Hobby Lobby Stores, Inc.

National Labor Relations Board - Board Decisions

May 18, 2016

363 NLRB No. 195 (N.L.R.B. 2016)

363 NLRB No. 195
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.
Hobby Lobby Stores, Inc. and The Committee to Pre-
serve the Religious Right to Organize. Case 20–
CA–139745
May 18, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On September 8, 2015, Administrative Law Judge El-
eanor Laws issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel and the Charg-
ing Party each filed cross exceptions and a supporting
brief. The Respondent filed answering briefs, and the
General Counsel and the Charging Party filed reply
briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decisions in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in rele-
vant part, 737 F.3d 344 (5th Cir. 2013), and Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), enf. denied in rele-
vant part, 808 F.3d. 1013 (5th Cir. 2015), that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing and enforcing an arbitration agreement that requires
employees, as a condition of employment, to waive their
rights to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial. The judge also found that maintaining the arbi-
tration agreement violated Section 8(a)(1) because em-
ployees reasonably would believe that it bars or restricts
their right to file unfair labor practice charges with the
Board.
The Board has considered the decision and the record
in light of the exceptions and briefs,2 and we affirm the

1 In addition, pursuant to Reliant Energy, 339 NLRB 66 (2003), the
Charging Party filed a postbrief letter calling the Board’s attention to
recent case authority.
On January 29, 2016, the Charging Party filed a “motion to allow
oral argument and suggestion for public notice.” The Respondent’s
exceptions also requested oral argument. We deny the Charging Par-
ty’s motion, and the Respondent’s request, as the record, exceptions,
and briefs adequately present the issues and positions of the parties.
2 We find no merit in the Charging Party’s cross-exceptions, which
raise substantive arguments that are wholly outside the scope of the
General Counsel’s complaint. It is well settled that a charging party
cannot enlarge upon or change the General Counsel’s theory of a case.
Kimtruss Corp., 305 NLRB 710 (1991). Likewise, we reject the Charg-
ing Party’s argument that the judge improperly approved the joint mo-
judge’s rulings, findings and conclusions,3 and adopt the
recommended Order as modified and set forth in full
below.4

tion of the General Counsel and the Respondent for her to resolve the
case on a stipulated record. The stipulated record includes sufficient
evidence to evaluate the complaint, and the additional evidence that the
Charging Party sought to introduce exceeded the scope of the General
Counsel’s theory.
3 In adopting the judge’s conclusions that the Respondent violated
Sec. 8(a)(1) by maintaining and enforcing its Agreement, we do not
rely on her findings that: (1) the burden was on the Respondent to show
that its Agreement was subject to the Federal Arbitration Act (FAA);
(2) the Respondent failed to show that its Agreement affected com-
merce within the meaning of the FAA; and (3) the Respondent’s team
truckdrivers were exempt from the FAA. We may assume for purposes
of this case that the FAA is applicable because, consistent with our
decisions in D. R. Horton and Murphy Oil, supra, “[f]inding a mandato-
ry arbitration agreement unlawful under the National Labor Relations
Act, insofar as it precludes employees from bringing joint, class, or
collective workplace claims in any forum, does not conflict with the
Federal Arbitration Act or undermine its policies.” Murphy Oil, 361
NLRB 72, slip op. at 6, citing D. R. Horton, supra, 357 NLRB at 2283–
2288.
To the extent the Respondent argues that plaintiffs Fardig and Ortiz
were not engaged in concerted activity in filing their class action wage
and hour lawsuits in the United States District Court for the Central
District of California and the Eastern District of California, respective-
ly, 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 Sec-
tion 7.” Id., slip op. at 2. See also D. R. Horton, supra, 357 NLRB at
2279.
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 Respondent’s arbitration 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 avail-
able, without the interference of an employer-imposed restraint.” Mur-
phy Oil, above, slip op. at 2 (emphasis in original). The Respondent’s
Agreement is just such an unlawful restraint.
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.
We also reject the position of our dissenting colleague that the Re-
spondent’s motions to compel arbitration were protected by the First
Amendment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB,
461 U.S. at 747, 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 that have the illegal
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3: “3.
The Respondent violated Section 8(a)(1) when it en-
forced the MAA by asserting the MAA in litigation that
Plaintiffs Fardig and Ortiz brought against the Respond-
ent.”
ORDER
The National Labor Relations Board orders that the
Respondent, Hobby Lobby Stores, Inc., Oklahoma City,
Oklahoma, with a place of business in Sacramento, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement
that employees reasonably would believe bars or restricts
the right to file charges with the National Labor Rela-
tions Board.
(b) Maintaining and/or enforcing a mandatory arbitra-
tion agreement that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective 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 to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

objective of limiting employees’ Sec. 7 rights and enforcing an unlaw-
ful contractual provision (such as the Respondent’s motions to compel
arbitration in the underlying wage and hour lawsuits here), 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).
Finally, we disagree with our dissenting colleague’s conclusion that
the Respondent’s Agreement does not unlawfully interfere with em-
ployees’ right to file unfair labor practice charges with the Board. We
note that our colleague repeats an argument previously made, that an
individual arbitration agreement lawfully may require the arbitration of
unfair labor practice claims if the agreement reserves to employees the
right to file charges with the Board. As explained in Ralphs Grocery,
363 NLRB No. 128, slip op. at 3, that argument is at odds with well-
established Board law.
4 We reject the Charging Party’s request that we impose additional
remedies on the Respondent, as the Charging Party has not shown that
the remedies set forth in D. R. Horton and Murphy Oil are insufficient
to remedy the Respondent’s violations.
We have amended the judge’s conclusions of law to reflect that fact
that Plaintiffs Fardig and Ortiz, and not the Charging Party, filed the
lawsuits against the Respondent; and we have corrected the Order to
reflect the appropriate regional office and to conform to the Board’s
standard remedial language. Because the courts granted the Respond-
ent’s motions to compel individual arbitration and the lawsuits are no
longer pending, we find it unnecessary to order the Respondent, as in
Murphy Oil (slip op. at 21–22), to remedy the Sec. 8(a)(1) enforcement
violation by notifying the court that it no longer opposes the lawsuits
filed by Plaintiffs Fardig and Ortiz. We have also substituted the at-
tached notices for those of the administrative law judge.
(a) Rescind the mandatory arbitration agreement in all
of its forms, or revise it in all of its forms to make clear
to employees that the arbitration agreement does not con-
stitute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not 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 mandatory arbitration agreement in
any form that it has been rescinded or revised and, if re-
vised, provide them a copy of the revised agreement.
(c) In the manner set forth in the remedy section of the
judge’s decision, reimburse Maribel Ortiz and any other
plaintiffs in Ortiz v. Hobby Lobby Stores, Inc., 2:13-cv-
01619-TLN-DAD (E.D. Cal.) and Jeremy Fardig and any
other plaintiffs in Fardig v. Hobby Lobby Stores, Inc.,
8:14-cv-00561-JVSAN (C.D. Cal.) for reasonable attor-
neys’ fees and litigation expenses that they may have
incurred in opposing the Respondent’s motions to dis-
miss the collective lawsuits and compel individual arbi-
tration.
(d) Within 14 days after service by the Region, post at
all facilities in California the attached notice marked
“Appendix A,” and at all other facilities employing cov-
ered employees, copies of the attached notice marked
“Appendix B.”5 Copies of the notices, on forms provid-
ed by the Regional Director for Region 20, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily post-
ed. 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. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since April 28, 2014, and any former employees
against whom the Respondent has enforced its mandato-
ry arbitration agreement since April 28, 2014. If the Re-

5 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 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.”
HOBBY LOBBY STORES, INC. 3
spondent has gone out of business or closed any facilities
other than the one involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice marked Appendix B” to all current
employees and former employees employed by the Re-
spondent at those facilities at any time since April 28,
2014.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 18, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, my colleagues find that the Respondent’s
Mutual Arbitration Agreement (Agreement) violates Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act
or NLRA) because the Agreement waives the right to
participate in class or collective actions regarding non-
NLRA employment claims. Maribel Ortiz, Jeremy
Fardig, and other employees each signed the Agreement.
Later, Ortiz filed a lawsuit against the Respondent in
federal court asserting class and representative claims for
violations of federal and state wage and hour laws. In
reliance on the Agreement, the Respondent filed a mo-
tion to compel individual arbitration, which the court
granted. Fardig and other employees also filed a class
action lawsuit against the Respondent in federal court
alleging violations of wage and hour laws. Again relying
on the Agreement, the Respondent filed a motion to
compel individual arbitration, which the court granted.
My colleagues find that the Respondent thereby unlaw-
fully enforced its Agreement. I respectfully dissent from
these findings for the reasons explained in my partial
dissenting opinion in Murphy Oil USA, Inc.1 I also dis-
sent from my colleagues’ finding that the Agreement

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
interferes with the right of employees to file charges with
the Board.
1. The “Class Action” Waiver. I agree that an em-
ployee may engage in “concerted” activities for “mutual
aid or protection” in relation to a claim asserted under a
statute other than NLRA.2 However, 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 treat-
ment of non-NLRA claims. To the contrary, as dis-
cussed in my partial dissenting opinion in Murphy Oil,
NLRA Section 9(a) protects the right of every employee
as an “individual” to “present” and “adjust” grievances
“at any time.”3 This aspect of Section 9(a) is reinforced
by Section 7 of the Act, which protects each employee’s
right to “refrain from” exercising the collective rights
enumerated in Section 7. Thus, I believe it is clear that
(i) the NLRA creates no substantive right for employees
to insist on class-type treatment of non-NLRA claims;4
(ii) a class-waiver agreement pertaining to non-NLRA

