IIG WIRELESS, INC. F/K/A UNLIMITED PCS, INC.; and UPCS CA RESOURCES, INC.

National Labor Relations Board - Administrative Judge Opinions

Apr 14, 2016

21-CA-152170 (N.L.R.B. Apr. 14, 2016)

JD(SF)–19–16
Garden Grove and Irvine, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
IIG WIRELESS, INC. f/k/a UNLIMITED PCS,
INC.; and UPCS CA RESOURCES, INC.
and Case 21–CA–152170
JOANNA ROSALES, an Individual
Thomas Rimbach, Esq. and Lindsay R. Parker, Esq.,
for the General Counsel.
Christine D. Baran, Esq. and John A. Mavros, Esq. (Fisher & Phillips, LLP),
for the Respondent.
Matthew Righetti, Esq. (Righetti Glugoski, P.C.)
for the Charging Party.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. This is another case involving
an alleged unlawful mandatory arbitration provision. The General Counsel alleges that, as in
D. R. Horton, 357 NLRB 2277 (2012), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), the
subject provision here violates the National Labor Relations Act both because it would
reasonably be construed to prohibit employees from filing unfair labor practice charges with the
Board and because it has been applied to preclude employees from pursuing other employment-
related claims on a class or representative basis either in arbitration or in court.
On January 26, 2016, the General Counsel, the Charging Party (Joanna Rosales), and the
Respondents (IIG Wireless, Inc. and UPCS CA Resources, Inc.) jointly filed a motion and
stipulation of facts requesting that the allegations be resolved without a hearing based on the
stipulated record. The motion was granted the same day, and the General Counsel and the
Respondent Companies thereafter filed briefs on March 10 and 11, respectively.1 Based on those
briefs and the entire stipulated record, for the reasons set forth below I find that the Respondents
unlawfully maintained and enforced the mandatory arbitration provision as alleged.2
I. THE FACTS
Respondent IIG is engaged in the retail sale of wireless and telecommunications products
and maintains its principal offices and a facility in Garden Grove, California. Respondent

