Tarlton and Son, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 2016

363 NLRB No. 175 (N.L.R.B. 2016)

363 NLRB No. 175
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Tarlton and Son, Inc. and Robert Munoz. Cases 32–
CA–119054 and 32–CA–126896
April 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On January 27, 2015, Administrative Law Judge
Amita Baman Tracy issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an
answering brief,1 and the Respondent filed reply briefs
responding to each answering brief. The Charging Party
also filed exceptions and a supporting brief,2 and the Re-
spondent filed an answering brief.3
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,4 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.5

1 While styled a reply brief, the Charging Party’s brief responds to
the Respondent’s exceptions and supporting brief.
2 The Respondent argues that the Charging Party’s exceptions should
be disregarded because they do not comply with Sec. 102.46 of the
Board’s Rules and Regulations. Although we agree that the Charging
Party’s exceptions are not compliant with the requirements of 102.46
(See Metta Electric, 338 NLRB 1059, 1059 (2003), enfd. in part 360
F.3d 904 (8th Cir. 2004), even considering these exceptions and brief,
we find that they lack merit. The Charging Party’s exceptions raise
substantive arguments that are wholly outside the scope of the General
Counsel’s complaint. It is well settled that a charging party cannot
enlarge upon or change the General Counsel’s theory of a case.
Kimtruss Corp., 305 NLRB 710, 711 (1991). We also decline to award
the extraordinary remedies requested by the Charging Party. We find
that the Board’s traditional remedies are sufficient to remedy the unfair
labor practices found. See, e.g., AT&T, 362 NLRB No. 105, slip op. at
1 fn. 3 (2015).
3 In addition, pursuant to Reliant Energy, 339 NLRB 66 (2003), the
Charging Party filed four postbrief letters calling the Board’s attention
to recent case authority.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
5 Because there is no allegation or finding that the Respondent
sought to enforce its mutual arbitration policy by filing a motion to
dismiss the class-action lawsuit in California Superior Court, we shall
modify the judge’s remedy to delete the requirement that the Respond-
ent reimburse the Charging Party and other plaintiffs for legal fees and
1. Applying the Board’s decisions in D. R. Horton,
357 NLRB 2277 (2012), enf. denied in relevant part 737
F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361
NLRB No. 72 (2014), enf. denied in relevant part 808
F.3d 1013 (5th Cir. 2015), the judge found that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing a mutual arbitration policy (MAP) that requires em-
ployees, as a condition of employment, to waive their
rights to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial. We reject the Respondent’s argument that the
judge erred by applying D. R. Horton and Murphy Oil.
In Murphy Oil, the Board, in reaffirming the relevant
holdings of D. R. Horton, considered and rejected argu-
ments identical to those the Respondent makes here.
Based on the judge’s application of D. R. Horton and
Murphy Oil, we affirm the 8(a)(1) maintenance violation
found by the judge.6
The Respondent excepts to the judge’s finding that
maintenance of the MAP violated Section 8(a)(1) with
respect to employees represented by the Northern Cali-
fornia Carpenters Union and the Southern California
Carpenters Union (together, the Carpenters Union). Ac-
cording to the Respondent, Tony Canale, a representative
of the Northern California Carpenters Union, agreed to
the implementation of the MAP, thereby waiving the
Section 7 right of Carpenters-represented employees to
engage in collective legal action. Assuming arguendo
that the Carpenters Union could waive bargaining-unit

expenses they incurred in defending against a motion to dismiss. See
generally, MasTec Services Co., 363 NLRB No. 81, slip op. at 2 fn. 5
(2015).
We shall modify the judge’s recommended Order and substitute a
new notice to conform to our amended remedy and the Board’s stand-
ard remedial language.
6 Our dissenting colleague, relying on his dissenting position in
Murphy Oil, 361 NLRB No. 72, slip op. at 22–35 (2015), would find
that the Respondent’s MAP does not violate Sec. 8(a)(1). He observes
that the Act does not “dictate” any particular procedures for the litiga-
tion of non-NLRA claims, and “creates no substantive right for em-
ployees to insist on class-type treatment” of such claims. This is all
surely correct, as the Board has previously explained in Murphy Oil,
above, slip op. at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2
& fn. 2 (2015). But what our colleague ignores is that the Act “does
create a right to pursue joint, class, or collective claims if and as avail-
able, without the interference of an employer-imposed restraint.” Mur-
phy Oil, above, slip op. at 2 (emphasis in original). The MAP is just
such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the MAP
unlawful runs afoul of employees’ Sec. 7 right to “refrain from” engag-
ing in protected concerted activity. See Murphy Oil, above, slip op. at
18; Bristol Farms, above, slip op. at 3. Nor is he correct in insisting
that Sec. 9(a) of the Act requires the Board to permit individual em-
ployees to prospectively waive their Sec. 7 right to engage in concerted
legal activity. See Murphy Oil, above, slip op. at 17–18; Bristol Farms,
above, slip op. at 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
employees’ Section 7 right to engage in collective legal
action, we nevertheless find no merit to the Respondent’s
argument. The judge discredited the testimony of Thom-
as Oliver Tarlton, the Respondent’s president, about his
conversations with Canale. Canale himself did not testi-
fy, and no other evidence was introduced to show that
the Carpenters Union agreed to implementation of the
MAP. As a result, we find that the Respondent has failed
to demonstrate that the Carpenters Union actually agreed
to implementation of the MAP.7
2. The judge also found that the MAP independently
violated Section 8(a)(1) because it was promulgated in
response to employees’ protected concerted activity,
namely the filing of a class-action complaint by Robert
Munoz and two other employees against the Respondent
in California Superior Court, alleging, among other
things, violations of the California Labor Code related to
the calculation and payment of their wages. We agree.
The judge properly analyzed the MAP as a work rule
subject to the test set forth in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), for determining whether
a rule reasonably tends to chill employees in the exercise
of their Section 7 rights.8 Under this test, a rule is unlaw-
ful if it explicitly restricts activities protected by Section
7 or, alternatively, upon a showing of one of the follow-
ing: “(1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7
rights.” Id. at 646–647. Although Lutheran Heritage
speaks of a rule being promulgated in response to “union
activity,” we agree with the judge that a rule promulgated
in response to other protected concerted activity is also
unlawful under the Lutheran Heritage test.9 A rule vio-
lates Section 8(a)(1) if it would reasonably tend to chill
employees in the exercise of their Section 7 rights. See,
e.g., Triple Play Sports Bar & Grille, 361 NLRB No. 31,
slip op. at 6 (2014), affd. sub nom. Three D, LLC v.
NLRB, 629 Fed.Appx. 33 (2d. Cir. 2015); Lafayette Park
Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52
(D.C. Cir. 1999). Section 7 includes the right not only to
engage in a variety of “union activity” (such as, for ex-

7 In making this finding, we do not rely on the judge’s statement that
Tarlton’s testimony was hearsay or on her analysis of whether Tarlton’s
testimony, if credited, would meet the Board’s “clear and unmistaka-
ble” waiver standard.
8 See D. R. Horton, above at 2280; Murphy Oil, above, slip op. at 13
fn. 79, 19.
9 Indeed, the Board often uses the terms “union activity” and “pro-
tected concerted activity” interchangeably, including in Lutheran Her-
itage itself. 343 NLRB at 647 (finding no evidence that the rules at
issue were “adopted . . . in response to protected activity”) (emphasis
added).
ample, to form, join, or assist labor organizations and to
bargain collectively), but also the right to engage in “oth-
er concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.” Thus, a rule
promulgated in response to protected concerted activity
would reasonably tend to chill employees’ exercise of
their Section 7 rights, just as would a rule promulgated in
response to union activity. See, e.g., Hawaii Tribune
Herald, 356 NLRB 661, 661 (2011) (affirming judge’s
finding that rule promulgated in response to protected
concerted activity of safeguarding employees’
Weingarten rights was unlawful), enfd. sub nom. Ste-
phens Media, LLC v. NLRB, 677 F.3d 1241 (D.C. Cir.
2012).
The judge found that the Respondent promulgated the
MAP in response to Munoz’ and other employees’ filing
of the class-action lawsuit, activity which was clearly
protected concerted activity. See Murphy Oil, above,
slip op. at 14; D. R. Horton, above at 2278. The judge
found that the timing of the Respondent’s decision was
suspicious,10 and she discredited Tarlton’s testimony that
his decision to implement the MAP was unrelated to the
filing of the class-action complaint. The judge further
found that the Respondent failed to articulate a business
justification for implementing its MAP that was unrelat-
ed to the filing of the class-action complaint.11 The
judge’s finding that the Respondent promulgated the
MAP in response to the filing of the class-action lawsuit
is supported by the record, and we affirm her finding that
the MAP was independently unlawful on this basis.12

