UNITEDHEALTHCARE SERVICES, INC. AND UNITEDHEALTH GROUP, INC., AS SINGLE OR JOINT EMPLOYERS

National Labor Relations Board - Board Decisions

Feb 25, 2016

363 NLRB No. 134 (N.L.R.B. 2016)

363 NLRB No. 134
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.
UnitedHealth Group, Inc. and UnitedHealth Care
Services Inc. and Carlos Aviles, Seynabou Ba,
Cherrie Blackman, Siro Brenes, Robert Burnett,
Ruben Dejesus, Dennis Edwards, Victor Felici-
ano, Maria Fonseca, Claudie Foutika, Lisandro
Galvan, Rosa Garcia, Mohamed Haque, Dan-
ielle Herard, Monika Krynska, Tamika Lewis,
Fiordalisa Marte, Setou Mcclendon, Carmelita
Ratna, Victor Serrano, Carmilo Suarez, Janira
Torres, and Mirrian Zelaya. Case 02–CA–
118724
February 25, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On August 5, 2014, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondents filed a reply brief. The General Counsel addi-
tionally filed a cross-exception.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Applying the Board’s decision in D. R. Horton, Inc.,
357 NLRB 2277 (2012), enf. denied in relevant part 737
F.3d 344 (5th Cir. 2013), the judge found that the Re-
spondents violated Section 8(a)(1) of the Act by main-
taining and enforcing an arbitration policy that requires
employees, 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. In Murphy Oil USA, Inc., 361 NLRB No. 72
(2014), enf. denied in relevant part 808 F.3d 1013 (5th
Cir. 2015), the Board reaffirmed the relevant holdings of
D. R. Horton.
The Board has considered the decision and the record
in light of the exceptions and briefs. Based on the
judge’s application of D. R. Horton and our subsequent
decision in Murphy Oil, we affirm the judge’s rulings,
findings, and conclusions1 as modified below, and we

1 The Respondents argue that the complaint’s maintenance allegation
is time-barred by Sec. 10(b) of the Act because the initial unfair labor
practice charge was filed and served more than 6 months after any of
the Charging Parties signed and became subject to the arbitration policy
at issue here. We reject this argument, as did the judge, because the
Respondents continued to maintain the unlawful arbitration policy
during the 6-month period preceding the filing of the initial charge.
The Board has long held under these circumstances that maintenance of
adopt the judge’s recommended Order as modified and
set forth in full below.2
The judge found that the Respondents violated Section
8(a)(1) by enforcing their unlawful arbitration policy in
two lawsuits filed in federal district court: Torres v.
United Healthcare Services, Inc., 920 F.Supp.2d 368
(E.D.N.Y. 2013) (Torres), and Litvinov v. UnitedHealth
Group, Inc., No. 13 Civ. 8541 (KBF), 2014 WL 1054394
(S.D.N.Y. Mar. 11, 2014) (Litvinov). The Respondents
contend that this finding is erroneous because (i) the
complaint did not allege unlawful enforcement, and (ii)
even assuming unlawful enforcement was alleged, the
allegation is time-barred as to Torres. As explained be-
low, we agree that Section 10(b) precludes finding that
the Respondents unlawfully enforced the arbitration poli-
cy in Torres. The Respondents are also correct that the
complaint did not allege an enforcement violation.
Nonetheless, we affirm the judge’s finding that the Re-
spondents unlawfully enforced the arbitration policy in
Litvinov because the enforcement issue is “closely con-
nected to the subject matter of the complaint and has
been fully litigated.”3
In Torres, the Respondents filed a motion to compel
arbitration on June 22, 2012, which the court granted on
February 1, 2013. The plaintiffs appealed, but the Se-
cond Circuit issued an order granting the parties’ stipu-

an unlawful workplace rule, such as the Respondents’ arbitration poli-
cy, constitutes a continuing violation that is not time-barred by Sec.
10(b). See PJ Cheese, Inc., 362 NLRB No. 177, slip op. at 1 (2015);
The Neiman Marcus Group, Inc., 362 NLRB No. 157, slip op. at 2 &
fn. 6 (2015); Cellular Sales of Missouri, LLC, 362 NLRB No. 27, slip
op. at 2 & fn. 7 (2015).
The Respondents argue that their arbitration policy includes an ex-
emption allowing employees to file charges with administrative agen-
cies, including the Board, and thus does not, as in D. R. Horton, unlaw-
fully prohibit them from collectively pursuing litigation of employment
claims in all forums. In support of its argument, the Respondents cite
Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053–1054 (8th Cir. 2013),
in which the court stated, in dicta, that the arbitration agreement there
did not bar all concerted employee activity in pursuit of employment
claims because the agreement permitted employees to file charges with
administrative agencies that could file suit on behalf of a class of em-
ployees. We reject this argument for the reasons set forth in SolarCity
Corp., 363 NLRB No. 83 (2015).
2 The parties stipulated that “any order . . . shall apply equally to Re-
spondents and all of their subsidiaries to which the Arbitration Policy
applies.” The General Counsel cross-excepts to the judge’s failure to
provide that all the Respondents’ subsidiaries to which the arbitration
policy applies are subject to the Order. Consistent with the parties’
stipulation, we grant this unopposed cross-exception.
We shall modify the judge’s recommended Order to conform to our
findings and the Board’s standard remedial language. We shall substi-
tute a new notice to conform to the Order as modified.
3 Pergament United Sales, Inc., 296 NLRB 333, 334 (1989), enfd.
920 F.2d 130 (2d Cir. 1990).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lated withdrawal of the appeal on May 17, 2013.4 The
initial Board charge was filed and served more than 6
months later on December 10, 2013. Thus, the last date
on which enforcement efforts remained pending in
Torres—May 17, 2013—was outside 10(b)’s 6-month
limitations period. Accordingly, we are precluded from
finding that the Respondents unlawfully enforced their
arbitration policy in Torres. Cf. Ross Stores, Inc., 363
NLRB No. 79 (2015) (finding allegation that employer
violated the Act by enforcing its unlawful arbitration
policy timely, where employer filed motion to compel
arbitration outside the 6-month limitations period but
continued to litigate its motion within the 6-month limi-
tations period).
In Litvinov, the Respondents filed a motion to compel
arbitration on February 12, 2014. Again, the charge was
filed December 10, 2013; the complaint issued January
31, 2014.5 Neither the charge nor the complaint alleged
that the Respondents unlawfully enforced their arbitra-
tion policy in Litvinov. Indeed, they could not have so
alleged, given that the filing of the motion to compel
arbitration in Litvinov postdated the charge and com-
plaint. But “[i]t is well settled that the Board may find
and remedy a violation even in the absence of a specified
allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated.” Pergament United Sales, supra; see
also SNE Enterprises, Inc., 347 NLRB 472, 473, 476,
481 (2006) (finding and remedying violation that post-
dated the charge and complaint and thus was alleged in
neither), enfd. 257 Fed. Appx. 642 (4th Cir. 2007). The
complaint alleged that the Respondents have maintained
an unlawful arbitration policy. Further, the enforcement
violation found by the judge flows from, and depends
entirely on, the determination whether the maintenance
of the arbitration policy enforced in Litvinov was unlaw-
ful. Consequently, the unlawful enforcement issue is
closely connected to the complaint’s unlawful mainte-
nance allegation. Moreover, we find the enforcement
issue was fully litigated. The Respondents stipulated that
they filed the motion to dismiss and to compel individual
arbitration in Litvinov pursuant to their arbitration policy.
See SNE Enterprises, 347 NLRB at 473 (unalleged issue
fully litigated where respondent effectively admitted the
dispositive facts). Accordingly, we find that, under
Pergament, the unlawful enforcement issue is properly
before us. As the Act clearly prohibits an employer from

