AT&T MOBILITY SERVICES, LLC.

National Labor Relations Board - Administrative Judge Opinions

Jun 26, 2015

22-CA-127746 (N.L.R.B. Jun. 26, 2015)

JD(NY)-30-15
Paramus, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
AT&T MOBILITY SERVICES, LLC
and Case No. 22-CA-127746
EUDORA BROOKS, an Individual
AT&T MOBILITY SERVICES, LLC
and Case No. 22-CA-127781
JUAN FIGUEREO, an Individual
Evamaria Kartzian and Michael Silverstein, Esqs.
For the General Counsel
Stephen J. Sferra and Meredith C. Shoop, Esqs.
Littler Mendelson, Cleveland Ohio
For the Respondent
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. Based upon charges filed by Nikki Amari,1
Eudora Brooks and Juan Figuereo, as individuals, the Regional Director, Region 22, issued an
Order Consolidating Cases, Consolidated Complaint and Notice of Hearing (complaint) alleging
that AT&T Mobility Services, LLC, (Mobility, Employer or Respondent) violated Section 8(a)(1)
of the Act by promulgating, maintaining and enforcing individual arbitration agreements thereby
interfering with employees’ Section 7 right to engage in collective legal activity by binding
employees to an irrevocable waiver of their rights to participate in collective and class litigation
in all forums, arbitral and judicial. Respondent filed an answer denying the material allegations
of the complaint and raising certain affirmative defenses, as will be discussed below. A hearing
in this matter was held before me on February 6, 2015, in Newark, New Jersey.
On the entire record,2 including the stipulations reached by the parties, my observation
of and evaluation of the testimony and the demeanor of the witnesses, and after considering the
briefs filed by Counsel for the General Counsel and the Respondent I make the following

1 Amari subsequently withdrew her charge and is not a party to the instant proceeding.
2 Respondent’s unopposed motion to amend the transcript dated March 3, 2015, is hereby granted
and made a part of the record herein.
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Findings of Fact
I. Jurisdiction
At all material times, and continuing to date, Respondent has been a limited liability
company with an office and place of business in Paramus, New Jersey and has provided
wireless telecommunications services. Annually, the Respondent derives gross revenues in
excess of $100,000 from its business operations, and purchases and receives equipment and
other goods and materials valued in excess of $50,000 directly from suppliers located outside
the State of New Jersey. Respondent admits, and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
II. Alleged Unfair Labor Practices
This case presents an issue, left unresolved, by the Board’s decisions in D.R. Horton,
357 NLRB No. 184 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013), and
Murphy Oil USA Inc., 361 NLRB No. 72 (2014). The issue is whether an arbitration agreement
between an employee and an employer, which includes a class action waiver and also includes
a limited opt out provision, violates Section 8(a)(1) of the Act.
Relevant Facts
The Respondent employs approximately 44,000 employees who are represented by the
Communication Workers of America (CWA). These employees are not at issue here. The two
charging parties, Brooks and Figuereo, are statutory employees in a classification not
represented by CWA: Brooks worked for Respondent from November 2008 until December
2013 as a national retail account executive (NRAE). Figuereo, who has been employed by
Respondent since 2004, has been an NRAE since about May 2009.
The testimony of these witnesses establishes that NRAE’s spend the majority of their
time in the field away from their assigned office, promoting sales and marketing to retail store
accounts. In the course and furtherance of their duties, NRAEs are provided with laptop
computers, tablets (iPads) and a smartphone, which are used to communicate not only with
their employer but with clients or potential clients.
Beginning in late-November 2011, Respondent began sending, via email, notice of a
Management Arbitration Agreement (Agreement) to 24,000 of its non bargaining-unit
employees, including managerial employees and NRAE’s. This Agreement offered employees
the option to have employment-related disputes with Mobility resolved through third-party
arbitration.3 Mobility also provided instructions for employees to electronically register their
decision to opt out and to not participate in the Agreement by February 6, 2012. Employees
were advised that their failure to opt out by that deadline would constitute an agreement to the
arbitration process, as set forth in the Agreement.
In particular, the email initially sent to employees was entitled, “Action Required: Notice
Regarding Arbitration Agreement” and stated in relevant part:

3 The Agreement stated that it enabled “employees and AT&T to use independent third-party
arbitration rather than courts or juries to resolve legal disputes,” and that it would apply “to any dispute to
which this Agreement applies” and that class arbitrations and class actions were not permitted.
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The decision on whether or not to participate is yours to make. To help you make your
decision, it is very important for you to review the Management Arbitration Agreement
linked to this email. It provides important information on the process and the types of
disputes that are covered by the Agreement.