1 See Sec. 102.35(a)(9) of the Board’s Rules.
2 The initial charge was filed and served on May 13 and 14, 2015, respectively, and the
complaint issued a few months later on July 29. The Board’s commerce jurisdiction is
undisputed and well established by the admitted allegations and/or stipulated facts.
JD(SF)–19–16
2
UPCS provides staffing for wireless-communications retail facilities and maintains its principle
offices and a facility in Irvine, California.
Since about April 2013, Respondents have been joint employers of the employees of IIG,
including Rosales. UPCS provided staffing for the California retail facilities operated by IIG, 5
administered a common labor relations policy with IIG for its employees, and exercised control
over that policy.
Rosales was hired by IIG in August 2012. Pursuant thereto, on August 8, 2012, she
signed and agreed to be bound by a Mutual Arbitration Agreement that IIG maintains and 10
presents to its employees for execution as part of the application process. In relevant part, the
Agreement states that “binding arbitration of disputes, rather than litigation in courts,” is a
“generally faster, cheaper and less formal” means for resolving employment disputes, and that
the Company is committed to using it to resolve “all legal disputes” as an “alternative to the
court system.” Accordingly, it provides that, “as a condition of employment,” employees must 15
agree to binding arbitration of “any dispute or controversy between [the Company and the
employee] arising from or in any way related to . . . employment with the Company,” except for
disputes regarding worker’s compensation or unemployment insurance benefits. The Agreement
does not specifically state, however, whether disputes must be arbitrated individually or may be
arbitrated on a class or collective basis. 20
Rosales worked for IIG through January 2014, when she was terminated from her
employment by IIG and UPCS. About 9 months later, in October 2014, she filed a demand for
arbitration before the JAMS arbitration service, on behalf of herself and an alleged class of
“similarly situated and aggrieved employees,” regarding Respondents’ alleged wage and hour 25
and other violations under the California Labor Code.
On November 4, 2014, Respondents sent letters to both JAMS and Rosales’s attorney
formally objecting to the demand for class arbitration. Respondents asserted that Rosales’s
demand “seeks a collective arbitration where none is authorized by the underlying arbitration 30
agreement.” IIG also specifically asserted that, because the Agreement is “silent” as to class or
collective arbitration, “it is resigned to individual arbitration.”
A few weeks later, on November 17, 2014, Rosales filed a class or representative-action
complaint against Respondents in the Superior Court of California, County of Orange, asserting 35
wage and hour and other claims under the California Labor Code (Rosales v. UPCS CA
Resources, Inc. et al., Case No. 30-2014-00756943-CU-OE-CXC). On November 19, she
amended the complaint to reflect a representative action under the California Labor Code’s
Private Attorneys General Act (PAGA).
40
On January 14, 2015, Respondents filed a cross-complaint for declaratory and injunctive
relief in the state court action seeking: (1) a declaration that the Agreement prohibits class or
representative arbitration of disputes subject to the Agreement; (2) an order enjoining Rosales
from proceeding with collective arbitration against Respondents; (3) a declaration that the
Agreement reserves for the Superior Court jurisdiction over all questions concerning whether the 45
Agreement prevents class arbitration of disputes subject thereto; and (4) an order enjoining
Rosales from seeking any determination or seeking to enforce any determination from the
JD(SF)–19–16
3
arbitrator that the Agreement provides the opportunity for collective resolution of any dispute
subject thereto.
About 6 months later, on June 8, Respondents also filed a motion for stay of the action
and all discovery in the state court case.5
Thereafter, on June 16, Rosales filed a petition to compel arbitration of the Respondents’
cross-complaint. The petition sought: (1) an order referring the question of arbitrability of class
claims to the arbitrator for decision; (2) in the event the Superior Court decided to make a
determination whether class arbitration is permissible under the terms of the Agreement, an order 10
compelling arbitration of the class claims challenged in the cross-complaint; and (3) an order
staying the cross-complaint pending arbitration.
On June 23, Respondents filed a motion for judgment on the pleadings in the state court
action. A week later, on July 1, they also filed an opposition to Rosales’s petition to compel 15
arbitration of their cross-complaint.
On July 7, Rosales filed a reply in support of her petition to compel arbitration of the
cross-complaint. She also filed an opposition to the Respondents’ motion for stay on July 10,
and an opposition to their motion for judgment on the pleadings on July 13.20
On July 14, the Superior Court issued a minute order denying Rosales’s petition to
compel arbitration of the Respondents’ cross-complaint. In its order, the court held, among other
things, that the “subject arbitration agreement is silent on the availability of class/representative
arbitration—thus requiring [Rosales] to arbitrate her individual claims, only, pursuant to [Stolt-25
Nielsen, S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 684–685 (2010)].”
Thereafter, in late July, the Superior Court granted Respondents’ motion for a stay of the
PAGA action and formal discovery. However, it stayed Respondents’ motion for judgment on
the pleadings pending the outcome of the appeal process. 30
In the meantime, on July 16, Rosales filed a notice of appeal of the court’s order denying
her petition to compel arbitration of the cross-complaint. Approximately 3 months later, on
October 31, she filed her opening brief in support of the appeal with the California Court of
Appeal, Fourth Appellate District, Division 3 (Case G052269). On December 17, Respondents 35
filed a brief in response.
II. ANALYSIS
As indicated above, the General Counsel alleges that the subject arbitration provision is 40
clearly unlawful under D. R. Horton and Murphy Oil for two reasons: first, because employees
would reasonably construe it to require arbitration of unfair labor practice allegations, thereby
preventing them from filing such charges before the Board; and, second, because Respondents
applied the provision to prevent Rosales from pursuing her wage and hour and other state law
claims against them on a class or representative basis either in arbitration or in court. 45
JD(SF)–19–16
4
In response to the first, Respondents argue that employees would not reasonably construe
the provision in such a manner as “the overall context of Agreement is directed at civil litigation,
not administrative charges.” However, the language of the provision is not significantly or
substantially different from provisions found unlawful in other D. R. Horton/Murphy Oil cases.
See, e.g., ISS Facility Services, Inc., 363 NLRB No. 160 (2016) (provision stated that all disputes 5
between the employer and the employee would be decided in arbitration “and not by way of
court or jury trial”); and Cowabunga, Inc., 363 NLRB No. 133 (2016) (provision stated that all
claims between the employer and the employee would be resolved through binding arbitration
“rather than through court litigation”).3 See also U-Haul Company of California, 347 NLRB
375, 377–378 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007) (finding employer’s policy 10
requiring arbitration of all disputes unlawful notwithstanding that the memo announcing the
policy stated that the arbitration process was limited to disputes “that a court of law would be
authorized to entertain or would have jurisdiction over to grant relief”).

