On Assignment Staffing Services, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 189 (N.L.R.B. 2015)

362 NLRB No. 189
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
On Assignment Staffing Services, Inc. and Arnella M.
Freeman. Case 32–CA–095025
August 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND MCFERRAN
In Murphy Oil USA, Inc.,1 the Board reaffirmed its ear-
lier decision in D. R. Horton, which held that an employ-
er violates the National Labor Relations Act “when it
requires employees covered by the Act, as a condition of
their employment, to sign an agreement that precludes
them from filing joint, class, or collective claims address-
ing their wages, hours, or other working conditions
against their employer in any forum, arbitral or judi-
cial.”2 Such agreements improperly interfere with the
substantive right of employees, under Section 7 of the
Act, to engage in collective action to improve working
conditions.
The issue presented in this case is whether, consistent
with D. R. Horton and Murphy Oil, the Respondent could
lawfully require its employees, as a condition of em-
ployment, to be bound to an agreement that limits resolu-
tion of all employment-related claims to individual arbi-
tration, unless employees follow a procedure to opt out
of the agreement before it takes effect 10 days after re-
ceiving it.
As explained more fully below, we find such opt-out
agreements unlawful on two separate grounds. First, the
Respondent undisputedly requires its employees to sign
an acknowledgement form certifying that they have re-
ceived a copy of the Respondent’s Dispute Resolution
Agreement (the Agreement), which takes effect 10 days
after the date of receipt and thereafter waives employees’
Section 7 right to engage in collective legal action. That
agreement does not cease to be a condition of employ-
ment simply because employees are given an opportunity
to opt out of it. To the contrary, the Respondent’s opt-
out procedure creates a second mandatory condition of
employment, which requires employees to affirmatively
act, by submitting an opt-out form that satisfies require-
ments imposed by the Respondent, to retain their Section
7 right to pursue collective or class litigation. This re-
quirement interferes with this Section 7 right by signifi-
cantly burdening its exercise.

1 361 NLRB No. 72 (2014).
2 D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in rele-
vant part 737 F.3d 344 (5th Cir. 2013).
Second, deciding an issue left open by D. R. Horton,3
we find that even assuming, as the Respondent argues,
that the opt-out provision renders the arbitration agree-
ment not a condition of employment, it is still unlawful
because it requires employees to prospectively waive
their Section 7 right to engage in concerted activity. Our
conclusion follows directly from Supreme Court deci-
sions holding that individual agreements between em-
ployees and employers cannot restrict employees’ Sec-
tion 7 rights, from settled Board precedent to the same
effect, and from the Norris-LaGuardia Act, which pro-
vides that “any … undertaking or promise in conflict
with the public policy declared in” that statute is unen-
forceable.4 For the reasons already articulated in D. R.
Horton and Murphy Oil, the Federal Arbitration Act does
not pose an obstacle to our broader holding today. There
is no conflict between the NLRA and the FAA, and even
if there were, the Norris-LaGuardia Act demonstrates
that the FAA “would have to yield insofar as necessary
to accommodate Section 7 rights.”5
I.
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations of the complaint and
therefore the Board should find, as a matter of law, that
the Respondent violated Section 8(a)(1) of the Act by
promulgating, maintaining, and enforcing an agreement
that prohibits its employees from participating in collec-
tive or class litigation in all forums.
Pursuant to a charge filed by Arnella M. Freeman on
December 14, 2012, the General Counsel issued the
complaint on March 25, 2013. The complaint alleges
that, since about October 2012, the Respondent has
promulgated, maintained, and enforced the Dispute
Resolution Agreement. The complaint further alleges
that the Agreement requires that employees bring all dis-
putes arising out of or related to their employment or
termination from employment to individual binding arbi-
tration. Additionally, the complaint alleges that the
Agreement precludes employees not currently participat-
ing in specified, ongoing wage and hour litigation (i.e.,
“The Freeman Case”) from later participating in that or
other class actions unless they opt out of the Agreement.

3 The D. R. Horton Board noted that it did not reach the question of
“whether, if arbitration is a mutually beneficial means of dispute reso-
lution, an employer can enter into an agreement that is not a condition
of employment with an individual employee to resolve either a particu-
lar dispute or all potential employment disputes through non-class
arbitration rather than litigation in court.” 357 NLRB No. 184, slip op.
at 13 fn. 28 (emphasis added).
4 29 U.S.C. § 103 (emphasis added).
5 Murphy Oil, supra, 361 NLRB No. 72, slip op. at 6.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The complaint alleges that, by these actions, the Re-
spondent interfered with employees’ Section 7 rights to
engage in collective legal activity by binding employees
to an irrevocable waiver of their rights to participate in
collective and class litigation.
On April 15, 2013, the Respondent filed an answer
admitting all of the factual allegations in the complaint
but denying the legal conclusions and asserting certain
affirmative defenses.
On June 13, 2013, the General Counsel filed a Motion
for Summary Judgment. On July 15, 2013, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. On July 29, 2013, the Respondent filed a
response to the General Counsel’s Motion and a Cross-
Motion for Summary Judgment. On August 16, 2013,
the General Counsel filed a reply to the Respondent’s
response to his Motion for Summary Judgment and to the
Respondent’s Cross-Motion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
II.
Ruling on Motion for Summary Judgment
As stated above, the Respondent’s answer admits all of
the factual allegations in the complaint. Specifically, the
Respondent’s answer admits that it has promulgated,
maintained, and enforced the Agreement requiring that
employees bring all disputes arising out of or related to
their employment or termination from employment to
individual binding arbitration. The Respondent’s answer
further admits that the Agreement was promulgated,
maintained, and enforced as “signed by its current and
former employees employed at various locations
throughout the United States, including at Eden Medical
Center in Castro Valley, California.” We therefore find
that there are no material issues of fact; nor has the Re-
spondent raised any other issues warranting a hearing.6