Again, the decision is entirely up to you. To give you time to consider your decision, the
company has established a deadline of no later than 11:59 p.m. Central Standard Time
on Monday, Feb. 6, 2012 to opt out – that is, to decline to participate in the arbitration
process – using the instructions below.
If you do not opt out by the deadline, you are agreeing to the arbitration process as set
forth in the agreement.
Each email additionally contained specific instructions for opting out of the Agreement.
Employees were further advised that there were no adverse consequences for opting out of the
Agreement; that they could and should contact a hotline number of they believed they
experienced pressure or retaliation in connection with their decision and were also provided with
a toll-free number to call should they have any questions. This was a telephone number that
Employer management designated to coordinate its response, through its human resources
department, to any such inquiries, rather than rely upon the responses of individual mangers to
employee questions about the terms or application of the Agreement.
The intranet page containing the text of the Agreement contained an electronic button
marked “Review Completed.” This was an acknowledgement that an employee had reviewed
the Agreement.
Employees were advised that:
Regardless of any other terms of this Agreement, you may still bring certain claims
before administrative agencies or government offices or officials if applicable law permits
access to such agency, office or official, notwithstanding the existence of an agreement
to arbitrate. Examples would include, but not be limited to, claims or charges brought
before the Equal Employment Opportunity Commission …, the U.S. Department of
Labor…. The National Labor Relations Board…, or the Office of Federal Contract
Compliance Programs…. Nothing in this Agreement shall be deemed to preclude or
excuse a party from bringing an administrative claims before any agency or employee
benefit plan in order to fulfill the party’s obligation to exhaust administrative remedies
before making a claim in arbitration.
The class and collective action waiver contained in the Agreement provides, in relevant
part:
To the maximum extent permitted by law, you hereby waive any right to bring on behalf
of persons other than yourself, or to otherwise participate with other persons in: any
class action; collective action; or representative action, including but not limited to any
representative action under the California Private Attorneys General Act (“PAGA”) or
other, similar state statute. You retain the right, however, to bring claims in arbitration,
including PAGA claims, but only for yourself as an individual. If a court determines that
you cannot waive your right to bring a representative action under PAGA, any such claim
may only be brought in court and not in arbitration.
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From late-November through the opt-out deadline, various corporate compliance officials
including Kathy Matyola and Susan Bounds (who both testified herein) monitored and reviewed
reports indicating those employees who had accessed and completed a review of the
Agreement. Employees who had not done so were sent reminders on or about December 15,
2011 and January 18, 2012.
There is no current dispute that Brooks and Figueroa received this email, and
acknowledged that they had so received it.
In particular, the evidence adduced at trial established that:
On December 1, 2011, an email with a link to the Agreement was sent to Figuereo, and
received by him; on December 8, Figuereo accessed the Agreement and completed the
“Review Completed” button; and on January 10, 2012, Figuereo again accessed the Agreement
and clicked the “Review Completed” button.
The evidence further shows that Brooks was sent the email designated “Action
Required: Arbitration Agreement” on December 5 and 16, 2011 and again on January 17, 2012.
After this latter transmission, Brooks accessed the Agreement and clicked the “Review
Completed” button.
There is also no dispute that both Figuereo and Brooks failed to opt out of the
Agreement by the terms and within the time frame established by Respondent.
On June 20, 2013, Brooks, along with two other plaintiffs, Nikki Amari and Lisa Locurto,
filed a class action lawsuit against Respondent in the United States District Court for the
Southern District of New York alleging violations of the Fair Labor Standards Act (FLSA), and
New York and New Jersey wage and hour statutes. The lawsuit specifically alleged that the
Respondent failed to pay the named plaintiffs and all similarly situated NRAEs proper overtime
premiums for hours worked beyond their regular 40-hour workweek. By letter dated July 8,
2013, Mobility’s counsel, Patrick Shea, responded to the class action and wrote a letter to Paul
Rooney, counsel for the Plaintiffs, in relevant part, as follows:
Pursuant to a Management Arbitration Agreement, Ms. Brooks and Ms. Amari are each
required to arbitrate their claims in this lawsuit on an individual basis rather than
pursuing those claims in court. . . . Neither Ms. Brooks nor Ms. Amari opted out of the
[Agreement], although each had the option to do so over an extended period of time,
during which each received multiple emails explaining the process. Accordingly, both are
bound by the terms of the [Agreement], and each must arbitrate her respective claims on
an individual basis if she wishes to pursue such claims.
Shea additionally noted that as Locurto had opted out of the Agreement, she was not
bound to arbitrate her wage and hour claims but that she “will not, however, be able to assert
claims on behalf of any of the individuals in the purported class who declined to opt out and who
must therefore arbitrate any dispute they have with AT&T on an individual basis.”