With respect to the second, Respondents argue that D. R. Horton and Murphy Oil were 15
wrongly decided and have been rejected in relevant part, not only by the Fifth Circuit on appeal
in those cases,4 but by every other federal district and appellate court that has considered them in
determining whether to enforce such mandatory individual arbitration provisions. However,
Respondents apparently missed Totten v. Kellogg Brown & Root, LLC et al., --- F.Supp.3d ---
2016 WL 316019, 2016 U.S. Dist. LEXIS 10424 (C.D. Cal. Jan. 22, 2016) (Dolly M. Gee, J.), 20
likewise a California wage and hour case, where, following an exhaustive analysis, the district
court expressly endorsed the Board’s reasoning in declining to enforce the employer’s mandatory
individual arbitration agreement in that case.5
In any event, administrative law judges must follow Board precedent unless and until it is
overruled by the Supreme Court. Pathmark Stores, Inc., 342 NLRB 378 n. 1 (2004). Under that 25
precedent, it is unlawful for an employer to maintain and/or enforce a mandatory arbitration
provision that, either on its face or as applied, precludes employees from pursuing employment
related claims on a class or collective basis in any forum. See, e.g., Haynes Bldg. Services, LLC,
363 NLRB No. 125 (2016); Fuji Food Products, 363 NLRB No. 118 (2016); and Employer’s
Resource, 363 NLRB No. 59 (2015) (finding such violations under the reasoning of D. R. Horton30
and Murphy Oil where, like here, the arbitration agreement was silent regarding class or
collective claims but was applied by the employer to bar them in any forum).
Respondents also make various other arguments why no violations should be found in
this case. All of the arguments are contrary to Board precedent as well.
35
(1) Timeliness of the underlying charges. Respondents argue that the complaint
allegations must be dismissed because Rosales’s May 13, 2015 charge was filed and served more
than 6 months after she was given clear and unequivocal notice of both the maintenance and the
enforcement of the arbitration provision. However, the Board has repeatedly rejected this

3 As here, the mandatory arbitration provision in Cowabunga expressly excluded claims for
unemployment and worker’s compensation benefits.
4 D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir 2013); and Murphy Oil USA, Inc. v.
NLRB, 808 F.3d 1013 (5th Cir. 2015).
5 Appeal filed with the Ninth Circuit Feb. 22, 2015 (No. 16–55260).
JD(SF)–19–16
5
argument in previous D. R. Horton/Murphy Oil cases, holding that a violation may be found
where, as here, an unlawful provision has been maintained and/or enforced within 6 months of
the charge, regardless of when the provision became effective or was first acknowledged by or
enforced against the employee. See, e.g., Cowabunga, Inc., slip op. at 2; Fuji Food Products,
slip op. at 1 n. 1, 7; and CPS Security (USA), Inc., 363 NLRB No. 86, slip op. at 1 n. 2 (2015).5
Here, there is no dispute that Respondents continued to maintain the subject arbitration provision
within 6 months of Rosales’s initial unfair labor practice charge. Nor is there any dispute that
Respondents continued to seek enforcement of the provision against Rosales within 6 months of
the charge; specifically, through their January 14, 2015 cross-complaint and various subsequent
motions and pleadings in Rosales’s state court action.10
(2) Rosales’s standing to file the underlying charges. Respondents also assert that
Rosales lacked “standing” to file the unfair labor practice charges because Respondents’ alleged
unlawful maintenance and enforcement of the arbitration provision occurred well after her
employment ended in January 2014. The Board has repeatedly rejected such arguments in prior 15
cases as well, holding that former employees are protected by the Act and may file unfair labor
practice charges over their former employer’s post-termination maintenance and enforcement of
an individual arbitration policy. See Cowabunga, slip op. at 2; Fuji Food Products, slip op. at 1
n. 1, 7; Employer’s Resource, slip op. at 1 n. 2, 6; and Cellular Sales of Missouri, 362 NLRB No.
27, slip op. at 6–7 (2015). 20

