Motor City Pawn Brokers, Inc., Aubrey Brothers, LLC (d/b/a Motor City Pawn Brokers II), The Aubrey G

National Labor Relations Board - Administrative Judge Opinions

Oct 22, 2018

07-CA-179458 (N.L.R.B. Oct. 22, 2018)

JD–66–18
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MOTOR CITY PAWN BROKERS INC.,
THE AUBREY GROUP INC., AND
AUBREY BROTHERS, LLC,
A SINGLE EMPLOYER
and Case 07–CA–179458
TERRENCE WALKER, an Individual
and Case 07–CA–179461
PATRICIA TILMON, an Individual
Patricia A. Fedewa, Esq., for the General Counsel.
Jonathan B. Frank, Esq., James M. Reid, IV, Esq.,
and Kaitlin A Brown, Esq., (Maddin Hauser
Roth & Heller, PC) for the Respondent.
Daniel C. Tai, Esq. and Angela L. Walker, Esq.
(Blanchard & Walker PLLC) for Charging Parties.
DECISION
STATEMENT OF THE CASE
ELIZABETH M. TAFE, Administrative Law Judge. This case was tried in Detroit,
Michigan, on July 27, 2017, and concluded by teleconference on August 14, 2017, pursuant to a
complaint issued by the Regional Director of Region 7 on December 15, 2016, as amended at the
hearing, and further amended upon the General Counsel’s posthearing motion (the complaint).
The complaint alleges that Motor City Pawn Brokers, Inc., The Aubrey Group, Inc., and Aubrey
Brothers, LLC, A Single Employer (Motor City Pawn Brokers or the Respondent), violated
Section 8(a)(1) of the Act by maintaining certain work rules contained in its employment
agreements and personnel handbooks. The complaint further alleges that the Respondent
unlawfully discharged four employees, including the two charging parties, because they failed or
refused to sign the employment documents containing the allegedly unlawful rules. The
Respondent timely answered the complaint, admitting maintenance of the contested rules, but
denying all wrongdoing. Among its defenses, the Respondent asserts that the four employees
were discharged because their refusal to sign the employment agreements was insubordination
and that their actions did not amount to protected, concerted activity.
JD–66–18
Detroit, MI
2
The parties were given a full opportunity to participate in the hearing, to introduce
relevant evidence, to call, examine, and cross-examine witnesses, and to file briefs and
supplemental briefs.1 On the entire record, including my observations of the demeanor of the
witnesses, and after carefully considering the briefs and supplemental briefs filed by the General
Counsel and the Respondent, I make the following findings, conclusions, and recommendations. 5
FINDINGS OF FACT
I. JURISDICTION
The Respondent’s companies, Motor City Pawn Brokers, Inc., The Aubrey Group, Inc., 10
and Aubrey Brothers, LLC, are corporate entities operating pawn brokerage businesses in Detroit
and Warren, Michigan, Ferndale, Michigan, and Roseville, Michigan, respectively. The
Respondent companies’ businesses involve the assessment, appraisal, and receipt of personal
property as collateral for personal loans, the sale of property related to satisfaction of loans, and
the maintenance of several storefront operations. The Respondent companies admit and I find 15
that they are a single-integrated business enterprise and a single employer under the Act as
alleged in the complaint (complaint par. 3–4; GC Exh. 1(t) (Respondent’s Answer); Tr. 11–12).2

1 The legal landscape has shifted somewhat a number of times during the pendency of this case. As
explained in detail in this decision, I apply the Board’s present precedents.
On December 14, 2017, the Board issued its decision in The Boeing Company, 365 NLRB No. 154
(2017), which made retroactive the application of a new legal standard to pending cases that challenge the
lawfulness of facially neutral workplace rules. The parties were granted the opportunity to identify any
need to supplement the record and to file supplemental briefs. Both the Respondent and the General
Counsel opined that the record was complete without reopening the record, and both filed supplemental
legal briefs addressing the new legal standard. The Charging Parties did not file briefs. During
supplemental briefing, I granted the General Counsel’s unopposed motion to withdraw complaint
allegations as set forth in his January 2, 2018 motion. The rules that remain in dispute are identified in
pars. 8, 9, 10, and 11, of the complaint, as amended, and are described in detail below.
On May 21, 2018, in Epic Systems Corp. v. Lewis, et al., 584 U.S. __, 138 S.Ct. 1612 (2018), the U.S.
Supreme Court rejected the Board’s position in Murphy Oil USA, Inc., 361 NLRB 774 (2014) regarding
the lawfulness of an employer’s requirements in arbitration agreements that employees forego as a
condition of employment their right to file class or collective actions in all forums, arbitral or judicial.
Therefore, as discussed below, the complaint allegation related to the Respondent’s requirement that all
disputes by employees against the Respondent be conducted solely on an individual basis, as set forth in
the Class Action Waiver provision in the Respondent’s mandatory Employment Agreement (GC Exh. 2 at
5), is dismissed. Epic Systems Corp., Id.
On August 1, 2008, the Board issued a notice inviting briefs in Rio All-Suites Hotel and Casino, 28-
CA-060841, unpub. Board order issued Aug. 1, 2018 (2018 WL 3703476), indicating its interest in
reconsider the holding in Purple Communications, Inc., 361 NLRB 1050, 1063 (2014). As discussed
below, I apply the current standard.
2 The Board considers several nominally separate business entities to be a single employer where they
comprise an integrated enterprise. Radio Union v. Broadcast Service of Mobile, 380 U.S. 255 (1965). The
Board focuses on four factors in determining whether entities constitute a single employer: (1) common
ownership or financial control; (2) interrelation of operations; (3) common control of labor relations; and
(4) common management. Bolivar-Tees, Inc., 349 NRB 720 (2007); see also Rogan Brothers Sanitation,
362 NLRB 547 (2015), and cases cited therein. All four factors need not be present. Bolivar-Tees, above;
Rogan Brothers, above. Here, the Respondent has admitted that the Respondent companies are a single
employer, but has not admitted to all the underlying facts as alleged in the complaint to support this
JD–66–18
3
In conducting its operations in 2015, the Respondent as a single integrated entity derived gross
revenues in excess of $500,000. In 2015, Respondent sold and shipped from its Detroit, Warren,
Ferndale, and Roseville facilities, products, goods, and materials valued in excess of $5000
directly to points outside the State of Michigan. Respondent admits that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The 5
Respondent further admits that each of Respondent’s companies separately is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Based on the above, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act. 10
II. ALLEGED UNFAIR LABOR PRACTICES
Factual Background
15
The Respondent operates a pawn brokerage business in the Detroit metropolitan area at
four locations. In its four locations, the Respondent employs approximately 100 employees.
The Respondent maintains work rules set forth in various employment documents. In
about February 2016, the Respondent introduced a new set of employment documents and 20
required employees to affirm their agreement to the work rules by signing them in order to retain
their jobs The General Counsel alleges that multiple provisions of the following four
employment documents violate Section 8(a)(1) of the Act:
(1) Employment Agreement, a 6-page document (GC Exh. 2; Complaint par. 8); 25
(2) Contract between the Company and Employee and Employee Handbook Receipt,
a 2-page document (GC Exh. 3; Complaint par. 9) (the Contract and Receipt);
(3) Employee Handbook, a 45-page document (GC Exh. 4; Complaint par. 10)
(the Handbook); and
(4) Employee Handbook, a 46-page document (GC Exh. 15; Complaint par. 11)30
(the Updated Handbook).

finding. I find there is sufficient evidence in the record to support this admission. This evidence includes:
Mark Aubrey owns, or jointly owns with his father, all three entities, which evolved over time from one
store originally owned by Aubrey’s father; Aubrey works at, physically visits at least weekly, and
generally oversees operations at each site, occasionally involving himself in day-to-day operations,
although Aubrey tries to delegate operations to the managers; the entities share one district manager,
Chris Farraj, who oversees the performance of managers and employees at each location; the entities have
similar supervisory structures at each store, so that pawn brokers report to their store managers and
assistant store managers, but occasionally deal directly with Farraj and Aubrey; Aubrey describes that all
the stores are expected to adhere to the same ethical philosophy and business model, which he considers
proprietary; the employment documents at issue in this case are effective at all three entities and all four
locations, and, to some extent, the development of the employment documents reflected management’s
desire to effectuate uniform employment conditions in all three entities, in anticipation of further growth;
the Respondent companies have responded to and proceeded in this case by filing answers together and
are represented by the same legal counsel; and, other than the entities’ corporate names and the fact that
there are separate store locations, there is an absence of evidence on this record that the entities function
independently.
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4
The Respondent is a family-owned business established in 1990 that has enjoyed
significant expansion from its original, single pawn shop location to at least four current
locations with about 100 employees. Since at least 2011, Mark Aubrey has shared ownership of
the business with his father and participates in managing the stores. Aubrey began working in 5
this father’s pawn shop when he was 17 years old. Although each location has a different store
manager and one or two assistant managers, there is one district manager, Chris Farraj, who
works closely with Aubrey to insure policies are enforced lawfully and consistently at each store.
Among other employees, pawn brokers work at each store, and report to the store managers.
Pawn brokers provide customer service, authenticate and appraise collateral property provided 10
by customers, and establish loans against the collateral.
Before February 2016, the Respondent maintained a personnel handbook and asked
employees to sign a non-competition agreement. Aubrey explained that several years before
2016, one of the Respondent’s pawn brokers quit and, shortly thereafter, began working in a 15
competitor pawn shop nearby. Aubrey believes that the former employee shared proprietary and
confidential information about the Respondent’s operations with the competitor, although the
record does not establish what information may have been divulged. In any case, in early 2016,
Aubrey sought legal advice and decided to update his employment documents, apparently in
large part to attempt to prevent a similar situation where a pawn broker might leave his employ 20
and share what he considered proprietary business information or practices with competitors.
After legal counsel reviewed and revised Respondent’s employee handbook and employment
agreement, Aubrey decided to require all employees to sign new employment agreements in
order to protect its investment in training employees and protect itself from disclosure of
information about its business operations and strategies. 25
In February 2016, the Respondent distributed new employment documents to employees,
which included (1) the Employment Agreement, (2) the Contract and Receipt, and (3) the
Handbook. Aubrey expected all of his employees to sign the new employee documents. Pawn
brokers Gianluca Bartolucci, Ringo Salzar, Patricia Tilmon, and Terrence Walker did not sign 30
the employment documents. The Respondent interpreted their failure and refusal to sign the
employment documents as refusing to agree to abide by the Respondent’s updated, mandatory
work rules and unilaterally established contractual obligations, which the Respondent concluded
was insubordination. All four employees were terminated. Although the record indicates that
each of the employees failed to sign the employment documents separately and in somewhat 35
different circumstances, the Respondent admits that the reason each of their employments was
terminated was their failure to sign the documents, which the Respondent required them to do as
a condition of continued employment. (R. Brief at 7–8; GC Exh. 8, 9).
The General Counsel alleges that the contested work rules in the employment documents, 40
maintained by the Respondent and in effect since about February 2016, as well as the further
updated 2017 Handbook, are “facially unlawful” because they consist of overly broad rules that
reasonably tend to chill employees in the exercise of their Section 7 rights, in that the impacts of
the rules on NLRA rights are not outweighed by the Respondent’s legitimate justifications for
the rules, as articulated. See Boeing, below. Further, the General Counsel argues that, because 45
the employment documents contain unlawful rules, the Respondent’s termination of the four
JD–66–18
5
employees for failing and refusing to sign the employment documents was unlawful.
The Respondent argues, however, that the rules are not shown to be unlawful because (1)
it is not reasonable to conclude that they interfere with Section 7 rights; (2) the Respondent’s
justifications outweigh any potential effect on Section 7 rights; or (3) the rules have not been 5
applied to interfere with Section 7 rights. The Respondent argues that, even if some rules are
found unlawful, there can be no liability for the four terminations because (1) employees did not
explain contemporaneously why they refused to sign the employment documents; (2) to the
extent they explained their reasons for not signing the documents, these reasons were unrelated
to the rules found unlawful; (3) three employees resigned rather than sign the documents; and/or 10
(4) the employees did not engage in protected concerted activity.
ANALYSIS
A. Legal Framework of Allegations of Unlawfully Maintained Rules15
An employer violates Section 8(a)(1) of the Act when it maintains workplace rules or
policies that would reasonably tend to chill employees in the exercise of their Section 7 rights.
See Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). This
applies to workplace rules found in employee personnel handbooks and employment agreements20
like those contested in this case. Specifically, the Board considers restrictions found in
mandatory employment agreements, including arbitration agreements, to be workplace rules and
evaluates them under their workplace rule doctrines. The Board has long-held that the mere
maintenance of unlawful rules may violate the Act without regard for whether the employer ever
applied the rule for unlawful purposes. Rio All-Suites Hotel & Casino, 362 NLRB 1690, 169825
(2015), disfavored in part on other grounds, Boeing, below, slip op. at 19–20, fn. 89. The
analytical framework for assessing whether the maintenance of workplace rules violates the Act
is set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), as reformed and
overruled in pertinent part by the Board in The Boeing Company, 365 NLRB No. 154 (2017).3
Under Boeing, the Board confirmed the general framework of Lutheran Heritage and left 30
unchanged certain elements of the legal standards set forth, but expressly overruled the
established test for determining when a work rule that does not explicitly restrict rights protected
by the Act (facially neutral rule) will be found to violate Section 8(a)(1). Thus, when evaluating
whether a workplace rule is unlawful, the Board’s inquiry still begins with determining whether
“the rule explicitly restricts activities protected by Section 7,” in which case the Board will find 35
the rule unlawful. Lutheran Heritage at 646 (emphasis in the original); see Boeing, slip op. at 3–
4. Similarly, the Board still finds to be unlawful facially neutral rules that were “promulgated in
response to union activity” or “applied to restrict the exercise of Section 7 rights” Lutheran
Heritage at 647; Boeing, slip op. at 7.
40
In Boeing, the Board reevaluated its approach to determining when an employer’s mere
maintenance of facially neutral rules will be found to violate the Act. The Board overruled its

