E.A. Renfroe & Company, Inc

National Labor Relations Board - Administrative Judge Opinions

Aug 17, 2016

10-CA-171072 (N.L.R.B. Aug. 17, 2016)

JD−72−16
Birmingham, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
E. A. RENFROE & COMPANY, INC
and CASE 10−CA−171072
KIMANI ADAMS, an Individual
Matthew J. Turner, Esq., for the General Counsel.
K. Bryance Metheny (Burr & Forman LLP), Esq.,
of Birmingham, Alabama, for the Respondent.
DECISION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge. The Respondent instituted a
program which, among other things, allowed employees to bring their workplace grievances
to an arbitrator for resolution. However, it required all employees, whether or not they used
the program, to waive their right to file a group grievance or claim. The Act protects the right
of employees to engage in concerted activities for their mutual aid and protection, and
Respondent’s requiring them to waive that right violates Section 8(a)(1).
Procedural History
This case began on March 4, 2016 when Kimani Adams, an individual, filed an unfair
labor practice charge against the Respondent, E. A. Renfroe & Company, Inc., with Region
10 of the National Labor Relations Board. The Region docketed the charge as Case 10–CA–
171072 and conducted an investigation.
On April 26, 2016, the Regional Director for Region 16 issued a complaint and notice
of hearing. The Respondent filed a timely answer.
On June 13, 2016, a hearing opened before me by telephone conference call. The
parties waived their right to call and examine witnesses and submitted a stipulation of facts
and related joint exhibits. After setting a July 18, 2016 deadline for filing briefs, I closed the
hearing. The parties submitted timely briefs, which I have considered.
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Admitted Allegations
In its answer and by stipulation, the Respondent admitted a number of allegations.
Based on those admissions, I find that the General Counsel has proven the allegations raised 5
in complaint paragraphs 1, 2(a), 2(b), 2(c), 3(a), 3(b), 4(c) and 4(d).
More specifically, I find that the unfair labor practice charge was filed and served as
alleged. Further, I find that at all material times, the Respondent has been a Georgia
corporation with an office and place of business in Birmingham, Alabama and has been 10
engaged in the business of providing temporary support services to insurance companies.
Moreover, I find that in conducting its operations during the 12-month period before the
parties’ June 13, 2016 stipulation, the Respondent performed services valued in excess of
$50,000 in States other than the State of Georgia. Therefore, I conclude that the Respondent
satisfies the statutory and discretionary standards for the exercise of the Board’s jurisdiction. 15
Further, I conclude that at all material times, the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
Respondent has admitted, and I find, that Human Resources Director and General
Counsel Ashley Hattaway and Manager Teresa Gail Hitt are its supervisors and agents within 20
the meaning of Section 2(11) and Section 2(13) of the Act.
Complaint paragraph 4(a) alleges that since at least February 17, 2016, Respondent
has maintained a mandatory arbitration agreement, entitled “Mutual Agreement to Arbitrate
Employment Related Disputes” (for brevity here called the arbitration agreement), that all of 25
Respondent’s employees are required to execute as a condition of employment. Some
background information is helpful in understanding the Respondent’s answer to this
allegation.
Respondent provides temporary support services to insurance companies during times 30
of disaster or claims overload. In other words, it is a type of business often called a “temp
agency” or “temp service.” When an insurance company is swamped with work, the
Respondent will provide this client with temporary staffers to cope with the surge.
The Respondent’s answer admits that it will not send an employee out to work for a 35
client until the employee has signed the arbitration agreement but appears to deny that this
requirement is a “condition of employment,” as complaint paragraph 4(a) alleges. The
Respondent contends that when an employee refuses to sign the arbitration agreement it does
not result in the person losing her status as employee but only results in the person not
receiving a work assignment.40
However, the Respondent has not asserted, and the record does not establish, that a
person who refuses to sign the arbitration agreement receives any pay. To the contrary, the
Respondent stipulated that an employee who refused to sign the arbitration agreement was
“released” from her assignment, has worked no further hours since that release, and has not 45
received any pay except for the hours she had worked before that “release”.
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From this stipulation, I infer that employees only receive pay for work actually
performed. Therefore, I conclude that the Respondent’s refusal to send a person out to work
in a client’s office results in the individual receiving no pay. Thus, although the person
retains the title of “employee” she is not employed—assigned gainful work—unless and until 5
she signs the arbitration agreement. Accordingly, I conclude that the General Counsel has
proven that signing the arbitration agreement is a condition of employment, as alleged in
complaint paragraph 4(a).
Complaint paragraph 4(b) quotes specific language in a “mandatory arbitration” clause 10
and alleges that, since at least February 17, 2016, this language has been included in the
arbitration agreement. Because of an apparent typesetting anomaly, it is somewhat difficult to
discern where paragraph 4(b) begins, which led the Respondent to conclude that the
complaint did not contain a paragraph 4(b). Its answer therefore did not address the
allegations in that paragraph.15
However, the Respondent stipulated to the exact language of the arbitration
agreement, including the “mandatory arbitration” clause. That language will be discussed
below.
20
Complaint paragraph 4(c) alleges that the arbitration agreement has included, since at
least February 17, 2016, a clause titled “Waiver of Class Action and Representative Action
Claims” and further alleges that the clause contains specific quoted language. The
Respondent has admitted this allegation and has stipulated to the entire contents of the
arbitration agreement. Therefore, I conclude that the General Counsel has proven the 25
allegations raised in complaint paragraph 4(c).
Complaint paragraph 4(d) alleges that, since at least February 17, 2016, the
Respondent’s arbitration agreement has included a clause titled “Covered Claims” and sets
forth the language alleged to be in that clause. The Respondent’s answer admits this 30
allegation. Therefore, I find that the General Counsel has proven the allegations raised in
complaint paragraph 4(d).
Complaint paragraph 5(a) alleges that since about February 24, 2016, the Respondent
has “required that employees sign the Arbitration Agreement or, if they did not sign, 35
employees would be released from their project assignments.” The Respondent’s answer
admits that it “required project employees to sign an arbitration agreement in order to be
eligible for a temporary assignment” but denies other allegations raised in this complaint
paragraph.
40
The Respondent’s answer thus admits that it would not send an employer out to work
in a client’s office unless that person had signed an arbitration agreement. However, the
Respondent appears to deny that it would pull an employee off an assignment where the
employee already was working simply because the employee refused to sign the arbitration
agreement.45
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However, the Respondent stipulated to facts establishing that it did retract a project
assignment from an employee who refused to sign the arbitration agreement. This instance
involves the Charging Party, Kimani Adams.
The Respondent hired Adams in 2012 and gave her assignments as a project employee 5
in Georgia and Texas. The Respondent stipulated that in September 2014, it had deployed her
to work on a project assignment in Georgia that was expected to last until June 24, 2016.
On February 17, 2016, the Respondent electronically sent to its project employees,
including Adams, copies of a “Mutual Agreement to Arbitrate Employment Related 10
Disputes.” It required these employees to execute the arbitration agreement to remain eligible
to work project assignments.
The Respondent stipulated that between February 22 and 26, 2016, it exchanged
emails with Adams regarding the arbitration agreement and her employment status. On 15
February 24, 2016, it released Adams from her project assignment because of her “failure and
refusal to sign the Arbitration Agreement.”
The Respondent further stipulated that since February 24, 2016, it has not assigned
Adams any work hours or paid her any wages other than for hours she worked before that 20
date. The complaint alleges that the Respondent thereby caused the termination of Adams’
employment. However, the Respondent denies that it discharged her. According to the
Respondent, Adams remains an employee, albeit one who does not receive work assignments
or pay.
25
On March 29, 2016, the Respondent issued a revised arbitration agreement which now
included language to make clear that employees retained the right to make complaints to the
Board. On this same date, it issued a memo to employees who previously had signed
arbitration agreements. This memo clarified that nothing in those arbitration agreements
should be interpreted as preventing employees from filing complaints with the Board.30
On April 5, 2016, the Respondent sent an email to Adams informing her of the
revisions to the arbitration agreement and that she would be eligible for deployment to future
projects if she decided to execute the revised arbitration agreement. The parties stipulated
that, as of June 13, 2016, Adams had not executed the revised arbitration agreement and that 35
Respondent had not deployed her to any projects since February 24, 2016.
The Issues
Although the facts are not disputed, the parties disagree about whether the Respondent 40
acted lawfully. The complaint presents the following issues which must be resolved:
1. Would employees reasonably conclude that the provisions of the arbitration
agreement precluded them from engaging in conduct protected by Section 7 of
the Act? (Complaint paragraph 4(e).)45
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2. If so, did the Respondent thereby violate Section 8(a)(1) of the Act?
(Complaint paragraph 6.)
3. Would the language of the arbitration agreement, as it existed before the March
29, 2016 revision, reasonably lead employees to conclude that they could not 5
file unfair labor practice charges with the Board? (Complaint paragraph 4(f).)
4. If so, did the Respondent thereby violate Section 8(a)(1) of the Act?
(Complaint paragraph 6.)
10
5. Did the Respondent’s February 24, 2016 release of Adams from her project
assignment, and its subsequent failure to give her other assignments, cause the
termination of her employment? (Complaint paragraph 5(b).)
6. Did the Respondent release Adams from her project assignment and refuse to 15
give her other assignments because she engaged in concerted activities
protected by the Act, and to discourage employees from engaging in such
activities? (Complaint paragraph 5(c).)
7. If so, did the Respondent thereby violate Section 8(a)(1) of the Act? 20
(Complaint paragraph 6.)
8. If the Respondent violated Section 8(a)(1) of the Act, did such violation or
violations affect commerce within the meaning of Section 2(2), (6) and (7) of
the Act? (Complaint paragraph 7.)25
The Arbitration Agreements
(Complaint Paragraphs 4(a), 4(b), 4(c), and 4(d))
Agreement Sent to Home Office Employees30
The parties stipulated that on January 20, 2016, the Respondent “electronically
disbursed” to its home office employees a “Mutual Agreement to Arbitrate Employment-
Related Disputes” and required those employees to execute this agreement. The parties
introduced a copy of this arbitration agreement into the record. It states as follows:35
MUTUAL AGREEMENT TO ARBITRATE
EMPLOYMENT RELATED DISPUTES
This Mutual Agreement to Arbitrate Employment Related Disputes (the ‘Agreement’) 40
is made and entered into as of ________________________ (the ‘Effective Date’) by
and between E. A. Renfroe & Company, a Georgia Corporation, (the ‘Employer’) and
_____________________, an individual (the ‘Employee’) (the Employer and the
Employee are collectively referred to herein as the ‘Parties;).
45
1. Intent. The Parties intend for this Agreement to govern the resolution of all
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6
disputes, claims, and other matters in question arising out of or relating to the Parties’
employment relationship. The Parties shall resolve all disputes, claims, and other
matters in question arising out of the employment relationship in accordance with the
provisions of this agreement.
5
2. Mandatory Arbitration. The Parties agree that all grievances, claims, complaints,
disputes, or causes of action (collectively, ‘Claims’) that relate in any way to the
Parties’ employment relationship or to the Employee’s performance of work for the
Employer’s clients, whether based in contract, tort, fraud, misrepresentation state or
federal statutory law, or any other legal theory, shall be submitted to binding 10
arbitration administered by the American Arbitration Association in accordance with
the National Rules for the Resolution of Employment Disputes. The Rules are
available online at www.adr.org. You can also call the American Arbitration
Association at (888) 774-6904, if you have questions about the arbitration process. If
the National Rules for the Resolution of Employment Disputes are inconsistent with 15
the terms of this Agreement, the terms of this Agreement shall govern.
3. Covered Claims. The Parties are mutually obligated to arbitrate all Claims arising
out of or relating to their employment relationship. This Agreement covers all Claims
in a federal, state, or local court or agency under applicable federal, state or local laws, 20
arising out of or relating to Employee’s employment with Employer, performance of
work for the Employer’s clients, or the termination of Employee’s employment. This
includes any Claims Employee may have against Employer, Employer’s clients, or
against Employer’s or its clients’ officers, directors, supervisors, managers,
employees, or agents in their capacity as such or otherwise. Employee acknowledges 25
that Employee’s performance of work for Employer’s clients is an integral component
of Employee’s work for Employer and specifically agrees that Employer’s clients, as
well as the client’s officers, directors, supervisors, managers, employees, and agents
are third party beneficiaries of this Agreement. This Agreement also includes any
Claims that Employer may have against Employee. The Claims covered by this 30
Agreement include, but are not limited to: (1) claims for breach of any contract or
covenant (express or implied); (2) tort claims; (3) claims for wrongful termination
(constructive or actual) in violation of public policy; (4) claims for discrimination or
harassment, including, but not limited to, harassment or discrimination based on race,
color, sex, gender, religion, national origin, alienage or citizenship status, creed, age, 35
marital status, partnership status, military status, predisposing genetic characteristics,
medical condition, psychological condition, mental condition, criminal accusations or
convictions, disability, sexual orientation, or any other trait or characteristic protected
by federal, state or local law; and (5) claims for violation of any federal, state, or other
governmental law, statute, regulation, or ordinance, including, but not limited to, all 40
claims arising under Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, the Americans With Disabilities Act, the Fair Labor Standards Act,
the Consolidated Omnibus Budget Reconciliation Act of 1985, the Employee
Retirement Income Security Act, the Equal Pay Act, the Civil Rights Act of 1991, 42
U.S.C. ‘ 1981, the Sarbanes-Oxley Act of 2002, the Worker Adjustment and 45
Retraining Notification Act, the Uniformed Services Employment and Reemployment
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Rights Act, the Genetic Information Nondiscrimination Act, and claims for wages or
other compensation due (‘Covered Claims’). The Parties also specifically agree that
the Covered Claims include all Claims under the California Labor Code and the
California Wage Orders, including, but not limited to, claims for overtime, unpaid
wages, and claims involving meal and rest breaks.5
4. Claims Not Covered. This Agreement does not cover claims for workers’
compensation, unemployment compensation benefits, or any other claims that, as a
matter of law, the Parties cannot agree to arbitrate. The Parties agree that either party
shall be entitled to seek injunctive or other equitable relief in a court of competent 10
jurisdiction for any alleged breach of the Parties’ Employment Agreement, enjoining
any such breach. Unless otherwise agreed by the Parties, however, any claim for
monetary damages associated with such alleged breach must be pursued by the parties
through binding arbitration. Nothing in this Agreement shall be interpreted to mean
that employees are precluded from filing complaints with a federal agency, such as the 15
Department of Labor, the Equal Employment Opportunity Commission, the National
Labor Relations Board, or any equivalent state agency.
5. Waiver of Class Action and Representative Action Claims. Except as otherwise
required under applicable law, the Parties agree that class action and collective action 20
procedures are waived, and shall not be asserted, nor will they apply, in any arbitration
(or dispute adjudicated in any other forum) pursuant to this Agreement. Employee
agrees that Employee will not serve as a representative member of any class or
collective action, or participate in any class action or collective action claim or
procedure instigated by any other person. The Parties also agree that, to the extent 25
permitted by law, they will be precluded from asserting in arbitration, or any other
forum, any representative claims. This Waiver of Class Action and Representative
Action Claims and the Waiver of Trial by Jury in Section 6 of this Agreement shall
also apply to all claims by Employee against Employer’s clients as well as the clients’
officers, directors, supervisors, managers, employees and agents.30
6. Waiver of Trial by Jury. The Parties understand and fully agree that, by entering
into this Agreement, they are giving up their constitutional right to have a trial by jury
and are giving up their normal rights of appeal except as governing law provides for
judicial review of arbitration proceedings. The parties anticipate that by entering into 35
this Agreement, they will gain the benefits of a faster and less expensive dispute
resolution procedure.
7. Claims Procedure. Either party may initiate arbitration by providing express
written notice to the other party. The initiating party must give written notice of any 40
claim to the other party. Written notice of an Employee’s claim shall be mailed by
certified or registered mail, return receipt requested, to the Employer’s General
Counsel at 1600 Corporate Drive, Birmingham, AL 35242 (‘Notice Address’).
Written notice of the Employer’s claim will be mailed to the last known address of
Employee. The written notice shall identify and describe the nature of all claims 45
asserted and the facts upon which those claims are based. Written notice of arbitration
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shall be initiated within the greater of one year from the date of the incident giving rise
to the Claim or the statutory limitations period that governing law applies to the
Claim.
8. Arbitrator Selection. The Arbitrator shall be selected as provided in the National 5
Rules for the Resolution of Employment Disputes.
9. Arbitration Procedures. As stated, the National Rules for the Resolution of
Employment Disputes shall generally govern any arbitration under this Agreement.
Those rules notwithstanding, any arbitration under this Agreement shall take place in 10
the state and county where the Employee resides at the time of the arbitration. For
claims of less than ten thousand dollars ($10,000.00), the Employee shall be entitled to
elect for arbitration in person, by telephone, or by submissions. In addition, either
party may sue in small claims court in lieu of arbitration, provided the claim fits
within the scope of the jurisdictional rules of the applicable small claims court.15
10. Discovery. The American Arbitration Association rules regarding discovery shall
apply to arbitration under this Agreement. The Arbitrator selected according to this
Agreement shall decide all discovery disputes.
20
11. Substantive Law. Unless otherwise required by the law of the state in which the
wrongful conduct is alleged to have occurred, the Arbitrator shall apply federal law
and the substantive law of the State of Alabama (including the law of the State of
Alabama as to remedies) as applicable to the claim(s) asserted. The Arbitrator shall
conduct and preside over an arbitration of reasonable length, to be determined by the 25
Arbitrator. The Arbitrator shall provide the parties with a written decision explaining
his or her findings and conclusions. The Arbitrator shall have authority to grant any
form of relief, including injunctive relief, that would have been available to the Parties
had the Claim been litigated in a court of competent jurisdiction.
30
12. Motions. The Arbitrator shall have jurisdiction to hear and rule on prehearing
disputes and is authorized to hold prehearing conferences by telephone or in person as
the Arbitrator deems necessary. The Arbitrator shall have the authority to set
deadlines for completion of discovery and for filing motions for summary judgment,
and to set briefing schedules for any motions. The Arbitrator shall have the authority 35
to adjudicate any cause of action, or the entire claim, pursuant to a motion for
summary adjudication and/or summary judgment, and, in deciding the motion, shall
apply Alabama law.
13. Compelling Arbitration/Enforcing Award. Either party may bring an action in 40
court to compel arbitration under this Agreement and to confirm, vacate, or enforce an
arbitration award. Each party shall bear its own attorney fees and costs and other
expenses of such an action.
14. Arbitration Fees and Costs. The Employer shall be responsible for the arbitrator’s 45
fees and expenses. Each party shall pay its own costs and attorney’s fees, if any. If,
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however, the Employee prevails on a statutory claim which afford the prevailing party
attorney’s fees and costs, or if there is a written agreement providing for attorneys’
fees and costs, the Arbitrator may award reasonable attorneys’ fees and costs to the
prevailing Employee. The Employer shall not be entitled to recover its attorney’s fees
and costs. Any dispute as to the reasonableness of any fee or costs shall be resolved 5
by the Arbitrator.
15. Term of Agreement. This Agreement shall survive the termination of Employee’s
employment. It may not be changed, modified, or discharged orally, but only by an
instrument in writing, that is signed by the Parties, which specifically states an intent 10
to revoke or modify the terms of this Agreement.
16. Severability. If any provision of this Agreement is held to be void or otherwise
unenforceable, in whole or in part, the void or unenforceable provision shall be
severed and the adjudication shall not affect the validity of the remainder of this 15
Agreement.
17. Voluntary Agreement. By signing this Agreement the Parties represent that they
have been given the opportunity to consult with counsel and to fully review,
comprehend, and negotiate the terms of this Agreement. The Parties understand the 20
terms of this Agreement and freely and voluntarily sign this Agreement. The Parties
understand and agree that this Agreement does not alter the at-will nature of their
employment relationship and that either the Employer or the Employee may terminate
the employment relationship at any time, with or without cause or notice.
25
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date above.
[Signature lines omitted.]
Agreement Sent to Project Employees30
As noted above, Respondent required its home office employees to sign this
agreement. However, Charging Party Adams was not a home office employee but one of
Respondent’s “project employees,” those sent out to work at various clients’ offices. On
February 17, 2016, 4 weeks after it issued arbitration agreements to its home office 35
employees, the Respondent sent arbitration agreements to its project employees.1
The arbitration agreement given to project employees is not identical in all respects
with that given to home office employees, but the wording of the two documents is quite
similar and I discern no difference having legal significance. Although the agreement given 40
to home office employees has been set forth above in its entirety, it suffices here to quote