10 The class-action complaint was filed on November 7, 2013, and
the Respondent was served with a copy of the complaint sometime
between November 7 and 19. Although Tarlton testified that he had
discussed implementing an arbitration policy for several years prior to
the filing of the class action complaint, he admitted that he had not had
any such discussions in the six months before the class-action com-
plaint was filed and that he decided to implement the mandatory arbi-
tration policy after receiving the complaint. In late November or early
December, the Respondent presented the MAP to its employees and,
since December 2013, the Respondent has required all employees to
sign the MAP as a condition of employment.
11 Contrary to the Respondent’s argument on exceptions, the judge
did not base her finding that the Respondent promulgated the MAP in
response to the filing of class-action lawsuit solely on the suspicious
timing of the Respondent’s decision, but instead examined the testimo-
ny and all of the surrounding circumstances.
12 In affirming the judge’s finding, we do not rely on her findings
that the Respondent’s position statement submitted in response to a
separate charge was an admission against interest, or that language in
the MAP stating that the MAP applies to all employment disputes
“whether those disputes already exist today or arise in the future”
shows that the Respondent intentionally drafted the MAP to include the
class-action lawsuit.
The Respondent argues that it did not promulgate the MAP in re-
sponse to its employees’ protected concerted activity because there is
no evidence that Charging Party Munoz or the other plaintiffs were
TARLTON & SON, INC. 3
Our dissenting colleague agrees that employees were
engaged in protected concerted activity when they filed
the California class action lawsuit. However, he finds
that the Respondent did not adopt the MAP in response
to that activity but, instead, to the “class-action nature of
the lawsuit itself.” We fail to see a principled basis for
the distinction that our dissenting colleague attempts to
draw. The salient point is that employees engaged in
protected concerted activity when they filed a class-
action lawsuit and, in response, the Respondent promul-
gated a rule prohibiting that exact conduct. Such a rule,
by its very nature, interferes with employees’ exercise of
their Section 7 rights and constitutes a straightforward
violation of Section 8(a)(1). See, e.g., Hawaii Tribune
Herald, above, 356 NLRB at 661 (finding rule promul-
gated in response to protected concerted activity unlaw-
ful); Nashville Plastic Products, 313 NLRB 462, 462
(1993) (finding rule promulgated in response to employ-
ees’ union handbilling unlawful).
Our dissenting colleague further finds that, even as-
suming that the Respondent promulgated the MAP in
response to employees’ protected concerted activity, the
Respondent’s justifications for adopting the MAP out-
weigh any potential impact on employees’ Section 7
rights.13 We reject this argument. First, as discussed
above, the Respondent has failed to show that it had ac-
tually had a legitimate business justification for imple-
menting its MAP that was unrelated to employees’ pro-
tected concerted activity itself. Second, the Board in
Murphy Oil rejected the same argument made by our
dissenting colleague here. 361 NLRB No. 72, slip op. at
14. As explained in Murphy Oil, the proper balancing of
the respective rights of employees and employers is re-
flected in D. R. Horton’s recognition “that employees
have no Section 7 right to class certification and, in turn,
that employers may lawfully oppose class certification
on any legally available ground other than an unlawful
waiver in a mandatory arbitration agreement.” Id. (em-
phasis in original). See also D. R. Horton, above at 2286
fn. 24. Moreover, it is untenable to claim, as our dissent-
ing colleague does, that completely precluding employ-
ees from pursuing their workplace claims collectively

employed by the Respondent when the MAP was implemented. We,
like the judge, reject this argument. It is undisputed that all three indi-
viduals were at one time employed by the Respondent, and their em-
ployment status at the time the MAP was implemented is irrelevant.
The Board has long held that the broad definition of “employee” con-
tained in Sec. 2(3) of the Act covers former employees. See Briggs
Mfg. Co., 75 NLRB 569, 571 (1947); accord Leslie’s Poolmart, Inc.,
362 NLRB No. 184, slip op. at 1 fn. 2 (2015).
13 The only justification offered by the Respondent at the hearing
was Tarlton’s testimony that he needed a way to avoid “a long, drawn-
out process in solving problems.”
through litigation has “virtually no impact” on Section 7
rights, when it actually extinguishes that Section 7
right.14 See Murphy Oil, above, slip op. at 14.
ORDER
The National Labor Relations Board orders that the
Respondent, Tarlton and Son, Inc., Fresno, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mutual arbitration policy that re-
quires employees, as a condition of employment, to
waive the right to maintain class or collective actions in
all forums, whether arbitral or judicial, and promulgating
such a policy in response to employees’ protected con-
certed activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the mutual arbitration policy in all its
forms, or revise it in all its forms to make clear to em-
ployees that the mutual arbitration policy does not consti-
tute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the mutu-
al arbitration policy in any form that it has been rescind-
ed or revised and, if revised, provide them a copy of the
revised policy.
(c) Within 14 days after service by the Region, post at
its Fresno, California facility copies of the attached no-
tice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to

14 The Board has long held, with uniform judicial approval, that the
Act protects the right of employees to act together to improve their
terms and conditions of employment through litigation. Convergys
Corp., 363 NLRB No. 51, slip op. at 1 (2015).
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since December 1, 2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. April 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, the Charging Party and two other employ-
ees filed a class action lawsuit against the Respondent in
California state court alleging violations of the California
Labor Code related to the Respondent’s calculation and
payment of wages. After the Respondent was served
with the class action complaint, it adopted a mutual arbi-
tration policy (MAP), which all the Respondent’s em-
ployees signed. My colleagues find that the Respond-
ent’s MAP violates Section 8(a)(1) of the National Labor
Relations Act (the Act or NLRA) because (i) the MAP
waives the right to participate in class or collective ac-
tions regarding non-NLRA employment claims, and (ii)
the MAP was promulgated in response to the class action
lawsuit. For the reasons set forth below, I respectfully
dissent.
1. The Class-Action Waiver. I believe the MAP’s
class- and collective-action waiver is lawful for the rea-
sons explained in my partial dissenting opinion in Mur-
phy Oil USA, Inc.1 I agree that an employee may engage
in “concerted” activities for “mutual aid or protection” in
relation to a claim asserted under a statute other than

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
NLRA.2 However, Section 8(a)(1) of the Act does not
vest authority in the Board to dictate any particular pro-
cedures pertaining to the litigation of non-NLRA claims,
nor does the Act render unlawful agreements in which
employees waive class-type treatment of non-NLRA
claims. To the contrary, as discussed in my partial dis-
senting opinion in Murphy Oil, NLRA Section 9(a) pro-
tects the right of every employee as an “individual” to
“present” and “adjust” grievances “at any time.”3 This
aspect of Section 9(a) is reinforced by Section 7 of the
Act, which protects each employee’s right to “refrain
from” exercising the collective rights enumerated in Sec-
tion 7. Thus, I believe it is clear that (i) the NLRA cre-
ates no substantive right for employees to insist on class-
type treatment of non-NLRA claims;4 (ii) a class-waiver
agreement pertaining to non-NLRA claims does not in-
fringe on any NLRA rights or obligations, which has
prompted the overwhelming majority of courts to reject

2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). Indeed, such was the case here, as I
explain below. However, the existence or absence of Sec. 7 protection
does not depend on whether non-NLRA claims are pursued as a class or
collective action, but on whether Sec. 7’s statutory requirements are
met—an issue separate and distinct from whether an individual em-
ployee chooses to pursue a claim as a class or collective action. Id.; see
also Beyoglu, 362 NLRB No. 152, slip op. at 4–5 (2015) (Member
Miscimarra, dissenting).
3 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or se-
lected for the purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the exclu-
sive representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That any
individual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
4 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D.R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
TARLTON & SON, INC. 5
the Board’s position regarding class-waiver agreements;5
and (iii) enforcement of a class-action waiver as part of
an arbitration agreement is also warranted by the Federal
Arbitration Act (FAA).6 Although questions may arise
regarding the enforceability of particular agreements that
waive class or collective litigation of non-NLRA claims,
I believe these questions are exclusively within the prov-
ince of the court or other tribunal that, unlike the NLRB,
has jurisdiction over such claims.7
2. Promulgation in Response to the Class Action Law-
suit. My colleagues find that the Respondent violated
Section 8(a)(1) of the Act by promulgating the MAP in
response to protected concerted activity. I believe the
record supports a finding that employees engaged in pro-
tected concerted activity in connection with the Califor-
nia state court class action lawsuit. However, I do not
believe that the Respondent adopted the MAP in re-
sponse to that activity.8 Rather, I believe the MAP was

5 The Fifth Circuit has repeatedly denied enforcement of Board or-
ders invalidating a mandatory arbitration agreement that waived class-
type treatment of non-NLRA claims. See, e.g., Murphy Oil USA, Inc.
v. NLRB, above; D.R. Horton, Inc. v. NLRB, above. The overwhelming
majority of courts considering the Board’s position have likewise re-
jected it. See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v.
Adecco USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to
certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal.
June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-
00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA); but see Totten v. Kellogg Brown & Root,
LLC, No. ED CV 14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal.
Jan. 22, 2016).
6 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
7 Because I would find lawful the MAP’s class- and collective-action
waiver as to all the Respondent’s employees, I do not reach or pass on
the narrower question whether the waiver was lawful with respect to
the Respondent’s employees represented by the Carpenters Union.
Assuming, however, that the Union agreed to the implementation of the
MAP—the judge did not credit the testimony that may have established
such an agreement—persuasive authority exists to conclude that this
agreement would be enforceable in court. See 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247 (2009) (holding that a collective-bargaining agree-
ment could lawfully provide for the arbitration of statutory claims).
8 I agree with my colleagues that although the Board in Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004), phrased the second
prong of the Lutheran Heritage standard as whether a challenged rule
or policy is unlawful on the basis that it was “promulgated in response
to union activity,” a rule promulgated in response to other protected
concerted activity is also unlawful under the second prong of the Lu-
theran Heritage standard. For the reasons explained in the text, how-
adopted in response to the class-action nature of the law-
suit itself, which is not protected under the NLRA. But
even assuming otherwise, in my view the Respondent’s
justifications for adopting the MAP outweigh any poten-
tial impact on employees’ Section 7 rights.
Section 7’s “ʻmutual aid or protection’ clause protects
employees from retaliation by their employers when they
seek to improve working conditions through resort to
administrative and judicial forums,” Eastex v. NLRB, 437
U.S. 556, 565–566 (1978), and I agree that some protect-
ed concerted activity occurred in connection with the
state court lawsuit. But unlike my colleagues and the
judge, I believe it is immaterial whether or not class-type
procedures were applicable to the lawsuit. Rather, Sec-
tion 7 protection existed because Section 7’s statutory
requirements were met: at least three employees en-
gaged in concerted activity (jointly initiating and pursu-
ing the state court lawsuit) with the purpose of mutual
aid or protection (challenging the Respondent’s wage
practices). See Murphy Oil, above, slip op. at 23–25
(Member Miscimarra, dissenting); see also Beyoglu,
above, slip op. at 4–5.
Moreover, although the Respondent promulgated the
MAP shortly after the three employees jointly initiated
the state court lawsuit, I do not believe the promulgation
of the MAP constituted unlawful restraint or coercion of
or interference with NLRA-protected activity in violation
of Section 8(a)(1) of the Act. In my view, the record
fails to establish that the MAP was adopted in response
to NLRA-protected employee activity. As noted above,
the “protected concerted activity” issue (whether two or
more employees engaged in lawsuit-related concerted
activity for mutual aid or protection) is distinct from the
“class action procedures” issue (whether or not class-type
procedures applied to the non-NLRA lawsuit). Although
the record suggests that the Respondent, in promulgating
the MAP, was motivated by a desire to provide an alter-
native to class action procedures, there is no evidence
that the MAP would preclude employees from engaging
in NLRA-protected activity associated with non-NLRA
claims.9
The judge found that the Respondent decided to adopt
the MAP “because of the class action complaint,” based

