BUY-LOW MARKET, INC.

National Labor Relations Board - Board Decisions

Sep 6, 2018

367 NLRB No. 1 (N.L.R.B. 2018)

367 NLRB No. 1
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.
Buy-Low Market, Inc. and Nesked Palacios. Case 21–
CA–173346
September 6, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On February 3, 2017, Administrative Law Judge
Amita Baman Tracy issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. The Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decisions in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in rele-
vant part, 737 F.3d 344 (5th Cir. 2013), and Murphy Oil
USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant
part, 808 F.3d 1013 (5th Cir. 2015), that the Respondent
violated Section 8(a)(1) of the National Labor Relations
Act by implementing, maintaining, and enforcing its dis-
pute resolution agreement, formally titled the “Mutual
Arbitration Agreement,” that requires employees, as a
condition of employment, to waive their rights to pursue
class or collective actions involving employment-related
claims in all forums, whether arbitral or judicial.
Recently, the Supreme Court issued a decision in Epic
Systems Corp. v. Lewis, 584 U.S. __, 138 S.Ct. 1612
(2018), a consolidated proceeding that included review
of court decisions below in Lewis v. Epic Systems, 823
F.3d 1147 (7th Cir. 2016), Morris v. Ernst & Young LLP,
834 F.3d 975 (9th Cir. 2016), and Murphy Oil USA, Inc.
v. NLRB, 808 F.3d 1013 (5th Cir. 2015). Epic Systems
concerned the issue, common to all three cases, whether
employer-employee agreements that contain class- and
collective-action waivers and stipulate that employment
disputes are to be resolved by individualized arbitration
violate the National Labor Relations Act. Id. at __, 138
S.Ct. at 1619–1621, 1632. The Supreme Court held that
such employment agreements do not violate this Act and
that the agreements must be enforced as written pursuant
to the Federal Arbitration Act. Id. at __, 138 S.Ct. at
1619, 1632.
The Board has considered the decision and the record
in light of the exceptions and briefs. In light of the Su-
preme Court’s ruling in Epic Systems, which overrules
the Board’s holding in Murphy Oil, we conclude that the
complaint must be dismissed.1
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 6, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Alice J. Garfield, Esq., for the General Counsel.
James M. Gilbert, Esq. and Darren D. Daniels, Esq., for the
Respondent.
Daniel J. Bass, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case
is before me on the parties’ motion to submit case on stipula-
tion and stipulation of facts (Joint Motion), which I approved
on November 1, 2016.1 Nesked Palacios (Palacios or Charging
Party) filed the charge in Case 21–CA–173346 on April 5,
2016. The General Counsel issued the complaint (the com-
plaint) on July 27, 2016.
The complaint alleges that Buy-Low Market, Inc. (Respond-
ent) violated Section 8(a)(1) of the National Labor Relations
Act (the Act) by implementing, maintaining, and enforcing a
Mutual Arbitration Agreement (the Agreement). Specifically,
the complaint alleges Respondent required its employees, as a
condition of employment, since about August 17, 2010, to re-
solve certain employment-related disputes exclusively through
individual arbitration rather than through collective or class
action. Furthermore, the complaint alleges on August 17, 2010,
Respondent required Palacios to sign and be bound to the
Agreement as a condition of employment. Finally, the com-
plaint alleges on December 11, 2015, Respondent enforced the
Agreement by filing and pursuing a motion to compel arbitra-
tion and dismiss class claims in Los Angeles County Superior

1 We therefore find no need to address other issues raised by the Re-
spondent’s exceptions.
1 Abbreviations used in this decision are as follows: “Jt. Mt.” for
Joint Motion; “Exh.” for exhibit; “par.” for paragraph; “GC Br.” for
General Counsel’s brief; and “R. Br.” for Respondent’s brief.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Court in response to a class action lawsuit filed by Palacios
alleging wage-and-hour violations and other violations.
Respondent filed a timely answer on August 10, 2016.