1 Because the project employees were working away from the home office at various clients’ places of
business, the Respondent transmitted the agreement to them electronically and allowed the employees
to “sign” them electronically.
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verbatim only those portions of the project employees’ agreement specifically quoted in the
complaint.
As alleged in complaint paragraph 4(b), the arbitration agreement which Respondent
sent to its project employees on February 17, 2016 included the following “Mandatory 5
Arbitration” clause:
Mandatory Arbitration. The Parties agree that all grievances, claims,
complaints, disputes, or causes of action (collectively, “Claims”) that relate in
any way to the Parties’ employment relationship or to the Employee’s 10
performance of work for the Employer’s clients, whether based in contract,
tort, fraud, misrepresentation, state or federal statutory law, or any other legal
theory, shall be submitted to binding arbitration administered by the American
Arbitration Association in accordance with the Employment Arbitration Rules
and Mediation Procedures. The Rules are available online at www.adr.org. 15
You can also call the American Arbitration Association at (888) 774-6904 if
you have questions about the arbitration process. If the Employment
Arbitration Rules and Mediation Procedures are inconsistent with the terms of
this Agreement, the terms of this Agreement shall govern.
20
The arbitration agreement which the Respondent sent to its project employees on
February 17, 2016 also includes language purporting to waive the employee’s right to use
“class action” or “collective action” procedures. Complaint paragraph 4(c) alleges, the
Respondent has admitted, and I find, that this agreement includes the following language:
25
Waiver of Class Action and Representative Action Claims. Except as
otherwise required under applicable law, the Parties agree that class action and
collective action procedures are waived, and shall not be asserted, nor will they
apply, in any arbitration (or dispute adjudicated in any other forum) pursuant to
this Agreement. Employee agrees that Employee will not serve as a 30
representative member of any class or collective action, or participate in any
class action or collective action claim or procedure instigated by any other
person. The Parties also agree that, to the extent permitted by law, they will be
precluded from asserting in arbitration, or any other forum, any representative
claims. This Waiver of Class Action and Representative Action Claims and 35
the Waiver of Trial by Jury in Section 6 of this Agreement shall also apply to
all claims by Employee against Employer’s clients as well as the clients’
officers, directors, supervisors, managers, employees, and agents.
The arbitration agreement does not define what it means by “collective action.” A 40
labor lawyer might well understand the term to refer to a lawsuit brought pursuant to Section
216(b) of the Fair Labor Standards Act, which states, in part, “An action to recover the
liability prescribed in either of the preceding sentences may be maintained against any
employer … by any one or more employees for and in behalf of himself or themselves and
other employees similarly situated. No employee shall be a party plaintiff to any such action 45
unless he gives his consent in writing to become such a party and such consent is filed in the
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court in which such action is brought.” 29 U.S.C. § 216(b). Such a “collective action” under
the Fair Labor Standards Act therefore bears a resemblance to a class action under Rule 23 of
the Federal Rules of Civil Procedure.
Presumably, most of the Respondent’s employees are not labor lawyers and therefore 5
would not reflexively associate the words “collective action” with the Fair Labor Standards
Act. At one point, the arbitration agreement does mention this statute, but does so in a list of
laws which might be the source of claims. However, the arbitration agreement does not
specifically associate the words “collective action” with that statute. Therefore, I conclude
that employees reading the arbitration agreement reasonably would believe that “collective 10
action” referred to any legal action brought by or seeking a remedy for more than one
employee.
In addition to the waiver language quoted above, this arbitration agreement created an
obligation for the Respondent and the employee to arbitrate “all Claims arising out of or 15
relating to their employment relationship” followed by a further description of some types of
claims. This obligation to arbitrate appears in a clause titled “Covered Claims” which is
quoted in the complaint. Specifically, complaint paragraph 4(d) alleges, the Respondent has
admitted, and I find, that the agreement includes the following:
20
Covered Claims. The Parties are mutually obligated to arbitrate all Claims
arising out of or relating to their employment relationship. This Agreement
covers all Claims in a federal, state, or local court or agency under applicable
federal, state, or local laws, arising out of or relating to Employee’s
employment with Employer, performance of work for the Employer’s clients, 25
or the termination of Employee’s employment. This includes any Claims
Employee may have against Employer, Employer’s clients, or against
Employer’s or its clients’ officers, 2 directors, supervisors, managers,
employees, or agents in their capacity as such or otherwise. Employee
acknowledges that Employee’s performance of work for Employer’s clients is 30
an integral component of Employee’s work for Employer and specifically
agrees that Employer’s clients, as well as the clients’ officers, directors,
supervisors, managers, employees, and agents are third party beneficiaries of
this Agreement. This Agreement also includes any Claims that Employer may
have against Employee. The Claims covered by this Agreement include, but 35
are not limited to: (1) claims for breach of any contract or covenant (express or
implied); (2) tort claims: (3) claims for wrongful termination (constructive or
actual) in violation of public policy; (4) claims for discrimination or
harassment, including, but not limited to, harassment or discrimination based

