersigned. On December 2, 2013, the
parties submitted their respective posthearing briefs in this case.
Upon the stipulated record, and in full consideration of the
briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated to the following facts as to the nature
of Respondent’s business and 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.)
2. During a 12-month period ending May 14, 2013, Re-
spondent derived gross revenues in excess of $500,000. At its
California branch locations, Respondent purchased and re-
ceived goods valued in excess of $50,000 from outside the
State of California. (Jt. Mot. Stip. Facts, Stip. 4.)

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.
LESLIE’S POOLMART, INC. 5
3. Respondent admits, and I find, that it is an employer with-
in 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).)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Background Facts
1. The Charging Party was employed by Respondent as a re-
tail 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 re-
solve certain employment related disputes with Respondent
exclusively through binding arbitration. Specifically, the
agreement provides that:
The Company and I mutually consent to the resolution by ar-
bitration of all claims or controversies (“claims”), past, pre-
sent 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 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’ spon-
sors, fiduciaries, administrators, affiliates and agents, and/or
(5) all successors and assigns of any of them.
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 im-
plied); tort claims; claims for discrimination (including, but
not limited to, race, sex, sexual orientation, religion, national
origin, age, marital status, physical or mental disability or
handicap, or medical condition); claims for benefits (with cer-
tain exceptions) . . . ; and claims for violation of any federal,
state, or other governmental law, statute, regulation, or ordi-
nance. (Jt. Mot. Stip. Facts, Exh. 4.)2
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 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 AND AGREEMENTS BETWEEN

2 The agreement expressly provided that either party could initiate an
administrative charge with the Board.
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 THE COMPANY OTHER
THAN THOSE CONTAINED IN THIS AGREEMENT
ITSELF. I UNDERSTAND THAT BY SIGNING THIS
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 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 PM3
5. At all material times, and at least since October 10, 2012,
as part of its hiring process, Respondent required all new em-
ployees at its California branch locations to agree and execute
the arbitration agreement described in paragraph 2 as a condi-
tion of employment. (Jt. Mot. Stip. Facts, Stips. 6–7.)
6. On or about February 13, 2013, following his separation
from employment with Respondent, Cunningham filed a com-
plaint in the Supreme Court of Los Angeles County on behalf
of himself and other similarly situated current and former em-
ployees of Respondent. (Jt. Mot. Stip. Facts, Exh. 5.)
7. The complaint alleged that the Respondent incorrectly
and unlawfully calculated and paid overtime to class members
for overtime worked since 2009. (Id.)
8. On March 5, 2013, Respondent removed the case to Dis-
trict Court in Civil Case No. 13–02122 CAS (CWx). (R. Br. 5.)
9. On or about April 1, 2013, Respondent filed a Motion to
Compel Arbitration and Memorandum of Points and Authori-
ties 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 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 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 Re-
spondent’s Motion by dismissing all classwide claims, finding
that Cunningham’s individual claims must proceed to arbitra-
tion. (Jt. Mot. Stip. Facts, Exh. 7.) However, the Court denied
Respondent’s motion to the extent it sought to prevent Cun-
ningham from pursuing a representative claim under the Private

3 Jt. Mot. Stip. Facts, Exh. 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Attorney General Act of 2004 (PAGA) (Cal. Labor Code
§2699) in arbitration. (Id.)
DISCUSSION AND ANALYSIS
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.
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 arbi-
tral or judicial forum, but is intended by the Respondent to do
so. Further, the General Counsel contends that, because Re-
spondent moved to compel Cunningham to resolve his individ-
ual claims through arbitration and sought to dismiss his class
and collective claims in District Court, it’s very actions in en-
forcing 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 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 al-
ternatively, (3) I should stay resolution of this decision pending
the Supreme Court’s ruling in Noel Canning; (4) the Fifth Cir-
cuit 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 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.
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 em-
ployees waive, as a condition of employment, their right to file
class, collective, or representative claims in any arbitral or judi-
cial forum. As explained herein, I believe this result is con-
sistent with the current reasoning set forth in D. R. Horton, Inc.,
357 NLRB No. 184 (2012) which, despite the recent Fifth Cir-
cuit decision, I am currently bound to adhere.

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 effec-
tively overruled the Board’s decision in D. R. Horton, Inc. On Decem-
ber 5, 2013, the General Counsel also filed a letter brief opposing Re-
spondent’s letter brief and addressing the Fifth Circuit’s decision.
Although I did not authorize the parties to file additional briefs beyond
the posthearing briefs, I have considered the parties’ additional filings
in this decision.
1. The complaint is timely
Respondent first contends that this case should be dismissed,
because Cunningham’s charge is time barred by Section 10(b)
of the Act, because it was filed more than 6 months after Sep-
tember 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 agreement is not related solely
to circumstances existing in September 2011, when Cunning-
ham 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 may be found
unlawful within the 10(b) period where its provisions are un-
lawful on their face or enforced inside the 10(b) period. Team-
sters 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 Cunning-
ham arbitrate certain employment related claims, including
wages and compensation, with Respondent even after his ter-
mination.5 The evidence further shows that Respondent stipu-
lated 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 arbitra-
tion 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 con-
tinuing violation existed such that the charge is not timebarred.
Control Services, 305 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.
Respondent next asserts that the Board’s ruling in D. R. Hor-
ton, 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 ar-
gues 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, 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.”)
However, the Board has repeatedly rejected any ruling that it

