FUJI Food Products, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 2016

363 NLRB No. 118 (N.L.R.B. 2016)

363 NLRB No. 118
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Fuji Food Products, Inc. and Nancy Sandra Gonzalez.
Case 21–CA–095997
February 19, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On July 15, 2014, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decision in D.
R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), that the Re-
spondent violated Section 8(a)(1) of the Act by enforcing
its Confidential Information and Inventions Agreement
(Agreement) in a manner that requires employees, as a
condition of employment, to waive their rights to pursue
class or collective actions involving employment-related
claims in all forums, whether arbitral or judicial. The
judge also found, relying on D. R. Horton, that maintain-
ing the Agreement violated Section 8(a)(1) because em-
ployees reasonably would believe that it bars or restricts
their right to file unfair labor practices with the Board.
In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014),
enf. denied in relevant part 808 F.3d 1013 (5th Cir.
2015), the Board reaffirmed the relevant holdings of D.
R. Horton, supra.
The Board has considered the decision and record in
light of the exceptions and briefs, and, based on the
judge’s application of D. R. Horton, and on our subse-
quent decision in Murphy Oil, we affirm the judge’s find-
ings and conclusions,1 and adopt the recommended Order
as modified and set forth in full below.2

1 Although the Agreement does not explicitly restrict activities pro-
tected by Sec. 7, we agree with the judge in finding, based upon the
parties’ stipulation, that the Agreement has been enforced to compel
arbitration on an individual rather than a class or collective basis. Ac-
cordingly, the Agreement has been applied to restrict the exercise of
Sec. 7 rights, and is thus unlawful under Lutheran Heritage Village-
Livonia, 343 NLRB 646, 647 (2004). See Countrywide Financial
Corp., 362 NLRB No. 165, slip op. at 3–5 (2015); see also, Employers
Resource, 363 NLRB No. 59, slip op. at 1 fn. 2 (2015).
The Respondent argues that the complaint is time barred by Sec. 10
(b) because the initial unfair labor practice charge was filed and served
more than 6 months after the Charging Party, Nancy Sandra Gonzalez,
signed and became subject to the Agreement. We reject this argument,
as did the judge, because the Respondent continued to maintain the

unlawful Agreement during the 6-month period preceding the filing of
the initial charge. The Board has long held under these circumstances
that maintenance of an unlawful workplace rule, such as the Respond-
ent’s Agreement, constitutes a continuing violation that is not time
barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB No. 177, slip op.
at 1 (2015); Neiman Marcus Group, 362 NLRB No. 157, slip op. at 2
fn. 6 (2015); and Cellular Sales of Missouri, LLC, 362 NLRB No. 27,
slip op. at 2 fn. 7 (2015). It is equally well established that an employ-
er’s enforcement of an unlawful rule, like the Agreement here, inde-
pendently violates Sec. 8(a)(1). See Murphy Oil, supra, at 19–21. The
Respondent enforced its Agreement on December 28, 2012, within the
relevant 6-month period before the charge was filed and served.
To the extent the Respondent argues that Charging Party Gonzalez
was not engaged in concerted activity in filing the State lawsuit in State
court, we reject that argument. As the Board made clear in Beyoglu,
362 NLRB No. 152 (2015), “the filing of an employment-related class
or collective action by an individual is an attempt to initiate, to induce,
or to prepare for group action and is therefore conduct protected by
Section 7.” Id., slip op. at 2; see also D. R. Horton, 357 NLRB 2277,
2279. We reject the Respondent’s argument that because Charging
Party Gonzalez was no longer an employee at the time she filed her
charge, the complaint based on her charge should be dismissed. The
Board has long held that the broad definition of “employee” contained
in Sec. 2(3) of the Act covers former employees. See Briggs Mfg. Co.,
75 NLRB 569, 571 (1947). Accord: Leslie’s Poolmart, Inc., supra, 362
NLRB No. 184 slip op. at 1 fn. 2; PJ Cheese, Inc., 362 NLRB No. 177,
slip op. at 3 fn. 9 (2015). Moreover, Sec. 102.9 of the Board’s Rules &
Regulations provides that a charge may be filed by “any person,” with-
out regard to whether that person is a Sec. 2(3) employee.
In the absence of exceptions, we adopt pro forma the judge’s conclu-
sion that the Respondent abandoned its challenge to the complaint on
the ground that the Acting General Counsel at the time the complaint
issued was not properly appointed.
Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, 361 NLRB No. 72, slip op. at 22–35 (2015), would find that
the Agreement does not violate Sec. 8(a)(1). He observes that the Act
does not “dictate” any particular procedures for the litigation of non-
NLRA claims, and “creates no substantive right for employees to insist
on class-type treatment” of such claims. This is all surely correct, as
the Board has previously explained in Murphy Oil, above, slip op. at 2,
and Bristol Farms, 363 NLRB No. 45, slip op. at 2 fn. 2 (2015). But
what our colleague ignores is that the Act “does create a right to pursue
joint, class, or collective claims if and as available, without the interfer-
ence of an employer-imposed restraint.” Murphy Oil, above, slip op. at
2 (emphasis in original). The Agreement is just such an unlawful re-
straint. See On Assignment Staffing Services, 362 NLRB No. 189, slip
at 4, 9 fns. 28, 29, and 31 (2015).
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
Agreement unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 3. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
2 Consistent with our decision in Murphy Oil, supra at 21, we adopt
the judge’s remedy and shall order the Respondent to reimburse Gonza-
lez and all other plaintiffs, if any, for all reasonable expenses and legal
fees, with interest, incurred in opposing the Respondent’s unlawful
motion in State court to compel individual arbitration of her, or their,
class or collective claims. See Bill Johnson’s Restaurants v. NLRB,
461 U. S. 731, 747 (1983) (“If a violation is found, the Board may
order the employer to reimburse the employees whom he had wrongful-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The National Labor Relations Board orders that the
Respondent, Fuji Food Products, Inc., Santa Fe Springs,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a Confidential Information and Inven-
tions Agreement (Agreement) that employees reasonably
would believe bars or restricts the right to file charges
with the National Labor Relations Board.
(b) Maintaining and/or enforcing the Agreement in a
manner that requires employees, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive actions in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Agreement in all of its forms, or revise
it in all of its forms to make clear to employees that the
Agreement does not constitute a waiver of their right to
maintain employment-related joint, class, or collective
actions in all forums, and that it does not bar or restrict
employees’ right to file charges with the National Labor
Relations Board.
(b) Notify all current and former employees who were
required to sign the Agreement in any form that the