ever, I would find that the Respondent did not promulgate the MAP in
response to employees’ protected concerted activity.
9 See City Market, Inc., 340 NLRB 1260, 1260 (2003) (rule promul-
gated in context of Sec. 7 activity not unlawful if the timing can be
explained by matters apart from the Sec. 7 activity); see also NLRB v.
Roney Plaza Apartments, 597 F.2d 1046, 1049 (5th Cir. 1979) (“Rea-
sonable restrictions . . . are not per se invalid because imposed during
[Sec. 7 activity]. The Act does not require an employer to anticipate all
problems and provide for them by written rule.”), enfg. 232 NLRB 409
(1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
on testimony that the Respondent’s president, Thomas
Tarlton, implemented the MAP to avoid a “long, drawn-
out process in solving problems” (emphasis in original).
The judge also found that the “long, drawn-out process”
Tarlton referenced meant the state court class action law-
suit. However, I believe this evidence establishes, at
most, that the MAP was adopted in response to the “class
action procedures” issue. There is no evidence that the
Respondent was motivated by protected activity—i.e., by
the fact that, in connection with the non-NLRA state
court lawsuit, employees also happened to engage in
NLRA-protected concerted conduct. In this regard, my
colleagues, like the judge, conflate class litigation proce-
dures with NLRA-protected activity. However, as ex-
plained above and in my partial dissent in Murphy Oil,
when employees pursue non-NLRA claims, the applica-
bility of class action procedures in litigating those claims
does not necessarily mean employees are engaged in
NLRA-protected activity, and the unavailability of class
action procedures does not preclude employees from
engaging in NLRA-protected activity. See Murphy Oil,
above, slip op. at 24–26 (Member Miscimarra, dissenting
in part).
Moreover, even if the Respondent adopted the MAP in
response to NLRA-protected activities associated with
the class action lawsuit, this does not automatically mean
the Respondent has violated Section 8(a)(1). In Eastex v.
NLRB, the Supreme Court stated that, when determining
whether an employer’s adverse action taken in response
to employee conduct violated Section 8(a)(1), “[t]wo
distinct questions” must be considered: first, whether the
employee conduct is protected by Section 7, and second,
whether the employer’s “countervailing interest . . . out-
weighs the exercise of § 7 rights.” 437 U.S. at 563; see
also City Market, 340 NLRB at 1260 fn. 2 (employer
may demonstrate that “‘promulgation of a [new rule]
upon the commencement of [Section 7 activity] . . . was
justified because the [Section 7 activity] brought about
substantial work disruption’”) (quoting NLRB v. Roney
Plaza Apartments, 597 F.2d at 1049). Thus, even if the
MAP was implemented in response to NLRA-protected
activity in connection with the lawsuit, the Board must
assess the legality of that action under Section 8(a)(1) by
taking into account not only the potential impact on
NLRA rights, but also relevant justifications unrelated to
NLRA-protected activity. See NLRB v. Erie Resistor
Corp., 373 U.S. 221, 229 (1963) (stating that the Board
must discharge the “delicate task” of “weighing the in-
terests of employees in concerted activity against the
interest of the employer in operating his business in a
particular manner”).10
Here, as noted above, the MAP has virtually no impact
on rights afforded under the NLRA. The MAP does not
impose job-related consequences on the three employees
who filed the California state court class action lawsuit
or on any other employees who concertedly file a lawsuit
covered by the MAP. Nor does the MAP penalize the
employees for or prevent them from pursuing their non-
NLRA claims against the Respondent.11 Although the
MAP requires employees to pursue their claims in arbi-
tration, the Supreme Court has held that electing an arbi-
tral rather than a judicial forum does not unlawfully pre-
vent litigants from effectively vindicating their claims.12
Questions may exist regarding whether the MAP can be
relied upon by the Respondent as a defense in the pend-
ing non-NLRA lawsuit,13 but these questions should be
resolved by the California state court that, unlike the
NLRB, has jurisdiction over the claims asserted in that
litigation.14 It is true that the MAP precludes employees
from using class- or collective-action procedures when

10 See also Republic Aviation v. NLRB, 324 U.S. 793, 797–798
(1945); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–34 (1967);
cf. Banner Estrella Medical Center, 362 NLRB No. 137, slip op. at 13–
18 (2015) (Member Miscimarra, dissenting in part).
11 Under the MAP, employees are free to engage in a broad range of
concerted activities for the purpose of mutual aid or protection in con-
nection with non-NLRA legal claims. The MAP in no way interferes
with the right of employees, among other things, to meet with one
another to identify evidence supporting non-NLRA employment-related
claims; to engage in work stoppages (if not prohibited by a collective-
bargaining agreement) or otherwise express solidarity and mutual sup-
port for one another in connection with non-NLRA employment-related
claims; to concertedly meet with an attorney or attorneys regarding
non-NLRA employment-related proceedings; or to publicize and/or
raise funds for non-NLRA employment-related agency or court cases.
The right of employees to engage in these types of protected concerted
activities is central to the NLRA—in contrast to the procedural treat-
ment afforded non-NLRA claims, which does not implicate the NLRA.
12 See 14 Penn Plaza, 556 U.S. at 249 (agreement to arbitrate ADEA
claims did not prevent their effective vindication because agreement
does not “waive the statutory right to be free from workplace age dis-
crimination; it waives only the right to seek relief from a court in the
first instance”); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
26 (1991) (“‘By agreeing to arbitrate a statutory claim, a party does not
forgo the substantive rights afforded by the statute; it only submits to
their resolution in an arbitral, rather than a judicial, forum.’”) (quoting
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.
614, 626 (1985)).
13 The record contains no evidence that the Respondent has sought to
enforce the MAP in the California state court lawsuit.
14 As I stated in Beyoglu, we are not permitted to “‘tak[e] it upon
ourselves to assist in the enforcement of other statutes. The Board was
not intended to be a forum in which to rectify all the injustices in the
workplace.’” Beyoglu, 362 NLRB No. 152, slip op. at 5 (Member
Miscimarra, dissenting) (quoting Meyers Industries, 281 NLRB 882,
888 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)).
TARLTON & SON, INC. 7
pursuing non-NLRA claims. Again, however, the exist-
ence or unavailability of class-type procedures has no
bearing on whether employees can engage in NLRA-
protected activity.15 In Eastex, for example, the Supreme
Court cited numerous cases where employees were found
to have engaged in NLRA-protected activity in connec-
tion with an agency or court proceeding involving a non-
NLRA claim or complaint,16 and none of the cases in-
volved or turned on the availability of class-type proce-
dures.
It also appears that the Respondent had legitimate and
substantial justifications for adopting the MAP. Contrary
to the views expressed by my colleagues and the judge,
who fault the Respondent for its desire to avoid class
action lawsuits, the Supreme Court has recognized that it
is entirely legitimate to use arbitration agreements, in-
cluding those that prohibit class claims, as a means to
avoid class action litigation in courts.17 Class action law-
suits may result in high costs, lengthy proceedings, and

15 See above fns. 2–5 and accompanying text.
16 See Eastex, 437 U.S. at 565, citing Walls Mfg. Co., 137 NLRB
1317, 1319 (1962) (employee’s discharge in retaliation for letter to
“State regulatory agency”—the state health department—complaining
about unsanitary conditions violated Sec. 8(a)(1)), enfd. 321 F.2d 753
(D.C. Cir. 1963), cert. denied 375 U.S. 923 (1963); Socony Mobil Oil
Co., 153 NLRB 1244, 1245, 1248 (1965) (employee suspension in
retaliation for alleged insolent and insubordinate behavior “during the
Coast Guard investigation aboard ship” and “complaint to the Coast
Guard” violated Sec. 8(a)(1)), enfd. 357 F.2d 662 (2d Cir. 1966); Altex
Ready Mixed Concrete Corp. v. NLRB, 542 F.2d 295, 297 (5th Cir.
1976) (two employee discharges based on alleged failure to read affi-
davits filed in union’s state court injunction proceeding violated Sec.
8(a)(1); court finds that “filing by employees of a labor related civil
action is protected activity under section 7”), enfg. 223 NLRB 696
(1976); Wray Electric Contracting, Inc., 210 NLRB 757, 761 (1974)
(employee discharge for filing “a complaint with OSHA” on behalf of
union violated Sec. 8(a)(3) and (1)); King Soopers, Inc., 222 NLRB
1011, 1018 (1976) (employee discharge in retaliation for employee’s
filing of “civil rights charges” with EEOC and state EEO agency vio-
lated Sec. 8(a)(1)); Triangle Tool & Engineering, Inc., 226 NLRB
1354, 1357 (1976) (employee discharge in retaliation for union activity
and “soliciting the aid of the Wage and Hour Division” of the U.S.
Dept. of Labor violated Sec. 8(a)(3) and (1)); Alleluia Cushion Co., 221
NLRB 999 (1975) (employee discharge in retaliation for employee's
filing of “letter of complaint to the California OSHA office” violated
Sec. 8(a)(1)). The Board’s decisions in Alleluia Cushion and its proge-
ny—where the conduct of a solitary employee was deemed “concerted”
whenever the purpose of that activity was one the Board wished to
protect—was overruled in Meyers Industries, 268 NLRB 493 (1984)
(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985), supplemented Meyers Indus-
tries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB,
835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
17 See American Express Co. v. Italian Colors Restaurant, 133 S. Ct.
2304, 2312 (2013) (arbitration agreement containing class-action waiv-
er enforceable); AT&T Mobility LLC v. Concepcion, 563 U.S. 333,
345–346 (2011) (the Federal Arbitration Act “was designed to promote
arbitration” and “embod[ies] a national policy favoring arbitration”).
“‘in terrorem’ settlements.”18 Arbitration agreements
that include restrictions on class claims may permit legal
disputes to be resolved more efficiently in a streamlined
manner that is tailored to the type of dispute,19 increasing
the speed of dispute resolution and substantially reducing
the costs.20 Moreover, the availability of arbitration as an
alternative to court litigation may also substantially bene-
fit employees, who may lack the resources or time re-
quired to litigate their non-NLRA claims in court.21 For
these reasons, even if the MAP’s adoption were found to
have some adverse impact on NLRA-protected activity,
in the circumstances presented here I believe such an
impact would be outweighed by legitimate justifications
unrelated to NLRA-protected activity. These considera-
tions, and those discussed above, warrant a finding that
the Respondent did not violate Section 8(a)(1) when it
adopted the MAP.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. April 29, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