2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, above, slip op. at 23–25 (Member Miscimarra,
dissenting in part). However, the existence or absence of Sec. 7 protec-
tion does not depend on whether non-NLRA claims are pursued as a
class or collective action, but on whether Sec. 7’s statutory require-
ments are met—an issue separate and distinct from whether an individ-
ual employee chooses to pursue a claim as a class or collective action.
Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5 (2015)
(Member Miscimarra, dissenting).
3 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or se-
lected for the purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the exclu-
sive representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That any
individual 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
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
4 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claims does not infringe on any NLRA rights or obliga-
tions, which has prompted the overwhelming majority of
courts to reject the Board’s position regarding class-
waiver agreements;5 and (iii) enforcement of a class-
action waiver as part of an arbitration agreement is also
warranted by the Federal Arbitration Act (FAA).6 Alt-
hough questions may arise regarding the enforceability
of particular agreements that waive class or collective
litigation of non-NLRA claims, I believe 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 was
lawful under the NLRA, I would find it was similarly
lawful for the Respondent to file motions in federal court
seeking to enforce the Agreement. It is relevant that the
federal courts that had jurisdiction over the non-NLRA
claims granted the Respondent’s motions to compel arbi-
tration. That the Respondent’s motions were reasonably
based is also supported by court decisions that have en-
forced similar agreements.7 As the Fifth Circuit recently
observed after rejecting (for the second time) the Board’s
position regarding the legality of class-waiver agree-
ments: “[I]t is a bit bold for [the Board] to hold that an
employer who followed the reasoning of our D. R. Hor-

5 The Fifth Circuit has repeatedly denied enforcement of Board or-
ders invalidating a mandatory arbitration agreement that waived class-
type treatment of non-NLRA claims. See, e.g., Murphy Oil, Inc., USA
v. NLRB, above; D. R. Horton, Inc. v. NLRB, above. The overwhelm-
ing majority of courts considering the Board’s position have likewise
rejected it. See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., 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, Inc., No. 1:12-cv-
00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA); but see Totten v. Kellogg Brown & Root,
LLC, No. ED CV 14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal.
Jan. 22, 2016).
6 Because my colleagues do not rely on the judge’s findings regard-
ing the FAA’s application to the Agreement, I do not address them
either. However, I disagree with my colleagues’ assertion that, assum-
ing the FAA applies here, finding an arbitration agreement that contains
a class-action waiver unlawful under the NLRA does not conflict with
the FAA. 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 arbitration agreements be enforced
according to their terms. Murphy Oil, above, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 49–58 (Member Johnson,
dissenting).
7 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; Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir.
2013); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
ton decision had no basis in fact or law or an ‘illegal ob-
jective’ in doing so. The Board might want to strike a
more respectful balance between its views and those of
circuit courts reviewing its orders.”8 I also believe that
any Board finding of a violation based on the Respond-
ent’s meritorious federal court motions to compel arbitra-
tion would improperly risk infringing on the Respond-
ent’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 do not believe the Board can properly require
the Respondent to reimburse Ortiz, Fardig, or any other
plaintiffs for their attorneys’ fees and litigation expenses
in the circumstances presented here. Murphy Oil, above,
361 NLRB No. 72, slip op. at 35.
2. Interference with NLRB Charge Filing. I disagree
with the judge’s finding and my colleagues’ conclusion
that the Agreement violates Section 8(a)(1) by interfering
with NLRB charge filing. The Agreement requires arbi-
tration of all employment-related disputes, including
those arising under the NLRA,9 but expressly states that
employees “are not giving up any substantive rights un-
der federal, state, or municipal law (including the right to
file claims with federal, state, or municipal government
agencies)” (emphasis added). The judge found that alt-
hough the Agreement does not preclude filing a charge
with an administrative agency, the Agreement is unlaw-
ful because it requires arbitration of employment-related
claims covered by the Act. However, for the reasons
stated in my separate opinion in Rose Group d/b/a Ap-
plebee’s Restaurant, 363 NLRB No. 75, slip op. at 3–5
(2015) (Member Miscimarra, concurring in part and dis-
senting 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 pre-
serves the right to file claims or charges with the Board
or, more generally, with administrative agencies. The
Agreement preserves this right.

8 Murphy Oil, Inc., USA v. NLRB, 808 F.3d at 1021.
9 The Agreement requires that “any dispute, demand, claim, contro-
versy, cause of action or suit . . . that in any way arises out of, involves,
or relates to Employee’s employment . . . shall be submitted to and
settled by final and binding arbitration.” The only claims to which the
Agreement does not apply are “claims for benefits under unemploy-
ment compensation laws or workers’ compensation laws.”
HOBBY LOBBY STORES, INC. 5
Accordingly, I respectfully dissent.
Dated, Washington, D.C. May 18, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
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
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment 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 a mandatory ar-
bitration agreement that requires our employees, as a
condition of 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 you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration agreement
in all of its forms, or revise it in all of its forms to make
clear that the arbitration agreement does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration agreement in all of its forms that
the arbitration agreement has been rescinded or revised
and, if revised, WE WILL provide them a copy of the re-
vised agreement.
WE WILL reimburse Maribel Ortiz, Jeremy Fardig, and
any other plaintiffs for reasonable attorneys’ fees and
litigation expenses that they may have incurred in oppos-
ing our motions to dismiss their collective wage claims
and compel individual arbitration.
HOBBY LOBBY STORES, INC.
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/20–CA–139745 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment 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 a mandatory ar-
bitration agreement that requires our employees, as a
condition of 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 you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration agreement
in all of its forms, or revise it in all of its forms to make
clear that the arbitration agreement does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration agreement in all of its forms that
the arbitration agreement has been rescinded or revised
and, if revised, WE WILL provide them a copy of the re-
vised agreement.
HOBBY LOBBY STORES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/20–CA–139745 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.
Yasmin Macariola, Esq., for the General Counsel.
Frank Birchfield, Esq., and Christopher C. Murray, Esq., for
the Respondent.
David Rosenfeld, Esq. for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried based on a joint motion and stipulation of facts I approved
on June 29, 2015. The charge in this proceeding was filed by
the Committee to Preserve the Religious Right to Organize (the
Charging Party) on October 28, 2014, and a copy was served by
regular mail on Respondent, on October 29, 2014. The General
Counsel issued the original complaint on January 28, 2015, and
an amended complaint on April 9, 2015. Hobby Lobby, Inc.
(the Respondent or Company) filed timely answers denying all
material allegations and setting forth defenses.
On June 2, 2015, the General Counsel and the Respondent
filed a joint motion to submit a stipulated record to the Admin-
istrative Law Judge (Joint Motion). The Charging Party did not
join the Joint Motion. On June 3, I issued an order granting the
Charging Party until June 17, to file a response to the Joint
Motions, including any objections to it. On June 17, the Charg-
ing Party filed objections to the Joint Motion, and the General
Counsel and the Respondent, replied to the objections, respec-
tively, on June 23 and 24. I issued an order granting the Joint
Motion over the Charging Party’s objections on June 29.1

1 The June 3, 2015, order is hereby admitted into the record as ad-
ministrative law judge (ALJ) Exh. 1, the Charging Party’s June 17
The following issues are presented:
1. Whether the Respondent’s Mandatory Arbitration Agree-
ment (MAA) and related policies maintained by the Respond-
ent, which requires employees, as a condition of employment,
to waive their right to resolution of employment- related dis-
putes by collective or class action violates Section 8(a)(l) of
the National Labor Relations Act (the Act).
2. Whether the MAA maintained by the Respondent would
reasonably be read by employees to prohibit them from filing
unfair labor practice charges with the Board in violation of
Section 8(a)(l) of the Act.
3. Whether the Respondent’s enforcement of the MAA
through its motions to compel arbitration in Jeremy Fardig
v. Hobby Lobby Stores, Inc., 8:14-cv-00561-JVS-AN,
U.S.D.C., Central District of California; and Ortiz v. Hobby
Lobby Stores, Inc., 2:13-cv-01619-TLN-DAD, U.S.D.C.,
Eastern District Court of California, violates Section 8(a)( l)
of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Oklahoma corpora-
tion with several stores throughout the State of California, in-
cluding one in Sacramento, California, has been engaged in
business as a retailer specializing in arts, crafts, hobbies, home
decor, holiday, and seasonal products. The parties admit, and I
find, that at all material times, Respondent has been an employ-
er engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
II. FACTS
The Respondent, Hobby Lobby, is a national retailer of arts,
crafts, hobby supplies, home accents, holiday, and seasonal
products. It operates approximately 660 stores in 47 states.
The Respondent employs individuals in various job titles in-
cluding but not limited to the following: office clericals; securi-
ty staff; cashiers; stockers; floral designers; picture framers;
media buyers; craft designers; graphic & web designers; pro-
duction artists; video tutorial hosts; leave assistants; production
quality and compliance assistants; construction warehouse
workers; customer service representatives; industrial engineers;
inventory control specialists; maintenance technicians; pack-