6 Inasmuch as the Respondent’s Answer to the Complaint contends
that the unfair labor practices alleged in the complaint are barred by the
6-month statute of limitations set forth in Sec. 10(b) of the Act, we find
no merit to this contention. The Respondent did not renew this argu-
ment in its response to the General Counsel’s Motion and Cross-Motion
for Summary Judgment. In any event, it is well settled that regardless
of when an unlawful rule was first promulgated, the Board will find a
violation where the rule was maintained and enforced during the 6-
month period prior to the filing of a charge. See, e.g., PJ Cheese, Inc.,
362 NLRB No. 177, slip op. at 1 (2015); The Neiman Marcus Group,
Inc., 362 NLRB No. 157, slip op. at 2 fn. 6 (2015); Cellular Sales of
Missouri, 362 NLRB No. 27, slip op. at 2 fn. 7 (2015). Here, the
Agreement was in effect at all relevant times, and was initially promul-
gated just two months prior to the charge’s filing. Accordingly, we
reject the Respondent’s Sec. 10(b) argument.
A.
The Respondent’s employees are employed at various
locations throughout the United States. Since October
2012, the Respondent has required, nationwide, that its
employees sign an acknowledgement form certifying that
they have received a copy of the Dispute Resolution
Agreement, which takes effect 10 days after the date of
receipt unless employees follow an opt-out procedure
within those 10 days as specified in the Agreement. The
Agreement provides in relevant part:
1. ARBITRATION OF CLAIMS…The Agreement
applies to any dispute arising out of or related to Em-
ployee’s employment with, or termination of employ-
ment from, Company. . . This Agreement is intended
to apply to resolving disputes that otherwise would be
resolved in a court of law, and therefore, except as stat-
ed below, this Agreement requires that all disputes
must be resolved only by an arbitrator through fi-
nal and binding arbitration and not by a court or
jury trial.
Employment Claims…The Agreement also applies,
without limitation, to disputes regarding the employ-
ment relationship, any city, county, state or federal
wage-hour law, compensation, breaks and rest periods,
training, termination, or harassment, and claims… aris-
ing under. . . Fair Labor Standards Act.
. . . .
4. CLASS ACTION WAIVER. There will be no
right or authority for any dispute to be brought,
heard or arbitrated as a class or collective action
(“Class Action Waiver”). Private attorneys general
representative actions are not covered within the scope
of this Agreement and may be maintained in a court of
law, but an Employee may seek in arbitration individu-
al remedies for him or herself under any applicable pri-
vate attorney general representative action statute, and
the arbitrator shall decide whether an Employee is an
aggrieved person under any private attorney general
statute. Although an Employee will not be retaliated
against, disciplined or threatened with discipline as a
result of his or her exercising his or her rights under
Section 7 of the National Labor Relations Act by the
filing of or participation in a class, collective or repre-
sentative action in any forum, the Company may law-
fully seek enforcement of this Agreement and the Class
Action Waiver under the Federal Arbitration Act and
seek dismissal of such class, collective or representa-
tive actions or claims. Any claim that all or part of the
Class Action Waiver is unenforceable, unconscionable,
ON ASSIGNMENT STAFFING SERVICES 3
void or voidable may be determined only by a court of
competent jurisdiction and not by an arbitrator.
. . . .
7. APPLICATION TO EXISTING CLAIMS. This
Agreement is intended broadly to apply to any existing
controversy that has arisen from or that is related to
Employee’s employment with Company, as is permit-
ted under Section 2 of the Federal Arbitration Act.
. . . .
8. PARTICIPATION IN THE Freeman CASE. If
Employee is a named plaintiff, or has joined as a plain-
tiff, in Arnella Freeman v. On Assignment Staffing Ser-
vices, Inc. d/b/a On Assignment Consultants, filed Oc-
tober 16, 2012, Alameda County Superior Court Case
No. RG12652237 (“Freeman case”), this Agreement
will not apply to Employee with respect to that case…
If Employee is not a named plaintiff in the Freeman
case, has not joined as a plaintiff or is not part of a cer-
tified class in the Freeman case, but would like to po-
tentially participate in that case as a class member or
plaintiff, Employee may opt out of this Agreement by
following the procedure set forth in Paragraph 10, be-
low. By not opting out of this Agreement, however,
Employee will be giving up the right to represent
others in litigation and the right to participate in
any class, collective or representative action in a
court of law, including the Freeman case. If Employ-
ee chooses not to opt out of this Agreement, Employee
will be able to arbitrate whatever individual claims
Employee has against Company, including the same
types of claims as those being litigated in the Freeman
case.
. . . .
9. TEN-DAY OPT-OUT PERIOD. If Employee
does not want to be subject to this Agreement, Em-
ployee may opt out of this Agreement by signing At-
tachment A to the Agreement (“Dispute Resolution
Agreement Opt-Out Form”) and either mailing it to
Angela Kolarek, Human Resources 26745 Malibu Hills
Road Calabasas, CA 91301, hand delivering it to the
Human Resources department at the above address or
sending it by pdf to arbitration@onassignmentcom. In
order to be effective, the envelope containing the
signed Attachment A must be post-marked by within
10 days of Employee’s receipt of this communication
or the e-mail transmitting the pdf of the signed Attach-
ment A, must be dated within 10 days of Employee’s
receipt of this Agreement. Any Employee’s decision to
opt out will be kept by Human Resources in a file sepa-
rate from the employee’s personnel file. Should Em-
ployee not opt out of this Agreement within the 10-day
period, Employee’s continued employment with Com-
pany will constitute Employee’s and Company’s mutu-
al acceptance of the terms of this Agreement.
. . . .
11. NO RETALIATION. An employee who timely
opts out of the Agreement… will not be subjected to
any adverse employment action as a consequence of
that decision and may pursue available legal remedies
without regard to this Agreement.
. . . .
ATTACHMENT A, DISPUTE RESOLUTION
AGREEMENT OPT-OUT FORM
I hereby certify that I do not want to participate in or
be bound by the Company’s Dispute Resolution
Agreement.
The Respondent presents the Agreement, along with a
cover letter and Dispute Resolution Agreement
Acknowledgement Form, to all employees. The cover
letter explains that although the Agreement contains the
10-day opt-out procedure, the Respondent “believes that
arbitration will enable employment-related disputes to be
resolved more quickly, and at less cost, than in court.”
The cover letter later emphasizes the Respondent’s belief
that “the Agreement could make it easier for you to re-
solve any dispute you might have with the Company than
if you went to court or were a part of a class action.” The
cover letter further explains the nature of arbitration, the
class waiver, the 10-day opt-out procedure, how the
Agreement affects employees’ rights, and that employees
are free to consult an attorney before deciding whether to
opt out. The cover letter reiterates that, by failing to opt
out, employees agree “to waive the right to file a court
action as to disputes arising out of the employment rela-
tionship, and that any claim that is arbitrated can be done
on behalf of the party only, and not as a class or repre-
sentative action.” The Acknowledgement Form is for
employees to sign, thereby certifying the date on which
they received a copy of the Agreement. Attached to the
Agreement itself is the Dispute Resolution Agreement
Opt-Out Form for completion by those employees wish-
ing to opt out.
B.
We turn now to the two issues presented by the Re-
spondent’s arbitration agreement: (1) whether the
Agreement is a mandatory condition of employment and
thus falls squarely within the rule announced in D. R.
Horton and reaffirmed in Murphy Oil; and (2) whether
the Agreement would be unlawful, even if it were not
mandatory.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1.
The Respondent effectively concedes that all employ-
ees must sign its Acknowledgement Form certifying that
they received a copy of the Agreement, which takes ef-
fect 10 days thereafter unless employees follow the spec-
ified opt-out procedure. Thus, if an employee ultimately
fails to opt out of the Agreement in perfect compliance
with the Respondent’s procedure, and within the 10-day
timeframe allowed, the employee will become subject to
the Agreement. The Agreement, in turn, provides that
“all [employment] disputes must be resolved only by an
arbitrator through final and binding arbitration and not by
a court or jury trial,” with “no right or authority for any
dispute to be brought, heard or arbitrated as a class or
collective action.” Because the Agreement explicitly
bars employees from exercising their Section 7 right to
pursue collective litigation of all employment-related
claims in all forums, it is unlawful under Murphy Oil and
D. R. Horton.7
The Respondent argues that its 10-day opt-out proce-
dure ensures that employee participation in the Agree-
ment is a voluntary decision and thus places the Agree-
ment outside the scope of the D. R. Horton prohibition
on mandatory individual arbitration agreements. We
reject this contention for the reasons stated below.
The Agreement’s prohibition against the pursuit of
class or collective claims violates Section 8(a)(1). The
existence of an opt-out procedure—itself a condition of
employment, as part of the Agreement—does not change
this fact. While the Respondent’s employees may retain
their Section 7 rights by following the prescribed opt-out
procedure, Section 8(a)(1)’s reach is not limited to em-
ployer conduct that completely prevents the exercise of
Section 7 rights. Instead, the long-established test is
whether the employer’s conduct reasonably tends to in-
terfere with the free exercise of employee rights under
the Act. American Freightways Co., 124 NLRB 146,
147 (1959). See, e.g., Dover Energy, Inc., 361 NLRB
No. 48, slip op. at 2 (2014).8 The Respondent’s opt-out
procedure reasonably tends to interfere with its employ-
ees’ exercise of their Section 7 rights in at least two
ways.