Shea continued:
AT&T Mobility Services (AT&T) hereby requests that Ms. Brooks and Ms. Amari
voluntarily dismiss their claims. If either wishes to pursue a claim, she should file a
request for arbitration under the [Agreement]. If they do not dismiss their claims, AT&T
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will file a motion with the District Court to compel arbitration. Please advise me if Ms.
Brooks and Ms. Amari will be dismissing their claims.
Thereafter, Brooks and Amari voluntarily dismissed their federal class-action lawsuit on
July 23, 2013.4 On September 5, 2013, the Judicial Arbitration and Mediation Service (JAMS)
advised Mobility that Brooks had commenced arbitration with regard to her wage and hour
claims.
In November 2013, Brooks retained new counsel: Steven Adler and Arla Cahill,
replacing Rooney. Arbitrator Michael D. Young was selected to hear the Brooks and Amari
arbitration claims. On December 23, 2013 Brooks’ counsel and Shea participated in a
conference call with Arbitrator Young, at which time, Adler announced his intention to amend
Brooks’ statement of claim to assert class and collective claims against Mobility. Shea replied
that class and collective actions were foreclosed by the Agreement and Second Circuit
precedent. The Arbitrator directed Adler to submit any amended claim by January 8, 2014, and
requested that the parties confer regarding the scope of the arbitration and the procedures and
schedule to be followed. Absent such agreement, the Arbitrator directed each counsel to submit
a letter of position regarding unresolved issues. Thereafter, Shea wrote to Adler stating that he
believed Brooks’ class and collective actions were foreclosed and that the issue of the
Agreement’s enforceability on that point was a matter for a federal court to decide.
On December 30, 2013, Shea sent an email to Adler which stated in part:
We were surprised to learn last week of your intention to amend Ms. Brooks’ Statement
of Claims to include allegations on behalf of a class/collective under federal and state
law. As you know the Management Arbitration Agreement (MAA) Ms. Brooks entered
into expressly waives the right to bring any such claim, but you stated on our call that the
waiver is unenforceable because it conflicts with your client’s rights under the National
Labor Relations Act (NLRA). We were equally surprised to learn of your position that this
challenge to the class action waiver would be a question for resolution by the arbitrator.
Before you file such an amended Statement of Claims, and we are forced to file an
action in federal court to stay arbitration of the class portion of your claims, we wanted
you to be aware that both of the above arguments are foreclosed by controlling
precedent.5
In January 2014, Brooks’ counsel notified Mobility and the arbitrator that they had been
retained by Amari to represent her in her arbitration, they intended to file additional arbitration
claims similar in nature to Brooks’ claims, and that they wished to consolidate these claims with
Brooks’ claim. On January 22, 2014, Shea confirmed that Mobility was unwilling to consolidate
such claims.
During the months of January and February 2014, Adler, Shea and Arbitrator Young
exchanged a series of email correspondences regarding the filing of new individual arbitration
claims and the deadline for the filing of such claims. On about February 19, 2014, Brooks’
counsel reiterated its request that Mobility consent to consolidate Amari and Nelson Lopez’s
arbitration claims with Brooks’ claim. On February 21, 2014, Shea responded to the request by

4 Counsel of record for Brooks and Amari made no claim that they were not bound by the Agreement.
5 Shea went on to discuss both Second Circuit and Supreme Court law which, it asserted, supported
the above stated position.
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again informing Brooks’ counsel that: “in our view the Management Arbitration Agreement does
not authorize consolidation of separate claims . . . absent the consent of the parties.”
On March 10, 2014, Arbitrator Young conducted a telephone conference, and
subsequently issued an order confirming the agreements reached. In pertinent part, the parties
agreed that Brooks’ arbitration claims would be consolidated for discovery purposes with the
pending arbitration claims of Amari and Lopez. The parties additionally agreed that at the end of
discovery, absent an agreement between the parties, the arbitrator would decide whether any of
the claims would be consolidated for purposes of a hearing on the merits applying the standards
set forth in the JAMS Employment Arbitration Rules and Procedures and such other legal
authority as may be appropriate.
On March 10, 2014, Adler notified Shea that he intended to file a wage and hour claim
on behalf of Figuereo and requested to consolidate his claims with those of Brooks, Amari and
Lopez in the event Figuereo had not opted out of the Agreement. Adler sought confirmation on
the latter point. Shea subsequently confirmed that Figuereo did not opt out of the Agreement
and Adler requested that his arbitration claims be consolidated with the claims of others for
discovery purposes. Shea agreed to do so, if Adler would agree not to add additional claimants.
Adler did not agree to this request.