For the reasons that follow, I find that Respondent violated
Section 8(a)(1) of the Act when it implemented, maintained,
and enforced the Agreement.
On the Joint Motion which consists of the stipulated facts
and exhibits, and after considering the briefs filed by the Gen-
eral Counsel and Respondent,2 I make the following3
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, operates retail grocery
stores throughout southern California along with its principle
place of business located at 522 East Vermont, Anaheim, Cali-
fornia, where it annually derived gross revenues in excess of
$500,000 and purchased and received at its stores throughout
southern California goods valued in excess of $50,000 from
points outside the State of California. Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act (Jt. Mt. at par.
3, 4, and 5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Charging Party’s Employment with Respondent
The Charging Party’s personnel file contained the Agree-
ment, which he signed on August 17, 2010, when he began
working for Respondent. The Charging Party signed the
Agreement, along with other on-boarding documents, on or
about the date he began working for Respondent. Charging
Party’s employment with Respondent ended on June 28, 2013
(Jt. Mt. at par. 6).
B. The Agreement: Arbitration Provision
Since August 2010, Respondent implemented and maintains
the Agreement (Jt. Mt. at par. 6). The Agreement, a one-page,
single spaced document, states in pertinent part:
In recognition of the fact that differences may arise between
Employer and Employee (collectively, the “parties”) during or
after Employee’s employment, [. . .] the Employer and Em-
ployee agree as follows:
Agreement to Arbitrate: Designated Claims: The Employer
and the Employee agree to resolve through binding arbitration
any disputes or claims having anything to do with the Em-
ployer’s application for employment, employment, or separa-
tion from employment with the Employer [. . .].
Arbitrable Claims: Examples of disputes the parties agree to
submit for arbitration include, but are not limited to claims for

2 The Charging Party did not file a posthearing brief but instead
joined the General Counsel’s brief.
3 Although I have included several citations to the record to high-
light particular stipulations or exhibits, I emphasize that my findings
and conclusions are based not solely on the evidence specifically cited,
but rather are based on my review and consideration of the entire rec-
ord.
discrimination based on mental or physical disability, religion,
national origin, race, age, sex, or any other protected basis un-
der state and federal law [. . .] wrongful termination; [. . .] and
all other charges related to any aspect of the employee’s em-
ployment relation ship [sic] with the Employer. By law,
claims such as those involving workers’ compensation, un-
employment insurance, and wage and hour pay complaints
may not be submitted to arbitration, and therefore are not cov-
ered by this Agreement. Nothing contained in this agreement
shall preclude the filing of an administrative charge/complaint
with the United States Equal Employment Opportunity
Commission, the California Department of Fair Employment
& Housing and/or the National Labor Relations Board. These
claims must, however, be arbitrated if they are removed from
the appropriate administrative agency’s jurisdiction for any
reason.
[. . .]
The parties acknowledge this is the entire agreement between
them regarding the subject of arbitration and understand that
any modification of this Agreement must be in writing and
signed by the parties. The parties further acknowledge that
they have carefully read this Agreement, understand its terms,
and have been afforded an opportunity to consult with counsel
of their own choosing before signing it.
(Jt. Mt. at Exh. 4.)
Respondent considered Charging Party and it to be bound to
the Agreement (Jt. Mt. at par. 7).
C. Charging Party’s Class Action Lawsuit
On July 21, 2015, Charging Party filed a wage-and-hour
class action lawsuit against Respondent, entitled: Nesked Pala-
cios v. Buy-Low Market, Inc., et al., Case No. BC-588838, Cen-
tral Civil West Division of the Superior Court in the State of
California, County of Los Angeles (Jt. Mt. at par. 8, Exh. 5).4
On September 25, 2015, Respondent demanded that, pursu-
ant to the Agreement, the Charging Party submit his individual
claim to arbitration and dismiss his class claims (Jt. Exh. at par.
9, Exh. 6). On October 2, 2015, Charging Party refused (Jt. Mt.
at par. 9, Exh. 7).