2 Although the complaint’s excerpt of the arbitration agreement uses “officer” at this point, the actual
arbitration agreement, in evidence as Joint Exhibit 3, uses the plural, “officers.”
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on race, color, sex, gender, religion, national origin, alienage or citizenship
status, creed, age, marital status, partnership status, military status,
predisposing genetic characteristics, medical condition, psychological
condition, mental condition, criminal accusations or convictions, disability,
sexual orientation, or any other trait or characteristic protected by federal, 5
state, or local law; and (5) claims for violation of any federal, state, or other
governmental law, statute, regulation, or ordinance, including, but not limited
to, all claims arising under Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, the Americans With Disabilities Act, the
Fair Labor Standards Act, the Consolidated Omnibus Budget Reconciliation 10
Act of 1985, the Employee Retirement Income Security Act, the Equal Pay
Act, the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Sarbanes-Oxley Act
of 2002, the Worker Adjustment and Retraining Notification Act, the
Uniformed Services Employment and Reemployment Rights Act, the Genetic
Information Nondiscrimination Act, and claims for wages or other 15
compensation due (“Covered Claims”). The Parties also specifically agree that
the Covered Claims include all Claims under the California Labor Code and
the California Wage Orders, including, but not limited to, claims for overtime,
unpaid wages, and claims involving meal and rest breaks.
20
The March 29, 2016 Clarification
Based on the parties’ stipulation, I find that on March 29, 2016, the Respondent sent a
revised arbitration agreement to employees, including the Charging Party, who had not signed
an arbitration agreement. This new agreement resembled the previous agreements but also 25
included new language to make clear that it did not bar employees from filing complaints with
the Board or other government agencies:
Complaints to Federal Agencies Not Precluded. Nothing in this
Agreement shall be interpreted to mean that Employee is precluded 30
from filing complaints with a federal agency, such as the Department of
Labor, the Equal Employment Opportunity Commission, the National
Labor Relations Board, or any equivalent state agency.
Also on March 29, 2016, the Respondent issued a memo to employees who had signed 35
an earlier arbitration agreement. This memo stated that nothing in the arbitration agreement
would be interpreted as preventing employees from filing complaints with the National Labor
Relations Board.
Based on the parties’ stipulation, I also find that, in addition to sending the Charging 40
Party a copy of the revised agreement, it also informed her, by April 5, 2016 email, that if she
signed this revised agreement she would be “eligible for deployment to future projects.”
However, the Charging Party did not sign and, as noted above, the Respondent has not given
her a work assignment.
45
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Legal Effects of Arbitration Agreement
Based on the plain language of the arbitration agreement,3 quoted above, I conclude 5
that the arbitration agreement performed two separate and distinct functions: (1) It established
a mechanism for grievance arbitration analogous to the grievance procedures unions and
employers commonly negotiate and place in their collective-bargaining agreements. (2) It
served as a legal means which the Respondent could use, if sued, to remove the lawsuit from
the court and instead submit the issues to an arbitrator for resolution.10
As described above, the arbitration agreement required the employee to waive the
right to engage in concerted activity, but the nature of the concerted activity associated with
the agreement’s first function differs from the concerted activity associated with the
agreement’s second function. One type of concerted activity relates to employee participation 15
in the grievance arbitration procedure which the agreement established for the workplace.
The other type of concerted activity relates to the agreement’s functioning not in the
workplace but in the judicial context.
In the workplace, typical concerted activity could involve two or more employees 20
filing and presenting a joint grievance to an arbitrator. It also might involve one employee
filing a grievance not only on her own behalf but also seeking a remedy for her coworkers.
In the judicial context, the concerted activity could involve two or more employees
jointly filing a lawsuit in which they were named as plaintiffs. Concerted activity could also 25

3 The complaint uses the singular, “Arbitration Agreement” and I follow that practice here. However, the
Respondent issued one agreement to its home office employees on January 20, 2016 and a separate
agreement to its project employees on February 17, 2016. Both agreements are titled “Mutual
Agreement to Arbitrate Employment Related Disputes,” the only difference being that the agreement
for project employees includes a hyphen between “Employment” and “Related.”
Complaint paragraph 4(a) alleges that the Respondent “has maintained a mandatory arbitration
agreement entitled ‘Mutual Agreement to Arbitrate Employment Related Disputes’ since at least
February 17, 2016.” The absence of a hyphen between “Employment” and “Related” suggests that
complaint paragraph 4(a) was referring to the agreement for home office employees but the February
17, 2016 date suggests that it was referring to the agreement for project employees. However, the
modifier “at least” makes it possible that complaint paragraph 4(a) referred to both agreements.
Complaint paragraphs 4(b), 4(c) and 4(d) allege that the Respondent maintained in the
arbitration agreement specific quoted clauses since “at least” February 17, 2016. Again, the February
17 date suggests that the complaint is referring to the provisions of the agreement for project employees
but the words “at least” open the possibility that the complaint language refers to both agreements.
The language in the two agreements is quite similar and I discern no material differences.
Because the complaint used the phrase “at least” to modify February 17, 2016, I conclude that the
complaint refers to both the agreement for home office employees and the agreement for project
employees.
This decision will follow the complaint’s use of the singular form, but with the express
understanding that the term “arbitration agreement” refers here to both the agreement for home office
employees and the agreement for project employees.
JD−72−16
14
involve an employee filing a lawsuit without any co-plaintiffs but seeking a remedy on behalf
of other employees as well as herself. A related form of concerted activity would involve an
employee filing a lawsuit and seeking to proceed on a class action basis. (As discussed below,
to say that such activity is “concerted” does not resolve whether it was also protected by the
Act, which the Respondent disputes.) The concerted activity also could involve an employee 5
participating as a class member in a class or collective action lawsuit filed by another
employee.
Here, the General Counsel must do more than show that the Respondent required
employees to waive the right to engage in activity which was concerted because the Act does 10
not protect all forms of concerted activity. In this case, the government must prove that such
concerted activity also was protected activity.
A finding that the Act protects a particular kind of concerted activity leads to the
conclusion that employees have a statutory right to engage in such activity. And if the Act 15
gives employees the right to engage in this activity, their employer cannot require them to
waive that right as a condition of employment. For example, employees have the right to join
a union. It is unlawful for an employer to take a job applicant renounce that right as a
condition of being hired.4
20
In the present case, the General Counsel alleges that the Respondent required
employees to waive their right to engage in protected activity as a condition of receiving
work. The Respondent does not deny that it required the waiver, but defends by stating that
the right waived was not one protected by the Act. To analyze the allegation and the defense,
I must first determine what activity is at issue and whether the Act gave the employee the 25
right to engage in this activity.

4 See, e.g., Bon Harbor Nursing & Rehabilitation Center, 348 NLRB 1062 (November 3, 2006)
(unlawful to require employees who had engaged in a concerted protest to promise, as a condition of
reinstatement, that they would not do it again); McKesson Drug Co., 337 NLRB 935 (2002) (employee
had been suspended for filing unfair labor practice charge and it was unlawful to condition his
reinstatement on a promise not to file future charges); Senior Citizens Coordinating Council of
Riverbay Community Inc., 330 NLRB 1100 (2000) (unlawful to require employees to retract their
protected concerted activities or else be discharged); Bethany Medical Center, 328 NLRB 1094 (1999)
(unlawful to require employee to waive the right to engage in a lawful walkout as a condition of rehire);
Aroostook County Regional Ophthalmology Center, 317 NLRB 218 (1995) enf. sub nom Aroostook
County Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996); Retlaw Broadcasting
Co., A Subsidiary of Retlaw Enterprises, Inc., d/b/a KJEO-TV, Channel 47, 310 NLRB 984 (1993) enf.
sub nom Retlaw Broadcasting Co. v. NLRB, 53 F.3d 1002 (9th Cir. 1995) (unlawful to condition
reinstatement on employee’s waiving right to file grievances in the future); Beverly Health &
Rehabilitation Services, 346 NLRB 1319 (2006) (unlawful to condition hire on applicant’s willingness
to cross picket line); Penn Tank Lines, Inc., 336 NLRB 1066 (2001) (unlawful to condition
reinstatement on refraining from union activities); Pratt Towers, Inc., 338 NLRB 61 (2002)
(conditioning employment of former strikers on their renouncing or abandoning union constituted
unlawful “yellow dog” contract); Davey Roofing, Inc., 341 NLRB 222 (2004) (unlawful to promise a
discharged employee that if he removed his name from a union petition a company official would help
him get his job back).
JD−72−16
15
As discussed above, the waiver in the arbitration agreement applies to two different
types of concerted activity and it is possible that the Act protects one type but not the other. It
is also possible that the Act protects both or neither.
Because the two types of concerted activity are different, I will examine them 5
separately. First, I will consider whether the Act protects the employees’ right to file joint
grievances or for one employee to file a grievance seeking a remedy for other employees
besides herself. Next, I will examine concerted activity in the judicial context.
Do Employees Have A Right to File a Joint Grievance?10
a. The Agreement Establishes a Grievance Arbitration Procedure
Before discussing whether the Act gives employees the right to file a joint grievance, I
should first explain my conclusion that the arbitration agreement establishes a grievance 15
arbitration procedure. Various terms of the arbitration agreement lead to this conclusion.
At the outset of the agreement, the parties make clear that they are establishing such a
comprehensive grievance resolution procedure: “The Parties intend for this Agreement to
govern the resolution of all disputes, claims, and other matters in question arising out of or 20
relating to the Parties’ employment relationship.” Moreover, the “Covered Claims” clause
states: “The Parties are mutually obligated to arbitrate all Claims arising out of or relating to
their employment relationship.” (Emphasis added.)
In drafting the arbitration agreement, Respondent defined its scope to include all25
workplace matters. However, most workplace disputes involve issues which, although
important to those involved, would never prompt a lawsuit or be considered important enough
to justify a lawsuit. If the Respondent had intended the agreement only to be a device to
remove lawsuits from court, it could have used narrower language which reflected that intent.
Instead, the agreement described the parties’ intent in broad terms.30
The expansive scope of the arbitration agreement is also manifest in the “Mandatory
Arbitration” clause: “The Parties agree [to resolve through arbitration] all grievances, claims,
complaints, disputes, or causes of action (collectively, ‘Claims’) that relate in any way to the
Parties’ employment relationship or to the Employee’s performance of work for the 35
Employer’s clients. . .” (Emphasis added.) In particular, those words—“that relate in any
way”—leave little doubt that the parties intended the scope to be comprehensive and not
limited to matters which would warrant litigation in court.
The “Covered Claims” clause of the arbitration agreement also includes language 40
broader than that which would be necessary if the intent were only to remove lawsuits from
court. The clause specifically covers “claims for discrimination or harassment, including, but
not limited to, harassment or discrimination based on. . .” followed by a long list of possible
reasons for such harassment or discrimination. If the sole purpose of the arbitration
agreement had been to divert lawsuits, the “Covered Claims” language could have been 45
JD−72−16
16
tailored more narrowly to apply only to those matters for which a cause of action existed.5
Most tellingly, the arbitration agreement specifically states that it covers “all
grievances.” The parties’ use of the word “grievances” strongly suggests that they did not
intend their agreement to apply only to lawsuits or potential lawsuits in State or Federal court.5
In labor relations, the word “grievance” is a term of art which refers to a work-related
dispute to be resolved through a contractual procedure, typically a process culminating in
binding arbitration. Although terms such as “claim” and “complaint” easily could include
pleadings in a lawsuit, a labor lawyer rarely if ever would speak of commencing a lawsuit by 10
filing a “grievance” with the court. Such usage would feel uncomfortably strange on the
tongue.
In labor relations, a “grievance” often concerns a workplace issue which, by itself,
would not warrant spending the money and time required to file a lawsuit. Some grievances, 15
such as those pertaining to work schedules or assignments, may not have direct monetary
consequences at all.
Additionally, the arbitration agreement specifically lists what it does not cover,
namely “claims for workers’ compensation, unemployment compensation benefits, or any 20
other claims that, as a matter of law, the Parties cannot agree to arbitrate.” Presumably, if the
parties had not wished to include workplace grievances, they would have listed “grievances”
among the matters not covered. Instead, the agreement specifically stated that grievances
were covered.
25
Thus, it is not necessary to go beyond the four corners of the agreement to conclude
that it established a procedure for resolving workplace grievances as well as matters which
otherwise would result in a lawsuit.6 The parties therefore did more than agree to sidetrack
lawsuits. They established a grievance arbitration mechanism equivalent to those common in