response is admitted as ALJ Exh. 2, the General Counsel’s June 23
reply is admitted as ALJ Exh.t 3, and the Respondent’s June 24 reply is
admitted as ALJ Exh. 4. The following abbreviations are used for cita-
tions in this decision: “Jt. Mot.” for the General Counsel and Respond-
ent’s joint motion; “Jt. Exh.” for the exhibits attached to the joint mo-
tion; “GC Br.” for the General Counsel’s brief; “R Br.” for the Re-
spondents’ brief; and “CP Br.” for the Charging Party’s brief. Alt-
hough I have included several citations to the record to highlight par-
ticular exhibits, I emphasize that my findings and conclusions are based
not solely on the evidence specifically cited, but rather are based my
review and consideration of the entire record.
HOBBY LOBBY STORES, INC. 7
ers/order pullers; photo editors; truck-trailer technicians; truck-
trailer technician trainees; social media writers; sales and use
tax accountants; and team truck drivers who transport Re-
spondent’s products across state lines. (Jt. Mot. ¶ 4(a) & ¶
4(b).)
Upon commencing employment, all employees receive a
copy of the Respondent’s employee handbook. There are two
different versions of the employee handbook—one for employ-
ees in California and one for employees outside of California.
Employees must sign in receipt of the handbook and agree to be
bound by its terms. The version applicable to employees in
California states2:
By my signature below, I acknowledge that I have received a
copy of the Company’s California Employee Handbook
(“Employee Handbook”). I understand this Employee
Handbook contains important information on the Company’s
policies, procedures, and rules. It also contains my obliga-
tions as an employee.
I understand that this Employee Handbook replaces and su-
persedes any and all previous employee handbooks that I may
have received, or agreements or promises made by any repre-
sentative of the Company other than a Corporate Officer prior
to the date of my signature below, and that I cannot rely upon
any promises or representations made to me by anyone con-
cerning the terms and conditions of my employment that are
contrary to or inconsistent with this Employee Handbook, or
any subsequent written modifications or revisions to this Em-
ployee Handbook posted on the Company’s Employee Infor-
mation Boards.
I understand that my employment with the Company is condi-
tioned upon the contents of this Employee Handbook. I fur-
ther understand that, with the exception of the Submission of
Disputes to Binding Arbitration section of this Employee
Handbook and the Mutual Arbitration Agreement, the Com-
pany may alter, change, amend, rescind, or add to any poli-
cies, procedures, or rules set forth in this Employee Handbook
from time to time with or without prior notice. I further under-
stand that the Company will notify me of any material chang-
es to this Employee Handbook, and that, by continuing em-
ployment after being so notified of such changes, I
acknowledge, accept, and agree to such changes as a condi-
tion of my employment and continued employment.
I understand that the employment relationship between me
and the Company is at-will. I am employed on an at-will ba-
sis, as are all Company employees, and nothing to the contra-
ry stated anywhere in this Employee Handbook or by any
Company representative changes my or any employee’s at-
will status. I am free to resign at any time, for any reason, with
or without notice. Similarly, the Company is free to terminate
my employment at any time, for any reason, or for no reason
at all. I also understand that nothing in this Employee Hand-
book is to be construed as creating, whether by implication or
otherwise, any legal or contractual obligations or restrictions

2 The acknowledgment of the handbook does not materially differ
for employees outside of California for purposes of this decision.
upon the Company’s ability to terminate me as an employee
at-will, for any reason at any time. Further, no person, other
than a Corporate Officer of the Company, may enter into any
written agreement amending this atwill employment policy or
otherwise alter the at-will employment status of any employ-
ee.
By my signature below, I acknowledge that I have read and
understand the provisions of this Employee Handbook and
agree to abide by all Company policies, procedures, practices,
and rules.
Since at least April 28, 2014, the Respondent has maintained
the MAA in its employee handbook. The MAA requires em-
ployees to waive resolution of employment-related disputes by
class, representative or collective action or other otherwise
jointly with any other person. Since at least April 28, 2014, the
Respondent has required all of its employees to enter into the
MAA in order to obtain and maintain employment with the
Respondent. (Jt. Mot. ¶ 4(e) & ¶ 4(i).)
The MAA provides, in relevant part:
This Mutual Arbitration Agreement (“Agreement”), by and
between the undersigned employee (“Employee”) and the
Company, is made in consideration for the continued at-will
employment of Employee, the benefits and compensation
provided by Company to Employee, and Employee’s and
Company ‘s mutual agreement to arbitrate as provided in this
Agreement. Employee and Company hereby agree that any
dispute, demand, claim, controversy, cause of action, or suit
(collectively referred to as “Dispute”) that Employee may
have, at any time following the acceptance and execution of
this Agreement, with or against Company, its affiliates, sub-
sidiaries, officers, directors, agents, attorneys, representatives,
and/or other employees, that in any way arises out of, in-
volves, or relates to Employee’s employment with Company
or the separation of Employee’s employment with Company
(including without limitation, all Disputes involving wrongful
termination, wages, compensation, work hours, . . . sexual
harassment, harassment and/or discrimination based on any
class protected by federal, state or municipal law, and all Dis-
putes involving interference and/or retaliation relating to
workers’ compensation, family or medical leave, health and
safety, harassment, discrimination, and/or the opposition of
harassment or discrimination, and/or any other employment-
related Dispute in tort or contract), shall be submitted to and
settled by final and binding arbitration in the county and state
in which Employee is or was employed. Such arbitration shall
be conducted pursuant to the American Arbitration Associa-
tion’s National Rules for the Resolution of Employment Dis-
putes or the Institute for Christian Conciliation’s Rules of
Procedure for Christian Conciliation, then in effect, before an
arbitrator licensed to practice law in the state in which Em-
ployee is or was employed and who is experienced with em-
ployment law. . . . The parties agree that all Disputes contem-
plated in this Agreement shall be arbitrated with Employee
and Company as the only parties to the arbitration, and that no
Dispute contemplated in this Agreement shall be arbitrated, or
litigated in a court of law, as part of a class action, collective
action, or otherwise jointly with any third party. Prior to sub-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mitting a Dispute to arbitration, the aggrieved party shall first
attempt to resolve the Dispute by notifying the other party in
writing of the Dispute. If the other party does not respond to
and resolve the Dispute within 10 days of receipt of the writ-
ten notification, the aggrieved party then may proceed to arbi-
tration. The parties agree that the decision of the arbitrator
shall be final and binding. Judgment on any award rendered
by an arbitrator may be entered and enforced in any court
having jurisdiction thereof.
This Agreement between Employee and Company to arbitrate
all employment-related Disputes includes, but is not limited
to, all Disputes under or involving Title VII of the Civil
Rights Act of 1964, the Civil Rights Acts of 1866 and 1991,
the Age Discrimination in Employment Act, the Americans
with Disabilities Act, the Family and Medical Leave Act, the
Fair Labor Standards Act, the Equal Pay Act, the Fair Credit
Act, the Employee Retirement Income Security Act, and all
other federal, state, and municipal statutes, regulations, codes,
ordinances, common laws, or public policies that regulate,
govern, cover, or relate to equal employment, wrongful ter-
mination, wages, compensation, work hours, invasion of pri-
vacy, false imprisonment, assault, battery, malicious prosecu-
tion, defamation, negligence, personal injury, pain and suffer-
ing, emotional distress, loss of consortium, breach of fiduciary
duty, sexual harassment, harassment and/or discrimination
based on any class protected by federal, state or municipal
law, or interference and/or retaliation involving workers’
compensation, family or medical leave, health and safety,
harassment, discrimination, or the opposition of harassment or
discrimination, and any other employment-related Dispute in
tort or contract. This Agreement shall not apply to claims for
benefits under unemployment compensation laws or workers’
compensation laws.
By agreeing to arbitrate all Disputes, Employee and Company
understand that they are not giving up any substantive rights
under federal, state, or municipal law (including the right to
file claims with federal, state; or municipal government agen-
cies). Rather, Employee and Company are mutually agreeing
to submit all Disputes contemplated in this Agreement to arbi-
tration, rather than to a court. Company shall bear the admin-
istrative costs and fees assessed by the arbitration provider se-
lected by Employee: either the American Arbitration Associa-
tion or the Institute for Christian Conciliation. Company shall
be solely responsible for paying the arbitrator’s fee. Except
for those Disputes involving statutory rights under which the
applicable statute may provide for an award of costs and at-
torney’s fees, each party to the arbitration shall be solely re-
sponsible for its own costs and attorney’s fees, if any, relating
to any Dispute and/or arbitration. Should any party institute
any action in a court of law or equity against the other party
with respect to any Dispute required to be arbitrated under this
Agreement, the responding party shall be entitled to recover
from the initiating party all costs, expenses, and attorney fees
incurred to enforce this Agreement and compel arbitration,
and all other damages resulting from or incurred as a result of
such court action.
Every individual who works for Company must have signed
and returned to his/her supervisor this Agreement to be eligi-
ble for employment and continued employment with Compa-
ny. Further, Employee’s employment or continued employ-
ment will evidence Employee’s acceptance of this Agree-
ment. Employee acknowledges and agrees that Company is
engaged in transactions involving interstate commerce, that
this Agreement evidences a transaction involving commerce,
and that this Agreement is subject to the Federal Arbitration
Act. If any specific provision of this Agreement is invalid or
unenforceable, the remainder of this Agreement shall remain
binding and enforceable. This Agreement constitutes the en-
tire mutual agreement to arbitrate between Employee and
Company and supersedes any and all prior or contemporane-
ous oral or written agreements or understandings regarding
the arbitration of employment-related Disputes. This Agree-
ment is not, and shall not be construed to create, a contract of
employment, express or implied, and shall not alter Employ-
ee’s at-will employment status.
Employee and Company acknowledge that they have read
this Mutual Arbitration Agreement, are giving up any right
they might have at any point to sue each other, are waiving
any right to a jury trial, and are knowingly and voluntarily
consenting to all terms and conditions set forth in this Agree-
ment.
(Jt. Exhs. I, J.) The MAA is also part of the application for
employment with the Respondent. (Jt. Exhs. K, L.) It has its
own signature requirement. The signed MAA is included in
each new employee’s “new employee packet” and is filed in the
employee’s personnel file. (Jt. Exhs. M–X.) During the period
of December 18, 2010 to December 18, 2014, Respondent hired
approximately 65,880 employees and re-hired approximately
6,324 employees for a total of approximately 72,204 recipients
of the MAA. (Jt. Mot. ¶ 4(h).)
On December 3, 2013, the Respondent filed a motion in the
United States District Court for the Eastern District of Califor-
nia to dismiss individual and representative wage-related claims
a former employee had filed against it under California law, in
Ortiz v. Hobby Lobby Stores, Inc., 2:13-cv-01619-TLN-DAD
(E.D. Cal.). (Jt. Exh. Y; Jt. Mot. ¶ 5.) The Respondent moved,
in the alternative, pursuant to the Federal Arbitration Act
(FAA), to compel individual arbitration of plaintiff’s claims
under the MAA the plaintiff had signed when she began her
employment. (Jt. Exh. Y.)
On April 17, 2014, the Respondent filed a motion seeking to
dismiss a putative class action lawsuit filed by multiple em-
ployees alleging wage and hour claims against it under Califor-
nia law in Fardig v. Hobby Lobby Stores, Inc., 8:14-cv-00561-
JVSAN (C.D. Cal.). (Jt. Exh. Z; Jt. Mot. ¶ 5.) In the alternative,
pursuant to FAA, the Respondent moved to compel individual
arbitration under the MAAs signed by each named plaintiff.
(Joint Ex. 2Z.) On June 13, 2014, the U.S. District Court for
the Central District of California granted the Respondent’s
motion to compel individual arbitration under the MAA.
Fardig v. Hobby Lobby Stores Inc., 2014 WL 2810025 (C.D.
Cal. June 13, 2014). The Fardig court rejected the plaintiffs’
arguments that the MAA was unenforceable under California
HOBBY LOBBY STORES, INC. 9
law and under the National Labor Relations Act pursuant to the
Board’s decision in D. R. Horton, Inc., 357 NLRB 2277 (2012),
enf. granted in part and denied in part, 737 F.3d 344 (5th Cir.
2013).
On October 1, 2014, the U.S. District Court for the Eastern
District of California in the Ortiz case granted the Respondent’s
motion to compel individual arbitration under the MAA. Ortiz
v. Hobby Lobby Stores, Inc., 52 F.Supp. 3d 1070 (E.D. Cal.
2015). The court considered the Board’s decision in D. R. Hor-
ton, and concluded its reasoning conflicted with the FAA and
the Supreme Court’s decision in AT&T Mobility LLC v. Con-
cepcion, 131 S.Ct. 1740 (2011).
III. DECISION AND ANALYSIS
A. The MAA’s Prohibition on Class and Collective
Legal Claims
Complaint paragraphs 4(a), (c), (d), and 5 allege that, at all
material times since at least April 28, 2014, the Respondent has
maintained the MAA, which requires employees to waive their
right to resolution of employment-related disputes by collective
or class action, as a condition of employment, in violation of
Section 8(a)(1) of the Act.
Under Section 8(a)(1), it is an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act. The
rights guaranteed in Section 7 include the right “to form, join or
assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection . . .”
1. Application of D. R. Horton and Murphy Oil
When evaluating whether a rule, including a mandatory arbi-
tration agreement, violates Section 8(a)(1), the Board applies
the test set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004).3 See U-Haul Co. of California, 347 NLRB
375, 377 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D.
R. Horton, supra. Under Lutheran Heritage, the first inquiry is
whether the rule explicitly restricts activities protected by Sec-
tion 7. If it does, the rule is unlawful. If it does not, “the viola-
tion is dependent upon a showing of one of the following: (1)
employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Lutheran Heritage at 647.
Because the MAA explicitly prohibits employees from pur-
suing employment-related claims on a class or collective basis,
I find it violates Section 8(a)(1). The right to pursue concerted
legal action, including class complaints, addressing wages,
hours, and working conditions falls within Section 7’s protec-
tions. See, e.g., Murphy Oil USA, Inc., 361 NLRB No. 72
(2014); D. R. Horton, supra;4 see also Eastex, Inc. v. NLRB,