On December 11, 2015, Respondent sought to enforce the
Agreement by filing a motion to compel arbitration of Charging
Party’s individual claims and dismiss the class claims (Jt. Mt. at
par. 10–11, Exh. 8, 10–22).
On May 2, 2016, Judge Kenneth R. Freeman of the Superior
Court of the State of California, County of Los Angeles, grant-
ed Respondent’s motion to compel arbitration, struck the class
allegations and declined to enforce the class claims in arbitra-
tion. Charging Party did not appeal the dismissal of the class
claims with the California Court of Appeals (Jt. Mt. at par. 12,
14).

4 Respondent in this unfair labor practice complaint is limited to
Buy-Low Market, Inc., and does not include any additional plaintiffs
named in the Superior Court proceedings.
BUY-LOW MARKET, INC. 3
III. ANALYSIS
Respondent’s Agreement Violates Section 8(a)(1) of the Act
The complaint alleges that since August 2010, Respondent
has required employees, as a condition of employment, to be
bound by the Agreement which requires individual arbitration
proceedings thereby violating Section 8(a)(1) of the Act. The
parties stipulated that Palacios signed the Agreement in August
2010, and Respondent considered Palacios and it to be bound
by the Agreement. Respondent admits that it has maintained
and enforced the Agreement with regard to Palacios.
Respondent, however, denies that signing the Agreement
was a mandatory condition of employment, and that the Gen-
eral Counsel failed to prove as such. Respondent’s argument is
without merit. Based on the exhibits submitted by the parties in
the Joint Motion, it is clear that Charging Party signed the
Agreement along with other on-boarding documents on or
about his first day of employment with Respondent.5 Moreo-
ver, this Agreement does not clarify whether it is mandatory or
optional. When being asked to sign the Agreement, at the start
of employment, an employee would not likely refuse to sign.
Regardless, the Board has stated that an employer violates the
Act whether or not an arbitration agreement is mandatory or
voluntary. The Board reasoned that even a voluntary arbitra-
tion agreement, or one that has an opt-out provision, requires
employees to prospectively waive their Section 7 right which is
unlawful. On Assignment Staffing Services, 362 NLRB No.
189 (2015). Thus, I find that Respondent imposed a mandatory
rule, and as such the Agreement should be evaluated in the
same manner as any workplace rule. See D. R. Horton, Inc.,
357 NLRB 2277 (2012), enfd. denied in relevant part 737 F.3d
344 (5th Cir. 2013); NLRB v. Murphy Oil USA, Inc., 361 NLRB
774 (2014), enfd. denied in relevant part 808 F.3d 1013 (5th
Cir. 2015), cert. granted, 2017 WL 125666 (Jan. 13, 2017).6
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right
“to form, join or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collec-

5 In addition, since Respondent presented Palacios with the Agree-
ment along with his other on-boarding documents, it is more likely than
not, that other employees signed the Agreement at least on or after this
time period. Palacios is unlikely to be the only employee who signed
the Agreement and Respondent’s assertion that the General Counsel
failed to present evidence of any other employee signing the Agreement
is disingenuous. However, even if Palacios is the only employee at
Respondent to sign the Agreement, the Agreement remains unlawful
for the reasons set forth in this decision.
6 On January 13, 2017, the Supreme Court granted certiorari in
NLRB v. Murphy Oil USA, Inc., along with Epic Systems Corp. v. Lew-
is, 823 F.3d 1147 (7th Cir. 2016), cert. granted 2017 WL 125664 (Jan-
uary 13, 2017) and Ernst & Young, et al. v. Morris, 834 F.3d 975 (9th
Cir. 2016), cert. granted, 2017 WL 125665 (Jan. 13, 2017). These three
cases present the issue of whether arbitration agreements that bar em-
ployees from pursuing work-related claims on a collective or class basis
in any forum violates Sec. 8(a)(1) of the Act. Unless the Supreme
Court decides otherwise, I am bound by Board precedent.
tive bargaining or other mutual aid or protection . . .” The
Board has consistently held that collective legal action involv-
ing wages, hours, and/or working conditions is protected con-
certed activity under Section 7. See, e.g., Spandsco Oil & Roy-
alty Co., 42 NLRB 942, 949–950 (1942); United Parcel Ser-
vice, 252 NLRB 1015, 1018, 1022 fn. 26 (1980), enfd. 677 F.2d
421 (6th Cir. 1982); D. R. Horton, supra at 2274.
