Citi Trends, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 2015

363 NLRB No. 74 (N.L.R.B. 2015)

363 NLRB No. 74
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.
Citi Trends, Inc. and Dedrick Peterkin. Case 10–CA–
133697
December 22, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On March 9, 2015, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
1. We affirm the judge’s finding, pursuant to D. R.
Horton, 357 NLRB No. 184 (2012), enf. denied in rele-
vant part, 737 F.3d 344 (5th Cir. 2013), and Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), enf. denied in rele-
vant part, __ F.3d __ (5th Cir. 2015), that the Respond-
ent’s Mandatory Arbitration Agreement (MAA) is un-
lawful because it requires employees to waive their right
to maintain class or collective actions in all forums,
whether arbitral or judicial. We, like the judge, reject the
Respondent’s argument that the complaint is time barred
by Section 10(b) because the initial unfair labor practice
charge was filed and served more than 6 months after the
Charging Party signed the MAA. The Respondent con-
tinued to maintain the unlawful arbitration policy during
the 6-month period preceding the filing of the initial
charge. The Board has long held under these circum-
stances that maintenance of an unlawful workplace rule,
such as the Respondent’s arbitration policy, 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 & fn. 6 (2015); and Cellular Sales of Mis-
souri, LLC, 362 NLRB No. 27, slip op. at 2 & fn. 7
(2015).2

1 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language, and we shall
substitute a new notice to conform to the Order as modified.
2 We disagree with our dissenting colleague’s argument that manda-
tory arbitration agreements do not violate the Act, for the reasons stated
in Murphy Oil, 361 NLRB No. 72, slip op. at 1–21, and in Bristol
Farms, 363 NLRB No. 45 (2015).
2. The judge found the MAA independently unlawful
because employees would reasonably believe that it bars
or restricts their right to file charges with the Board.
Because the General Counsel did not litigate this theory
of a violation before the judge, we find that the judge
erred in making this finding.
The complaint sets forth portions of the MAA and
generally alleges that, by maintaining the MAA, the Re-
spondent has been interfering with, restraining, and co-
ercing employees in the exercise of their Section 7 rights.
The General Counsel’s statement of position to the
judge3 argued only that the MAA was unlawful because
it prohibited employees from filing joint, class, or collec-
tive workplace claims against their employer; the Gen-
eral Counsel did not argue that the MAA was also unlaw-
ful because employees would reasonably read it to re-
strict their right to file charges with the Board. Similarly,
in his subsequent brief to the judge, the General Counsel
focused exclusively on the MAA’s restriction on filing
joint, class, or collective claims and made no argument
regarding how employees would understand the MAA’s
impact on their ability to file charges with the Board.
In these circumstances, the judge’s finding of an unfair
labor practice on the theory that employees would rea-
sonably believe that the MAA bars or restricts their right
to file charges with the Board cannot stand. Compare
Sierra Bullets LLC, 340 NLRB 242, 242–243 (2003).
Accordingly, we reverse that finding.
ORDER
The National Labor Relations Board orders that the
Respondent, Citi Trends, Inc., Darlington, South Caroli-
na, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement
(MAA) that requires employees, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive actions in all forums, whether arbitral or judicial.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the MAA in all of its forms, or revise it in
all of its forms to make clear to employees that the MAA
does not constitute a waiver of their right to maintain
employment-related joint, class, or collective actions in
all forums.
(b) Notify all applicants and current and former em-
ployees who were required to sign or otherwise became

3 This case was submitted to the judge on a joint motion to waive a
hearing and have the case decided on a stipulated record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
bound to the MAA in any form that it has been rescinded
or revised and, if revised, provide them a copy of the
revised agreement.
(c) Within 14 days after service by the Region, post at
its Darlington, South Carolina facility and at all other
facilities where the unlawful MAA is or has been in ef-
fect, copies of the attached notice marked “Appendix.”4
Copies of the notice, on forms provided by the Regional
Director for Region 10, 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, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, 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 to all current employees and former employees em-
ployed by the Respondent at any time since January 30,
2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 22, 2015
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
Mandatory Arbitration Agreement (MAA) violates Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act