On March 25, 2014, Figuereo filed with JAMS a Statement of Claim and Demand for
Arbitration asserting wage and hour claims under the FLSA and New York and New Jersey law,
the same claims raised by Brooks and Amari. By email dated March 31, 2014, Mobility
represented to JAMS Case Manager George R. Cuervos that it objected to consolidating
Figuereo’s claims with the Brooks and Amari claims for purposes of discovery. However, on
June 16, 2014 the parties ultimately agreed that Figuereo’s claims would be consolidated with
the Brooks and Amari claims for purposes of discovery as reflected in an order issued by
Arbitrator Young.
Figuereo’s claims have since proceeded in arbitration. After discovery, Figuereo and
Mobility filed cross motions for summary judgment on his claims, still under submission at the
time of the hearing. The “LoCurto” action in which Brooks was initially named as a plaintiff has
continued in her absence. On August 18, 2014, District Judge Torres issued a Memorandum
and Order granting conditional certification to a class including NRAEs. The Judge’s Order
excluded from the conditionally certified class all individuals who had reached a prior agreement
with Mobility and those who had consented to arbitrate their claims pursuant to the Agreement.
Those employees who had opted out of the Agreement were given notice and an opportunity to
join the collective action, approximately 175 employees. Of that number, approximately 20
exercised their right to participate in the LoCurto action.
Contentions of the parties
In its post-hearing brief, the General Counsel concedes that, notwithstanding the
contentions of Brooks and Figueroa that they did not recall receiving the email introducing the
Agreement, based upon the evidence adduced by the Respondent at the hearing, it is apparent
that the charging parties had, in fact, received the email and failed to opt out of the Agreement.
Thus, as framed by the General Counsel in its brief, the sole remaining issue in this matter is
whether the maintenance of the Agreement itself violates Section 8(a)(1) of the Act.
Respondent has advanced a number of defenses to the remaining allegation. As an
initial matter, it is argued that it did not violate Section 8(a)(1) of the Act because it did not
require the charging parties to participate in the Agreement as a mandatory condition of
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employment; therefore the Board’s decisions in D.R. Horton and Murphy Oil are neither
applicable nor dispositive of the issue. The Respondent has further argued that the doctrine of
the above-cited cases is inapposite because the charging parties voluntarily consented to the
Agreement without coercion or interference. It is further urged that existing Board law does not
warrant invalidating such a voluntary agreement to arbitrate employment disputes with an
employer.
Respondent further argues that the lawfulness and validity of the Agreement must be
determined by the Federal Arbitration Act (FAA) and Supreme Court law and not under Board
doctrine as set forth in D.R. Horton and Murphy Oil. Moreover, the Respondent argues that the
charges and complaint are barred by the six-month limitations period under Section 10(b) of the
Act.6
Analysis and Conclusions
Respondent’s ADR policy violates Section 8(a)(1) of the Act.
It is well-settled that an employer's maintenance of a work rule which reasonably tends
to chill employees' exercise of their Section 7 rights violates Section 8(a)(1) of the Act. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998). A particular work rule which does not explicitly restrict
Section 7 activity will be found unlawful where the evidence establishes one of the following: (i)
employees would “reasonably construe the rule's language” to prohibit Section 7 activity; (ii) the
rule was “promulgated in response” to union or protected concerted activity; or (iii) “the rule has
been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004). The Board has cautioned that rules must be afforded a “reasonable”
interpretation, without “reading particular phrases in isolation” or assuming “improper
interference with employee rights.” Lutheran Heritage Village-Livonia, supra at 646. Ambiguities
in work rules are construed against the party which promulgated them. See Supply
Technologies, LLC, 359 NLRB No. 38 slip op. at p. 3; Lafayette Park Hotel, supra at 828.
The Board has held that mandatory arbitration agreements that bar employees from
bringing joint, class or collective workplace actions in any forum restrict the exercise of the
Section 7 right to act concertedly for mutual aid or protection, Murphy Oil, supra, slip op. at 5-6;
D.R. Horton, supra, slip op. at 1-2 fn. 4. In D.R. Horton, the rationale of which was affirmed in
Murphy Oil, the Board, relying upon cases dating back to its earliest days as a decisional body,
found that concerted legal action addressing wages, hours and working conditions has
consistently fallen within the protections of Section 7 of the Act.
For example, in Trinity Trucking & Materials Corp., 221 NLRB 364, 365 (1975), enfd.
mem. 567 F.2d 391 (7th Cir. 1977) cert. denied 438 U.S. 914 (1978), the Board held that the
filing of a lawsuit by a group of employees alleging that their employer had failed to pay them
contract scale was protected activity. (“It is settled that the filing of a civil action by employees is
protected activity unless done with malice or is in bad faith . . .[B]y joining together to file the
lawsuit [the employees] engaged in concerted activity”). In Le Madri Restaurant, 331 NLRB 269,

6 There are other arguments raised by Respondent which, based upon the General Counsel’s
apparent limitation of the scope of the violations alleged and remedy sought, are no longer of relevance
here. In particular, the Respondent has urged that it did not unlawfully seek to enforce the Agreement by
taking action consistent with the charging parties’ voluntary agreement to arbitrate employment disputes
and that the charging parties’ claims are barred by waiver. In view of the limitations of the General
Counsel’s theory of the case, as set forth above, I find it unnecessary to address such defenses.