7 For the reasons fully stated in Murphy Oil, we reject the Respond-
ent’s contentions that D. R. Horton was not decided by a validly ap-
pointed Board, that it was wrongly decided and should be overruled, or
that its holding is inconsistent with Supreme Court decisions regarding
the Federal Arbitration Act issued both before and after D. R. Horton
was decided.
8 See also C. V. Uranga, 173 NLRB 635, 635 fn. 2 (1968) (employ-
er’s remarks violated Sec. 8(a)(1) because they reasonably tended to
interfere with employee rights under the Act “whether or not the em-
ployees actually felt intimidated by such remarks”).
First, the opt-out procedure interferes with Section 7
rights by requiring employees to take affirmative steps,
within 10 days after they receive a copy of the Agree-
ment, to retain those rights. Employees must either
hand-deliver or send—physically or electronically—a
completed opt-out form to an address specified by the
Respondent. The completed form must contain the em-
ployee’s printed name, signature, and date, and, it must
be sent within 10 days. Even employees who wish to
retain their Section 7 rights will lose them unless they
correctly follow the specified procedures.
Regardless of the procedures required, the fact that
employees must take any steps to preserve their Section
7 rights burdens the exercise of those rights. A rule re-
quiring employees to obtain their employer’s permission
to engage in protected concerted activity is unlawful,
even if the rule does not absolutely prohibit such activity
and regardless of whether the rule is actually enforced.
Chromalloy Gas Turbine Corp., 331 NLRB 858, 858–
859 (2000), enfd. 262 F.3d 184 (2d Cir. 2001); Bruns-
wick Corp., 282 NLRB 794, 794–795 (1987). Even a
rule requiring only advance notice that an employee will
engage in protected concerted activity is an impediment
to the exercise of Section 7 rights. See Special Touch
Home Care Services, 357 NLRB No. 2, slip op. at 7
(2011) (employer unlawfully required individual em-
ployees to provide advance notice of whether they would
engage in strike), enfd. in pert. part 708 F.3d 447 (2d Cir.
2013). The Respondent’s opt-out procedure is not mate-
rially different in the burden that it places on the exercise
of Section 7 rights and is, therefore, similarly unlawful.
Second, the Respondent’s opt-out procedure interferes
with Section 7 rights because it requires employees who
wish to retain their right to pursue class or collective
claims to “make ‘an observable choice that demonstrates
their support for or rejection of’” concerted activity.
Allegheny Ludlum Corp., 333 NLRB 734, 740 (2001),
enfd. 301 F.3d 167 (3d Cir. 2002). The Board has long
held that an “employee is entitled to keep from his em-
ployer his views concerning unions, so that the employee
may exercise a full and free choice on the point, uninflu-
enced by the employer’s knowledge or suspicion about
those views and the possible reaction toward the employ-
ee that his views may stimulate in the employer.” Que-
metco, Inc., 223 NLRB 470, 470 (1976). Accordingly,
“any attempt by an employer to ascertain employee
views and sympathies regarding unionism generally
tends to cause fear of reprisal in the mind of the employ-
ee if he replies in favor of unionism and, therefore, tends
to impinge on his Section 7 rights.” Struksnes Construc-
tion Co., 165 NLRB 1062, 1062 (1967). This “right to
remain silent . . . to protect the secrecy” of employees’
ON ASSIGNMENT STAFFING SERVICES 5
views concerning unions applies equally to the Section 7
right to engage in concerted activity. See Stoner Lum-
ber, Inc., 187 NLRB 923, 930 (1971), enfd. mem. 1972
WL 3035 (6th Cir. 1972). See also Special Touch Home
Care Services, 357 NLRB No. 2, slip op. at 7 (“permit-
ting an employer to compel employees to provide indi-
vidual notice of participation in collective action would
impose a significant burden on [that] right … [and] indi-
vidual employees [would] be faced with the potentially
intimidating prospect of telling their employer that they
intend to take action that the employer might view unfa-
vorably…”).9
The Respondent’s opt-out procedure places employ-
ees in a similar predicament because it forces them to
reveal their sentiments concerning Section 7 activity.
This procedure requires that employees choose one of
two options. They can become bound by the unlawful
Agreement—and forever waive their Section 7 rights—
by doing nothing. Or employees can notify the Re-
spondent that they have elected to opt out of the unlawful
Agreement and thus, retain the ability to exercise rights
fundamental to the Act. Under the circumstances here,
an employee reasonably would believe that choosing this
latter option would be construed as a rejection of the Re-
spondent’s strong preference that employees forever
waive their Section 7 right to engage in concerted litiga-
tion.10 The Respondent’s mandatory opt-out procedure
interferes with employees’ Section 7 rights by “effective-
ly put[ting] them in the position of having either to ac-
cept or reject”11 the Respondent’s clearly preferred