(3) Rosales’s concerted activity. Finally, Respondents argue that the allegations should
be dismissed because Rosales did not engage in any concerted activity within the meaning of the
Act. However, again, the Board in prior cases has repeatedly rejected this argument, holding that
the filing of an employment-related class or collective action by an individual constitutes 25
concerted activity under the Act. See Cowabunga, slip op. at 2; Fuji Food Products, slip op. at 1
n. 1; and Employer’s Resource, slip op at 1 n. 2, 7, and cases cited there.
CONCLUSIONS OF LAW
30
Respondents, as joint employers, have engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
1. Maintaining a mutual arbitration agreement that employees would reasonably believe
bars or restricts them from filing unfair labor practice charges with the National Labor Relations 35
Board.
2. Maintaining a mutual arbitration agreement that, as applied, compels employees, as a
condition of employment, to waive the right to maintain class or collective actions in all forums,
whether arbitral or judicial.40
3. Seeking to enforce the foregoing mutual arbitration agreement against Rosales in her
state court action since January 14, 2015.
45
JD(SF)–19–16
6
REMEDY
Consistent with D. R. Horton and Murphy Oil, Respondents will be required to rescind or
revise the mutual arbitration agreement containing the unlawful mandatory arbitration provision,
and to notify Rosales and other current and former employees who signed or were subject to the 5
agreement that they have done so.
Respondents will also be required to notify the state superior and appeals courts in
Rosales v. UPCS CA Resources, Inc. et al., Superior Court Case No. 30-2014-00756943-CU-OE-
CXC) and Court of Appeal, Fourth Appellate District, Division 3 Case No. G052269, that they 10
have revised or rescinded the mutual arbitration agreement, and that Respondents no longer
oppose Rosales’s class or representative claims on the basis that they are barred by the
agreement.
Respondents will also be required to reimburse Rosales for all reasonable expenses and 15
legal fees, with interest, incurred in opposing their cross-complaint and subsequent motions and
pleadings in the state court action seeking to enforce the mutual arbitration agreement to
preclude class or representative claims. Interest shall be computed and compounded daily as set
forth in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB
6 (2010). 20
Finally, as requested by the General Counsel, Respondents will be required to post a
notice to employees, in both English and Spanish, at all facilities where the mutual arbitration
agreement has been maintained. Respondents will also be required to distribute the notice
electronically, including by email, if they customarily communicate with employees by such 25
means. See J. Picini Flooring, 356 NLRB 11, 14 (2010). And they will be required to mail the
notice in the event they have gone out of business or have closed or ceased providing services at
a particular facility. See, e.g., SBM Management Services, 362 NLRB No. 144, slip op. at 1 n. 3
(2015).
30
Accordingly, based on the foregoing and the record as a whole, I issue the following
order.6
ORDER
35
The National Labor Relations Board (NLRB) orders that Respondents, IIG Wireless, Inc.,
Garden Grove, California, and UPCS CA Resources, Inc., Irvine, California, joint employers,
their officers, agents, successors, and assigns, shall
1. Cease and desist from40
(a) Maintaining a mutual arbitration agreement that employees would reasonably believe
bars or restricts them from filing unfair labor practice charges with the NLRB.

