Adecco USA, Inc.

National Labor Relations Board - Board Decisions

May 24, 2016

364 NLRB No. 9 (N.L.R.B. 2016)

364 NLRB No. 9
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.
Adecco USA, Inc. and Rajan Nanavati. Case 32–CA–
142303
May 24, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations of the complaint, and
that the Board should find, as a matter of law, that the
Respondent violated Section 8(a)(1) of the Act by prom-
ulgating, maintaining, and enforcing an agreement that
prohibits its employees from participating in collective or
class litigation in all forums, and that employees reason-
ably would believe bars or restricts their right to file un-
fair labor practice charges with the Board.
Pursuant to a charge filed by Rajan Nanavati on De-
cember 5, 2014, the General Counsel issued the com-
plaint on May 29, 2015. The complaint alleges that since
at least June 5, 2014, the Respondent has promulgated
and maintained the Dispute Resolution and Arbitration
Agreement for Consultants/Associates (the “Agree-
ment”), and required its employees, at its San Bruno,
California facility and nationwide, to execute the Agree-
ment as a condition of employment. The complaint fur-
ther alleges that the Agreement requires that the Re-
spondent’s employees bring all disputes arising out of or
related to their employment to individual binding arbitra-
tion.
The relevant portion of the Agreement reads as fol-
lows:
1. [T]he Company and Employee agree that any and
all disputes, claims or controversies arising out of or re-
lating to this Agreement, the employment relationship
between the parties, or the termination of the employ-
ment relationship, shall be resolved by binding arbitra-
tion . . .
BY SIGNING THIS AGREEMENT, THE PARTIES
HEREBY WAIVE THEIR RIGHT TO HAVE ANY
DISPUTE, CLAIM OR CONTROVERSY DECIDED
BY JUDGE OR JURY IN A COURT . . .
4. Regardless of any other terms of this Dispute Reso-
lution Agreement, claims may be brought before an
administrative agency if applicable law permits access
to such an agency notwithstanding the existence of an
agreement to arbitrate. Such administrative claims may
include without limitation claims or charges brought
before the Equal Employment Opportunity Commis-
sion, the U.S. Department of Labor, the National Labor
Relations Board, or the Office of Federal Contract
Compliance Programs. Nothing in this Dispute Resolu-
tion Agreement shall be deemed to preclude or excuse
a party from bringing an administrative claim before
any agency in order to fulfill the party’s obligation to
exhaust administrative remedies before making a claim
in arbitration.
5. Although Employee will not be retaliated against,
disciplined or threatened with discipline as a result of
his or her exercising his or her rights under Section 7 of
the National Labor Relations Act by the filing of or
participation in a class, collective or representative ac-
tion in any forum, the Company may lawfully seek en-
forcement of this Dispute Resolution Agreement in-
cluding the following class, collective and/or repre-
sentative action waivers under the Federal Arbitration
Act and seek dismissal of such class, collective or rep-
resentative actions or claims.
7. BY SIGNING THIS AGREEMENT, THE
PARTIES AGREE THAT EACH MAY BRING
CLAIMS AGAINST THE OTHER ONLY IN THEIR
INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS AND/OR COLLECTIVE
PROCEEDING.
8. FURTHERMORE, BY SIGNING THIS
AGREEMENT, THE PARTIES AGREE THAT
EACH MAY BRING CLAIMS AGAINST THE
OTHER IN THEIR INDIVIDUAL CAPACITY AND
NOT IN ANY REPRESENTATIVE PROCEEDING
UNDER ANY PRIVATE ATTORNEY GENERAL
STATUTE (“PAGA CLAIM”), UNLESS
APPLICABLE LAW REQUIRES OTHERWISE . . .
The complaint alleges that, by promulgating and maintain-
ing the Agreement, the Respondent interfered with employ-
ees’ Section 7 rights to engage in collective legal activity, by
binding employees, including the Charging Party, to an
irrevocable waiver of their rights to participate in collective,
class, and private attorney general litigation.
The complaint additionally alleges that the Respondent
violated the Act when it sought to enforce this Agree-
ment on November 21, 2014,1 by filing a motion to com-