4 Torres v. United Healthcare Services, Inc., Docket No. 13-707 (2d
Cir. May 17, 2013) (available on PACER).
5 An amended charge was filed April 11, 2014, but it did not allege
unlawful enforcement of the Respondents’ arbitration policy. The
General Counsel did not issue an amended complaint.
enforcing an unlawful arbitration policy by filing a mo-
tion to compel arbitration based on that policy, we find
that the Respondents violated Section 8(a)(1) when they
moved to compel arbitration in Litvinov.6 See, e.g.,
Murphy Oil, 361 NLRB No. 72, slip op. at 19–21.

6 As in Murphy Oil, supra, slip op. at 21–22, because Litvinov has
been dismissed, we find it unnecessary to order the Respondents to
remedy this enforcement violation by notifying the court that it no
longer opposes the lawsuit on the basis of its unlawful arbitration poli-
cy. However, consistent with our decision in Murphy Oil, supra, slip
op. at 21, we amend the judge’s remedy and shall order the Respond-
ents to reimburse Maxim Litvinov, Charging Party Tamika Lewis, and
any other plaintiffs who participated in Litvinov for all reasonable ex-
penses and legal fees, with interest, incurred in opposing the Respond-
ents’ unlawful motion in United States District Court to compel indi-
vidual arbitration of their class or collective claims. See Bill Johnson’s
Restaurants, Inc. v. NLRB, 461 NLRB 731, 747 (1983) (“If a violation
is found, the Board may order the employer to reimburse the employees
whom he had wrongfully sued for their attorneys’ fees and other ex-
penses” as well as “any other proper relief that would effectuate the
policies of the Act.”). Interest shall be computed in the manner pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded 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. 873 F.2d 230 (3d Cir. 1992).
Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, 361 NLRB No. 72, slip op. at 22–35, would find that the Re-
spondents’ arbitration policy does not violate Sec. 8(a)(1). He observes
that the Act does not “dictate” any particular procedures for the litiga-
tion of non-NLRA claims, and “creates no substantive right for em-
ployees to insist on class-type treatment” of such claims. This is all
surely correct, as the Board has previously explained in Murphy Oil,
supra, slip op. at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2
& fn. 2. But what our colleague ignores is that the Act “does create a
right to pursue joint, class, or collective claims if and as available,
without the interference of an employer-imposed restraint.” Murphy
Oil, supra, slip op. at 2 (emphasis in original). The Respondents’ arbi-
tration policy is just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the arbitra-
tion policy unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil, supra,
slip op. at 18; Bristol Farms, supra, slip op. at 2. Nor is he correct in
insisting that Sec. 9(a) of the Act requires the Board to permit individu-
al employees to prospectively waive their Sec. 7 right to engage in
concerted legal activity. See Murphy Oil, supra, slip op. at 17–18;
Bristol Farms, supra, slip op. at 2.
We also reject the position of our dissenting colleague that the Re-
spondents’ motions to compel arbitration were protected by the First
Amendment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB,
461 U.S. at 747, the Court identified two situations in which a lawsuit
enjoys no such protection: where the action is beyond a State court’s
jurisdiction because of federal preemption, and where “a suit . . . has an
objective that is illegal under federal law.” 461 U.S. at 737 fn. 5.
Thus, the Board may properly restrain litigation efforts that have the
illegal objective of limiting employees’ Sec. 7 rights and enforcing an
unlawful contractual provision (such as the Respondents’ motion to
compel arbitration in Litvinov), even if the litigation was otherwise
meritorious or reasonable. See Murphy Oil, supra, slip op. at 20–21;
Convergys Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
UNITEDHEALTH GROUP, INC. 3
ORDER
The National Labor Relations Board orders that the
Respondents, UnitedHealth Group, Inc. and UnitedH-
ealth Care Services Inc., New York, New York, their
officers, agents, successors, and assigns, and the Re-
spondents’ subsidiaries to which the UnitedHealth Group
Employment Arbitration Policy applies, shall
1. Cease and desist from
(a) Maintaining and/or enforcing a mandatory arbitra-
tion policy that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the mandatory arbitration policy in all of
its forms, or revise it in all of its forms to make clear to
employees that the arbitration policy does not constitute
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 man-
datory arbitration policy in any form that it has been re-
scinded or revised and, if revised, provide them a copy of
the revised policy.
(c) In the manner set forth in this decision, reimburse
Maxim Litvinov, Tamika Lewis, and any other plaintiffs
for any reasonable attorneys’ fees and litigation expenses
that they may have incurred in opposing the Respond-
ents’ motion to compel individual arbitration and dismiss
the complaint in Litvinov v. UnitedHealth Group, Inc.,
No. 13 Civ. 8541 (KBF), 2014 WL 1054394 (S.D.N.Y.
Mar. 11, 2014).
(d) Within 14 days after service by the Region, post at
their offices nationwide where the arbitration policy is or
has been in effect copies of the attached notice marked
“Appendix.”7 Copies of the notices, on forms provided
by the Regional Director for Region 2, after being signed
by the Respondents’ authorized representative, shall be
posted by the Respondents and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tronic means, if the Respondents customarily communi-
cate with their employees by such means. Reasonable
steps shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondents have gone out of business
or closed the facilities involved in these proceedings, the
Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since June 10, 2013.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondents have
taken to comply.
Dated, Washington, D.C. February 25, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, my colleagues find that the Respondents’
Arbitration Policy (the Policy) violates Section 8(a)(1) of
the National Labor Relations Act (the Act or the NLRA)
because the Policy waives the right to participate in class
or collective actions regarding non-NLRA employment
claims. Employees who had signed the Policy filed two
collective-action lawsuits against the Respondents:
Torres v. United Healthcare Services, Inc., 920
F.Supp.2d 368 (E.D.N.Y. 2013) (Torres), and Litvinov v.
UnitedHealth Group, Inc., No. 13 Civ. 8541 (KBF),
2014 WL 1054394 (S.D.N.Y. Mar. 11, 2014) (Litvinov).
The Respondents filed motions to compel arbitration and
dismiss the complaints in both cases, which the courts
granted. Based on Section 10(b), my colleagues find the
Respondents did not violate Section 8(a)(1) by enforcing
the Policy in Torres. My colleagues also find that alt-
hough the complaint did not allege an enforcement viola-
tion, this issue was closely connected to the complaint’s
maintenance allegation and has been fully litigated. Ac-
cordingly, they find the Respondents did violate Section
8(a)(1) by enforcing the Policy in Litvinov. Even assum-
ing that finding both enforcement violations would be
consistent with Section 10(b) and due process, I dissent
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from my colleagues’ findings that the Respondents’ Poli-
cy and its enforcement in the Litvinov lawsuit was un-
lawful and concur in finding that its enforcement in the
Torres lawsuit was lawful for the reasons explained in
my partial dissenting opinion in Murphy 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 NLRA.2 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”3 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;4 (ii) a class-waiver agreement per-