ly sued for their attorneys’ fees and other expenses” as well as “any
other proper relief that would effectuate the policies of the Act.”).
Interest shall be computed in the manner prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). See Teamsters Local 776
(Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole orders
for suits maintained in violation of the Act, it is appropriate and neces-
sary to award interest on litigation expenses”), enfd. 973 F.2d 230 (3d
Cir. 1992).
We shall also amend the judge’s remedy to order the Respondent to
notify the State court that it has rescinded or revised the Agreement and
to inform the court that it no longer opposes Gonzalez’ lawsuit on the
basis of the Agreement.
We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and we shall substitute a new
notice to conform to the Order as modified.
We reject the position of the Respondent and our dissenting col-
league that the Respondent's motion to compel arbitration was protect-
ed by the First Amendment's Petition Clause. In Bill Johnson's Restau-
rants v. NLRB, supra, the Court identified two situations in which a
lawsuit enjoys no such protection: where the action is beyond a State
court's jurisdiction because of Federal preemption, and where “a suit . .
. has an objective that is illegal under federal law.” 461 U.S. at 737 fn.
5. Thus, the Board may properly restrain litigation efforts such as the
Respondent's motion to compel arbitration that have the illegal objec-
tive of limiting employees' Sec. 7 rights and enforcing an unlawful
contractual provision, even if the litigation was otherwise meritorious
or reasonable. See Murphy Oil, supra, slip op. at 20–21; Convergys
Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
Agreement has been rescinded or revised and, if revised,
provide them a copy of the revised agreement.
(c) Notify the Los Angeles Superior Court in Nancy
Sandra Gonzalez v. Fuji Food Products, Inc., Case. No.
BC487352, that it has rescinded or revised the mandatory
arbitration agreement upon which it based its motion to
dismiss Nancy Sandra Gonzalez’ class and representative
claims, and inform the court that it no longer opposes the
lawsuit on the basis of the Agreement.
(d) In the manner set forth in this decision, reimburse
Nancy Sandra Gonzalez and any other plaintiffs for any
reasonable attorneys’ fees and litigation expenses that
she, or they, may have incurred in opposing the Re-
spondent’s motion to stay the collective lawsuit and
compel individual arbitration.
(e) Within 14 days after service by the Region, post at
its facilities in Santa Fe Springs, California, copies of the
attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 21, after being signed by Respondent’s authorized
representative, shall be posted by Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if Respondent cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by Respondent at any
time since December 28, 2012.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FUJI FOOD PRODUCTS, INC. 3
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.
Dated, Washington, D.C. February 19, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, the Respondent required employees to
sign its Confidential Information and Inventions Agree-
ment (the Agreement), which provided for the arbitration
of non-NLRA employment-related claims. The Agree-
ment was silent regarding class arbitration. Charging
Party Nancy Sandra Gonzalez signed the Agreement and
later filed a class action lawsuit against the Respondent
in California State court alleging wage and hour viola-
tions. In reliance on the Agreement, the Respondent
filed a motion with the court to compel individual arbi-
tration of the Charging Party’s claims. That motion is
still pending.
My colleagues find that the Respondent violated
NLRA Section 8(a)(1) under Lutheran Heritage Village–
Livonia1 on the basis that the Respondent applied the
Agreement to require individual arbitration. In other
words, it applied the Agreement as a waiver of class-type
treatment of non-NLRA claims.2 I respectfully dissent

1 343 NLRB 646 (2004).
2 My colleagues rely on the Board’s holding in Lutheran Heritage,
which is sometimes referred to as Lutheran Heritage “prong three,”
that a policy, work rule or handbook provision will be unlawful if it
“has been applied to restrict the exercise of Section 7 rights.” Id. at
647. This differs from another holding in Lutheran Heritage, some-
times referred to as Lutheran Heritage “prong one,” under which a
policy, work rule or handbook provision is invalidated if “employees
would reasonably construe the language to prohibit Section 7 activity.”
Id. I have expressed disagreement with Lutheran Heritage prong one,
and I advocate that the Board formulate a different standard in an ap-
propriate future case regarding facially neutral policies, work rules, and
handbook provisions. See, e.g., Lily Transportation Corp., 362 NLRB
No. 54, slip op. at 1 fn. 3 (2015); Conagra Foods, Inc., 361 NLRB No.
113, slip op. at 8 fn. 2 (2014); Triple Play Sports Bar & Grille, 361
NLRB No. 31, slip op. at 10 fn. 3 (2014), affd. sub nom. Three D, LLC
v. NLRB, Nos. 14–3284, –3814, 2015 WL 6161477 (2d Cir. Oct. 21,
2015). In the instant case, for the reasons noted in the text, I disagree
from this finding for the reasons explained in my partial
dissenting opinion in Murphy Oil USA, Inc.3 I concur,
however, in my colleagues’ finding that the Agreement
violates the Act because employees would reasonably
read it to restrict or preclude filing charges with the
Board.
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.4 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”5 This aspect of Section