1 Although the complaint alleges that the Respondent sought en-
forcement of the Agreement on September 15, 2014, the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
pel individual arbitration in a wage and hour class action
lawsuit, which included a concerted representative claim
under the California Private Attorneys General Act, filed
by Charging Party Nanavati in California Superior
Court.2
Finally, the complaint alleges that the Agreement con-
tains language that employees would reasonably under-
stand as prohibiting or restricting their right to file unfair
labor practice charges with the Board.
On June 12, 2015, the Respondent filed an answer ad-
mitting all of the factual allegations in the complaint but
denying the legal conclusions and asserting certain af-
firmative defenses.
On August 3, 2015, the General Counsel filed a Mo-
tion to Transfer Case to the Board and for Summary
Judgment. On August 24, 2015, the Board issued an or-
der transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted.
On September 8, 2015, the General Counsel filed a re-
sponse and the Respondent filed a response and cross-
motion for summary judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
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 in D.
R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), and found
unlawful the maintenance and enforcement of a mandato-
ry arbitration agreement requiring employees to waive
the right to commence or participate in class or collective
actions in all forums, whether arbitral or judicial. As
stated, the Respondent’s answer admits all of the factual
allegations in the complaint. Specifically, the Respond-
ent’s answer admits that it required its current and former
employees at its San Bruno facility and nationwide to
execute the Agreement as a condition of employment and
that the Agreement expressly requires that all employ-
ment-based claims be resolved through individual, bind-
ing arbitration. The Respondent’s answer further admits
that it sought to enforce the Agreement by filing a mo-
tion to compel individual arbitration in Rajan Nanavati,
et al. v. Adecco USA, Inc., in order to require individual

subsequently clarified to the General Counsel by email dated June 23,
2015, that it filed its motion to compel arbitration on November 21,
2014. Thus, the date of the filing is not in dispute.
2 The Respondent filed its motion in the United States District Court
for the Northern District of California. Rajan Nanavati, et al. v. Adecco
USA, Inc., Case No. 5:14–CV–04145–BLF (United States District
Court, Northern District of California). That court granted the Re-
spondent’s motion on April 13, 2015.
arbitrations of the class action wage and hour claims.
We therefore find that there are no material issues of
fact; nor has the Respondent raised any other issues war-
ranting a hearing.
The Respondent contends in its answer that the unfair
labor practices alleged in the complaint are barred by the
6-month statute of limitations set forth in Section 10(b)
of the Act. As to the allegations that the Respondent
unlawfully maintained and enforced the Agreement, we
find no merit to this contention. It is well settled that
regardless of when an unlawful rule was first promulgat-
ed, the Board will find a violation where the rule was
maintained or enforced during the 6-month period prior
to the filing of a charge. See, e.g., PJ Cheese, Inc., 362
NLRB No. 177, slip op. at 1 (2015); Neiman Marcus
Group, 362 NLRB No. 157, slip op. at 2 fn. 6 (2015);
Cellular Sales of Missouri, 362 NLRB No. 27, slip op. at
1 (2015). Here, the Agreement was in effect at all rele-
vant times, and the Respondent filed its motion to en-
force the Agreement 2 weeks before the unfair labor
practice charge was filed. Accordingly, we reject the
Respondent’s 10(b) affirmative defense as to the mainte-
nance and enforcement allegations.
We reach a contrary finding, however, as to the
‘promulgation’ allegation. Notwithstanding that the Re-
spondent admitted that it has promulgated the Agreement
since at least June 5, 2014 (within the 10(b) period), the
General Counsel’s Motion for Summary Judgment
makes clear that the Agreement was promulgated well
outside the 10(b) period. As shown by Exhibit A to the
General Counsel’s motion, Nanavati himself signed the
Agreement on January 21, 2014. Accordingly, we find
merit to the Respondent’s 10(b) defense in this respect
and shall dismiss the unlawful promulgation allegation.
Next, the Respondent argues that D. R. Horton, Inc.
and Murphy Oil USA, Inc. were wrongly decided when
finding that similar mandatory arbitration provisions vio-
lated Section 8(a)(1). We disagree. Accordingly, we
apply D. R. Horton and Murphy Oil USA here, and find
that the Respondent violated Section 8(a)(1) by maintain-
ing the Agreement. The Agreement expressly requires
employees to bring all employment-related claims to
individual arbitration and to waive – in any forum – their
right to pursue claims on a class, collective, or private
attorney general basis.
The Respondent also contends that the opt-out provi-
sion of its Agreement places it outside the scope of the
prohibition against mandatory individual arbitration
agreements under Murphy Oil and D. R. Horton, Inc.
See D. R. Horton, slip op. at 13 fn. 28. Specifically, the
opt-out provision states that:
ADECCO USA, INC. 3
Within 30 days of signing this Agreement, Employee
may submit a form stating that Employee wishes to opt
out and not be subject to the Dispute Resolution
Agreement . . . An Employee who opts out as provided
in this paragraph will not be subject to any adverse em-
ployment action as a consequence of that decision and
may pursue available legal remedies without regard to
the Dispute Resolution Agreement. Should Employee
not opt out of the Dispute Resolution Agreement in a
timely manner, Employee and the Company will be
deemed to have mutually accepted the terms of the
Dispute Resolution Agreement.
The Board has rejected this argument, holding that an
opt-out procedure still imposes an unlawful mandatory
condition of employment that falls squarely within the
rule of D. R. Horton and affirmed in Murphy Oil. See
On Assignment Staffing Services, 362 NLRB No. 189,
slip op. at 1, 4–5 (2015). The Board further held in On
Assignment Staffing Services, slip op. at 1, 5–8, that even
assuming that an opt-out provision renders an arbitration
agreement not a condition of employment (or non-
mandatory), an agreement precluding collective action in
all forums is unlawful even if entered into voluntarily
because it requires employees to prospectively waive
their Section 7 right to engage in concerted activity. See
also Nijjar Realty, Inc. d/b/a Pama Management, 363
NLRB No. 38 (2015).3
Additionally, we find that the Respondent unlawfully
sought to enforce the Agreement. In Murphy Oil, the
Board found that the employer’s motion to dismiss a
collective FLSA action in Federal district court, and to