1 Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in
relevant part 808 F.3d 1013 (5th Cir. 2015).
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
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
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;5 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).6 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.7
Because I believe the Respondents’ Policy was lawful
under the NLRA, I would find it was similarly lawful for
the Respondents to file motions in Federal district court
seeking to enforce the Policy. It is relevant that the dis-
trict courts that had jurisdiction over the non-NLRA
claims granted the Respondents’ motions to compel arbi-
tration. That the Respondents’ motions were reasonably
based is also supported by court decisions that have en-

action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
5 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015); D. R. Horton, Inc. v. NLRB, above. The
overwhelming majority of courts considering the Board’s position have
likewise rejected it. See Murphy Oil, 361 NLRB No. 72, slip op. at 34
(Member Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Mem-
ber Johnson, 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 disagree with the Board’s decisions in Murphy Oil,
above and D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
pertinent part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA
does not render unlawful arbitration agreements that provide for the
waiver of class-type litigation of non-NLRA claims, I find it unneces-
sary to reach whether such agreements should independently be
deemed lawful to the extent they “leave[] open a judicial forum for
class and collective claims,” D. R. Horton, 357 NLRB at 2288, by
permitting the filing of complaints with administrative agencies that, in
turn, may file class- or collective-action lawsuits. See Owen v. Bristol
Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
UNITEDHEALTH GROUP, INC. 5
forced similar agreements.8 As the Fifth Circuit recently
observed after rejecting (for the second time) the Board’s
position regarding the legality of class-waiver agree-
ments: “[I]t is a bit bold for [the Board] to hold that an
employer who followed the reasoning of our D.R. Horton
decision had no basis in fact or law or an ‘illegal objec-
tive’ in doing so. The Board might want to strike a more
respectful balance between its views and those of circuit
courts reviewing its orders.”9 I also believe that any
Board finding of a violation based on the Respondents’
meritorious federal court motions to compel arbitration
would improperly risk infringing on the Respondents’
rights under the First Amendment’s Petition Clause. See
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731
(1983); BE & K Construction Co. v. NLRB, 536 U.S. 516
(2002); see also my partial dissent in Murphy Oil, above,
361 NLRB No. 72, slip op. at 33–35. Finally, for similar
reasons, I believe the Board cannot properly require the
Respondents to reimburse Tamika Lewis and any other
plaintiffs for their attorneys’ fees in the circumstances
presented here. Murphy Oil, above, 361 NLRB No. 72,
slip op. at 35.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. February 25, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

8 See, e.g., Murphy Oil USA v. NLRB, above; Johnmohammadi v.
Bloomingdale’s, Inc., 755 F.3d 1072 (9th Cir. 2014); D. R. Horton v.
NLRB, above; Owen v. Bristol Care, above; Sutherland v. Ernst &
Young LLP, 726 F.3d 290 (2d Cir. 2013).
9 Murphy Oil USA v. NLRB, above at fn. 6.
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain and/or enforce a mandatory arbitra-
tion policy that requires our employees, as a condition of em-
ployment, to waive the right to maintain employment-related
class or collective actions in all forums, whether arbitral or
judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration policy in
all of its forms, or revise it in all of its forms to make
clear that the 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
mandatory arbitration policy in any of its forms that the
arbitration policy has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pol-
icy.
WE WILL reimburse Maxim Litvinov, Tamika Lewis,
and any other plaintiffs in Litvinov v. UnitedHealth
Group, Inc., No. 13 Civ. 8541 (KBF), 2014 WL 1054394
(S.D.N.Y. Mar. 11, 2014), for any reasonable attorneys’
fees and litigation expenses that they may have incurred
in opposing our motion to dismiss their collective lawsuit
and compel individual arbitration.
UNITEDHEALTH GROUP, INC. AND
UNITEDHEALTH CARE SERVICES INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/02-CA-118724 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Julie Polakoski-Rennie, Esq., for the the General Counsel.
Peter A. Walker, Esq., Christopher H. Lowe, Esq., and Lori M.
Meyers, Esq. (Seyfarth Shaw LLP), for the Respondent.
DECISION
RAYMOND P. GREEN, Administrative Law Judge. This case
was presented to me by way of a stipulated record.1 The charge
was filed by Outten & Golden LLP, counsel for the Charging
Parties named above in the caption on December 10, 2013, and
served on December 11, 2013. The amended charge was filed
on April 11, 2014, and served on April 16, 2014. The complaint
was issued by the Regional Director on January 31, 2014.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The Respondents admit and I find that they are employers
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.2
II. THE ALLEGED UNFAIR LABOR PRACTICE
The stipulated facts are as follows:
Since at least September 2007, the Respondents have prom-
ulgated and maintained individual arbitration agreements enti-
tled “UnitedHealth Group Employment Arbitration Policy”
with its current and former employees and the current and for-
mer employees or its subsidiaries. A copy of an exemplar
agreement, at times referred to herein as the Arbitration
Agreement, is attached to the Stipulation as Exhibit G.
In pertinent part, the Arbitration Policy as set forth in Exhibit
G to the Stipulation; this being the document signed by Carlos J
Aviles on April 3, 2012, states:
Statement of Intent
UnitedHealth Group… acknowledges that disagreements may
arise between an individual employee and UnitedHealth
Group or between employees in a context that involves Unit-
edHealth Group. UnitedHealth Group believes that the resolu-
tion of such disagreements is best accomplished through in-
ternal dispute resolution (IDR) and where that fails by arbitra-
tion administered through the American Arbitration Associa-
tion (AAA)….
This policy is a binding contract between UnitedHealth Group
and its employees. Acceptance of employment or continua-
tion of employment with UnitedHealth Group is deemed
to be acceptance of this Policy. However, this Policy is not a
promise that employment will continue for any specified peri-
od of time or end only under certain conditions. Employment
at UnitedHealth Group is a voluntary (at will) relationship ex-