3 Boeing regularly refers to having overruled Lutheran Heritage; however, at fn. 4, the Board defines
“Lutheran Heritage” to mean prong 1 of the Lutheran Heritage test, i.e., the “reasonably construe”
standard applied to facially neutral rules. Moreover, the reasoning and substantive discussion in the
decision reveals that the rest of the Lutheran Heritage framework remains intact.
JD–66–18
6
prior application of the related holding in Lutheran Heritage where facially neutral rules were
found unlawful when employees “would reasonably construe” the rules to interfere with, coerce
or restrain them in the exercise of Section 7 rights. In its place, the Board established a
“balancing test,” whereby, when evaluating the lawfulness of facially neutral workplace rules the
Board will consider the employer’s justification for the contested rule and weigh that 5
justification against the potential impact of the rule, as reasonably interpreted, on employees’
Section 7 rights. Boeing, slip op at 3, 15. Thus, when evaluating a facially neutral rule that,
when reasonably interpreted, would potentially interfere with NLRA rights, the Board evaluates
two things: (1) the nature and extent of the potential impact of the rule on Section 7 rights, and
(2) legitimate justifications associated with the rule. Id. Focusing on a reasonable interpretation 10
of the rule from the perspective of employees, the Board endeavors to strike the proper balance
between the invasion of employee rights protected by the Act and the asserted business
justifications for the rules. Id., slip op. at 15.
The Board also described that, as a result of applying this analysis, the Board would 15
“delineate” three categories of workplace rules through the adjudicative process. Category 1 will
include rules designated as lawful to maintain either because (i) when reasonably interpreted, the
rule does not prohibit or interfere with NLRA rights, or (ii) the potential adverse impact on
protected rights is outweighed by justifications associated with the rule. Category 2 will include
rules that warrant individualized scrutiny regarding whether the rule interferes with NLRA rights 20
and if so, whether the justifications offered outweigh the rule’s impact on protected conduct.
Category 3 will include rules that the Board designates as unlawful because they would prohibit
or limit protected conduct and the adverse impact on protected rights is not outweighed by
justifications for the rule. Boeing, above, slip op. at 3–4, 15. This categorization system is meant
to project clarity in rulings and predictable results, while still considering real-world 25
complexities and recognizing unique characteristics of different work settings and industries. Id,
slip op. at 10–11, 15–16.
In explaining its reasons for developing the Boeing balancing test for considering the
lawfulness of facially neutral rules, the majority in Boeing expressed criticism for the Board’s 30
prior evaluation of “overly broad” and “ambiguous” rules. Id, slip op. at 2, 9–10, fn. 43, 13, fn.
68. These concepts still play a role in the analysis, however, as overly broad rules may expressly
interfere with Section 7 rights, and rules may be deemed facially neutral because their terms are
either overly broad or ambiguous. Whether a workplace rule is overly broad or ambiguous may
affect the analysis of both aspects of the balancing test, i.e., the evaluation of the nature and 35
extent of the potential impact of the rule on NLRA rights, as reasonably understood by
employees, and the employer’s legitimate justifications associated with the rule. Therefore,
ambiguity or over-breadth of terms informs, but does not alone determine, the lawfulness of
work rules. Id.
40
In Purple Communications, Inc., 361 NLRB 1050, 1063 (2014), the Board established a
test to address the particularized circumstance of restrictions imposed on the use of employers’
email systems for employee–to–employee communications. Under the test, the Board presumes
that employees who have the rightful access to their employer’s email systems in the course of
their work have a right to use the email system for statutorily protected communications during 45
nonworking time. An employer may rebut the presumption by showing that special
circumstances necessary to maintain production and discipline justify the restrictions on
JD–66–18
7
employees’ rights. Because limitations should be no more restrictive than is necessary to protect
employer’s interests, the Board emphasized in Purple Communications that it anticipated that
special circumstances will rarely justify a total ban on all nonwork email use by employees. Id.
The Board’s reasoning in Purple Communications was based on a consideration of Board and
Supreme Court precedents addressing the accommodation of employer property interests and 5
employees’ Section 7 rights, and in particular, Republic Aviation, 324 U.S. 793 (1945). The
Board did not rely on the Lutheran Heritage “reasonably construe” standard in Purple
Communications, and, therefore, the Board’s determination that the balancing of the important
interests raised by the limitation of employees’ use of employer’s email systems for employee–
to–employee communication should be resolved with the legal presumption established in 10
Purple Communications is not directly affected by its establishment of the Boeing balancing test
in considering the lawfulness of facially neutral rules.4
The Supreme Court considered and reversed the Board’s holding in Murphy Oil USA,
Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), that 15
found that class action waiver provisions in arbitration agreements that are required as a
condition of employment violate Section 8(a)(1) of the Act, when they preclude the collective
pursuit of employment claims in all forums, arbitral or judicial. Epic Systems Corp. v. Lewis, 584
U.S. ___, 138 S.Ct. 1612, 1619–1621, 1632 (2018), The Supreme Court held in Epic Systems
that class action waiver provisions do not violate the Act and that the employment agreements 20
containing them must be enforced as written pursuant to the Federal Arbitration Act. Id.
B. Do the Contested Rules Violate Section 8(a)(1)?
For the reasons discussed below, I find that the Respondent’s maintenance of many of the25
contested workplace rules found in the Respondent’s Employment Documents violate Section
8(a)(1).5 I further find that the Respondent’s maintenance of other work rules do not violate
Section 8(a)(1) based on the standards and findings in Boeing, and these allegations will be
dismissed.
30

4 Boeing did not disturb this precedent. See UPMC, 366 NLRB No. 142, slip op. at 1 fn. 5 (2018)
(“[T]he Board in Boeing did not disturb longstanding precedent governing employer restrictions on
solicitation and distribution, which already strikes a balance between employee rights and employer
interests.”); and Rio All-Suites Hotel and Casino, 28-CA-060841, unpub. Board order issued Aug. 1, 2018
(2018 WL 3703476) (inviting briefs to address whether the Board should adhere to, modify, or overrule
Purple Communications).
5 Pars. 8 to 11 of the complaint contain the allegations related to the contested rules, organized by
document. Pars. 8 to 10 of the complaint do not provide numbers itemizing each allegation. I have
organized the allegations by issue below and I will refer to them by their section/subsection numbers as
set forth in the employment documents, when necessary for clarity. I have also included language from
the employment documents not alleged as unlawful when I have determined it necessary or helpful to
understand the context of the disputed provisions.
JD–66–18
8
1. Requirement that Employees Arbitrate Disputes against Respondent
and Related Limitations and Definitions
(Complaint pars 8 and 9)
The Employment Agreement (GC Exh. 2) states the following: 5
7. Arbitration. Except as permitted in Paragraph 6,6 any dispute or controversy
arising under, out of, in connection with, or in relation to this Agreement, any
amendment hereof, the breach hereof, and/or any other claims that Employee
may assert against Employer, including, without limitation, any claim for wages 10
or fringe benefits, a claim of a breach of express or implied contract, or a claim
alleging a violation of the Michigan Civil Rights Act, the Michigan Persons with
Disabilities Civil Rights Act, Americans With Disabilities Act, Title VII of the
Federal Civil Rights Act, Age Discrimination in Employment Act, the Family
Medical Leave Act, the National Labor Relations Act, Whistle Blowers 15
Protection Act, the Fair Labor Standards Act, Genetic Information
Nondiscrimination Act, and/or Bullard-Plawecki Employee Right to Know Act
shall be determined and settled by arbitration in the City of Southfield, in
accordance with the Employment Arbitration Rules of the American Arbitration
Association through a single arbitrator. [Emphasis added.] If the parties cannot 20
agree to a single arbitrator, the parties shall each select an arbitrator that will
work together to select the single arbitrator. The costs for arbitration• shall be
split equally between the parties notwithstanding anything to the contrary in the
employment rules of the American Arbitration Association. The arbitrator shall
not have the power to change, modify, or otherwise alter the "At Will" nature of 25
such employment relationship and the arbitrator's written determination shall be
based solely upon the "At Will" nature of such employment relationship. Any
award rendered therein shall be final and binding on the parties, and judgment
may be entered thereon in any court having jurisdiction. . . . [emphasis added]
30
10. Class Action Waiver. Any claim by Employee, including, but not limited to,
any breach of this Agreement, amounts due Employee, or for any other cause
shall be brought in the Employee's individual capacity, and not as a plaintiff or
class member in any purported class or representative proceeding. …
35
12. Claim Limitation. Except for claims under the Fair Labor Standards Act,
any claim arising out of a dispute that in any way relates to Employee's
employment or this Agreement, shall not be brought by Employee unless the
same is commenced within One Hundred Eighty (180) days following the
incident giving rise to such dispute. If Employee fails to commence such a 40
proceeding within the One Hundred Eighty (180) day period, any rights
Employee may have to prosecute such a claim shall be extinguished and
terminated. . . .
15. Governing Law. This Agreement has been executed and delivered in the 45
State of Michigan, and its interpretation, validity, and performance shall be