3 Our dissenting colleague, relying on his dissenting position in
Murphy Oil, 361 NLRB No. 72, slip op. at 22–35 (2014), would find
that the Respondent’s Dispute Resolution and Arbitration Agreement
does not violate Sec. 8(a)(1), especially because the Agreement con-
tains an opt-out provision. He observes that the Act “creates no sub-
stantive right for employees to insist on class-type treatment” of such
claims. This is 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 available, without the interference of an employer-imposed
restraint.” Murphy Oil, above, slip op. at 2 (emphasis in original). The
Respondent’s Agreement is just such an unlawful restraint even consid-
ering its opt-out provision. See On Assignment Staffing Services, 362
NLRB No. 189, slip op. at 4, 8–9 & fns. 28, 29, and 31 (2015).
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
Agreement unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 2. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
compel individual arbitration pursuant to its mandatory
arbitration agreement, violated Section 8(a)(1) because
that enforcement action unlawfully restricted employees’
exercise of Section 7 rights. 361 NLRB No. 72 slip op.
at 19. As in Murphy Oil, the Respondent unlawfully
enforced its arbitration agreement when it petitioned the
United States District Court for the Northern District of
California to compel employees to arbitrate their claims
individually.4
Finally, we find that the Agreement independently vio-
lates Section 8(a)(1) by interfering with employees’ right
to file charges with the Board. The Board applies its
Lutheran Heritage Village-Livonia test to determine
whether a reasonable employee would construe an
agreement to prohibit the filing of Board charges, raising
the prospect that the employee would be chilled from
doing so. 343 NLRB 646, 647 (2004). In making that
determination, the Board recognizes that “[r]ank-and-file
employees do not generally carry lawbooks to work or
apply legal analysis to company rules as do lawyers, and
cannot be expected to have the expertise to examine
company rules from a legal standpoint.” Ingram Book
Co., 315 NLRB 515, 516 fn. 2 (1994). As a result, the
Board routinely has found insufficient language in work-
place rules purporting to except, or “save,” employees’
legal rights from restrictions on their conduct. See
SolarCity Corp., 363 NLRB No. 83, slip op. at 5 and fn.
18 (and cases cited therein) (2015). This is so even
where such exceptions referred to the “NLRA” or “the
National Labor Relations Act.” See id. at 5 and fn. 19
(and cases cited therein). “The rationale underlying these
decisions is that, absent language more clearly informing
employees about the precise nature of the rights suppos-
edly preserved, the rule remains vague and likely to leave
employees unwilling to risk violating the rule by exercis-
ing Section 7 rights.” Id. at 5.
The Agreement here suffers from the same vagueness,
even with the provision stating that the Agreement does
not prohibit the filing of Board charges. See ISS Facility
Services, Inc., 363 NLRB No. 160, slip op. at 2–3
(2016). The Agreement specifically applies to “all dis-