1 By entering into the Stipulation, the parties agreed that the facts
contained therein are true, albeit the parties do not concede the rele-
vance of each fact recited. Each party reserved the right to make objec-
tions to the relevance of any fact stated.
2 The Respondents and the General Counsel reserved their respective
positions as to whether the Respondents and any subsidiaries applying
the UnitedHealth Group Employment Arbitration Policy are or are not
joint employers. They agree that in light of the stipulated record, it is
unnecessary to litigate this issue or make any findings of fact or conclu-
sions of law as to it.
isting for no definite period of time and this Policy does not
change that relationship
Scope of Policy
The agreement between each individual employee and Unit-
edHealth Group to be bound by the Policy creates a contract
requiring both parties to resolve most employment-related
disputes (excluded disputes are listed below) that are based on
a legal claim through final and binding arbitration. Arbitra-
tion is the exclusive forum for the resolution of such disputes
and the parties mutually waive their right to a trial before a
judge or jury in federal or state court in favor of arbitration
under the Policy.
The disputes covered by this Policy include any dispute be-
tween an employee and any other person where (1) the em-
ployee seeks to hold UnitedHealth Group liable on account of
the other person’s conduct, or (2) the other person is also cov-
ered by this Policy and the dispute arises from or relates to
employment, including termination of employment with
UnitedHealth Group. The disputes covered under the Policy
also include any dispute UnitedHealth Group might have with
a current or former employee which arises or relates to em-
ployment.
. . . .
A dispute is based on a legal claim and is subject to this Poli-
cy if it arises from or involves a claim under any federal, state
or local statute, ordinance, regulation or common law doctrine
regarding or relating to employment discrimination, terms and
conditions of employment, or termination of employment in-
cluding, but not limited to the following: Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act, the Americans with Dis-
abilities Act, the Family and Medical Leave Act, the Fair La-
bor Standards Act and all applicable amendments and regula-
tions, state human rights and non-discrimination laws; whis-
tleblower or retaliation claims, breach of contract, promissory
estoppels, or any other contract claim, and defamation, em-
ployment negligence, or any other tort claim. Claims excluded
from arbitration under the Policy are claims for severance
benefits under the UnitedHealth Group Severance Pay Plan,
claims for benefits under UnitedHealth Group other ERISA
benefit plans and claims for benefits under UnitedHealth
Group’s Short-Term Disability Plan. A separate arbitration
policy applies to certain of these benefit-related claims. . . . .3
Any dispute covered by this policy will be arbitrated on an in-
dividual basis. No dispute between an employee and Unit-
edHealth group may be consolidated or joined with a dispute

3 Exh. H to the Stipulation which is entitled “Employment Arbitra-
tion Policy” indicates that its effective date is October 2, 1995. It dif-
fers in some respects from Exh. G which was executed in 2013 by an
employee. Among other things, it excludes from mandatory arbitration
a number of claim types that are not excluded in Exh. G. For example
it excludes from mandatory arbitration, inter alia, claims under Title
VII of the Civil Rights Act of 1964, or any tort related to or arising out
of sexual assault or harassment, false imprisonment claims, negligent
hiring claims and claims arising pursuant to the Dodd-Frank Wall
Street Reform and Consumer Protection Act.
UNITEDHEALTH GROUP, INC. 7
between any other employee and UnitedHealth group, nor
may an individual employee seek to bring his/her dispute on
behalf of other employees as a class or collective action. Any
arbitration ruling by an arbitrator consolidating the disputes of
two or more employees or allowing class or collective action
arbitration would be contrary to the intent of this Policy and
would be subject to immediate judicial review.
This Policy does not preclude an employee from filing a claim
or charge with a governmental administrative agency, such as
the National Labor Relations Board, the Department of Labor,
and the Equal Employment Opportunity Commission, or
from filing a workers’ compensation or unemployment com-
pensation claim in a statutorily specified forum In addition,
this Policy does not preclude either an employee or UnitedH-
ealth Group from seeking emergency or temporary injunctive
relief in a court of law in accordance with applicable law.
However, after the court has issued a ruling concerning the
emergency or temporary injunctive relief, the employee and
UnitedHealth Group are required to submit the dispute to ar-
bitration pursuant to this Policy.
The Policy goes on to describe the procedures relating to the
arbitration process. For example, it permits either side to com-
pel pretrial disclosure in the form of interrogatories, requests
for the production of documents, the taking of depositions, and
the requirement for submission to mental and physical exami-
nations. It also provides for the filing of posthearing briefs.
Thus, in substantial respects, the procedure outlined in the Poli-
cy mimics that of a civil trial held in a Federal or State court.
And unless we are exaggerating the knowledge or skill set of
lawyers, we can assume that having competent legal counsel
would be advisable for any individual who seeks to utilize this
procedure.
As to costs, the Policy basically allows an individual who
files with the AAA to pay only a $25 filing fee. In the event
that the arbitration is initiated by the Employer, the Policy
states that it will pay 100 percent of the administrative fees.4 It
further states (a) that expenses of witnesses for either side shall
be paid by the party requiring the presence of such witness; and
(b) that each side shall pay its own legal fees and expenses,
except where such legal fees and expenses may be awarded
under applicable law. The Policy goes on to state that all other
expenses (except Postponement Fees or Additional Hearing
Fees resulting from the actions or inactions of the employee or

