JP MORGAN CHASE & CO AND CHASE INVESTMENT SERVICES CORP

National Labor Relations Board - Board Decisions

Sep 12, 2018

367 NLRB No. 3 (N.L.R.B. 2018)

367 NLRB No. 3
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.
JP Morgan Chase & Co. and Chase Investment Ser-
vices Corp., now doing business as JP Morgan
Securities, LLC, joint employers and Robert M.
Johnson, Jennifer Zaat-Hetelle, Scott Van
Hoogstraat, and Peter Piccoli.1 Case 02–CA–
098118
September 12, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On August 21, 2013, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondents
filed exceptions and a supporting brief, the General
Counsel and the Charging Parties filed separate answer-
ing briefs, and the Respondents filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
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 774 (2014), enf. denied in relevant
part 808 F.3d 1013 (5th Cir. 2015), that the Respondents
violated Section 8(a)(1) of the National Labor Relations
Act by maintaining and enforcing a Dispute Resolution
Policy (the Policy) that requires employees, as a condi-
tion of employment, to waive their rights to pursue class
or collective actions involving employment-related
claims in all forums, whether arbitral or judicial.
Recently, the Supreme Court issued its decision in Ep-
ic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612
(2018), a consolidated proceeding including review of
court decisions below in Lewis v. Epic Systems Corp.,
823 F.3d 1147 (7th Cir. 2016), Morris v. Ernst & Young,
LLP, 834 F.3d 975 (9th Cir. 2016), and Murphy Oil USA,
Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). Epic Sys-
tems concerned the issue, common to all three cases,
whether employer-employee agreements that contain
class- and collective-action waivers and stipulate that
employment disputes are to be resolved by individual-
ized arbitration violate the National Labor Relations Act.
Id. at__, 138 S. Ct. at 1619–1621, 1632. The Supreme
Court held that such employment agreements do not vio-
late this Act and that the agreements must be enforced as

1 We have amended the case caption to reflect the withdrawal of the
unfair labor practice charge in Case 02–CA–088471.
2 Chairman Ring is recused and has taken no part in the considera-
tion of this case.
written pursuant to the Federal Arbitration Act. Id. at__,
138 S. Ct. at 1619, 1632.
The Board has considered the decision and the record
in light of the exceptions and briefs. In light of the Su-
preme Court’s ruling in Epic Systems, which overrules
the Board’s holding in Murphy Oil, we conclude that the
complaint must be dismissed.3
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 12, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Jamie Rucker, Esq. and Matthew Murtagh, Esq., for the Gen-
eral Counsel.
Jonathan C. Fritts, Esq. and Stephanie Reiss, Esq. (Morgan,
Lewis & Bockius, LLP), of Washington, D.C. and Christo-
pher D. Havener (Morgan, Lewis & Bockius, LLP), of Phil-
adelphia, Pennsylvania, on brief, for the Respondent.
Michael Scimone, Esq. and Deirdre A. Aaron, Esq. (Outten &
Golden, LLP), of New York, New York, for the Charging
Parties Robert Johnson, Jennifer Zaat-Hetelle, Scott Van
Hoogstraat, and Peter Piccoli.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charg-
es filed by Tiffany Ryan (Ryan) on August 31, 2012, in Case
02–CA–088471, Region 2 of the NLRB issued a complaint and
notice of hearing on February 28, 2013, alleging that JP Mor-
gan Chase Co. and JP Morgan Chase Bank, N.A., joint employ-
ers, violated Section 8(a)(1) of the Act by promulgating, main-
taining and enforcing individual binding arbitration agreements
(BAA) requiring employees to maintain as a condition of em-
ployment the signing of such agreements and by filing a motion
in US District Court to dismiss a collective lawsuit filed by
Ryan individually and collectively.

3 We therefore find no need to address other issues raised by the Re-
spondents’ exceptions. We also find no need to pass on the General
Counsel’s motion to remand this case for dismissal, which is moot in
light of this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Pursuant to charges filed on February 11, 2013, Robert M.
Johnson (Johnson), Jennifer Zaat-Hetelle (Zaat-Hetelle), Scott
Van Hoogstraat (Van Hoogstraat), and Peter Piccoli (Piccoli),
collectively referred to as Charging Parties, in Case 02–CA–
098118, the Director issued a complaint and notice of hearing
on April 3, 2013, alleging that JP Morgan Chase Co. and Chase
Investment Services Corp., now doing business as JP Morgan
Securities, LLC, joint employers, violated Section 8(a)(1) of the
Act by maintaining and enforcing the identical individual bind-
ing arbitration agreements (BAA) as alleged in Case 02–CA–
088471, requiring employees as a condition of employment the
signing of such BAAs and by filing a motion in the US District
Court for the Southern District, seeking to dismiss or stay a
class action, which Charging Parties had joined as plaintiffs,
and to compel the Charging Parties to arbitrate these claims
pursuant to the terms of the BAA.
On April 25, 2013, the Director issued an order consolidating
the two cases for hearing.
Answers were subsequently filed by Respondent to the com-
plaint allegations, described above, and the trial was held be-
fore me on May 30, 2013 in New York, New York.
At the opening of the trial, General Counsel made a motion
to withdraw the charge and complaint filed in Case 02–CA–
088471 and that it be severed and returned to the Director for
further processing. The motion was granted, and Case 02–CA–
088471 was severed and remanded to the Director for further
action.
The trial resumed with respect to the allegations in Case 02–
CA–098118, which was completed on May 30, 2013, principal-
ly based on a stipulated record.
Briefs have been filed and have been carefully considered.
Based upon the briefs and the entire record, I find as follows:
I. JURISDICTION
Respondent admits, and I find, that JP Morgan Chase Co.
and Chase Investment Services Corp. (CISC) (collectively
called Respondent) were joint employers of the Charging Par-
ties and other employees employed by CISC and has been en-
gaged in the business of providing investment banking services,
derived gross revenues in excess of $500,000 and performed
services valued in excess of $50,000 in states other than the
State of New York and for enterprises within the State of New
York.
Respondent admits, and I so find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. RELATED CASE: RYAN V. JP MORGAN CHASE, N.A.
As noted above, Tiffany Ryan filed a charge in Case 02–
CA–088471, resulting in a complaint, alleging that JPMC vio-
lated Section 8(a)(1) of the Act by promulgating, maintaining
and enforcing individual binding arbitration agreements (BAA),
requiring employees to maintain as a condition of their em-
ployment the signing of such agreements and by filing a motion
in US District Court to dismiss a collective action filed by
Ryan, individually and collectively.