In Murphy Oil USA, the Board reaffirmed its ruling in D. R.
Horton, in which it held that mandatory arbitration agreements
which preclude the filing of joint, class, or collective claims
addressing wages, hours, or other working conditions in any
forum, arbitral or judicial, is protected concerted activity and
unlawfully restrict employees’ Section 7 rights, thus violating
Section 8(a)(1) of the Act.
Furthermore, the Board held that Section 8(a)(1) of the Act is
violated when an employer requires its employees to agree to
resolve all employment-related claims through individual arbi-
tration. Mandatory arbitration agreements which bar employ-
ees from bringing joint, class, or collective actions regarding
the workplace in any forum restrict employees’ substantive
right established by Section 7 of the Act to improve their work-
ing conditions through administrative and judicial litigation.
Countrywide Financial Corp., 362 NLRB No. 165, slip op. at 4
(2015) (Board made clear in D. R. Horton, supra at 2284, that
employers are “free to insist” that employees arbitrate their
employment claims and to require that the “arbitral proceed-
ings be conducted on an individual basis,” but only “[s]o long
as [they left] open an judicial forum for class and collective
claims . . .” (emphasis in original)).
Respondent argues that the Agreement does not expressly
preclude class or collective action. I agree that the Agreement
does not explicitly prohibit class or collective action. However,
Respondent, in its Superior Court filings, argues that because
the Agreement does not authorize class arbitration, the Charg-
ing Party may only arbitrate his claims individually and the
class claims dismissed (Jt. Mt. Exh. 8). Respondent cannot
have it both ways—in this forum argue that class or collective
action is not expressly precluded but then argue in another
forum that since the Agreement does not explicitly permit such
collective or class action the Charging Party may only pursue
his claims individually. In accordance with its position in the
Superior Court action, Respondent moved to compel individual
arbitration of Charging Party’s claims. The Act provides that
employees may “join together to pursue workplace grievances,
including through litigation.” D. R. Horton, supra at 2278.
Furthermore, the Board found there is no conflict between the
Act and the Federal Arbitration Act as long as “the employer
leaves open a judicial forum for class and collective claims
[. . .].” Id. at 2288. Respondent, by taking the position in
Charging Party’s class action claim that the Agreement does
not permit class claims as it was not explicitly stated, fore-
closed the possibility of pursuing collective and/or class action
litigation in any other forum. Thus, contrary Respondent’s
argument, the Agreement precludes class or collective action.
Furthermore, as the majority reaffirmed in Murphy Oil, “the
NLRA does not create a right to class certification or the equiv-
alent, but as the D. R. Horton Board explained, it does create a
right to pursue joint, class, or collective claims if and as availa-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ble, without the interference of an employer-imposed restraint.”
Murphy Oil, supra, slip op. at 2 (citing D. R. Horton, supra, at
2286 fn. 24). Here, Respondent’s Agreement, as a condition of
employment, precludes employees from pursuing claims con-
certedly and thus “amounts to a prospective waiver of a right
guaranteed by the NLRA.” Murphy Oil, supra, slip op. at 9
(citing National Licorice Co. v. NLRB, 309 U.S. 350, 361
(1940), and J. I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944)).
This preclusion infringes on employees’ Section 7 rights.