4 If an employee or group of employees files a lawsuit and the em-
ployer seeks to have the lawsuit dismissed and to compel arbitration
under this Policy, does this mean that it is the employer which is initiat-
ing the arbitration?
employee’s representative), of the arbitration, such as required
travel and other expenses of the arbitrator (including any wit-
ness produced at the direction of the arbitrator), and the ex-
penses of a representative of AAA, if any, shall be paid com-
pletely by UnitedHealth Group. It goes on to state that if the
arbitrator finds that either party’s demand for arbitration is
frivolous, or vexatious, or not filed in good faith, he may re-
quire the offending party to reimburse the other party for the
arbitrator’s expenses. Written in a manner perhaps understand-
able by persons having a legal degree, I don’t think that this
section of the Policy actually states or describes who will be
responsible for paying the arbitrator’s fee, typically at about a
$1000 per day. (Expenses are not the same thing as fees.)
I don’t know the wage scales of the employees who are re-
quired to sign this document as a condition of retaining their
jobs, or the wage scales of those individuals who are the Charg-
ing Parties in this case. But, it seems obvious to me that unless
they are highly paid individuals, such as high-level or senior-
level managers, having annual earnings of at least six figures,
the cost structure of the Policy would clearly place employees
at a substantial disadvantage vis-a-vis the company, even as-
suming that such employee would even be able to pay for legal
representation. As such, it is probable that many employees if
they were compelled to arbitrate, on a nonclass basis, their
employment-related claims, including wage and hour claims
under Federal or State statutes, they would find themselves
effectively precluded from vindicating statutory rights through
nongovernmentally initiated legal action.
Nevertheless, considerations of cost or equity may not be a
relevant consideration and in this respect, the Respondents cite
American Express Co. v. Italian Colors Rest., U.S., No. 12-133,
6/20/13, in which the Supreme Court held that a class-action
waiver in a commercial arbitration agreement between Ameri-
can Express Co. and merchants accepting the company’s credit
cards is enforceable under the Federal Arbitration Act even if
individual arbitration claims of alleged antitrust violations
would be too expensive to pursue. The Court’s majority opinion
stated that the Federal Arbitration Act does not permit a court
to invalidate a contractual waiver of class arbitration because a
plaintiff’s costs in individually arbitrating a Federal statutory
claim would exceed any potential recovery.
Since at least September 2007 and currently, the Respond-
ents have required their employees and the employees of their
subsidiaries to enter into the Arbitration Agreements described
above.
The following employees are among those of Respondents
employees who signed the Arbitration Agreement.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Name Hire date Termination date Date Arbitration
Agreement signed
Aviles, Carlos 04/02/12 02/07/13 04/03/12
Ba, Senynabou 01/31/11 06/22/11 02/23/11
Blackman, Cherrie 02/21/11 Active 02/21/11
Brenes, Siro 10/15/07 03/26/11 10/22/07
Burnett, Robert 09/27/10 07/25/13 10/07/10
Dejesus, Reuben 06/07/10 12/16/10 06/08/10
Edwards, Dennis 12/17/12 06/30/13 12/17/12
Feliciano, Victor 11/05/07 10/15/11 11/09/07
Fonseca, Maria 11/29/10 07/20/11 12/20/10
Foutika, Claudie 01/03/11 03/20/12 01/24/11
Galvan, Lisandro 10/17/11 08/09/12 11/11/11
Garcia, Rosa 02/11/13 07/12/13 03/04/13
Hague, Mohamed 01/02/08 05/13/08 01/02/08
Herard, Danielle 02/07/11 07/01/11 02/07/11
Krynska, Monika 04/08/13 11/18/13 04/08/13
Lewis, Tamika 12/17/12 05/19/13 12/17/12
Marte, Fiordalisa 09/24/07 12/17/08 10/02/07
(nee Martinez)
McClendon, Sekou 12/17/12 04/28/13 12/17/12
Ratna, Carmelita 05/21/12 02/02/13 05/31/12
Serrano, Victor 08/17/09 05/29/10 09/09/09
Suarez, Camilo 11/06/12 06/22/13 11/14/12
Torres, Janira 08/03/09 10/27/11 08/22/09
Zelaya, Miriam 04/08/13 Active 04/08/13
There are more than 100,000 current and former employees
of the Respondents and their subsidiaries who have been cov-
ered by the Arbitration Agreement. Since 2011, there have
been approximately 2500 cases which have begun the individu-
al dispute resolution and been resolved both prior to and at
arbitration, including cases involving supervisors and managers
who are not covered by the National Labor Relations Act.
On or about February 1, 2013, the Honorable Dennis R. Hur-
ley issued a Memorandum Decision & Order compelling arbi-
tration in Torres v. United Healthcare Services, Inc., 920
F.Supp.2d 368 (E.D.N.Y. 2013).
On or about December 2, 2013, Maxim Litvinov filed a
class-action complaint in the United States District Court for
the Southern District of New York alleging violations of the
Fair Labor Standards Act (FLSA). This is captioned Maxim
Litvinov, on behalf of himself and all others similarly situated,
against UnitedHealth Group Inc., Case 13-Civ.08541-KBF.
On January 3, 2014, Tamika Lewis, an employee, filed a
written consent with the United States District Court for the
Southern District of New York, to join in the law suit filed by
Litvinov, described above.
On February 12, 2014, UnitedHealth Care Group, Inc. filed a
Motion with the United States District Court for the Southern
District of New York in the above-described matter seeking to
dismiss the claim of Litvinov and the one opt-in plaintiff, Lew-
is, and to compel them to arbitrate their claims individually
pursuant to the terms of the Arbitration Agreement.
On or about March 11, 2014, the Honorable Katherine B.
Forrest issued a Memorandum Decision & Order enforcing the
Arbitration Agreement and compelling arbitration of the Litvi-
nov suit. 2014 WL 1054394 (S.D.N.Y. March 11, 2014).
III. ANALYSIS
It should be kept in mind what is not being decided here.
We are not being asked to decide what would happen if a group
of employees or a single employee on behalf of a group, disa-
vowed the arbitration agreement, asserting that because it has
no finite duration, it is terminable at will by either side. Nor are
we being asked to decide what would happen if employees who
file a class-action lawsuit (or disavow the arbitration agreement
before doing so), are discharged on that account. Could the
employer in such circumstance declare that by filing, or ex-
pressing an intention to file a class-action lawsuit, the employ-
ees involved had breached their employment agreements and
therefore could be discharged without violating Section 8(a)(1)
of the Act?
The Respondents contend that the complaint is barred by the
Statute of Limitations set forth in Section 10(b) of the Act. In
this regard, it is noted that the Policy was initiated more than 6
months before the charge was filed. Also, all of the individual
employees cited in the charge executed arbitration agreements
more than 6 months prior to the filing of the charge.
Nevertheless, the complaint alleges and the Respondents
concede that the arbitration policy is currently in force and
effect. Indeed, the evidence here shows that after the filing of
UNITEDHEALTH GROUP, INC. 9
the charge, and before the issuance of the complaint, the Re-
spondents have successfully sought to enforce the policy by
filing Motions in the Federal District Courts to compel arbitra-
tions on an individual basis.
The complaint essentially alleges a “continuing” violation of
the Act and the Board has consistently held that an agreement
entered into outside the 10(b) period may be found to be unlaw-
ful if the provisions are unlawful and are being enforced within
the 10(b) period. Control Services, Inc., 305 NLRB 435 fn. 2
(1991), enfd. 961 F.2d 1569 (3d Cir. 1992); Teamsters Local
293 (R. L. Lipton Distributing), 311 NLRB 538, 539 (1993);
and Whiting Milk Corp., 145 NLRB 1035, 1037–1038 (1964).
Indeed, the Board has held that even where an employer’s
published rules restricting union or concerted activity, were
enacted and not enforced within the 10(b) period, it will violate
the Act merely by maintaining such rules in existence. The
Carney Hospital, 350 NLRB 627, 640 (2007).
The Respondents assert that the provisions of the Policy are
not illegal because among other things, various Circuit Courts
have ruled that substantially similar provisions are not violative
of the NLRA. This presents a chicken and egg problem be-
cause it is the General Counsel’s position that the provisions of
the Policy are facially illegal and the Respondents’ position is
that they are not. Thus, the two questions are inextricably
linked and if the General Counsel is correct, then the Respond-
ents’ 10(b) defense cannot prevail. But if the Respondents are
correct on the merits, then it need not rely on Section 10(b).
The Respondents argue that because two Federal District
Judges have already concluded that the arbitration agreements
are valid under the Federal Arbitration Act, the Board is collat-
erally estopped from challenging that conclusion in this case. I
don’t agree.
For one thing, the Board was not a party in those cases and
therefore it is not bound by the legal conclusions of those cases.
In Field Bridge Associates, 306 NLRB 322 (1992), the Board
stated:
The Board adheres to the general rule that if the Government
was not a party to the prior private litigation, it is not barred
from litigating an issue involving enforcement of Federal law
which the private plaintiff has litigated unsuccessfully.
Allbritton Communications, 271 NLRB 201, 202 fn. 4. . . .
Underlying this rule is the long-recognized principle that
“Congress has entrusted to the Board exclusively the prosecu-
tion of the proceeding by its own complaint, the conduct of
the hearing, the adjudication and the granting of appropriate
relief. The Board as a public agency acting in the public in-
terest, not any private person or group, not any employee or
group of employees, is chosen as the instrument to assure pro-
tection from the described unfair conduct in order to remove
obstructions to interstate commerce.” Amalgamated Utility
Workers v. Consolidated Edison Co., 309 U.S. 261, 265
(1940). See also National Licorice Co., v. NLRB, 309 U.S.
362–3364 (1940). . . . Thus the Board, as a public agency as-
serting public rights should not be collaterally estopped by the
resolution of private claims asserted by private parties. . . . In
this case, the Board was not a party to the New York State
Court proceedings. Accordingly, we decline to give them a
preclusive effect.
The Respondents assert that Board could have been a party
to the private actions filed by Litvinov and Torres and therefore
should be estopped. It is legally possible for the Board, through
its General Counsel, to intervene in a lawsuit having been filed
in a State or Federal court of first impression. But that has oc-
curred in exceptionally few instances and only in the most
compelling of circumstances. There is nothing in the Statute
which would require the Board to intervene in any private law
suit which could impact on issues covered by the NLRA.
The Respondents contend that by trying to prevent them
from seeking judicial enforcement of the arbitration and
nonclass action agreements, the Board is violating the Re-
spondents’ First Amendment rights to petition to the Govern-
ment. In this regard, the Respondents cite Bill Johnson’s Res-
taurants, Inc. v. NLRB, 461 U.S. 731–743 (1983), and BE & K
Construction Co. v. NLRB, 536 U.S. 516 (2002).5
The immediate question before the Supreme Court in BE &
K was whether an unsuccessfully completed lawsuit could be
the basis for the Board to find that an employer violated 8(a)(1)
of the Act. In BE & K, the employer responded to a union’s
campaign and lawsuits against it by filing a lawsuit of its own.
Ultimately, all of the counts in the employer’s lawsuit were
dismissed or withdrawn. After the BE & K’s suit was conclud-
ed, two of the union-defendants filed charges with the NLRB
contending that by filing and maintaining the lawsuit, BE & K
had violated Section 8(a)(1). The Board found that the employ-
er had violated the Act and ordered it to reimburse the unions
for their attorney fees.
The Supreme Court unanimously invalidated the Board’s
standard for imposing unfair labor practice liability on employ-
ers who file lawsuits against unions. It concluded that even if a
lawsuit was motivated by retaliatory reasons and even if it was
ultimately unsuccessful, a lawsuit could not be grounds for an
unfair labor practice if it had some reasonable basis. That is, the
Court indicated that in order to have a reasonable basis, the
plaintiff in such a lawsuit needs to only show that he is trying to
stop conduct he reasonably believes is illegal. The standard set
out by the Court was that the plaintiff’s belief be “genuine both
objectively and subjectively.” The only possible exception is a
lawsuit that is shown to constitute “sham litigation.”6
Notwithstanding the above, the Supreme Court at footnote 5
in Bill Johnson, made what it described as an exception to the
above-described rule.7 The Court stated:

5 Somewhat ironically, the Respondent’s main point is that through
private agreements, it should be allowed to require employees to forego
their right to petition the courts.
6 This concise description of the Court’s decision may be a bit abrupt
inasmuch as there were three separate opinions by the Court. Justice
O’Connor wrote the opinion of the Court. Justice Breyer wrote a con-
currence on behalf of himself and Justices Souter, Ginsberg, and Ste-
vens. Justice Scalia wrote a concurrence on behalf of himself and Jus-
tice Thomas.
7 There is no indication in BE & K that the Court intended to over-
rule or eliminate the Bill Johnson fn. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
It should be kept in mind that what is involved here is an em-
ployer’s lawsuit that the federal law would not bar except for
its allegedly retaliatory motivation. We are not dealing with a
suit that is claimed to be beyond the jurisdiction of the state
courts because of federal-law preemption, or a suit that has an
objective that is illegal under federal law. Petitioner concedes
that the Board may enjoin these latter types of suits. . . . Nor
could it be successfully argued otherwise for we have upheld
Board orders enjoining unions from prosecuting court suits
for enforcement of fines that could not lawfully be imposed
under the Act, Granite State Joint Board, Textile Workers Un-
ion, 187 NLRB 636, 637, enforcement denied 446 F.2d 369,
revd. 409 U.S. 213; Booster Lodge No. 405 185 NLRB 380,
385, enforced 459 F.2d 1143, affd. 412 U.S. 84, and this
Court has concluded that, at the Board’s request, a District
Court may enjoin enforcement of a state-court injunction
“where [the Board’s] federal power pre-empts the field.”
NLRB v Nash-Finch Co., 404 U.S. 138, 144.8
So how should we read footnote 5?
There is a category of cases where an employer, by means of
a lawsuit, has directly sought to prevent employees from having
access to the Board’s processes. In such cases, it is typically
alleged that a person or persons have maliciously filed charges
with the NLRB or have furnished false statements or affidavits
to the agency. Such lawsuits are almost always without merit
and should be preempted by the supremacy clause of the Con-
stitution. While such suits would typically be baseless and
motivated by retaliatory considerations, their mere filing would
reasonably be expected to have a chilling effect on the right of
people to have access to the Board’s processes.9 In other
words, such a lawsuit is a direct attempt to prevent the Board
from carrying out its statutory mandate and can be viewed as an
attempt by a private party to nullify the Board’s jurisdiction
insofar as it affects that party. See for example LP Enterprises,
314 NLRB 580 (1994), and Manno Electric, Inc., 321 NLRB
278 (1996).
There is another category of cases which, in my opinion,
would fit within the footnote 5 exception. These involve cases
where the underlying acts constitute unfair labor practices and
the lawsuit is simply an attempt to enforce the underlying act.
The cases cited by the Supreme Court in footnote 5, involved
situations where a union was alleged to have violated Section
8(b)(1)(A) of the Act by fining employee/members and the
lawsuits were simply the mechanism to enforce and collect the
fines. Along equivalent lines there are cases where a union is
charged with violating Section 8(b)(4) and (e) of the Act when