As also noted above, this complaint was severed from the in-
stant case at the start of this trial. However, since the allega-
tions in that case were virtually identical to the matter under
consideration, including the proposed remedies, it is useful to
detail the status and decision of the federal district judge in the
Ryan federal court proceeding.
In that proceeding, Case 12-CV-4844-VB, Ryan had filed a
collective action, alleging that JPMC violated the Fair Labor
Standards Act (FLSA) by failing to compensate Ryan and oth-
ers similarly situated for lawful overtime wages.
JPMC moved to dismiss the action and to compel arbitration
of Ryan’s claim on an individual basis pursuant to the Federal
Arbitration Act (FAA).
Judge Vincent Bricetti issued a memorandum decision on
February 21, 2012, granting JPMC’s motion to dismiss the
action and ordering arbitration under the BAA.
The decision issued by Judge Briccetti found that Ryan had
signed the BAA on March 11, 2010, which conditioned her
employment on agreement to the terms of the BAA, which is
the identical BAA as the BAAs signed by the Charging Parties
in the instant case.
The judge, in granting the motion to dismiss and to compel
arbitration, considered the arguments raised by Ryan’s counsel
that the BAA was unenforceable because it violated the Nation-
al Labor Relations Board based on D.R. Horton, 357 NLRB
184 (2012), the case relied on here by General Counsel in as-
serting that Respondent's conduct violated the Act.
Judge Briccetti rejected the assertions of Ryan in that regard,
concluding that the NLRA does not determine whether Ryan
has a right to bring a collective action and stated that he is join-
ing with “numerous other courts . . . in rejecting the reasoning
of D.R. Horton,” Owen v. Bristol Care, 703 F.3d 1050 (8th Cir.
2013).
III. FACTS
The Charging Parties, herein, Johnson, Piccoli, Van
Hoogstraat, and Zaat-Hetelle, were employed by Respondent at
the following locations: Zaat-Hetelle at Huntington Beach,
California; Van Hoogstraat at Mesa, Arizona; Piccoli at Mel-
bourne, Florida; and Johnson at Garland, Texas.
Since August 31, 2009, Respondent has issued to its employ-
ees copies of the BAA and has required its employees to enter
into the BAA as a condition of their employment. The Charging
Parties and Respondent entered into the BAAs on the following
dates: Zaat-Hetelle on August 31, 2009; Van Hoogstraat on
March 31, 2010; Piccoli on June 21, 2010; and Johnson on June
28, 2010. The BAAs signed by the Charging Parties were part
of a document executed by the Charging Parties entitled, “Su-
pervision Arbitration, Confidentiality and Non-Solicitation
Agreement,” which employees must sign as a condition of hire.
The BAAs executed by the Charging Parties and maintained
and enforced by Respondent as a condition of employment for
its employees throughout the United States contained the fol-
lowing terms:
Binding Arbitration Agreement
JPMorgan Chase believes that if a dispute related to an em-
ployee’s or former employee’s employment arises, it is better
for both the individual and JPMorgan Chase to resolve the
dispute without litigation. Most such disputes are resolved in-
ternally through the Firm’s Open Communication Policy.
JP MORGAN CHASE & CO. 3
When such disputes are not resolved internally, JPMorgan
Chase provides for their resolution by binding arbitration as
described in this Binding Arbitration Agreement (“Agree-
ment”). “JPMorgan Chase” and the “Firm” as used in this
Agreement mean JPMorgan Chase & Co. and all of its direct
and indirect subsidiaries.
As a condition of and in consideration of my employment
with JPMorgan Chase & Co. or any of its direct or indirect
subsidiaries, I agree with JPMorgan Chase as follows:
1. SCOPE: Any and all “Covered Claims” (as defined be-
low) between me and JPMorgan Chase (collectively “Cov-
ered Parties” or “Parties”, individually each a “Covered Par-
ty” or “Party”) shall be submitted to and resolved by final and
binding arbitration in accordance with this Agreement.
2. COVERED CLAIMS: “Covered Claims” include all le-
gally protected employment-related claims that have or in the
future may have against JPMorgan Chase or its officers, di-
rectors, shareholders, employees or agents which arise out of
or relate to my employment or separation from employment
with JPMorgan Chase and all legally protected employment-
related claims that JPMorgan Chase has or in the future may
have against me, including, but not limited to, claims of em-
ployment discrimination or harassment on the basis of race,
color, gender, national origin, citizenship status, creed, reli-
gion, religious affiliation, age, marital status, sexual orienta-
tion, gender identity, disability, veteran status, if protected by
applicable federal, state or local law or any other characteristic
so protected, and retaliation for raising discrimination or har-
assment claims, failure to pay wages, bonuses or other com-
pensation, tortuous acts, including, but not limited to, defama-
tion, negligent hiring or supervision, intentional or negligent
infliction of emotional distress, wrongful arrest, malicious
prosecution, wrongful imprisonment, breach of privacy, tor-
tious interference, and fraudulent inducement, wrongful, retal-
iatory and/or constructive discharge, breach of an express or
implied contract, breach of a covenant of good faith and fair
dealing, promissory estoppel, unjust enrichment, and viola-
tions of any other common law, federal, state, or local statute,
ordinance, regulation or public policy, including, but not lim-
ited to Title VII of the Civil Rights Act of 1964, the Civil
Rights Acts of 1866 and 1991, the Age Discrimination in
Employment Act of 1967, the Older Workers Benefit Protec-
tion Act of 1990, the Rehabilitation Act of 1973, the Ameri-
cans with Disabilities Act of 1990, the Family and Medical
Leave Act of 1993, the Fair Labor Standards Act of 1938, the
Equal Pay Act of 1963, Section 1981 of the Civil Rights Act,
the Worker Adjustment and Retraining Notification Act, and
the Sarbanes-Oxley Act of 2002.
3. EXCLUDED CLAIMS: This Agreement does not cover,
and the following claims are not subject arbitration under this
Agreement:
(a) any criminal complaint or proceeding, (b) any claims cov-
ered by state unemployment insurance, state or federal disa-
bility insurance, and/or state workers’ compensation benefit
laws, except that claims for retaliation pursuant to these laws
shall be subject to arbitration under this Agreement, (c) any
claim under the National Labor Relations Act, and (d) claims
for benefits under a plan that is governed by ERISA.
. . .