5 For example, the Federal Americans With Disabilities Act defines “disability” to mean, “with respect to
an individual (A) a physical or mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such
an impairment … “ 42 U.S.C. § 12102.
By comparison, the Respondent’s arbitration agreement includes, among covered claims,
discrimination based on “medical condition, psychological condition, mental condition . . . disability . . .
.” Not every medical, psychological or mental condition constitutes a “disability.” If the Respondent
had intended the terms “medical condition,” “psychological condition” and “mental condition” to mean
the same thing as “disability,” it presumably would not have included the separate term “disability” as
well. Thus, the arbitration agreement’s broad language indicates that it covers discrimination based on
medical and psychological conditions not severe enough to meet the law’s definition of “disability.”
6 The agreement’s language is unambiguous. However, assuming for the sake of analysis that its
provisions reasonably could be interpreted in more than one way, common law principles of contract
interpretation should apply. The Respondent drafted the arbitration agreement. Moreover, as
documented by its email correspondence with Charging Party Adams, the Respondent refused to alter
the document even though Adams proposed and requested specific changes. In such circumstances, any
ambiguity should be construed against the interest of the drafting party. Mastrobuono v. Shearson
Lehman Hutton, Inc., 514 U.S. 52, 62 (1995).
JD−72−16
17
labor relations and typically found in collective-bargaining agreements.
Moreover, because of the nature of the Respondent’s business, the contractual
grievance resolution procedure provides unique benefits to both the Respondent and its
employees. The Respondent provides temporary workers to clients who need additional staff 5
for short periods of time. This unusual working environment can complicate the resolution of
workplace problems.
For example, the arbitration agreement specifically covers allegations of harassment,
including sexual harassment. Addressing and remedying such harassment can be particularly 10
difficult when the harassed employees are temporary employees.
Consider the following hypothetical situation: A “temp agency” like the Respondent
sends Employee A and Employee B to a client’s business, where they work under the
direction of one of the client’s supervisors. The supervisor engages in sexual harassment 15
which creates a hostile working environment.7
The temporary employee reasonably would feel reluctant to complain to the client’s
management because the client easily could tell the temp agency to send someone else.
However, if the temporary employee complains to her own employer, the temp agency, it 20
places the temp agency’s management in a difficult position.
The temp agency’s management must decide whether to believe the agency’s own
employee or to believe the client’s supervisor, who denies engaging in harassment.
Regardless of the truth of the allegations, the temp agency will not wish to anger the client, 25
and risk losing the client’s business, by making accusations against the supervisor. To protect
the employee, the temp agency would have to take a stand which might cost it the client’s
business.
With an arbitration agreement, the temp agency no longer has the unpleasant duty of 30
deciding whether its own employee or its client’s supervisor is telling the truth. Indeed, the
temp agency does not have to take a position regarding how the client’s supervisor acted. If
there is any criticism of that supervisor’s conduct, such criticism will come from the
arbitrator, not the temp agency.
35
Thus, the establishment of a grievance arbitration procedure benefits the Respondent.
The fact that Respondent would derive a benefit from establishing a grievance arbitration
procedure lends further support to the finding that the agreement it drafted established such a
procedure.
40

7 This hypothetical is not unrealistic because, during a relatively short time period, a temporary employee
will work at many different businesses and under the direction of many more different supervisors than
someone employed permanently at one location. The temporary worker therefore stands a greater
chance of encountering the one rotten apple. That would be true statistically even apart from an
aggravating factor: The harassing supervisor can create an environment so hostile it drives away
permanent employees, creating a recurring need for temporary staff.
JD−72−16
18
For all these reasons, and particularly based on the plain language of the arbitration
agreement, I find that the arbitration agreement creates a mechanism for the routine resolution
of workplace issues similar to the grievance arbitration procedures in collective-bargaining
agreements.
5
b. Does the Act protect employees when they file joint grievances or when one
employee files a grievance seeking a remedy for other employees?
Section 7 of the Act protects the right of employees to engage in or refrain from
engaging in union activities, and also protects their right to “engage in other concerted 10
activities for . . . their mutual aid or protection.” 29 U.S.C. § 157. In considering employees’
Section 7 rights in the arbitration context, it is appropriate to draw on the Board’s experience,
which Congress intended the Board to develop and apply in administering the Act.
Determining whether activity is concerted and protected within the meaning of Section 7 is a
task that “implicates [the Board’s] expertise in labor relations.” NLRB v. City Disposal 15
Systems, Inc., 465 U.S. 822, 829 (1984).
Over 8 decades, the Board has observed the labor arbitration process extensively, and
from several different viewpoints. It often must decide whether unfair labor practice
proceedings should be deferred to arbitration.8 Similarly, it often reviews the awards of 20
arbitrators to determine whether it should defer to an award which an arbitrator already has
issued, which involves evaluating to what extent an arbitral award is consistent with or
repugnant to the Act.9 The Board also must consider what weight to accord an arbitral award
during an unfair labor practice proceeding. Additionally, the Board examines arbitral awards
in cases involving an allegation that a union did not represent a grievant fairly during the 25
arbitral process.10
This experience provides the Board insight into the distinctive nature of arbitration in
the workplace and how it relates to federal labor policy and the problems which Congress
intended the Act to address. Those objectives include the reduction of industrial strife which 30
burdens and obstructs commerce. Congress described the Act’s purposes in Section 1, which
includes the following:
Experience has proved that protection by law of the right of employees to organize
and bargain collectively safeguards commerce from injury, impairment, or interruption 35
by encouraging practices fundamental to the friendly adjustment of industrial disputes
arising out of differences as to wages, hours, or other working conditions, and by
restoring equality of bargaining power between employers and employees.
29 U.S.C. § 151.40

8 See, e.g., Collyer Insulated Wire, 192 NLRB 837, 841 (1971).
9 See, e.g., Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014); Spielberg Manufacturing
Co., 112 NLRB 1080, 1082 (1955).
10 See, e.g., Union de Obreros de Cemento Mezclado (Betteroads Asphalt Corp.), 336 NLRB 972 (2001).
JD−72−16
19
Grievance arbitration is not merely one of the “practices fundamental to the friendly
adjustment of industrial disputes” but one of the most important. This orderly process takes
the place of more disruptive means of dispute resolution. Typically, a collective-bargaining
agreement which includes a no-strike clause will also provide for binding arbitration, which
takes the place of striking to resolve disputes during the contract’s term.5
Workplace arbitration also reduces divisive differences in wages, hours or working
conditions by assuring that all employees receive fair, equal and impartial treatment untainted
by bias or favoritism. An important means for reducing such inequalities is the grievance
which seeks relief for a number of employees affected by the same work situation. Such a 10
grievance, seeking a remedy for more than one employee, is a key means of making
arbitration both efficient and fair.
In workplace arbitration, many grievances typically involve claims by a class of
employees rather than by individual employees. For example, if an employer fails to provide 15
its paint shop employees with respirators, it affects all employees in the paint shop, not just
one employee whose name appears on the grievance. If a union filed a grievance only on
behalf of one complaining employee and sought a respirator for that one worker alone, it
would increase rather than reduce inequality. If only the grieving employee received a
respirator, leaving the other employees without lung protection, it would heighten workplace 20
tensions which Congress intended to disperse.
The union could, of course, file an individual grievance on behalf of each paint shop
employee, but that would multiply the time and expense consumed by arbitration.
Additionally, if the individual grievances went before different arbitrators, they potentially 25
might reach conflicting decisions. Thus, instead of being a quick and economical means of
dispute resolution, arbitration would become slower and more expensive, and might even
increase inequality in the workplace.
In the present case, the Respondent requires employees to “agree that class action and 30
collective action procedures are waived, and shall not be asserted, nor will they apply, in any
arbitration ….” This prohibition on “collective action” would bar a grievance being filed on
behalf of all similarly situated employees and instead would require each employee to file her
own grievance.
35
The Respondent’s arbitration agreement goes even further. It states:
Employee agrees that Employee will not serve as a representative member of any class
or collective action, or participate in any class action or collective action claim or
procedure instigated by any other person. The Parties also agree that, to the extent 40
permitted by law, they will be precluded from asserting in arbitration, or any other
forum, any representative claims. [Emphasis added.]
These prohibitions would preclude the type of grievance described above in which a
representative grievant seeks a remedy not just for herself but also for fellow workers who are 45
similarly situated. It thus would change workplace arbitration from being an economical and
JD−72−16
20
effective means of problem solving into a cumbersome, expensive and ineffectual method.
Consider again the hypothetical situation described earlier: The Respondent sends two
of its employees—Employee A and Employee B—to a client’s office, where they work under
the direction of the client’s supervisor. The supervisor engages in sexual harassment which 5
creates a hostile work environment for both employees.
Employee A can file a grievance on her own behalf but, because of the arbitration
agreement language quoted above, she cannot seek a remedy for Employee B, who works
right beside her in the same hostile environment and is subject to the same abuse. Because of 10
this language, Employee B cannot even participate in the arbitration of Employee A’s
grievance if Employee A seeks a remedy for Employee B. These restrictions gut workplace
arbitration and leave only an impotent shell.
The arbitration agreement prohibits Employee A from helping Employee B by seeking 15
a remedy for Employee B in her grievance. That restriction offends because the Act
contemplates that employees will look out for each other, and it assures their right to do so.
In legal terms, when employees look out for each other, when they take steps not only
for themselves but for their fellow workers as well, they are acting in concert for their “mutual 20
aid or protection.” The right to engage in such concerted activity resides at the very heart of
Federal labor policy.
The public may not always appreciate the centrality of this principle—that employees
have the right to act together for their mutual aid or protection—because the law also protects 25
the employees’ right to form, join or assist labor organizations. Union activities often involve
appeals to the public, such as by picketing, and therefore attract more attention. However,
these union activities are simply a subset within the broader category of concerted activities
which the law protects.
30
In Section 1 of the Act, Congress set forth its findings and policies. In part, Congress
attributed industrial strife to the “inequality of bargaining power between employees who do
not possess full freedom of association or actual liberty of contract” and large employers. 29
U.S.C. § 151. Congress declared it to be the policy of the United States to eliminate the
causes of “certain substantial obstructions to the free flow of commerce . . . by encouraging 35
the practice and procedure of collective bargaining and by protecting the exercise by workers
of full freedom of association, self-organization, and designation of representatives of their
own choosing, for the purpose of negotiating the terms and conditions of their employment or
other mutual aid or protection.” 29 U.S.C. § 151 (italics added). In Section 7 of the Act,
Congress specifically stated that employees have the right to engage in “concerted activities 40
for the purpose of collective bargaining or other mutual aid or protection . . . .” 29 U.S.C. §
157.
Thus, Congress expressly recognized and stated that an inequality of bargaining power
caused the industrial strife which obstructed commerce. Congress found that the employees45
could remedy this destructive inequality in power by acting together in their mutual interest.
JD−72−16
21
Accordingly, the right of employees to act together provides the very foundation of our
national labor policy. In the workplace, an important locus of this concerted activity is the
grievance arbitration process. The Congressional concern about inequality of bargaining
power is just as pertinent to arbitration as to negotiation.
5
Notwithstanding that arbitration is a means for the “friendly adjustment” of workplace
disputes, it is an adversarial process. As such, it renders justice only when both parties have
sufficient resources to prepare and present their cases.
Although an employer typically has more money than any particular employee, an 10
employee grievant depends on the help of other employees who make common cause with
him and act together. David does not face Goliath alone when other employees are standing
with him.
Forcing employees to waive their right to assist the grievant creates the inequality of 15
power which Congress sought to eliminate. To prevent fellow workers from helping the
grievant, or to preclude them from joining in a common grievance for their mutual aid and
protection, makes David face Goliath all by himself in a small, dark room.
In determining whether Section 7 gives employees the right to act in concert during 20
the grievance arbitration process, it is helpful to examine how Section 7 protects concerted
activities in other contexts. For example, if two or more employees discuss their complaints
about working conditions with one of their employer’s customers, the Act protects them.
Compuware Corp. v. NLRB, 134 F.3d 1285 (6th Cir. 1998).
25
If two or more employees, seeking a change in working conditions, seek the assistance
of more influential members of their organization, the Act protects them. Robert F. Kennedy
Medical Center, 332 NLRB 1536 (2000) (nurses seeking the assistance of staff physicians).
If two or more employees take their work-related complaint to a supervisor, the Act 30
protects them. Crowne Plaza Laguardia, 357 NLRB 1097 (2011).
If two or more employees skip their immediate supervisor and take their complaint
about working conditions to officials higher in the chain of command, the Act protects them.
Gabriel Security Corporation, JD(SF)–104–99 (2000).35
If two or more employees take their complaint about working conditions to their
employer’s board of directors, the Act protects them. Rhode Island Disability Law Center,
JD–17–02 (2002).
40
If two or more employees protest working conditions by picketing the employer’s
stockholders’ meeting, the Act protects them. Engelhard Corp., 342 NLRB 46 (2004).
If two or more employees discuss working conditions on Facebook, the Act protects
them. Bettie Page Clothing, 361 NLRB No. 79 (2014); Hispanics United of Buffalo, Inc., 359 45
NLRB 368 (2012).
JD−72−16
22
If two or more employees testify on behalf of another employee at a state
unemployment compensation hearing, the Act protects them. Loyalhanna Care Center, 332
NLRB 933 (2000).
5
If two or more employees file a complaint alleging wage discrimination with a state’s
civil rights agency, the Act protects them. Franklin Iron & Metal Corp., 315 NLRB 819
(1994), enf. 83 F.3d 156 (6th Cir. 1996).
If the Act protects employees who seek the support of other employees, if the Act 10
protects employees who present work-related complaints to their supervisor, if the Act
protects employees who present such complaints to managers higher in the chain of
command, if the Act protects employees who present complaints about working conditions to
the employer’s board of directors, if the Act protects employees who protest working
conditions to the employer’s shareholders, if the Act protects employees who discuss their 15
work-related complaints on Facebook, and if the Act protects employees who testify on behalf
of another employee at an unemployment compensation hearing, why wouldn’t the Act also
protect two or more employees who, together, take their work-related complaint to an
arbitrator? The Respondent has not offered any persuasive reason why the Act would make
an exception for concerted activity related to grievance arbitration, and I can think of none.20
The Board’s caselaw has revealed, over a period of 8 decades, that at least a few
employers do not want their employees to be empowered by acting in concert. These cases
show that such employers have resorted to various divide-and-conquer tactics to make each
employee an island. One such tactic involves forcing employees to sign, as a condition of 25
employment, individual agreements purporting to waive their right to act together in the
manner Congress contemplated.
Here, the Respondent has forced its employees to sign an agreement which ostensibly
provides for arbitration but does so in a way which isolates employees from each other. 30
Rather than allowing arbitration to perform its customary function in the workplace—
providing a forum where employees and employer stand on an equal basis before the neutral
decision-maker—the arbitration agreement makes the employee go it alone.
Requiring employees to waive the right to engage in concerted activity through the 35
grievance arbitration process resurrects the inequality of power which existed before the Act’s
passage. In other words, the agreement targets a right which has been protected by law for
more than 8 decades. The elaborate legal language hides this purpose no better than lipstick
can disguise a yellow dog.
40
In sum I conclude that Section 7 of the Act protects employees’ right to file and
pursue a joint grievance through the grievance arbitration process. Likewise, I conclude that
Section 7 protects an employee’s right to file a grievance which seeks a remedy for other
employees, and an employee’s right to assist another employee in the preparation and
presentation of a grievance, to testify on the other employee’s behalf, to represent the other 45
employee at the arbitration, and otherwise to participate in the arbitration.
JD−72−16
23
It may be noted that in reaching these conclusions, I need not and do not rely on the D.
R. Horton line of precedent discussed below. Instead, I base that conclusion on the Board’s
decisions cited above.5
Section 7 and Lawsuits
The arbitration agreement which the Respondent required employees to sign does
more than establish a workplace arbitration process. It provides a legal tool which the 10
Respondent can use if sued by an employee. In that event, the Respondent can invoke the
arbitration agreement and seek a court order diverting the matter to arbitration, thereby
denying the plaintiff a trial before judge and jury. In seeking such a court order, the
Respondent would cite and rely upon the Federal Arbitration Act.11
15
For clarity, it is important to stress that the Respondent’s arbitration agreement
includes two different lawsuit waivers but only one of them is at issue here. The arbitration
agreement requires an employee to give up the right to file any kind of lawsuit solely on her
own behalf, and it also requires her to waive the right to file or participate in a class action or
collective action lawsuit. 20
Requiring the first kind of waiver—of the employee’s right to file a lawsuit only on
her own behalf—is lawful. No one here disputes that an employer can condition employment
on a worker’s signing a waiver of the right to file a lawsuit on her own behalf. Accordingly,
the government does not allege this individual waiver to be a violation.25
One employee filing such a lawsuit by herself and seeking relief for herself alone is
engaging only in individual activity which the Act does not protect. However, according to
the General Counsel, when two or more employees file a lawsuit together, they are engaged in
concerted activity for their mutual aid or protection and therefore enjoy the Act’s protection. 30
Likewise, the government argues, an employee who files a class action on behalf of other
employees is engaged in protected concerted activity.
The General Counsel contends that the Respondent violated the Act by denying
employees any forum in which they could act in concert in bringing their work-related claims 35
before a decision-maker. The Respondent forces grieving employees to go it alone and that,
the General Counsel asserts, violates the Act.