9 See also Barton Nelson, Inc., 318 NLRB 712, 712 (1995) (when
“supervisors approach individual employees and solicit them to wear
antiunion or proemployer paraphernalia, the employees are forced to
make an observable choice that demonstrates their support for or rejec-
tion of the union”); Pillowtex Corp., 234 NLRB 560, 560 (1978) (em-
ployer engaged in “a form of interrogation” by offering employees
“vote no” buttons, which forced employees to accept the buttons and
acknowledge opposition to the union or reject them and acknowledge
union support); Hatteras Yacht, AMF, Inc., 207 NLRB 1043, 1043 fn.
3, 1044 (1973) (employer’s maintenance of forms to revoke employees’
union designation cards, available in the employer’s personnel offices,
“enabled [it] to identify which employees, if any, chose to withdraw
their cards, thereby constituting an indirect means of unlawful interro-
gation”).
10 The Respondent’s strong preference for individual arbitration
would be obvious to employees. The Respondent requires all employ-
ees to acknowledge receipt of the Agreement in writing. The cover
letter accompanying the Agreement, in turn, explicitly states that the
Respondent “believes that arbitration will enable employment-related
disputes to be resolved more quickly, and at less cost, than in court.”
The cover letter further states that the Agreement “could make it easier
for you [the employee] to resolve any dispute you might have with the
Company than if you went to court or were a part of a class action.”
11 A. O. Smith Automotive Products Co., 315 NLRB 994, 994 (1994)
(employer violated Sec. 8(a)(1) when its supervisors distributed anti-
union campaign paraphernalia to employees).
course of action. The unlawful interference of the Re-
spondent’s opt-out procedure is only amplified by the
manner in which employees must make this observable
choice. To effectively opt out, employees must explicitly
request to be exempted from the requirement to arbitrate,
in writing, by providing their name, signature, and the
date. This puts the Respondent in the position of having
a permanent record of which employees choose to opt
out—a fact obvious to employees—and thereby further
pressures them to become bound to the unlawful Agree-
ment. See Allegheny Ludlum, 333 NLRB at 742 (em-
ployer’s request that employees appear in an antiunion
campaign video particularly coercive because, for those
employees who chose to participate, such participation
would serve “as a permanent record of the participating
employees’ opposition to the union”); see Derby Refin-
ing Co., 235 NLRB 12, 15 (1978) (Board found that a
supervisor’s questioning of employees about their union
sympathies had a greater tendency to impinge on Section
7 rights where the employer “[wrote] down notes concur-
rent with the union related inquiries”), enfd. mem. 1979
WL 4858 (10th Cir. 1979).12
In sum, then, the Respondent’s unlawful arbitration
agreement is not saved from illegality by its mandatory
opt-out procedure, which itself burdens and interferes
with the exercise of rights protected by the Act.
2.
In D. R. Horton, the Board did not pass on whether an
employer could lawfully “enter into an agreement that is
not a condition of employment with an individual em-
ployee to resolve … all potential employment disputes
through non-class arbitration rather than litigation in

12 The Respondent observes that its procedure contains safeguards to
protect employees from retaliation, including language in the Agree-
ment stating that employees who timely opt out “will not be subjected
to any adverse employment action as a consequence of that decision
and may pursue available legal remedies without regard to this Agree-
ment.” The Respondent also points out that the Agreement provides
that completed opt-out forms must be sent to a central location, i.e.,
Human Resources, which will maintain them in a file separate from
employees’ personnel files. But in our view, a reasonable employee
would recognize the obvious: that his or her decision to opt-out was
not somehow secret or otherwise shielded from the Respondent and its
managers, despite assurances against retaliation and segregation of opt-
out forms from personnel files. It is true that the Board has held that an
employer does not require employees to make an unlawful “observable
choice” when it makes “antiunion paraphernalia available at a central
location unaccompanied by any coercive conduct.” Barton Nelson, 318
NLRB at 712. But this principle has no application here, where the
Agreement and the opt-out procedure are imposed on all employees. In
turn, the consequences of failing to opt out—a permanent loss of Sec. 7
rights—are far greater than a reversible decision to put on antiunion
paraphernalia.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
court.”13 Consistent with the Board’s precedent (includ-
ing the rationale of D. R. Horton itself), the decisions of
the Supreme Court, and the Norris-LaGuardia Act, we
hold that such non-mandatory agreements are contrary to
the National Labor Relations Act and to fundamental
principles of federal labor policy. Nothing in the Federal
Arbitration Act, in turn, requires federal labor law to
yield here.
The Board has consistently struck down agreements
that require employees to prospectively waive their Sec-
tion 7 rights. In Mandel Security Bureau, for example,
an employer promised to reinstate a discharged employee
in exchange for the employee agreeing to withdraw un-
fair labor practice charges he had filed with the Board
and his “forbearance from future charges and concerted
activities.” 202 NLRB 117, 119 (1973). The Board,
despite noting that the employee “himself may have been
partially responsible for instigating” the agreement,
found that the agreement violated Section 8(a)(1) be-
cause the “future rights of employees as well as the rights
of the public may not be traded away in this manner.”
Id. The Board relied on Mandel Security in Ishikawa
Gasket America, Inc., 337 NLRB 175, 175 (2001).
There, a departing employee received a monetary settle-
ment in exchange for her one-year agreement not to
“hire, influence or otherwise direct any employee of the
Company to leave employment of the Company or to
engage in any dispute or work disruption with the Com-
pany, or to engage in any conduct which is contrary to
the Company’s interests in remaining union-free.” The
Board found the settlement overly broad, and thus un-
lawful, because it conditioned the employee’s “receipt of
separation payments on her refraining from protected
concerted activities for a 1-year period.” Id. at 176.14