with my colleagues’ finding in reliance on Lutheran Heritage prong
three that the Agreement has been unlawfully applied to restrict the
exercise of Sec. 7 rights.
3 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part); see also Philmar Care, LLC d/b/a San Fernando
Post Acute Hospital, 363 NLRB No. 57, slip op. at 3–5 (2015) (Mem-
ber Miscimarra, dissenting). The Board majority’s holding in Murphy
Oil invalidating class action waiver agreements was denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
4 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting). Here, I agree with the Re-
spondent that the Charging Party was not engaged in concerted activity
when, acting individually, she filed a class action lawsuit in California
State court. See my dissent in Beyoglu, above.
5 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;6 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;7 and (iii)
enforcement of a class action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).8 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
Because I believe the Respondent’s Agreement, as ap-
plied, was lawful under the NLRA, I would find it was
similarly lawful for the Respondent to file a motion in
state court seeking to enforce the Agreement.9 That the

or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
6 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
7 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco
USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to certify for
interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30,
2015); Brown v. Citicorp Credit Services, No. 1:12-CV-00062-BLW,
2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration
of prior determination that class waiver in arbitration agreement violat-
ed NLRA).
8 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
9 The Agreement is silent as to whether arbitration may be conducted
on a class or collective basis. In finding the Respondent’s motion to
compel individual arbitration was nevertheless unlawful, my colleagues
rely on Countrywide Financial Corp., 362 NLRB No. 165 (2015). In
Respondent’s motion was reasonably based is supported
by court decisions that have enforced similar agree-
ments.10 As the Fifth Circuit recently observed after re-
jecting (for the second time) the Board’s position regard-
ing the legality of class-waiver agreements: “[I]t is a bit
bold for [the Board] to hold that an employer who fol-
lowed the reasoning of our D. R. Horton decision had no
basis in fact or law or an ‘illegal objective’ in doing so.
The Board might want to strike a more respectful balance
between its views and those of circuit courts reviewing
its orders.”11 I also believe that any Board finding of a
violation based on the Respondent’s motion to compel
arbitration would improperly risk infringing on the Re-
spondent’s rights under the First Amendment’s Petition
Clause. See Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731 (1983); BE & K Construction Co. v. NLRB, 536
U.S. 516 (2002); see also my partial dissent in Murphy
Oil, above, 361 NLRB No. 72, slip op. at 33–35. Finally,
for similar reasons, I believe the Board cannot properly
require the Respondent to reimburse the Charging Party
and other plaintiffs for their attorneys’ fees in the cir-
cumstances presented here. Murphy Oil, above, 361
NLRB No. 72, slip op. at 35.12
Accordingly, as to these issues, I respectfully dissent.13

Countrywide Financial, a Board majority decided that the employer
violated the Act by moving to compel individual arbitration based on
an arbitration agreement that, like the Respondent’s, was silent regard-
ing the arbitrability of class and collective claims. For the reasons
stated in Member Johnson’s dissent in Countrywide Financial, howev-
er, id., slip op. at 8–10, the Board’s decision in that case is in conflict
with the FAA and Supreme Court precedent construing that statute.
The Court has held that a “party may not be compelled under the FAA
to submit to class arbitration unless there is a contractual basis for
concluding that the party agreed to do so.” Stolt-Nielsen S.A. v. Animal
Feeds International Corp., 559 U.S. 662, 684–685 (2010) (emphasis in
original). Obviously, where an arbitration agreement is silent regarding
class arbitration, there is no such contractual basis. Thus, Respondent’s
motion to compel individual arbitration was “well-founded in the FAA
as authoritatively interpreted by the Supreme Court.” Philmar Care,
LLC d/b/a San Fernando Post Acute Hospital, above, slip op. at 4 fn.
11 (Member Miscimarra, dissenting); see also Employers Resource,
363 NLRB No. 59, slip op. at 3 fn. 9 (2015) (Member Miscimarra,
dissenting); Countrywide Financial, above, slip op. at 9 (Member John-
son, dissenting).
10 See, e.g., Murphy Oil, Inc., USA v. NLRB, above;
Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D.
R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d
1050 (8th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290
(2d Cir. 2013).
11 Murphy Oil, Inc., USA v. NLRB, 808 F.3d at 1021.
12 I agree with my colleagues that the Charging Party’s status as a
former employee does not deprive her of standing to file and pursue the
unfair labor practice charge here. I also agree with the majority’s find-
ing that the complaint is not time barred by Sec. 10(b).
13 For the following reasons, however, I concur in my colleagues’
finding that the Agreement unlawfully interferes with NLRB charge-
filing in violation of Sec. 8(a)(1). Newly-hired employees were re-
quired to sign the Agreement. In pertinent part, it required employees
FUJI FOOD PRODUCTS, INC. 5
Dated, Washington, D.C. February 19, 2016
______________________________________
Philip A. Miscimarra Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a Confidential Information and
Inventions Agreement (Agreement) that our employees
reasonably would believe bars or restricts their right to
file charges with the National Labor Relations Board.
WE WILL NOT maintain and/or enforce the Agreement
in a manner that requires our employees, as a condition

