Lincoln Eastern Management Corporation

National Labor Relations Board - Board Decisions

May 31, 2016

364 NLRB No. 16 (N.L.R.B. 2016)

364 NLRB No. 16
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.
Lincoln Eastern Management Corporation and
Alecia Winters. Case 28–CA–147123
May 31, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
Upon a charge filed February 26, 2015, by Alecia
Winters, the General Counsel issued a complaint and
notice of hearing on March 31, 2015, alleging that the
Respondent has been violating Section 8(a)(1) of the Act
by maintaining its “Arbitration Policy” and “Employee
Handbook Acknowledgement and Agreement to Arbi-
trate.”
On June 24, 2015, 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 November 4, 2015, the
Board granted the parties’ joint motion. Thereafter, the
Respondent and the General Counsel filed briefs.
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
place of business in Scottsdale, Arizona, has been en-
gaged in the business of managing, maintaining, and
leasing apartments and condominiums. In conducting its
operations during the 12-month period ending February
26, 2015, the Respondent purchased and received at its
facility, goods valued in excess of $50,000 directly from
points outside the State of Arizona, and the Respondent
derived gross revenues in excess of $500,000. The Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Charging Party is a former employee of the Re-
spondent. At all material times, the Respondent has
maintained the “Arbitration Policy” (the Policy) and has
required employees to sign a document entitled the “Em-
ployee Handbook Acknowledgement and Agreement to
Arbitrate” (the Agreement). Both the Policy and Agree-
ment are contained in the Respondent’s employee hand-
book and employees are required to abide by the Policy
and sign the Agreement as a condition of their employ-
ment. By signing the Agreement, each employee
acknowledges receipt of the Policy and agreement to its
terms. The Policy applies to all current and former em-
ployees hired since June 14, 2014. The Charging Party
signed the Agreement during her employment with the
Respondent.
The 3½ -page Policy states in relevant part:
• “Lincoln Property Company has a policy requiring
arbitration of all claims or causes of action arising in
any way from its (and its affiliates’) employment re-
lationships and, as a condition of employment, re-
quires all employees to agree to arbitrate disputes.”
(Jt. Exh. 4, p. 49)
• “It is understood and agreed that any claims or caus-
es of action between you and Company, or any of its
employees or agents, that arise in any way from or
relate in any way to your employment or termination
from employment with the Company, or any of the
terms or benefits related to your employment—
excluding claims covered by workers’ compensation
or as otherwise specifically excluded below—will be
determined exclusively by final and binding arbitra-
tion.” (Jt. Exh. 4, p. 49-50)
• “This Arbitration Policy is intended to broadly cover
the entire relationship between [the employee] and
Company and includes, without limitation (except as
specifically noted herein), . . . iii) any dispute, claim
or controversy arising under any state or federal
common law or any state, federal or local statute or
ordinance . . . . This Arbitration Policy includes all
claims arising at any time during Employee’s em-
ployment with Company (including any preexisting
claims), and also includes claims that [the employee]
may bring against other employees or agents of
Company that are based in whole or in part on the
employment relationship between [the employee]
and Company. The arbitrator will only have author-
ity to hear each employee’s individual claims and
will not have the authority to (i) consolidate the
claims of other employees, (ii) fashion a proceeding
as a class or collective action, or (iii) award relief to
a group or class of employees in one arbitration pro-
ceeding. Neither Company nor you will pursue any
claim against the other as a member or representa-
tive of a class. In addition, nothing in this policy is
intended to prevent you from filing any claims for re-
lief under the National Labor Relations Act with the
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board or any other appro-
priate administrative agency related to your em-
ployment claims. In fact, following the appropriate
administrative processes including, but not limited
to, proper procedure as required by the EEOC (or
equivalent state commission) for obtaining a right to
suit against Company, is a prerequisite to the filing
of any related arbitration. In other words, this arbi-
tration process is limited to disputes, claims or con-
troversies that a court of law would be authorized to
consider or would have jurisdiction over to grant re-
lief.” [emphasis in original] (Jt. Exh. 4, p. 50)
The Agreement states in relevant part: “I agree that I
have read the Arbitration Policy and any claim, dispute
or controversy between myself and my employer, Lin-
coln Property Company or any of its related affiliates
shall be submitted to and determined exclusively by
binding arbitration in accordance with [the] policy as
described in the Handbook.” (Jt. Exh. 4, p. 5.) Unlike
the Policy, the Agreement does not specify that employ-
ees may file charges with the Board or other administra-
tive agencies.
B. Discussion
The Board held in D. R. Horton, 357 NLRB 2277
(2012), enf. denied in rel. 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 in rel. part
808 F.3d 1013 (5th Cir. 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 Policy and the Agreement
(collectively, the Respondent’s arbitration policy). First,
we find that the Respondent’s arbitration policy is facial-
ly unlawful under D. R. Horton and Murphy Oil. Like
the policies in those cases, the Respondent’s arbitration
policy requires employees, as a condition of their em-
ployment, to submit their employment-related legal
claims to individual arbitration, thereby compelling em-
ployees to waive their Section 7 right to pursue such
claims through class or collective action in all forums,
arbitral and judicial.1 See Murphy Oil, 361 NLRB No.
72, slip op. at 1; D. R. Horton, 357 NLRB at 2277.
Second, applying the test of Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646 (2004), we find that the
Respondent’s arbitration policy violates Section 8(a)(1)
because employees would reasonably believe that the
arbitration policy interferes with their ability to file a
Board charge or otherwise access the Board’s processes.
See SolarCity, 363 NLRB No. 83, slip op. at 4 (2015);
Murphy Oil, supra, 361 NLRB No. 72, slip op. at 13, 19
fn. 98, 39 fn. 15; D. R. Horton, supra, 357 NLRB at 2278
fn. 2, 4; Bill’s Electric, 350 NLRB 292, 296 (2007); U-
Haul Co. of California, 347 NLRB at 377–378. “Pre-
serving and protecting access to the Board is a funda-
mental goal of the Act,” and so the Board must carefully
examine employer rules that may interfere with this goal.
SolarCity, supra, slip op. at 4. Furthermore, “the Board
must recognize that ‘rank-and-file employees . . . cannot
be expected to have the same expertise to examine com-
pany rules from a legal standpoint.’” Ralph’s Grocery
Co., 363 NLRB No. 128, slip op. at 1 (2016) (quoting
SolarCity, supra, slip op. at 5). The Board construes am-
biguity against the promulgator of the rule, but does not
presume interference with Section 7 rights and does not
read phrases in isolation. See SolarCity, supra, slip op. at
6; Lutheran Heritage, 323 NLRB at 646; U-Haul Co. of
California, 347 NLRB at 377.
The Respondent’s arbitration policy is ambiguous
when read as a whole. The first two paragraphs of the
Policy broadly require arbitration of “all claims or causes
of action arising in any way from [the Respondent’s]
(and its affiliates’) employment relationship.” The fol-
lowing page, with the long paragraph including the pur-
ported NLRB exclusion, reiterates that the Policy is “in-