6 As discussed in more detail below, par. 6 of the employment agreement, inter alia, does not limit the
Respondent’s remedial relief to arbitrations but permits the Respondent to seek relief from alleged
breaches of the agreement in court “without limitation.”
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9
construed and enforced in accordance with laws of such State, without regard to
such State's conflict of law principles.
The Contract and Receipt (GC Exh. 3) states the following:
5
. . . the exclusive method for resolving the dispute arising out of employment or
in any way related to any alleged wrongful acts on the part of Company, its
affiliates, directors, shareholders, agents, or employees ("Company Parties")
relating to employment, including but not limited to, any claim for wages or
fringe benefits, claims of breach of contract, wrongful discharge, tort claims,10
invasion of privacy, slander, defamation, and/or any statutory claim including but
not limited to discrimination under Title VII of the Federal Civil Rights Act, Age
Discrimination in Employment Act, Americans With Disabilities Act or Family
Medical Leave Act, the Michigan Elliot-Larson Civil Rights Act, Persons With
Disabilities Act, Whistle Blowers Protection Act and Bullard-Plawecki 15
Employee Right to Know Act shall be through the procedures and policies of the
American Arbitration Association ("AAA") utilizing a single arbitrator. . . I
hereby waive my right to adjudicate any claim against the Company Parties
before any federal or state court or agency. . . .
20
I agree that any arbitration (or any judicial or administrative proceeding that is
not allowed to be arbitrated by law) arising out of a dispute that directly or
indirectly relates to the Company Parties shall not be brought unless the same is
commenced within One Hundred and Eighty (180) days following the incident
giving rise to such dispute. My failure to commence such proceeding within the 25
One Hundred Eighty (180) day period shall result in the extinguishment of any
rights I may have to prosecute such claims or actions and shall constitute an
irrevocable waiver of any rights I have to prosecute such claims or actions. . . .
Regarding the complaint allegations that the class action waiver provisions in the 30
Employment Agreement (GC Exh. 2 at 5) and in the Contract and Receipt (GC Exh. 3) violate
the Act pursuant to Murphy Oil, above or D. R. Horton, 357 NLRB 2277, 2293 (2012), enf
denied in relevant part, 737 F.3d 344 (5th Cir. 2013), the parties raise no arguments or factual
matters to distinguish these provisions from those considered in Murphy Oil. In light of the
Supreme Court’s ruling in Epic Systems, above, and in the absence of any arguments that would 35
distinguish this case from the Supreme Court’s ruling, I recommend that these allegations be
dismissed.
However, the Employment Agreement’s explicit requirement that the employees arbitrate
disputes that arise under the National Labor Relations Act, and related procedural limitations on 40
such claims, violate the Act. The Board has consistently held that work rules, including those in
mandatory employment agreements, violate Section 8(a)(1) when they prevent or interfere with
employees’ rights to file charges, to participate in Board proceedings, or to access the Board’s
processes. This is a core Section 7 right, one that must be enforced in order to uphold the
integrity of the Board’s ability to enforce the Act. See Section 8(a)(4) of the Act. See also 45
Ralph’s Grocery Co., 363 NLRB No. 128, slip op. at 3 (2016), citing Babcock & Wilcox
Construction Co., 361 NLRB 1127, 1128–1129 (2014) (rules requiring employees to arbitrate
NLRA claims impedes their access to the Board). Here, the Respondent includes all claims,
without limitation, and also explicitly includes claims under the National Labor Relations Act, as
JD–66–18
10
claims that must be brought in arbitration pursuant to the Employment Agreement. Therefore,
the Employment Agreement explicitly violates the Act, on its face. No balancing of the
Respondent’s justifications is required when the Respondent’s rule explicitly violates the Act.
See Boeing, above, and Lutheran Heritage, above.
5
In the Respondent’s Contract and Receipt, the Respondent did not enumerate claims
under the NLRA as examples of those that it would require to be arbitrated. Instead, the
Respondent listed examples of types of claims that are subject to mandatory arbitration, such as
other civil rights and antidiscrimination statutes, emphasizing that the exclusive method for all
employee claims against the employer is mandatory arbitration. It further requires employees to 10
expressly waive their right to adjudicate any claims against the employer before any federal or
state court or agency. Prior to the Boeing ruling, the Board has repeatedly found that requiring
arbitration of a broadly inclusive description of all employment claims would interfere with the
core Section 7 rights. See U-Haul Co. of California, 347 NLRB 375, 377–378 (2006), enfd. 255
Fed Appx 527 (D.C. Cir. 2007) (finding pursuant to the Lutheran Heritage reasonably construe 15
standard in Lutheran Heritage that a rule that did not expressly affect NLRA claims interfered
with Section 7 right to access to the Board processes.)7 I find that the Board’s reasoning in U-
Haul, and its progeny, supports my finding that such a rule potentially interferes with core
Section 7 rights. The Respondent has failed to assert or show any justification for the inclusion
of NLRA claims in the arbitration agreement. Although the expected benefits of alternative 20
dispute resolution, like arbitration, are well known, such as cost savings, predictability, or
convenience, here, the Respondent has failed to show that any asserted benefits of arbitration
outweigh the potential impact on core Section 7 rights. Therefore, pursuant to the Boeing
balancing test, I find the Contract and Receipt also violates Section 8(a)(1).
25
I find that the choice of law provision of the Employment Agreement, however, does not
violate the Act. It is common practice for drafters of agreements to include a choice of
law/conflict of laws provision, which may serve various purposes, but at the least, it may prevent
a need for preliminary litigation regarding which laws apply. That the parties had agreed that the
contract should be interpreted under the law of Michigan would not be controlling on the Board. 30
I am unaware of any precedent establishing that a choice of law/conflicts of law provision in an
employment contract would reasonably chill Section 7 rights. Nor has the General Counsel
established that the choice of law/conflicts of law provision, when reasonably read by
employees, would potentially interfere with Section 7 rights pursuant to the Boeing balancing
test. This is the type of rule, as suggested in Boeing, that although found lawful on its face, might 35
be found unlawful, if it were to be unlawfully applied. Therefore, I find that the General Counsel
has not shown that this provision violates Section 8(a)(1), and I recommend dismissing the
allegation.
I find that the Respondent’s Employment Agreement and the Contract and Receipt 40
violate Section 8(a)(1) to the extent they expressly and impliedly interfere with employees’ right
to file charges, to participate in Board proceedings, or to access the Board’s processes. I
recommend that the Board determine that these types of rules are Category 3 rules—rules that