5 Specifically, the language of the agreement Cunningham signed
expressly provides that, “This Agreement to arbitrate shall survive the
termination of my employment. . . .”
LESLIE’S POOLMART, INC. 7
did not have the requisite three-board member authority. Alt-
hough the D.C. Circuit in Noel Canning concluded that the
President’s recent recess appointments to the Board were inva-
lid, the Court also noted that this conclusion is in 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 Cir-
cuit’s rationale. See Bloomingdale’s Inc., 359 NLRB No. 113
(2013) (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 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). Accord-
ingly, Respondent’s argument fails and the Board’s decision
and reasoning in D. R. Horton is currently binding upon me.
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 Can-
ning. This argument is also unavailing, and I decline to stay
this decision for the reasons stated in Bloomingdale’s Inc., su-
pra.
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 in D. R Horton v. NLRB,
2013 WL 6231617, (5 C.A. Dec. 3, 2013) (No. 12–60031) ef-
fectively overruled the Board’s prior decision and is binding on
the undersigned. In addition, Respondent avers that U.S. Su-
preme 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 em-
ployment matters, the NLRA is preempted by the FAA. How-
ever, neither argument is persuasive.
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 Concep-
cion, the Court emphasized that its cases “place it beyond dis-
pute that the FAA was designed to promote arbitration.” The
Court explained that the purpose of the FAA is to “ensur[e] that
private arbitration agreements are enforced according to its
terms.” See Volt Information Sciences, Inc. v. Board of Trus-
tees 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.
In D. R. Horton, Inc., 357 NLRB No. 184 (2012), the charg-
ing 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 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 pro-
tected under Section 7 of the Act. While the Board acknowl-
edged the interplay between the FAA and the NLRA, the Board
reasoned that the ruling in D. R. Horton was consistent with
Supreme Court precedent which found the FAA inapplicable
when an arbitration agreement precludes employees from exer-
cising 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 upheld the enforcement of
individual arbitration agreement in employment related matters,
see, e.g., Concepcion, supra, and American Express Co. v. Ital-
ian 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. 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”) (cita-
tion 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 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 Respond-
ent’s arbitration agreement violates the Act. While the arbitra-
tion agreement does not, on its face, prohibit collective or class
action, it has the effect of doing so as evinced when Respond-
ent, 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 em-
ployees’ ability to join together to pursue workplace grievanc-
es, including through litigation.” D. R. Horton, supra, slip op.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
at 2. By filing a class action lawsuit in court, both Cunningham
(and the charging party in D. R. Horton) were engaging in con-
duct 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 em-
ployer leaves open a judicial forum for class and collective
claims, [thus] employees’ NLRA rights are preserved without
requiring the availability of 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 arbitra-
tion 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 be-
tween Respondent’s arbitration agreement and the one 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 law-
suit in State court is not protected concerted activity under Sec-
tion 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 be-
cause whether class member status existed is immaterial since
the Act “protects employees who engage in 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 rights guaranteed in Section 7 include the right
“to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.” See Bright-
on Retail, Inc., 354 NLRB 441, 441 (2009).
In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and
in Meyers Industries (Meyers II), 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 employ-
ees, 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. Individ-
ual action is concerted if it is engaged in with the object of
initiating or inducing group action. Whitaker Corp., 289 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 en-
gaged in protected concerted activity when he filed his class
action lawsuit in State court. See Harco Trucking, LLC, 344
NLRB 478 (2005); 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 over-
time pay violations against Respondent. Whitaker, supra. Con-
sequently, 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.
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 fo-
rum.
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.) Re-
spondent argues that filing its motion to compel is not violative
of the Act, because its filing constitutes a “constitutionally
protected petitioning of the government under the First
Amendment.” (R. Br. 11–13.) However, Respondent’s argu-
ment 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) inter-
feres, 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 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.
CONCLUSIONS OF LAW
1. Respondent, Leslie’s Poolmart is an employer within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by main-
taining and enforcing a mandatory and binding arbitration
agreement which required employees to resolve certain em-
ployment-related disputes exclusively through individual arbi-
tration and, though not expressly, but in practice, required them
to relinquish any right they have to resolve such disputes
through collective or class action.
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 Charg-
ing Party’s collective and class claims.
LESLIE’S POOLMART, INC. 9
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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.6
ORDER
The Respondent, Leslie’s Poolmart, Inc. of Phoenix, Arizo-
na, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a mandatory and binding arbi-
tration policy that, either expressly or impliedly, or by Re-
spondent’s actions or practice, waives the right to maintain
class or collective actions in all forums, whether arbitral or
judicial.
(b) Seeking court action to enforce a mandatory and binding
arbitration policy that, either expressly or impliedly, or by Re-
spondent’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 exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) 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 employment related class or
collective actions in all forums.
(b) Notify the employees of the rescinded or revised agree-
ment to include providing them a copy of the revised agreement
or specific notification that the agreement has been rescinded.
(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 arbitra-
tion.
(d) Reimburse Charging Party and/or any other employees
who joined in Civil Case No. 13–02122 CAS (CWx) for any
litigation expenses: (i) directly related to opposing Respond-
ent’s Motion to Compel; and/or (ii) resulting from any other
legal action taken in response to Respondent’s efforts to en-
force the arbitration agreement.
(e) Within 14 days after service by the Region, post at all fa-
cilities where the arbitration agreement applied, copies of the
attached notice marked “Appendix”7 in both English and Span-

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 pur-
poses.
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 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.”
ish. 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, 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 employ-
ment with Respondent. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, 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.
(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, 2014
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 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 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 ac-
tions 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 Sec-
tion 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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 employ-
ees 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.