to resolve by arbitration “all disputes relating to all aspects of the em-
ployer/employee relationship, . . . including, but not limited to . . .
claims for wrongful discharge . . . [and] claims for violation of any
federal . . . statute.” For the reasons stated in my separate opinion in
The Rose Group d/b/a Applebee’s Restaurant, 363 NLRB No. 75, slip
op. at 3–5 (2015) (Member Miscimarra, dissenting in part), I believe
that an agreement may lawfully provide for the arbitration of NLRA
claims, and such an agreement does not unlawfully interfere with Board
charge-filing, at least where the agreement expressly preserves the right
to file claims or charges with the Board or, more generally, with admin-
istrative agencies. Here, however, the Agreement does not qualify in
any way the requirement that all claims for violation of any Federal
statute must be resolved in binding arbitration and in this manner only.
Without some further qualification, this language plainly precludes the
filing of a Board charge. For these reasons, I join my colleagues in
finding that the Agreement violates the Act by unlawfully restricting
the filing of charges with the Board. See U-Haul Co. of California, 347
NLRB 375, 377(2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir.
2007); Murphy Oil, above, slip op. at 22 fn. 4 (Member Miscimarra,
dissenting in part); GameStop Corp., 363 NLRB No. 89, slip op. at 6–7
(Member Miscimarra, concurring in part and dissenting in part); The
Rose Group d/b/a Applebee’s Restaurant, above (Member Miscimarra,
dissenting in part).
of their employment, to waive the right to maintain class
or collective actions in all forums, whether arbitral or
judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights listed above.
WE WILL rescind the Agreement in all of its forms, or
revise it in all of its forms to make clear that the Agree-
ment does not constitute a waiver of your right to main-
tain employment-related joint, class, or collective actions
in all forums, and that it does not restrict your right to
file charges with the National Labor Relations Board.
WE WILL notify current and former employees who
were required to sign or otherwise become bound to the
Agreement in all of its forms that the Agreement has
been rescinded or revised and, if revised, WE WILL pro-
vide them a copy of the revised Agreement.
WE WILL notify the court in which Nancy Sandra Gon-
zalez filed her collective lawsuit that we have rescinded
or revised the Agreement upon which we based our mo-
tion to dismiss her collective lawsuit and compel indi-
vidual arbitration, and WE WILL inform the court that we
no longer oppose Gonzalez’s collective lawsuit on the
basis of that Agreement.
WE WILL reimburse Nancy Sandra Gonzalez and any
other plaintiffs for any reasonable attorneys’ fees and
litigation expenses that she, or they, may have incurred
in opposing our motion to stay her lawsuit and compel
individual arbitration.
FUJI FOOD PRODUCTS, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/21–CA–095997 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.,
20570, or by calling (202) 273-1940.
Cecelia F. Valentine, Esq., for the General Counsel.
Jason A. Geller, Esq., for the Respondent Company.
Matthew J. Matern, Esq., for the Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. This is
another case involving the alleged unlawful maintenance and
enforcement of a mandatory-arbitration employment agree-
ment. Nancy Sandra Gonzalez, the Charging Party, was initial-
ly hired by Fuji Food Products in July 2009. At that time, Fuji
required her to sign a so-called “Confidential Information and
Inventions Agreement” (CIIA). Among other things, the CIIA
stated that she agreed, “as a condition of” and “in consideration
for” Fuji’s offer of employment, to resolve “all disputes relat-
ing to all aspects of the employer/employee relationship, . . .
including, but not limited to . . . claims for wrongful discharge
. . . [and] claims for violation of any federal . . . statute,” by
“final, conclusive and binding” arbitration. The CIIA did not,
however, specifically address whether the disputes could be
arbitrated on a class or collective basis.1
Gonzalez’ employment with Fuji lasted about 3 months, until
October 2009. However, she subsequently reapplied and was
rehired a year later, in October 2010. At that time, Fuji no
longer required new hires to sign the CIIA. Instead, Fuji re-
quired Gonzalez and other new hires to sign a document enti-
tled “Employment Agreement” (EA). Unlike the CIIA, the EA
did not include a mandatory arbitration provision.2 Nor did it
incorporate by reference the CIIA. Indeed, it stated that the EA
“contains the entire agreement” between the parties concerning
its subject matter and “takes priority over all previous agree-
ments.”
However, Fuji never rescinded the CIIAs signed by other,
current employees who were hired before October 2010, were
likewise required to sign the CIIA at that time, and never
signed the EA. Further, as discussed below, Fuji continued to
enforce the CIIA that Gonzalez signed in 2009.
Gonzalez continued to work at Fuji for about 9 months, until
her employment again ended in July 2011. About 11 months
later, in June 2012, she filed a putative class-action complaint
in Los Angeles Superior Court, on behalf of herself and other
unnamed similarly situated current and former Fuji employees,
alleging wage and hour violations under the California Labor
Code. Nancy Sandra Gonzalez v. Fuji Food Products, Inc.,
Case No. BC487352.
Gonzalez subsequently offered to submit the foregoing
claims to class arbitration. However, Fuji rejected this pro-
posal. Instead, on December 28, 2012, Fuji formally moved the
court to dismiss and compel arbitration of the claims on an
individual rather than a class basis “pursuant to the terms of the
[CIIA] entered into between [Gonzalez] and Fuji” in 2009. In
support, Fuji cited, inter alia, the Federal Arbitration Act (FAA)
and the Supreme Court’s opinion in Stolt-Nielsen S.A. v. Ani-
mal Feeds International Corp., 559 U.S. 662 (2010), which
held that the parties’ intent in entering an arbitration agreement
controls, and that consent to class arbitration may not be pre-