4. CLASS ACTION/COLLECTIVE ACTION WAIVER:
All Covered Claims under this Agreement must be submitted
on an individual basis. No claims may be arbitrated on a class
or collective basis. Covered Parties expressly waive any right
with respect to any Covered Claims to submit, initiate, or par-
ticipate in a representative capacity or as a plaintiff, claimant
or member in a class action, collective action, or other repre-
sentative or joint action, regardless of whether the action is
filed in arbitration or in court. Furthermore, if a court orders
that a class, collective, or other representative or joint action
should proceed, in no event will such action proceed in the
arbitration forum. Claims may not be joined or consolidated
in arbitration with disputes brought by other individual(s), un-
less agreed to in writing by all parties.
The arbitrator's authority to resolve disputes and make awards
under this Agreement is limited to disputes between: (i) an in-
dividual and JPMorgan Chase; and (ii) the individual and any
current or former officers, directors, employees and agents, if
such individual is sued for conduct within the scope of their
employment. No arbitration award or decision will have any
preclusive effect as to issues or claims in any dispute with an-
yone who is not a named party
In October and November of 2012, after the Charging Par-
ties’ employment with Respondent ended, they joined a collec-
tive action lawsuit before the United States District Court for
the Southern District of New York, alleging violations of the
Fair Labor Standards Act and captioned Jeffrey Lloyd and
Lawrence Kaufman, individually, and on behalf of all similar
situated, JP Morgan Chase Investment Services Corp., Case
No. 11-CV-9305 (LTS).
On January 14, 2013, Respondent filed a motion with the
district court in the above action, seeking to dismiss or stay the
claims of the Charging Parties and to compel them to arbitrate
those claims pursuant to terms of the BAA. The instant charges
were filed with the Board, as noted, on February 11, 2013.
Respondent's motion to dismiss and compel arbitration is
pending before the District Court as of the close of this hearing.
As also related above, an identical motion in the Ryan case,
which has initially been consolidated with his matter, was
granted by Judge Briccetti and arbitration was ordered in that
case.
IV. ANALYSIS
A. 10b
The complaint alleges that Respondent, since at least August
31, 2009, and at all material times, has promulgated and main-
tained and enforced BAAs with current and former employees,
which include provisions that restrict employees from joining
or participating in a class action or a collective action, regard-
less of whether the action is filed in arbitration or in court. The
complaint further alleges that, since at least 2009 and at all
material times herein, Respondent has required employees to
enter into the BAA as a condition of employment upon hire.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The complaint then alleges that on various dates in 2009 and
2010, the Charging Parties entered into these BAAs, as de-
scribed above, as conditions of their employment.
The complaint goes on to allege that on various dates from
November of 2012 through January of 2013, the Charging Par-
ties joined a collective lawsuit in the U.S. District Court South-
ern District of New York, alleging violations of the Fair Labor
Standards Act (FLSA), entitled Jeffrey Lloyd and Lawrence
Kaufman v. JP Morgan Chase & Co., and that on January 14,
2013, Respondent's motion in the US federal district court, in
proceedings detailed above, seeks to dismiss or stay the claims
of the Charging Parties and compel them to arbitrate their
claims pursuant to the terms of the BAA.
The complaint further alleges that Respondent's conduct, de-
scribed above (promulgating, maintaining and enforcing the
BAAs and requiring employees, including the Charging Parties,
to enter into the BAAs as a condition of their employment and
filing the motion in court to dismiss Charging Parties’ claims
and to compel them to arbitrate) interfered, restrained, and co-
erced employees in the exercise of rights guaranteed by Section
7 of the Act in violation of Section 8(a)(1) of the Act.
Respondent raises the affirmative defense of Section 10(b)
and argues that the entire complaint must be dismissed since
the Charging Parties were hired in 2009 and 2010, well outside
the 6-month 10(b) period and that they signed the BAAs as a
condition of their employment, also well outside the 10(b) peri-
od.
Thus, Respondent quotes the language of Section 10(b) that
“no complaint shall issue based on any unfair labor practice
occurring more than six months prior to the filing of the charge
with the Board,” and asserts that since the acts alleged as unfair
labor practices, all relate to 2009 and 2010 hires of the Charg-
ing Parties and these events are well outside the 10(b) period,
that the entire complaint must be dismissed.
I cannot agree.
While the complaint as drafted, and as set forth above, could
reasonably be construed as alleging that pre-10(b) conduct,
described above, constituted unfair labor practices, General
Counsel made clear during opening statement discussions that
it was not alleging that the pre-10(b) events (the hiring of the
Charging Parties and conditioning their employment on signing
the BAAs) was violative of the Act, implicitly conceding that
these events were outside the 10(b) period and not subject to
attack as independent unfair labor practices.
General Counsel asserted at trial and in its brief that it is in-
stead contending that Respondent's continued enforcement of
the BAA within the 10(b) period, including requiring employ-
ees to enter into BAAs as a condition of their employment as
well as Respondent's conduct in filing its motion in federal
court to dismiss Charging Parties’ collective action and to com-
pel arbitration, pursuant to the BAA, is violative of the Act and
not barred by Section 10(b) of the Act.
I construe General Counsel’s statements at trial as an implicit
withdrawal of any allegation that the pre-10(b) conduct of Re-
spondent was independently violative of the Act, which I shall
grant. To the extent that such comments are not construed as a
request to complaint allegations, I agree with Respondent that
Section 10(b) would bar a complaint allegations attacking its
pre-10(b) conduct (hiring Charging Parties and compelling
them to sign the BAAs as a condition of their employment) and
to the extent that the complaint alleges that such conduct is
unlawful, it must be dismissed.
However, the complaint also alleges that “at all times mate-
rial,” Respondent has maintained and enforced the BAAs and
required its employees to enter into the BAAs as a condition of
their employment, this phrase makes it clear that Respondent's
conduct within the 10(b) period, i.e. 6 months from filing of the
charge of maintaining and enforcing the BAAs as a condition
of employment of its employees, was at issue, and Respondent
was so informed during trial. Further, Respondent's conduct of
filing the motion in court to dismiss the collective action of the
Charging Parties and to compel them to arbitrate individually
under the terms of the BAA, clearly occurred within the 10(b)
period on January 14, 2013.
The issue then becomes whether General Counsel is barred
by 10(b) in attacking this conduct as well. Respondent argues
that 10(b) does bar these complaint allegations based on Local
Lodge 1424 v. NLRB (Bryan Mfg.), 362 U.S. 411 (1960), where
the Supreme Court invalidated unfair labor practice findings,
which are “inescapably grounded on events predating” the 6-
month period. Id at 422. Respondent argues that under D.R.