13 357 NLRB No. 184, slip op. at 13 fn. 28 (emphasis added). The
D. R. Horton Board also reserved any ruling on whether a voluntary
agreement to resolve “a particular dispute” through non-class arbitra-
tion would be lawful. Id. Because there is no claim that the Respond-
ent maintained such an agreement in this case, we too do not pass on
that fact pattern today.
14 See also Retlaw Broadcasting Co., 310 NLRB 984, 991 (1993)
(Board found that an employer violated Sec. 8(a)(1) by offering to
rehire an employee only if he agreed to waive his contractual right to
file a grievance concerning his termination and his right to secure union
representation in the future), enfd. 53 F.3d 1002 (9th Cir. 1995);
McKesson Drug Co., 337 NLRB 935, 938 (2002) (employer violated
Sec. 8(a)(1) by conditioning employee’s return to work on the employ-
ee agreeing to waive the right, “both present and future,” to file charges
with the Board).
The Board’s policy of ensuring that employees remain free to en-
gage in future Sec. 7 activity is further evident in its treatment of
agreements that settle known and discrete employment disputes. See
Coca-Cola Bottling Company of Los Angeles, 243 NLRB 501, 502
(1979) (Board found lawful a settlement agreement that reduced an
employee’s discipline and returned him to work in exchange for the
Any binding agreement that precludes individual em-
ployees from pursuing protected concerted legal activity
in the future amounts to a prospective waiver of Section
7 rights—rights that “may not be traded away,” in the
words of the Mandel Security Board15—and thus is con-
trary the Act. It is well established, as the Board ob-
served in D. R. Horton, that “employees who join togeth-
er to bring employment-related claims on a classwide or
collective basis in court or before an arbitrator are exer-
cising rights protected by Section 7 of the NLRA.”16 For
purposes of the Act, there is no reason why a prospective
waiver of the right to engage in concerted legal activity
should be treated any differently from the waivers struck
down by the Board in Mandel Security and Ishikawa
Gasket.
Indeed, although the D. R. Horton Board left open the
issue we decide now, it drew on Supreme Court deci-
sions barring otherwise valid individual agreements that
prevent employees from exercising Section 7 rights.
Those decisions, National Licorice Co. v. NLRB17 and
J.I. Case Co. v. NLRB,18 long ago made clear that “em-
ployers cannot enter into individual agreements with
employees in which the employees cede their statutory
rights to act collectively.”19
In National Licorice, the Supreme Court found unlaw-
ful individual employment contracts that included a
clause discouraging, if not forbidding, discharged em-
ployees from exercising the Section 7 right to present a
grievance to their employer “through a labor organization
or his chosen representatives, or in any way except per-
sonally.” 309 U.S. at 360. The Court found that the con-
tracts were “a continuing means of thwarting the policy
of the Act.” Id. at 361. “Obviously,” the Court conclud-
ed, “employers cannot set at naught the National Labor
Relations Act by inducing their workmen to agree not to
demand performance of the duties which it [the Act] im-
poses” upon employers. Id. at 364.

employee’s “promise not to litigate his suspension further” because the
agreement did not “prohibit [the employee] from filing unfair labor
practice charges concerning future incidents or preclude him from
engaging in protected concerted activity”); Regal Cinemas, 334 NLRB
304, 305–306 (2001) (Board found that an employer did not violate the
Act by insisting, during bargaining, that discharged employees’ receipt
of severance pay be conditioned on their waiving the right to file Board
charges concerning their discharges; unlike a “proposed waiver of
future right to Board access,” which is “contrary to the fundamental
policy of the Act,” the severance plan was “clearly tailored to that
transaction [the employees’ discharge], as opposed to any future-arising
claims.”), enf. denied on other grounds 317 F.3d 300 (D.C. Cir. 2003).
15 202 NLRB at 119.
16 357 NLRB No. 184, slip op. at 3. See, e.g., Brady v. National
Football League, 644 F.3d 661, 673 (8th Cir. 2011).
17 309 U.S. 350 (1940).
18 321 U.S. 332 (1944).
19 D. R. Horton, 357 NLRB No. 184, slip op. at 4.
ON ASSIGNMENT STAFFING SERVICES 7
In J.I. Case, the Court applied these principles to indi-
vidual employment contracts that were, in all respects,
voluntary in nature, i.e., “not a condition of employ-
ment,” “unfairly or unlawfully obtained,” “or [otherwise
invalid] under the circumstances in which they were
made.” 321 U.S. at 333. In holding that the contracts
there, which pre-dated a union’s certification, did not
limit the scope of an employer’s statutory duty to bargain
with the union, the Court explained:
Individual contracts no matter what the circumstances
that justify their execution or their terms, may not be
availed of to defeat or delay the procedures prescribed
by the National Labor Relations Act looking to collec-
tive bargaining . . . Wherever private contracts conflict
with [the Board’s] functions [of preventing unfair labor
practices], they obviously must yield or the Act would
be reduced to a futility.
Id. at 337.
All of these cases are grounded in “the declared public
policy of the Act to eliminate and prevent obstructions to
interstate commerce by encouraging collective bargain-
ing and by protecting the ‘exercise by workers of full
freedom of association’”—the mechanisms chosen by
Congress to counter the disruptive effects of the inequali-
ty of bargaining power between employers and employ-
ees. National Licorice, 309 U.S. at 362 (emphasis add-
ed). As the Supreme Court has recognized, achieving
that public policy necessitates that the potential for col-
lective action (whether for purposes of collective bar-
gaining or other mutual aid or protection) cannot be cur-
tailed by individual agreements. See, e.g., J.I. Case, 321
U.S. at 338 (1944) (“It is equally clear since the collec-
tive trade agreement is to serve the purpose contemplated
by the Act, the individual contract cannot be effective as
a waiver of any benefit to which the employee otherwise
would be entitled under the trade agreement.”). In other
words, to the extent that individual agreements limit the
ability of workers to act collectively, such agreements
detract from the “full freedom of association” Congress
deemed so essential to accomplishing the Act’s stated
objectives. In this context, it is the individual agreement
itself not to engage in concerted activity that threatens
the statutory scheme; whether the agreement was im-
posed or entered into voluntarily is beside the point.
Because they similarly frustrate the Act’s guarantees to
all employees and achievement of the Act’s stated pur-
poses, individual arbitration agreements that would pre-
vent an employee from engaging in concerted legal activ-
ity “must yield” to the Act, whether or not they were a
condition of employment and “no matter what the cir-
cumstances that justify their execution or what their
terms,” in the words of the J.I. Case Court.20
Essentially for the reasons explained in D. R. Horton
and Murphy Oil, extending the rule of those decisions to
arbitration agreements that are not conditions of em-
ployment creates no conflict with the Federal Arbitration
Act.21 As we have seen, the fundamental flaw of all in-
dividual arbitration agreements that preclude employees
from bringing joint, class, or collective workplace claims
in any forum is that they vitiate a fundamental, substan-
tive right under the National Labor Relations Act.
Whether those agreements are imposed on employees by
employers, or whether employees are free to reject them,
makes no difference either to the legality of such agree-
ments under the NLRA or to any required accommoda-
tion between the NLRA and the FAA.
In this respect, the Norris-LaGuardia Act has particular
relevance here. The Board has previously explained why
“even if there were a direct conflict between the NLRA
and the FAA, the Norris-LaGuardia Act … indicates that
the FAA would have to yield insofar as necessary to ac-
commodate Section 7 rights.”22 An arbitration agree-
ment between an individual employee and an employer
that completely precludes the employee from engaging in
concerted legal activity clearly conflicts with the express
federal policy declared in the Norris-LaGuardia Act.
That conflict in no way depends on whether the agree-
ment is properly characterized as a condition of employ-
ment. By its plain terms, the Norris-LaGuardia Act
sweepingly condemns “[a]ny undertaking or promise …
in conflict with the public policy declared”23 in the stat-