4 If this Order is enforced by a judgment of the 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.”
or NLRA) because the MAA waives the right to partici-
pate in class or collective actions regarding non-NLRA
employment claims. I respectfully dissent from this find-
ing for the reasons explained in my partial dissenting
opinion in Murphy Oil USA, Inc.1
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.2 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”3 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-

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 recently denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, No. 14-60800, 2015 WL 6457613 (5th Cir. 2015). As
my colleagues point out, the General Counsel did not challenge the
MAA on the basis that employees would reasonably believe it bars or
restricts their right to file charges with the Board. The judge therefore
erred in finding the MAA unlawful on this ground, and I join my col-
leagues in reversing that finding.
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such grievanc-
es adjusted, without the intervention of the bargaining representative, 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 legislative history
shows that Congress intended to preserve every individual employee’s
right to “adjust” any employment-related dispute with his or her em-
ployer. See Murphy Oil, above, slip op. at 31–32 (Member Miscimarra,
dissenting in part).
CITI TRENDS, INC. 3
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;4 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class waiver agreements;5 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).6 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. December 22, 2015
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

4 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D.R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
5 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D.R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., No. 14-CV-5882 (VEC), 2015 WL 1433219
(S.D.N.Y. Mar. 27, 2015); Nanavati v. Adecco USA, Inc., No. 14-cv-
04145-BLF, 2015 WL 1738152 (N.D. Cal. Apr. 13, 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).
6 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment (MAA) that requires you, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive 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 MAA in all of its forms, or revise
it in all of its forms to make clear that the MAA does not
constitute a waiver of your right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums.
WE WILL notify all applicants and current and former
employees who were required to sign or otherwise be-
came bound to the MAA in any form that it has been
rescinded or revised and, if revised, WE WILL provide
them a copy of the revised agreement.
CITI TRENDS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/10-CA-133697 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Michael W. Jeannette, Esq., for the General Counsel.
Edward M. Cherof, Esq. (Jackson Lewis P.C.), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case is be-
fore me on the parties’ January 2, 2015 joint motion to waive a
hearing and have a decision based on a stipulated record,1 and
Associate Chief Judge William N. Cates’ January 12, 2015
order accepting the motion, setting a briefing schedule, and
designating me as the judge to prepare the decision. On Febru-
ary 23, 2015, the General Counsel and the Respondent timely
filed briefs, which I have duly considered.
Issues
As stipulated, the primary issue is whether the Board’s deci-
sions in D. R. Horton2 and Murphy Oil3 should be applied to
find that Citi Trends, Inc. (the Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by main-
taining a mandatory arbitration agreement (MAA) that provides
for arbitration of employment disputes on an individual basis.
The Respondent also contends that the complaint is barred
by Section 10(b) of the Act because the underlying charge was
filed more than 6 months after the Charging Party signed the
MAA in question.
Stipulated Facts
The Respondent, a Delaware corporation, operates retail
clothing stores in 29 states, with 511 locations, and maintains
distribution warehouses in South Carolina and Oklahoma. At
all material times, the Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
At all material times through the present, Respondent has re-
quired employment applicants and current employees at its
retail sales and distribution warehouses to sign a document
titled “Arbitration Agreement” (mandatory arbitration agree-
ment or MAA), which requires employees to waive their right
to pursue certain class and collective actions before an arbitra-
tor and mandates that certain employment-related disputes be
arbitrated rather than litigated in a court of law.4 Relevant por-
tions of the MAA are as follows:
Class/Collective Action Waiver
This Agreement requires all claims to be pursued on an indi-
vidual basis only. You and the Company hereby waive all
rights to (i) commence, or be a party to, any class, representa-
tive or collective claims or (ii) jointly bring any claim against
each other with any other person or entity. You and the
Company must pursue any claim on an individual basis only,