When evaluating whether a rule, including an arbitration
provision, violates Section 8(a)(1), the Board applies the test set
forth in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). See U-Haul Co. of California, 347 NLRB 375, 377
(2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D. R. Hor-
ton; Murphy Oil; Cellular Sales of Missouri, 362 NLRB No. 27
(2015). Under Lutheran Heritage, the first inquiry is whether
the rule explicitly restricts activities protected by Section 7. If
it does, the rule is unlawful. If it does not, the violation is de-
pendent upon a showing of one of the following: (1) employees
would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to [Section 7]
activity; or (3) the rule has been applied to restrict the exercise
of Section 7 rights. Lutheran Heritage, 343 NLRB at 647. The
Board in D. R. Horton and Murphy Oil found that mandatory
arbitration policies expressly violated employees’ rights to
engage in protected concerted activity under the Lutheran Her-
itage analysis. See also Brinker International Payroll Co., 363
NLRB No. 54 (2015). The Board held that if an arbitration
policy is required as a condition of employment, then that rule
violates Section 8(a)(1) of the Act if employees would reasona-
bly believe the policy or rule interferes with their ability to file
a Board charge or access to the Board’s processes, even if poli-
cy or rule does not expressly prohibit access to the Board. Cel-
lular Sales, supra, slip op. 1, fn. 4.
Here, Respondent implemented and maintained the Agree-
ment as a condition of employment since August 2010. The
Agreement prohibits employees from pursuing employment-
related claims on a class or collective basis. Thus, I find that
the Agreement was a mandatory rule imposed by Respondent
as a condition of employment and precludes the right to pursue
concerted legal action violating Section 8(a)(1) of the Act. See
D. R. Horton, supra at 2280; Murphy Oil, supra, slip op. at 24.
The Agreement requires employees to agree to pursue any dis-
pute they have against Respondent solely through individual
arbitration thereby violating Section 8(a)(1) of the Act.
In addition, it is well-established that an employer’s en-
forcement of an unlawful rule, such as the Agreement, inde-
pendently violates Section 8(a)(1). See Murphy Oil, supra, slip
op. at 19–21. By asserting the Agreement as an affirmative
defense in Charging Party’s wage-and hour class action lawsuit,
Respondent enforced its arbitration policy to compel Palacios
to arbitrate his claim on an individual basis. Respondent’s
filing of a motion to compel arbitration and dismiss class
claims violated Section 8(a)(1) as it invoked an unlawful arbi-
tration policy to reject an employee’s class action lawsuit.
Respondent’s action is similar to the factual scenario found
unlawful by the Board in Murphy Oil. Accordingly, Respond-
ent also violated Section 8(a)(1) when it enforced the unlawful
rule.
Respondent’s Additional Affirmative Defenses
1. Charging Party’s charge in this matter is not untimely
Section 10(b) of the Act provides that “no complaint shall is-
sue based upon any unfair labor practice occurring more than
six months prior to the filing of the charge. . . .” Respondent
argues that Charging Party’s unfair labor practice charge, filed
on April 5, 2016, was untimely as Respondent initially de-
manded on September 25, 2015, that Charging Party dismiss
his class complaint. However, Respondent continued to main-
tain and enforce the Agreement within the 6-month period prior
to the filing of the charge in this case. Accordingly, despite the
fact that Charging Party signed the Agreement, and Respondent
initially enforced the Agreement outside the statute of limita-
tions period, this matter is not precluded by Section 10(b) of the
Act. The Board has long held under these circumstances a rule,
such as the Agreement, constitutes a continuing violation that is
not time barred by Section 10(b). See PJ Cheese Inc., 362
NLRB No. 177, slip op. at 1 (2015); Neiman Marcus Group,
362 NLRB No. 157, slip op. at 2 and fn. 6 (2015); Cellular
Sales, supra, slip op. at 2 and fn. 7 (2015).
2. The doctrines of collateral estoppel and res judicata
are not applicable
Respondent argues that Charging Party is attempting to relit-
igate the issue of whether he can proceed in court as a class
action and is merely forum shopping. Respondent raises the
doctrines of collateral estoppel and res judicata as barring
Charging Party’s requested relief. Respondent argument has no
merit. Significantly, the Board was not a party to Palacios’
class action complaint. The Board has consistently held that
court decisions in private litigation are not binding on the
Board under the doctrines of res judicata or collateral estoppel.