20 See NLRB v. Stone, 125 F.2d 752, 756 (7th Cir. 1942), enfg. 33
NLRB 1014 (1941) (court held that a contract clause—which restricted
employees’ Sec. 7 right to union representation by requiring them to
first resolve disputes individually with their employer, and then through
arbitration—was “a violation of the Act per se” because it “imposed a
restraint upon collective action” even if “entered into without coer-
cion”).
21 Murphy Oil, 361 NLRB No. 72, slip op. at 6; D. R. Horton, 357
NLRB No. 184, slip op. at 7-12.
22 Murphy Oil, 361 NLRB No. 72, slip op. at 6.
23 Sec. 3, 29 U.S.C. § 103 (emphasis added). As one scholar has re-
cently observed:
In this, the draftsmen sought to give the policy announced in section 2
the broadest possible sweep. They were well aware … that “[a]n al-
most endless array of legal games were played by employers that
made almost all collective action by workers subject to legal prohibi-
tions.”
Matthew W. Finkin, The Meaning and Contemporary Vitality of the
Norris-LaGuardia Act, 93 Neb. L. Rev. 6, 14 (2014) (footnote omitted),
quoting Daniel Jacoby, Laboring for Freedom: A New Look at the
History of Labor in America 62 (1998).
This broad prohibition is recognized by the Board’s application of
the Norris-LaGuardia Act. See Barrow Utilities & Electric, 308 NLRB
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ute: insuring that the “individual unorganized worker” is
“free from the interference, restraint, or coercion of em-
ployers . . . in . . . concerted activities for the purpose of .
. . mutual aid or protection,”24 including “[b]y all lawful
means aiding any person participating or interested in
any labor dispute who . . . is prosecuting, any action or
suit in any court of the United States or any state.”25
It is clear, moreover, why Congress chose not to dis-
tinguish between agreements imposed by employers as
conditions of employment and agreements that might be
characterized as voluntary undertakings. In enacting the
Norris-LaGuardia Act, Congress declared that “under
prevailing economic conditions … the individual unor-
ganized worker is commonly helpless to exercise actual
liberty of contract and to protect his freedom of labor,
and thereby to obtain acceptable terms and conditions of
employment.”26 In short, the inequality of bargaining
power between the “individual unorganized worker” and
his employer meant that any agreement between them,
insofar as it restrained the worker’s ability to engage in
protected concerted activity, could not rightly be treated
as binding. The National Labor Relations Act, of course,
is premised on a finding of the same “inequality of bar-
gaining power between employees who do not possess
full freedom of association or actual liberty of contract,
and employers who are organized in the corporate or
other forms of ownership association.” NLRA Sec. 1, 29
U.S.C. § 1.
Federal labor law and policy thus prohibit agreements
in which employees prospectively waive their right to
engage in concerted activity for mutual aid or protection.
This prohibition applies to all such agreements, whether
or not imposed as a condition of employment, including
an agreement to litigate workplace disputes solely
through individual arbitration. The agreement here was
effectively imposed by the Respondent as a condition of
employment, and, as we have explained, it is therefore
unlawful under the rule of D. R. Horton, as reaffirmed in
Murphy Oil. But we would reach the same result even if
the Respondent had permitted employees entirely to re-
ject its Agreement in the first instance, with no conse-
quences for their employment.
3.
Our dissenting colleague, Member Johnson, reiterates
his disagreement with D. R. Horton and Murphy Oil, and
that disagreement forms much of the foundation for his
position in this case. The Murphy Oil majority carefully

4, 11 fn. 5 (1992) (“all variations of the venerable ‘yellow dog contract’
are invalid as a matter of law”) (emphasis added).
24 Sec. 2, 29 U.S.C. § 102.
25 Sec. 4, 29 U.S.C. § 104.
26 Sec. 2, 29 U.S.C. § 102.
refuted Member Johnson’s arguments there.27 We do not
reprise that debate here, but focus instead on his conten-
tions that are specific to this case: (1) that because of its
opt-out provision, the arbitration agreement here was not,
in fact, a mandatory condition of employment; and (2)
that an employer is free to enter into an agreement waiv-
ing an employee’s Section 7 rights, so long as the agree-
ment is deemed voluntary. The practical effect of our
colleague’s view is to entitle employers to use their eco-
nomic power to determine whether and how workers
may collectively pursue their rights under laws enacted
to protect them. We do not see how that view can be
squared with the last eight decades of federal labor law
and policy, which rejects the notion that unrestrained
“freedom of contract” should govern the relationship
between employers and individual employees.
Our colleague asserts that “an employer does not im-
pose a mandatory condition of employment by proffering
an arbitration agreement that permits employees to opt
out.” But this assertion reflects a basic misunderstanding
of what a mandatory condition of employment is. Here,
the employer does not merely proffer employees an
agreement. Rather, it requires employees to very quickly
take affirmative steps if they wish not to be bound by the
agreement—and it does so at the beginning of their em-
ployment, almost certainly before any employment-
related dispute has arisen. As we have explained, the
mandatory condition of employment here is a require-
ment to act—and act fast—in order to preserve Section 7
rights.28 It is simply incorrect to call this “at most a de