4 We reject the position of our dissenting colleague that the Re-
spondent’s motion to compel arbitration was protected by the First
Amendment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB,
461 U. S. 731, 747 (1983), 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 such as the
Respondent’s motion to compel arbitration that have the illegal objec-
tive of limiting employees’ Sec. 7 rights and enforcing an unlawful
contractual provision, 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
putes, claims or controversies arising out of or relating to
this Agreement, the employment relationship between
the parties, or the termination of the employment rela-
tionship,” and it requires employees to bring claims “on-
ly in their individual capacity, and not as a plaintiff or
class member in any purported class and/or collective
proceeding.” This language reasonably conveys to em-
ployees that, as a condition of employment, they must
forfeit their substantive Section 7 right to file and pursue
administrative charges with the Board, whether individu-
ally or collectively.
There is no merit to the Respondent’s contention that
the Agreement does not interfere with employees’ right
to file charges with the Board because it specifically
states that filing charges with the Board is permitted.
This contention overlooks confusing language in the
Agreement stating that the filing of Board charges is
permitted “if applicable law permits access to such an
agency notwithstanding the existence of an agreement to
arbitrate.” In SolarCity, the Board found that a virtually
identical caveat could not reasonably be understood by
employees as having no effect on their right to file Board
charges. See 363 NLRB No. 83, slip op. at 5 fn. 20.
Additionally, the Agreement’s stated exception for filing
Board charges appears to be illusory, because immediate-
ly following that statement, the Agreement plainly indi-
cates that the filing and pursuit of a Board charge is per-
mitted only to the extent necessary “to fulfill the party’s
obligation to exhaust administrative remedies before
making a claim in arbitration.” This additional language
reasonably conveys that all employment-related claims
ultimately still must be resolved only through arbitration,
not the Board. See Ralph’s Grocery Co., 363 NLRB No.
128, slip op. at 2–3 (2016). Thus, applying the Lutheran
Heritage framework and for the reasons discussed above,
we find that employees would reasonably understand the
vague, unexplained Agreement language to be coercive
and, as a result, would be restrained in exercising their
Section 7 right to file charges with the Board.
Further, we find that even if an employee could deter-
mine from the Agreement that he could invoke the
Board’s processes, an inherent ambiguity in the Agree-
ment suggests that he must do so individually, and not in
concert with other employees. The Agreement’s class,
collective, or representative action waiver requires em-
ployees to bring claims “only in their individual capacity,
and not as a plaintiff or class member in any purported
class and/or collective proceeding.” As in SolarCity, this
broad language clearly encompasses filing an unfair la-
bor practice charge with the Board when that charge pur-
ports to speak to a group or collective action. 363 NLRB
No. 83, slip op. at 6. And it would be unclear to the
reader, especially one without specialized legal
knowledge, whether and to what extent the Agreement’s
exception for filing charges with Federal agencies modi-
fies the previous broad prohibition on pursuing any form
of collective or representative activity, particularly since
the exception does not clarify that such charges may be
filed on an individual or collective basis. This ambiguity
would lead a reasonable employee to question whether
he may file an unfair labor practice charge, particularly
when the charge is filed with or on behalf of other em-
ployees, and thus serves as another reason for finding the
Agreement to unlawfully interfere with employees’ right
to file charges with the Board.
Finally, our finding that the Agreement is unlawful ef-
fectuates the Congressional policy of vigorously safe-
guarding access to the Board’s processes. The Board and
the courts have long recognized that “filing charges with
the Board is a vital employee right designed to safeguard
the procedure for protecting all other employee rights
guaranteed by Section 7.” Mesker Door, Inc., 357
NLRB 591, 596 (2011); see also Ralph’s Grocery,
above, 363 NLRB No. 128, slip op. at 3. For this reason,
the Board must take care to ensure that employer rules do
not chill employees from filing charges with the Board
and instead are clear that employees retain the “complete
freedom” that Congress sought.5 The Agreement fails in
this fundamental respect.6
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment as to the allegations that the Re-
spondent unlawfully maintained a mandatory arbitration
agreement that employees reasonably would believe bars
or restricts the right to file charges with the National La-
bor Relations Board and that the Respondent unlawfully
maintained and enforced a mandatory arbitration agree-
ment that requires employees, as a condition of employ-
ment, to waive the right to maintain class, collective, or
private attorney general actions in all forums, whether
arbitral or judicial.
On the entire record, the Board makes the following