1 Jt. Exh. 1 (hereinafter the stipulation).
2 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d
344 (5th Cir. 2013), pet. for rehearing en banc denied (5th Cir. No. 12–
60031, April 16, 2014).
3 361 NLRB No. 72 (2014).
4 Stipulation, Exh. 2.
including claims alleging a pattern and practice of unlawful
conduct. In addition, the inability to join others in a claim for
pattern and practice violations shall not by itself constitute a
bar to the pursuit of such a claim.
Lastly, nothing herein limits your right and the rights of others
to collectively challenge the enforceability of this Agreement,
including the class/collective action waiver. Notwithstanding,
the Company will assert that the parties have agreed to pursue
all claims individually in the arbitral forum and may ask a
court to compel arbitration of each individual’s claims. To
the extent that the filing of such an action is concerted activity
protected under the National Labor Relations Act, such filing
will not result in threats, discipline or discharge.
. . .
Receipt and Acknowledgement
By your signature below, you acknowledge receipt of this Ar-
bitration Agreement. You also acknowledge that this Agree-
ment is a legal document which, among other things, requires
you to arbitrate, all claims you may have now or in the future
with the Company, which otherwise could have been brought
in court.
I knowingly and freely agree to this mutual agreement to arbi-
trate claims, which otherwise could have been brought in
court. I affirm that I have had sufficient time to read and un-
derstand the terms of this agreement and that I have been ad-
vised of my right to seek legal counsel regarding the meaning
and effect of this agreement prior to signing. By issuance of
this agreement, the company agrees to be bound to its terms
without any requirement to sign this agreement. [Emphasis on
the form omitted]
G) Either party can reference or rely upon other sections of
the Arbitration Agreement in support of its position.
Peterkin began employment at the Respondent’s Darlington,
South Carolina distribution warehouse on about November 24,
2008. On October 16, 2012, he signed the above MAA.5 His
discharge from employment on November 11, 2014, is not
pertinent to this matter. He has never filed or pursued a collec-
tive action against the Respondent.
Analysis and Conclusions
The Respondent’s 10(b) argument
Section 10(b) of the Act provides that “no complaint shall is-
sue based upon on any unfair labor practice occurring more
than six months prior to the filing of the charge. . . .”
The Respondent contends that Section 10(b) bars the General
Counsel from pursuing a complaint inasmuch as the charge was
filed on July 30, 2014, more than 6 months after Peterkin
signed the MAA, on September 16, 2012. However, the Board
has long recognized that Section 10(b) does not bar an allega-
tion of unlawful conduct that began more than 6 months before
a charge was filed but has continued within the 6-month period.
More specifically, Section 10(b) does not preclude a complaint

5 Stipulation, Exh. 3.
CITI TRENDS, INC. 5
allegation based on the maintenance of a facially invalid rule or
policy within the 10(b) period, even if the rule or policy was
promulgated earlier and has not been enforced, since “[t]he
maintenance during the 10(b) period of a rule that transgresses
employee rights is itself a violation of Sec. 8(a)(1).” Register-
Guard, 351 NLRB 1110, 1110 fn. 2 (2007), enfd. in part 571
F.3d 53 (D.C. Cir. 2009), citing Eagle-Picher Industries, Inc.,
331 NLRB 169, 174 fn. 7 (2000). See also Lafayette Park Ho-
tel, 326 NLRB 824, 825 (1998). The Respondent has cited no
contrary precedent.
Therefore, I conclude that Section 10(b) does not bar the in-
stant complaint.
The legality of the MAA
The parties agree that if the principles enunciated in Horton
and Murphy Oil govern, the MAA violates Section 8(a)(1) of
the Act. Thus, the Respondent does not dispute that the MAA
is unlawful under Horton and Murphy Oil; rather, the thrust of
the Respondent’s defense is that those decisions are bad law.
In Horton, the Board analyzed an MAA in the context of
how the Board decides whether other unilaterally-implemented
workplace rules violate Section 8(a)(1), under the test set forth
in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
The Board found that the MAA explicitly restricted the exercise
of Section 7 rights and was therefore unlawful under the first
inquiry set out in Lutheran Heritage Village. The Board held
that an employer violates Section 8(a)(1) of the Act by “requir-
ing employees to waive their right to collectively pursue em-
ployment-related claims in all forums, arbitral and judicial,”
because “[t]he right to engage in collective action—including
collective legal action—is the core substantive right protected
by the NLRA and is the foundation on which the Act and Fed-
eral labor policy rest.” Horton, supra, slip op. at 12 (emphasis
in original).
The Board further concluded that finding such MAA unlaw-
ful was “consistent with the well-established interpretation of
the NLRA and with core principles of Federal labor policy” and
did not “conflict with the letter or interfere with, the policies
underlying the Federal Arbitration Act (FAA) [9 U.S.C., § 1 et
seq.]. . . .” Id., slip op. at 10.
The Respondent argues that the Fifth Circuit Court of Ap-
peals and other Federal appellate courts have rejected Horton to
the extent that it found it to be afoul of the Act an MAA prohib-
iting class action. Thus, 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 MAA should be enforced according
to its terms. 737 F.3d at 361–363. Accordingly, the court de-
nied enforcement of the Board’s order invalidating the MAA.6
In Murphy Oil, the Board acknowledged the Fifth Circuit's
rejection of the Board’s Horton decision on appeal, by a divid-
ed panel, as well as decisions of the Second and Eighth Circuits
also indicating disagreement with Horton, but it cited the well-
established rule that “[t]he Board is not required to acquiesce in