1 The relevant provisions of the CIIA are fully set forth as Appendix
A to this decision.
2 The only provision of the EA mentioning arbitration was a clause
stating that the prevailing party shall be awarded reasonable attorneys’
fees and other costs “if any legal action, arbitration, or other proceeding
is brought.”
sumed where, as here, the arbitration agreement is silent on the
issue.
Gonzalez opposed Fuji’s motion to compel individual arbi-
tration, which remains pending before the court. In addition,
several months later, in August 2013, she filed a motion to
amend the lawsuit to add three named former employees as
class representatives. This motion likewise remains pending
before the court.
In the meantime, Gonzalez also filed the instant unfair labor
practice charges with the Board. She filed the original charge,
alleging that Fuji had unlawfully enforced the CIIA to prohibit
class arbitration, on January 7, 2013. She filed the amended
charge, alleging that the CIIA was also unlawful on its face
because it interfered with employee access to the Board, on
July 2, 2013.
On July 8, 2013, the General Counsel issued a complaint in-
corporating both allegations. Fuji timely filed an answer deny-
ing the allegations and asserting numerous defenses, and the
case was therefore scheduled for hearing. However, on March
24, 2014, following several pretrial conferences, the parties
jointly requested that the case be decided without a hearing
based on a stipulation of facts.3 The motion was granted the
following day, and the parties subsequently filed briefs on April
29, 2014.
Having carefully considered the briefs and the entire stipu-
lated record, for the reasons set forth below, I find that Fuji
violated the Act as alleged.
I. ALLEGED UNLAWFUL ENFORCEMENT OF THE CIIA
As indicated by the General Counsel, Fuji’s pending motion
to compel individual arbitration of Gonzalez’ class-action wage
and hour suit pursuant to the CIIA is clearly unlawful under the
Board’s decision in D. R. Horton, 357 NLRB 2277 (2012)
(holding that mandatory arbitration agreements requiring em-
ployees, as a condition of employment, to waive their right to
pursue class or collective legal action in any forum, judicial or
arbitral, violate Section 8(a)(1) of the Act). This is so notwith-
standing that, unlike the “agreement” in Horton, the CIIA does
not explicitly restrict the right to pursue class or collective re-
lief in arbitration. See Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004) (a facially valid rule or policy may neverthe-
less violate Section 8(a)(1) if it is applied to restrict the exercise
of rights protected by the Act).4
Fuji argues that it had a First Amendment right to file the
motion with the state court. However, the First Amendment
does not protect the right to file lawsuits or motions that have
an illegal objective under the NLRA. See Allied Trades Coun-
cil (Duane Reade), 342 NLRB 1010, 1013 fn. 4 (2004), citing
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 738 fn. 5
(1983). As indicated above, Fuji’s motion to compel individual
arbitration pursuant to the CIIA clearly had an illegal objective
under the Board’s decision in Horton.
Fuji also argues that the Board’s holding in Horton is incor-

3 See Sec. 102.35(a)(9) of the Board’s rules. Jurisdiction is admitted
and well established.
4 The General Counsel does not allege that the CIIA was unlawful
on its face in light of the Supreme Court’s opinion in Stolt-Nielsen,
above.
FUJI FOOD PRODUCTS, INC. 7
rect, citing the Fifth Circuit’s opinion on appeal (737 F.3d 344
(Dec. 3, 2013)) and numerous other Fderal and State court
opinions rejecting it. However, I am required to follow Board
precedent unless and until it is reversed by the Supreme Court.
See Pathmark Stores, 342 NLRB 378 fn. 1 (2004), and cases
cited there.
Fuji also argues that Horton is no longer good law in light of
the Supreme Court’s post-Horton opinions in CompuCredit
Corp. v. Greenwood, 132 S.Ct. 665 (2012); and American Ex-
press Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013).
However, the mandatory individual arbitration provisions at
issue in those cases were contained in credit card use and ac-
ceptance agreements. The Court in those cases did not address
the issue in the context of individual employment agreements
and the well-established substantive right of employees under
the NLRA to engage in concerted legal action against their
employer. Moreover, there has been no indication from the
Board itself that Horton is no longer good law in light of the
Court’s opinions.5
Fuji also argues that Horton is invalid because one of the
participating members (Member Becker) was appointed by the
President during an intrasession recess, citing the D.C. Circuit’s
2013 opinion in Noel Canning v. NLRB, 705 F.3d 490. How-
ever, the Supreme Court has since rejected the D.C. Circuit’s
view that intra-session recesses are unconstitutional (___ S.Ct.
___, 2014 WL 2882090 (June 26, 2014)). Further, the Court’s
analysis suggests that recess appointments will be upheld if the
recess lasted 10 days or longer. Member Becker was appointed
during a 17-day intrasession recess.6 Thus, his appointment
appears to have been valid. 7
Fuji also raises two other meritless defenses to the allegation.
First, Fuji argues that Gonzalez lacked standing to file the un-
derlying charge because she was not employed by Fuji at the
time of the alleged unlawful conduct, and was therefore not
protected by the NLRA. However, the statute places no limita-
tion on who may file a charge. See Sec. 10 of the NLRA; and
NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17
(1943). Nor does Section 102.9 of the Board’s Rules, which
states that a charge may be filed by “any person.” Further, it is
well established that the term “employee” under the Act in-
cludes former employees of the employer. See Section 2(3) of
the NLRA; Redwood Empire, Inc., 296 NLRB 369, 391 (1989);
Waco, Inc., 273 NLRB 746, 747 fn. 8 (1984); Little Rock Crate

