Labor Ready Southwest, Inc., a subsidiary of TrueBlue, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 2016

363 NLRB No. 138 (N.L.R.B. 2016)

363 NLRB No. 138
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.
Labor Ready Southwest, Inc., a Subsidiary of
TrueBlue, Inc. and Jason Kuller, Esq. of
Thierman Law Firm, P.C. Case 31–CA–072914
February 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On April 29, 2014, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The General
Counsel filed cross-exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decision in D.
R. Horton, 357 NLRB No. 184 (2012), enf. denied in
part, 737 F.3d 344 (5th Cir. 2013), that the Respondent
violated Section 8(a)(1) of the Act by maintaining an
arbitration agreement that requires employees, as a con-
dition of employment, to waive their rights to pursue
class or collective actions involving employment-related
claims in all forums, whether arbitral or judicial. The
judge also found, relying on D. R. Horton and Ingram
Book Co., 315 NLRB 515, 516 fn. 2 (1994), that main-
taining the arbitration agreement violated Section 8(a)(1)
because employees reasonably would believe that it bars
or restricts their access to the Board and its processes. In
Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf.
denied in part, 808 F.3d 1013 (5th Cir. 2015), the Board
reaffirmed the relevant holdings of D. R. Horton, supra.
The Board has considered the judge’s decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided, based on the judge’s application
of D. R. Horton and on our subsequent decision in Mur-
phy Oil, to affirm the judge’s rulings,1 findings,2 and

1 The General Counsel argues that the judge erred by failing to con-
sider the complaint allegation that the Respondent unlawfully attempted
to enforce the arbitration agreement before the Superior Court of the
State of California. We reject this argument. The parties stipulated that
the issues presented for resolution were: (1) “Whether the mandatory
arbitration agreement contained in Labor Ready’s Application for Em-
ployment signed by Allen, the subject of Labor Ready’s September 28,
2011 Motion to Compel Allen to individual arbitration, violates Section
8(a)(1) of the Act by mandating individual arbitration of employment-
related claims, as alleged in the Complaint;” and (2) “Whether the
mandatory arbitration agreement contained in Labor Ready’s Applica-
tion for Employment signed by Allen, the subject of Labor Ready’s
September 28, 2011 Motion to Compel Allen to individual arbitration,
violates Section 8(a)(1) of the Act by restricting access to the Board