11 Section 3 of the Federal Arbitration Act states:
If any suit or proceeding be brought in any of the courts of the United States upon any issue
referable to arbitration under an agreement in writing for such arbitration, the court in which
such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is
referable to arbitration under such an agreement, shall on application of one of the parties stay
the trial of the action until such arbitration has been had in accordance with the terms of the
agreement, providing the applicant for the stay is not in default in proceeding with such
arbitration.
9 U.S.C. § 3.
JD−72−16
24
The government grounds this argument in a line of Board decisions which begins with
D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir.
2013). The General Counsel’s brief states:5
In D.R. Horton, 357 NLRB at 2277, the Board found that an employer violates Section
8(a)(1) of the Act by imposing, as a condition of employment, a mandatory arbitration
agreement that precludes employees from “filing joint, class, or collective claims
addressing their wages, hours, or other working conditions against the employer in any 10
forum, arbitral or judicial.” Citing to Spandsco Oil & Royalty Co., 42 NLRB 942,
948–949 (1942), Salt River Valley Water Users Assn., 99 NLRB 849, 853–854 (1952),
enfd. 206 F.2d 325 (9th Cir. 1953), and many other cases, the Board noted that such
concerted legal action addressing wages, hours, and working conditions has
consistently fallen within Section 7’s protections. Most recently, in Murphy Oil USA, 15
Inc., 361 NLRB No. 72, slip op. at 1–2 (2014), enf. denied in relevant part, 808 F.3d
1013 (5th Cir. 2015), the Board adopted and reaffirmed the rationale and decision in
D.R. Horton. The Murphy Oil Board found that the respondent violated Section
8(a)(1) of the Act by requiring its employees to sign mandatory arbitration agreements
obligating them to resolve all employment-related disputes through individual 20
arbitration.
The Respondent’s brief, in contrast, noting that the United States Court of Appeals for
Fifth Circuit denied enforcement in both the D. R. Horton and Murphy Oil cases, argues that
the Board should rethink and reject the reasoning in those cases:25
Section 7 does not import procedures from other statutes or rules and convert them
into substantive rights. Furthermore, the Federal Arbitration Act requires that
arbitration agreements like the Project Employee Agreement be enforced according to
their terms. Based on this overwhelming rejection, it is time to repudiate D.R. Horton I30
and to recognize that employers may include class and collective-action waivers in
mandatory arbitration agreements without violating the Act.
However, the Respondent’s argument essentially creates a “straw man” and then
knocks it over. It rests on the assumption that the General Counsel is claiming that Section 7 35
creates a right for employees to avail themselves of the class action provisions in the Federal
Rules of Civil Procedure (or similar rules in other courts) or of the collective-action
procedures provided in the Fair Labor Standards Act. However, I do not understand the
General Counsel to be making such an argument.
40
Although the General Counsel’s brief does allude to “class action” lawsuits, the
underlying principle does not involve an employee’s “right” to invoke the court rules allowing
class actions. The cases cited by the General Counsel leave no doubt that the government
rests its argument on a bedrock principle established in the earliest days of the Act: Two or
more employees have the right, when acting together, to file a lawsuit against their employer 45
over an issue concerning terms and conditions of employment.
JD−72−16
25
The General Counsel thus cites Spandsco Oil & Royalty Co., 42 NLRB 942 (1942). In
that case, three employees had engaged in union activity but also had acted together to file a
wage lawsuit against their employer. The Board found that the employer unlawfully had 5
discharged the three because of their union activities. However, the employer argued that it
really had fired them not because of union activity but because they had filed the lawsuit. The
Board replied that even if “the discharges were, as claimed by the respondent, the immediate
result of this [legal] action by the employees, we are of the opinion and find that the joining of
the three union members in the suit constituted concerted activity protected by the Act and 10
that their discharge, for this reason, was violative of the Act.” 42 NLRB at 949.
More recent cases follow this principle. In Leviton Manufacturing Co., 203 NLRB
309 (1973), an employer discharged employees who had filed a lawsuit against it. The
employees had been candidates for union office and the lawsuit alleged that the employer 15
unlawfully had interfered in this internal union election and also alleged that the employer had
interfered with employee rights under the contractual grievance procedure. The Board,
reversing the administrative law judge, found that the employer violated the Act by
discharging them. “We must conclude,” the Board wrote, “that the Respondent discharged
the four employees for filing the above-described civil suit. This activity is protected under 20
the Act unless this activity was done with malice or in bad faith. In our view, the evidence
clearly failed to establish any malicious or bad-faith intent. Accordingly, such discharges
constituted interference, restraint and coercion with respect to Section 7 rights and thus
violated Section 8(a)(1).” Leviton Manufacturing Co., 203 NLRB at 311 (citations omitted).
25
The Board reached a similar conclusion in Trinity Trucking & Materials Corp., 227
NLRB 792 (1977), a case of particular relevance here. Employees had sued their employer,
and their employer’s client, over wages. The employees’ lawsuit included a claim for
punitive damages and some rather strong negative language describing the employer’s alleged
conduct. In a letter, the employer gave them 48 hours to withdraw the allegations that the 30
defendants had acted “with intentional, malicious, oppressive, and heedless disregard of the
rights of the plaintiff” and the prayer for punitive damages.
The Board, adopting the judge’s decision, found that the lawsuit constituted protected
concerted activity under the Act and that the employer had not met its burden of showing that 35
the employees had acted with malice or in bad faith when they filed the lawsuit. Accordingly,
the Board found that the employer had violated Section 8(a)(1) of the Act both by threatening
to discharge the employees if they did not withdraw parts of the lawsuit, and by discharging
them when they refused.
40
The Trinity Trucking case has particular relevance here. Under the Respondent’s
arbitration agreement, employees must waive both the right to sue the Respondent and the
right to sue the Respondent’s clients. However, in Trinity Trucking, the Board found that the
employees’ lawsuit against both their employer and the employer’s client constituted
concerted activity protected by Section 7.45
JD−72−16
26
In Host International, 290 NLRB 442 (1988), the Board found that the employer
unlawfully had “refused to hire [applicants] Rizzo and Sarubbi in 1985, not because they had
previously been terminated for cause, but rather because of Rizzo’s protected concerted
activity in filing a lawsuit against the Respondent in 1981 with other employees and because
Rizzo and Sarubbi had filed charges with the Board. . .” 290 NLRB at 442–443. See also 5
Mohave Electric Cooperative, Inc. v. NLRB, 206 F.3d 1183 (D.C. Cir. 2000); Le Madri
Restaurant, 331 NLRB 269 (2000).
Thus, over decades, the Board consistently has held that Section 7 grants employees
the right, acting in concert, to file a lawsuit concerning their terms and conditions of 10
employment. This principle is not some novel innovation but well-established law.
The crucial ingredient here is that employees are acting in concert for their mutual aid
or protection. A solitary employee, filing a lawsuit only for her own personal benefit, does
not engage in such protected activity. But when two or more employees act together in filing 15
a lawsuit concerning terms or conditions of employment, that action enjoys the protection of
the Act unless done in malice or bad faith.
Moreover, when a solitary employee takes some action which is not just for herself but
on behalf of other employees as well, that action does constitute protected concerted activity. 20
It is just as much protected concerted activity as when two employees act ensemble.
Moreover, Section 7 protects the right of one employee to act on behalf of other employees
even if they have not given her prior permission to do so. See, e.g., Salisbury Hotel, 283
NLRB 685 (1987). See also Citizens Investment Service Corp. v. NLRB, 430 F.3d 1195 (D.C.
Cir. 2005), citing Meyers Industries, Inc., 281 NLRB 882 (1986), aff’d sub nom Prill v. 25
NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
In the present case, the parties’ briefs largely focus on this second form of protected
concerted activity, in which one employee takes action on behalf of other employees. The
extensive line of cases cited above clearly establishes that Section 7 gives two or more 30
employees, acting together, the right to sue their employer over a work-related matter. They
have the right to walk into the court clerk’s office, file a pleading listing their names as
plaintiffs, and proceed with the lawsuit. Because Section 7 grants them this right to act in
concert, an employer cannot lawfully require them to waive it. But the question being
debated in the briefs is whether the law protects one employee when she files a lawsuit on 35
behalf of other employees as well as herself.
Section 7 certainly protects her right to take many other types of action on behalf of
coworkers, actions such as filing a grievance, or speaking out in public about working
conditions, or protesting to management about working conditions. So long as she is doing 40
so on behalf of other employees and not just herself, the Act protects her. Then, why
wouldn’t the law protect her right to file a lawsuit seeking relief for other workers as well as
herself?
As I understand Respondent’s argument, it answers by saying, “that would be a ‘class 45
action,’ and Section 7 does not give employees the right to file a class action.” However,
JD−72−16
27
such an argument is wildly off the mark.
A plaintiff can seek a remedy for someone other than herself without having to invoke
Rule 23 of the Federal Rules of Civil Procedure or some analogous class action rule under
state law. A plaintiff certainly can ask for and pursue a remedy for other employees without 5
seeking to certify a class. Indeed, in most instances, an employer will not have enough
employees to meet the numerosity requirements of Rule 23.
Significantly, the Respondent’s arbitration agreement does not merely force an
employee to waive the right to file a class action (under Rule 23 or otherwise) but much more 10
broadly requires the employee to relinquish the right to file any “representative claim” for
other workers. The Respondent’s attempt to prevent one employee from representing another
goes to the very core of the rights protected by Section 7 of the Act, the right of employees to
look out for each other, to act in concert for their mutual aid or protection.
15
The Respondent’s arbitration agreement forces employees to give up much more than
a right to use Rule 23 procedures. Rather, it cuts to the quick. Nonetheless, the Respondent
tries to make a tangential, irrelevant matter central by claiming that the issue concerns a
supposed “right” to invoke a court’s class action procedures. Thus, the Respondent’s brief
states:20
When the Board decided that § 7 protects the right to bring or participate in class or
collective actions, it analogized those “rights” to the right to bring good faith,
non-malicious lawsuits or administrative complaints. See D.R. Horton I, 357 N.L.R.B.
at 2278 & n.4. The appropriate analysis, however, is whether the Act protects the 25
ability to access class-action and collective-action procedures. Those procedures are
governed by specific statutory provisions or procedural rules that exist outside the Act.
See 29 U.S.C. § 216(b) (FLSA); 29 U.S.C. § 626(b); Fed. R. Civ. P. 23 (class actions).
Federal courts, including the Supreme Court, have made clear that there is no
substantive right to access those procedures; any such right is procedural only. See 30
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 332 (1980).
The Respondent blows a smokescreen of confusion across the field of analysis.
Framing the issue as “whether the Act protects the [employees’] ability to access class-action
and collective-action procedures” totally misapprehends the nature of Section 7 of the Act.12 35