5 A cursory search of the NLRB’s website and Westlaw reveals nu-
merous similar cases that have been pending before Board since the
Court’s 2012 and 2013 opinions issued. Thus, the reasonable assump-
tion is that the Board is marshalling its arguments in those cases to
persuade the Court to uphold Horton. In any event, I will not presume
otherwise.
6 See NLRB v. New Vista Nursing & Rehabilitation, 719 F.3d 203,
218 (3d Cir. 2013) (“[Member Becker] was appointed during an
intrasession break that began on March 26, 2010, and ended on April
12, 2010. This break lasted seventeen days and the Senate was indis-
putably not open for business.”).
7 Fuji’s answer also challenges the complaint on the ground that the
Acting General Counsel at the time was not properly appointed. How-
ever, Fuji appears to have abandoned this argument, presumably be-
cause there is no dispute that the current General Counsel was validly
appointed and confirmed.
& Basket Co., 227 NLRB 1406 (1977); and Briggs Mfg. Co., 75
NLRB 569 (1947).8
Moreover, Gonzalez and the other named and unnamed for-
mer employees in the state court lawsuit could obviously bene-
fit from a Board order requiring Fuji to cease and desist from
enforcing the CIIA in the manner alleged. The circumstances
here are therefore clearly distinguishable from the cases cited
by Fuji arising under other federal employment statutes where
courts have denied former employees standing to seek class
injunctive or declaratory relief pursuant to FRCP 23. See
Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 623
(9th Cir. 2010), revd. on other grounds 131 S.Ct. 2541 (2011).9
Second, Fuji argues that the complaint allegations are barred
by the statutory 6-month limitations period because Gonzalez
failed to file the underlying charge until several years after she
signed the CIIA. However, it is well established that the
maintenance and enforcement of an unlawful rule, policy, or
agreement constitutes a continuing violation for purposes of
tolling the Section 10(b) statute of limitations. See, e.g., Car-
ney Hospital, 350 NLRB 627, 640 (2007); Register Guard, 351
NLRB 1110 fn. 2 (2007), enfd. in relevant part 571 F.3d 53
(D.C. Cir. 2009); and Central Pennsylvania Regional Council
of Carpenters, 337 NLRB 1030 (2002), enfd. 352 F.3d 831 (3d
Cir. 2003).
As indicated by Fuji, the continuing-violation theory is inap-
plicable where the maintenance and enforcement of an agree-
ment outside the 6-month limitations period can only be found
unlawful if the agreement was unlawfully executed within that
period. See Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362
U.S. 411 (1960) (allegation that employer and union unlawfully
maintained and enforced a facially lawful union-security
agreement outside the 10(b) period was barred because the
allegation required the General Counsel to prove that the union
lacked majority status, and that the agreement was therefore
unlawful, at the time it was executed). And it is true that the
Board in Horton only addressed and outlawed the maintenance
and enforcement of mandatory individual arbitration agree-
ments that employees had executed involuntarily, i.e., agree-
ments that employees were required to execute as a condition
of hire or continued employment.10
However, the CIIA states on its face that employees are re-
quired to sign it as a condition of employment. Thus, unlike