18 Concepcion, above at 350.
19 Id. at 344 (arbitration “allow[s] for efficient, streamlined proce-
dures tailored to the type of dispute”).
20 Id. at 345 (“[T]he informality of arbitral proceedings is itself de-
sirable, reducing the cost and increasing the speed of dispute resolu-
tion.”); Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S.
662, 685 (2010) (benefits of arbitration include “lower costs, greater
efficiency and speed, and the ability to choose expert adjudicators to
resolve specialized disputes”); Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 123 (2001) (“Arbitration agreements allow parties to avoid
the costs of litigation, a benefit that may be of particular importance in
employment litigation, which often involves smaller sums of money
than disputes concerning commercial contracts.”).
21 Arbitration provisions in collective bargaining agreements have
been celebrated by Congress and the courts. See, e.g., Labor Manage-
ment Relations Act Sec. 203(d) (“Final adjustment by a method agreed
upon by the parties is hereby declared to be the desirable method for
settlement of grievance disputes arising over the application or interpre-
tation of an existing collective-bargaining agreement . . .”); Steelwork-
ers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960) (“arbi-
tration is the means of solving the unforeseeable by molding a system
of private law for all the problems which may arise and to provide for
their solution in a way which will generally accord with the variant
needs and desires of the parties”). As I stated in Murphy Oil, our stat-
ute does not render individual arbitration agreements “inherently sus-
pect or unenforceable, particularly when the agreements relate exclu-
sively to non-NLRA legal rights,” and the Supreme Court has stated
that “[n]othing in the law suggests a distinction between the status of
arbitration agreements signed by an individual employee and those
agreed to by a union representative.” Murphy Oil, above, slip op. at 33
(Member Miscimarra, dissenting in part) (quoting 14 Penn Plaza,
above, 556 U.S. at 258).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mutual arbitration policy that
requires our employees, as a condition of employment, to
waive the right to maintain class or collective actions in
all forums, whether arbitral or judicial, and WE WILL NOT
promulgate such a policy in response to our employees’
protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mutual arbitration policy in all its
forms, or revise it in all its forms to make clear that the
mutual arbitration policy does not constitute a waiver of
your right to maintain employment-related joint, class, or
collective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mutual arbitration policy in all its forms that the mutual
arbitration policy has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pol-
icy.
TARLTON AND SON, INC.
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-119054 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.
Gary Connaughton, Esq., for the General Counsel.
James A. Bowles, Esq. (Hill, Farrer & Burrill LLP), for the
Respondent.
David A. Rosenfeld, Esq. (Weinberg, Roger & Rosenfeld), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, ADMINISTRATIVE LAW JUDGE. This
case was tried in Fresno, California, on October 15, 2014. Rob-
ert Munoz (Charging Party or Munoz) filed the charge and
first-amended charge in case 32–CA–119054 on December 12,
2013, and January 14, 2014, respectively. Munoz filed the
charge and first-amended charge in case 32–CA–126896 on
April 17, 2014, and June 5, 2014, respectively. The General
Counsel issued the consolidated complaint (the complaint) on
July 23, 2014.
The complaint alleges that Tarlton and Son, Inc. (Respond-
ent or the Company) violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by requiring its employees since
early December 2013, as a condition of acceptance or continua-
tion of employment, to sign agreements that compel the em-
ployees to mandatory binding arbitration. The complaint fur-
ther alleges that Respondent implemented the mandatory bind-
ing arbitration policy because the employees engaged in pro-
tected concerted activities, including by participating in a State
court class action wage and hour complaint against Respondent.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and Charging Party, I
make the following1

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s exhibit; “R Exh.” for Re-
spondent’s exhibit; “CP Exh.” for Charging Party’s exhibit; “GC Br.”
for the General Counsel’s brief; “R. Br.” for the Respondent’s brief;
and “CP Br.” for the Charging Party’s brief. On January 22, 2015, the
Charging Party submitted a letter to me with copies to the General
Counsel and Respondent calling to my attention a recent Board deci-
sion, Purple Communications, Inc., 361 NLRB No. 126 (2014), issued
after the briefing period in this case ended. I have considered this
additional Board decision in this case. Although I have included sever-
al citations to the record to highlight particular testimony or exhibits, I
emphasize that my findings and conclusions are based not solely on the
evidence specifically cited, but rather are based my review and consid-
eration of the entire record.
TARLTON & SON, INC. 9
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a California corporation,
provides subcontractor construction services in the construction
industry in the State of California from its office and place of
business in Fresno, California, where it annually derives gross
revenues in excess of $50,000. Respondent purchased and re-
ceived goods at its facility in California valued in excess of
$50,000 directly from sources outside the State of California.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent provides specialty subcontractor construction
services to private and public properties in the State of Califor-
nia. Respondent employs approximately 150 to 250 painters,
plasterers, dry wall hangers, tapers and finishers as well as 3 to
4 nonsupervisory clerical and administrative staff employees
(Tr. 26–27, 181). Thomas (Tommy) Oliver Tarlton is Re-
spondent’s president, and has been responsible for labor rela-
tions at the Company since 1999 (Tr. 115). Tommy Tarlton
maintains an open-door policy where an employee or group of
employees may come to him with concerns about workplace
problems (Tr. 106–107).
The Northern California Carpenters Union and the Southern
California Carpenters Union (collectively, the Carpenters Un-
ion) represents many of the occupations employed by Respond-
ent including dry wall hangers, tapers or dry wall finishers,
lathers, plaster tenders and possibly laborers depending on the
type of job being performed (Tr. 34–35, 51, 117–118). Several
other occupations employed by Respondent are represented by
other labor organizations or not represented (R. Exh. 7). Re-
spondent and the Carpenters Union are bound by 2 collective-
bargaining agreements: the Southwest Drywall/Lathing Master
Agreement, and the Northern California Drywall/Lathing Mas-
ter Labor Agreement (Tr. 34; R. Exh. 1, 2).2
B. The Class Action Wage and Hour Complaint
On November 7, 2013,3 Munoz and two other employees
(the plaintiffs) filed, in the Superior Court of the State of Cali-
fornia, a collective action (the class action complaint) pursuant
to various California Labor Codes on behalf of themselves and
other employees similarly situated.
4
The class action complaint

2 Respondent apparently does not pay into the trust fund for the
Northern California Carpenters Union (Tr. 34–50; 153–154, 174–176).
The General Counsel argues that since Respondent does not pay into
the trust fund, the employees are not actually represented by the Car-
penters Union (GC Br. 3). However, based on my findings in this
decision, sorting out the representation issue is not necessary.
3 All dates contained herein are in 2013, unless otherwise indicated.
4 According to the class action complaint, Respondent employed
Munoz as a painter at the time of the filing (GC Exh. 2). Respondent,
for the first time in its brief, alleges that it did not employ Munoz at the
time of the implementation of the MAP. There is no evidence in the
record to support this statement, and regardless, it is not relevant.
alleged that Respondent and other companies engaged in unfair
business practices and violations of the California Labor Code
including failure to compensate the plaintiffs for overtime and
for various work-related activities performed off the clock such
as driving to and from the job sites and traveling to paint stores
(GC Exh. 2). The plaintiffs served Respondent with the class
action complaint shortly after its filing (Tr. 21–22). After Re-
spondent received a copy of the class action complaint, some-
time between November 7 and November 19, Respondent con-
tacted its attorneys regarding the class action complaint (Tr. 22,
57–60).
C. The Mutual Arbitration Policy
On November 19, Respondent’s attorneys emailed Tommy
Tarlton a draft mutual arbitration policy along with an employ-
ee agreement to arbitrate (collectively, the MAP) with specific
language to assure the Carpenters Union that Respondent was
not trying to avoid complying with the collective bargaining
agreements (GC Exh. 3). Respondent’s attorneys drafted the
MAP after receiving a copy of the class action complaint from
the Company (GC Exh. 4). That same day, November 19,
Tarlton forwarded the draft MAP to Tony Canale, a representa-
tive of the Northern California Carpenters Union (GC Exh. 3;
Tr. 60, 78). Tarlton asked Canale to review the draft MAP and
“hopefully” approve the document. 5
Tarlton testified that in addition to his email to Canale, he
spoke to Canale several times regarding the MAP (Tr. 77, 84,
139). Tarlton testified that he asked Canale if he had forwarded
the MAP to the Southern California Carpenters Union officials,
to which Canale responded he had (Tr. 140). Tarlton testified
that Canale “agreed it was okay for our company to implement
[MAP]” as it did not supersede the collective bargaining
agreement applicable to its members (Tr. 86, 140).
Tarlton testified that for several years prior to the filing of
the class action complaint, he had discussed implementing a
mutual arbitration policy at the Company but did not take steps
to implement the MAP until November 2013 (Tr. 25–26).
Tarlton gave conflicting testimony as to whether the implemen-
tation of the MAP occurred due to the class action complaint
filed against Respondent. On cross-examination, Tarlton ad-
mitted that the decision to implement the MAP came within a
few days after receiving the class action complaint (Tr. 59).
However, Tarlton denied that the class action complaint
prompted him to implement the MAP (Tr. 60). Tarlton also
acknowledged that he had not spoken to anyone including his
counsel in the 6 months prior to the filing of the class action
complaint regarding implementation of a mutual arbitration
policy at the Company (Tr. 60).
In late November or early December, Respondent presented
to all its employees, both unrepresented and represented by
labor organizations, with the MAP.6 According to Tarlton,