12 It both puzzles and concerns me that the Respondent, having read the Board's D. R. Horton decision,
would then argue that the "appropriate analysis … is whether the Act protects the ability to access
class-action and collective-action procedures." In the D. R. Horton decision itself, the Board clearly
and unequivocally stated that the Act did not confer an ability or entitlement to use such procedures.
Here, I do not wish to suggest either that the Respondent failed to understand the plain
meaning of the Board's words or that it deliberately ignored that meaning. Excluding those two
possibilities, I must assume that the Respondent wished somehow to challenge the Board's description
of its own holding.
A party certainly may argue that one of the Board's precedents does not say what it really
means or that it doesn't really mean what it says. In the interest of clarity, however, a party embarking
on such an argument should proceed very methodically, explaining all premises and logical steps.
JD−72−16
28
Section 7 does not create or “protect” a right of access to class action or collective-action
procedures. Whether any employee is entitled to bring a collective-action lawsuit is for the
court to decide in accordance with its rules and applicable law.
It should be stressed that in deciding whether or not a lawsuit may proceed under the 5
class action rules, the court examines the specific facts of the individual case before it, and
considers whether these facts satisfy the requirements of the court rule. As the facts differ,
case by case, the court will reach different conclusions. In some cases it will decide that the
case does not qualify for class action status, and in other cases it will decide that the case does
qualify. However, in making such decisions, the court will not be looking at Section 7 of the 10
Act because it is irrelevant.
An employee’s Section 7 rights do not provide a rubber stamp to mark “Approved for
Class Action” on the pleadings. However, since Section 7 does protect the right of two or
more employees to sue their employer concerning working conditions, and likewise protects 15
the right of one employee to sue if seeking a remedy for other employees besides herself, it
certainly would protect the right to take any of the ordinary steps involved in a lawsuit, such
as engaging in discovery or seeking class certification. A court certainly may reply, “sorry,
but you don’t meet the standards,” but nonetheless, if the employees’ complaint relates to
terms and conditions of employment, Section 7 protects their right to ask.1320
Also, consider this hypothetical situation. As the cases cited above clearly establish,
two or more employees most assuredly have the Section 7 right to sue their employer
concerning conditions of employment, provided they are not acting with malice or in bad
faith. Their employer lawfully cannot force them to waive this right. Therefore, in this 25
hypothetical, they are present in the courtroom and enjoying the full protection of the Act. In
concert, they decide to amend their lawsuit and seek class certification. Is this concerted
action, seeking class certification, somehow less protected by Section 7 than the concerted
activity of filing the lawsuit in the first place?

Otherwise, the argument is more likely to confuse than persuade.
That may be the case here. The Respondent certainly seems to assume a premise contrary to
fact, namely, that the Board's D. R. Horton decision rests on some conclusion that Section 7 creates an
entitlement to use class action procedures, but that is a conclusion which the decision expressly denies.
Such an argument necessarily would imply that the Board did not, in D. R. Horton, mean what
it said, but such an unusual premise needs to be disclosed and justified, and cannot simply be assumed.
Indeed, the law must assume the opposite, that precedents ordinarily mean what they state, because
otherwise they provide no guidance.
Therefore, if the Respondent wishes to characterize the D. R. Horton line of precedents as
creating some Section 7 right to file a class action lawsuit, it should address the following language
which is directly to the contrary: "Nothing in our holding guarantees class certification; it guarantees
only employees' opportunity to pursue without employer coercion, restraint or interference such claims
of a class or collective nature as may be available to them under Federal, State or local law." D. R.
Horton, Inc., 357 NLRB 2277, 2286 fn. 24 (2012).
13 See California Commerce Club, 364 NLRB No. 31, slip op. at 1, fn. 2 (June 16, 2016) ("the Act does
create a right to pursue joint, class, or collective claims if and as available, without the interference of
an employer-imposed restraint"), citing Murphy Oil USA, Inc., 361 NLRB No. 72 (October 28, 2014).
JD−72−16
29
It would be absurd to hold that, although an employer lawfully cannot force
employees to give up their concerted right to file a lawsuit about working conditions, it could
indeed lawfully require them to give up the right to engage in discovery, or to subpoena
witnesses, or to move for sanctions or to take any other actions permitted under the applicable 5
rules of procedure. If an employer could require employees to waive the right to do the
customary and necessary things required in a lawsuit, then their right concertedly to file a
lawsuit becomes illusory, a hollow shell.
Respondent’s brief characterizes the “right” to bring class actions as “procedural”10
rather than “substantive” but this very characterization undercuts its argument. The
substantive right, the one which Section 7 protects, is the right of employees, acting in
concert, to sue their employer about terms and conditions of employment. That right also
includes the right of one employee to bring such a lawsuit on behalf of other employees
because that, too, constitutes protected, concerted activity. The Respondent cannot lawfully 15
require their waiver.
Section 7 doesn’t give such plaintiffs an entitlement to use class action procedures, but
it does protect their right to take the actions allowed under the court’s rules because the
court’s rules are available to and binding on every party to a lawsuit. An employer lawfully 20
cannot gut the employees’ concerted right to file a lawsuit by making them give up the right
to use the court’s procedures. An employer who required such a waiver not only would geld
the employees’ Section 7 right to sue but also would interfere with the court’s authority to
manage its own cases.
25
Moreover, and notwithstanding the arguments in the Respondent’s brief, the real issue
here does not concern class action procedures but the fundamental Section 7 rights of
employees to assert a work-related claim on behalf of other employees, the right of one
worker to seek a remedy for other employees besides herself. Although the Respondent’s
arguments focus on class actions, particularly under Rule 23 of the Federal Rules of Civil 30
Procedure, the Respondent’s arbitration agreement forces employees to waive their rights in
other contexts as well.
Significantly, the Respondent’s arbitration agreement provides an alternative to
arbitration. The arbitration agreement expressly provides that an employee may bring a claim 35
for less than $10,000 in small claims court.
Potentially, many claims will be decided by the small claims court rather than an
arbitrator. However, the arbitration agreement still prohibits two or more employees from
filing suit together or for one employee to file a suit on behalf of any employer besides 40
herself. It states that “the Parties agree that class action and collective action procedures are
waived, and shall not be asserted, nor will they apply, in any arbitration (or dispute
adjudicated in any other forum) pursuant to this Agreement.” (Emphasis added.)
For the reasons stated above, I have concluded that an employee reasonably would 45
understand the term “collective action” to apply not merely to lawsuits under the Fair Labor
JD−72−16
30
Standards Act but to any lawsuit brought by more than one employee or by one employee on
behalf of other employees. Therefore, an employee reasonably would understand the
arbitration agreement to prohibit two or more employees filing a lawsuit together in small
claims court. Similarly, an employee reasonably would understand the prohibition to include
one employee filing a lawsuit on behalf of other employees. That conclusion becomes 5
inescapable because the arbitration agreement also precludes “representative claims.” Thus,
the arbitration agreement unlawfully requires employees to waive the right to engage in
concerted activities protected by Section 7 of the Act.
The Respondent’s arguments about Federal law hardly are convincing when the 10
litigation is in a State small claims court. However, I return to them now because they have
the potential for misdirection but the prestidigitation is not always obvious. The
Respondent’s brief cites Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991) for
the proposition that there is “no right to class procedures” under the Age Discrimination in
Employment Act “despite the statute explicitly providing for class procedures.” Additionally, 15
the Respondent cites American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304,
2309 (2013) for the proposition that Rule 23 of the Federal Rules of Civil Procedure does not
“establish an entitlement to class proceedings for the vindication of statutory rights.”
However, as stated above, this case does not present the question of whether 20
Respondent’s employees are entitled or are not entitled to file a class action lawsuit. Rather,
the question is whether the Respondent lawfully can force them14 to waive their right to file
any lawsuit at all, even one in which two or more employees act in concert to file the lawsuit,
and even one in which one employee files a lawsuit seeking a remedy for other workers. I
conclude that the Respondent lawfully may not require either waiver.25
Additionally, it is important to stress the nature of the harm caused. Requiring an
employee to give up a Section 7 right does not merely inflict a harm “down the road” at some
future date when the employee may have a need to exercise the right. Rather, the harm occurs
immediately, and it occurs whether or not the employee ever actually would exercise that 30
right. Indeed, forcing an employee to waive even a reasonably possible Section 7 right
violates the Act.
In that regard, this case bears some resemblance to the situation in which an individual
applies for a job as a delivery truck driver and the employer states that the applicant will not 35
be hired unless he first agrees that, in making deliveries, he will cross a picket line. Section 7
gives an employee the right to honor a picket line which a union has established at another
business, so the employer here is asking the applicant to waive that right as a condition of
being hired.