27 361 NLRB No. 72, slip op. at 11-16 (responding to Member John-
son’s dissent). As the Murphy Oil majority explained, Member John-
son errs in taking a restrictive view of when concerted legal activity is
protected by Sec. 7 of the Act, in failing to grasp why the right to in-
voke existing class- or collective-action procedures is a substantive
right under the Act, and in treating the Federal Arbitration Act as if it
somehow trumped federal labor law and policy.
28 As two legal scholars have recently observed:
The reality of … opt-out provisions is that they create a presumption
in favor of the waiver because they require affirmative action on the
part of the employee in order for the employee to retain existing statu-
tory rights. Only a very small percentage of employees actually opt
out, and those who do will be able to join collectively only with others
who opt out, thus diminishing the potential size of any class or collec-
tive action.
Stephanie Greene & Christine Neylon O’Brien, The NLRB v. the
Courts: Showdown Over the Right to Collective Action in Workplace
Disputes, 52 American Business Law Journal 75, 119-120 (2015).
That the agreement here recites that opting-out will not subject an
employee to “adverse employment action” is immaterial, contrary to
our colleague’s view. What matters is that the Respondent has subject-
ed all employees to a requirement to take action or forfeit a statutory
right. Nor does Sec. 8(c) of the Act, invoked by our colleague, have
any application in this context: the unfair labor practice in this case is
predicated not on the employer’s expression of the view that arbitration
ON ASSIGNMENT STAFFING SERVICES 9
minimis condition,” as our colleague does, at least if one
accepts that the right to engage in concerted legal activity
is fundamental to the National Labor Relations Act.29
Murphy Oil, like D. R. Horton before it, carefully ex-
plained why employees’ Section 7 right to engage in
concerted legal activity “as a means to secure whatever
workplace rights the law provides them,” is not a proce-
dural right, but a substantive one. 361 NLRB No. 72,
slip op. at 8.30

is preferable, but rather on the mandatory condition of employment it
imposes.
Our colleague takes issue with our citation of Board decisions
holding that employers may not coerce employees by imposing prereq-
uisites to engaging in protected concerted activity or by requiring em-
ployees to make an observable choice to do so (or not). Certainly those
decisions do not directly dictate the result here, but they demonstrate
that our holding accords with a basic labor-law principle: that employ-
ers may not intrude on employees’ freedom to decide whether or not to
engage in protected concerted activity—or, as here, to preserve their
right to do so in the future.
29 Our colleague cites judicial decisions holding that arbitration
agreements with opt-out provisions are “not procedurally unconsciona-
ble,” but our position here is based not on contract-law doctrine, but on
federal labor law. The issue is whether, consistent with the National
Labor Relations Act, employers may subject employees to opt-out
arrangements as a condition of employment. Such a condition may
amount to an unfair labor practice whether or not it would be con-
demned by contract law or some other legal regime. Thus our col-
league misses the point when he observes that the Board is not entitled
to judicial deference for its analysis of a “contractual question.” The
Board is, of course, entitled to deference in interpreting the federal
statute it administers, because Congress entrusted the Board with the
“difficult and delicate responsibility” of “balancing … conflicting
legitimate interests” in order “to effectuate national labor policy.” Beth
Israel Hospital v. NLRB, 437 U.S. 483, 500–501 (1978). See generally
Note, Deference and the Federal Arbitration Act: The NLRB’s Deter-
mination of Substantive Statutory Rights, 128 Harv. L. Rev. 907 (2015).
30 As the Murphy Oil majority observed:
The rights uniquely guaranteed by Section 7 … are, as the Supreme
Court has observed, “collective rights,” and all of them are substantive
rights. As the D. R. Horton Board indicated, Section 7 protects a wide
range of concerted activity by employees who … seek to compel their
employer’s compliance with the Fair Labor Standards Act.
* * *
There is no basis in the Act or its jurisprudence to carve out concerted
legal activity as somehow less entitled to protection than other con-
certed activity.
* * *
The collective rights created by Section 7, by definition, necessarily
involve group action, and all are enforced one way: by the Board
through its processes. This is in clear contrast with statutes like the
Fair Labor Standards Act or the Age Discrimination in Employment
Act, which establish purely individual rights, create private rights of
action, and authorize group litigation only as a means to vindicate in-
dividual rights.
Member Johnson rejects the proposition that federal
labor law and policy preclude employers from making
agreements with individual employees to prospectively
waive the substantive statutory right to engage in con-
certed legal activity. Our colleague insists that in this
context, there is—“as an empirical matter”—no inequali-
ty of bargaining power between employers and individu-
al employees. This claim strikes us as doubtful at best.31
But the empirical debate is beside the point because the
inequality of bargaining power between individual em-
ployees and employers is the explicit premise of federal
labor law and policy, as we have already explained. In
light of what Congress has declared, we cannot accept
our colleague’s claim that an “employee who is truly free
to accept or reject arbitration … is actually an equal bar-
gaining partner with contractual power akin to that of a
union.” The Board is not free to opt out of Section 1 of
the National Labor Relations Act. And employees are no
freer to accept or reject arbitration agreements than other
agreements prospectively waiving Section 7 rights or that
are otherwise invalid under the Norris-LaGuardia Act.
Member Johnson insists that today’s decision “is not
good for the nation,” that assorted legal doctrines “have
been thrown into the sacrificial bonfire,” and that the
Board is “continu[ing] a war between the Act and arbitra-
tion” and “tilting at windmills” in a contest with the
courts. We disagree on all counts of our colleague’s col-
orful indictment. It is certainly true that D. R. Horton
and Murphy Oil have met a skeptical reception in the
lower courts. But, as legal scholars have recently point-
ed out, “few [courts] have given serious consideration to
the merits of the Board’s analysis and the fact that the
case raises issues that have not been addressed by the
Supreme Court.”32 The Board—as the agency with the
“primary responsibility for developing and applying na-
tional labor policy” (in the Court’s words)—need not
apologize for adopting a position so firmly grounded in
Board precedent, in Supreme Court decisions, and in
federal statutes.