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 arbitration policy does not violate Sec. 8(a)(1). He observes
that the Act does not “dictate” any particular procedures for the litiga-
tion of non-NLRA claims, and “creates no substantive right for em-
ployees to insist on class-type treatment of non-NLRA claims.” This is
surely correct, as the Board has previously explained in Murphy Oil,
supra, slip op. at 2, 16 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 avail-
able, without the interference of an employer-imposed restraint.” Mur-
phy Oil, slip op. at 2 (emphasis in original). The Respondent’s arbitra-
tion policy 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 arbitration policy unlawful runs afoul
of employees’ Sec. 7 rights to “refrain from” engaging in protected
activity. See Murphy Oil, slip op. at 18; Bristol Farms, 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 Section 7
rights to engage in concerted legal activity. Murphy Oil, slip op. at 17–
18; Bristol Farms, slip op. at 2.
LINCOLN EASTERN MANAGEMENT CORPORATION 3
tended to broadly cover the entire [employment] rela-
tionship. . . and includes, without limitation (except as
specifically noted herein) . . . any dispute, claim or con-
troversy arising under any state or federal common law
or any state, federal or local statute or ordinance.” Fur-
ther along in the same paragraph, italicized text empha-
sizes that the arbitrator only has the authority to hear
claims and provide remedial relief on an individual basis
and bars class or collective action, stating that “[n]either
[the Respondent] nor [the employee] will pursue any
claim against the other as a member or representative of
a class.” Such broad language might confuse employees
about their ability to file unfair labor practice charges, as
it “clearly encompasses filing an unfair labor practice
charge with the Board when that charge purports to
speak to a group or collective concern.” SolarCity, su-
pra, slip op. at 6. The purported NLRB exclusion fol-
lows that text, also stating in italics that “nothing in this
policy is intended to prevent you from filing any claims
for relief under the National Labor Relations Act with
the National Labor Relations Board or any other appro-
priate administrative agency related to your employment
claims.” The next sentence, however, states that “follow-
ing the appropriate administrative processes . . . is a pre-
requisite to the filing of any related arbitration.” This
statement seems to suggest that it is futile to file a charge
with the Board because all disputes are ultimately re-
solved through arbitration. See Ralph’s Grocery Co.,
supra, slip op. at 2–3 (employer’s arbitration policy could
be reasonably read to suggest that the right to file charges
with Board is futile; although the policy contains an
NLRB exclusion, language in same paragraph dictates
that disputes must nonetheless be resolved through arbi-
tration per the policy). Considering the policy as a
whole, we find that it is not written in a manner reasona-
bly calculated to assure employees that their statutory
right of access to the Board’s processes remains unaf-
fected. Accordingly, the Respondent’s arbitration policy
violates Section 8(a)(1) because employees would rea-
sonably believe that it interferes with their right to file
charges or to access the Board’s processes. See U-Haul
Co. of California, 347 NLRB at 377–378.2