See UnitedHealth Group, Inc., 363 NLRB No. 134 (2016);
Bloomingdales, Inc., 363 NLRB No. 172, slip op. at 4 fn. 8
(2016), citing Field Bridge Associates, 306 NLRB 322 (1992),
enfd. 982 F.2d 845, 850 (2d Cir. 1993), cert denied 509 U.S.
904 (1993) (“The Board adheres to the general rule that if the
Government was not a party to the prior private litigation, it is
not barred from litigating an issue involving enforcement of
Federal law which the private plaintiff has litigated unsuccess-
fully.”). Hence, Respondent’s argument fails.
3. Respondent’s “savings clause” defense is without merit
Respondent argues that the Agreement specifically precludes
Board charges or complaints which distinguish its arbitration
agreement from those found unlawful in D. R. Horton and
Murphy Oil. Respondent essentially created a “savings clause.”
In SolarCity Corp., 363 NLRB No. 83, slip op. at 6 (2015),
which has a similar provision, the Board, citing Ingram Book
Co., 315 NLRB 515, 516 fn. 2 (1994) stated, “[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.” “With this principle in mind, the Board
routinely has found insufficient language in workplace rules
purporting to except, or “save,” employees’ legal rights to re-
BUY-LOW MARKET, INC. 5
strictions on their conduct. This is so even where such excep-
tions as found in the Agreement referred to the “NLRA” or “the
National Labor Relations Act.” SolarCity Corp, supra. More-
over, Respondent also indicates in the Agreement that employ-
ee disputes concerning any part of his or her employment shall
be addressed in binding arbitration which creates confusion for
employees as to which disputes would be handled via binding
arbitration or Board charge/unfair labor practice. The Agree-
ment is vague and leaves employees questioning and not risk-
ing violating the rule by exercising Section 7 rights. Id. Board
law is settled that ambiguous rules are construed against the
employer. Thus, Respondent’s claim is without merit.
In sum, Respondent’s Agreement violates Section 8(a)(1) of
the Act as Respondent implemented, maintained and enforced
an unlawful rule.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by imple-
menting, maintaining and enforcing a Mutual Arbitration
Agreement which required employees to resolve employment-
related disputes exclusively through individual arbitration and,
though not expressly, but in practice, required them to relin-
quish any right they have to resolve such disputes through col-
lective or class action.
3. Respondent violated Section 8(a)(1) of the Act by seeking
to enforce its unlawful mutual arbitration agreement by filing a
motion in Superior Court compelling individual arbitration and
dismissing Charging Party’s class action.
4. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, consistent with the Board’s decisions in D. R.
Horton and Murphy Oil, I shall order it to cease and desist there
from and to take certain affirmative action designed to effectu-
ate the policies of the Act.
As I have concluded that the Agreement is unlawful, the rec-
ommended Order requires that Respondent revise or rescind it
to make clear to employees that the Agreement does not consti-
tute a waiver of their right to maintain employment-related
joint, class, or collective actions in all forums. Respondent
shall notify all current and former employees since Au-
gust 2010 who were required to sign the Agreement that it has
been rescinded or revised, and if revised, provide them a copy
of the revised Agreement.
Respondent shall be required to reimburse Charging Party
for any reasonable attorneys’ fees and litigation expenses, with
interest, to date and in the future, directly related to opposing
Respondent’s filing its motion to compel arbitration of Charg-
ing Party’s individual claims and dismiss the class claims in
Nesked Palacios v. Buy-Low Market, Inc., et al., Case No. BC-
588838, Central Civil West Division of the Superior Court in
the State of California, County of Los Angeles. Determining
the applicable rate of interest on the reimbursement will be as
outlined in New Horizons, 283 NLRB 1173 (1987). Interest on
all amounts due to Charging Party shall be computed on a daily
basis as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
Respondent shall also be required to notify the Central Civil
West Division of the Superior Court in the State of California,
County of Los Angeles, Case No. BC-588838, that it has re-
scinded or revised the Agreement upon which it based its mo-
tion to compel arbitration of Charging Party’s individual claims
and dismiss the class claims, and inform the Superior Court that
it no longer opposes the lawsuit on the basis of the Agreement.