8 In NLRB v Nash-Finch Co., 404 U.S. 138 (1971), the Supreme
Court held that the NLRB has implied authority to obtain a Federal
court injunction to enjoin enforcement of a State court injunction regu-
lating peaceful picketing by a union on preemption grounds.
9 Consider the time, expense, and anxiety of defending even a frivo-
lous lawsuit that is ultimately dismissed by a judge before a trial. One
must file an answer; file and respond to pretrial motions; answer inter-
rogatories; produce documents; and give testimony under oath in pre-
trial depositions. When one considers the scope of the pretrial ques-
tions that may be posed in a civil suit, one can see that being a defend-
ant in a civil action is no small matter.
it seeks to enforce a contract provision that is itself illegal under
the hot cargo provisions of the Act. In such cases, as the under-
lying contract is either facially illegal or would be illegal as
enforced, a lawsuit or grievance seeking to enforce such an
illegal contract provision would itself be illegal under the foot-
note 5 exception of Bill Johnson’s. Thus, in Elevator Con-
structors (Long Elevator), 289 NLRB 1095, (1988), the Board
held that a union violated Section 8(b)(4)(ii)(A) by filing a
grievance that was predicated upon a reading of the collective-
bargaining agreement that, if successful, would have resulted in
a de facto hot cargo clause. That is, had the grievance been
successful and had it been enforced by a court, the order issued
would have been one that was a violation of Section 8(e). The
Board stated:
Because we have concluded that the contract clause as con-
strued by the Respondent would violate Section 8(e), we may
properly find the pursuit of the grievance coercive, notwith-
standing the Supreme Court’s decision in Bill Johnson’s Res-
taurant v. NLRB, 461 U.S. 731 (1983). Although holding that
the Board could not enjoin, as an unfair labor practice, the
lawsuit at issue in that case, the Court expressly noted that it
was not dealing with a “suit that has an objective that is illegal
under federal law.” 461 U.S. at 737 fn. 5. See also Teamsters
Local 705 v. NLRB (Emery Air Freight), 820 F.2d 448 (D.C.
Cir. 1987) (distinguishing between having an unlawful motive
in bringing a lawsuit and seeking to enforce an unlawful con-
tract provision).
Finally, there are cases involving an attempt by an employer,
via a lawsuit, to prohibit peaceful picketing or solicitation.
Three cases discussing this type of situation are Makro, Inc.
and Renaissance PropertiesCo., d/b/a Loehmann’s Plaza, 305
NLRB 663 (1991), Riesbeck Food Markets, Inc., 315 NLRB
940 (1994), enfd. denied 91 F.3d 132 (4th Cir. 1996), and Be-
Lo Stores, 318 NLRB 1, 12 (1995), enfd. denied 126 F.3d 268
(4th Cir. 1997).
In Loehmann’s Plaza, supra, the Board dealt with two related
issues. The first was whether the respondent’s demands that
union representatives cease engaging in area standards picket-
ing and handbilling on private property in front of entrances of
the target employer at a shopping mall, was a violation of Sec-
tion 8(a)(1). In finding a violation, the Board applied the bal-
ancing test of Jean Country, 291 NLRB 11 (1988), and con-
cluded that although the area standards picketing and
handbilling was not at the strong end of Section 7 rights, it was
worthy of accommodation. In that case, the Board found that
the union’s alternative means of communicating its message
was not reasonable.
The second issue in Loehmann’s Plaza, was whether the re-
spondent violated Section 8(a)(1) by filing a State court lawsuit
seeking injunctive relief. The General Counsel contended that
the filing of the lawsuit was an unfair labor practice because
under footnote 5 of Bill Johnson’s, the lawsuit was a preempted
case and therefore excluded from the general principles of Bill
Johnson’s. After discussing the Supreme Court’s decisions in
Sears, Roebuck & Co. v. San Diego County District Council of
Carpenters, 436 U.S. 180 (1978), and International Long-
shoremen’s Assn., AFL–CIO v. Davis, 476 U.S. 380 (1986)
UNITEDHEALTH GROUP, INC. 11
(both dealing with the issue of preemption and peaceful picket-
ing), the Board concluded that unless and until the NLRB’s
General Counsel issues a complaint alleging as an unfair labor
practice, the filing of a lawsuit seeking a remedy against peace-
ful picketing, that lawsuit cannot be considered to be preempted
within the meaning of footnote 5 and therefore the complaint
should be dismissed unless the General Counsel can show that
the lawsuit was baseless and motivated by retaliatory reasons.
(That is, the complaint must be evaluated under the general Bill
Johnson’s standards and not the footnote 5 exceptions.) On the
other hand, the Board also concluded that once the General
Counsel issues a complaint alleging that the lawsuit is an unfair
labor practice, the respondent will violate the Act by continuing
to prosecute the lawsuit, because it is now on notice that the
subject matter of the lawsuit is preempted. The Board stated:
A different analysis is warranted with respect to the Respond-
ent’s post-complaint pursuit of the state court lawsuit. The
Respondent’s prosecution of the suit during that time period
need not be evaluated under Bill Johnson’s because the suit
was preempted and thus fell within the footnote 5 exception to
the Court’s decision. For the reasons stated below, we find
that there is a sound basis for applying a different rule to a
preempted lawsuit alleged to violate Section 8(a)(1) of the
Act.
As illustrated by that case, a respondent pursuing a State
court action seeking to enjoin alleged trespassatory union pick-
eting has a right, without being initially preempted, to seek
adjudication of its property rights. However, once the General
Counsel decides to initiate a formal adjudicatory proceeding,
the Board’s jurisdiction is invoked and it becomes the exclusive
forum for an adjudication of a respondent’s property rights.
Because at that point the State court tribunal “has no power to
adjudicate the [preempted] subject matter,” any attempt to con-
tinue the litigation necessarily amounts to pure harassment, i.e.,
an effort to subject the defendant or defendants in the lawsuit to
litigation costs and burdens before a tribunal that indisputably
lacks jurisdiction over the matter at that time. (Footnotes omit-
ted.)
In Riesbeck Food Markets, 315 NLRB 940 (1994), enfd. de-
nied 91 F.3d 132 (4th Cir. 1996), the Board dealt with a situa-
tion similar to that in Loehmann’s Plaza and which involved,
inter alia, allegations that the respondent violated Section
8(a)(1) by (1) denying access to private property by union pick-
ets and handbillers, and (2) prosecuting a State lawsuit seeking
to limit peaceful picketing and handbilling activity to public
property. In that case, a Board majority concluded that where a
lawsuit involves a matter which is preempted, the respondent
“has an affirmative duty to take action to stay the state court
proceedings following issuance of the Board complaint.”
In Be-Lo Stores, 318 NLRB 1, 12 (1995), the Board found,
among other things, that the respondent violated the Act by
denying union nonemployee picketers access to private proper-
ty in order to engage in solicitation and also violated the Act by
maintaining a state trespass lawsuit after the General Counsel
issued a complaint alleging that the denial of access was unlaw-
ful. Citing Loehmann’s Plaza, the Board found that the contin-
uation of the lawsuit, after the complaint was issued violated
Section 8(a)(1) and ordered the respondent to reimburse the
union for litigation expenses incurred in the State Court pro-
ceeding. On appeal, the court refused to enforce this aspect of
the Board’s Order. Be-Lo Stores v. NLRB, 126 F.3d 268 (4th
Cir. 1997). In this regard, the court held that the respondent did
not violate Section 8(a)(1) by denying access for solicitation
and picketing and therefore the lawsuit seeking an injunction
could not violate the Act.
It seems to me that the bottom line in all of this is that if the
arbitration agreements that the Respondents have required em-
ployees to execute are illegal on their face, then an attempt to
enforce those agreements through legal proceedings, would be
a violation of Section 8(a)(1) of the Act and would fit into the
footnote 5 exception in Bill Johnson’s. And like the discussion
of Section 10(b), we have the same chicken and egg problem.
If the agreements are lawful, then a lawsuit to enforce them
would be lawful. But if the agreements are ultimately construed
to be unlawful, then a lawsuit to enforce them would not be
protected by the Supreme Court decisions in Bill Johnson’s and
BE & K.
The General Counsel argues that the present case is con-
trolled by the Board’s decision in D. R. Horton Inc., 357 NLRB
2277 (2012), enf. denied 737 F.3d 344 (5th Cir. 2013). And if
it was decided at a time when there was a proper quorum, then
the General Counsel would be correct because notwithstanding
contrary Circuit Court decisions, I am bound to follow the
Board’s view of the law until such time as it either changes its
collective mind or is compelled to alter its view in light of a
contrary decision by the Supreme Court. Pathmark Stores,
Inc., 342 NLRB 378 fn. 1 (2004); Waco Inc., 273 NLRB 746,
749 fn. 14 (1984).
With respect to D. R. Horton, the Respondents assert that the
decision in that case was issued on January 3, 2012, and that
pursuant to the rationale in the Supreme Court’s decision in
NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), there were only
two validly appointed members of the Board and therefore
there was no quorum as required in New Process Steel, L.P. v.
NLRB, 560 U.S. 674 (2010). Specifically, it is argued that
Member Becker’s appointment to the Board had expired by that
date.
In Noel Canning, supra, the Court’s actual finding was that
appointments made during a 3-day period beginning on January
4, 2012, were unconstitutional. That decision did not purport to
decide the validity of the Board’s composition at any time prior
to that date and therefore it did not directly affect the composi-
tion of the Board at the time that the decision in D. R. Horton
was issued; January 3, 2012.
It seems that the Respondents are not seriously challenging
the initial appointment of Member Becker which was made on
March 27, 2010, during an intracession recess during the Se-
cond Session of the 111th Congress, occurring from March 26
to April 12, 2010. What they are asserting is that this appoint-
ment would have expired at the end of the First Session of the
112th Congress on December 30, 2011. They argue that on
December 30, the Senate adjourned until the Second Session of
the 112th Congress was to reconvene at noon on January 3,
2012. In this regard, the Respondents cite Article II, Section 2
of the Constitution to the affect that, “the President shall have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
the power to fill up all vacancies that may happen during the
recess of the Senate, by granting commissions which shall ex-
pire at the end of their next session.” The question, as I see it,
is how we define the words, “next session.”
It seems to me that this is an issue that the Board and any re-
viewing courts will have to deal with, irrespective of my opin-
ion as to the merits of this argument. Read literally, as a term
of art, the constitutional provision could mean that Becker’s
term should have expired at the end of December 2011 and
before the Board issued its decision in D. R. Horton. But read
in more colloquial terms, it could be interpreted that the Sen-
ate’s action by convening “pro forma sessions” during a hiatus,
was in reality, extending the existing session so that Becker’s
term never actually expired.
However, interpreted, I think that even if not construed as
binding precedent, the Board, with its current composition is
likely to reaffirm the D. R. Horton decision. I therefore think
that I should give it substantial if not controlling deference.
This brings us finally to the decision in D. R. Horton and the
respective arguments as to whether the provisions of the Feder-
al Arbitration Act trump the provisions of the NLRA insofar as
allowing enforceable agreements whereby employees as a con-
dition of continued employment, are required to waive certain
rights to take collective actions. In this case, to file class action
lawsuits relating to their wages and hours pursuant to yet an-
other statute; the Fair Labor Standards Act.
Without weighing in on the arguments for or against the
Board’s decision in D. R. Horton, I nevertheless think that the
Board’s rationale is reasonable and likely to be reaffirmed.
(What the Circuit Courts do is another matter.) Therefore, I am
going to conclude that by maintaining its arbitration policy and
by enforcing arbitration agreements through court proceedings,
the Respondents have interfered with the rights of employees to
engage in collective actions for their mutual aid and protection
and that the Respondents have therefore violated Section
8(a)(1) of the Act.
REMEDY
As I concluded that the Respondents have unlawfully main-
tained an Arbitration Policy that precludes class or collective
actions by employees, I shall recommend that they be ordered
to rescind or revise that policy to make it clear to employees
that the Policy and agreements made pursuant to the Policy do
not constitute a waiver in all forums of their rights to maintain
class or collective actions relating to their wages, hours, or
other terms and conditions of employment. I shall also recom-
mend that the Respondents be required to notify its employees
of the rescinded or revised Policy.
Because the Arbitration Policy has been and continues to be
maintained throughout the United States, it recommended that
the Respondents be ordered to post the attached notice at all
locations where the Policy has been or is still in effect.
To the extent that the Charging Parties have incurred litiga-
tion expenses relating to the Respondents’ Motions to dismiss
the class actions and to compel arbitration under those agree-
ments made in conformance with the Arbitration Policy, it is
recommended that the Respondents reimburse the Charging
Parties for such expenses with interest as determined in Ken-
tucky River Medical Center, 356 NLRB 6 (2010), enf. denied
on other grounds sub nom. Jackson Hospital Corp. v. NLRB,
647 F.3d 1137 (D.C. Cir. 2011).
Additionally, it is recommended that the Respondents be re-
quired to file Motions with the United States District Court in
Litvinov v. UnitedHealth Care Group Inc., and Torres v. United
Healthcare Services Inc., requesting the withdrawal of their
motions to dismiss those actions and to compel arbitration of
the claims made in those lawsuits.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondents, UnitedHealth Group, Inc. and UnitedH-
ealth Care Services Inc., New York, New York, their officers,
agents, successor, and assigns, shall
1. Cease and Desist from
(a) Maintaining or enforcing the “UnitedHealth Group Em-
ployment Arbitration Policy” and any agreements made with
employees pursuant to that Policy that waives the right to main-
tain class or collective action.
(b) Enforcing such agreements by filing Motions in Court to
dismiss or stay collective action lawsuits and to compel indi-
vidual arbitration, pursuant to the terms of such agreements.
(c) Requiring employees to sign binding arbitration agree-
ments that prohibit collective or class litigation.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise the Arbitration Policy that requires em-
ployees to waive their right to maintain employment-related
class and collective claims in all forums, whether arbitral or
judicial.
(b) Withdraw any pending motions for individual arbitration
in which Respondents seek enforcement of the Arbitration Pol-
icy’s unlawful restriction on class or collective claims; or if
such motions have already been granted, move the appropriate
court to vacate any orders for individual arbitration and reim-
burse employees for any litigation expenses including attor-
ney’s fees, directly related to opposing Respondents’ motions
to compel individual arbitration.
(c) Within 14 days after service by the Region, post at its lo-
cations nationwide where the Arbitration Policy has been
promulgated, maintained or enforced copies of the attached
notice marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 2 after being