14 The complaint alleges unlawful interference, restraint and coercion, in other words "arm twisting" by
the Respondent to force employees to give up rights the Act protects. If the Respondent had sent
muscular, raw-boned "negotiators" to secure an employee's signature through the manual application of
torque to her extremities, that coercion clearly would violate Section 8(a)(1). Figurative arm-twisting -
by making it clear to the employee that she would not work unless she signed the waiver - constitutes
coercion every bit as unlawful, even if lacking in chiropractic drama.
JD−72−16
31
The employer does not know whether this driver will ever encounter such a picket line
and has no way to foresee the future, but he doesn’t want to take any chances. However, even
though it is unlikely that the driver will ever have occasion to assert the right to honor a picket
line, the employer nonetheless violates the Act when it requires him to waive that right as a 5
condition of being hired. Beverly Health & Rehabilitation Services, 346 NLRB 1319, 1320
fn. 8.
Likewise, in the present case it is speculative, and highly dependent upon facts not yet
knowable, whether a court would ever allow the employees to file or participate in a class 10
action lawsuit. However, if a court someday should permit them to do so, that activity would
be concerted and for the employees’ mutual aid or protection, and therefore protected by
Section 7.
Just as an employer cannot require an employee to waive the right to honor a picket 15
line (on the off chance that the employee might someday encounter such a picket line), an
employer cannot require employees to waive the right to participate in a lawsuit, even a
lawsuit proceeding under the court’s class action rules (on the off chance that someday a court
would allow them to do so).
20
The Act makes it unlawful for an employer to require an employee to waive a
statutory right even if the employer doesn’t know whether the employee ever will have
occasion to exercise that right. A casual observer might believe it odd, even silly, for the
Board to find that the employer had “interfered with, restrained or coerced” an employee in
the exercise of Section 7 rights when the employee might never have an opportunity to 25
exercise it. However, this misconceives the nature of the harm.
The harm does not occur at some distant point in the future when the employee wishes
to exercise the right but finds he cannot. Rather, the harm occurs at the moment the employer
makes the unlawful demand that the employee waive the right as a condition of working. The 30
offense is to the inviolate nature of the right itself. The offense is to the employee’s right to
have rights. The offense is to the employee’s freedom to make an uncoerced choice about
waiving or refusing to waive a Section 7 right.
The Board has responsibility for protecting employees’ Section 7 rights, including 35
their right to make free and uncoerced choices about the exercise of those rights. To do so, it
must prevent an employer from demanding that an employee waive a right even if its exercise
is an unlikely possibility far in the future. The reason for this strictness is simple: If an
employer is free to require the relinquishment of a statutory right, and free to punish the
employee’s refusal with discharge or other penalty, then no Section 7 right is ever safe.40
Additionally, the harm caused by this coercion is not limited to the employee coerced
but extends to other employees as well. Allowing an employer to disable a statutory right,
even one which very likely will never be used, devalues all rights because it makes them
appear to exist only at the pleasure of the employer. Creating the impression among 45
employees that Section 7 rights are ephemeral and may be extinguished by the employer
JD−72−16
32
unilaterally itself chills employees’ willingness to exercise them.
It may be noted that complaint paragraph 4(e), discussed below, describes the
violation as forcing employees to sign an agreement which they “would reasonably conclude”5
precludes them from engaging in activity protected by the Act. Part of the alleged harm is the
chilling effect on employees’ exercise of Section 7 rights. That harm occurs the instant the
employer presents an employee with the Hobson’s choice of refusing to waive a right which
the employee reasonably would believe she possesses or else continue to work.
10
Stated another way, even if there is some legal uncertainty about whether the right
exists or under what circumstances it could be exercised, if there is an objectively reasonable
belief that the right exists, then the employer’s demand for a waiver puts the employee under
significant coercive pressure. This pressure has an effect on the composition of the
employer’s workforce. It weeds out those employees who value their Section 7 rights enough 15
to stand up for them, and thereby subject themselves to possible discharge, while keeping
more docile employees. Forcing employees to sign the waiver or else leave results in an
employee complement less willing to engage in concerted activities such as form a union.
Forcing an employee to sign a document which reasonably may be understood to 20
waive Section 7 rights can be compared to requiring the employee to play Russian roulette—
just pull the trigger this once—as a condition of continued employment, and discharging the
assertive employee who refuses. It doesn’t matter if doing so actually results in the employee
losing a right which he someday will need to use. Even if the chamber is empty, making him
pull the trigger causes the harm.25
A very present and immediate harm, not a future and speculative harm, lies in the
employer’s threat to take adverse action against the employee if she refuses to yield that
which she is entitled to keep, her rights under Section 7 of the Act. Refusing to give up a
Section 7 right—or even refusing to give up what the employee reasonably would believe to 30
be a Section 7 right—is itself a Section 7 right.
In sum, I find that the Respondent’s arbitration agreement required the waiver of
rights protected by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act.15 It is

15 The Supreme Court has recognized that the employees' Section 7 right to act together for their mutual
aid or protection extends to concerted activity in judicial and administrative forums. Eastex, Inc. v.
NLRB, 437 U.S. 556 (1978). Because employees may not always be aware of the distinction between
individual and concerted activities, and to assure that employees do not reasonably but mistakenly
believe that they must waive their right to engage in concerted activity in a judicial forum, I recommend
that the Board consider adopting a bright line rule.
Absent a specific statement about concerted activity, language purporting to waive an
employee's right to file a lawsuit almost certainly would lead the employee to believe that she thereby
was waiving not merely individual but concerted rights, including the right to be named as a co-plaintiff
in a lawsuit filed by two or more employees for their mutual aid or protection. Likewise, absent a
specific statement, language waiving an employee's right to sue on her own behalf alone also
reasonably would create the impression that the employee was waiving her right to bring a lawsuit on
behalf of other employees as well as herself. Therefore, I recommend that the Board adopt a bright line
JD−72−16
33
not necessary to rely on the D. R. Horton precedents to reach this conclusion and I do so
based on the other cases cited above. However, the conclusion is fully consistent with D. R.
Horton and its progeny.
Complaint Paragraph 4(e)5
Complaint paragraph 4(e) alleges that at all material times, employees would
reasonably conclude that the provisions of the Arbitration Agreement quoted in the complaint
would preclude employees from engaging in conduct protected by Section 7 of the Act.
Respondent has denied this allegation.10
The “Waiver of Class Action and Representative Action Claims” clause, set forth in
complaint paragraph 4(c), requires an employee to agree “that class action and collective
action procedures are waived, and shall not be asserted, nor will they apply, in any arbitration
(or dispute adjudicated in any other forum) pursuant to this Agreement.”15
It might be argued that an employee who was not a labor lawyer would not see the
connection between class and collective actions and protected concerted activity. However,
those quoted words do not exist in isolation. This immediately follows:
20
Employee agrees that Employee will not serve as a representative member of any class
or collective action, or participate in any class action or collective action claim or
procedure instigated by any other person. The Parties also agree that, to the extent
permitted by law, they will be precluded from asserting in arbitration, or any other
forum, any representative claims.25
An employee reading this text would reasonably, and almost certainly, believe that the
words meant she could not file a grievance on behalf of anyone but herself. She also would
reasonably understand that she could not participate in a grievance filed by any other
employee.30
Reading the last sentence, the employee reasonably would conclude that she could not
assert “in arbitration, or any other forum, any representative claims.” Those words plainly
would preclude her from filing a grievance on behalf of anyone other than herself.
35
These restrictions, forbidding any “representative claim,” render the agreement’s
grievance arbitration procedure cumbersome and inefficient because, in the workplace, a
condition which affects one employee likely affects others as well.16 Clearly, an employee

principle that an employer will violate Section 8(a)(1) if it requires an employee to waive her individual
right to bring a lawsuit about terms and conditions of employment, unless the waiver language
specifically informs the employee that she is not giving up the right to act in concert
with other employees filing a lawsuit for their mutual aid or protection, and that she is
not giving up the right to file a lawsuit which seeks a remedy for other employees as
well as herself.
16 Indeed, the great harm which these limitations inflict on workplace arbitration demonstrates the vast
JD−72−16
34
would reasonably understand these provisions as depriving her of the rights which employees
commonly enjoy and exercise during the grievance process, rights protected by Section 7 of
the Act.
The words clearly effect a waiver of the employee’s right to act in concert with other 5
employees for their mutual aid or protection and, I conclude, an employee reasonably would
understand them to constitute a waiver of Section 7 rights.
Complaint Paragraph 4(f)
10
Complaint paragraph 4(f), which Respondent denies, alleges that from February 17,
2016, until March 29, 2016, employees reasonably would have concluded that the provisions
of the Arbitration Agreement, as described above in paragraphs 4(a) and 4(d), preclude
employees from filing unfair labor practice charges with the Board.
15
The General Counsel’s brief concedes that the arbitration agreement “did not
explicitly restrict employees’ right to file unfair labor practice charges with the Board” but
argues that “the Agreement contains broad language regarding its scope and applicability such
that employees would reasonably construe it to prohibit the filing of charges with the Board.”
Therefore, I will begin this analysis by examining the provisions in the arbitration agreement. 20
The agreement’s first clause, “Intent,” provides in part:
The Parties shall resolve all disputes, claims, and other matters in question arising out
of the employment relationship in accordance with the provisions of this agreement.
25
The arbitration agreement’s next clause, “Mandatory Arbitration,” includes the
following:
The Parties agree that all grievances, claims, complaints, disputes, or causes of action
(collectively, ‘Claims’) that relate in any way to the Parties’ employment relationship 30

difference between labor arbitration and commercial arbitration. The Respondent’s brief did not
recognize this difference when it cited the Supreme Court’s decision in AT&T Mobility LLC v.
Concepcion, 563 U.S. 333 (2011) for the proposition that class actions were not appropriate in
arbitration. The Respondent’s brief quoted the Supreme Court’s statement that “[r]equiring the
availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates
a scheme inconsistent with the [Federal Arbitration Act].” [563 U.S.] at 344.”
The Respondent then quoted the Court’s observation that “[C]lass arbitration sacrifices the
principal advantage of arbitration—its informality—and makes the process slower, more costly, and
more likely to generate procedural morass than final judgment.”
Clearly, the Court was describing commercial arbitration rather than workplace arbitration,
which does not serve an immense group of people who don’t know each other but employees who work
together and typically share a community of interest. As an institution of this community, workplace
arbitration performs not only a dispute resolution function but also a conflict reducing function. It
provides a means to assure that all employees are treated fairly and equally.
Thus, a grievance filed on behalf of all affected employees not only resolves the issue
efficiently but also assures that all such employees receive the same remedy.
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35
or to the Employee’s performance of work for the Employer’s clients, whether based
in contract, tort, fraud, misrepresentation state or federal statutory law, or any other
legal theory, shall be submitted to binding arbitration administered by the American
Arbitration Association….
5
The “Covered Claims” clause of the arbitration agreement specifies which types of
work-related complaints must be addressed through arbitration. The following language is
particularly relevant:
Covered Claims. The Parties are mutually obligated to arbitrate all Claims arising 10
out of or relating to their employment relationship. This Agreement covers all Claims
in a federal, state, or local court or agency under applicable federal, state, or local
laws, arising out of or relating to Employee’s employment with Employer,
performance of work for the Employer’s clients, or the termination of Employee’s
employment….The Claims covered by this Agreement include, but are not limited to15
… (3) claims for wrongful termination (constructive or actual) in violation of public
policy; (4) claims for discrimination or harassment … (5) claims for violation of any
federal, state, or other governmental law, statute, regulation, or ordinance….
[Emphasis added.]
20
On their face, these provisions clearly encompass filing an unfair labor practice charge
with the Board. Such a charge alleges a violation of Federal law and the Board is a Federal
agency. An unfair labor practice charge also concerns matters “arising out of or relating to”
the charging party’s employment. It is difficult to imagine an interpretation of this language
that somehow would exclude filing a charge with the Board. Therefore, I conclude that an 25
employee reasonably would believe that the agreement covered unfair labor practice charges.
Further, I conclude that an employee reasonably would believe that arbitration was the
exclusive means of resolving claims. The agreement’s use of phrases such as “shall resolve,”
“shall be submitted” and “mutually obligated to arbitrate all Claims” clearly convey that the 30
employee must use the arbitral forum. So does the heading “Mandatory Arbitration.”
Additionally, I conclude that an employee reading the agreement would believe not
only that if he wished to complain about conditions of employment he had to use arbitration,
but also that he could only use arbitration. The requirement that the employee “shall resolve”35
the claim through arbitration clearly implies that he may not resolve it through another means,
such as by filing an unfair labor practice charge with the Board.
The prohibition appears in an arbitration agreement rather than in the form of a work
rule. However, the employee must sign and be bound by the agreement as a condition of 40
working. Therefore, the restriction resembles a work rule because it is imposed rather than
assumed voluntarily. Accordingly, I will follow the Board’s framework for determining the
lawfulness of a work rule, set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004).
45
Under Lutheran Heritage, the inquiry begins with whether the rule explicitly restricts
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36
activities protected by Section 7. If so, the rule is unlawful. If the rule does not explicitly
restrict protected activity, the finding of a violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the rule to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.5
The provisions in question do not explicitly prohibit recourse to the Board. However,
for the reasons stated above, I have concluded that they do prohibit an activity which the Act
protects, filing charges with the Board. Therefore, I further conclude that requiring
employees to sign the agreement interferes with their exercise of protected rights and thereby 10
violates Section 8(a)(1) of the Act. Supply Technologies, LLC, 359 NLRB No. 38 (2012).
On March 29, 2016, the Respondent notified employees that the arbitration agreement
had been revised and that the following language had been added:
15
Nothing in this Agreement shall be interpreted to mean that Employee is precluded
from filing complaints with a federal agency, such as the Department of Labor, the
Equal Employment Opportunity Commission, the National Labor Relations Board, or
any equivalent state agency.
20
Complaint paragraph 4(f) does not allege that this violation continued beyond March
26, 2016 and I conclude that it did not. However, I do conclude that the Respondent violated
Section 8(a)(1) of the Act during the time period February 17, 2016 through March 29, 2016,
as alleged in complaint paragraph 6 and that this unfair labor practice affected commerce,
within the meaning of Section 2(6) and (7) of the Act, as alleged in complaint paragraph 7. 25
Complaint Paragraphs 5(a), 5(b) and 5(c)
Complaint paragraph 5(a) alleges that on about February 26, 2016, the Respondent
required that employees sign the Arbitration Agreement or, if they did not sign, employees 30
would be released from their project assignments. Based on the parties’ stipulation,17 I so
find.
Complaint paragraph 5(b) alleges that by this conduct, the Respondent caused the
termination of employee Kimani Adams. The parties stipulated that between February 22 and 35
February 26, 2016, Charging Party Adams exchanged email messages with Respondent
regarding the arbitration agreement and her employment status. The parties further stipulated
that on February 24, 2016 Respondent released Adams from her project assignment as a result
of her failure and refusal to sign the arbitration agreement, and that since that date the