7 But see E.A. Renfroe & Co., Inc., 10-CA-171072, unpub. Board order issued Oct. 4, 2018 (2018 WL
4851368), issuing notice to show cause why Sec. 8(a)(1) finding in which the administrative law judge
relied on U-Haul, above, should not be remanded to the judge in light of Boeing, above.
JD–66–18
11
generally will be found to be unlawful. I further find that the choice of law provision has not
been shown to violate Section 8(a)(1), and I recommend that the Board find these types of
provisions be found to be Category 1 rules—rules that generally will be found to be lawful.
2. Requirement that Employees Agree to Indemnify Respondent5
(Complaint pars 8 and 9)
In addition to the provisions described above, the Employment Agreement (GC Exh. 2)
states the following:
10
6. Remedies. Employee acknowledges that any breach of this Agreement could
cause irreparable damage to Employer including, without limitation, loss of
Employees, loss of Customers, future growth,. profitability, strategic planning,
reputation, and goodwill, and that, in the event of such breach, Employer' shall
have the right, without being required to post bond or other 'security, to obtain 15
equitable relief, including, without limitation; ex-parte injunctive relief and /or
specific performance, to prevent the violation of Employee's obligations
hereunder. It is expressly understood and agreed that nothing herein contained
shall be construed as prohibiting Employer from electing to pursue any other
remedies available for such breach or threatened breach or for any other default 20
under this Agreement; including without limitation, the recovery of damages. In
addition, Employer may join Employee as a party to a lawsuit in order to enforce
its rights under any provision of this Agreement. In any action successfully
brought by Employer against Employee to enforce this Agreement or any other
agreement between the parties, Employer shall also be entitled to recover from 25
Employee, the Employer's actual attorneys' fees and costs relating thereto except
as prohibited by law. Notwithstanding anything to the contrary, this Agreement
'(except for Paragraphs 1 and 2) shall remain, enforceable and shall survive the
termination of the employment relationship and shall not be deemed merged or
extinguished by any act absent the express written consent of the parties.30
7. Arbitration. (see above, describing requirement that employees arbitrate
disputes against employer.)
8. Indemnity. Employee shall unconditionally and absolutely indemnify, defend 35
and save harmless Employer from and against any and all claims, causes of
action, demands, damages, liabilities, costs, actual attorneys' fees, losses, and
expenses of every nature and kind whatsoever that in any way relate to
Employee's breach of this Agreement and/or the addenda/offer letter attached
hereto, intentional acts, and/or negligence (the "Liabilities"). Employee agrees to 40
advance to Employer all costs, actual attorneys' fees, actual experts' fees, and
similarly related expenses arising from the Liabilities immediately upon request
so that the Employer is not required to pay such expenses out of its own funds.
Employer shall have the right to select the attorneys of its choice to defend the
Employer, at Employee's sole cost and expense, and to make all decisions and in 45
every respect control the manner in which the Employer is defended.
In addition to the provisions described above, the Contract and Receipt (GC Exh. 3)
states the following:
50
JD–66–18
12
The Company may file a suit in equity to enforce the terms and provisions hereof
by obtaining the issuance of an injunction or ex -parte restraining order to enjoin
and prohibit me from such breach or threatened breach hereof. In any action for
equitable relief, the Company shall not be obligated to post a bond or any
security as a condition to obtain the issuance of a restraining order, injunction or 5
other equitable relief. I acknowledge that all of the provisions hereof are
reasonable, and waive any defense on such basis….
… In any proceeding, the parties shall have the right to representation by
counsel. The parties may mutually agree that the arbitration therein be
stenographically recorded, provided that each party shall equally share the cost of 10
creating and printing the record. Notwithstanding anything to the contrary in the
AAA Rules of Employment or otherwise, the cost for arbitration shall initially be
split equally between me and the Company, provided however that the prevailing
party in any dispute between the parties will be entitled to its costs and expenses
including attorney fees, court or arbitration costs and all other costs associated 15
with such action. IF THE ARBITRATION PROVISION IS HELD TO BE
INVALID, VOID, OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, THEN I KNOWINGLY AND WILLINGLY WAIVE MY
RIGHT TO TRIAL BY JURY ON ANY MATTER DIRECTLYOR
INDIRECTLY RELATING TO THE EMPLOYMENT RELATIONSHIP.20
(emphasis in original).
The General Counsel asserts that the indemnity provisions of the Employment
Agreement and Contract and Receipt violate the Act because, in addition to impliedly requiring
that NLRA claims be submitted to arbitration, these provisions impose a significant financial 25
burden to pursuing claims, and arguably present a threat of significant financial risk for engaging
in protected, concerted activity. The Respondent argues that the indemnity requirements only
apply if an employee breaches the agreement, suggesting that these rules would not chill the
exercise of Section 7 rights. The Respondent explains that it has an interest in protecting itself
from potential liability from third parties, related to breaches of the Employment Agreement. 30
These provisions are facially neutral rules, and I will apply the Boeing balancing test. I
agree with the General Counsel that the extensive and broad indemnity provision potentially
interferes with employees’ Section 7 rights by placing a heavy financial burden on the pursuit of
claims. The provisions are overbroad and vague, not clearly identifying what types of claims the 35
provisions apply to. These provisions make plain that, while drafting these work rules to require
employees to arbitrate all claims against the Respondent, the Respondent explicitly retained the
right to seek redress in court if the Respondent chose to bring claims against employees—in
other words, these work rules do not represent a mutual “agreement” to arbitrate. The
Respondent through these work rules also explicitly shifts the potential cost of enforcing some of40
these rules against employees onto the employee. From the perspective of an employee, these
provisions would chill a wide range of activities, including some protected concerted activities,
due to the significant financial burden and risk of potentially violating the agreement. The
Respondent asserts that the indemnity provisions are meant to “warn employees that they will be
held liable for their negligent or intentional acts against the company…” R. Sup. Brief at 12. 45
That statement affirms my finding that the over breadth of these indemnity provisions results in a
clear tendency to chill employees in the exercise of Section 7 rights, as organizing a union or
taking protected actions against an employer, such as a strike, might be understood as falling
within an “intentional act” against the company. Although the Respondent may have an interest
JD–66–18
13
in shifting as much of the costs and risks of doing business to its employees as possible, it has
not articulated or established on this record a sufficient justification to outweigh the substantial
potential interference with Section 7 activity, including the bringing of claims or, as will be
discussed below, the association with other employees for organizing activities or for mutual aid
or protection. See Boeing, above. 5
Applying the Boeing balancing test, I find that the indemnity provisions of the
Employment Agreement and the Contract and Receipt violate Section 8(a)(1). I recommend that
the Board determine that these types of rules are Category 3 rules—rules that generally will be
found to be unlawful.10
3. Prohibitions and Restrictions on Employee Disclosure of
Information Identified by Employer as Confidential
(Complaint pars 8, 10, and 11)
15
The Employment Agreement (GC Exh. 2) states the following:
3. Confidentiality, Non-Competition and Non-Solicitation.
a. Confidentiality. The relationship with Employer has been and/or will be one 20
of
trust and confidence and there has been and/or will be available to Employee
certain written, oral, visual, and/or electronic information relating to trade secrets
and proprietary interests of Employer, Related Entities (defined below), and their
clients, employees, independent contractors, vendors, subcontractors, business 25
prospects, and /or referral sources which include, but may not be limited to,
records and information dealing with projects, business opportunities, intellectual
property, data storage and custom design solutions, customer lists, customer
information, customer matters; customer identities, business strategies, business
methods, security methods, business procedures, business practices, services, 30
concepts, ideas (whether tangible or intangible), formulae, applications,
inventions, software, calculations, analyses, projects, plans, profit margins,
prices, processes, operating. procedures, designs, systems, source code, research,
development activities, technical or scientific information, know –how, products,
financial information, access codes, and all information contained in or on the 35
computer hard drives and/or servers of Employer, and other items relative
thereto, whether or not copyrighted, patented or patentable (herein collectively
and individually referred to as the "Confidential Information"). The Confidential
Information, regardless of form, is, and shall always remain, the sole and
exclusive property of Employer and /or Related Entities. Employee shall not 40
reverse engineer, disassemble, or decompile any prototypes, software, or other
tangible objects that embody the Confidential Information.
b. Non-Disclosure of Employer’s Confidential Information. Employee shall
not,45
whether during the term of this Agreement, or thereafter, regardless of the time,
manner, reason or lack of same, directly or indirectly, disclose to any person,
firm or corporation, or permit to be used, any Confidential Information, or
divulge any other information concerning the business of Employer that it has or
JD–66–18
14
acquires 'during the period of Employee's engagement with Employer without the
express written authorization from the Employer.
c. Non-Disclosure of Other Information. Employee shall not, regardless of the
time, manner, reason or lack of same, directly or indirectly, divulge or disclose to 5
Employer, any of Employer's members, managers, employees, independent
contractors or agents at any time, or otherwise disclose, divulge, or use within the
scope of Employee's employment with Employer any confidential information
belonging to or related in any way to any of Employee's previous employers or
said employers' businesses, regardless of whether or not such information is 10
covered by an agreement containing confidentiality or similar provisions.
The Handbook (GC Exh. 4) and the Updated Handbook (GC Exh. 15) state the following:
1. “FOREWORD”15
. . . No part of this handbook may be reproduced or transmitted in any form or by any
means, electronic or otherwise, including photocopying or recording, for any
business/commercial venture without the express written permission of Motor City Pawn
Brokers. The information contained in this handbook is strictly limited to use by the
Motor City Pawn Brokers' employees. . . . Making an unauthorized disclosure of this 20
handbook is a serious breach of the Motor City Pawn Brokers' standards of conduct and
ethics and shall expose the disclosing party to disciplinary action and other liabilities as
permitted under law. This handbook and the information in it should be treated as
confidential. …
2. NON –DISCLOSURE 25
The protection of confidential business information and trade secrets is vital to
the interests and the success of Motor City Pawn Brokers. All employees are
required to sign a non-disclosure agreement as a condition of employment.
Employees who improperly use or disclose trade secrets or confidential business
information will be subject to disciplinary action, up to and including termination 30
of employment and legal actions, even if they do not actually benefit from the
disclosed information.
3. “PROHIBITED ACTIVITIES (STANDARDS OF CONDUCT)”
Motor City Pawn Brokers wishes to create a work environment that promotes job 35
satisfaction, respect, responsibility, and value for all of our employees, clients, customers
and other stakeholders. Every employee at Motor City Pawn Brokers has a shared
responsibility toward improving the quality of the work environment. By agreeing to
work at Motor City Pawn Brokers you have agreed to follow the Company's rules and to
refrain from conduct which is detrimental to our goals. The prohibited conduct that is 40
listed below is not an inclusive list, as the Company cannot, with foresight, determine
what is inappropriate conduct under every circumstance. Moreover, the Company does
not limit its right to discipline or discharge employees to the prohibited conduct listed
below. Remember that, while we value our employees, the Company maintains the right
to terminate its employees at any time and for any reason, with or without notice….45
The following list contains examples of conduct considered improper which may result in
discipline, up to and including termination. Again, note this is not a complete list and
JD–66–18
15
intended to be examples of misconduct, and that other behaviors may also result in
discipline….
Disclosure of Company trade secrets or any other confidential or proprietary
information of the Company, its customers or fellow employees.…5
The Updated Handbook (GC Exh. 15 at 27) also contains the following rule:
Workplace Expectations
Confidential information, including without limitation, information about 10
marketing plans, costs, earnings, documents, notes, files, lists and medical files,
records, oral information, computer files or similar materials (except in the
ordinary course of performing duties on behalf of Company) may not be removed
from Company's premises without permission. Employees must not disclose
confidential information, confidential financial data, or other non-public 15
proprietary information of the Company, nor may employees share confidential
information regarding business partners, vendors, or customers.
It is well settled that employees have a statutorily protected right to communicate about
their wages and terms and conditions of employment with third parties, including union 20
representatives, government officials, other businesses, and the public. Trinity Protection
Services, 357 NLRB 1382 (2011). This includes divulging some business related information,
when it is related to wages or terms and conditions of employment or otherwise related to a
labor dispute. Id. Employees also have a protected right to discuss their terms and conditions of
employment with other employees. The Respondent’s over inclusive confidentiality rules 25
prohibiting disclosure of information it deems confidential potentially interferes with these
protected rights. Although the Respondent has offered anecdotal evidence that a former
employee once divulged proprietary information to a competitor as a reason for its need for
these rules, this justification, even if established by objective evidence, does not establish why
the Respondent requires the overly broad rules it has drafted. These rules do not sufficiently 30
define or distinguish among the terms “proprietary,” “confidential,” so-called “or so called
“trade secrets,”” so that the rules reasonably would chill employees in their Section 7 rights. I
find, pursuant to the Boeing balancing test, that the Respondent’s justification for its
confidentiality rules do not outweigh the potential interference on Section 7 rights.
35
The Respondent also argues that the Employment Agreement (and presumably the
Contract and Receipt) should not be interpreted to affect Section 7 rights, because it refers to
the Handbook, which contains a clause in a section dealing with “confidentiality expectations”
stating, “[t]his Confidentiality Policy does not apply, and will not be enforced, in any manner
that would restrict, infringe upon or otherwise limit employees’ rights under the National 40
Labor Relations Act, including, without limitation the right to engage in concerted activities
for the purpose of mutual aid and protection. The Company will enforce this Policy in
accordance with applicable international, national, country (sic.), federal, state and local
laws.” GC Exh. 10 at 27–28. The Respondent urges that this savings clause makes its
confidentiality and nondisclosure rules lawful.8 This argument is unpersuasive. First, this 45
savings clause is found two-thirds of the way into a 45-page document, and is not set forth in