6 The court did enforce the Board’s order that Sec. 8(a)(1) had been
violated because an employee would reasonably interpret the MAA as
prohibiting the filing of a claim with the Board.
adverse decisions of the Federal courts in subsequent proceed-
ings not involving the same parties.” Murphy Oil, supra, slip
op at 2 fn. 17, citing Enloe Medical Center v. NLRB, 433 F.3d
834, 838 (D.C. Cir. 2005), and Nielsen Lithographing Co. v.
NLRB, 854 F.2d 1063, 1066–1067 (7th Cir. 1988). Thus, the
Board has explained that it is not required, on either legal or
pragmatic grounds, to automatically follow an adverse court
decision but will instead respectfully regard such ruling solely
as the law of that particular case. See Manor West, Inc., 311
NLRB 655, 667 fn. 43 (1993), revd. 60 F.3d 1195 (6th Cir.
1995). See also D.L. Baker, Inc., 351 NLRB 515, 529 at fn. 42
(2007); Arvin Industries, 285 NLRB 753, 757 (1987).
The Board in Murphy Oil expressly reaffirmed Horton, stat-
ing 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 Rela-
tions Act.” Id., slip op. at 7.
Even assuming arguendo that I agree with the rationales of
the circuit courts that have rejected Horton, I am constrained to
follow Board precedent that has not been reversed by the Su-
preme Court or by the Board itself, rather than contrary courts
of appeals precedent. See Pathmark Stores, 342 NLRB 378,
378 fn. 1 (2004), citing Iowa Beef Packers, Inc., 144 NLRB
615 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964); Waco,
Inc., 273 NLRB 746, 749 fn. 14 (1984).
The Supreme Court, in upholding the enforcement of indi-
vidual MAAs in various contexts, has enunciated the general
principal that the FAA was designed to promote arbitration.
See, e.g., AT & T Mobility LLC v. Conception, 131 S.Ct. 1740,
1749 (2011). Moreover, the Court in Gilmer v. Inter-
state/Johnson Lane Corp., 500 U.S. 20 (1991), held that a
MAA signed by an employee waived his right to bring a Feder-
al court action under the Age Discrimination in Employment
Act. However, as the Board noted in Horton, Gilmer dealt with
an individual claim, and the MAA contained no language spe-
cifically waiving class or collective claims; ergo, the Court in
Gilmer addressed neither Section 7 nor the validity of a class-
action waiver. Horton, supra, slip op. at 12. Inasmuch as the
Supreme Court has not specifically addressed the issue of man-
datory arbitration provisions that cover class and/or collective
actions vis-à-vis the Act, it follows that the Court has not over-
ruled the Board’s Horton decision, which I therefore must ap-
ply to determine whether the Respondent’s MAA violated Sec-
tion 8(a)(1) of the Act.
This MAA expressly requires “all claims to be pursued on an
individual basis only” and provides that employees “waive all
rights to (i) commence, or be a party to, any class, representa-
tive or collective claims or (ii) jointly bring any claim against
each other with any other person or entity,” including claims
alleging a pattern and practice of unlawful conduct. Clearly,
the MAA runs afoul of Horton’s prohibition against requiring
that “employees waive their right to collectively pursue em-
ployment-related claims in all forums, arbitral and judicial.”
Horton, supra, slip op. at 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
The MAA contains the caveat that:
[N]othing herein limits your right and the rights of others to
collectively challenge the enforceability of this Agreement,
including the class/collective action waiver. Notwithstanding,
the Company will assert that the parties have agreed to pursue
all claims individually in the arbitral forum and may ask a
court to compel arbitration of each individual’s claims. To
the extent that the filing of such an action is concerted activity
protected under the National Labor Relations Act, such filing
will not result in threats, discipline or discharge.
This provision fails to cure the defects in the MAA. In Horton,
the Board analyzed the mitigating effect of language in an
MAA that employees have the right to file a class or collective
action, including Board charges, challenging the validity of the
required waiver. It found such language to lack substance be-
cause employees “still would reasonably believe that they were
barred from filing or joining class or collective action, as the
arbitration agreement . . . still expressly state[s] that they waive
the right to do so.” Horton, supra, slip op. at 9 (fn. omitted).
The Board proceeded to explain how such a purported assur-
ance is confusing to employees since “employees [are] told
they have the right to do the very thing they waive the right to
do. . . .” Ibid. See also Murphy Oil, supra, slip op at 26 (at best,
the language creates an ambiguity, which must be construed
against the employer as the drafter), citing Lafayette Park Ho-