Horton these complaint allegations depend on the circumstanc-
es at the time that the BAA was entered into, i.e. whether the
Charging Parties voluntarily entered into the BAA or were
compelled to do so as a condition of employment. Therefore,
Respondent argues that because the Charging Parties entered
into the BAAs outside the 10(b) period, the complaint allega-
tion with respect to maintenance of the BAA and motion to
compel arbitration as in Bryan is an effort to revise a “legally
defunct unfair labor practice.” Id at 416–417.
However, these contentions ignore the fact that the complaint
alleges, as noted, that Respondent “at all times material,” i.e.
within the 10(b) period, maintained and enforced the BAA for
its employee as a condition of their employment. Thus, this
conduct is not inescapably grounded in the pre-10(b) events of
the hiring of the Charging Parties and is, in fact, not dependent
on these events at all. I, therefore, reject Respondent’s conten-
tion that bars the complaint allegation that Respondent main-
tained and enforced the BAA as a condition of employment of
its employees.
Turning to the complaint allegation that Respondent violated
the Act by filing a motion to dismiss the Charging Parties’
court action and to compel arbitration based on the BAA, I
agree with General Counsel that this allegation is not barred by
Section 10(b) of the Act since it clearly occurred within the
10(b) period.
I do not agree with Respondent's contention that since D.R.
Horton based its finding of a violation on the fact that the BAA
was entered into as a condition of employment and specifically
declined to rule on whether such an agreement would violate
the Act if it were not entered as a condition of employment,1
that the allegations relating to the lawsuit depend on the cir-
cumstances existing at the time the BAA was entered into and
cannot be utilized to “revise a legally defunct unfair labor prac-

1 357 NLRB 184, 196 fn. 28.
JP MORGAN CHASE & CO. 5
tice.”
Respondent’s argument misses two essential points. Here,
the lawfulness of Respondent’s conduct in filing the motion to
enforce the BAA does not depend on the circumstances existing
at the time that Charging Parties executed the BAAs since the
BAAs on its face are unlawful as it requires that employees
enter into it as a condition of their employment. Therefore, in
such circumstances, the enforcement of such a contractual pro-
vision inside the 10(b) period is not barred by Section 10(b) of
the Act, even though the contract was entered into outside the
10(b) period. Teamsters Local 293 (R.L. Lipton Distributing),
311 NLRB 538, 539 (1993) (provision requiring extra payment
of 45 cents per hour to shop stewards); Great Lakes Carbon
Corp., 152 NLRB 988, 989–900 (1965) (provision providing
for superseniority for strikers); Whiting Milk Corp., 145 NLRB
1035, 1037–1038 (1964) (unlawful seniority provision in con-
tract executed outside 10(b) period but enforced inside the
10(b) period); Prestige Bedding Co., 212 NLRB 690, 698
(1974) (discriminatory provision in contract providing benefits
for only union members executed outside the 10(b) period,
unlawful on its face and does not bar unfair labor practice based
on continued enforcement of contractual provision within 10(b)
period).
Further, it is well-established that unlawful rules maintained
by employers inside the 10(b) period can be found to be unlaw-
ful, even where the rules were adopted or promulgated outside
the 10(b) period. Carney Hospital, 350 NLRB 627, 627, 640
(2007) (handbook rules maintained and enforced within 10(b)
period although adopted more than 6 months prior to filing of
charge); Automakers, Local 148 (McDonnell-Douglas), 296
NLRB 970, 977 (1989) (provision in union’s constitution un-
lawful and maintenance and enforcement unlawful during the
six-months period prior to filing of charges); American Cast
Iron Pipe Co., 234 NLRB 1126, 1127 fn. 1 (1978) (mainte-
nance and enforcement of unlawful no solicitation, no distribu-
tion rule not barred by 10(b) although rule promulgated outside
10(b) period).
Indeed, even if the rules were not enforced during the 10(b)
period, the mere existence of the rule can be found to be unlaw-
ful since the existence of such rules tends to interfere with em-
ployee rights. Carney Hospital, supra at 640; TeleTech Hold-
ings, 333 NLRB 402, 403 (2001); Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
Finally, I note that a review of the facts in D.R. Horton sup-
port the conclusion that 10(b) does not bar the complaint alle-
gations here. Although 10(b) was not discussed therein, and it
was presumably not raised as a defense, the facts were remark-
ably similar to the facts here. In D.R. Horton, the charging par-
ty, Michael Cuda, was employed by D.R. Horton from July
2005 to April 2006 and his employment was conditioned on
signing a mandatory arbitration agreement (MAA), which he
did. In 2007, well after his employment ceased at D.R. Horton,
Cuda’s attorney notified D.R. Horton that his firm has been
retained to present Cuda and a nationwide class of similarly
situated superintendants. The attorney asserted that D.R. Hor-
ton was misclassifying its superintendents as exempt from the
protections of the FLSA and gave notice of intent to initiate
arbitration. D.R. Horton’s counsel replied that the attorney had
failed to give effective notice of intent to arbitrate, citing the
language in the MAA that bars arbitration of collective claims.
The Board concluded, therein, that D.R. Horton had violated
Section 8(a)(1) of the Act by maintaining the MAA as a condi-
tion of employment for its employees, even though the charg-
ing party, Cuda, had executed his MAA well outside the 10(b)
period and was, as is the case with Charging Parties, here, no
longer employed by D.R. Horton, the respondent, therein. I,
therefore, find D.R. Horton supportive of my conclusion and
analysis, set forth above, that 10(b) does not bar the complaint
allegations in the instant case.
Accordingly, I reject Respondent's 10(b) defense and shall
proceed to decide these complaint allegations on the merits.
B. Respondent’s Maintenance of the BAA and Requiring Em-
ployees to Waive Rights to Pursue Collective Employment-
Related Claims Collectively
The facts are undisputed that Respondent has maintained and
required its employees as a condition of their employment to
sign BAAs that preclude them from pursuing class actions in
either arbitral or court forums and must be resolved solely on
an individual basis in arbitration.
Such conduct by employers has been found by the Board in
D.R. Horton, supra to be unlawful because it interferes with
employees’ exercise of Section 7 rights, the right to engage in
protected concerted activity and that the right to engage in class
or collective action on work-related claims constitutes protected
activity. The Board concluded that “these forms of collective
efforts to redress workplace or improve workplace conditions
are at the core of what Congress intended to protect by adopting
the broad language of Section 7.” Id at slip op. at 3.