5 The record does not contain a written response to Tarlton’s No-
vember 19, 2013 email to Canale (GC Exh. 3). Canale did not testify at
the hearing.
6 At the time of the issuance of the MAP to its employees, Respond-
ent also requested its employees complete a survey regarding the alle-
gations raised in the class action complaint (Tr. 192). Respondent also
gave its employees a “release,” “settlement agreement,” or “waiver” to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
only a few employees expressed concern with the MAP but
eventually every employee signed it (Tr. 184). Since December
2013, Respondent has required all employees, both represented
and unrepresented by a labor organization, to sign, as a condi-
tion of their employment, the MAP (Tr. 33, 172–174). The
MAP, 5 pages single-spaced in length, requires the employees
to submit most legal claims arising out of their employment to
binding arbitration.
The MAP states, in relevant part:
Notice to Employees About Our Mutual Arbitration Policy
Tarlton & Son, Inc. (“the Company”) has adopted and im-
plemented a new arbitration policy, requiring mandatory,
binding arbitration of all disputes, for all employees, regard-
less of length of service. This memorandum explains the pro-
cedures, as well as how the arbitration policy works as a
whole. Please take the time to read this material. IT
APPLIES TO YOU. It will govern any existing and all future
disputes between you and the Company that relate in any way
to your employment.
Arbitration Policy & Procedures
The Company sincerely hopes that you will never have a dis-
pute relating to your employment here. However, we recog-
nize that disputes sometimes arise between an employer and
its employees relating to the employment relationship. We al-
so recognize that not every dispute can be successfully re-
solved informally. The Company believes that it is in the best
interests of the employees and the Company to resolve those
disputes in a forum that provides the fastest and fairest meth-
od for resolving them based on the individual facts of your
situation. Therefore, the Company has adopted and imple-
mented this Mutual Arbitration Policy (“MAP”) as a manda-
tory condition of employment.
The MAP applies to all Company employees, regardless of
length of service or status, and covers all disputes relating to
or arising out of or in connection with employment at the
Company or the termination of that employment, whether
those disputes already exist today or arise in the future. Ex-
amples of the type of disputes or claims covered by the MAP
include, but are not limited to, claims against employees for
fraud, conversion, misappropriation of trade secrets, or claims
by employees for wrongful termination of employment,
breach of contract, fraud, employment discrimination, har-
assment or retaliation under the Americans With Disabilities
Act, the Age Discrimination in Employment Act, the Fair La-

sign regarding the class action lawsuit filed by the plaintiffs (Tr. 194–
202). However, the complaint before me focuses on the implementa-
tion of the MAP at the Company, and not on what the employees were
asked to sign once the MAP was implemented; apparently, that charge
was dismissed prior to the hearing. The General Counsel admitted as
such at the hearing, and the Charging Party objected, seeking to intro-
duce this “release,” “settlement agreement,” or “waiver.” I sustained
the objection at the hearing, and rejected this document. Based upon
my review of the complaint, my ruling stands. In addition, per Charg-
ing Party’s request in his brief, I decline to order Respondent to rescind
the class action complaint waivers signed by the employees since that
issue is not before me.
bor Standards Act, Title VII of the Civil Rights Act of 1964
and its amendments, the California Fair Employment and
Housing Act or any other state or local anti-discrimination
laws, tort claims, wage or overtime claims or other claims un-
der the Labor Code, or any other legal or equitable claims and
causes or action recognized by local, state or federal law or
regulations. The MAP does not cover workers’ compensation
claims, unemployment insurance claims or any claims that
could be made to the National Labor Relations Board. The
MAP also does not cover claims that are subject to the griev-
ance and arbitration provisions of any collective bargaining
agreement between the Company and a duly recognized labor
Union representing you. Because it changes the forum in
which you may pursue claims against the Company and ef-
fects your legal rights, you may wish to review the MAP with
any attorney or other advisor of your choice. The Company
encourages you to do so.
Your decision to accept employment or to continue employ-
ment with the Company constitutes your agreement to be
bound by the MAP. Likewise, the Company agrees to be
bound by the MAP. This mutual obligation to arbitrate claims
means that both you and the Company are bound by use of
the MAP as the only means of resolving any employment-
related disputes covered by the policy. By agreeing to arbi-
trate, both you and the Company are agreeing to use proce-
dures to arbitrate that may be materially different from the
procedures that would apply in court. This mutual agreement
to arbitrate claims also means that both you and the Company
forgo any right either may have to a jury trial on claims relat-
ed in any way to your employment. Because the arbitration
proceeding will be a traditional, bilateral arbitration, it also
means that both you and the Company forego and waive any
right to join or consolidate claims in arbitration with others or
to make collective or class claims in arbitration, either as a
representative or a member of a class, unless such procedures
are agreed to by both you and the Company. No substantive
remedies that otherwise would be available to you individual-
ly or to the Company in a court of law, however, will be for-
feited by virtue of this agreement to use and be bound by the
MAP.
[Emphasis in original.] Employees sign a separate form titled,
“Employee Agreement to Arbitrate” which states in relevant
part:
I acknowledge that I have received and reviewed a copy of
Tarlton & Son. Inc.’s Mutual Arbitration Policy (“MAP”) and
have been provided an opportunity to request and review a
Spanish translation as well, and I understand that the MAP is
a condition of my employment. I agree that it is my obliga-
tion to make use of the MAP and to submit to final and bind-
ing arbitration any and all claims and disputes, whether they
exist now or arise in the future, that are related in any way to
my employment or the termination of my employment with
Tarlton & Son, Inc., except as otherwise permitted by the
MAP. I understand that final and binding arbitration will be
the sole and exclusive remedy for any such claim or dispute
against Tarlton & Son, Inc. or any affiliated companies or en-
tities, and all of their owners, employees, officers, directors or
TARLTON & SON, INC. 11
agents (“the Company”) and that, by agreeing to use arbitra-
tion to resolve my disputes, both the Company and I agree to
forego any right we each may have had to a jury trial on is-
sues covered by the MAP, and forego any right to bring
claims on a class or collective basis. I also agree that such ar-
bitration will be conducted before an arbitrator chosen by me
and the Company, and will be conducted before an arbitrator
chosen by me and the Company, and will be conducted under
the Federal Arbitration Act and the applicable procedural
rules of the American Arbitration Association (“AAA”).
which I have been provided an opportunity to request and re-
view. The Company and I agree that nothing herein will pre-
vent me or a Union representing me from filing a grievance
and pursuing arbitration under a collective bargaining agree-
ment between the Company and Union representing me.
[GC Exh. 1(e), 1(p), 3.]7
In summary, and relevant to this matter, Respondent requires
that all employment-related disputes with its employees be
resolved as individual claims exclusively through final arbitra-
tion. In other words, parties to a dispute cannot pursue claims
related to the dispute, individually or collectively, or by class,
in any judicial or court forum
III. ANALYSIS
A. Respondent’s Requirement That Employees’ Are Bound By
the MAP Violates Section 8(a)(1) of the Act
The complaint alleges, at paragraph 4, that since early De-
cember 2013, Respondent has required employees to be bound
by the MAP which precludes class or collective litigation in
any forum in violation of Section 8(a)(1).
(1) Respondent’s MAP violates the Act by precluding class
and/or collective actions.
Respondent requires employees to agree to the MAP as a
condition of employment. The MAP applies to all employees,
regardless of length of service or status, and governs all dis-
putes relating to or arising from employment with the Compa-
ny. Beginning in December 2013, Respondent required all em-
ployees to sign the MAP to continue employment with the
Company. Thus, I find that the MAP was a mandatory rule
imposed by Respondent, and as such the MAP should be evalu-
ated in the same manner as any workplace rule. See D.R. Hor-
ton, 357 NLRB 2277, 2292 (2012).
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right
“to form, join or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection . . . .” The