8 Neither I nor the Board is bound by guidance material published by the General Counsel, which the
Respondent relies on here.
JD–66–18
16
a manner that would make it readily identifiable to a reader. Notably, it is not found in
proximity to the list of prohibited conduct, including nondisclosure of confidential
information that the complaint alleges to be unlawful, which is 15 pages away (GC Exh. 10 at
10–12, 27–28). Nor is the savings clause contained in the Employment Agreement or Contract
and Receipt that the Respondent required employees to sign. In this context, employees would 5
not reasonably understand that the savings statement applied to other references to
confidentiality, nondisclosure, or other rules in the employment documents. Moreover, on its
face, the savings clause only refers to the Confidentiality Policy listed at GC Exh. 10 at 27,
which is not one of the confidentiality provisions alleged as unlawful in the complaint.
10
Based on the above, I find that the Respondent’s maintenance of the overly broad
confidentiality rules alleged as unlawful in the complaint violate Section 8(a)(1). I recommend
that the Board determine that these types of rules are Category 2 rules—rules that generally
will require contextual scrutiny to determine their lawfulness.
15
4. Respondent’s Prohibitions and Limitations affecting
Communication, Solicitation, and Association with other Employees.
(Complaint pars. 8, 10, 11)
In addition to information discussed above, the Employment Agreement (GC Exh. 20
2 at 2–3) states the following:
3. Confidentiality, Non-Competition and Non-Solicitation.
…
f. Prohibited Association. For purposes of this Agreement, "Prohibited 25
Association" means any and all situations whereby Employee is acting directly or
indirectly, for Employee's own benefit or for the benefit of any other person,
firm, or business organization, or as a partner, stockholder, officer, director,
proprietor, employee, consultant, representative, independent contractor, agent of
a third party, member and/or manager including, without limitation, through any 30
entity or person.
g. Solicit. For purposes of this Agreement, "Solicit" shall mean any contact,
communication, dialogue, or undertaking whether the same is initiated by
Employee or by any former or current employee, independent contractor, 35
customer, or referral source of Employer and/or Related Entities (defined below),
whether for business, employment, retention, social or other purposes. . . .
i. Employees. For purposes of this Agreement, the term "Employees" shall mean
any individuals employed or retained as an independent contractor by Employer
and/or Related Entities (defined below) at any time during the Period. During the 40
Period, Employee shall not employ or Solicit any Employees, Solicit for
purposes of employment or association, and/or induce any Employees to
terminate such employment or association, or otherwise engage any Employees
or permit such engagement to the extent Employee has the authority to prevent
same. . . .45
JD–66–18
17
In addition to the provisions discussed above, the Handbook (GC Exh. 4) and Updated
Handbook (GC Exh. 15) list the following proscribed conduct in their respective
“Prohibited Activities (Standards of Conduct)” sections:
Solicitation of fellow employees on Company premises
…5
Use of obscene or otherwise inappropriate language or conduct in the work place.
…
Bad mouthing or spreading rumors.
…
10
The Updated Handbook (GC Exh. 15 at 22) also contains the following rules:
Workplace Bullying
At Motor City Pawn Brokers we define bullying as unwanted, inappropriate,
aggressive behavior, either direct or indirect, whether it be physical, verbal or in 15
any other form. It involves a real or perceived power imbalance. Bullying can be
conducted by one or more persons involved against others at the place of
employment or can occur off Company property
The Respondent’s rules prohibiting association and solicitation are significantly 20
overbroad rules that unlawfully interfere with employees’ right to associate and communicate
with other employees. Restrictions on solicitation, without limitations or exceptions for
nonwork time or nonwork areas have long been found contrary to the purposes of the Act.
Republic Aviation 324 U.S. 739 (1945). The Respondent asserts that its primary concern in
establishing the no solicitation rules was the recruitment of its employees by former employees 25
or competitors to resign and work for a competitor. However, the language of the no-
solicitation rules is much broader than that, and clearly encompasses protected associational
activities protected by the Act. Moreover, the Respondent’s asserted concern regarding
“solicitation” of its current employees for work with a competitor is addressed directly by a
noncompete provision of the Employment Agreement (GC Exh. 2 at 3). This overly broad rule 30
directly interferes with Section 7 rights, and so the rule is not facially neutral; therefore, the
Boeing balancing test does not apply.
The General Counsel argues that the Respondent’s prohibitions of “inappropriate
language or conduct”9 and “badmouthing or spreading rumors,” as well as its workplace bullying 35
provision violate the Act. The General Counsel argues that by using the qualifier
“inappropriate,” the Respondent has retained too much authority to determine what violates the
rule, rending it overly broad. See Lily Transportation Corp., 362 NLRB 406 (2015) The General
Counsel argues that the rule prohibiting “badmouthing and spreading rumors” violates the Act,
because it encompasses protected speech. The General Counsel similarly argues that the 40
workplace bullying provision is overly broad, encompassing protected speech or activities. Id.
These are facially neutral rules in that they do not expressly interfere with Section 7 rights, but,
in their over breadth, they have the potential to interfere with Section 7 rights. Therefore, the
Boeing balancing test applies. The Respondent articulates a general desire to encourage a civil
and safe working environment, however, it has not established any particularized needs for these 45
rules.

9 This provision is not alleged to be unlawful; it is included as context and reference.
JD–66–18
18
Employees are entitled to pressure each other, to lobby each other, and to raise or discuss
with each other controversial issues concerning terms and conditions of employment. They are
entitled to try to persuade each other to either join or not join a union, and to either engage in or
refrain from other protected concerted activities. Sometimes, these discussions can be 5
uncomfortable or unpleasant, but that alone does not make them unprotected. See, e.g.,
Hispanics United of Buffalo, 359 NLRB 368, 370 (2012); see Linn v. United Plant Guards, 383
U.S. 53, 61 (1966). Here, the Respondent’s overly broad, facially neutral rules have a tendency
to chill those protected activities, by prohibiting “inappropriate” words or conduct. I find that
they have the potential to interfere with important Section 7 rights. The Respondent’s general 10
desire to maintain a civil work environment is a legitimate justification for these rules. I find that
on balance, the Respondent’s articulated justification for these overly broad rules does not
outweigh employees’ demonstrable right to associate and engage in discussions about working
conditions. In making this finding, I have considered that the Board stated in Boeing that certain
“civility” rules would generally be considered lawful. 365 NLRB No. 154, slip op at 4, fn. 15. 15
Here, however, the rules are not just workplace civility rules, but encompass communication and
association among employees.
Based on the above, and applying the Boeing balancing test, I find that the Respondent’s
prohibitions of “inappropriate” language and conduct in the Handbook and the Updated20
Handbook, including the workplace bully provision, and the prohibition against “badmouthing
and spreading rumors” violate Section 8(a)(1). I recommend that the Board determine that these
types of rules are Category 2 rules—rules that generally will require contextual scrutiny to
determine their lawfulness.
25
5. Respondent’s Prohibitions and Limitations on Communications
and Associations with Customers and the Public
(Complaint par 8, 10 and 11)
In addition to information discussed above, the Employment Agreement (GC Exh. 30
2 at 2–3) states the following:
3. Confidentiality, Non-Competition and Non-Solicitation.
…
35
l. Non-Disparagement. Employee shall refrain from communicating orally, or
in writing, or by any other manner whatsoever to any customer or third party, any
disparaging claim, remark, allegation, statement, opinion, comment, innuendo or
information of any kind or nature whatsoever, the effect of or intention of which
is to cause embarrassment, disparagement, damage or injury to the reputation, 40
business, or standing in the community of Customers, Employer and/or Related
Entities, and their customers, members, managers, officers, owners, employees,
independent contractors, agents, attorneys, or representatives, regardless of
whether any such communication is or may be true or founded in facts.
45
m. Dealings with Customers.... Employee shall not disclose the terms and
conditions of this Agreement with Customers, including, without limitation, any
payments terms or other information. Employee shall not attempt to negative
JD–66–18
19
influence or otherwise discourage or dissuade any Customer or other party from
maintaining its relationship with Employer
In addition to the provisions discussed above, the Handbook (GC Exh. 4 at 11) and Updated
Handbook (GC Exh. 15 at 12) list the following proscribed conduct in their respective 5
“Prohibited Activities (Standards of Conduct)” sections:
Off-duty conduct which can affect the Company’s credibility or reputation.
Outside employment which interferes with your ability to perform your job at this10
Company, including, but not limited to, that with a competitor of the Company.10
The Updated Handbook (GC Exh. 15 at 30-32) also contains the following rules:
Outside of Work Behavior 15
…Motor City Pawn Brokers may terminate workers engaging in criminal activity
outside the workplace, when off-duty conduct reflects unfavorably on the
employee, fellow employees and/or the Company generally, and when an
employee's off-duty work activities are such as to create critical comment of the
Company by the general public. Any slander of the Company, representing the 20
Company or themselves as an employee in any negative or demeaning way will
result in termination.
This “Outside Work Behavior” Policy does not apply, and will not be enforced,
in any manner that would restrict, infringe upon or otherwise limit employees’
rights under the National Labor Relations Act, including without limitation the 25
right to engage in concerted activities for the purpose of mutual aid and
protection. The Company will enforce this Policy in accordance with all
applicable international, national, country, federal, state and local laws.
The Board has long recognized that Section 7 protects employees’ rights to seek support 30
from and speak with third parties, including customers, concerning labor disputes and other
workplace concerns. See e.g., First Transit Inc., 360 NLRB 619 (2014) and Karl Knauz Motors,
Inc., 358 NLRB 1754 (2012), and cases cited therein. Although the Board recognizes that there
are limits to what an employee might say to a customer or the public about the employer,
specifically, they are not protected when they engage in disparagement of the employer’s product35
or to engage in malice, the Board also recognizes that sometimes these protected discussions
with third parties may result in putting the employer in a bad light, without a loss of protection of
the Act.
Here, the Respondent’s rules limiting employee communications to third parties about the 40
employer are extraordinarily broad and are not consistent with employees’ protected right to seek
outside support concerning their terms and conditions of employment. These are facially neutral
rules, in that they do not expressly interfere with Section 7 rights. However, in encompassing the
right to reach out to third parties about their working conditions, these rules have a reasonable
tendency to interfere with employees’ Section 7 rights. The Respondent has not asserted any 45
specific justification for these rules, although it is understandable that the Respondent would
want to control its image and the information made public, and that it would not want its