Respondent shall post a notice in all locations where the
Agreement was in effect. See, e.g., U-Haul of California, su-
pra, fn. 2; D. R. Horton, supra at 2289; Murphy Oil, supra, slip
op. at 22. Respondent is also ordered to distribute appropriate
remedial notices to its employees electronically, such as by
email, posting on an intranet or internet site, and/or other ap-
propriate electronic means, if it customarily communicates with
its employees by such means. J. Picini Flooring, 356 NLRB
11 (2010).
On these findings of fact and conclusions of law and the en-
tire record, I issue the following recommended.7
ORDER
Respondent, Buy-Low Market, Inc., Anaheim, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Implementing, maintaining and/or enforcing a Mutual
Arbitration Agreement that requires employees to waive the
right to maintain employment-related class or collective actions
in all forums, whether arbitral or judicial.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the Mutual Arbitration Agreement in all its
forms, or revise it in all its forms to make clear that the Mutual
Arbitration Agreement does not constitute a waiver of employ-
ees’ right to initiate or maintain employment-related joint,
class, or collective actions in all forums.
(b) Notify all current and former employees since August
2010 who were required to sign or otherwise be bound to the
Mutual Arbitration Agreement in any form that it has been
rescinded, or revised, and, if revised, provide them with a copy
of any revised agreement, and further notify them that the Mu-
tual Arbitration Agreement will not be enforced in a manner
that compels them to waive their rights to maintain employ-
ment-related joint, class or collective action in all forums.
(c) Notify the Central Civil West Division of the Superior
Court in the State of California, County of Los Angeles, Case
No. BC-588838, that it has rescinded or revised the Mutual
Arbitration Agreement upon which it based its motion to com-

7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pel arbitration of Charging Party’s individual claims and dis-
miss the class claims, and inform the Superior Court that it no
longer opposes the lawsuit on the basis of the Mutual Arbitra-
tion Agreement.
(d) In the manner set forth in this decision, reimburse
Nesked Palacios in Case No. BC-588838 for any reasonable
attorneys’ fees and litigation expenses that he may have in-
curred in opposing Respondent’s motion to compel arbitration
of Charging Party’s individual claims and dismiss the class
claims.
(e) Within 14 days after service by the Region, post at its fa-
cility in Anaheim, California, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondent at any time since February 1,
2015.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. February 3, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT implement, maintain and/or enforce an arbitra-
tion agreement that requires employees to waive the right to
maintain employment-related class or collective action in all
forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the arbitration agreement in all its forms or
revise it in all of its forms to make clear that the arbitration
agreement does not constitute a waiver of your rights to main-
tain employment-related joint, class, or collective action in all
forums.
WE WILL notify all current and former employees who were
required to sign or otherwise become bound to the arbitration
agreement in all its forms that it has been rescinded or revised
and, if revised, WE WILL provide them a copy of the revised
policy.
WE WILL notify the court in which Nesked Palacios filed his
class action lawsuit that we have rescinded or revised the arbi-
tration agreement upon which we based our motion to compel
arbitration of Nesked Palacios’ individual claims and dismiss
the class claims, and WE WILL inform the court that we no long-
er oppose Nesked Palacios’ class action lawsuit on the basis of
that arbitration agreement.
WE WILL reimburse Nesked Palacios for any reasonable at-
torneys’ fees and litigation expenses that he may have incurred
in opposing our motion to compel arbitration of Nesked Pala-
cios’ individual claims and dismiss the class claims.
BUY-LOW MARKET, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-173346 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.