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275-76 (2000), the Board found that an employer unlawfully discharged two employees for
engaging in protected concerted activity, which included filing a lawsuit in federal court on behalf
of 17 other employees. The lawsuit alleged violations of federal and state labor laws. In Novotel
New York, 321 NLRB 624, 633-636 (1996), the Board found that an “opt-in” class action lawsuit
alleging employer violations of the FLSA was protected concerted activity. In United Parcel
Service, Inc., 252 NLRB 1015, 1018, 1022 and fn. 26 (1989), enfd. 677 F.2d 421 (6th Cir. 1982),
the Board found that an employer unlawfully discharged an employee for bringing a class action
lawsuit regarding employee rest breaks. In Saigon Gourmet Restaurant, 353 NLRB 1063, 1064
(2009), the Board concluded that the employer violated the Act when it promised to raise
delivery workers’ wages if they abandoned their plan to file a wage and hour lawsuit and by
discharging employees because they engaged in protected concerted activities. See also D.R.
Horton, slip op. at 2, fn. 4 (and additional authority cited therein).
Respondent contends, in the first instance, that the decision as to whether to agree to
the Agreement is entirely voluntary, rendering it lawful under the Act. In my view, the purported
“voluntary” nature of any employee’s decision as to whether to abide by such a policy,
promulgated and endorsed by their employer, is open to question. More significantly, there are
difficulties as to whether employees are fully apprised, in a manner they may appreciate, of the
consequences of any such decision and whether the burden of having to decide as to whether
one should irrevocably relinquish rights which are, after all, afforded to employees under the Act
is an unreasonable one. There is also a question as to whether an employer’s promulgation and
apparent endorsement of such a waiver would reasonably tend to interfere, restrain or coerce
employees in the exercise of those rights. In this regard, I note that employees were instructed
to direct any inquiries relating to the Agreement or its terms to representatives chosen by their
employer (in particular, its human resources personnel) rather than to an independent third
party.7 There is also the undeniable fact that unless an employee affirmatively chose to opt out
of the Agreement, rather than affirmatively agree to it, the scope and nature of the legal options
available to enforce or alter the terms and conditions of any such employee would change
irrevocably.
Thus, the question is not simply whether an employee may choose to forego
participation in the program. The issue, rather, is whether an employer and an individual
employee may enter into an agreement to waive, irrevocably, future rights protected by the Act,
thereby implicating a substantive right to engage in the collective redress of grievances, which
the Board has long recognized as being at the core of Section 7 and central to the Act’s
purposes.
Here, there seems to be little dispute that participation in the Policy initially was not
mandatory: employees were provided with a specific period of time during which they choose to
opt out of participation in the Agreement.8 However, once an employee failed to exercise this
option, certain “core” features of that employee’s Section 7 rights were irrevocably waived
prospectively and Respondent retained the option seek to enforce such a waiver, as happened
in the instant case. There is no opportunity for an employee to reconsider his or her decision,
assuming it was consciously and knowingly made, in light of changed employment

7 There is no evidence in the record as to any such inquiry on the part of an employee and the
human resources department’s response thereto.
8 The record is silent as to how Mobility addresses this issue with its employees hired and subject to
the Agreement after the February 2012.
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circumstances.9 It is solely the employee who is relinquishing his or her rights – rights which
are granted by virtue of extant federal law.
The Board has found that such rights are substantive, as contrasted with merely
procedural:
For almost 80 years, Federal labor law has protected the right of employees to pursue
their work-related legal claims together, i.e., with one another, for the purpose of
improving their working conditions. The core objective of the National Labor Relations
Act is the protection of workers’ ability to act in concert, in support of one another.
Section 7 implements that right by guaranteeing employees the “right …to engage in…
concerted activities for the purpose of collective bargaining or other mutual aid or
protection.” Our national labor policy –aimed at averting “industrial strife and unrest” and
“restoring equality of bargaining power between employer and employees” – has been
built on this basic premise. In protecting a substantive right to engage in collective action
– the basic premise of Federal labor policy – the National Labor Relations Act is unique
among workplace statutes.
Murphy Oil, supra, slip op. at 1.