5 NLRB v. Scrivener, 405 U.S. 117, 122 (1972).
6 We disagree with our dissenting colleague’s conclusion that the
Respondent’s Agreement does not unlawfully interfere with employ-
ees’ right to file unfair labor practice charges with the Board. We note
that our colleague repeats an argument previously made, that an indi-
vidual arbitration agreement lawfully may require the arbitration of
unfair labor practice claims if the agreement reserves to employees the
right to file charges with the Board. As explained in Ralph’s Grocery,
363 NLRB No. 128, slip op. at 3, that argument is at odds with well-
established Board law.
ADECCO USA, INC. 5
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration with its corporate headquarters in Jacksonville,
Florida and with a branch office in San Bruno, Califor-
nia, has been engaged in providing temporary employee
staffing services to clients throughout the State of Cali-
fornia and nationwide.
During the 12-month period ending December 31,
2014, the Respondent performed services valued in ex-
cess of $50,000 in states outside the State of California.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since at least June 5, 2014, the Respondent has re-
quired its current and former employees to sign the
Agreement as a condition of employment. The Agree-
ment contains the following language:
[T]he Company and Employee agree that any and all
disputes, claims or controversies arising out of or relat-
ing to this Agreement, the employment relationship be-
tween the parties, or the termination of the employment
relationship, shall be resolved by binding arbitration . . .
BY SIGNING THIS AGREEMENT, THE PARTIES
AGREE THAT EACH MAY BRING CLAIMS
AGAINST THE OTHER ONLY IN THEIR
INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS AND/OR COLLECTIVE
PROCEEDING.
FURTHERMORE, BY SIGNING THIS
AGREEMENT, THE PARTIES AGREE THAT
EACH MAY BRING CLAIMS AGAINST THE
OTHER IN THEIR INDIVIDUAL CAPACITY AND
NOT IN ANY REPRESENTATIVE PROCEEDING
UNDER ANY PRIVATE ATTORNEY GENERAL
STATUTE (“PAGA CLAIM”), UNLESS
APPLICABLE LAW REQUIRES OTHERWISE.
On November 21, 2014, the Respondent sought to enforce
the Agreement described above by filing a motion to com-
pel individual arbitration rather than class-wide litigation of
claims in a class action wage and hour complaint filed
against the Respondent by the Charging Party in Rajan
Nanavati, et al. v. Adecco USA, Inc., Case No. 5:1–14–CV–
269398 (Superior Court of California, Santa Clara County).
On April 13, 2015, the United States District Court, North-
ern District of California granted the Respondent’s motion.
CONCLUSIONS OF LAW
1. The Respondent, Adecco USA, Inc., is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By maintaining a mandatory and binding arbitration
agreement that employees reasonably would believe bars
or restricts them from filing charges with the National
Labor Relations Board or from accessing the Board’s
processes, and by maintaining and enforcing a mandatory
arbitration agreement 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, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and has violated Section
8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Consistent with our
decision in Murphy Oil, supra, slip op. at 21, and the
Board’s usual practice in cases involving unlawful litiga-
tion, we shall order the Respondent to reimburse the
Charging Party and any other plaintiffs for all reasonable
expenses and legal fees, with interest, that they may have
incurred in opposing the Respondent’s unlawful motion
to compel individual arbitration. See Bill Johnson’s Res-
taurants v. NLRB, 361 U.S. 731, 747 (1983) (“If a viola-
tion is found, the Board may order the employer to reim-
burse the employees whom he had wrongfully sued for
their attorneys’ fees and other expenses” and “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), 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). We shall also order the Respondent to rescind or
revise the Agreement, notify employees and the United
States District Court for the Northern District of Califor-
nia that it has done so, and inform the court that it no
longer opposes the lawsuit on the basis of the Agree-
ment.
ORDER
The Respondent, Adecco USA, Inc., San Bruno, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(a) Maintaining a mandatory arbitration agreement
that employees reasonably would believe bars or restricts
the right to file charges with the National Labor Rela-
tions Board.
(b) Maintaining and/or enforcing a mandatory arbitra-
tion agreement that requires employees, as a condition of
employment, to waive the right to maintain class, collec-
tive, or private attorney general actions in all forums,
whether arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Dispute Resolution and Arbitration
Agreement for Consultants/Associates (the “Agree-
ment”) in all of its forms, or revise it in all of its forms to
make clear to employees that the Agreement does not
constitute a waiver of their right to maintain employ-
ment-related joint, class, collective actions in all forums,
and that it does not bar or restrict employees’ right to file
charges with the National Labor Relations Board.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the
Agreement in any form that it has been rescinded or re-
vised and, if revised, provide them a copy of the revised
agreement.
(c) Notify the United States District Court for the
Northern District of California in Case No. 5:14–CV–
04145–BLF that it has rescinded or revised the arbitra-
tion agreement upon which it based its motion to compel
individual arbitration in the wage and hour class action
brought by Rajan Nanavati, and inform the court that it
no longer opposes the lawsuit on the basis of the arbitra-
tion agreement.
(d) In the manner set forth in the remedy section of
this decision, reimburse Rajan Nanavati and any other
plaintiffs in Case No. 5:14–CV–04145–BLF for any rea-
sonable attorneys’ fees and litigation expenses that they
may have incurred in opposing the Respondent’s motion
to compel individual arbitration.
(e) Within 14 days after service by the Region, post at
its San Bruno, California facility copies of the attached
notice marked “Appendix A,” and at all other facilities
where the unlawful agreement is or has been in effect,
copies of the attached notice marked “Appendix B.”7
Copies of the notices, on forms provided by the Regional