2 The Respondent argues that its arbitration policy includes an ex-
emption allowing employees to file charges with administrative agen-
cies such as the Board, and thus does not, as in D. R. Horton, and Mur-
phy Oil, unlawfully prohibit them from collectively pursuing litigation
of employment claims in all forums. In support of its argument, the
Respondent argues that the arbitration policy does not bar all concerted
employee activity in pursuit of employment claims because it permits
employees to file charges with administrative agencies that could file
suit on behalf of a class of employees. We reject the Respondent’s
argument for the reasons set forth above, pp. 5–6, and in SolarCity
Corp., 363 NLRB No. 83 (2015).
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
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, and by
maintaining a mandatory arbitration policy under which
employees are required, as a condition of employment, to
waive the right to maintain employment-related class or
collective actions in all forums, whether arbitral or judi-
cial, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act, and has violated Section 8(a)(1) of the
Act.
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, Lincoln Eastern Management Corporation,
Scottsdale, Arizona, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that
employees reasonably would believe bars or restricts the
right to file charges with the National Labor Relations
Board.
(b) Maintaining a mandatory arbitration policy that
requires employees, as a condition of employment, to
waive the right to maintain employment-related class or
collective actions in all forums, whether arbitral or judi-
cial.
(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 “Arbitration Policy” (the Policy) and
the “Employee Handbook Acknowledgement and
Agreement to Arbitrate” (the Agreement) in all of their

In his dissent, our colleague repeats his argument that an individual
arbitration agreement lawfully may require the arbitration of unfair
labor practice claims if the agreement reserves to employees the right to
file charges with the Board. As explained in Ralph’s Grocery Co.,
supra, slip op. at 3, that argument is at odds with well-established
Board law.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forms, or revise them in all of their forms to make clear
to employees that they do not constitute a waiver of their
right to maintain employment-related joint, class, or col-
lective actions in all forums, and that they do not bar or
restrict employees’ right to file charges with the National
Labor Relations Board.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the Policy
and Agreement in any form that they have been rescind-
ed or revised and, if revised, provide them a copy of the
revised documents.
(c) Within 14 days after service by the Region, post at
its Scottsdale, Arizona facility copies of the attached
notice marked “Appendix,” and at all other facilities
where the unlawful arbitration policy is or has been in
effect.3 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates 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 Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix” to all current em-
ployees and former employees employed by the Re-
spondent at any time since February 26, 2015.
(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. May 31, 2016
______________________________________
Kent Y. Hirozawa, Member