and its processes, as alleged in the Complaint.” The Board has long
held that a stipulation is conclusive on the party making it and prohibits
any further dispute as to the stipulated matters. Woodland Clinic, 331
NLRB 735, 741 (2000). This is at least in part because parties may
choose to forgo offering evidence in favor of reliance on the stipulation.
Arbors at New Castle, 347 NLRB 544, 545 (2006). Here, the General
Counsel joined in stipulating issues for resolution that did not encom-
pass the complaint’s enforcement allegation. The Respondent did not
address the enforcement allegation in its submissions to the judge and
may have forgone seeking to include relevant evidence in the stipulated
record in reliance on the scope of the issues as stipulated. We therefore
agree with the judge that the enforcement allegation is not at issue here.
2 The judge found that the Respondent’s maintenance of the arbitra-
tion agreement violates Sec. 8(a)(1) because employees would reasona-
bly read the agreement to restrict their ability collectively to seek re-
dress from the Board. We more broadly find that the agreement unlaw-
fully restricts employees’ ability to access the Board and its processes
both collectively and on an individual basis. Contrary to the Respond-
ent and our dissenting colleague, the agreement’s parenthetical exclu-
sion of “actions arising under the NLRA,” without further explanation,
is insufficiently clear to ensure that employees with no legal training
understand that they retain the right to file an unfair labor practice
charge with the Board and that they can do so with or on behalf of other
employees. See SolarCity Corp., 363 NLRB No. 83, slip op. at 4–6
(2015); U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd.
mem. 255 Fed.App’x. 527 (D.C. Cir. 2007); see also Ingram Book Co.,
supra, at 516 fn. 2 (1994) (“[r]ank-and-file employees do not generally
carry lawbooks to work or apply legal analysis to company rules as do
lawyers, and cannot be expected to have the expertise to examine com-
pany rules from a legal standpoint.”); McDonnell Douglas Corp., 240
NLRB 794, 802 (1979) (finding facially overbroad no-distribution rule
with exception for “matter the distribution of which is protected by
Section 7 of the National Labor Relations Act” unlawful and explaining
that “it can reasonably be foreseen that employees would not know
what conduct is protected by the National Labor Relations Act and,
rather than take the trouble to get reliable information on the subject,
would elect to refrain from engaging in conduct that is in fact protected
by the Act”). The arbitration agreement here expressly requires indi-
vidual arbitration of “any disputes arising” from employees’ employ-
ment, specifically including, inter alia, all discrimination and wrongful
termination claims, which are both frequent subjects of unfair labor
practice charges. We do not presume that all employees would under-
stand the exception for “actions arising under the NLRA” to refer spe-
cifically to their unobstructed right to file unfair labor practice charges
with the National Labor Relations Board. (Indeed, our dissenting col-
league acknowledges that employees may not be familiar with that
terminology). Finally, for the reasons stated in Ralph’s Grocery, 363
NLRB No. 128 (2016), we disagree with our dissenting colleague’s
argument that an individual arbitration agreement lawfully may require
the arbitration of unfair labor practice claims.
Our dissenting colleague 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, supra, 361 NLRB No. 72, slip op.
at 2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2 and fn. 2
(2015). But what our colleague ignores is that the Act does “creat[e] a
right to pursue joint, class, or collective claims if and as available with-
out the interference of an employer-imposed restraint.” Murphy Oil,
supra, slip op. at 16. The Respondent’s Agreements are just such an
unlawful restraint. Likewise, for the reasons explained in Murphy Oil
and Bristol Farms, supra, there is no merit to our colleague’s view that
finding the Agreements unlawful runs afoul of employees’ Sec. 7 right
to “refrain from” engaging in protected concerted activity. See Murphy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
conclusions and to adopt the recommended Order as
modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Labor Ready Southwest, Inc., a subsidiary
of TrueBlue, Inc., North Hollywood, California, its offic-
ers, 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 a mandatory arbitration agreement
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, 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.
(a) Rescind the mandatory arbitration agreement con-
tained within its Application for Employment (Agree-
ment) in all of its forms, or revise it in all of its forms to
make clear to employees that the Agreement does not
constitute a waiver of their right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums, and that it does not bar or restrict employees’ right
to file charges with the National Labor Relations Board.
(b) Notify all applicants and current and former em-
ployees who were required to sign or otherwise become
bound to the Agreement in any form that it has been re-
scinded or revised and, if revised, provide them a copy of
the revised agreement.
(c) Within 14 days after service by the Region, post at
its North Hollywood, California facility copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 31, after being signed by the Respondent’s author-
ized 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 posted. In addition to physical posting of

Oil, 361 NLRB No. 72, slip op. at 18; Bristol Farms, 363 NLRB No.
45, slip op. at 2.
3 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.
4 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.”
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 cur-
rent employees and former employees employed by the
Respondent at any time since July 24, 2011.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 31 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. February 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
In this case, my colleagues find that the Respondent’s
Dispatching, Employment and Arbitration Terms and
Conditions (the Agreement) violates Section 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 em-
ployment claims. I respectfully dissent from this finding
for the reasons explained in my partial dissenting opinion
in Murphy Oil USA, Inc.1 I also dissent from my col-
leagues’ finding that the Agreement violates Section
8(a)(1) based on interference with the right of employees
to file charges with the Board.

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).
I agree with my colleagues, for the reasons they state, that the com-
plaint allegation that the Respondent unlawfully enforced the Agree-
ment is not properly before the Board.
LABOR READY SOUTHWEST, INC. 3
1. The “Class Action” waiver
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than the NLRA.2
However, Section 8(a)(1) of the Act does not vest author-
ity in the Board to dictate any particular procedures per-
taining to the litigation of non-NLRA claims, nor does
the Act render unlawful agreements in which employees
waive class-type treatment of non-NLRA claims. To the
contrary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”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 be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;4 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any