The Board further concluded that since the MAA in D.R.
Horton required employees as a condition of employment to
refrain from bringing collective or class claims in any forum
that the MAA “clearly and expressly bars employees from ex-
ercising substantive rights that have long been protected by
Section 7 of the NLRA.” Id at slip op. at 4.
The Board goes on to conclude that D.R. Horton violated the
Act by requiring employees as a condition of their employment
to execute the BAAs and by maintaining such agreements.
General Counsel asserts that D.R. Horton is dispositive and
based on that decision I must find that Respondent has violated
Section 8(a)(1) of the Act by engaging in virtually the same
conduct as the employer in D.R. Horton. I agree.
Respondent makes a number of arguments and contentions
as to why I should not follow D.R. Horton and should instead
dismiss these complaint allegations. I find none of these con-
tentions persuasive.
Respondent argues that factually the BAA, here, is distin-
guishable from the MAA found to be unlawful in D.R. Horton
in that it contemplates that a court could order a class action to
proceed in court, and if so, that the claim cannot be pursued in
arbitration. This assertion is based on the language in the BAA,
set forth above in the facts, which states that if a court orders a
class action to proceed, the action should proceed in an arbitra-
tion forum. This clause appears to be related to the severability
clause, Section 8, set forth below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
8.·SEVERABILITY: If any part of this Agreement is held to
be void or unenforceable, the remainder of the Agreement
will be enforceable and any part may be severed from the re-
mainder as appropriate, except that with regard to any Party
seeking to bring a claim on behalf of a class or other repre-
sentative action, only a court with jurisdiction over the parties
may issue a determination regarding the enforceability of the
waiver in Paragraph 4 of this Agreement above, and if a court
finds any waiver of same to be invalid, then the arbitration
provisions stated in this Agreement do not apply. According-
ly, if for any reason the class action, collective action, and rep-
resentative or other joint action waiver is found to be unen-
forceable, the class action, collective action, or other repre-
sentative or joint action claim may only be heard in court and
may not be arbitrated under this Agreement.
I do not find these sections of the BAA, in any way, affect
the ultimate conclusion in D.R. Horton that the provisions of
the BAA interfere with Section 7 rights of employees, i.e. the
right to pursue and participate in class actions. I cannot agree
with Respondent's characterization that the BAA “contem-
plates” court ordering class action proceedings. These clauses
merely assert that should a court do so, arbitration cannot be
used on a class basis. In any event, whether the BAA men-
tioned the possibility or not, a court could also find the waiver
unenforceable, refuse to enforce the BAA and proceed to hear
the class action suit. Thus, the statement in the BAA does not
“contemplate” such an action but merely stresses that whether
that occurs or not, arbitration cannot be used for a collective
action.
Thus, the BAA still clearly inhibits and interferes with Sec-
tion 7 conduct despite this clause. Respondent is still insisting
that employees waive their rights to pursue class actions in
court or arbitrations as a condition of their employment, which
runs afoul of D.R. Horton and must be found unlawful. I so
find.
Respondent also notes that D.R. Horton can be distinguished
due to the fact that the BAA here, unlike in D.R. Horton, spe-
cifically excluded claims arising under the NLRA and protects
employees’ rights to file NLRB charges. While it is true that
the Board in D.R. Horton found that the MAA there could rea-
sonably be construed as restricting rights to file NLRB charges,
this was an independent ground for finding the MAA to be
unlawful, and the General Counsel has made no such assertion
here.
The BAA is unlawful, here, not because it restricts or bars
filing of NLRB charges, but because it interferes with and re-
stricts employees engaging in protected concert conduct. There-
fore, this distinction between D.R. Horton is insignificant, and
the inclusion of the clause concerning the right to file NLRB
charges in no way effects the violation of the Act encompassed
by the complaint that employees are precluded from pursuing
class actions in all forums, whether arbitral or judicial.
Respondent also makes procedural contentions that the
Board had no authority to decide D.R. Horton because Member
Becker’s recess appointment was invalid and under the authori-
ty of Noel Canning v. NLRB, 705 F.3d 490 (DC Cir. 2013), and
that D.R. Horton was also invalid because, even if Member
Becker’s appointment had been constitutional, it was issued by
only two members without delegation to a 2-member Board,
and that Member Hayes recued himself from participating.
Thus, Respondent contends New Process Steel2 makes D.R.
Horton invalid.
I reject both of these contentions by Respondent. D.R. Hor-
ton has not been overruled and remains Board law, which I
must follow, unless and until it is overturned by the Supreme
Court or reversed by the Board itself.
The Board has considered the argument based on Noel Can-
ning in numerous cases and held that Noel Canning has been
rejected by some other circuits, and the question is still in liti-
gation,3 and pending a definitive resolution, the Board is
charged with fulfilling its responsibilities under the Act. Bel-
grove Post Acute Care, 359 NLRB 633 fn. 1 (2013); Target
Co., 359 NLRB 953 fn. 1 (2013).
Accordingly, I reject these procedural objections raised by
Respondent and conclude that D.R. Horton is still Board law
and requires a finding that Respondent has violated the Act as
alleged.
Finally, Respondent makes a further argument that D.R. Hor-
ton was wrongly decided and should be overturned. It notes that
since D.R. Horton numerous federal and state court decision
that have considered D.R. Horton since its January of 2012
decision have rejected it, including Owen v. Bristol Care, 702
F.3d 1050 (8th Cir. 2013) and Ryan v. JP Morgan Chase, su-
pra, discussed above. Respondent contends that that NLRB has
overstepped its authority in attempting to outlaw mandatory
arbitration agreements, which are intended to govern non-
NLRB claims. It raised a number of arguments in support of
these contentions, spending a number of pages in its brief citing
Supreme Court cases as well as circuit court decisions support-
ing its position. I shall not and need not discuss these argu-
ments or review these precedents. Suffice to say that the Board
in D.R. Horton carefully considered and rejected these conten-
tions in D.R. Horton, and I am bound by that determination. It
is true, as Respondent points out, that a number of post-D.R.
Horton court decisions have specifically rejected D.R. Horton’s
analysis, including the recent 8th Circuit decision in Owen v.
Bristol Care. Indeed, D. R. Horton itself is under review and
has been argued before the 5th Circuit, where a Noel Canning
argument has also been raised concerning the validity of that
decision.