3 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.”
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, my colleagues find that the Respondent’s
“Arbitration Policy” (Policy) and the “Employee Hand-
book Acknowledgment and Agreement to Arbitrate”
(Acknowledgment) violate Section 8(a)(1) of the Nation-
al Labor Relations Act (the Act or NLRA) because they
waive the right to participate in class or collective actions
regarding non-NLRA employment claims. I respectfully
dissent from this finding for the reasons explained in my
partial dissenting opinion in Murphy Oil USA, Inc.1 I
also dissent from my colleagues’ finding that the Policy
and Acknowledgment unlawfully interfere with the right
of employees to file charges with the Board.
1. Legality of the class action waiver
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.2 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”3 This aspect of Section

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
2 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).
3 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
LINCOLN EASTERN MANAGEMENT CORPORATION 5
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;4 (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;5 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).6 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

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).
4 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.”).
5 The Fifth Circuit has repeatedly denied enforcement of Board or-
ders invalidating a mandatory arbitration agreement that waived class-
type treatment of non-NLRA claims. See, e.g., Murphy Oil USA, Inc.
v. NLRB, above; D. R. Horton, Inc. v. NLRB, above. The overwhelm-
ing 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).
6 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).
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.7
2. Interference with NLRB charge filing
My colleagues also find that the Respondent violated
Section 8(a)(1) by maintaining the Policy and Acknowl-
edgment because, in their view, reasonable employees
would read the Policy and Acknowledgment as restrict-
ing them from filing unfair labor practice charges with
the Board. See, e.g., U-Haul Co. of California, 347
NLRB 375, 377–378 (2006) (finding that employer vio-
lated the Act by maintaining an arbitration policy that
employees would reasonably read as prohibiting them
from filing unfair labor practice charges with the Board),
enfd. mem. 255 Fed. Appx. (D.C. Cir. 2007). I respect-
fully disagree.
The Policy and Acknowledgment broadly require arbi-
tration of all employment-related claims, including those
arising under the NLRA,8 but I do not believe the scope
of these documents makes them violative of the Act. As
I explained in Ralph’s Grocery Co.,9 GameStop Corp.,10
and Applebee’s Restaurant,11 decades of case law—
including the Board’s recent decision in Babcock & Wil-
cox Construction Co., 361 NLRB No. 132 (2014)—

7 Because I disagree with the Board’s decisions in Murphy Oil,
above and D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied
in relevant part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA
does not render unlawful arbitration agreements that provide for the
waiver of class-type litigation of non-NLRA claims, I find it unneces-
sary to reach whether such agreements should independently be
deemed lawful to the extent they “leave[] open a judicial forum for
class and collective claims,” D. R. Horton, 357 NLRB No. 184, slip op.
at 12, by permitting the filing of complaints with administrative agen-
cies that, in turn, may file class- or collective-action lawsuits on em-
ployees’ behalf. See Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th
Cir. 2013).
8 The Policy is contained in the Respondent’s employee handbook.
The Policy requires “arbitration of all claims or causes of action arising
in any way from [the Respondent’s] . . . employment relationships.”
The Policy further states that “any claims or causes of action between
you and [the Respondent] . . . that arise in any way from or relate to
your employment or termination from employment with [the Respond-
ent] . . . will be determined exclusively by final and binding arbitra-
tion,” and it reiterates that it is “intended to broadly cover the entire
relationship between [the employee] and [the Respondent],” including
“without limitation (except as specifically noted herein) . . . any dis-
pute, claim or controversy arising under . . . any . . . federal . . . statute.”
The Acknowledgment, in turn, states: “I agree that I have read the
Arbitration Policy and any claim, dispute or controversy between my-
self and my employer . . . shall be submitted to and determined exclu-
sively by binding arbitration in accordance with [the] policy as de-
scribed in the Handbook.”
9 363 NLRB No. 128, slip op. at 6–8 (2016) (Member Miscimarra,
concurring in part and dissenting in part).
10 363 NLRB No. 89, slip op. at 4–7 (2015) (Member Miscimarra,
concurring in part and dissenting in part).
11 363 NLRB No. 75, slip op. at 3–5 (2015) (Member Miscimarra,
concurring in part and dissenting in part).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
establish that parties may lawfully agree to submit
NLRA claims to arbitration, provided that the agreement
does not otherwise interfere with NLRB charge filing.12
Such an agreement does not unlawfully prohibit the fil-
ing of charges with the NLRB, particularly when the
right to do so is expressly stated in the agreement itself.
In this case, the Policy expressly provides that “nothing
in this policy is intended to prevent you from filing any
claims for relief under the National Labor Relations Act
with the National Labor Relations Board” (italics in Pol-
icy). This language eliminates any possible uncertainty
about the right of employees to file charges with the
Board.13 See Murphy Oil USA, Inc. v. NLRB, 808 F.3d at
1019-1020 (rejecting Board’s finding that employer’s
Revised Arbitration Agreement, which stated that
“‘[n]othing in this Agreement precludes [employees] . . .
from participating in proceedings to adjudicate unfair
labor practice[] charges before the [Board],’” unlawfully
interfered with Board charge filing: “it would be unrea-