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in each 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.”
Director for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice marked “Appendix A” to all current and former em-
ployees employed by the Respondent at any time since
June 5, 2014, and any former employees against whom
the Respondent has enforced its mandatory arbitration
agreement since June 5, 2014. If the Respondent has
gone out of business or closed any facilities other than
the one involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice marked “Appendix B” to all current employees
and former employees employed by the Respondent at
those facilities at any time since June 5, 2014.
(f) 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. May 24, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
In this case, my colleagues find that the Respondent’s
Dispute Resolution and Arbitration Agreement for Con-
sultants/Associates (the Agreement) violates Section
8(a)(1) of the National Labor Relations Act (the Act or
NLRA) because the Agreement waives the right to par-
ADECCO USA, INC. 7
ticipate in class or collective actions regarding non-
NLRA employment claims. Charging Party Rajan
Nanavati signed the Agreement, and later he filed a class
action lawsuit against the Respondent in federal court
alleging wage and hour violations. In reliance on the
Agreement, the Respondent filed a motion to compel
individual arbitration, which the court granted. My col-
leagues find that the Respondent thereby unlawfully en-
forced its Agreement. I respectfully dissent from these
findings for the reasons explained in my partial dissent-
ing opinion in Murphy Oil USA, Inc.1 My colleagues
also find that the Agreement violated the Act by interfer-
ing with the right of employees to file unfair labor prac-
tice charges with the Board. For the reasons stated be-
low, I respectfully dissent from this finding as well.2
1. The Class Action Waiver Does Not Violate the Act
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.3 How-
ever, I disagree with my colleagues’ finding that Section
8(a)(1) of the NLRA prohibits agreements that waive
class and collective actions, and I especially disagree
with the Board’s finding here, similar to the Board ma-
jority’s finding in On Assignment Staffing Services,4 that
class-waiver agreements violate the NLRA even when
they contain an opt-out provision. In my view, Sections
7 and 9(a) of the NLRA render untenable both of these
propositions. As discussed in my partial dissenting opin-
ion in Murphy Oil, NLRA Section 9(a) protects the right
of every employee as an “individual” to “present” and
“adjust” grievances “at any time.”5 This aspect of Sec-

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
2 I join my colleagues in dismissing as untimely under NLRA Sec.
10(b) an allegation that the Agreement was unlawfully promulgated.
3 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).
4 362 NLRB No. 189, slip op. at 1, 4–5 (2015).
5 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-
tion 9(a) is reinforced by Section 7 of the Act, which
protects each employee’s right to “refrain from” exercis-
ing the collective rights enumerated in Section 7. Thus, I
believe it is clear that (i) the NLRA creates no substan-
tive right for employees to insist on class-type treatment
of non-NLRA claims;6 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;7 (iii) en-
forcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA);8 and (iv) for the reasons stated in my
dissenting opinion in Nijjar Realty, Inc. d/b/a Pama
Management, 363 NLRB No. 38, slip op. at 3–5 (2015),
the legality of such a waiver is even more self-evident