17 The parties stipulated as follows: On February 17, 2016, Respondent electronically disbursed a copy of
a Mutual Agreement to Arbitrate Employment-Related Disputes (Arbitration Agreement) to its project
employees, which included the Charging Party. Respondent required its project employees, including
the Charging Party, to execute the Arbitration Agreement in order to remain eligible to work project
assignments.
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37
Respondent has not assigned her to a new project, has not assigned her any work hours, or
paid her any wages other than those she earned prior to February 24.
Additionally, the parties stipulated that, as of June 13, 2016, Adams had not executed
the arbitration agreement and that the Respondent had not deployed her to any projects since 5
February 24, 2016.
The parties have stipulated, as set forth above, both that the Respondent removed
Adams from her work assigned on February 24, 2016 and that it has not assigned her any
more work since that date. From the stipulation, I also find that the Respondent took these 10
actions because Adams refused to sign the arbitration agreement.
Additionally, for the reasons stated above, I have concluded that the arbitration
agreement effected a waiver of the signer’s right to engage in concerted activities protected by
Section 7 of the Act. Therefore, I conclude that Adams was engaging in protected concerted 15
activity when she refused to sign the document.
Further, based on the stipulation, I find that the Respondent removed Adams from her
work assignment and refused to assign her further work because she engaged in the protected
activity of refusing to sign the waiver. 20
The Board has held that a significant reduction in income for an indefinite period of
time, causing an employee to quit and seek alternative employment, when a motive for such
treatment was protected activity, will establish constructive discharge. Alpine Log Homes,
Inc., 335 NLRB 885 (2001), citing Consec Security, 325 NLRB 453 (1998), and cases cited 25
therein, enfd. mem. 185 F.3d 862 (3d Cir. 1999).
Accordingly, I conclude that the Respondent caused Adams’ employment to be
terminated as of February 24, 2016, as alleged in complaint paragraph 5(b). Further, I find
that the Respondent took this action because Adams had engaged in protected concerted 30
activities, and to discourage other employees from engaging in such activities, as alleged in
complaint paragraph 5(c).
Additionally, I conclude that this action violated Section 8(a)(1) of the Act, as alleged
in complaint paragraph 6, and that this unfair labor practice affected commerce within the 35
meaning of Section 2(6) and (7) of the Act, as alleged in complaint paragraph 7.
Remedy
Having found that the Respondent violated the Act, I turn now to the appropriate 40
remedy. The Respondent must post the notice to employees which is attached to this decision
as Attachment A, and comply with the other posting requirements set forth in the order below.
The Respondent’s project employees work at the offices of the Respondent’s clients
and therefore might not see the notice to employees posted at the Respondent’s place of 45
business. However, the complaint does not allege that these clients are joint employers and
JD−72−16
38
they are not parties to this proceeding. Therefore, it would not be appropriate to order them
also to post the notice.
Instead, I recommend that the Board order the Respondent to send signed copies of the 5
notice to each client at which the Respondent’s employees perform work and request that the
client post the notice. In making this recommendation, I note that the arbitration agreement
itself stated that it “shall also apply to all claims by Employee against Employer’s clients as
well as the clients’ officers, directors, supervisors, managers, employees, and agents.”
10
The arbitration agreement also stated that the employee “acknowledges that
Employee’s performance of work for Employer’s clients is an integral component of
Employee’s work for Employer and specifically agrees that Employer’s clients, as well as the
client’s officers, directors, supervisors, managers, employees, and agents are third party
beneficiaries of this Agreement.”15
In view of this close relationship between the Respondent and its clients, and the fact
that the waivers in the arbitration agreement extended to the clients, the clients’ managers and
employees, it is appropriate that the Respondent’s clients should be given the opportunity to
post the notice at locations where the Respondent’s employees are working.20
The Respondent, having constructively discharged the Charging Party, Kimani
Adams, must reinstate her and make her whole, with interest, for all losses she suffered
because of the Respondent’s unfair labor practices.
25
The General Counsel seeks, as part of the remedy, an order requiring the Respondent
to reimburse Adams for all search-for-work and work-related expenses regardless of whether
she received interim earnings in excess of these expenses, or at all, during any given quarter
or during the overall backpay period. To the extent that the General Counsel seeks a change
in Board policy, the request should be directed to the Board.30
The Respondent must revise its arbitration agreement to exclude all language whereby
the signer waived the right to engage in protected, concerted activities and notify all
employees who signed such agreements that those waivers have been rescinded and will not
be enforced.35
The arbitration agreements themselves include severability clauses stating, “If any
provision of this Agreement is held to be void or otherwise unenforceable, in whole or in part,
the void or unenforceable provision shall be severed and the adjudication shall not affect the
validity of the remainder of this Agreement.” Accordingly, the Respondent must maintain in 40
effect the grievance arbitration procedure which it established and to which it agreed, but with
the unlawful terms excised.
Conclusions of Law
45
1. The Respondent, E. A. Renfroe & Company, Inc., is an employer engaged in
JD−72−16
39
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by requiring its employees
to sign, as a condition of receiving work assignments, an agreement whereby they waived the
right, guaranteed to them by Section 7 of the Act, to engage in concerted activity for their 5
mutual aid or protection.
3. The Respondent violated Section 8(a)(1) of the Act, during the time period
February 17, 2016 through March 29, 2016, by maintaining provisions in its arbitration
agreement which employees would reasonably conclude precluded them from filing unfair 10
labor practice charges with the Board.
4. The Respondent violated Section 8(a)(1) of the Act by causing the constructive
discharge of its employee Kimani Adams because she refused to waive rights protected by
Section 7 of the Act, and to discourage other employees from refusing to waive such rights.15
5. The Respondent did not violate the Act in any other manner alleged in the
complaint.
On these findings of fact and conclusions of law and on the entire record in this case, I 20
issue the following recommended18
ORDER
The Respondent, E. A. Renfroe & Company, Inc., its officers, agents, successors, and 25
assigns, shall
1. Cease and desist from:
(a) Requiring its employees to waive their rights guaranteed by Section 7 30
of the Act, including the rights described herein, to engage in protected concerted activities
for their mutual aid or protection, as a condition of continued employment.
(b) Terminating the employment of employees who refuse to waive their
Section 7 rights, including the rights described herein, to engage in protected concerted 35
activities for their mutual aid or protection, as a condition of continued employment.
(c) Creating the impression that employees cannot file charges with the
National Labor Relations Board.
40
(d) In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to form, join, or assist any

18 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
JD−72−16
40
labor organization, to bargain collectively through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the 5
Act:
(a) Revise the arbitration agreements which it requires employees to sign
as a condition of employment to remove all requirements that employees, as a condition of
employment, waive rights guaranteed by Section 7 of the Act (including those rights 10
described in the notice to employees attached hereto, which include the rights of employees to
act concertedly for their mutual aid or protection by filing lawsuits and/or grievances together
and/or on behalf of other employees and the right to invoke procedures provided by the rules
of court, including class action procedures deemed appropriate by the court) and notify all
employees that such provisions have been removed, while otherwise maintaining in effect the 15
grievance arbitration procedure established by these agreements.
(b) Offer immediate and full reinstatement to employee Kimani Adams and
make her whole for any loss of earnings and other benefits suffered as a result of the unlawful
action against her. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 20
NLRB 289 (1950), plus daily compound interest as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
(c) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful discharge of Kimani Adams and, within 3 days thereafter, notify her 25
in writing that this has been done and that the discharge will not be used against her in any
way.
(d) Within 14 days after service by the Region, post at its facilities in
Birmingham, Alabama, copies of the attached notice marked “Appendix A.”19 Copies of the 30
notice, on forms provided by the Regional Director for Region 10, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent immediately upon
receipt 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 35
material. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. J.
Picini Flooring, 356 NLRB 11 (2010). In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these 40

19 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices
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.”
proceedings, the Respondent s
to all current employees and former employees employed by the Respondent at any time since
February 17, 2016. Excel Container, Inc.
(e) Furnish signed copies of the n5
which its employees are performing work, and request that each client post the notice in all
locations where notices to employees customarily are posted.
(f) Within 21 days after service by the Region, file w
Director a sworn certification of a responsible official on a form provided by the Regional 10
Director attesting to the steps that the Respondent has taken to comply.
Dated Washington, D.C.
15
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41
hall duplicate and mail, at its own expense, a copy of the notice
, 325 NLRB 17 (1997).
otice to employees to each of its clients at
August 17, 2016
ith the Regional
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we violated federal labor law and has
ordered us to post and abide by 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 interfere with, restrain or coerce our employees in the exercise of
these rights, guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT require employees, as a condition of their employment, to waive any
of their rights under the National Labor Relations Act, including the right of employees,
acting in concert, to file lawsuits concerning terms and conditions of employment, including
the right of one employee to file a lawsuit on behalf of and/or seeking a remedy for other
employees, the right of employees, acting in concert or on behalf of other employees, to use
procedures, including class action procedures, found appropriate by the court, the right of two
or more employees to file joint grievances and of one employee to file grievances on behalf of
other employees, to participate in the arbitration of other employees’ grievances, to assist
them in grievance arbitrations, and to act together with other employees for their mutual aid
or protection.
WE WILL NOT maintain any provision in an arbitration agreement which reasonably
would be understood by employees to prevent them from engaging in any concerted activities
for their mutual aid or protection, including those described above, or which reasonably
would be understood to prevent them from filing charges with the National Labor Relations
Board.
WE WILL NOT cause the discharge of any employee for refusing to sign an
agreement which reasonably would be understood to waive any of the employee’s rights
guaranteed by the National Labor Relations Act.
WE WILL offer immediate and full reinstatement to employee Kimani Adams and
make her whole, with interest, for all losses of earnings and benefits which she suffered
because of our unfair labor practices.
WE WILL remove from the arbitration agreements we require employees to sign, and
from the grievance arbitration procedure established by those agreements, all restrictions on
the right of two or more employees acting in concert to file a lawsuit against us or our clients,
all restrictions on the right of one employee acting on behalf of other employees to file such a
lawsuit, all restriction on the right of employees, acting together or on behalf of other
employees, to use class action and other procedures deemed appropriate by the court, the right
of employees to file or pursue joint grievances, the right of an employee to file grievances on
behalf of other employees or seek a remedy for them, and the right of employees to participate
in grievance arbitration proceedings, but will continue our grievance arbitration procedure, so
modified, in effect.
WE WILL notify, in writing, all employees who have signed or who have been
requested to sign an arbitration agreement, that we have rescinded the provisions which
require them to waive their right to act jointly or collectively in the grievance arbitration
procedure, including those rights described above, or which otherwise require them to waive a
right guaranteed by the National Labor Relations Act.
E. A. RENFROE & COMPANY, INC.
(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 an agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
233 Peachtree Street, N.E., Harris Tower, Suite 1000, Atlanta, GA 30303–1531
Telephone: (404) 331–2896; Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/10-CA-171072 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.
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, (336) 631–5216.