3 The Charging Party argues that Lutheran Heritage should be over-
ruled. Any arguments regarding the legal integrity of Board precedent,
however, are properly addressed to the Board.
4 The Board in Murphy Oil reexamined D. R. Horton, and deter-
mined that its reasoning and results were correct.
437 U.S. 556, 566 (1978)(Section 7 protects employee efforts
seeking “to improve working conditions through resort to ad-
ministrative and judicial forums; 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); Brady v. National Football League, 644 F.3d 661,
673 (8th Cir. 2011) (“lawsuit filed in good faith by a group of
employees to achieve more favorable terms or conditions of
employment is ‘concerted activity’ under §7 of the National
Labor Relations Act.”); Trinity Trucking & Materials Corp. v.
NLRB, 567 F.2d 391 (7th Cir. 1977) (mem. disp.), cert. denied,
438 U.S. 914 (1978). Accordingly, an employer rule or policy
that interferes with such actions violates Section 8(a)(1). D. R.
Horton, supra.; Murphy Oil, supra; See also Chesapeake Ener-
gy Corp., 362 NLRB No. 80 (2015); Cellular Sales of Missouri,
362 NLRB No. 27 (2015); The Neiman Marcus Group, Inc.,
362 NLRB No. 157 (2015); Countrywide Financial Corp., 362
NLRB No. 165 (2015); PJ Cheese Inc., 362 NLRB No. 177
(2015); Leslie’s Pool Mart, Inc., 362 NLRB No. 184 (2015);
On Assignment Staffing Services, 362 NLRB No. 189 (2015).
The Respondent propounds numerous arguments as to why
D. R. Horton and its progeny should be overturned.5 (R Br. 6–
48.) I am, however, required to follow Board precedent, unless
and until it is overruled by the United States Supreme Court.6
See Gas Spring Co., 296 NLRB 84, 97 (1989) (citing, inter alia,
Insurance Agents International Union, 119 NLRB 768 (1957),
revd. 260 F.2d 736 (D.C. Cir. 1958), affd. 361 U.S. 477
(1960)), enfd. 908 F.2d 966 (4th Cir. 1990), cert. denied 498
U.S. 1084 (1991). Applying the above-cited Board precedent, I
find the MAA violates Section 8(a)(1).
Though the Board has made its ruling on the issue clear, I
will address the Respondent’s arguments that have not been as
fully covered by previous decisions. The Respondent contends
that a class action waiver does not abridge employees’ right to
seek class certification to any greater extent than an employer’s
filing an opposition to an employee’s motion for class certifica-
tion. Of course it does; the former precludes the right, the latter
responds to it. And it is apparent the waiver gives the opposi-
tion teeth. The Respondent then adds the element of success to
the employer’s motion to secure its argument. Success of the
employer’s motion cannot be presumed, however. The Re-
spondent’s argument thus fails.