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, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
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.”).
NLRA rights or obligations, 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 arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).6 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
2. Interference with NLRB charge filing
I disagree with the judge’s finding and my colleagues’
conclusion that the Agreement unlawfully interferes with
Board charge filing. In relevant part, the Agreement
states:
I agree that any disputes arising out of my application
for employment or employment that I believe I have
against Labor Ready or its agents or representatives, in-
cluding, but not limited to, any claims related to wage
and hour laws, discrimination, harassment or wrongful
termination, and all other employment related issues
(excepting only actions arising under the NLRA) will
be resolved by final and binding arbitration under the
Federal Arbitration Act. Except where prohibited by
law, I agree to bring any disputes I may have as an in-
dividual and I waive any right to bring or join a class,
collective, or representative action. I acknowledge that
my dispute will be decided by a neutral arbitrator and
not by a judge or jury.

5 The Fifth Circuit has twice denied enforcement of Board orders
invalidating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., 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 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(Emphasis added.) For the reasons stated in my separate
opinion in The Rose Group d/b/a Applebee’s Restaurant, I
believe that an agreement may lawfully provide for the arbi-
tration of NLRA claims, and such an agreement does not
unlawfully prohibit the filing of charges with the NLRB,
particularly when the right to do so is expressly stated in the
agreement itself.7 Necessarily, then, an agreement that alto-
gether excludes NLRA claims from its scope by making
arbitration inapplicable to “actions arising under the NLRA”
cannot reasonably be found to interfere with Board charge
filing.
For two reasons, my colleagues find that the Agree-
ment unlawfully interferes with NLRB charge-filing
notwithstanding its express exclusion of NLRA claims. I
respectfully disagree with both of their rationales.
First, my colleagues find that the exclusion of “actions
arising under the NLRA” is “insufficiently clear.” They
reason that “without further explanation, [the exclusion]
is insufficiently clear to ensure that employees with no
legal training understand that they retain the right to file
an unfair labor practice charge with the Board and that
they can do so with or on behalf of other employees.” I
disagree. The Agreement unambiguously excludes
NLRA claims by making express reference to the statute
itself. To the extent that some employees may be unfa-
miliar with the statute, this does not provide reasonable
support for a finding that the Agreement is “insufficiently
clear” as to the exclusion of NLRA claims. As the Fifth
Circuit stated in Murphy Oil USA, Inc. v. NLRB, above,
“it would be unreasonable for an employee to construe
the [Agreements] as prohibiting the filing of Board
charges when the agreement says the opposite.”8

7 363 NLRB No. 75, slip op. at 3–5 (2015) (Member Miscimarra,
concurring in part and dissenting in part). See also Ralph’s Grocery
Co., 363 NLRB No. 128, slip op. at 6–7 (2015) (Member Miscimarra,
concurring in part and dissenting in part); GameStop Corp., 363 NLRB
No. 89, slip op. at 4–5 (2015) (Member Miscimarra, concurring in part
and dissenting in part).
8 Even assuming arguendo that some employees may be unfamiliar
with the term “actions arising under the NLRA,” this is not materially
different from many concepts expressed in collective-bargaining
agreements that are routinely deemed enforceable by the Board and the
courts, even if they are expressed in “general and flexible terms,” Arch-
ibald Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482,
1491 (1959), or are based on practices that may be “unknown, except in
hazy form, even to the negotiators,” Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 580–581 (1960). Although the Agree-
ment expressly excludes all “actions arising under the NLRA” without
stating that employees retain the right to file charges with the NLRB, I
believe this is a distinction without a difference. The exclusion of all
NLRA actions from the Agreement’s scope precludes a finding that the
Agreement interferes with NLRB charge-filing, since a charge filed
with the NLRB is the very means by which “actions arising under the
NLRA” are initiated. Where an agreement does not encompass NLRA
claims, I believe it is unreasonable for the Board to require an affirma-
Second, my colleagues adopt the judge’s reasoning
that the class-action waiver in the Agreement unlawfully
interferes with Board charge-filing. In this regard, the
judge and my colleagues advance a three-stage argu-
ment:9 (i) the Agreement states that “[e]xcept where
prohibited by law, I agree to bring any disputes I may
have as an individual,” (ii) an NLRB charge sometimes
can be filed “with or on behalf of other employees,” and
(iii) agreeing “to bring any disputes I may have as an
individual” would interfere with the right to file these
types of Board charges, and specialized legal knowledge
is required to understand that interference with Board
charge-filing is “prohibited by law.” The problem with
this argument is its false, circular premise that the lan-
guage in the Agreement stating “I agree to bring any dis-
putes I may have as an individual” can be reasonably
construed to interfere with the filing of Board charges,
despite the Agreement’s express exclusion of “actions
arising under the NLRA” in the same paragraph (indeed,
the immediately preceding sentence), which contradicts
such a construction.10 In this respect, I believe my col-