10 This provision is not alleged to be unlawful; it is included as context and reference.
JD–66–18
20
customers to be dissuaded from maintaining their relationship with the Respondent. However,
these generalized explanations for the rules do not outweigh the important, long-recognized
protected right of employees to seek support from third parties, including customers or the public
in labor disputes. Thus, on balance, I find that these rules in the Handbook violated Section
8(a)(1) pursuant to the Boeing balancing test. 5
In the Updated Handbook, GC Exh. 15 at 30–32, the Respondent prohibits certain outside
of work behavior in general, overbroad terms that could encompass protected activities of
association and communication with unions, other employees, or third parties. In contrast to
other rule provisions, however, this rule also contains a proviso identifying that it will not be 10
applied to “restrict, infringe upon, or otherwise limit employees’ rights under the National Labor
Relations Act, including, without limitation the right to engage in concerted activities for the
purpose of mutual aid and protection.” I find that, in context, this proviso saves the otherwise
overly broad terms of the provision by explaining to employees specific limits to the overly
broad rules. In context, with this proviso immediately following the broad limitations on “outside 15
work activities,” which otherwise would potentially interfere with Section 7 rights, I find that
this rule in the Updated Handbook, does not have a reasonable tendency to interfere with Section
7 rights, because the proviso advises employees that the rule will not be applied against
employees’ activities protected by the Act.
20
I recommend that the Board determine that these types of rules are Category 2 rules—
rules that generally will require contextual scrutiny to determine their lawfulness.
6. Respondent’s Limitations on Use of Email
(Complaint pars. 10 and 11)25
The Handbook (GC Exh. 4 at 36) and the Updated Handbook (GC Exh. 15 at 37–6)
contain the following rule provision:
Internet Etiquette30
When at work stick to work. … Computers, printers, fax machines and other equipment
are to be used exclusively for the business activities of the Company. Users are permitted
to access the Internet and electronic communications systems to assist in the performance
of their jobs. The following behaviors are banned from Motor City Pawn Brokers:
…35
• sending personal email
Pursuant to the current legal standard established in Purple Communications, Inc., 361
NLRB 1050, 1063 (2014), the above rule is unlawful. Under the test, the Board presumes that
employees who have the rightful access to their employer’s email systems, in the course of their 40
work, have a right to use the email system for statutorily protected communications during
nonworking time. The above limitations on the use of email are overly broad, in that they do not
account for this established right. The Board emphasized in Purple Communications that it
anticipated that special circumstances will rarely justify a total ban on all nonwork email use by
employees. Id. Here, the Respondent has provided no evidence of a particularized or compelling 45
need to exclude employees from the use of Respondent’s email for statutorily protected
communication during nonwork time, such as during breaks. Therefore, based on the Board’s
current legal standard, this rule is unlawful.
JD–66–18
21
7. Respondent’s Limitations on Use of Internet and Social Media
(Complaint pars. 10 and 11)
In addition to the provision above, the Handbook (GC Exh. 4 at 36) and the Updated5
Handbook also contain the following rule provision (GC Exh. 15 at 37):
Internet Etiquette
When at work stick to work. … Computers, printers, fax machines and other
equipment are to be used exclusively for the business activities of the Company. 10
Users are permitted to access the Internet and electronic communications systems
to assist in the performance of their jobs. The following behaviors are banned
from Motor City Pawn Brokers:
…
•chatting15
…
• utilizing Facebook and other social networking sites
• blogging …
The Updated Handbook contains the following provision (GC Exh. 15 at 35):20
Social Media is acceptable if it:
1. Is permitted because of a protected legal right;11 or
2. Has been approved in writing by the Company; or
3. Contains information consistent with the Company’s website and 25
published materials; or
4. Clearly identifies that an employee is not acting on behalf of the
Company.
…
30
Social Media is unacceptable if it:
…
2. Compromises or may compromise the confidentiality of proprietary, or other
sensitive information of the Company, it's officers, owners, employees, agents,
contractors, clients, merchants, or representatives including, without limitation, 35
the disclosure of trade secrets (including, without limitation, information
regarding the development of products, processes, technology, systems, and
know-how), financial records, internal business-related confidential
communications and memoranda, client and merchant lists, client and merchant
information, client and merchant account records, pricing records, business 40
forms, and strategic planning information; …
As discussed above, the Board has long-held that work rules interfering with employees’
ability to engage in communication with fellow employees about their terms and conditions of
employment, or that interfere with employees’ ability to seek support from the public about their
terms and conditions of employment, are unlawful. See, e.g., Boch Honda, 362 NLRB 70645
(2015), and Kinder-Care Learning Centers, 299 NLRB 1171 (1990). The above social media

11 This provision is not alleged to be unlawful; it is included as context and reference.
JD–66–18
22
rules are facially neutral rules, in that they do not explicitly restrict or interfere with employees’
Section 7 rights. As written, and in context, I find that the Handbook and Updated Handbook
rule prohibiting employees from “chatting,” “utilizing Facebook and other social networking
sites,” and “blogging”, as well as the Updated Handbook’s rule stating that various subjects
identified as confidential are “unacceptable” topics for social media are overly broad rules, in 5
that, from an employee’s perspective, they have a tendency to chill Section 7 rights.
Communication with other employees and the public about terms and conditions of employment
is a core Section 7 right. The Respondent’s general assertions regarding its interest in protecting
information or controlling its image are insufficient to establish a justification that would
outweigh the potential interference with these protected rights. Therefore, applying the Boeing10
balancing test, I find that these rules violate Section 8(a)(1).
In contrast, I find that the provision of the Updated Handbook rule explaining when
social media is acceptable does not violate the Act, because the first item listed in the provision
clearly states that social media is acceptable when “permitted because of a protected legal right.”
When read in context, employees would reasonably understand that the limitations alleged to be 15
unlawful, which follow the first item and are listed in the disjunctive (i.e., “or”), are additional
ways that social media would be acceptable to the Respondent, not overly broad rules interfering
with their protected right to communication about terms and conditions of employment.
Therefore, I find that this provision, in this context, does not potentially interfere with Section 7
rights and is lawful. Boeing, above. Lutheran Heritage, above. 20
I recommend that the Board determine that these types of rules are Category 2 rules—
rules that generally will require contextual scrutiny to determine their lawfulness.
8. Respondent’s Prohibition on Recording in Workplace
(Complaint par. 11)
25
The Updated Handbook contains the following provision (GC Exh. 15 at 38):
…The Company has a strong interest in preserving the privacy of its customers
and business practices, therefore, Recording Devices maybe used by employees
in the work environment if30
1. All parties that may be recorded have been informed in advance of the risk of
being recorded;
2. All such parties affirmatively consent to the video/photo/audio recording; and
3. The Recording Device is in plain view of such-parties at all times.35
Employees who violate this Policy may be subject to disciplinary action, up to
and including termination of employment with the Company, and criminal and/or
civil liability for eavesdropping, invasion of privacy, and/or other violations of
the law.
40
In Boeing, above, the Board found that Boeing’s no-camera rule did not violate the Act.
In so finding, the Board recognized an employee’s right to record protected concerted activities
and determined that the no-camera rule in some circumstances may potentially affect Section 7
rights, but that the adverse impact was comparatively slight. 365 NLRB No. 154, slip op. at 17.
JD–66–18
23
The Board concluded that the adverse impact on Section 7 rights was outweighed by Boeing’s
substantial and important justifications for the rule, which included national security interests,
the need to protect proprietary interests of clients, including governments, and the nondisclosure
of personally identifiable information. Id. slip op. at 17-18. The Board further found that,
although Boeing’s justifications for the no-camera rule was particularly compelling, the Board 5
anticipated that no-camera rules, in general, would be assigned to Category 1 rules, meaning that
they are the type of rules the Board will generally find to be lawful.
The record does not establish that the no-recording rules in this case would have any
more of an impact on Section 7 rights than the no-camera rule in Boeing, above. Therefore, I rely 10
on the Board’s guidance in Boeing to determine that the no-recording rules in this case have a
comparatively slight impact on Section 7 rights. Id. The Respondent asserts a need to protect its
proprietary information and personal information of clients and employees, and to comply with
state law. The Respondent asserts, without having provided any objective evidence, that the
pawn industry is a highly regulated industry, and that, as a member of the financial industry, the 15
pawn industry requires a high degree of security. The General Counsel argues that the lack of
record evidence to support this assertion should be determinative. Some heightened security
requirements would seem consistent with the business of pawn shops, including the need to
protect client financial and collateral information. Even in the absence of compelling evidence
akin to that in Boeing, however, I find, based on the Board’s instruction in Boeing that no-20
camera rules are generally considered lawful, that the Respondent’s rule in this case is lawful. I
recommend, therefore, that this allegation be dismissed.
9. Respondent’s Requirements of Honesty and Commitment to Respondent
(Complaint pars. 10 and 11)25
The Updated Handbook states the following as one of its “Ten Commandments of
Motor City Pawn” (GC Exh. 15 at 3).
Be Honest30
I will conduct myself in a manner that will allow me to always be able to tell the
truth and be at peace. I realize that I am above any theft, deception, lies or
dishonesty. …
The Handbook (GC Exh. 4 at 10-12) and the updated Handbook (GC Exh. 15 at 10-12) state the
following in the section “Prohibited Activities (Standards of Conduct),” which, as noted above, 35
identifies a non-exhaustive list of “examples of conduct considered improper”:
By agreeing to work at Motor City Pawn Brokers you have agreed to follow the
Company's rules and to refrain from conduct which is detrimental to our goals.
…
Falsification of the hours worked by you or any other employee.1240
Falsification of any other employment related documents including, but not
limited to, personnel files, employment review documents, intra-Company