Deference and the Federal Arbitration Act, 128 Harv. L. Rev. 907
(January 12, 2015), provides a well-reasoned explanation as to why the
Board’s conclusion that collective and class litigation is protected Sec-
tion 7 activity should be accorded deference by the courts.
5 Many of these arguments are in line with the dissents in D. R. Hor-
ton and Murphy Oil. Numerous Board and ALJ decisions have ad-
dressed the specific arguments raised by the Respondent and there is
nothing I can add in this decision that has not already been addressed
repeatedly.
6 The Respondent contends that, because the Board did not petition
for a writ of certiorari to challenge the Fifth Circuit’s rejection of the
relevant part of D. R Horton, and because that decision rests primarily
on interpretation of a statute other than the NLRA, I should not be
constrained by Board precedent. No authority was cited for this con-
tention, however, and I therefore decline to stray from the Board’s
established caselaw on this point.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent also contends that the Board’s decisions
stand for the proposition that employees have the right to have
certification decisions heard on their merits. The Board has
made no such holding or suggestion. If, by way of the example
cited in the Respondent’s brief, the class representative misses
a filing deadline, nothing in any of the Board’s cases suggests a
court must nonetheless decide class certification on the merits.
As to the Respondent’s assertion that there is no basis in the
NLRA, the Federal Rules, or case law for D .R. Horton’s pre-
sumption that class procedures were created to serve any con-
cerns or purposes under the NLRA, the Board has not relied on
such concerns or purposes. Two employees who together file
charges with the Equal Employment Opportunity Commission
(EEOC) about racial harassment are engaged in concerted ac-
tivity about their working conditions, though the EEOC’s
charge processing procedures were certainly not created to
serve any concerns or purposes under the NLRA. The EEOC’s
procedures, like class procedures in court, are one of many
avenues available for concerted legal activity, regardless of the
purposes those procedures were intended to serve.
The Respondent next appears to be arguing that employees
can, albeit in vain, file putative class action lawsuits despite the
MAA, suffer no adverse consequences for it, and therefore the
MAA does not infringe on their rights. There need not be ad-
verse consequences for non-adherence to the MAA for it to
violate the Act. Moreover, the MAA on its face spells out ad-
verse consequences for filing putative class actions. The MAA
states, in relevant part:
Should any party institute any action in a court of law or equi-
ty against the other party with respect to any Dispute required
to be arbitrated under this Agreement, the responding party
shall be entitled to recover from the initiating party all costs,
expenses, and attorney fees incurred to enforce this Agree-
ment and compel arbitration, and all other damages resulting
from or incurred as a result of such court action.
Thus, in addition to breaking an agreement with the employer
not to sue as an express condition of continued employment, an
employee who files a putative class action may be assessed
with fees and damages.
The Respondent also contends that the Board in D. R. Hor-
ton misinterpreted the Norris-LaGuardia Act (NGLA) when
determining it prohibits the enforcement of agreements like the
FAA. The Board recently reaffirmed its position that the FAA
must yield to the NLGA, stating
The Board has previously explained why “even if there were
a direct conflict between the NLRA and the FAA, the Norris-
LaGuardia Act . . . indicates that the FAA would have to yield
insofar as necessary to accommodate Section 7 rights.” An
arbitration agreement between an individual employee and an
employer that completely precludes the employee from en-
gaging in concerted legal activity clearly conflicts with the
express federal policy declared in the Norris-LaGuardia Act.
That conflict in no way depends on whether the agreement is
properly characterized as a condition of employment. By its
plain terms, the Norris-LaGuardia Act sweepingly condemns
“[a]ny undertaking or promise . . . in conflict with the public
policy declared” in the statute: insuring that the “individual
unorganized worker” is “free from the interference, restraint,
or coercion of employers . . . in . . . concerted activities for the
purpose of . . . mutual aid or protection,” including “[b]y all
lawful means aiding any person participating or interested in
any labor dispute who . . . is prosecuting, any action or suit in
any court of the United States or any state.”
On Assignment Staffing Services, supra, slip op. at 10 (Empha-
sis in original, internal citations and footnotes omitted.)
2. The MAA as an employment contract
The Charging Party also asserts that the FAA does not apply
because there is no employment contract, citing to the Supreme
Court’s decisions in Circuit City Stores Inc. v. Adams, 532 U.S.
105, 113–114 (2001), Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 445 (2006), and Allied-Bruce
Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 277 (1995).
7 The Charging Party points out that the MAA itself states,
“[t]his Agreement is not, and shall not be construed to create, a
contract of employment, express or implied, and shall not alter
Employee’s at-will employment status.” The employees’ at-
will status is also set forth in the introductory paragraph of the
employee handbook. (Jt. Exh. I p. 5; Jt. Exh. J p. 5.)
The Charging Party notes that the Respondent has not of-
fered evidence or argument that a contract of employment has
been created by virtue of the MAA in any of the states where it
operates. Resolution of this issue would involve delving into
each state’s body of contract law.8 Because it is not required to
support my conclusion herein that the MAA violates Section
8(a)(1), I decline to undertake this enormous task, the legal
aspects of which none of the parties have addressed in their
briefs.

7 The Charging Party also asserts that MAA, when coupled with the
Respondent’s confidentiality policy, solicitation policy, loitering poli-
cy, email usage policy, computer usage policy, and/or return of compa-
ny property policy, provide other bases for finding it unlawful. I agree
that these policies, when viewed in conjunction with the MAA, act as
further barriers to employees discussing their arbitrations under the
MAA and/or garnering support from fellow employees. The complaint,
however, does not allege that any policy other than the MAA violates
the Act, and therefore my conclusions are limited to the MAA. See
Penntech Papers, 263 NLRB 264, 265 (1982); Kimtruss Corp., 305
NLRB 710, 711 (1991).
The Charging Party sets forth numerous other arguments, including
the FAA’s impact on other federal and state statutes, the rights of
workers to organize under the Religious Freedom Restoration Act
(RFRA), and the effect of the MAA on union representation. I have
considered each argument in the Charging Party’s brief. Because this
case can be decided by applying the Board precedent discussed above, I
do not address all of the Charging Party’s arguments.
8 For example, under Minnesota law, the disclaimer language in the
MAA may negate the existence of a contract. See Kulkay v. Allied
Central Stores, Inc., 398 N.W.2d 573, 578 (Minn.Ct.App.1986). By
contrast, in Circuit City, the Court of Appeals for the Ninth Circuit
determined the dispute resolution agreement at issue, with disclaimer
language almost identical to the agreement at issue here, was an “em-
ployment contract.” Circuit City Stores, Inc. v. Adams, 194 F.3d 1070
(1999); See also Ashbey v. Archstone Property Management, Inc.,
2015 WL 2193178 (9th Cir. 2015).
HOBBY LOBBY STORES, INC. 11
3. The MAAs and commerce
The Charging Party argues that there is no evidence the indi-
vidual MAAs with the Respondent’s employees affect com-
merce, and asserts that the activity of arbitration does not affect
interstate commerce. This raises the fundamental question of
what, in fact, is the “transaction involving commerce” the
MAA evidences to bring it within the FAA’s reach?
The FAA, at 9 USC § 2, applies to a “written provision in
any maritime transaction or a contract evidencing a transaction
involving commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction . . .” Spe-
cifically excluded, however, are “contracts of employment of
seamen, railroad employees, or any other class of workers en-
gaged in foreign or interstate commerce.” 9 USC § 1. The
Supreme Court in Circuit City interpreted this exclusionary
provision, “any other class of workers engaged in foreign or
interstate commerce,” narrowly, and held it applied only to
workers actually working in commercial industries similar to
seamen and railroad employees. Relying on Allied-Bruce
Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995),9 the
Court in Circuit City interpreted Section 2’s inclusion provi-
sion, a “contract evidencing a transaction involving com-
merce,” broadly, finding it was not limited to transactions simi-
lar to maritime transactions.10 In line with these interpretations,
most contracts of employment fall within the FAA’s reach,
regardless of whether the employees themselves are involved in
any traditionally-defined commercial transactions as part of
their work.
In Allied-Bruce Terminix, supra, the Supreme Court exam-
ined the phrase “evidencing a transaction” involving commerce
and determined that “the transaction (that the contract ‘evi-
dences’) must turn out, in fact . . . [to] have involved interstate
commerce[.]” (emphasis in original). A prior Supreme Court
case, Bernhardt v. Polygraphic Co. of America, 350 U.S. 198
(1956), that like Circuit City and Allied-Bruce Terminix inter-

9 The Court in Allied-Bruce found that the term “involving” was the
same as “affecting” and that the phrase “‘affecting commerce’ normally
signals Congress’ intent to exercise its Commerce Clause powers to the
full.” 513 U.S. at 273–275.
10 Though I am bound by the majority’s decision in Circuit City, I
find the dissenting opinions, and in particular Justice Souter’s explana-
tion of why the Court’s “parsimonious construction of § 1 of the . . .
FAA . . . is not consistent with its expansive reading of § 2,” more
sound and compelling. Presumably the result of adherence to prece-
dent, the phrase “contract evidencing a transaction involving com-
merce” is not seen as a residual phrase following the specific category
of maritime transactions in § 2, but the phrase “any other class of work-
ers engaged in foreign or interstate commerce” is seen as a residual
phrase following the specific categories of seamen and railroad em-
ployees in § 1. This distinction supplied the Court’s rationale for ap-
plying the maxim ejusdem generis to “any other class of workers en-
gaged in foreign or interstate commerce” to support its finding that
employment contracts are covered by the FAA. “Maritime transac-
tions” is defined in § 1 by way of listing various transactional contracts,
such as charter parties, bills of lading, and agreements relating to sup-
plies and vessels. Applying ejusdem generis, the expansive definition
given to the phrase “contract evidencing a transaction involving com-
merce,” fails to give independent meaning to the term “maritime trans-
action.”
preted the words “involving commerce” as broadly as the
words “affecting commerce,”11 involved an employment con-
tract between Polygraphic Co., an employer engaged in inter-
state commerce, and Norman Bernhardt, the superintendent of
Polygraphic Co.’s Vermont plant. The employment contract at
issue contained a provision that in case of any dispute, the par-
ties would submit the matter to arbitration by the American
Arbitration Association.
The Supreme Court found the FAA did not apply because
the company did not show that the employee, “while perform-
ing his duties under the employment contract was working ‘in’
commerce, was producing goods for commerce, or was engag-
ing in activity that affected commerce, within the meaning of
our decisions.”12