tive statement that employees retain the right to file a charge with the
NLRB.
In support of their position, my colleagues cite cases where the
Board applied the sound principle that an otherwise illegal rule will not
be rendered lawful based on language that would predictably be under-
stood only by someone with specialized legal knowledge. See U-Haul
Co. of California, 347 NLRB 375, 377 (2006) (arbitration agreement
reasonably encompassing NLRA claims, with no exception for charge
filing, not saved by provision in separate document stating arbitration
process “limited to disputes . . . that a court would be authorized to
entertain”; among other things, language insufficient to alert nonlawyer
employees of remote possibility that NLRB charges were thereby ex-
empted), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007); Ingram
Book Co., 315 NLRB 515, 516 fn.2 (1994) (facially overbroad distribu-
tion rule not saved by disclaimer that “[t]o the extent any policy may
conflict with state or federal law, the Company will abide by the appli-
cable state or federal law”); McDonnell Douglas Corp., 240 NLRB 794
(1979) (facially overbroad no-distribution rule unlawful despite an
exception for distribution “protected by Section 7 of the National Labor
Relations Act”; employee would need to know what distribution Sec-
tion 7 protects to understand what the exception allows). Unlike the
general disclaimers in these cases, which would have no meaning to
employees (or anyone else) not versed in labor law, every employee
who reads English would understand that “actions arising under the
NLRA” are not covered by the Agreement—and therefore that the
Agreement cannot possibly limit his or her right to initiate an NLRA
action by filing a charge with the NLRB. See also my separate opinion
in SolarCity Corp., 363 NLRB No. 83 (2015).
9 The judge and my colleagues do not expressly separate their anal-
ysis into three stages. However, I believe it is difficult to understand
the analysis without breaking it into its component parts, and it consists
of the three elements set forth in the text.
10 I believe the Agreement is sufficiently clear that the only disputes
an employee agrees to bring “as an individual” are those subject to
arbitration under the Agreement, which expressly excludes “actions
arising under the NLRA.” Therefore, contrary to my colleagues, I do
not believe one can reasonably interpret this language as interfering
LABOR READY SOUTHWEST, INC. 5
leagues and the judge turn precedent upside down. Any
reasonable interpretation of the Agreement reveals that it
has no impact on NLRB charge-filing, since the Agree-
ment excludes all “actions arising under the NLRA”; and
the judge and my colleagues—though armed with good
intentions—devise an implausible interpretation that, in
my view, could only be advocated or adopted by law-
yers.
Accordingly, as to the above issues, I respectfully dis-
sent in part from my colleagues’ decision.
Dated, Washington, D.C. February 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 a mandatory arbitration agree-
ment that requires our employees, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive actions in all forums, whether arbitral or judicial.
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 arbitration agreement contained
within our Application for Employment (Agreement) in
all of its forms, or revise it in all of its forms to make