7 GC Exh. 3 include the English and Spanish versions of the MAP.
However, to receive a Spanish version of the Company’s MAP, the
employee must request the Spanish version. It is unclear from the
record whether this requirement posed a challenge to English illiterate
employees who obviously would not be able to read the English version
of the MAP to know to ask for a Spanish version of the MAP.
Board has consistently held that collective legal action involv-
ing wages, hours, and/or working conditions is protected con-
certed activity under Section 7. See, e.g., Spandsco Oil & Roy-
alty Co., 42 NLRB 942, 949–950 (1942); United Parcel Ser-
vice, 252 NLRB 1015, 1018, 1022 fn. 26 (1980), enfd. 677 F.2d
421 (6th Cir. 1982); D.R. Horton, Inc., 357 NLRB 2277 (2012),
enf. denied in part 737 F.3d 344 (5th Cir. 2013), petition for
rehearing en banc denied (5th Cir. No. 12–60031, April 16,
2014). In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), the
Board reaffirmed its ruling in D. R. Horton, where they held
that mandatory arbitration agreements which preclude the filing
of joint, class, or collective claims addressing wages, hours, or
other working conditions in any forum, arbitral or judicial, is
protected concerted activity and unlawfully restrict employees’
Section 7 rights, which violates Section 8(a)(1) of the Act.
Since the Board’s issuance of D.R. Horton there are have
been several decisions issued by the Federal courts of appeal
disagreeing with the Board’s analysis regarding mandatory
arbitration agreements. Sutherland v. Ernst & Young, 726 F.3d
290 (2d Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050
(8th Cir. 2013); Richards v. Ernst & Young, LLP, 744 F.3d
1072 (9th Cir. 2014). Then, on October 28, 2014, the Board
clearly and carefully reaffirmed its decision in D.R. Horton.
Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). The Board in
Murphy Oil reexamined D.R. Horton, and determined that its
reasoning and results were correct. The Board found that Sec-
tion 8(a)(1) of the Act is violated when an employer requires its
employees to agree to resolve all employment-related claims
through individual arbitration. Mandatory arbitration agree-
ments which bar employees from bringing joint, class, or col-
lective actions regarding the workplace in any forum restrict
employees’ substantive right established by Section 7 of the
Act to improve their working conditions through administrative
and judicial litigation.
When evaluating whether a rule, including a mandatory arbi-
tration policy, violates Section 8(a)(1), the Board applies the
test set forth in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004). See U-Haul Co. of California, 347 NLRB 375, 377
(2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D.R. Hor-
ton, Inc.; Murphy Oil. Under Lutheran Heritage, the first in-
quiry is whether the rule explicitly restricts activities protected
by Section 7. If it does, the rule is unlawful. If it does not, the
violation is dependent upon a showing of one of the following:
(1) employees would reasonably construe the language to pro-
hibit Section 7 activity; (2) the rule was promulgated in re-
sponse to [Section 7] activity; or (3) the rule has been applied
to restrict the exercise of Section 7 rights. Lutheran Heritage,
343 NLRB at 647. The Board in D.R. Horton found that man-
datory arbitration policies expressly violate employees’ rights
to engage in protected concerted activity under the Lutheran
Heritage analysis. Likewise, I find that the MAP explicitly
restricts Section 7. The MAP states in relevant part:
This mutual agreement to arbitrate claims also means that
both you and the Company forgo any right either may have to
a jury trial on claims related in any way to your employment.
and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Because the arbitration proceeding will be a traditional, bilat-
eral arbitration, it also means that both you and the Company
forego and waive any right to join or consolidate claims in ar-
bitration with others or to make collective or class claims in
arbitration, either as a representative or a member of a class,
unless such procedures are agreed to by both you and the
Company.
Respondent’s MAP also requires employees to sign a statement
certifying, “I understand that final and binding arbitration will
be the sole and exclusive remedy for any such claim or dispute
against Tarlton & Son, Inc. […] and forego any right to bring
claims on a class or collective basis.” Thus, the MAP clearly
prohibits class actions in both judicial and arbitral forums.
Applying the Board’s decisions in D.R. Horton and Murphy
Oil, Respondent’s MAP violates Section 8(a)(1) of the Act by
requiring employees as a condition of employment to agree to
resolve all employment-related claims through individual arbi-
tration. Accordingly, I find that Respondent’s maintenance of
the MAP, as a condition of employment, prohibits employees
from bringing forth claims against Respondent in a concerted
manner which thereby violates Section 8(a)(1) of the Act as set
forth in D.R. Horton and Murphy Oil. 8
2. The defenses raised by Respondent are without merit.
Respondent raises several arguments why I should not fol-
low Murphy Oil and D.R. Horton. Respondent argues that I
should instead follow the various Federal courts of appeals
which have rejected the Board’s rationale in D.R. Horton as
well as the dissenting opinions in Murphy Oil. I find none of
these arguments persuasive. Respondent failed to provide any
argument distinguishing its mandatory arbitration agreement
with the ones found in D.R. Horton and Murphy Oil. Because
Murphy Oil and D.R. Horton are Board precedents that have
not been overturned by the Supreme Court, I must follow them.
Manor West, Inc., 311 NLRB 655, 667 fn. 43 (1993); see also
Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) (“We emphasize
that it is a judge’s duty to apply established Board precedent
which the Supreme Court has not reversed. It is for the Board,
not the judge, to determine whether precedent should be var-
ied.”). The arguments made by Respondent as to why D.R.
Horton and Murphy Oil were wrongly decided, including its
rejection by the courts, must be made directly to the Board.
Respondent alleges that Section 7 of the Act does not include
the right to pursue class action complaint, and does not consti-
tute protected concerted activity. Respondent relies upon the
dissent in Murphy Oil to support its position. However, as the
majority reaffirmed in Murphy Oil, “the NLRA does not create
a right to class certification or the equivalent, but as the D.R.
Horton Board explained, it does create a right to pursue joint,
class, or collective claims if and as available, without the inter-
ference of an employer-imposed restraint.” Murphy Oil, supra,

8 At the hearing, under cross-examination, Tarlton, who testified he
was responsible for labor relations at the Company since 1999 (Tr.
115), admitted that even he did not know which disputes required man-
datory arbitration and which did not (Tr. 88–103). Where language
“creates an ambiguity,” that ambiguity “must be construed against the
Respondent as the drafter of the [rule].” Murphy Oil, 361 NLRB No.
72, slip op. at 26 (2014).
slip op. at 2 (citing D.R. Horton, supra, slip op. at 10 fn. 24).
Here, Respondent’s MAP, as a condition of employment, pre-
cludes employees from pursuing claims concertedly and thus
“amounts to a prospective waiver of a right guaranteed by the
NLRA.” Murphy Oil, supra, slip op. at 9 (citing National Lico-
rice Co. v. NLRB, 309 U.S. 350, 361 (1940), and J.I. Case Co.
v. NLRB, 321 U.S. 332, 337 (1944)). This preclusion infringes
on employees’ Section 7 rights, and thus violates Section 8(a)
(1) of the Act.
Respondent argues that even if the MAP restricts the em-
ployees’ Section 7 rights, this restriction is not a violation of
Section 8(a)(1) of the Act because the rights of the employees
must be balanced with the business justification of the employ-
er. Again, the Murphy Oil Board rejected this argument. The
Board stated, “It is untenable to claim, as Member Johnson
does, that prohibiting employees from pursuing their workplace
claims collectively results only in ‘relatively slight’ interference
with Section 7 rights, when it actually extinguishes them.”
Murphy Oil, supra, slip op. at 14. Again, this argument is re-
jected.
Respondent alleges that the Board’s rationale in Murphy Oil
and D.R. Horton conflict with the Federal Arbitration Act
(FAA), 9 U.S.C. §§ 1 et. seq. However, the Board clearly set
forth its reasons why the National Labor Relations Act does not
conflict with or undermine the FAA. See Murphy Oil, supra,
slip op. at 6. First, the Board found that mandatory arbitration
agreements are unlawful under the FAA’s savings clause be-
cause they extinguish rights guaranteed by Section 7. Second,
Section 7 amounts to a “contrary congressional command”
overriding the FAA. Finally, the Board found that the Norris-
LaGuardia Act indicates that the FAA should yield to accom-
modate Section 7 rights. The Norris-LaGuardia Act prevents
enforcement of private agreements that prohibit individuals
from participating in lawsuits arising out of labor disputes.
Furthermore, Respondent argues that AT & T Mobility v.
Concepcion, 131 S.Ct. 1740, 1746 (2011), CompuCredit Corp.
v. Greenwood, 132 S.Ct. 665, 672 fn. 4 (2012), American Ex-
press Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013),
Supreme Court decisions issued after D.R. Horton, and other
related case law,9 support the argument that D.R. Horton must
be rejected. Again, the Board in Murphy Oil addressed those
arguments, distinguishing that Section 7 of the Act substantive-
ly guarantees employees the right to engage in collective ac-
tion, including collective legal action, for mutual aid and pro-
tection concerning wages, hours, and working conditions. See
Murphy Oil, supra, slip op. at 7–9.
Respondent alleges that the Carpenters Union agreed to the
implementation of the MAP thereby waiving the relevant statu-
tory right of the employees whom it represents. However, I
reject this defense as well. First, the Carpenters’ Union does
not represent all the employees of Respondent, and thus, could
not have waived the rights of non-Carpenters’ Union represent-