Based on the above, it is not inconceivable that the Board
will have an opportunity to revisit and perhaps change its mind
about D.R. Horton if D.R Horton were to be remanded based
on Noel Canning or on the merits by the court. It is more likely
that this decision will be before the Board before any of these
events occur.
In any event, the arguments made by Respondent as to why
D.R. Horton was wrongly decided, including its rejection by
courts, must be made directly to the Board and not to me. As I
observed above, I am bound by D.R. Horton and unless and
until the Supreme Court overturns it or the Board itself does so,

2 130 S.Ct. 2635 (2010).
3 Indeed, the Supreme Court on June 24, 2013, granted the petition
for certiorari to review Noel Canning.
JP MORGAN CHASE & CO. 7
I must follow it and shall do so. Since I have concluded, as
discussed above, that based on D.R. Horton’s analysis and con-
clusions, Respondent has violated 8(a)(1) of the Act by main-
taining a mandatory arbitration agreement that waives the right
to maintain class or collective actions in all forums, whether
arbitral or juridical, I reaffirm that conclusion, and I find that
Respondent has so violated the Act.
C. Respondent’s Filing the Motion to Dismiss the Court Col-
lective Action and to Compel Individual Arbitration
It is undisputed that on January 14, 2013 (approximately a
year after the Board issued D.R. Horton), Respondent filed a
motion to dismiss or stay the Charging Parties’ federal court
collective claim, alleging violations of the FLSA, and to com-
pel the charging parties to litigate their claims individually
pursuant to the terms of the BAA.
General Counsel asserts and the complaint alleges that this
conduct is further violative of Section 8(a)(1) of the Act. D.R.
Horton, supra; Lutheran Heritage Village, 343 NLRB 646
(2004).
Respondent argues that these complaint allegations must be
dismissed because they violate Respondent's First Amendment
rights to petition the federal court in defense of the FLSA
claims, which the Charging Parties have made in that court. Bill
Johnson’s v. NLRB, 461 U.S. 731, 741 (1983); BE&K Con-
struction, 536 U.S. 516 (2002).
In Bill Johnson’s, as extended by BE&K, the Supreme Court
concluded that the NLRA does not prohibit lawsuits filed in
state or federal courts, whether completed or still in process,
unless it is both objectively baseless and undertaken with a
retaliatory motive.
The Board, in assessing BE&K Construction, concluded in
accordance with these cases that the Act prohibits only lawsuits
that are both objectively and subjectively baseless in order to
avoid chilling the fundamental First Amendment right to peti-
tion. BE&K Construction, 351 NLRB 451, 457–458 (2007);
Ray Angelini, 351 NLRB 206 (2007).
In considering the issue of whether a lawsuit lacks a reason-
able basis or is “objectively baseless,” the Board applies the
standards set forth in Professional Real Estate Investors Inc. v.
Columbia Pictures Industries, 508 U.S. 49, 90 (1993), and
decides whether “no reasonable litigant could realistically ex-
pect success on the merits.” BE&K, supra at 457; Roy Angelini,
supra, 351 NLRB at 208.
I agree with Respondent that its actions in the lawsuit, here,
of seeking to dismiss the Charging Parties' collective lawsuit to
compel individual arbitration of their claims pursuant to the
terms of the BAA cannot be construed as lacking a reasonable
basis under that standard. While the Board in D.R. Horton con-
demned the employer’s conduct of compelling employees to
enter into such BAAs as violative of their Section 7 rights, that
was a decision of first impression and has not received support
from numerous state and federal courts, including the 5th Cir-
cuit Court of Appeals. Owens v. Bristol, supra and the District
Court opinion in Ryan v. JP Morgan Chase, which was initially
consolidated with the instant matters. See also Morvant v. P.F.
Change’s China Bistro, 870 F.Supp.2d 831 (ND Cal May 7,
2012); Torres v. United Health Care, 12 CV 923 (ED NY Feb.
1, 2013). Cf. Herrington v. Waterstone Mortgage Corp., 11-
CV-779-BBC-2012 WL 1242318 (WD US Mar. 16, 2012),
where a district court judge refused to enforce a class action
waiver in an arbitration agreement based on D.R. Horton.
However, that is not the end of the inquiry. In Bill Johnson’s,
the Supreme Court carved out exceptions in footnotes and the
BE&K Court left that exception undisturbed. J.A. Croson &
Co., 359 NLRB 19, 25 (2012).
The footnote is as follows:
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. Brief of Petitioner 12-13, 20; Reply Brief for
Petitioner 8. Nor could it be successfully argued otherwise,
for we have upheld Board orders enjoining unions from pros-
ecuting court suits for enforcement of fines that could not law-
fully be imposed under the Act, see Granite State Joint Board,
Textile Workers Union, 187 N.L.R.B. 636, 637 (1970), en-
forcement denied, 446 F.2d 369 (CAl 1971), rev'd, 109 U.S.
213.93 S.Ct. 385.34 L.Ed.2d 422 0972); Booster Lodge No.
405, Machinists & Aerospace Workers, 185 N.L.R.B. 380,
383 (1970), enforced in relevant part, 148 U.S.App.D.C. 119,
459 F.2d 1143 (1972), affd, 412 U.S. 84, 93 S.Ct. 1961, 36
L.Ed.2d 764 (1973), and this Court has concluded that, at the
Board's request, 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).
(461 U.S. at 737, fn. 5)
The Board has frequently applied these exceptions, set forth
in footnote 5 of Bill Johnson’s, to find lawsuits or arbitrations
violative of the Act and further concluded that BE&K does not
change the applicability of these exceptions. Sheet Metal Work-
ers, Local 27 (E.P. Donnelly), 357 NLRB 1577, 15787–1579
(2011) (union violated Act by maintaining lawsuit against em-
ployer, contrary to Board 10(k) determination; Board concludes
lawsuit has an illegal objective under Bill Johnson’s exception,
which ruling is unaffected by BE&K); Operative Plasters, Lo-
cal 200 (Standard Drywall), 357 NLRB 1921, 1923–1924
(2011) (conduct of union in filing for arbitration unlawful, con-
trary to Board’s 10(k) award and in furtherance of unlawful
objective under exception in Bill Johnson’s, which was unaf-
fected by BE&K, concludes that “here the Board has previously
ruled on a given matter, and where the lawsuit is aimed at
achieving a result that its incompatible with the Board’s ruling,
the lawsuit falls within the illegal objective exception to Bill
Johnson’s, Id at 3; J.A. Crosan, supra, (state court lawsuit inter-
fering with protected conduct of union job targeting program is
preempted and not protected by Bill Johnson’s or BE&K); Fed-
eral Security Inc., 359 NLRB 1, 4–14 (2012) (state court law-
suit alleging employees false testimony in Board proceeding
and for malicious prosecution held preempted and that footnote
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
5 in Bill Johnson’s has not been affected by BE&K); Allied
Trades Council (Duane Reade Inc.), 342 NLRB 1010, 1013 fn.