While the Board, in D.R. Horton or Murphy Oil, did not have to consider the issue of
individual agreements containing an opt-out provision such as exists here, in other contexts, the
Board has had the occasion to consider such waivers and, has found that an employer’s offer to
an employee of an individual waiver of core Section 7 rights, central to the purposes of the Act,
to be unlawful. For example, in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354
F.3d 534 (6th Cir. 2004), the Board found unlawful a separation agreement between an
employee and the employer that restricted for a one-year period the employee from attempting
“to hire, influence, or otherwise direct any employee of the Company to leave employment of the
Company or to engage in any dispute or work disruption with the Company, or to engage in any
conduct which is contrary to the Company’s interests in remaining union-free.” As the Board
found:
In our view, this separation agreement is overly broad in that it forces [the employee] to
prospectively waive her lawful Section 7 rights. “Future rights of employees as well as
the rights of the public may not be traded away in such a manner.” Mandel Security
Bureau, Inc., 202 NLRB 117, 119 (1973) (release used by employer was overly broad
and unlawfully prohibited filing of unfair labor charges concerning future incidents. See
generally Metro Networks, Inc. 336 NLRB 63 (2001).
See also, Goya Foods of Florida, 358 NLRB No. 43, slip op. at 2-3 (2012), where the Board
concluded that settlement agreements which prohibited employees from engaging in union
activity relating to the employer and/or its employees were unlawful.
It should be noted that, from its earliest days, the Board has adhered to this fundamental
construction of the Act. In J.H. Stone & Sons, 33 NLRB 1014 (1941), enfd. in relevant part, 125
F.2d 752 (7th Cir. 1942), the Board found individual employment contracts that required

9 There is no evidence that employees were apprised, in layman’s terms, of the “real-life”
consequences of the choice they were being asked to make; in particular what they were being asked to
relinquish. Rather, as is evident from the excerpts cited above, and the Agreement as a whole, it is
couched in terms that are best interpreted by a legal professional.
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employees to attempt to resolve employment disputes individually with the employer and then
provided for arbitration to be unlawful: “The effect of this restriction, is that, at the earliest and
most crucial stages of adjustment of any dispute, the employee is denied the right to act through
a representative and is compelled to pit his individual bargaining strength against the superior
bargaining power of the employer.” In affirming the Board’s holding the Seventh Circuit found
that the contract clause as a per se violation of the act even if “entered into without coercion,”
because “it obligated [the employee] to bargain individually and was a “restraint upon collective
action.” NLRB v. Stone, 125 F.2d 752, 756 (7th Cir. 1942).
The foregoing precedents and policy considerations which underlie the Act from its
earliest days warrant the conclusion that the Agreement violates the Act, notwithstanding the
fact that employees may, for a proscribed and limited period of time, choose not to enter into
such an agreement with their employer.
Respondent has further argued that the validity of the Agreement must be evaluated
under the Federal Arbitration Act (FAA) and controlling Supreme Court precedent decided after
the Board’s D. R. Horton decision; and that such precedent has discredited the framework
principle that Section 7 ostensibly creates a substantive right for employees to pursue
employment claims on a collective basis. In support of these contentions, Respondent relies
initially upon the refusal of the Fifth Circuit to enforce D.R. Horton, D.R. Horton, Inc., v. NLRB,
737 F.3d 344 (5th Cir. 2013), and notes that other Federal courts have rejected Horton to the
extent it found the Board’s decision to run afoul of the FAA. See Sutherland v. Ernst & Young
LLP, 726 F.3d 290 (2d Cir. 2013) and Owens v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
In Horton, on review, the Fifth Circuit concluded that neither the Act’s statutory text nor
its legislative history contained a congressional command against application of the FAA and
that, in the absence of an inherent conflict between the FAA and the Act’s purpose, an
arbitration agreement, such as the one at issue here, should be enforced according to its terms,
737 F.3d at 361-363. Accordingly, the Court denied enforcement of the Board’s order
invalidating the arbitration provision at issue in D. R. Horton.
In Murphy Oil, the Board acknowledged the Fifth Circuit’s rejection of the Board’s Horton
decision on appeal, by a divided panel, as well as decisions of the Second and Eighth Circuits
also indicating disagreement with Horton, but cited the well-established rule that “[t]he Board is
not required to acquiesce in adverse decisions of the Federal courts in subsequent proceedings
not involving the same parties.” Murphy Oil, supra, slip op. at 2 fn. 17 (citations omitted). In
Murphy Oil, a Board panel majority expressly reaffirmed Horton stating that “[t]he rationale of
D.R. Horton was straightforward, clearly articulated and well supported at every step,” Murphy
Oil, supra, slip op. at 6 and that “[w]ith due respect to the courts that have rejected D.R. Horton,
and to our dissenting colleagues, we adhere to its essential rationale for protecting workers’
core substantive rights under the National Labor Relations Act.” Id., slip op. at 7.
Respondent, relying on the Supreme Court’s decisions in American Express Co. v.