9 Respondent requests that I follow the decision of Administrative
Law Judge Keltner Locke in Haynes Building Services, LLP, No. 31–
CA–093920 (February 7, 2014). This decision is not precedential,
however, and to the extent it conflicts with the Board’s case law, I am
precluded from following it.
TARLTON & SON, INC. 13
ed employees. Furthermore, putting aside the preliminary issue
of whether a union can waive the Section 7 right involved here,
an issue I do not reach,10 Respondent has not established such a
waiver on the facts of this case. Respondent’s only evidence
presented at trial regarding the agreement by the Carpenters
Union was the uncorroborated hearsay testimony of Tarlton.11
I do not credit Tarlton’s testimony. Tarlton provided different
versions of the discussions with Canale regarding the imple-
mentation of the MAP. On direct examination, Tarlton testified
that Canale did not object to the implementation of the MAP in
the very first conversation he had with him after the MAP had
been emailed to Canale (Tr. 139–142; GC Exh. 3). Tarlton
spoke with Canale before he emailed him the MAP in a conver-
sation that lasted longer than the subsequent conversation after
Canale reviewed the MAP (Tr. 145–147). In contrast, under
cross-examination, Tarlton testified that he had three to five
conversations with Canale before Canale agreed to the imple-
mentation of the MAP (Tr. 77). Tarlton testified that before
Canale agreed to the implementation of the MAP, Canale re-
viewed the MAP. Thereafter, Canale and he had more conver-
sations regarding the MAP and its impact on the negotiated
grievance procedure (Tr. 84–86). Moreover, Respondent also
failed to call Canale as a witness or provide any documentary
evidence that the Carpenters Union waived its right to bargain
over the implementation of the MAP.
Even assuming, however, that I could accept Tarlton’s testi-
mony set forth above, it does not meet the Board’s standard for
establishing a waiver of Section 7 rights. Under the Board’s
long settled “clear and unmistakable waiver” standard, the party
asserting waiver has to establish that the parties “unequivocally
and specifically express[ed] their mutual intention to permit
unilateral employer action with respect to a particular employ-
ment term.” Provena St. Joseph Medical Center, 350 NLRB
808 (2007). The proof of a clear and unmistakable waiver is a
fact specific inquiry. Respondent cites to Berkline Corp., 123
NLRB 685 (1959), and Shipbuilders (Bethlehem Steel), 277
NLRB 1548 (1986), to support its argument that the Carpenters
Union waived their right to bargain regarding the MAP. Again,
in those decisions, whose facts are not comparable to the fact-
pattern presented in this case, the Board concluded that the
evidence sufficiently showed that the union waived their rights
to bargain. Here, the evidence, or lack of it, shows that Re-
spondent informed the Carpenters Union of the planned change
(GC Exh. 3). However, Respondent did not prove its heavy
burden because the evidence presented is insufficient to show
that the Carpenters Union thereafter agreed to the implementa-
tion of the MAP. Respondent failed to prove that it fully dis-
cussed the mandatory arbitration agreement with the Carpenters

10 See GC Br. 15–18 (arguing that the union cannot waive employ-
ees’ Sec. 7 right to file class actions); and R. Br. 42–48 (arguing that
the union can waive employees’ Sec. 7 right to file class actions).
11 At the hearing, over the Charging Party’s objection, I permitted
Tarlton to testify regarding his conversation with Canale. However,
Tarlton’s testimony was hearsay, and I give it only little weight since it
was not supported by corroborating evidence.
Union and that the Carpenters Union “consciously yielded its inter-
est in the matter.” Alison Corp., 330 NLRB 1363, 1365 (2000).
In this case, it is clear under Board law that Munoz engaged
in protected concerted activity when he filed his class action
complaint in State court. See Trinity Trucking & Materials
Corp., 221 NLRB 364, 365 (1975); Host International, 290
NLRB 442, 443 (1988) (filing a collective action to address
wages, hours, and other terms and conditions of employment
constitutes protected activity unless done with malice or in bad
faith); Harco Trucking, LLC, 344 NLRB 478 (2005). Even
without class member status, the evidence demonstrates that, by
filing his class wide complaint, Munoz and the other plaintiffs
sought to enlist the support of fellow employees in mutual aid
and protection and intended to initiate or induce group action
regarding alleged overtime pay violations and other labor viola-
tions against Respondent. Respondent implemented the MAP
only after the employees filed a collective action in State court
concerning working conditions. By implementing the MAP,
Respondent sought to prevent the employees from working
together in the future and had an illegal objective. Consequent-
ly, Respondent's action to force Munoz and other employees
covered under the Act, to waive their right to file a class wide
action in any arbitral or judicial forum, interfered with and
restrained them from exercising their Section 7 rights. Re-
spondent promulgated the mandatory arbitration agreement for
all current and future employees only after the employees en-
gaged in protected concerted activity.
Based on the foregoing, I find that Respondent’s requirement
as a condition of employment that employees are bound by the
MAP violates Section 8(a)(1) of the Act as alleged in the Com-
plaint.
B. Respondent’s Implementation of the MAP Was Based on
Protected Concerted Activity of Filing Class Action Matters,
and Thus, Independently Violates Section 8(a)(1) of the Act
The Complaint alleges, at paragraph 5, that Respondent im-
plemented the MAP after the employees filed a State class ac-
tion wage and hour complaint. The MAP is a condition of em-
ployment, and is therefore treated in the same manner as other
unlawfully implemented workplace rules. As set forth previ-
ously, when evaluating whether a rule, including a mandatory
arbitration policy, violates Section 8(a)(1), the Board applies
the test set forth in Lutheran Heritage Village-Livonia, supra.
See U-Haul Co. of California, supra at 377 (2006), enfd. 255
Fed.Appx. 527 (D.C. Cir. 2007); D.R. Horton, Inc.; Murphy
Oil. In undertaking this analysis, the Board must refrain from
reading particular phrases in isolation, and must not presume
improper interference with employee rights. MCPc, Inc., 360
NLRB No. 39, slip op. at 7 (2014). The inquiry here is whether
the second prong of the Lutheran Heritage test, if the rule was
promulgated in response to protected concerted activity, is met.
Although there are no Board cases directly on point with the
facts of this case, the Board has found in many cases that im-
plementation of a facially valid rule in response to the exercise
of Section 7 rights violates the Act. See Hyatt Regency Mem-
phis, 296 NLRB 259, 260 (1989); Nashville Plastic Products,
313 NLRB 462 (1993); Jordan Marsh Stores, 317 NLRB 460,
462 (1995); Lincoln Center, 340 NLRB 1100, 1110 (2003);
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Jensen Enterprises, 339 NLRB 877 (2003); N. Hills Office
Services, 346 NLRB 1099, 1113 (2006).12
Respondent argues that Munoz and the other employees in-
volved in the class action complaint were not employed by the
Company at the time the MAP was implemented, and thus
those employees Section 7 rights were not affected. First, Re-
spondent did not present any evidence of the employment status
of the plaintiffs or the Charging Party at the trial. Secondly, it
is irrelevant whether the plaintiffs were actually employed by
the Company at the time the MAP was implemented. An “em-
ployee” includes “former employees of a particular employer.”
Briggs Mfg. Co., 75 NLRB 569, 571 (1947); see also Sec. 2(3)
of the Act; Waco, Inc., 273 NLRB 746, 747 fn. 8 (1984); Red-
wood Empire, Inc., 296 NLRB 369, 391 (1989). The Act does
not place limitations on who may file a charge. See Sec. 10 of
the Act; NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9,
17 (1943).
Even if they were not employed by the Company in Decem-
ber 2013, when they are re-hired by Respondent, which is like-
ly in the construction industry, as a condition of employment,
they must agree to the MAP. All employees since December
2013 must agree to and sign the MAP which violates Section
8(a)(1) of the Act as set forth above.
Respondent implemented the MAP after the employees’
worked in concert to file a class action lawsuit in State court.
Although Tarlton testified that Respondent implemented the
MAP not because of the class action and the topic of imple-
menting a mandatory arbitration had been discussed by the
Company’s management for several years, the timing of the
implementation is suspicious and points to an improper mo-
tive.13 Although Tarlton provided generally sincere, specific
and detailed testimony, I do not find him credible regarding the
impetus and timing for the implementation of the MAP. A cred-
ibility determination may rely on a variety of factors, including
the context of the witness’ testimony, the witness’ demeanor,
the weight of the respective evidence, established or admitted
facts, inherent probabilities and reasonable inferences that may
be drawn from the record as a whole. Double D Construction
Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB
622, 623 (2001) (citing Shen Automotive Dealership Group,
321 NLRB 586, 589–590 (1996)), enfd. 56 Fed.Appx. 516
(D.C. Cir. 2003). Credibility findings need not be all-—or
nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a