11 Allied-Bruce Terminix, supra, at 277.
12 The agreement provided for the employment of Bernhardt as the
superintendent of Polygraphic Co.’s lithograph plant in Vermont. Its
terms stated:
“Subject to the general supervision and pursuant to the orders, ad-
vice and direction of the Employer, Employee shall have charge of and
be responsible for the operation of said lithographic plant in North
Bennington, shall perform such other duties as are customarily per-
formed by one holding such position in other, same or similar business-
es or enterprises as that engaged in by the Employer, and shall also
additionally render such other and unrelated services and duties as may
be assigned to him from time to time by Employer.
“Employer shall pay Employee and Employee agrees to accept from
Employer, in full payment for Employee’s services hereunder, compen-
sation at the rate of $15,000.00 per annum, payable twice a month on
the 15th and 1st days of each month during which this agreement shall
be in force; the compensation for the period commencing August 1,
1952 through August 15, 1952 shall be payable on August 15, 1952. In
addition to the foregoing, Employer agrees that it will reimburse Em-
ployee for any and all necessary, customary and usual expenses in-
curred by him while traveling for and on behalf of the Employer pursu-
ant to Employer’s directions.
“It is expressly understood and agreed that Employee shall not be
entitled to any additional compensation by reason of any service which
he may perform as a member of any managing committee of Employer,
or in the event that he shall at any time be elected an officer or director
of Employer.
“The parties hereto do agree that any differences, claim or matter in
dispute arising between them out of this agreement or connected here-
with shall be submitted by them to arbitration by the American Arbitra-
tion Association, or its successor and that the determination of said
American Arbitration Association or its successors, or of any arbitrators
designated by said Association, on such matter shall be final and abso-
lute. The said arbitrator shall be governed by the duly promulgated
rules and regulations of the American Arbitration Association, or it its
successor, and the pertinent provisions of the Civil Practice Act of the
State of New York relating to arbitrations [section 1448 et seq.]. The
decision of the arbitrator may be entered as a judgment in any court of
the State of New York or elsewhere.
“The parties hereto do hereby stipulate and agree that it is their in-
tention and covenant that this agreement and performance hereunder
and all suits and special proceedings hereunder be construed in accord-
ance with and under and pursuant to the laws of the State of New York
and that in any action special proceedings or other proceeding that may
be brought arising out of, in connection with or by reason of this
agreement, the laws of the State of New York shall be applicable and
shall govern to the exclusion of the law of any other forum, without
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, the contract at issue is the MAA.13 There is no other
employment contract implicated in the complaint or the an-
swer.14 By virtue of the MAA, the employee and employer
have transacted an agreement to resolve employment disputes
through arbitration. What is analytically more difficult about
the MAA and similar agreements, when compared with most
contracts, is that the arbitration agreement itself is part of the
consideration for the transaction. The agreement here states
that the “Mutual Arbitration Agreement . . . is made in consid-
eration for the continued at-will employment of the Employee,
the benefits and compensation provided by Company to Em-
ployee, and Employee’s and Company’s mutual agreement to
arbitrate as provided in this Agreement.”15 (Jt. Exh. I p. 55; Jt.
Exh. J p. 56.) Generally, when a contract is involved, the arbi-
tration agreement is a means to solve a contract dispute, and the
terms of the agreement spell out independent consideration.
For example, in Allied-Bruce Terminix, consideration for the
termite bond at issue was money. In Buckeye Check Cashing,
individuals entered into “various deferred-payment transactions
with . . . Buckeye . . . in which they received cash in exchange
for a personal check in the amount of the cash plus a finance
charge.” 546 U.S. at 440. In Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20 (1991), the arbitration agreement was part
of an application to register with the New York Stock Ex-
change. In none of these cases was the agreement to arbitrate
itself consideration in the “contract evidencing a transaction
involving commerce.”
The MAA’s terms, including the “consideration” of the indi-
vidual arbitral process, are not implicated until there is an em-
ployment dispute. In other words, an employment dispute is a
condition precedent to performance under the MAA. In typical
transactions, a dispute is not necessary for the terms of the
agreement to be exercised. For example, in Buckeye, the check
cashing company provided cash to the individuals as considera-
tion for the individuals signing over their checks and paying a
fee. These transactions could play out indefinitely without the

regard to the jurisdiction in which any action or special proceeding may
be instituted.” 218 F.2d 948, 949–950 (2d Cir. 1955).
13 I have not been asked to decide whether the entire employee
handbook is a contract, and make no findings on this point.
There is no evidence here of any contract setting forth payment, du-
ties, etc. of the various employees’ jobs, as in Bernhardt. This renders
the interpretation in this decision narrower than in Bernhardt because I
am not looking at a broader employment contract, with an agreement to
arbitrate disputes embedded in it, and whether that contract has been
breached based on the terms of that contract. Instead, I am looking at
whether any employment dispute covered by the contract, here the
MAA, evidences a transaction involving commerce.
14 It strikes me as peculiar that the contract to arbitrate itself is the
contract at issue to determine applicability of the FAA, rather than an
external contract or agreement subject to an arbitration provision. In
most cases, the arbitration agreement would kick in if there was a dis-
pute as to performance under the terms of the agreement. Here, a dis-
pute regarding performance under the terms of the MAA would con-
cern whether the employee submitted a covered dispute to arbitration in
line with the MAA, or breached the agreement by filing a lawsuit in
court.
15 Oddly, by this language the MAA is in part made in consideration
for itself.
arbitration agreement provision ever coming into play. If the
individuals in Buckeye performed their end of the bargain by
turning over their checks and the check cashing company sat
idle, a dispute would arise. Conversely, there would be no need
for the check cashing company to do anything if the individual
never presented it with a check to cash. Not so here, if the
employees’ work is part of the consideration. At all times prior
to the advent of a covered dispute and the invocation of a way
to resolve it, the employer is continuing to employ the employ-
ee and the employee is continuing to perform work for the em-
ployer. Continued employment triggers no duty on the em-
ployer or the employee with regard to the MAA.16 The em-
ployee deciding not to continue employment with the Respond-
ent, without more, likewise triggers no duty under the MAA. It
is difficult to see, therefore, how continued employment is part
of the “transaction” the MAA evidences.
Simply put, the MAA is a contract about how employment
disputes will be resolved. The “transactions” evidenced by the
MAA are agreements to arbitrate any and all employment dis-
putes. Yes, the MAA is a condition of employment, but its
topic is not the work the employees will perform or the condi-
tions under which they will perform it. An employer engaged
in interstate commerce could require employees, as a condition
of employment, to sign an agreement stating that they will sit
with their coworkers for lunchtime on Tuesdays.17 The topic of
this agreement is not the employee’s work duties or the em-
ployer’s business, but rather who the employees will eat lunch
with on Tuesdays. It certainly would seem a stretch to find that
this agreement would be a “maritime transaction or a contract
evidencing a transaction involving commerce.”
As noted above, the MAA applies to all employees. As the
Charging Party points out, some disputes covered by the MAA
with some of these employees would likely affect commerce,
and other minor disputes likely would not. Take the example
of a security worker who walks a block to work (not across
state lines) at the same Hobby Lobby store each day. It is hard
to see how an individual arbitration, required by the MAA,
about a disagreement over the timing of this security worker’s
lunch break evidences any transaction involving commerce.
The fact that the employer is engaged in interstate commerce
does not, in my view, render any individual agreement to arbi-
trate an employment dispute as a “contract evidencing a trans-
action involving commerce” because it is not the employer’s
business of producing and selling goods in interstate commerce
comprising the “transaction” evidenced by the MAA. To inter-
pret the FAA this broadly would finally stretch it to its breaking
point.18

16 Moreover, as the Respondent asserts, employees who have filed
class and/or collective lawsuits have not been disciplined, much less
been terminated.
17 Of course, there would be a clause stating that any disputes over
this policy would be subject to arbitration.
18 Many of the Supreme Court Justices, for example, believe the
FAA was stretched too far when the Court determined it applied to state
court claims. Southland Corp. v. Keating, 465 U.S. 1 (1984), Justice
O’Connor, joined by Justice Rehnquist, dissenting; See also Allied-
Bruce Terminex, supra., Justice O’Connor concurring ; Justice Scalia
dissenting; Justice Thomas, joined by Justice Scalia, dissenting. Others
HOBBY LOBBY STORES, INC. 13
Even if the “transaction” the MAA contemplates is employ-
ment or continued employment under the MAA’s terms, the
individual agreements do not necessarily “evidence a transac-
tion involving commerce.” As in Bernhardt, not all of the Re-
spondent’s employees, while performing their duties, are “‘in’
commerce, . . . producing goods for commerce, or . . . engag-
ing in activity that affect[s] commerce . . . .”
Consideration of the Supreme Court’s decision in Citizens
Bank v. Alafabco, Inc., 539 U.S. 52 (2003), does not lead to a
different finding. In Citizen’s Bank, the Court stated, “Con-
gress’ Commerce Clause power ‘may be exercised in individual
cases without showing any specific effect upon interstate com-
merce’ if in the aggregate the economic activity in question
would represent ‘a general practice . . . subject to federal con-
trol.’” 539 U.S. at 56–57, quoting Mandeville Island Farms,
Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, (1948).
Citizens Bank and Alafabco, a fabrication and construction
company, entered into debt-restructuring agreements that con-
tained an agreement to arbitrate any disputes. The Court reject-
ed the argument that the individual transactions underlying the
agreements did not, taken alone, have a “substantial effect on
interstate commerce.” Id. at 56. First, the Court found that
Alafabco engaged in interstate commerce using loans from
Citizens Bank that were renegotiated and redocumented in the
debt-restructuring agreements. Second, the loans at issue were
secured by goods assembled out-of-state. Finally, the Court
relied upon the “broad impact of commercial lending on the
national economy [and] Congress’ power to regulate that activi-
ty pursuant to the Commerce Clause.” The arbitration agree-
ments between the Respondent and the individual employees in
this case do not fall within any of these rationales.
The Charging Party, pointing out that the FAA derives its au-
thority from the Commerce Clause, cites to National Federa-
tion of Independent Businesses v. Sebelius, 132 S.Ct. 2566
(2012). Sebelius discusses the Commerce Clause in relation to
Affordable Healthcare Act’s (ACA) provision requiring indi-
viduals to buy health insurance, commonly known as the indi-
vidual mandate. In describing the reach of the Commerce
Clause in Sebelius, the Court observed, “Our precedent also
reflects this understanding. As expansive as our cases constru-
ing the scope of the commerce power have been, they all have
one thing in common: They uniformly describe the power as
reaching ‘activity.’” The Court determined that the “activity”
at issue with regard to the individual mandate was the purchase
of healthcare insurance, and that under the Commerce Clause,
Congress was not empowered to regulate the failure to engage
in this activity. Under this analysis, the “activity” the MAA
concerns is resolution of employment disputes. For the reasons
described above, this “activity” does not necessarily affect in-
terstate commerce, particularly in cases where no dispute with
regard to employment under the MAA ever arises.
Based on the foregoing, I agree with the Charging Party that
the Respondent has made no showing that an arbitration agree-