with the right to file an NLRB charge (initiating an action “arising
under the NLRA”) “with or on behalf of other employees.”
clear that the 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 re-
strict your right to file charges with the National Labor
Relations Board.
WE WILL notify all applicants and current and former
employees who were required to sign or otherwise be-
come bound to the Agreement in any of its forms that the
Agreement has been rescinded or revised and, if revised,
provide them a copy of the revised agreement.
LABOR READY SOUTHWEST, INC., A
SUBSIDIARY OF TRUEBLUE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-072914 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.
Rudy I. Fong-Sandoval, Esq., for the General Counsel.
Jason D. Winter, Esq. (Reminger Co., LPA), of Cleveland,
Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. This
matter is based on a stipulated record. The charge in this matter
was filed on January 17, 2012. Since the submission of this
matter to me on about February 13, 2014, briefs have been
received from Counsel for the General Counsel (General Coun-
sel), and counsel for the Respondent. Upon the stipulated rec-
ord, and consideration of the briefs submitted, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
At all material times Labor Ready Southwest, Inc., a Subsid-
iary of Trueblue, Inc. (Labor Ready or Respondent), has been a
corporation with an office and place of business in North Hol-
lywood, California, and has been engaged in the business of
providing temporary workers. During the year ending Decem-
ber 31, 2013, the Respondent performed services valued in
excess of $50,000 in states other than California. At all material
times, the Respondent has been an employer engaged in com-
merce within the meaning of the National Labor Relations Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent has violated and is violating Section 8(a)(1) of the Act
by maintaining a mandatory arbitration agreement; and whether
the language of the mandatory arbitration agreement restricts
employees from access to the Board and its processes.
B. Facts
Labor Ready provides temporary job assignments that help
workers bridge the gap between unemployment and permanent
employment. Individuals come to Labor Ready seeking to be
placed on a job assignment for Labor Ready’s customers on a
day-to-day basis. In order for Labor Ready to place workers in
job assignments, Labor Ready requires applicants for employ-
ment to sign a Labor Ready employment application agreeing
to terms contained therein.
Jeffrey Lee Allen (Allen) is a former employee of Labor
Ready on whose behalf the instant charge was filed. Allen ob-
tained work through Labor Ready from about June 1, 2007,
until January 9, 2009, on approximately 50 occasions. Prior to
his employment with Labor Ready, as a condition of employ-
ment, Allen filled out and signed a Labor Ready application for
employment (application for employment) on May 31, 2007,
that included a mandatory arbitration provision. Allen left the
Respondent’s employ on good terms, and with a good reputa-
tion for hard work.
The relevant language of Respondent’s mandatory arbitra-
tion provision reads:
I agree that any disputes arising out of my application for em-
ployment or employment that I believe I have against Labor
Ready or its agents or representatives, including, but not lim-
ited to, any claims related to wage and hour laws, discrimina-
tion, harassment or wrongful termination, and all other em-
ployment related issues (excepting only actions arising under
the NLRA) will be resolved by final and binding arbitration
under the Federal Arbitration Act. Except where prohibited by
law, I agree to bring any disputes I may have as an individual
and I waive any right to bring or join a class, collective, or
representative action.
After leaving Labor Ready, on April 30, 2009, Allen, as
named Plaintiff, filed a lawsuit against Labor Ready in the Su-
perior Court of the State of California, County of Los Angeles,
on behalf of himself and all other similarly situated employees.
On September 28, 2011, after litigation of a number of motions
from each side of the lawsuit, Labor Ready filed a Motion to
Compel Arbitration based on Allen’s application for employ-
ment, seeking “an order compelling the arbitration of Plaintiff’s
claims against it on an individual basis.” On about October 28,
2011, Allen’s legal counsel filed an opposition to Labor
Ready’s Motion to Compel Arbitration. In November 2011, the
state trial court granted Labor Ready’s Motion to Compel Arbi-
tration, and ordered individual arbitration of Allen’s class ac-
tion lawsuit.
The parties to the lawsuit, after protracted negotiations, came
to a resolution of all their claims. On August 27, 2013, U.S.
District Court Judge Dean Pregerson issued an Order granting
Final Approval of Class Action Settlement. Thereafter, the
Charging Party herein submitted a withdrawal request in the
instant matter. The Regional Director for Region 31 refused to
approve the withdrawal request of the unfair labor practice
charge in this matter on the basis that the foregoing resolution
and settlement of the underlying civil action between the parties
did not remedy the 8(a)(1) violations alleged in the instant
complaint.
The stipulation in this matter presents two issues, as follows:
ISSUE1: Whether the mandatory arbitration agreement con-
tained in Labor Ready’s Application for Employment signed
by Allen, the subject of Labor Ready’s September 28, 2011
Motion to Compel Allen to individual arbitration, violates
Section 8(a)(1) of the Act by mandating individual arbitration
of employment-related claims, as alleged in the complaint.
ISSUE 2: Whether the mandatory arbitration agreement con-
tained in Labor Ready’s Application for Employment signed
by Allen, the subject of Labor Ready’s September 28, 2011
Motion to Compel Allen to individual arbitration, violates
Section 8(a)(1) of the Act by restricting access to the Board
and its processes, as alleged in the complaint.
Analysis and Conclusions
D. R. Horton, Inc., 357 NLRB No, 184 (2012), is the con-
trolling Board decision in this matter. The Respondent main-
tains that D. R Horton was wrongly decided, and in its compre-
hensive brief significantly relies upon the recent Fifth Circuit
decision which considers and discusses many of the arguments
raised by the Respondent, which need not be reexamined here-
in, and denies enforcement of D. R. Horton in material re-
spects.1 However, I am required to follow D. R. Horton unless
reversed by the Supreme Court. Waco, Inc., 273 NLRB 746,
749 fn. 14 (1984); Los Angeles New Hospital, 244 NLRB 960,
962 fn. 4 (1979), enfd. 640 F2d 1017 (9th Cir. 1981); Pathmark
Stores, Inc., 342 NLRB 378 fn. 1 (2004).
The Board determined in D. R. Horton that as a condition of
employment “employers may not compel employees to waive
their NLRA right to collectively pursue litigation of employ-
ment claims in all forums arbitral and judicial.” 357 NLRB No.
184, slip op. at p. 12 (2012). As the mandatory arbitration pro-
vision by its terms restricts employees, as a condition of their
employment, from acting concertedly by pursuing arbitral and
judicial litigation of employment claims, I find that it is facially
unlawful.
The complaint alleges and the General Counsel in his brief
argues that the mandatory arbitration agreement also violates
Section 8(a) (1) of the Act by restricting access to the Board
and its processes. I agree. While, as the Respondent argues,
certain language does not restrict an employee from filing “ac-
tions arising under the NLRA,” nevertheless other language
may reasonably be construed by employees to restrict them
from concertedly filing collective charges under the NLRA.
Thus the language “Except where prohibited by law, I agree to
bring any disputes I may have as an individual . . . ” would, I
find, reasonably inhibit collective action among employees