12 Although NLRA claims may lawfully be made subject to arbitra-
tion, the Board in all cases retains the right, under Sec. 10(a) of the Act,
to independently review any allegations of unfair labor practices made
in a charge filed with the Board. See, e.g., GameStop Corp., above,
363 NLRB No. 89, slip op. at 4–5 fn. 10 (Member Miscimarra, concur-
ring in part and dissenting in part).
13 See Applebee’s Restaurant, above, slip op. at 4 (Member
Miscimarra, concurring in part and dissenting in part) (finding that
employer’s Dispute Resolution Program eliminated any possible uncer-
tainty about the right of employees to file charges with the Board by
stating that the Program “will not prevent you from filing a charge with
any
. . . federal administrative agency”).
The Policy includes language expressly preserving Board charge fil-
ing, but the Acknowledgement does not. In GameStop, above, 363
NLRB No. 89, slip op. at 6–7, I found that the employer’s long-form
arbitration policy protected the right to file Board charges, but I con-
cluded that the separate acknowledgment form unlawfully interfered
with Board charge filing, where (i) the acknowledgment characterized
the arbitration policy in a short-form manner, stating it was the employ-
er’s “procedure for resolving workplace disputes ending in final and
binding arbitration,” and (ii) the acknowledgment set forth a one-
sentence agreement stating that the employee agrees “that all workplace
disputes or claims will be resolved under” the arbitration policy. Thus,
the acknowledgment form in GameStop appeared to include a free-
standing agreement, without any qualification, that all workplace dis-
putes would be resolved in final and binding arbitration, which would
preclude Board charge filing. Here, by contrast, the Acknowledgment
expressly describes the employee’s agreement by reference to the Poli-
cy, which in turn makes clear that the employee retains the right to file
charges with the NLRB. Thus, the Acknowledgment states the em-
ployee agrees that “any claim, dispute or controversy between myself
and my employer . . . shall be submitted to and determined exclusively
by binding arbitration in accordance with [the] policy as described in
the handbook” (emphasis added). Because the Acknowledgment indi-
cates that employees must refer to the Policy to determine the contours
of the arbitration agreement they are entering into—and, as explained
above in the text, the Policy preserves the right to file Board charges—I
believe the Acknowledgment does not unlawfully interfere with Board
charge filing.
sonable for an employee to construe the Revised Arbitra-
tion Agreement as prohibiting the filing of Board charges
when the agreement says the opposite”) (alterations in
original).
Accordingly, as set forth above, I respectfully dissent
from the majority’s decision.
Dated, Washington, D.C. May 31, 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
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 our employees would reasonably believe bars or
restricts their right to file charges with the National La-
bor Relations Board.
WE WILL NOT maintain a mandatory arbitration policy
that requires our employees, as a condition of employ-
ment, to waive the right to maintain employment-related
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 “Arbitration Policy” (the Policy)
and the “Employee Handbook Acknowledgement and
Agreement to Arbitrate” (the Agreement) in all of their
forms, or revise them in all of their forms to make clear
that the Policy and the Agreement do not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that
LINCOLN EASTERN MANAGEMENT CORPORATION 7
they do 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
Policy and the Agreement in any of their forms that the
Policy and the Agreement have been rescinded or revised
and, if revised, WE WILL provide them a copy of the re-
vised documents.
LINCOLN EASTERN MANAGEMENT COR-
PORATION
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–147123 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.