believe it was stretched too far when it was held to apply to employ-
ment contracts. Circuit City, supra, Justice Stevens, joined by Justices
Ginsburg, Breyer, and Souter, dissenting; Justice Souter, joined by
Justices Stevens, Ginsburg and Breyer, dissenting.
ment between the Respondent and any of its individual em-
ployees affects commerce.19
4. Team truckdrivers
The Charging Party further argues that team truck drivers
who transport the Respondent’s products across state lines are a
class of workers engaged in interstate commerce, and therefore
fall within FAA’s exception at 9 U.S.C. § 1. The Court in Cir-
cuit City held that “Section 1 exempts from the FAA only con-
tracts of employment of transportation workers.” The interstate
truck drivers are clearly transportation workers, a fact not dis-
puted by the Respondent, and therefore are exempt from the
FAA. Requiring the team truck drivers to sign and adhere to
the MAA therefore violates the Act, regardless of the Board’s
decisions in D. R. Horton and related cases.
B. Enforcement of the MAA
Complaint paragraphs 4(e) and 5 allege that the Respondent
violated Section 8(a)(1) of the Act by enforcing the MAA, as
detailed above.
It is well settled that an employer violates Section 8(a)(1) by
enforcing a rule that unlawfully restricts Section 7 rights. See,
e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9, 16–17
(1962); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
Here, it is undisputed that the Respondent enforced the MAA
by filing motions to compel individual arbitration in Fardig and
Ortiz, as detailed above. (Jt. Exhs. Y, Z). The Respondent con-
tends that the Board lacks authority to enjoin the Respondent’s
motions to compel because they are protected by the First
Amendment under Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U.S. 731, 741 (1983), and BE&K Construction CO. v.
NLRB, 536 U.S. 516 (2002). I find that instant case falls within
the exception set forth in Bill Johnson’s at footnote 5, which
states in relevant part:
It should be kept in mind that what is involved here is an em-
ployer’s lawsuit that the federal law would not bar except for
its allegedly retaliatory motivation. We are not dealing with a
suit that is claimed to be beyond the jurisdiction of the state
courts because of federal-law preemption, or a suit that has an
objective that is illegal under federal law. Petitioner concedes
that the Board may enjoin these latter types of suits. . . . Nor
could it be successfully argued otherwise, for we have upheld
Board orders enjoining unions from prosecuting court suits
for enforcement of fines that could not lawfully be imposed
under the Act, see Granite State Joint Board, Textile Workers
Union, 187 N.L.R.B. 636, 637 (1970), enforcement denied,
446 F.2d 369 (CA1 1971), rev’d, 409 U.S. 213, 93 S.Ct. 385,
34 L.Ed.2d 422 (1972); Booster Lodge No. 405, Machinists &
Aerospace Workers, 185 N.L.R.B. 380, 383 (1970), enforced

19 As the party asserting the FAA as an affirmative defense, the Re-
spondent has the burden of proof to show that the agreements at issue
are subject to the FAA. The assertion of the FAA as an affirmative
defense requires me to address its reach in this decision. Though, as
the Respondent notes, many courts have disagreed with the Board’s
rationale in D. R. Horton, et. al., the precise issue of whether a particu-
lar agreement to arbitrate is a “maritime transaction or a contract evi-
dencing a transaction involving commerce” has not been squarely ad-
dressed.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in relevant part, 148 U.S.App.D.C. 119, 459 F.2d 1143
(1972), aff’d, 412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764
(1973), and this Court has concluded that, at the Board’s re-
quest, a District Court may enjoin enforcement of a state-
court injunction “where [the Board’s] federal power pre-
empts the field.” NLRB v. Nash-Finch Co., 404 U.S. 138, 144,
92 S.Ct. 373, 377, 30 L.Ed.2d 328 (1971).
The Board has determined that these exceptions apply in the
wake of Bill Johnson’s and BE&K Construction. See, e.g.,
Allied Trades Council (Duane Reade Inc.), 342 NLRB 1010,
1013, fn. 4 (2004); Teamsters, Local 776 (Rite Aid), 305 NLRB
832, 835 (1991). Moreover, particular litigation tactics may
fall within the exception even if the entire lawsuit may not be
enjoined. Wright Electric, Inc., 327 NLRB 1194, 1195 (1999),
enfd. 200 F.3d 1162 (8th Cir. 2000); Dilling Mechanical Con-
tractors, 357 NLRB 544 (2011). As such, since the Board has
concluded that agreements such as those comprising the MAA
explicitly restrict Section 7 activity, the Respondent’s attempt
to enforce the MAA in state court by moving to compel arbitra-
tion fall within the unlawful objective exception in Bill John-
son’s. See Neiman Marcus Group, supra.
The Respondent argues that numerous courts have found
agreements such as the MAA to be lawful and enforceable.
While this is true, the Board has held that agreements such as
the MAA violate the Act, and the Supreme Court has not ruled
otherwise. The Respondent, by its actions in court, is challeng-
ing Board case law which very clearly holds the MAA violates
the Act. The motion to compel arbitration, which by virtue of
the MAA can only be on an individual basis, is the crux of the
challenge. Inherent in this challenge are risks, which the Re-
spondent is assuming by declining to follow the Board’s case
law as it works its way through the system.
C. The MAA and Board Charges
Complaint paragraphs 4(b) and 5 allege that the Respondent
violated Section 8(a)(1) by maintaining, at all material times
since at least April 28, 2014, which would reasonably be read
by employees to prohibit them from filing unfair labor practice
charges with the Board.
The Lutheran Heritage test set forth above applies to this al-
legation. I find that employees would reasonably construe the
MAA as restricting their access to file charges with the Board.
The MAA is worded very broadly, and explicitly states it ap-
plies to “any dispute, demand, claim, controversy, cause of
action, or suit (collectively referred to as “Dispute”) that Em-
ployee may have” at any time that that “in any way arises out
of, involves, or relates to Employee’s employment” with the
Respondent. This would certainly encompass an unfair labor
practice charge with the Board.
More specifically, the MAA includes disputes involving:
wrongful termination, wages, compensation, work hours, . . .
sexual harassment, harassment and/or discrimination based on
any class protected by federal, state or municipal law, and all
Disputes involving interference and/or retaliation relating to
workers’ compensation, family or medical leave, health and
safety, harassment, discrimination, and/or the opposition of
harassment or discrimination, and/or any other employment-
related Dispute.
Certainly, disputes about wrongful termination, wages, com-
pensation, and hours could comprise unfair labor practice
claims. Discrimination based on Section 7 activity also is en-
compassed by this language.
The MAA then proceeds to state it applies to disputes under
various federal laws, ending with a catchall that it applies to
disputes under :
all other federal, state, and municipal statutes, regulations,
codes, ordinances, common laws, or public policies that regu-
late, govern, cover, or relate to equal employment, wrongful
termination, wages, compensation, work hours, invasion of
privacy, false imprisonment, assault, battery, malicious prose-
cution, defamation, negligence, personal injury, pain and suf-
fering, emotional distress, loss of consortium, breach of fidu-
ciary duty, sexual harassment, harassment and/or discrimina-
tion based on any class protected by federal, state or munici-
pal law, or interference and/or retaliation involving workers’
compensation, family or medical leave, health and safety,
harassment, discrimination, or the opposition of harassment or
discrimination, and any other employment-related Dispute in
tort or contract.
That this would encompass some claims under the NLRA re-
quires no explanation. The only claims explicitly excluded are
benefits under unemployment compensation laws or workers’
compensation laws.
The Respondent contends that the MAA would not be inter-
preted to apply to Board charges because of the following lan-
guage:
By agreeing to arbitrate all Disputes, Employee and Company
understand that they are not giving up any substantive rights
under federal, state or municipal law (including the right to
file claims with federal, state or municipal government agen-
cies).
The Respondent contends that because of the explicit statement
that claims with federal, state, or municipal agencies are ex-
cluded from the MAA, any misinterpretation of the MAA
would be manifestly unreasonable. I disagree.
To begin with, the MAA specifically states claims of sexual
harassment, harassment and/or discrimination based on any
class protected by federal law are subject to mandatory individ-
ual arbitration. These are all patently clear examples of claims
that arise under the civil rights statutes the Equal Employment
Opportunity Commission (EEOC) enforces, i.e., Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities
Act, and the Age Discrimination in Employment Act.20 Yet the
MAA also states that nothing would preclude an employee
from filing a charge with a federal agency, ostensibly including
the EEOC.21 The only way to reconcile these two provisions is
to read the MAA as not precluding filing a charge with an ad-