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).
6 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.”).
7 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).
8 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
when the agreement contains an opt-out provision, based
on every employee’s Section 9(a) right to present and
adjust grievances on an “individual” basis and each em-
ployee’s Section 7 right to “refrain from” engaging in
protected concerted activities. Although questions may
arise regarding the enforceability of particular agree-
ments that waive class or collective litigation of non-
NLRA claims, I believe these questions are exclusively
within the province of the court or other tribunal that,
unlike the NLRB, has jurisdiction over such claims.
Because I believe the Respondent’s Agreement was
lawful under the NLRA, I would find it was similarly
lawful for the Respondent to file a motion in Federal
court seeking to enforce the Agreement. It is relevant
that the Federal district court that had jurisdiction over
the non-NLRA claims granted the Respondent’s motion
to compel arbitration. That the Respondent’s motion was
reasonably based is also supported by court decisions
that have enforced similar agreements.9 As the Fifth
Circuit recently observed after rejecting (for the second
time) the Board’s position regarding the legality of class-
waiver agreements: “[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 objective’ in doing so. The Board might want to
strike a more respectful balance between its views and
those of circuit courts reviewing its orders.”10 I also be-
lieve that any Board finding of a violation based on the
Respondent’s meritorious motion in Federal court to
compel arbitration would improperly risk infringing on
the Respondent’s 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 can-
not properly require the Respondent to reimburse the
Charging Party and other plaintiffs for their attorneys’
fees in the circumstances presented here. Murphy Oil,
above, 361 NLRB No. 72, slip op. at 35.
2. The Agreement Does Not Interfere with NLRB
Charge Filing
My colleagues also find that the Respondent violated
Section 8(a)(1) by maintaining the Agreement because,
in their view, reasonable employees would read it as re-
stricting them from filing unfair labor practice charges
with the Board. See, e.g., U-Haul Co. of California, 347

9 See, e.g., Murphy Oil USA, Inc. v. NLRB, above; Johnmohammadi
v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D.R. Horton, Inc. v.
NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir.
2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
10 Murphy Oil USA, Inc. v. NLRB, 808 F.3d at 1021.
NLRB 375, 377–378 (2006) (finding that employer vio-
lated the Act by maintaining an arbitration policy that
employees would reasonably read as prohibiting them
from filing unfair labor practice charges with the Board),
enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007). My
colleagues posit that the Agreement restricts NLRB
charge filing because it broadly requires arbitration of all
workplace disputes, and, in their view, language in the
Agreement explicitly preserving the right to bring claims
before an administrative agency, including the NLRB, is
“confusing,” “vague,” “unexplained,” and insufficient to
avoid unlawful interference with Board charge filing. I
respectfully disagree.
The Agreement broadly requires arbitration of all em-
ployment-related claims, including those arising under
the NLRA,11 but I do not believe the scope of the
Agreement makes it violative of the Act. As I explained
in Ralph’s Grocery,12 GameStop Corp.,13 and Applebee’s
Restaurant,14 decades of case law—including the
Board’s recent decision in Babcock & Wilcox Construc-
tion Co., 361 NLRB No. 132 (2014)—establish that par-
ties may lawfully agree to submit NLRA claims to arbi-
tration, provided that the agreement does not otherwise
interfere with NLRB charge filing.15 Such an agreement