12 This provision is not alleged to be unlawful; it is included as context and reference.
JD–66–18
24
communication, communications with those outside the Company, expense
records, etc.
The Respondent’s broad statement that employees must refrain from conduct that is
“detrimental to [Respondent’s] goals,” is an overly broad requirement of loyalty to the employer
that would potentially interfere with employees’ Section 7 rights to align with Unions or engage 5
in other protected concerted activities that an employer might construe as disloyal. But the
Respondent’s assertions that it is vulnerable to employees leaving to work with competitors, and
its general business expectations of commitment to an employer are insufficient justifications to
outweigh the core activity protected by Section 7 of employees aligning with other employees
and unions in opposition to employers, with respect to their attempts to improve terms and 10
conditions of employment and engage in other activities for mutual aid or protection. Therefore,
applying the Boeing balancing test, I find that this rule violates Section 8(a)(1).
The General Counsel also alleges that the provision prohibiting “Falsification of any
other employment related documents, including but not limited to … communications with those
outside the Company…” violates Section 8(a)(1). The General Counsel argues that this rule 15
potentially interferes with employees’ right to seek common cause with others. General or broad
rules that prohibit false statements have been found unlawful by the Board, in that they
unnecessarily intrude on employees’ abilities to communicate freely about their terms and
conditions of employment. Lafayette Park Hotel, above at 823; Radisson Muehlebach Hotel, 273
NLRB 1464 (1985). In context, however, I find that this provision would not potentially interfere 20
with Section 7 rights, because when read in context, employees would not tend to read this
provision to chill Section 7 right; rather, in a context where the Respondent is listing work-
related documents that employees are expected to refrain from falsifying, “communications with
those outside the Company” is reasonably read as communications made on behalf of the
employer in the course of employment. All the other documents listed are work-related 25
documents, the Respondent should be able to expect employees to refrain from falsifying in the
course of their job duties. Therefore, in this context, these work rules are lawful.
In contrast, the Updated Handbook’s general requirement to “Be Honest,” even when in
context, is an overly broad rule that would potentially interfere with employees’ protected rights
to seek common cause. Id. the Respondent has presented insufficient justification for a need for 30
this overly broad rule. Although this rule is similar to the “civility” rules the Board has suggested
would generally be found to be lawful as Category 1 rules under Boeing, above, slip op. at 4 fn.
15, this rule broadly implicates communication with other employees, government entities, and
the public, and potentially interferes with or restricts protected communications. Based on the
above, under the Boeing balancing test, I find that this rule violates Section 8(a)(1). 35
I recommend that the Board determine that these types of rules are Category 2
rules—rules that generally will require contextual scrutiny to determine their lawfulness.
C. Did the Respondent Unlawfully Terminate Four Employees40
Who Failed to Sign the Employment Agreement?
The General Counsel alleges that the Respondent unlawfully terminated the employment
of four employees who failed or refused to sign the Employment Agreement and the Contract
and Receipt, which contained multiple work rules that violated Section 8(a)(1). The General 45
JD–66–18
25
Counsel argues that these discharges violate Section 8(a)(1). The Respondent makes several
arguments in its defense. First, the Respondent argues the two of the four alleged discriminatees
are not entitled to remedies because they did not file charges, and the allegations raised regarding
their terminations were raised during the investigation, but outside the Section 10(b) statute of
limitations. Second, the Respondent argues that the rules are lawful, but even if found unlawful, 5
the Respondent argues that the employees were terminated for insubordination when they failed
and refused to sign the employment documents. In the absence of evidence of antiunion animus
or animus toward protected concerted activity, the Respondent asserts that there can be no
finding of unlawful termination. Although the Respondent clearly admits that each of the four
employees was separated from employment for the sole reason that he or she failed or refused to 10
sign the employment documents, the Respondent also raises an issue that, because the individual
employees did not express to the Respondent specific disagreement with the purportedly
unlawful rules, and because the real reason of at least two of them was disagreement with a non-
compete provision that was not alleged to be unlawful, the employees are not entitled to
reinstatement or backpay remedies. 15
There is no dispute that the allegations of unlawful termination of charging parties
Terrence Walker and Patricia Tilmon were timely raised pursuant to Section 10(b) in initial
charges filed on July 1, 2016 and served on July 6, 2016. It is unclear from the record when the
allegations about Gianluca Bartolucci and Ringo Salzar discharges were first raised in the 20
investigation, but they were first documented in the formal papers in an amended charge filed on
September 15, 2016, and served on September 16, 2016. Bartolucci was terminated on February
16, 2016, and Salzar was terminated on March 8, 2016. Thus Bartolucci’s and Salzar’s
terminations occurred within 6 months of the initial, timely filed charges, but outside the 10(b)
period for filing, had they been independent, unrelated violations. The Board will find otherwise 25
untimely allegations to have been raised within the 10(b) limitations, when they are raised within
6 months of and are “closely related” to timely filed charges. Redd-I, 290 NLRB 1115 (1988).
To determine whether allegations are closely related for this purpose, the Board considers (1)
whether the allegations involve the same legal theories; (2) whether the allegations arise from the
same factual situation or sequence of events, which would involve the same or similar conduct, 30
usually over the same time period; and (3) whether the Respondent would raise the same or
similar defenses, and therefore, whether a reasonable respondent would have preserved similar
evidence related to the additional charge to that in the timely filed charge. Id. Here, all three
factors weigh in favor of finding that the Bartolucci and Salzar allegations were appropriately
raised, consistent with Section 10(b). First, the legal theory is the same. Second, the terminations 35
arise from the same factual scenario, in that all involved the termination of employees in about
February or early March of 2016 for the same reason—the failure to sign newly implemented
employment documents. Third, the Respondent has asserted the same defenses for all four
alleged discriminatees, i.e., that their mere failure to sign the documents caused their separation
from employment. Factually, it is undisputed that all four alleged discriminatees failed or refused 40
to sign the documents. Therefore, I conclude that, pursuant to Redd-I, above, the allegations are
properly before me.
I agree with the General Counsel’s position that, pursuant to Board precedent, the
requirement that employees sign the Employment Agreement and the Contract and Receipt, 45
which references the Handbook was unlawful, in light of the multiple work rules in these
documents that violate Section 8(a)(1). Signing these employment documents was clearly set
JD–66–18
26
forth as a condition of employment. The Respondent’s arguments that it made clear that
employees could return to work if they signed the documents, and that it provided time for the
employees to consider whether they wished to sign the documents and to obtain legal advice,
merely confirm that the signing of the documents was a condition of employment. The
Respondent makes plain that the sole reason these employees were separated from employment 5
was their failure to sign the documents. Because maintaining these documents, including the
Employment Agreement and the Contract and Receipt, violated Section 8(a)(1), discharging the
employees for their failure to sign them also violated Section 8(a)(1). SF Markets 363 NLRB No.
146, slip op. at 2 (2016). See also Denson Electric Co., 133 NLRB 122, 129, 131 (1961)
(employer cannot require employees to waive or relinquish their Sec. 7 rights as a condition of 10
employment or a condition of reinstatement, and discharge for failure to relinquish Sec. 7 rights
violates the Act); and Kolkka Tables & Finnish-American Saunas, 335 NLRB 844, 849 (2001)
(employer’s suspension of an employee who refused to order that violated Sec. 8(a)(1) also
violated Sec. 8(a)(1)).
15
The Respondent’s additional defenses are unpersuasive. The Respondent’s suggestion
that the subjective intent of employees in refusing to sign the employment documents is a factor
is not supported by Board precedent. It was the Respondent’s requirement that they sign the
unlawful documents that caused their discharges to be unlawful, not the employees’ reasons for
not signing them. Nor does the General Counsel need to establish that employees engaged in 20
protected concerted activity in order to establish this violation of Section 8(a)(1). The General
Counsel’s theory of the case does not rely on a showing of unlawful discrimination against
employees, but the maintenance of unlawful rules and the subsequent unlawful enforcement of a
condition of employment that required employees to sign the employment documents agreeing to
the unlawful rules. The Respondent’s suggestions that the terminations were not unlawful 25
because the employees failed to advise or engage in discussions with the Respondent about their
reasons for not signing the employment documents is simply misplaced—contrary to the
Respondent’s arguments, which rely on precedent pursuant to Section 8(a)(5) of the Act,
individual employees have no statutory obligation to bargain in good faith with employers
pursuant to any Section of the Act. 30
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
35
2. The Respondent has violated Section 8(a)(1) of the Act by maintaining work rules that
would reasonably tend to chill employees in the exercise of their Section 7 rights either by
expressly prohibiting or restraining the exercise of NLRA rights, or by potentially impacting the
exercise of those rights and the justifications for the work rules do not outweigh the potential
impact on Section 7 rights; specifically, the Respondent has been violating the Act by 40
maintaining the following rule provisions in its Employment Agreement, Contract and Receipt,
Handbook, and Updated Handbook:
(a) work rules that interfere with, coerce or restrain employees’ rights to file charges with
the Board, to participate in Board processes, or to access the Board’s processes, as described in 45
the mandatory arbitration provisions of the Employment Agreement, pars. 7, 10, and 12, and the
JD–66–18
27
Contract and Receipt;
(b) work rules that interfere with, coerce or restrain employees’ exercise of rights
protected by Section 7 of the Act by imposing substantial financial or legal risks to engaging in
protected activities as described in the indemnity provisions of the Employment Agreement, pars 5
6, 7, and 8, and the Contract and Receipt;
(c) work rules that interfere with, coerce or restrain employees’ right to disclose and
discuss information related to their wages, and terms and conditions of employment, as described
in the confidentiality and nondisclosure provisions of the Employment Agreement, pars 3(a), (b), 10
(c), the Handbook’s and Updated Handbook’s Forward, Nondisclosure, and Prohibited Activities
(Standards of Conduct) sections, and the Updated Handbook’s Workplace Expectations section.
(d) work rules that interfere with, coerce or restrain employees’ rights to engage in
communication, solicitation, and association with other employees, as described in the15
Employment Agreement pars (3)(f), (g), and (i), and the Handbook’s and Updated Handbook’s,
Prohibited Activities (Standards of Conduct) section and the Updated Handbook’s Workplace
Bullying section.
(e) work rules that interfere with, coerce or restrain employees’ rights to engage in 20
communications and associations with customers and the public, as described in the Employment
Agreement at pars. 3(l) and (m), the Handbook’s and Updated Handbook’s Prohibited Activities
(Standards of Conduct) section.
(f) work rules that interfere with, coerce or restrain employees’ right to use the 25
Respondent’s email system for protected communications, as described in the Handbook’s and
Updated Handbook’s Internet Etiquette section.
(g) work rules that interfere with, coerce or restrain employees’ right to communication
in social media with other employees, government officials, or the public regarding protected 30
subjects, such as wages and terms and conditions of employment as described in the Updated
Handbook’s section, “Social Media is Unacceptable if it:” at par. 2.
(h) work rules that interfere with, coerce or restrain employees’ right to engage in
protected concerted activities by requiring honesty and to refrain from actions detrimental to 35
employer’s goals, as described in the Updated Handbook’s, Ten Commandments of Motor City
Pawn section.
3. The Respondent has violated Section 8(a)(1) by discharging employees Terrence
Walker, Patricia Tilmon, Gianluca Bartolucci and Ringo Salzar because they failed and refused 40
to sign employment documents that contained unlawful rules.
4. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
45
5. The Respondent did not violate the Act in any other manner alleged in the complaint.
JD–66–18
28
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. Having found that the Respondent maintains unlawful rules in its
Employment Agreement, Contract and Receipt, Handbook, and Updated Handbook, the
Respondent is required to revise or rescind the unlawful rules in all forms. This is the standard 5
remedy to assure that employees may engage in protected activity without fear of being
subjected to an unlawful rule. See Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in
relevant part 475 F.3d 369 (D.C. Cir. 2007). As stated there, the Respondent may comply with
the order of rescission by reprinting the Employment Agreement, Contract and Receipt,
Handbook, and Updated Handbook without the unlawful language or, in order to save the 10
expense of reprinting the documents, it may supply its employees inserts stating that the
unlawful rules have been rescinded or with lawfully worded rules on adhesive backing that will
correct or cover the unlawfully broad rules, until it republishes documents without the unlawful
provisions. Any copies that include the unlawful rules must include the inserts before being
distributed to employees. Id. at 812 fn. 8. See also Hills & Dales General Hospital, 360 NLRB 15
611, 613 (2014) and Rio All-Suites Hotel, 362 NLRB 1690, 1695 (2015).
The Respondent, having unlawfully discharged Terrence Walker, Patricia Tilmon,
Gianluca Bartolucci, and Ringo Salzar, must offer them reinstatement and make them whole for
any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W. 20
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). Respondent shall compensate them for his search-for-work and interim
employment expenses regardless of whether those expenses exceed his interim earnings,
computed as described above. Respondent shall file a report with the Regional Director for 25
Region 7 allocating backpay to the appropriate calendar quarters. Respondent shall also
compensate Terrence Walker, Patricia Tilmon, Gianluca Bartolucci, and Ringo Salzar for the
adverse tax consequences, if any, of receiving one or more lump-sum backpay awards covering
periods longer than 1 year, AdvoServ of New Jersey, 363 NLRB No. 143 (2016).
30
I shall also order that the Respondent post the attached notice as indicated in the order
and to mail copies of the attached notice to employees who have separated from employment
with the Respondent since the date of the issuance of the employment documents, February 1,
2016. I include this specialized notice mailing remedy in consideration that some of the unlawful
work rules are found in agreements employees were required to sign as a condition of 35
employment, and these agreements appear to have obligations and risks that extend beyond the
termination of employment.
I decline to order consequential damages, as requested by the General Counsel, as the
Board has not authorized the award of consequential damages. See, e.g., Guy Brewer 43 Inc., 40
363 NLRB No. 173, slip op. at 2 fn. 2 (2016).
45
JD–66–18
29
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
The Respondent, Motor City Pawn Brokers Inc., The Aubrey Group Inc., and Aubrey 5
Brothers, LLC, a single-employer, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a). The Respondent has violated Section 8(a)(1) of the Act by maintaining work rules 10
that would reasonably tend to chill employees in the exercise of their Section 7 rights either by
expressly prohibiting or restraining the exercise of NLRA rights, or by potentially impacting the
exercise of those rights and the justifications for the work rules do not outweigh the potential
impact on Section 7 rights; specifically, the Respondent shall cease and desist from violating the
Act by maintaining the following rule provisions in its Employment Agreement, Contract and 15
Receipt, Handbook, and Updated Handbook:
(i) Work rules that interfere with, coerce or restrain employees’ rights to file charges with
the Board, to participate in Board processes, or to access the Board’s processes, as described in
the mandatory arbitration provisions of the Employment Agreement, pars. 7, 10, and 12, and the 20
Contract and Receipt;
(ii) Work rules that interfere with, coerce or restrain employees’ exercise of rights
protected by Section 7 of the Act by imposing substantial financial or legal risks to engaging in
protected activities as described in the indemnity provisions of the Employment Agreement, pars 25
6, 7, and 8, and the Contract and Receipt;
(iii) Work rules that interfere with, coerce or restrain employees’ right to disclose and
discuss information related to their wages, and terms and conditions of employment, as described
in the confidentiality and nondisclosure provisions of the Employment Agreement, pars 3(a), (b), 30
(c), the Handbook and Updated Handbook’s Forward, Nondisclosure, and Prohibited Activities
(Standards of Conduct) sections, and the Updated Handbook’s Workplace Expectations section.
(iv) Work rules that interfere with, coerce or restrain employees’ rights to engage in
communication, solicitation, and association with other employees, as described in the 35
Employment Agreement pars (3)(f), (g), and (i), and the Handbook’s and Updated Handbook’s
Prohibited Activities (Standards of Conduct) section and the Updated Handbook’s Workplace
Bullying section.
(v) Work rules that interfere with, coerce or restrain employees’ rights to engage in 40
communications and associations with customers and the public, as described in the Employment
Agreement at pars. 3(l) and (m), the Handbook’s and Updated Handbook’s Prohibited Activities