20 These statutes are respectively codified at 42 U.S.C. 2000e et seq.;
42 U.S.C. 121-1 et seq; and 20 U.S.C. 633a.
21 The EEOC’s charge-filing process is described at
http://eeoc.gov/employees/howtofile.cfm.
HOBBY LOBBY STORES, INC. 15
ministrative agency, yet in the end those disputes must be re-
solved only through final and binding arbitration under the
MAA rather than through whatever fruits filing a charge or
other similar effort may bear. The same rationale holds true for
Board proceedings, given that the MAA requires individual
arbitration of disputes over “wrongful termination, wages,
compensation, work hours.” This begs the question: Why
would any employee bother to file a charge? A reasonable
employee, not versed in how various federal, state, and local
agencies process claims, would take it at face value that the
topics specifically included as falling within the MAA would
be subject to arbitration. This is particularly true given that the
MAA explicitly excludes benefits under unemployment com-
pensation laws or workers’ compensation laws, but not under
the NLRA.
Considering that ambiguities must be construed against the
drafter of the MAA, which is the Respondent, I find the MAA
violates Section 8(a)(1) because employees would reasonably
believe the MAA requires arbitration of employment-related
claims covered by the Act. See Aroostook County Regional
Ophthalmology Center, 317 NLRB 218 (1995).
CONCLUSIONS OF LAW
(1) The Respondent, Hobby Lobby Stores, Inc., is an em-
ployer within the meaning of Section 2(6) and (7) of the Act.
(2) The Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing a mandatory arbitration agreement
(MAA) requiring all employment-related disputes to be submit-
ted to individual binding arbitration.
(3) The Respondent violated Section 8(a)(1) of the Act
when it enforced the MAA by asserting the MAA in litigation
the Charging Party brought against the Respondent.
(4) The Respondent violated Section 8(a)(1) of the Act by
maintaining a mandatory arbitration agreement that employees
reasonably would believe bars or restricts their right to file
charges with the National Labor Relations Board.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
As I have concluded that the MAA is unlawful, the recom-
mended order requires that the Respondent revise or rescind it
in all of its forms to make clear to employees that the arbitra-
tion 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 restrict employees’ right to
file charges with the National Labor Relations Board. The
Respondent shall notify all current and former employees who
were required to sign the mandatory arbitration agreement in
any form that it has been rescinded or revised and, if revised,
provide them a copy of the revised agreement. Because the
Respondent utilized the MAA on a corporatewide basis, the
Respondent shall post a notice at all locations where the MAA,
or any portion of it requiring all employment-related disputes to
be submitted to individual binding arbitration, was in effect.
See, e.g., U-Haul Co. of California, supra, fn. 2 (2006); D. R.
Horton, supra, slip op. at 17; Murphy Oil, supra.
I recommend the Respondent be required to notify the U.S.
District Court for the Eastern District of California in Ortiz v.
Hobby Lobby Stores, Inc., 2:13-cv-01619-TLN-DAD (E.D.
Cal.), and the U.S. District Court for the Central District of
California in Fardig v. Hobby Lobby Stores, Inc., 8:14-cv-
00561-JVSAN (C.D. Cal.), that it has rescinded or revised the
mandatory arbitration agreements upon which it based its mo-
tion to dismiss these actions and to compel individual arbitra-
tion of the claims, and inform the court that it no longer oppos-
es the actions on the basis of the arbitration agreement.
I recommend the Company be required to reimburse em-
ployees for any litigation and related expenses, with interest, to
date and in the future, directly related to the Company’s filing
its motion to compel arbitrations in Ortiz v. Hobby Lobby
Stores, Inc., 2:13-cv-01619-TLN-DAD (E.D. Cal.), and Fardig
v. Hobby Lobby Stores, Inc., 8:14-cv-00561-JVSAN (C.D.
Cal.). Determining the applicable rate of interest on the reim-
bursement will be as outlined in New Horizons, 283 NLRB
1173 (1987), (adopting the Internal Revenue Service rate for
underpayment of Federal taxes). Interest on all amounts due to
the employees shall be computed on a daily basis as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, Hobby Lobby Stores, Inc., Oklahoma City,
Oklahoma, with a place of business in Sacramento, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that em-
ployees reasonably would believe bars or restricts the right to
file charges with the National Labor Relations Board.
(b) Maintaining and/or enforcing a mandatory arbitration
agreement that requires employees, as a condition of employ-
ment, to waive the right to maintain class or collective actions
in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the mandatory arbitration agreement in all of its
forms, or revise it in all of its forms to make clear to employees
that the arbitration agreement does not constitute a waiver of
their right to maintain employment-related joint, class, or col-
lective actions in all forums, and that it does not restrict em-
ployees’ right to file charges with the National Labor Relations
Board.
(b) Notify all current and former employees who were re-
quired to sign the mandatory arbitration agreement in any form

22 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.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that it has been rescinded or revised and, if revised, provide
them a copy of the revised agreement.
(c) Notify the U.S. District Court for the Eastern District of
California in Ortiz v. Hobby Lobby Stores, Inc., 2:13-cv-01619-
TLN-DAD (E.D. Cal.), and the U.S. District Court for the Cen-
tral District of California in Fardig v. Hobby Lobby Stores,
Inc., 8:14-cv-00561-JVSAN (C.D. Cal.), that it has rescinded or
revised the mandatory arbitration agreement upon which it
based its motions to dismiss the class and collective actions and
to compel individual arbitration of the employees’ claim, and
inform the respective courts that it no longer opposes the ac-
tions on the basis of the arbitration agreement.
(d) In the manner set forth in this decision, reimburse the
plaintiffs who filed suit in Ortiz v. Hobby Lobby Stores, Inc.,
2:13-cv-01619-TLN-DAD (E.D. Cal.), and Fardig v. Hobby
Lobby Stores, Inc., 8:14-cv-00561-JVSAN (C.D. Cal.), for any
reasonable attorneys’ fees and litigation expenses that she may
have incurred in opposing the Respondent’s motion to dismiss
the wage claim and compel individual arbitration.
(e) Within 14 days after service by the Region, post at all
facilities in California the attached notice marked “Appendix
A,” and at all other facilities employing covered employees,
copies of the attached notice marked “Appendix B.”23 Copies
of the notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, 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 Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since April 28,
2014.
(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. September 8, 2015
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

23 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.”
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain a mandatory arbitration agreement
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 a mandatory arbitra-
tion agreement that requires our employees, as a condition of
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, re-
strain, or coerce our employees in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration agreement in all
of its forms, or revise it in all of its forms to make clear that the
arbitration agreement does not constitute a waiver of your right
to maintain employment-related joint, class, or collective ac-
tions in all forums, and that it does not restrict your right to file
charges with the National Labor Relations Board.
WE WILL notify all current and former employees who were
required to sign the mandatory arbitration agreement in all of
its forms that the arbitration agreement has been rescinded or
revised and, if revised, we will provide them a copy of the re-
vised agreement.
WE WILL notify the courts in which the employees filed their
claims in Ortiz v. Hobby Lobby Stores, Inc., 2:13-cv-01619-
TLN-DAD (E.D. Cal.), and Fardig v. Hobby Lobby Stores,
Inc., 8:14-cv-00561-JVSAN (C.D. Cal.), that we have rescind-
ed or revised the mandatory arbitration agreement upon which
we based our motion to dismiss her collective wage claim and
compel individual arbitration, and we will inform the court that
we no longer oppose the employees’ claims on the basis of that
agreement.
WE WILL reimburse the plaintiffs in Ortiz v. Hobby Lobby
Stores, Inc., 2:13-cv-01619-TLN-DAD (E.D. Cal.), and Fardig
v. Hobby Lobby Stores, Inc., 8:14-cv-00561-JVSAN (C.D.
Cal.), for any reasonable attorneys’ fees and litigation expenses
that she may have incurred in opposing our motion to dismiss
her collective wage claim and compel individual arbitration.
HOBBY LOBBY STORES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20–CA–139745 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.
HOBBY LOBBY STORES, INC. 17
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 maintain a mandatory arbitration 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 a mandatory arbitra-
tion agreement that requires our employees, as a condition of
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, re-
strain, or coerce our employees in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration agreement in all
of its forms, or revise it in all of its forms to make clear that the
arbitration agreement does not constitute a waiver of your right
to maintain employment-related joint, class, or collective ac-
tions in all forums, and that it does not restrict your right to file
charges with the National Labor Relations Board.
WE WILL notify all current and former employees who were
required to sign the mandatory arbitration agreement in all of
its forms that the arbitration agreement has been rescinded or
revised and, if revised, we will provide them a copy of the re-
vised agreement.
HOBBY LOBBY STORES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20–CA–139745 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.