Italian Colors Restaurant, 133, S. Ct. 2304 (2013), CompuCredit Corp. v. Greenwood, 132 S.
Ct. 665, 669 (2012) and AT&T Mobility v. Concepcion, 131 S. Ct 24, 24 (2001), additionally
argues that D.R. Horton and Murphy Oil were wrongly decided and should not be controlling in
this matter. In particular, it is contended that these cases demonstrate that the FAA proclaims a
strong policy in favor of arbitration and, accordingly, that statute requires the enforcement of
arbitration agreements according to their terms. It is further contended that where the FAA’s
goals clash with those of another Federal statute, the FAA’s mandate in favor of arbitration
prevails unless it has been overridden by a contrary congressional command see e.g. American
Express v. Italian Colors Restaurant, supra. In addition, Respondent references numerous other
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cases which have examined this issue and concluded that waivers of class or collective actions
are enforceable.
The Board has recently rejected such arguments. In Chesapeake Energy Corp., 362 No.
80 (2015), the Board considered the determination of the administrative law judge that D.R.
Horton’s holding “cannot be sustained” because it is contrary to Supreme Court precedent
under the FAA enforcing arbitration agreements that waive class arbitration of state and federal
statutory claims.10
In Chesapeake, the Board noted that in Murphy Oil, it had reiterated that no post- Horton
decision of the Supreme Court speaks directly to that issue. To the contrary, the Board found:
Insofar as an arbitration agreement prevents employees from exercising their Section 7
right to pursue legal claims concertedly – by, as here, precluding them from filing joint,
class or collective claims addressing their working conditions in any forum, arbitral
or judicial – the arbitration agreement amounts to a prospective waiver of a right
guaranteed by the NLRA. (The Act, of course, does not create an entitlement to class
certification or the equivalent; it protects the right to seek that result.) Being
required to proceed individually is no proper substitute for proceeding together, insofar
as otherwise legally permitted, and only channels employee collective activity into
disruptive forms of action. The “remedial and deterrent” function of the NLRA, which
protects the right to concerted legal action, cannot possibly be served by an exclusive
arbitral forum that denies the right of employees to proceed collectively.
Murphy Oil, supra, slip op. at 8-9 (footnotes omitted)(emphasis in original).
The Board further concluded that there is no conflict between the FAA and the NLRA
because Section 2 of the FAA provides that arbitration agreements may be invalidated in whole
or in part pursuant to its savings clause for the same reason that any contract may be
invalidated, including that it is unlawful or contrary to public policy. Murphy Oil, supra slip op. at
9. Here the General Counsel urges, in essence, that the arbitration agreement at issue is
unlawful because it interferes, restrains or coerces employees from the exercise their
substantive right to engage in Section 7 conduct. I agree.
The Murphy Oil Board further found that Section 7 of the Act presents a “contrary
congressional command” overriding the FAA. Id at 9. In this regard, the Board stated, “[w]e see
no compelling basis for the [Fifth Circuit’s] conclusion that to override the FAA, Section 7 was
required to explicitly provide for a private cause of action for employees, a right to file collective
legal action and the procedures to be employed. That standard . . . reflects a fundamental
misunderstanding of the NLRA and the collective, substantive rights it creates for the Board to
enforce.” Id.
As has been observed by numerous administrative law judges evaluating claims brought
under D.R. Horton and its progeny, I am bound by Board law until either the Board or the
Supreme Court mandates otherwise. Waco, Inc., 273 NLRB 746, 729 fn. 14 (1984) (it is the
judge’s duty to apply Board precedent which the Supreme Court has not reversed and for the
Board and not the judge to determine whether precedent should be varied). In this regard, any

10 That case involved a mandatory waiver. I conclude, however, that the rationale applied by the
Board insofar as it relates to any potential conflict with the FAA and related Court precedent would be
applicable to the circumstances here.
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argument raised by the Respondent that the Board’s actions are misguided, do not comport with
applicable precedent, do not fall within the FAA’s savings clause and that there is no contrary
congressional command that employees’ substantive rights under the NLRA trump the FAA are
appropriately addressed to the Board for its consideration or reconsideration, as the case may
be.
Respondent additionally contends that the charges in this matter are barred by the six-
month limitations period under Section 10(b) of the Act. In support of these contentions,
Respondent asserts that the Agreement is a binding, bilateral agreement between Mobility and
an individual employee and not a work rule maintained during the limitations period. It is argued
that the charges filed by the charging parties are barred because they agreed to be bound more
than two years prior to filing their respective charges. Additionally, Respondent cites to attorney
Shea’s letter in July, 2013 where he notified counsel for Brooks about her agreement to arbitrate
her wage and hour claims, which was sent 10 months prior to the filing of the charge. I do not
agree with such contentions.