11 In pertinent part, the Agreement provides as follows:
[T]he Company and Employee agree that any and all disputes, claims
or controversies arising out of or relating to this Agreement, the em-
ployment relationship between the parties, or the termination of the
employment relationship, shall be resolved by binding arbitration . . .
BY SIGNING THIS AGREEMENT, THE PARTIES HEREBY
WAIVE THEIR RIGHT TO HAVE ANY DISPUTE, CLAIM OR
CONTROVERSY DECIDED BY JUDGE OR JURY IN A COURT
. . .
Regardless of any other terms of this Dispute Resolution Agreement,
claims may be brought before an administrative agency if applicable
law permits access to such an agency notwithstanding the existence of
an agreement to arbitrate. Such administrative claims may include
without limitation claims or charges brought before the Equal Em-
ployment Opportunity Commission, the U.S. Department of Labor,
the National Labor Relations Board, or the Office of Federal Contract
Compliance Programs. Nothing in this Dispute Resolution Agreement
shall be deemed to preclude or excuse a party from bringing an ad-
ministrative claim before any agency in order to fulfill the party’s ob-
ligation to exhaust administrative remedies before making a claim in
arbitration.
12 363 NLRB No. 128, slip op. at 6–8 (2016) (Member Miscimarra,
concurring in part and dissenting in part).
13 363 NLRB No. 89, slip op. at 4–7 (2015) (Member Miscimarra,
concurring in part and dissenting in part).
14 363 NLRB No. 75, slip op. at 3–5 (2015) (Member Miscimarra,
concurring in part and dissenting in part).
15 Although NLRA claims may lawfully be made subject to arbitra-
tion, the Board in all cases retains the right, under Sec. 10(a) of the Act,
to independently review any allegations of unfair labor practices made
in a charge filed with the Board. See, e.g., GameStop Corp., above,
ADECCO USA, INC. 9
does not unlawfully prohibit the filing of charges with
the NLRB, particularly when the right to do so is ex-
pressly stated in the agreement itself. In this case, the
Agreement expressly provides that “claims may be
brought before an administrative agency if applicable law
permits access to such an agency notwithstanding the
existence of an agreement to arbitrate. Such administra-
tive claims may include without limitation claims or
charges brought before . . . the National Labor Relations
Board. . . .” This language eliminates any possible un-
certainty about the right of employees to file charges
with the Board.16 See Murphy Oil USA, Inc. v. NLRB,
808 F.3d at 1020 (“[I]t would be unreasonable for an
employee to construe the Revised Arbitration Agreement
as prohibiting the filing of Board charges when the
agreement says the opposite.”).
Accordingly, I respectfully dissent.
Dated, Washington, D.C. May 24, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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

363 NLRB No. 89, slip op. at 4–5 fn. 10 (Member Miscimarra, concur-
ring in part and dissenting in part).
16 See Applebee’s Restaurant, above, slip op. at 4 (Member
Miscimarra, concurring in part and dissenting in part). My colleagues
advance several arguments in support of their conclusion that the
Agreement unlawfully interferes with the right of employees to file
charges with the Board. In at least three other cases, a Board majority
has relied on the same arguments to reach the same conclusion regard-
ing language virtually identical to the language in the Agreement at
issue here. See SolarCity Corp., 363 NLRB No. 83, slip op. at 4–6
(2015); ISS Facility Services, Inc., 363 NLRB No. 160, slip op. at 2–3
(2016); Securitas Security Services USA, Inc., 363 NLRB No. 182, slip
op. at 3–5 (2016). In my separate opinions in those cases, I explained
at length why I found the majority’s reasoning unpersuasive. See
SolarCity, above, slip op. at 9–11 (Member Miscimarra, dissenting);
ISS Facility Services, above, slip op. at 5–7 (Member Miscimarra,
dissenting); Securitas Security Services USA, above, slip op. at 7–9
(Member Miscimarra, dissenting in part). For the same reasons I relied
on in those cases, I find the majority’s reasoning unpersuasive here.
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
class, collective, or private attorney general 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 Dispute Resolution and Arbitra-
tion Agreement for Consultants/Associates (the “Agree-
ment”) in all of its forms, or revise it in all of its forms to
make clear that the Agreement does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign the Agreement in all of its forms
that the Agreement has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised
agreement.
WE WILL notify the court in which Rajan Nanavati
filed his collective lawsuit that we have rescinded or re-
vised the mandatory arbitration agreement upon which
we based our motion to compel individual arbitration in
his collective lawsuit, and WE WILL inform the court that
we no longer oppose the lawsuit on the basis of the arbi-
tration agreement.
WE WILL reimburse Rajan Nanavati and any other
plaintiffs for any reasonable attorneys’ fees and litigation
expenses that they may have incurred in opposing our
motion to compel individual arbitration.
ADECCO USA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-142303 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., Room 5011, Washington,
D.C. 20570, or by calling (202) 273–1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain a mandatory arbitration agree-
ment that requires our employees, as a condition of em-
ployment, to waive the right to maintain class, collective,
or private attorney general 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 Dispute Resolution and Arbitra-
tion Agreement for Consultants/Associates (the “Agree-
ment”) in all of its forms, or revise it in all of its forms to
make clear that the Agreement does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign the Agreement in all of its forms
that the Agreement has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised
agreement.
ADECCO USA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-142303 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., Room 5011, Washington,
D.C. 20570, or by calling (202) 273–1940.