10 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.
11 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.”
UNITEDHEALTH GROUP, INC. 13
signed by the Respondents’ authorized representative, shall be
posted by the Respondents and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to the physical
posting of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or internet
site, and/or other electronic means, if the Respondents custom-
arily communicates with its employees by such means. Reason-
able steps shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In addition, a copy of this notice will be made available to
employees on the same basis and to the same group or class of
employees as the Arbitration Policy was made available to
them. In the event that, during the pendency of these proceed-
ings, the Respondents have gone out of business or closed the
facility involved in these proceedings, the Respondents shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondents at any time since July 10, 2012.
(d) 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
Respondents has taken to comply.
Dated, Washington, D.C. August 5, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT maintain or enforce the “UnitedHealth Group
Employment Arbitration Policy” and any agreements made
with employees pursuant to that Policy that waives the right to
maintain class or collective action.
WE WILL NOT pursuant to the terms of such agreements en-
force them by filing Motions in Court to dismiss or stay collec-
tive action lawsuits and to compel individual arbitration.
WE WILL NOT require employees to sign binding arbitration
agreements that prohibit collective and class litigation.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of their rights under
Section 7 of the Act.
WE WILL withdraw any pending motions for individual arbi-
tration in which the Respondents seek to enforce the Arbitration
Policy’s unlawful restriction on class or collective claims; or if
such motions have already been granted, move the appropriate
court to vacate any orders for individual arbitration.
WE WILL reimburse employees for any litigation expenses in-
cluding attorney’s fees, directly related to opposing Respond-
ents’ motions to compel individual arbitration.
UNITEDHEALTH GROUP, INC. AND UNITEDHEALTH
CARE SERVICES INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-118724 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.