4 (2004) (union violated Act by seeking through arbitration to
apply its collective bargaining to employees of Duane Reade
without majority support and to force Duane Reade to recog-
nize it in a unit, contrary to unit established by Director; Board
concludes that such conduct is violative of Act and litigation
with unlawful objective; it further notes BE&K does not affect
the footnote 5 exemption in Bill Johnson’s); Teamster’s, Local
776 (Rite Aid Corp.), 305 NLRB 832, 835 (1991) (union violat-
ed Act by seeking judicial enforcement in federal court of an
arbitration award in direct conflict with Board’s UC determina-
tion; Board applied the illegal objective exception in footnote 5
in Bill Johnson’s); Teamsters, Local 952 (Pepsi Cola Bottling);
305 NLRB 263, 269 (1991) (union violated Act by maintaining,
processing and insisting on arbitration of grievances, including
filing district court suit to compel arbitration, had an unlawful
objective since it sought to undermine Board’s prior decision in
presentation case; Bill Johnson’s does not apply in view of
exception in footnote 5 for lawsuits with objective that are ille-
gal as a matter of federal law); Elevator Constructors (Long
Elevator), 289 NLRB 1095, 1096 (1988) (union filing a griev-
ance based on a contract clause in violation of Section 8(e) of
Act violates 8(b)(ii)(a) of the Act; Bill Johnson’s inapplicable
since suit has an objective illegal under federal law); Laundry
Workers, Local 3 (Virginia Cleaners), 275 NLRB 697 (1985)
(union filing state court suit to collect fines against employees,
who resigned from union, violative of Act, and Bill Johnson’s
inapplicable since suit has unlawful objectives); Teamsters,
Local 705 (Energy Air Freight), 278 NLRB 1303, 1304–1305
(1986) (union violated Act by filing and enforcing grievance
against employer in district court since it has unlawful second-
ary objective inasmuch as union never represented employees
and no legitimate work preservation objective; this grievance
and attempt to enforce it in court has unlawful objective and
Bill Johnson’s inapplicable).
It is, thus, clear, based on the above precedent, that footnote
5 in Bill Johnson’s is still applicable and has not been changed
or modified by BE&K. Therefore, the exceptions therein, if
applicable, preclude reliance on Bill Johnson’s or BE&K to
warrant dismissal of the complaint here.
The preemption exception is not applicable, here, since the
action was filed in federal court, and not state court, but the
unlawful objective exception is clearly present.
In that regard, Respondent argues that an illegal objective of
Respondent's cannot be found, here, since that “argument pre-
supposes the answer to an issue that the Charging Parties have
presented to a federal court to decide whether the BAA is en-
forceable under the FAA despite D.R. Horton. The Board can-
not usurp the jurisdiction of the federal court to decide that
issue. Moreover, seeking to compel arbitration based on the
BAA cannot be an illegal objective because the same federal
court has already rejected D.R. Horton and found that the BAA
is lawful and enforceable under the FAA. See Ryan v. JP Mor-
gan Chase & Co., No. 12-4844-VB (SD NY Feb. 22, 2012).
I cannot agree. D.R. Horton is still Board law and has not
been overturned by the Supreme Court, or indeed, by any court.
While some courts, including the district court in Ryan and the
8th Circuit Court in Owens v. Bristol, disagreed with D.R. Hor-
ton and enforced similar BAAs, despite that Board’s view that
these agreements interfere with Section 7 rights of employees,
these decisions are not binding on the Board or on me.
They do suggest, as I have stated above, the possibility that
D.R. Horton may be overruled or remanded to the Board or
reconsidered by the Board. But until these events occur or the
Supreme Court overrules it, D.R. Horton is binding upon me.
Pathmark Stores, 342 NLRB 378 fn. 1 (2004).
I conclude that Respondent's conduct has an unlawful objec-
tive since it is contrary to D.R. Horton as well as Lutheran
Heritage (enforcing unlawful rule, which explicitly restricts
protected conduct). Thus, the Board has ruled on this matter,
and the lawsuit is aimed at achieving a result that is incompati-
ble with the Board’s ruling and falls within the “illegal objec-
tive” exception to Bill Johnson’s, which is unaffected by BE&K
(Standard Drywall), supra at 1923; E.P. Donnelly, supra, 357
NLRB at 2.
I would also note that the Supreme Court’s decision in Bill
Johnson’s, in footnote 5, specifically made reference to two
cases as examples, where the lawsuit had an unlawful objective
and were not subject to the analysis of the decision (baseless
lawsuit and retaliatory motive). The Court cited its own deci-
sions in Granite State Board, supra and Booster Lodge No. 405,
supra, which were cases enforcing Board decisions concerning
the legality of unions fining members, who had resigned from
the union, for crossing a picket line. These decisions involved
unsettled law as, indeed, the Court of Appeals in Granite City
had found no violation of the Act and had reversed the Board.
The Court cited these cases as examples of cases, where the
unlawful motive exception applies. See also Local 776, Team-
sters v. NLRB, 973 F.2d 230, 235–237 (3rd Cir. 1992), affirm-
ing that illegal objective is not the same as retaliatory motive.
Therefore, since here, the Board has concluded in D.R. Hor-
ton that the MAA (on its face) explicitly restricts Section 7
activity, any attempt to enforce such agreements, in court or in
arbitration falls within the unlawful objective exception in Bill
Johnson’s and can be condemned as violative of the Act. I so
find.
Accordingly, based on the foregoing analysis and precedent,
I conclude that Respondent has further violated Section 8(a)(1)
by enforcing its BAA by filing a motion in federal court, seek-
ing to dismiss or stay the Charging Parties’ class action lawsuit
and to compel individual arbitration pursuant to the BAA.
CONCLUSIONS OF LAW
(1) JP Morgan Chase & Co. and Chase Investment Services
Corp., doing business as JP Morgan Securities, LLC, joint em-
ployers, (Respondent) is and has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
(2) By maintaining a binding arbitration agreement that
waives the right to maintain class or collective actions in all
forums, whether arbitral or judicial, Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and has violated Section
8(a)(1) of the Act.