As the General Counsel has noted, the complaint alleges and it is urged that
Respondent, since December 2011 and at all material times, has promulgated, maintained and
enforced the Agreement, with the terms set forth, in relevant part, above. Respondent has
admitted that the charging parties consented to the terms of the agreement containing, among
other things, the terms set forth above. The evidence shows, and there can be no genuine
dispute, that Respondent continues to maintain the Agreement and has done so during the
relevant limitations period. I further find that the Agreement is tantamount to a work rule insofar
as it affects terms and conditions of employment, and limits its employees’ efforts to enforce or
change them.
The Board has repeatedly held that the maintenance of an unlawful rule is a continuing
violation, regardless of when the rule was first promulgated. Chesapeake Energy Corp, supra
slip op. at 1 fn. 3 (and cases cited therein).
Here, Respondent first distributed the Agreement to employees in November 2011. It is
clear, however that Respondent continued to maintain and enforce the Agreement and the
policy contained therein within the 10(b) period. In this regard, Shea’s December 30, 2013 email
to Adler specifically referenced the Agreement and Respondent’s position that it prohibits the
filing of class or collective actions. As discussed above, Shea reiterated Respondent’s position
in subsequent communications dated January 22, 2014, February 21, 2014 and March 31,
2014. There is no evidence or any contention by Respondent that the Agreement has been
rescinded.
As the charging parties filed their respective charges on May 1, 2014, it is apparent that
the Agreement was maintained during the 10(b) period. I therefore find that Respondent’s
affirmative defense regarding the timeliness of the charges and complaint must be rejected.
Conclusions of Law
1. The Employer, AT&T Mobility Services, LLC, is an employer within the meaning of
Section 2(2), (6) and (7) of the Act.
2. At all material times, Respondent has violated Section 8(a)(1) of the Act by maintaining
an arbitration policy that waives the rights of its employees to file and maintain class and
collective actions in all forums, arbitral and judicial and is applicable to those employees who
have failed to opt out of coverage under the arbitration policy during a one-time initial opt out
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period permitted to each employee.
3. The above violations are unfair labor practices within the meaning of the Act
4. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the Respondent’s Management Arbitration
Agreement (Agreement) is unlawful, Respondent shall be ordered to rescind or revise it to make
clear to employees (in all of its facilities in which the Agreement has been implemented), that
the Agreement does not constitute or require a waiver in all forums of their right to maintain or
participate in collective and/or class actions, and shall notify employees of the rescinded or
revised Agreement by providing them a copy of the revised policy or specific notification that the
Agreement has been rescinded. Respondent is also ordered to distribute appropriate remedial
notices to its employees electronically, such as by email, posting on an internet or intranet site,
and/or other appropriate electronic means, if it customarily communicates with its employees by
such means. J. Picini Flooring, 356 NLRB No. 9 (2010).11
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12
ORDER
The Respondent, AT&T Mobility Services, LLC its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Maintaining any arbitration agreement or policy that waives the right of employees to file and
maintain class or collective actions in all forums, arbitral and judicial, and which applies
irrevocably to those employees who fail to opt out.
(b) In any like or related manner, interfering with, restraining or coercing employees in the
exercise of their rights under the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind or revise the Management Arbitration Agreement (Agreement) currently applied to
its employees, at all locations where it is in effect, to make clear to employees that the
Agreement does not constitute or require a waiver in all arbitral or judicial forums of their right to
maintain employment-related class or collective actions.

11 The record here so indicates.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(b) Notify employees of the rescinded or revised Agreement by providing them a copy of the
new revised Agreement and/or specific written notification that the Agreement has been
rescinded.
c) Within 14 days after service by the Region, post at its facilities where the Agreement has
been in effect copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In addition to the physical
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
internet or intranet site, and/or other electronic means. In the event that, the Respondent has
gone out of business or closed any facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at such facility or facilities at any time since
November, 2011.
(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
the Respondent has taken to comply.
Dated, Washington, D.C. June 26, 2015
____________________
Mindy E. Landow
Administrative Law Judge

13 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(NY)-30-15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain any arbitration agreement or policy that waives the right of employees
to file and maintain class or collective actions in all forums, arbitral and judicial, and which
applies irrevocably to those employees who fail to opt out.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce you in the
exercise of your rights under the Act.
WE WILL rescind or revise the Management Arbitration Agreement (Agreement) currently
applied to our employees, at all locations where it is in effect, to make clear to employees that
such an agreement does not constitute or require a waiver in all arbitral or judicial forums of
their right to maintain employment-related class or collective actions.
WE WILL notify employees of the rescinded or revised Agreement by providing them a copy of
the new revised Agreement and/or specific written notification that the Agreement has been
rescinded.
AT&T MOBILITY SERVICES, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
JD(NY)-30-15
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-CA-127746 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.