6 If no exceptions are filed as provided by Section 102.46 of the Board's Rules, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–19–16
7
(b) Maintaining and/or enforcing a mutual arbitration agreement in a manner that
requires employees, as a condition of employment, 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, restraining, or coercing employees in 5
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.
(a) Rescind the mutual arbitration agreement in all of its forms, or revise it in all of its 10
forms to make clear to employees that it does not bar or restrict them from filing charges with the
NLRB or waive their right to maintain employment-related joint, class, or collective actions in
all forums.
(b) Notify all current and former employees who were required to sign or otherwise 15
become bound to the mutual arbitration agreement in any form that it has been rescinded or
revised and, if revised, provide them a copy of the revised agreement.
(c) Notify the state superior and appeals courts in Rosales v. UPCS CA Resources, Inc. et
al., Superior Court Case No. 30-2014-00756943-CU-OE-CXC), and Court of Appeal, Fourth 20
Appellate District, Division 3 Case No. G052269, that they have rescinded or revised the mutual
arbitration agreement upon which they based their January 14, 2015 cross-complaint and
subsequent motions and pleadings seeking to preclude Rosales’s class or representative claims,
and inform the courts that they no longer oppose the claims on the basis of the agreement.
25
(d) Reimburse Rosales for any reasonable attorneys’ fees and litigation expenses that she
may have incurred in the above state court action in opposing the Respondents’ cross-complaint
and subsequent motions and pleadings seeking to preclude her class or representative claims on
the basis of the agreement, with interest.
30
(e) Within 14 days after service by the Region, post copies of the attached notice marked
“Appendix” in both English and Spanish at all of their facilities where the arbitration provision
has been maintained.7 Copies of the notice, on forms provided by the Region, after being signed
by the Respondents’ authorized representative(s), shall be posted and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are 35
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondents customarily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 40
proceedings, the Respondents have gone out of business or have closed or ceased doing business

7 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notices reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
JD(SF)–19–16
8
at a facility covered by this order, the Respondents shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondents
at those facilities at any time since November 14, 2014.
(f) Within 21 days after service by the Region, file with the Regional Director for Region
21 a sworn certification of a responsible official on a form provided by the Region attesting to 5
the steps that the Respondents have taken to comply.
Dated, Washington, D.C. April 14, 2016
10
15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain a mutual arbitration agreement that employees would reasonably
believe bars or restricts them from filing unfair labor practice charges with the National Labor
Relations Board (NLRB).
WE WILL NOT maintain and/or enforce a mutual arbitration agreement in a manner that
requires 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 guaranteed to you by Section 7 of the Act.
WE WILL rescind the mutual arbitration agreement in all of its forms, or revise it in all of its
forms to make clear to employees that it does not bar or restrict them from filing charges with the
NLRB or waive their right to maintain employment-related joint, class, or collective actions in
all forums.
WE WILL notify all current and former employees who were required to sign or otherwise
become bound to the mutual arbitration agreement in any form that it has been rescinded or
revised and, if revised, provide them a copy of the revised agreement.
WE WILL notify the state superior and appeals courts in Rosales v. UPCS CA Resources, Inc. et
al., Superior Court Case No. 30-2014-00756943-CU-OE-CXC), and Court of Appeal, Fourth
Appellate District, Division 3 Case No. G052269, that we have rescinded or revised the mutual
arbitration agreement upon which we based our January 14, 2015 cross-complaint and
subsequent motions and pleadings seeking to preclude Rosales’s class or representative claims,
and WE WILL inform the courts that we no longer oppose the claims on the basis of the
agreement.
WE WILL reimburse Rosales for any reasonable attorneys’ fees and litigation expenses that she
may have incurred in the above state court action in opposing our cross-complaint and
subsequent motions and pleadings seeking to preclude her class or representative claims on the
basis of the agreement, with interest.
IIG WIRELESS, INC. and UPCS CA RESOURCES,
INC., JOINT EMPLOYERS
(Employers)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor, Los Angeles, CA 90017-5449
(213) 894-5200, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge's decision can be found at www.nlrb.gov/case/21-CA-152170 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (213) 894-5184.