13 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.
JD–66–18
30
Prohibited Activities (Standards of Conduct) section.
(vi) Work rules that interfere with, coerce or restrain employees’ rights to use the
Respondent’s email system for protected communications, as described in the Handbook’s and
Updated Handbook’s Internet Etiquette section. 5
(vii) Work rules that interfere with, coerce or restrain employees’ rights to
communication in social media with other employees, government officials, or the public
regarding protected subjects, such as wages and terms and conditions of employment as
described in the Updated Handbook’s section, “Social Media is Unacceptable if it:” at par. 2.10
(viii) Work rules that interfere with, coerce or restrain employees’ rights to engage in
protected concerted activities by requiring honesty and to refrain from actions detrimental to
employer’s goals, as described in the Updated Handbook’s, Ten Commandments of Motor City
Pawn section.15
(b) Discharging employees because they fail or refuse to sign employment documents
that contain unlawful work rules.
(c) In any like or related manner interfering with, coercing, or restraining employees in 20
the exercise of the rights guaranteed them by the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the work rule provisions set forth in paragraph 1(a), above, or revise them to 25
remove any language that prohibits or restrains the exercise of Section 7 rights, or that
potentially impacts Section 7 rights and about which the rule’s justifications do not outweigh the
rule’s impact on Section 7 rights.
(b) Notify all employees that the above rules have been rescinded or, if they have been 30
revised, provide them a copy of the revised rules.
(c) Within 14 days from the date of the Board's Order, offer Terrence Walker, Patricia
Tilmon, Gianluca Bartolucci, and Ringo Salzar full reinstatement to their former jobs or, if that
job no longer exists, to a substantially equivalent position, without prejudice to their seniority or 35
any other rights or privileges previously enjoyed.
(d) Make Terrence Walker, Patricia Tilmon, Gianluca Bartolucci, and Ringo Salzar
whole for any loss of earnings and other benefits suffered as a result of the unlawful termination,
in the manner set forth in the remedy section of the decision.40
(e) Compensate Terrence Walker, Patricia Tilmon, Gianluca Bartolucci, and Ringo Salzar
for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with
the Regional Director for Region 7, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the backpay award to the appropriate 45
calendar years.
JD–66–18
31
(f) Compensate Terrence Walker, Patricia Tilmon, Gianluca Bartolucci, and Ringo Salzar
for their search-for-work and interim employment expenses regardless of whether those expenses
exceed their interim earnings.
(g) Within 14 days from the date of the Board's Order, remove from its files any 5
reference to the unlawful discharges and within 3 days thereafter notify Terrence Walker,
Patricia Tilmon, Gianluca Bartolucci, and Ringo Salzar in writing that this has been done and
that their discharges will not be used against them in any way.
(h) Preserve and, within 14 days of a request, or such additional time as the Regional 10
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
15
(i) Within 14 days after service by the Region, post at its Detroit, Warren, Ferndale, and
Roseville Michigan facilities copies of the attached notice marked “Appendix”.22 Copies of the
notice, on forms provided by the Regional Director for Region 7, 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 20
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 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. The Respondent shall duplicate and mail, at 25
its own expense, a copy of the notice to all former employees employed by the Respondent at
any time since February 1, 2016. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current and
former employees employed by the Respondent at any time since February 1, 2016.30
(j) 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
the Respondent has taken to comply.
35
Dated at Washington, D.C., October 22, 2018
________________________40
Elizabeth M. Tafe
Administrative Law Judge
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 work rules that would reasonably tend to chill employees in the exercise
of their Section 7 rights either by expressly prohibiting or restraining the exercise of NLRA
rights, or by potentially impacting the exercise of those rights and the justifications for the work
rules do not outweigh the potential impact on Section 7 rights; specifically, the Respondent has
been violating the Act by maintaining the following rule provisions in its Employment
Agreement, Contract and Receipt, Handbook, and Updated Handbook:
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ rights to file
charges with the Board, to participate in Board processes, or to access the Board’s processes, as
described in the mandatory arbitration provisions of the Employment Agreement, pars. 7, 10, and
12, and the Contract and Receipt;
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ exercise of
rights protected by Section 7 of the Act by imposing substantial financial or legal risks to
engaging in protected activities as described in the indemnity provisions of the Employment
Agreement, pars 6, 7, and 8, and the Contract and Receipt;
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ rights to
disclose and discuss information related to their wages, and terms and conditions of employment,
as described in the confidentiality and nondisclosure provisions of the Employment Agreement,
pars 3(a), (b), (c), the Handbook and Updated Handbook’s Forward, Nondisclosure, and
Prohibited Activities (Standards of Conduct) sections, and the Updated Handbook’s Workplace
Expectations section.
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ rights to
engage in communication, solicitation, and association with other employees, as described in the
Employment Agreement pars (3)(f), (g), and (i), and the Handbook and Updated Handbook,
Prohibited Activities (Standards of Conduct) section and the Updated Handbook Workplace
Bullying section.
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ rights to
engage in communications and associations with customers and the public, as described in the
Employment Agreement at pars. 3(l) and (m), the Handbook and Updated Handbook Prohibited
Activities Prohibited Activities (Standards of Conduct) section.
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ rights to use
the Respondent’s email system for protected communications, as described in the Handbook and
Updated Handbook in the Internet Etiquette section.
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ right to
communication in social media with other employees, government officials, or the public
regarding protected subjects, such as wages and terms and conditions of employment as
described in the Updated Handbook’s section, “Social Media is Unacceptable if it:” at par. 2.
WE WILL NOT maintain work rules that interfere with, coerce or restrain employees’ rights to
engage in protected concerted activities by requiring honesty and to refrain from actions
detrimental to employer’s goals, as described in the Updated Handbook’s, Ten Commandments
of Motor City Pawn section.
WE WILL NOT discharge employees because they fail or refuse to sign employment documents
that contain unlawful work rules.
WE WILL NOT in any like or related manner interfere with, coerce, or restrain employees in the
exercise of the rights guaranteed them by the Act.
WE WILL take the following affirmative action necessary to effectuate the policies of the Act.
WE WILL rescind the work rule provisions described above and as set forth in paragraph 1(a), or
revise them to remove any language that prohibits or restrains the exercise of Section 7 rights, or
that potentially impacts Section 7 rights and about which the rule’s justifications do not outweigh
the rule’s impact on Section 7 rights.
WE WILL notify all employees that the above rules have been rescinded or, if they have been
revised, provide them a copy of the revised rules.
WE WILL, within 14 days from the date of the Board's Order, offer Terrence Walker, Patricia
Tilmon, Gianluca Bartolucci, and Ringo Salzar full reinstatement to their former jobs or, if that
job no longer exists, to a substantially equivalent position, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make Terrence Walker, Patricia Tilmon, Gianluca Bartolucci, and Ringo Salzar whole
for any loss of earnings and other benefits suffered as a result of the unlawful termination, in the
manner set forth in the remedy section of the decision.
WE WILL compensate Terrence Walker, Patricia Tilmon, Gianluca Bartolucci, and Ringo Salzar
for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with
the Regional Director for Region 7, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the backpay award to the appropriate
calendar years.
WE WILL compensate Terrence Walker, Patricia Tilmon, Gianluca Bartolucci. and Ringo Salzar
for his search-for-work and interim employment expenses regardless of whether those expenses
exceed their interim earnings.
WE WILL, within 14 days from the date of the Board's Order, remove from its files any reference
to the unlawful discharges and within 3 days thereafter notify Terrence Walker, Patricia Tilmon,
Gianluca Bartolucci, and Ringo Salzar in writing that this has been done and that the adverse
evaluations and discharge will not be used against them in any way.
WE WILL preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
WE WILL, within 14 days after service by the Region, post at our Detroit, Warren, Ferndale, and
Roseville Michigan facilities copies of this Notice to Employees 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 will be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if we customarily communicate with its employees by such means.
WE WILL duplicate and mail, at our own expense, a copy of the notice to all former employees
employed by the Respondent at any time since February 1, 2016. In the event that during the
pendency of these proceedings, we have gone out of business or closed the facilities involved in
these proceedings, WE WILL duplicate and mail, at our own expense, a copy of the notice to all
current employees and former employees at any time since February 1, 2016.
MOTOR CITY PAWN BROKERS INC., THE
AUBREY GROUP INC., and AUBREY
BROTHERS LLC, A SINGLE-EMPLOYER
(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.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2543
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-179461 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.
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, (313) 335-8042.