8 Fuji does not contend that Gonzalez, or any of the three other for-
mer employees who have agreed to join her state court lawsuit as class
representatives, abandoned the work force when their employment
ended. Cf. Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157
(1971).
9 Fuji also argues that Gonzalez was not engaged in concerted activi-
ty when she filed the lawsuit, as she was the sole named plaintiff and
there is no evidence that she filed the lawsuit on the authority of any
other employees, citing Meyers Industries, 281 NLRB 882 (1986), affd.
835 F.2d 1481 (D.C. Cir. 1987), cert. denied 108 S.Ct. 2847 (1988). I
need not reach this issue given that three other former employees sub-
sequently agreed to join the suit as class representatives, and Fuji did
not thereafter withdraw its motion to compel individual arbitration of
the claims.
10 The Board in Horton did not address the 10(b) limitations issue,
apparently because the defense was not raised by the respondent com-
pany in that case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
the parties’ enforcement of the union-security provision in Bry-
an Mfg., Fuji’s enforcement of the CIIA during the 10(b) period
to require individual arbitration is not “perfectly lawful on the
face of things,” and proof that it is unlawful “plainly does not
require resort to testimony about past events” (362 U.S. at 422
fn. 14).
Further, Gonzalez had no apparent reason to file a charge
over the matter within 6 months of signing the CIIA. As indi-
cated above, the CIIA is completely silent regarding class or
collective arbitration. And the Supreme Court’s opinion in
Stolt-Nielsen that silence cannot be interpreted as consent to
class arbitration (an opinion which effectively rejected contrary
California court decisions)11 did not issue until April 2010,
after Gonzalez’ initial 3-month period of employment had end-
ed. Thus, Gonzalez had no reason or basis to file a charge that
the CIIA prohibited class or collective arbitration at the time
she executed and was covered by it.
Nor would Gonzalez have had a reason or basis to file a
charge when she was rehired in October 2010. As indicated
above, she was only required to execute the EA at that time,
which did not contain a mandatory arbitration provision and
expressly stated that it contained “the entire agreement” be-
tween the parties concerning its subject matter and took “priori-
ty over all previous agreements.”
In sum, the first time Gonzalez had a reason or basis to file a
charge regarding the individual arbitration issue was in late
December 2012, when Fuji cited the 2009 CIIA as support for
its motion to dismiss the class-action lawsuit and compel indi-
vidual arbitration. Thus, as she filed the charge less than a
month later, it was clearly timely. See generally Salem Electri-
cal Co., 331 NLRB 1575 (2000); and Leach Corp., 312 NLRB
990 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995) (6-month limi-
tations period does not begin to run until a party has clear and
unequivocal notice, either actual or constructive, of a violation).
Finally, as discussed below, the complaint here also alleges
that the CIIA on its face unlawfully interferes with the right of
employees to file charges with the Board with respect to any
and all future employment disputes. This is a separate issue that
the Board in Horton and prior cases has not in any way sug-
gested turns on whether the employees executed the arbitration
agreement involuntarily.12
II. ALLEGED FACIAL OVERBREADTH OF THE CIIA
It is well established that mandatory arbitration provisions
are unlawful if they would reasonably lead employees to be-
lieve that they could not file charges with the Board. See D. R.
Horton, 357 NLRB 2277, at fn. 2 (2012), enfd. in relevant part
737 F.3d 344, 362 (5th Cir. 2013), and cases cited there. As
indicated by the General Counsel, there is no basis to distin-

11 See the Second Circuit’s underlying opinion in Stolt-Nielsen
(which the Supreme Court reversed), 548 F.3d 85, 101 fn. 15 (2008).
12 See also BP Amoco Chemical-Chocolate Bayou, 351 NLR 614
(2007); and Hughes Christensen Co., 317 NLRB 633 (1995), enf. de-
nied on other grounds 101 F.3d 28 (5th Cir. 1996), and cases cited there
(upholding voluntary employee severance agreements that waive the
right to file unfair labor practice charges over disputes that arose during
employment, provided that the agreements do not also waive the right
to file charges with respect to disputes arising in the future).
guish this precedent on the facts here. The CIIA provision on
its face states that all employment disputes under federal law
must be submitted to arbitration, and there is no exception for
alleged unfair labor practices under the NLRA. Accordingly, it
is clearly unlawful.
CONCLUSIONS OF LAW
Respondent Fuji Food Products, Inc. has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and 2(6) and (7) of the Act by the following con-
duct:
1. Requesting a state court, since December 28, 2012, to
compel individual arbitration of the class-action wage and hour
lawsuit filed against it by former employee Nancy Sandra Gon-
zalez, pursuant to the mandatory arbitration provisions of the
“Confidential Information and Inventions Agreement” (CIIA) it
required Gonzalez to sign as a condition of employment.
2. Maintaining, since at least January 2, 2013, provisions in
the CIIA stating that employees must submit all employment-
related disputes, including those arising under federal statutes,
to final and binding arbitration.
REMEDY
The appropriate remedy for the violations found is an order
requiring Fuji to cease and desist from its unlawful conduct and
to take certain affirmative action. See, e.g., Allied Trades
Council, and Horton, above. Interest on any monetary relief
due shall be compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010).
Accordingly, based on the foregoing findings of fact and
conclusions of law and the entire record, I issue the following
recommended13
ORDER
The Respondent, Fuji Food Products, Inc., Santa Fe Springs,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Enforcing the Confidential Information and Inventions
Agreement (CIIA) by filing motions to prevent current or for-
mer employees from pursuing concerted or collective legal
action against it in any forum, judicial or arbitral, with respect
to claims arising out of their employment.
(b) Maintaining a mandatory arbitration agreement at its fa-
cilities that employees reasonably would believe bars or re-
stricts their right to file charges with the National Labor Rela-
tions Board (NLRB).
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw its December 28, 2012 motion to compel indi-
vidual arbitration of the class-action claims in Gonzalez v. Fuji

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
FUJI FOOD PRODUCTS, INC. 9
Food Products, Inc., Case No. BC487352, and notify Gonzalez
in writing that it has done so.
(b) Reimburse Gonzalez for all reasonable expenses and le-
gal fees incurred in opposing the foregoing motion to compel
individual arbitration, with interest.
(c) Rescind or revise the CIIA to make clear that the agree-
ment does not restrict employees’ right to file charges with the
NLRB.
(d) Notify all former and current employees who executed
the CIIA and have been employed at its facilities at any time
since January 2, 2013 of the rescinded or revised CIIA by
providing them with a copy of the revised CIIA or by specifi-
cally notifying them in writing that the CIIA provisions have
been rescinded for the reasons set forth in the Board’s decision
and order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Santa Fe Springs, California, and any other facilities
where it has maintained the unlawful CIIA provisions since
January 2, 2013, copies of the attached notice marked “Appen-
dix B.”14 Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facilities covered by the
order, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed at the facilities by the Respondent at any
time since December 28, 2012.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., July 15, 2014
APPENDIX A
FUJI FOOD PRODUCTS, INC.
CONFIDENTIAL INFORMATION AND
INVENTIONS AGREEMENT
As a condition of my employment with Fuji Food Products,
Inc., its subsidiaries, affiliates, successors, or assigns (together,
the “Company”), and in consideration of my employment with
the Company and my receipt of the compensation now and
hereafter paid to me by [the] Company, I agree to the follow-