(3) By seeking to enforce its Binding Arbitration Agreement
JP MORGAN CHASE & CO. 9
(the Agreement) by filing a motion in federal district court to
dismiss or stay the Charging Parties from collective action and
to compel individual arbitration, pursuant to the terms of the
Agreement, Respondent engaged in unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and (7) of
the Act and has violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from and to take certain affirmative action designated to effec-
tuate the policies of the Act.
Respondent will be ordered to rescind or revise its BAA to
make it clear to its employees that the agreement does not con-
stitute a waiver in all forums of their right to maintain employ-
ment-related class or collective actions and to notify its em-
ployees of the rescinded or revised agreement to include
providing them a copy of the revised agreement or specific
notification that the agreement has been rescinded.
Additionally, since the BAA has been maintained in loca-
tions throughout the country, it is appropriate to order that Re-
spondent post the attached notice at all locations, where the
unlawful BAA has been or is in effect nationwide. Target Co.,
359 NLRB 953, 955 (2013); MasTec Advanced Technologies,
357 NLRB 103, 109 (2011).
Respondent shall also be required to reimburse the Charging
Parties for any litigation expenses directly related to opposing
Respondent's motion to dismiss or stay the court action and to
compel arbitration or any other legal action taken to enforce the
BAA plus interest. Interest is to be computed in the manner
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 8 (2010), enf. denied on other grounds sub. nom.,
Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (DC Cir.
2011). Such a remedy is standard in cases, where the respond-
ents have filed unlawful lawsuits or arbitrations under Board
law. Federal Security, supra, 359 NLRB at 14; Standard Dry-
wall, supra, 357 NLRB at 5; Duane Reade, supra, 342 NLRB at
1015.
Finally, it also is appropriate to recommend that Respondent
be required to file a motion with the U.S. District Court in the
Southern District of New York, an action involving Charging
Parties, asking to withdraw its motion to dismiss or stay their
claims and to compel arbitration of these claims. Federal Secu-
rity, supra, 359 NLRB 1, 14 fn. 123; E.P. Donnelly, supra, 357
NLRB 1577, 1581; Standard Drywall, supra, 357 NLRB 1921,
1924; Webco Industries, 337 NLRB 361, 365–366 (2001); Rite
Aid, supra, 305 NLRB 832, 835–836, enf. 973 F.2d 230 (3rd
Cir. 1992); Duane Reade, supra, 342 NLRB at 1013, 1014.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4

4 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.
ORDER
A. The Respondent, JP Morgan Chase & Co. and Chase In-
vestment Services Corp., doing business as JP Morgan Securi-
ties, LLC, joint employers, its officers, agents and representa-
tives shall
1. Cease and desist from
(a) Maintaining or enforcing a binding arbitration agreement
(the Agreement) that waives the right to maintain class or col-
lective action in all forums, arbitral and judicial.
(b) Enforcing such agreements by filing motions in court to
dismiss or stay collective action lawsuits or arbitrations and to
compel individual arbitration, pursuant to the terms of the
Agreement.
(c) Requiring employees to sign binding arbitration agree-
ments that prohibit collective and class litigation in all forums,
arbitral and judicial.
(d) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 7 days after the Board Order, file a motion with
the United States District Court in Case No. 11-CV-9305
(LTS), asking to withdraw its motion to dismiss or stay the
claims of Robert M. Johnson (Johnson), Jennifer Zaat-Hetelle
(Zaat-Hetelle), Scott Van Hoogstraat (Van Hoogstraat), and
Peter Piccoli (Piccoli) (collectively the Charging Parties) and to
compel arbitration of these claims or otherwise raise the
Agreement as a defense to the claims of the Charging Parties in
that action.
(b) Reimburse Johnson, Zaat-Hetelle, Van Hoogstraat, and
Piccoli for any legal and other expenses incurred related to
opposing Respondent's motion to dismiss and to compel arbi-
tration or any other legal action taken by Respondent to enforce
the Agreement, plus interest as described in the remedy section
of this decision.
(c) Rescind or revise nationwide the Binding Arbitration
Agreement to make it clear to employees that the agreement
does not constitute a waiver in all forums of their right to main-
tain employment-related class or collective actions.
(d) Notify its employees of the rescinded or revised agree-
ment by providing them a copy of the revised agreement or
specific notification that the agreement has been rescinded.
(e) Within 14 days after service by the Region, post at its
Huntington Beach, California, Mesa, Arizona, Melbourne, Flor-
ida and Garland, Texas facilities and any other facility, where
the Binding Arbitration Agreement has been in effect, copies of
the attached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region 2, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where

5 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or closed
the 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 employees employed by the
Respondent at any time since August 11, 2012.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 2 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. August 21, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce a binding arbitration
agreement (the Agreement) that waives the right to maintain
class or collective action in all forums, arbitral, and judicial.
WE WILL NOT enforce such agreements by filing motions in
court to dismiss or stay collective action lawsuits or arbitrations
and to compel individual arbitration, pursuant to the terms of
the Agreement.
WE WILL NOT require employees to sign binding arbitration
agreements that prohibit collective and class litigation in all
forums, arbitral and judicial.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of their rights
under the Act.
WE WILL within 7 days after the Board Order, file a motion
with the United States District Court in Case No. 11-CV-9305
(LTS), asking to withdraw our motion to dismiss or stay the
claims of Robert M. Johnson (Johnson), Jennifer Zaat-Hetelle
(Zaat-Hetelle), Scott Van Hoogstraat (Van Hoogstraat), and
Peter Piccoli (Piccoli) (collectively the Charging Parties) and to
compel arbitration of these claims or otherwise raise the
Agreement as a defense to the claims of the Charging Parties in
that action.
WE WILL reimburse Johnson, Zaat-Hetelle, Van Hoogstraat,
and Piccoli for any legal and other expenses incurred related to
their opposing our motion to dismiss and stay and to compel
arbitration or any other legal action taken by us to enforce the
Agreement, plus interest as described in the remedy section of
this decision.
WE WILL rescind or revise nationwide the Binding Arbitra-
tion Agreement to make it clear to employees that the agree-
ment does not constitute a waiver in all forums of their right to
maintain employment-related class or collective actions.
WE WILL notify our employees of the rescinded or revised
agreement by providing them a copy of the revised agreement
or specific notification that the agreement has been rescinded.
JP MORGAN CAHSE & CO.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-098118 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.