1 D. R. Horton, Inc. v NLRB, 737 F.3d 344 (5th Cir. 2013).
LABOR READY SOUTHWEST, INC. 7
before the National Labor Relations Board, as the quoted lan-
guage expressly permits employees to pursue only individual
disputes while, in effect, simultaneously requiring them to in-
vestigate and determine whether the limitation—only individu-
al disputes—applies to matters under the NLRA. It is reasona-
ble to assume that the ambiguity itself, coupled with the added
effort necessarily involved in resolving the ambiguity, would
dissuade employees from collectively seeking redress for griev-
ances they may have with the Respondent, and thus would in-
hibit them from pursuing collective action. As noted in Ingram
Book Co., 315 NLRB 515, 516 fn. 2 (1994), “Rank-and-file
employees do not generally carry law books to work or apply
legal analysis to company rules ... and cannot be expected to
have the expertise to examine company rules from a legal
standpoint.” See also, Allied Mechanical, 349 NLRB 1077,
1077 fn. 1, 1084 (2007). Accordingly, I find that the mandato-
ry arbitration agreement restricts collective access to the Board
and its processes in violation of Section 8(a)(1) of the Act as
alleged.
The Respondent also maintains that the complaint should be
dismissed on the basis that the matters underlying the class
action lawsuit have been fully resolved and, moreover, the
Charging Party has submitted a withdrawal request and is no
longer interested in pursuing this Board proceeding against the
Respondent. However, it is clear that the resolution of the class
action lawsuit does not encompass or resolve the rights protect-
ed by the NLRA as enunciated in D. R. Horton. As stated by
the Board in Alberci Fruin-Colnon, 226 NLRB 1315, 1316
(1976), “Once a charge is filed, the General Counsel proceeds,
not in vindication of private rights, but as the representative of
an agency entrusted with the power and duty of enforcing the
Act in which the public has an interest, and dismissal does not
lie as a matter of right should the charging party seek the
charge’s withdrawal.” I find no merit to this argument of the
Respondent.
The Respondent maintains the Board did not have the au-
thority to decide D. R. Horton due to the recess appointment
matter regarding the composition of the Board. See Noel Can-
ning V. NLRB, 705 F.3d 490, 2013 WL 276024 (D.C. Cir. Jan.
25, 2013). Moreover, the Respondent contends that the com-
plaint is invalid as a result of the interim appointment of the
Regional Director who issued the instant complaint. These
matters are currently being considered in other forums. The
Board has noted that that until such matters are ultimately de-
cided it shall continue to fulfill its responsibilities under the
Act. Belgrove Post Acute Care Center, 359 NLRB No. 77, slip
op. 1, fn. 1(March 13, 2013); Universal Lubricants, LLC, 359
NLRB No. 157, slip op. at 1, fn. 1 (July 16, 2013).
On the basis of the foregoing, I find the Respondent has vio-
lated and is violating Section 8(a)(1) of the Act as found here-
in.2
CONCLUSIONS OF LAW AND RECOMMENDATIONS
The Respondent is an employer engaged in commerce within