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ing:
. . . .
10. Arbitration and Equitable Relief
10.1 Arbitration.
EXCEPT AS PROVIDED IN SECTION 10.2 BELOW, I AGREE THAT ANY
DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING TO,
ORCONCERNING ANY INTERPRETATION, CONSTRUCTION,
PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL BE
SETTLED BY ARBITRATION TO BE HELD IN LOS ANGELES COUNTY,
CALIFORNIA, IN ACCORDANCE WITH THE RULES THEN IN EFFECT OF
JAMS. THE ARBITRATOR MAY GRANT INJUNCTIONS OR OTHER
RELIEF IN SUCH DISPUTE OR CONTROVERSY. THE DECISION OF THE
ARBITRATOR SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE
PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON
THE ARBITRATOR'S DECISION IN ANY COURT HAVING
JURISDICTION. THE COMPANY AND I SHALL EACH PAY ONE-HALF
OFTHE COSTS AND EXPENSES OF SUCH ARBITRATION AND EACH OF
US SHALL SEPARATELY PAY OUR COUNSEL FEES AND EXPENSES.
THIS ARBITRATION CLAUSE CONSTITUTES WAIVER OF EMPLOYEE'S
RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/
EMPLOYEE RELATIONSHIP (EXCEPT AS PROVIDED IN SECTION 10.2
BELOW), INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING
CLAIMS:
I. ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF
EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND
IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR
DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT
OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR
INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE
ECONOMIC ADVANTAGE; AND DEFAMATION;
II. ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE
OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF
1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967,
THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR
STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND
HOUSING ACT, AND LABOR CODE SECTION 201, ET. SEQ.;
III. ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT
DISCRIMINATION.
10.2 EQUITABLE REMEDIES
I AGREE THAT IT WOULD BE IMPOSSIBLE OR INADEQUATE TO
MEASURE AND CALCULATE THE COMPANY’S DAMAGES FROM ANY
BREACH OF THE COVENANTS SET FORTH IN SECTIONS 2, 3, 4, 5,
AND 8 HEREIN. ACCORDINGLY, I AGREE THAT IF I BREACH ANY OF
SUCH SECTIONS, THE COMPANY WILL HAVE AVAILABLE, IN
ADDITION TO ANY OTHER RIGHT OR REMEDY AVAILABLE, THE
RIGHT TO OBTAIN AN INJUNCTION FROM A COURT OF COMPETENT
JURISDICTION RESTRAINING SUCH BREACH OR THREATENED
BREACH AND TO SPECIFIC PERFORMANCE OF ANY SUCH PROVISION
OF THIS AGREEMENT. I FURTHER AGREE THAT NO BOND OR OTHER
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
SECURITY SHALL BE REQUIRED IN OBTAINING SUCH EQUITABLE
RELIEF AND I HEREBY CONSENT TO THE ISSUANCE OF SUCH
INJUNCTION AND TO THE ORDERING OF SPECIFIC PERFORMANCE.
10.3 CONSIDERATION
I UNDERSTAND THAT EACH PARTY’S PROMISE TO RESOLVE CLAIMS
BY ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT, RATHER THAN THROUGH THE COURTS, IS
CONSIDERATION FOR THE OTHER PARTY’S LIKE PROMISE. I
FURTHER UNDERSTAND THAT I AM OFFERED EMPLOYMENT IN
CONSIDERATION OF MY PROMISE TO ARBITRATE CLAIMS.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain with us on your be-
half.
Act together with other employees for your benefit and
protection.
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT enforce the Confidential Information and In-
ventions Agreement (CIIA) by filing motions to prevent you
from pursuing concerted or collective legal action against us in
any forum, judicial or arbitral, with respect to claims arising out
of your employment.
WE WILL NOT maintain a mandatory arbitration agreement at
our facilities that would reasonably be construed to bar or re-
strict your right to file unfair labor practice charges with the
National Labor Relations Board (NLRB).
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL withdraw our December 28, 2012 motion to compel
individual arbitration of the class-action wage and hour claims
filed against us in Nancy Sandra Gonzalez v. Fuji Food Prod-
ucts, Inc., Case No. BC487352, and notify Gonzalez in writing
that we have done so.
WE WILL reimburse Gonzalez for all reasonable expenses and
legal fees incurred in opposing our foregoing motion to compel
individual arbitration, with interest.
WE WILL rescind or revise the CIIA to make clear that the
agreement does not restrict your right to file charges with the
NLRB.
WE WILL notify all former and current employees who exe-
cuted the CIIA and have been employed at our facilities at any
time since January 2, 2013 of the rescinded or revised CIIA by
providing them with a copy of the revised CIIA or by specifi-
cally notifying them in writing that the CIIA provisions have
been rescinded for the reasons set forth in the Board’s decision
and order.
FUJI FOOD PRODUCTS, INC.