12 Respondent argues that the second prong of Lutheran Heritage
only applies to “union activity” not protected concerted activity. How-
ever, Respondent narrowly reads Lutheran Heritage. Protected concert-
ed activity is a necessary precursor to union activity which are employ-
ees Sec. 7 rights. Contrary to Respondent’s argument, the Board has
applied the second prong of Lutheran Heritage to protected concerted
activity, not only union activity. See e.g., Triple Play Sports Bar &
Grille, 361 NLRB No. 31 (2014).
13 Respondent argues that timing of the MAP’s implementation
alone would be insufficient to conclude that the mandatory arbitration
agreement was promulgated in reaction to protected concerted activity
(R. Br. at 53). As set forth above, my decision is not based simply on
the timing of events but as a credibility analysis of the entire set of
circumstances.
witness’ testimony. Daikichi Sushi, supra at 622.
Tarlton’s own testimony essentially confirms that he made
the decision to implement the MAP because of the class action
complaint. Tarlton testified:
Q. And to the best of your recollection, what was said by
you and Mr. Canale during that conversation?
A. I explained to him what it was that I was wanting to send
him and why I wanted to send it to him, and I explained to
him that typically I was always able to go through the griev-
ance procedure and arbitration procedure set out in their
agreement and it's worked great.
And I realize now that I need to have that same ability for
things that aren't in their ability to help me get quickly re-
solved. And so I said it's a mutual arbitration agreement that's
going to allow us to deal with matters as they come up from
time to time and not have it -- and be able to get resolution for
my employees quickly no matter what it be so there's not a
long, drawn-out process in solving problems in the future that
typically went through the carpenters union, and they would
have helped us get it resolved because they get stuff done
quick. Like sometimes the same day that a problem arises,
we get it resolved.
If for some reason, there's a disagreement, it's within three,
four weeks, you get a resolution of what to do and what's go-
ing to happen.
[Tr. 145–146.]
Tarlton testified that he realized he needed the MAP so he
could “get resolution for my employees quickly no matter what
it be so there's not a long, drawn-out process in solving prob-
lems in the future that typically went through the carpenters
union [. . .]”. Tarlton seems to suggest that after the class ac-
tion complaint was filed he decided to implement the MAP.
His denial that the implementation of the new rule was not due
to the class action complaint is not believable. He must have
been referring to the class action complaint as the “long, drawn-
out process” he sought to avoid which is why he implemented
the MAP. The Company clearly promulgated the MAP be-
cause it sought to chill employees from working together to file
class action complaints in State court.
Moreover, Respondent drafted the MAP to include the class
action complaint filed by the plaintiffs. The MAP states, “The
MAP applies to all Company employees, regardless of length
of service or status, and covers all disputes relating to or arising
out of or in connection with employment at the Company or the
termination of that employment, whether those disputes already
exist today or arise in the future.” When reviewing the entire
chain of events, it seems clear from the record that Respondent
implemented the MAP, or promulgated the new rule, in re-
sponse to the employees’ protected concerted activity. Re-
spondent sought to squelch the employees’ pursuit of class
action lawsuits in forums other than individual arbitration or the
negotiated grievance process. Hence, Respondent promulgated
the new rule in response to the employees’ Section 7 activity,
which violates Section 8(a)(1) of the Act.
TARLTON & SON, INC. 15
Furthermore, Respondent’s counsel during the investigatory
stage of charge 32–CA–119054, states in its position statement
to the General Counsel, “The MAP and Employee Agreement
to Arbitrate were prepared by our office shortly after the law-
suit filed against Tarlton on November 7, 2013 by Robert
Munoz [. . .]” (GC Exh. 4). Charge 32–CA–119054 concerned
an allegation that Respondent promulgated the MAP in re-
sponse to union activity.14 Respondent’s counsel further ex-
plains in the position statement that it recommends mandatory
arbitration agreements for many of its clients, and that the
Company was unaware of “any union activity regarding the
lawsuit.” It may be that Respondent was unaware of any in-
volvement in the class action complaint but Respondent was
clearly on notice of the class action complaint which was filed
by its employees. As stated above, the class action complaint
falls within the ambit of protected concerted activity. This
position statement is an admission against interest, albeit by
Respondent’s counsel, and thus persuasive evidence that Re-
spondent implemented the MAP due to the filing of the class
action complaint. The Board has held that “[a]n admission
against interest may be used as evidence as well as to impeach
and thus includes assertions made in position statements of
counsel.” United Technologies Corp., 310 NLRB 1126, 1127
fn. 1 (1993), enfd. mem. sub nom. NLRB v. Pratt & Whitney,
29 F.3d 621 (2d Cir. 1994); see also United Scrap Metal Inc.,
344 NLRB 467, 468 fn. 5 (2005) (submission statements sub-
mitted by counsel are admissions against interest by a party).
Although Respondent prepared this response to the General
Counsel in another charge which was later dismissed, this
statement serves to corroborate the allegation that Respondent
implemented the MAP in response to protected concerted activ-
ity by the employees.
Based on the foregoing, I find that Respondent promulgated
and implemented the MAP after employees engaged in protect-
ed concerted activity by filing a state court class complaint
which violates Section 8(a)(1) of the Act as alleged in the
Complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. By soliciting employees to sign and maintaining, since
December 2013, a mandatory arbitration policy under which
employees are compelled, as a condition of employment, to
waive the right to maintain class or collective actions in all
forums, whether arbitral or judicial, Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act, and has violated Section
8(a)(1) of the Act.
3. By promulgating the mandatory arbitration policy in De-
cember 2013 at the Company in response to employees’ pro-
tected concerted activity when they filed a state class action
complaint, Respondent violated Section 8(a)(1) of the Act.

14 The General Counsel dismissed this charge, and thus, the issue of
whether the Respondent promulgated the MAP in response to union
activity is not before me.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist there from
and to take certain affirmative action designed to effectuate the
policies of the Act.
As I have concluded that the MAP is unlawful, the recom-
mended Order requires that Respondent revise or rescind it, and
advise its employees in writing that the MAP has been revised
or rescinded. Because Respondent utilized the MAP on a com-
pany-wide basis, Respondent shall post a notice in all locations
where the MAP, or any portion of it requiring all and/or enu-
merated employment-related disputes to be submitted to indi-
vidual arbitration, was in effect. See, e.g., U-Haul of Califor-
nia, supra, fn. 2; D.R. Horton, supra, slip op. at 17; Murphy Oil,
supra, slip op. at 22. Respondent is also ordered to distribute
appropriate remedial notices to its employees electronically,
such as by email, posting on an intranet or internet site, and/or
other appropriate electronic means, if it customarily communi-
cates with its employees by such means. J. Picini Flooring,
356 NLRB 11 (2010).
If applicable, I recommend Respondent be required to reim-
burse the Charging Party and any other plaintiffs for all reason-
able expenses and legal fees, with interest, incurred in opposing
any litigation and related expenses, with interest, to date and in
the future, directly related to any motion to dismiss filed by
Respondent related to the plaintiff’s class action complaint.
See Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731, 747
(1981) (“If a violation is found, the Board may order the em-
ployer to reimburse the employees whom he had wrongfully
sued for their attorney’s fees and other expenses” and “any
other proper relief that would effectuate the policies of the
Act.”). Interest shall be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). See Teamsters Local 776 (Rite Aid), 305
NLRB 832, 835 fn. 10 (1991) (“[I]n make whole orders for
suits maintained in violation of the Act, it is appropriate and
necessary to award interest on litigation expenses.”), enfd. 973
F.2d 230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993).
The Charging Party requests the following additional reme-
dies: (1) rescission of the waivers signed by the employees in
December 2013; (2) reporting to the Department of Labor the
conduct of both Respondent and its counsel to ensure the filing
of specific reports “as the persuader who was paid money ‘to
persuade employees to exercise or not to exercise…their right
to organize’”; (3) reading of the notice to the employees by a
Board agent who can explain the scope and effect of the reme-
dy; and (4) mailing the Board decision to all employees. I shall
not recommend any of these remedies. As stated previously,
the issue of the waivers allegedly signed by the employees is
not within the scope of the complaint, and thus, I will not rec-
ommend the requested remedy. Requiring an owner or high
official of a company or a Board agent, to read aloud the notice
to its assembled employees has not been typically required
except in unusual circumstances. The reading aloud of a notice
is an “extraordinary” remedy, and has been ordered in egre-
gious circumstances. Federated Logistics & Operations, 340
NLRB 255, 256–257 (2003); see also McAllister Towing &
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Transportation Co., 341 NLRB 394, 400 (2004) (ordered rem-
edy included Board agent to read aloud notice to the employees
to “ensure a free and fair rerun election”). In my opinion, the
conduct of Respondent in this case does not warrant the rec-
ommendation of an “extraordinary” remedy. This rationale
also supports my recommendation not to order either of the
other remedies the Charging Party requests. Although Re-
spondent maintains and promulgated an illegal workplace rule,
it has not in any other manner, engaged in conduct designed to
threaten, restrain or coerce its employees. Nor has it been
shown that Respondent has violated the Act previously or that
it will likely violate the Act in the future.
On these findings of fact and conclusions of law and the en-
tire record, I issue the following recommended15
ORDER
The Respondent, Tarlton and Son, Inc., Fresno, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting employees to sign and maintaining a mandato-
ry arbitration policy that requires employees, as a condition of
employment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
(b) Promulgating, in response to employees engaged in class
or collective legal action, a mandatory arbitration policy, as a
condition of employment, that prohibits class or collective ac-
tions in all forums, whether arbitral or judicial.
(c) Enforcing (or attempting to enforce) the mandatory arbi-
tration policy to prohibit class or collective actions.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the mutual arbitration policy and the employee
agreement to arbitrate (collectively, “MAP”) in all of its forms,
or revise it in all of its forms to make clear to employees that
the does not constitute a waiver of their right to maintain em-
ployment-related joint, class, or collective actions in all forums.
(b) Notify all current and former employees who were re-
quired to sign the MAP in any form that the MAP has been
rescinded or revised and, if revised, provide them a copy of the
revised agreement.
(c) Reimburse Munoz and all plaintiffs for all reasonable ex-
penses and legal fees, with interest, if any, incurred in opposing
any litigation and related expenses, with interest, to date and in
the future, directly related to any motion to dismiss filed by
Respondent related to the plaintiff’s class action complaint.
(d) Within 14 days after service by the Region, post at its fa-
cility in Fresno, California, copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
by the Regional Director for Region 32, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondent at any time since December 1,
2013.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. January 27, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT solicit employees to sign and maintaining a
mandatory arbitration policy that requires employees, as a con-
dition of employment, to waive the right to maintain class or
collective actions in all forums, whether arbitral or judicial.
WE WILL NOT promulgate, in response to employees engaged
in class or collective legal action, a mandatory arbitration poli-
cy, as a condition of employment, that prohibits class or collec-
tive actions in all forums, whether arbitral or judicial.
WE WILL NOT enforce the mandatory arbitration policy to
prohibit class or collective actions by asserting it in the class
action complaint filed by Charging Party Munoz and other
plaintiffs against us.
WE WILL NOT in any like or related manner interfere with, re-

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
TARLTON & SON, INC. 17
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the mutual arbitration policy and the em-
ployee agreement to arbitrate (collectively, “MAP”) in all its
forms, or revise it in all its forms to make clear that the MAP
does not constitute a waiver of your right to maintain employ-
ment-related joint, class, or collective actions in all forums.
WE WILL notify all current and former employees who were
required to sign the MAP in any of its forms that the MAP has
been rescinded or revised and, if revised, provide them a copy
of the revised agreement.
WE WILL reimburse Charging Party Munoz and all plaintiffs
for all reasonable expenses and legal fees, with interest, if any,
incurred in opposing any litigation and related expenses, with
interest, to date and in the future, directly related to any motion
to dismiss filed by the Company related to the plaintiff’s class
action complaint.
TARLTON AND SON, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32-CA-119054 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.