2 As noted, the stipulation of the parties specifies two issues for res-
olution, and does not appear to include the complaint allegation that the
Respondent unlawfully attempted to enforce the mandatory arbitration
agreement before the Superior Court of the State of California.
the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent has violated Section 8(a) (1) of the Act as
found herein.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it be required to cease
and desist therefrom and from in any other like or related man-
ner interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act. I shall also
recommend the posting of an appropriate notice, attached here-
to as “Appendix,” at the locations where the Agreement has
been in effect.
ORDER3
The Respondent, Labor Ready Southwest, Inc., A Subsidiary
of Trueblue, Inc, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining the mandatory arbitration agreement that
requires employees to waive their right to maintain class or
collective action in all forums, whether arbitral or judicial.
(b) Maintaining the mandatory arbitration agreement that re-
stricts collective access to the Board and its processes.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action, which is necessary
to effectuate the purposes of the Act
(a) Rescind or revise the mandatory arbitration agreement
that requires employees to waive their right to maintain class or
collective action in all forums, whether arbitral or judicial.
(b) Rescind or revise the mandatory arbitration agreement
that restricts collective access to the Board and its processes.
(c) Advise all employees, by all means that employees are
customarily advised of matters pertaining to their terms and
conditions of employment, that the mandatory arbitration
agreement has been rescinded or revised and that employees are
no longer prohibited from bringing and participating in class
action lawsuits against the Respondent.
(d) Advise all employees, by all means that employees are
customarily advised of matters pertaining to their terms and
conditions of employment, that the mandatory arbitration
agreement has been rescinded or revised and that employees are
no longer prohibited from collectively filing charges and col-
lectively participating in matters before the National Labor
Relations Board.
(e) Within 14 days after service by the Region, post at all
locations where notices to employees are customarily posted,
and transmit to employees by all means that employees are
customarily advised of matters pertaining to their terms and
conditions of employment, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided

3 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
by the Regional Director for Region 31, after being duly signed
by Respondent’s representative, shall be posted and electroni-
cally transmitted to employees immediately upon receipt there-
of, and shall remain posted for 60 consecutive days thereafter.
Reasonable steps shall be taken by Respondent to ensure that
the posted notices are not altered, defaced, or covered by any
other material.
(f) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 31 sworn certifications
of responsible officials on forms provided by the Region attest-
ing to the steps that Respondent has taken to comply.
Dated, Washington, D.C. April 29, 2014
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 a mandatory arbitration agreement
that requires employees to waive their right to maintain class or
collective actions in all forums, whether arbitral or judicial
regarding employment-related matters.
WE WILL NOT maintain a mandatory arbitration agreement
that restricts collective access among employees to the National
Labor Relations Board or its processes.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL rescind or revise the mandatory arbitration agree-
ment to make it clear to employees that the agreement does not
constitute a waiver of their right in all forums to maintain class
or collective actions, and that the agreement does not prohibit
employees from collectively bringing and pursuing matters
before the National Labor Relations Board.
WE WILL notify employees of the rescinded or revised
agreement, and provide them with a copy of the revised agree-
ment or specific notification that the agreement has been re-
scinded.
LABOR READY SOUTHWEST, INC., A SUBSIDIARY OF
TRUEBLUE, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-072914 or by using the QR code be-
low. 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.