tel, 326 NLRB 824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999).
Therefore, I conclude that the Respondent violated Section
8(a)(1) of the Act by maintaining, as a condition of employ-
ment and continued employment, a mandatory arbitration
agreement (MAA) that requires employees to waive their right
to pursue collective or class lawsuits and arbitrations, and
which employees reasonably would believe bars or restricts
their right to file charges with the National Labor Relations
Board.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)((1)
of the Act:
Maintained, as a condition of employment and continued
employment, a mandatory arbitration agreement (MAA) that
requires employees to waive their right to pursue collective or
class lawsuits and arbitrations, and which employees reasona-
bly would believe bars or restricts their right to file charges
with the National Labor Relations Board.
REMEDY
Because I have 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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7 Order.
The Respondent, Citi Trends, Inc. Darlington, South Caroli-
na, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining, as a condition of employment and contin-
ued employment, a mandatory arbitration agreement (MAA)
that require employees to waive their right to pursue collective
or class lawsuits and arbitrations, and which employees reason-
ably would believe bars or restricts their right to file charges
with the National Labor Relations Board.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed 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 requirement that employees enter into or
sign the MAA that is currently in effect as a condition of em-
ployment or continued employment, and expunge all such
agreements and acknowledgements at any of the Respondent’s
facilities where the Respondent has required employees to sign
such agreements.
(b) Rescind or revise the MAA to make it clear that the
agreement does not constitute a waiver of the employees’ right
to initiate or maintain employment-related collective or class
actions in arbitrations and in the courts, or to file unfair labor
practice charges with the National Labor Relations Board.
(c) Notify all applicants and current and former employees
that the MAA has been rescinded or revised to comport with
subparagraph (b), and, if revised, provide them with any re-
vised agreement.
(d) Within 14 days after service by the Region, post at its
facilities in Darlington, South Carolina, and any other facilities
where MAAs have been maintained as a condition of employ-
ment, copies of the attached notice marked “Appendix.”8 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet set, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent 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, the Respondent has gone out of
business or closed the facility involved in these proceedings,

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.
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.”
CITI TRENDS, INC. 7
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since January 30,
2014, 6 months before the underlying charge was filed.9
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, DC March 9, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your 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 maintain a mandatory arbitration agreement
(MAA) that our employees reasonably would believe bars or
restricts their right to file charges with the National Labor Rela-
tions Board.
WE WILL NOT maintain or enforce an MAA that requires our
employees, as a condition of employment and continued em-

9 See Eagle-Picher Industries, Inc., supra, at 174, 174 fn. 7.
ployment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL rescind the requirement that employees enter into
or sign the MAA that is currently in effect, or sign acknowl-
edgements relating to it, as a condition of employment, and
expunge all such agreements and acknowledgements at all of
the Respondent’s facilities where the Respondent has required
employees to sign such agreements or acknowledgements.
WE WILL rescind or revise the MAA in all its forms to make
it clear that the agreement does not constitute a waiver of our
employees’ right to initiate or maintain employment-related
collective or class actions in arbitrations and in the courts, and
that it does not restrict our employees’ right to file charges with
the National Labor Relations Board.
WE WILL notify all applicants and current and former em-
ployees who were required to sign the MAA that the MAA has
been rescinded or revised and, if revised, provide them a copy
of the revised agreement.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/10-CA-133697 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.