361 NLRB No. 72, slip op. at 8 (emphasis in original), quoting Em-
porium Capwell Co. v. Western Addition Community Organization, 420
U.S. 50, 62 (1975).
31 No empirical evidence is cited for our colleague’s empirical claim.
That an employer is able to impose a uniform arbitration agreement on
all of its employees as a condition of employment certainly suggests
that the employer has considerably greater bargaining power than any
individual employee. See generally Alexander J.S. Colvin, Mandatory
Arbitration and Inequality of Justice in Employment, 35 Berkeley Jour-
nal of Employment & Labor Law 71, 78 (2014) (explaining that a
“number of factors tend to result in employees having relatively less
bargaining power than employers”).
32 Greene & O’Brien, The NLRB v. the Courts, supra, 52 American
Business Law Journal at 121.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.33
III.
On the entire record, the Board makes the following
FINDINGS OF FACT
JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration with an office and place of business in Cincin-
nati, Ohio, has been engaged in the business of providing
staffing services to various employers located throughout
the United States.
During the 12-month period ending December 31,
2012, the Respondent, in conducting its operations de-
scribed above, provided services valued in excess of
$50,000 in states other than the State of Ohio.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
Since about October 2012, the Respondent has prom-
ulgated, maintained, and enforced the Dispute Resolution
Agreement. The Agreement requires that employees
bring all disputes arising out of or related to their em-
ployment or termination from employment to individual
binding arbitration, and precludes employees not current-
ly participating in specified wage and hour litigation (i.e.,
“The Freeman Case”) from later participating in that or
other class actions unless they opt out of the Agreement,
thereby interfering with employees’ Section 7 right to
engage in collective legal activity.
CONCLUSIONS OF LAW
1. The Respondent, On Assignment Staffing Services,
Inc., is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By promulgating and maintaining a mandatory arbi-
tration agreement under which employees are compelled,
as a condition of employment, to waive the right to main-
tain class or collective actions in all forums, whether
arbitral or judicial, unless employees individually opt out
of the waiver, the Respondent has engaged in unfair la-
bor 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.

33 We deny the Respondent’s Cross-Motion for Summary Judgment.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to rescind or revise the Agreement. Because
the Respondent utilized the Agreement on a nationwide
basis, we shall order that the Respondent post a notice at
all locations where the Agreement was in effect. See D.
R. Horton, 357 NLRB No. 184, slip op. at 13.
ORDER
The Respondent, On Assignment Staffing Services,
Inc., Castro Valley, California, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) 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, unless employ-
ees individually opt out of the waiver.
(b) 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 or revise the Dispute Resolution Agree-
ment to make clear to employees that the Dispute Reso-
lution Agreement does not constitute a waiver of their
right to maintain employment-related class or collective
actions in all forums.
(b) Notify all current and former employees who were
issued the Dispute Resolution Agreement that the Dis-
pute Resolution Agreement has been rescinded 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 facility in Castro Valley, California, and any other
facility where the Dispute Resolution Agreement has
been in effect, copies of the attached notice marked “Ap-
pendix.”34 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices

34 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.”
ON ASSIGNMENT STAFFING SERVICES 11
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, 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 notic-
es are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current and former employees
employed by the Respondent at any time since October
2012.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 32 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., August 27, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting.
Doubling down on the novel and untenable doctrines
expounded in Murphy Oil USA1 and D. R. Horton,2 the
Board today holds both (1) that an agreement to individ-
ually arbitrate employment-related disputes that permits
employees to opt out nevertheless constitutes an unlaw-
ful mandatory condition of employment and (2) that,
regardless, an employee may not voluntarily agree with
an employer to resolve future disputes by individual arbi-
tration. As discussed in detail in my dissent in Murphy
Oil, above, slip op. at 35–58, I fundamentally disagree
with the Board’s central holdings in that case and in D.
R. Horton, above, which invalidate class action waivers
in arbitration agreements. For these reasons alone, I
would find that the Respondent here has not violated the
Act by maintaining its arbitration agreement. Because,
however, my colleagues continue to extend D. R. Hor-
ton’s flawed rationale where no Board has gone before—

1 361 NLRB No. 72 (2014).
2 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d
344 (5th Cir. 2013).
this time, to micromanage mechanisms of contract for-
mation—I again dissent.
The more my colleagues extend our law beyond the
recognized principle that employees engage in activity
protected by Section 7 when they actively join together
to initiate or further a lawsuit, the more I have to disa-
gree.3 Here is why. Contrary to my colleagues, Section
7 does not create a distinct protection for a substantive
right conferred by a different statute, much less confer a
substantive protection for a particular litigation proce-
dure.4 By holding in Murphy Oil and D. R. Horton that
Section 7 guarantees access to various class or repre-
sentative procedures derived from statutes different from
the Act, my colleagues thus extended the sweep of the
Act’s protection over territory far removed from any real
concerted activity. Today they overextend Section 7 yet
a step further. Now, not only does Section 7 make these
procedures unwaivable and make mandatory individual-
specific arbitration contracts unlawful, but it goes so far
as to render unlawful a contract-formation mechanism
universally recognized as placing employees on the same
footing as their employers when it comes to agreeing to
an arbitration contract. This mechanism, the “opt-out”
method, is popular in the world of arbitration agreements
precisely because it does not condition the employee’s
final acceptance of arbitration as a dispute resolution
system on any other term or condition of employment.
Thus, the employee is free to accept or reject the arbitra-
tion agreement, depending on whether he or she finds the
agreement advantageous. The majority finds otherwise,
departing from the wisdom of many court decisions that
have held the opt-out process valid and voluntary. See I,
infra.5
That the majority is now overturning principles of con-
tract law and mechanisms of contract formation in the
service of D. R. Horton and Murphy Oil shows that these

3 Such activity is protected because such a lawsuit is “engaged in
with or on the authority of other employees, and not solely by and on
behalf of the employee himself.” Meyers Industries, 281 NLRB 882,
885 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988). See also Murphy Oil, above,
slip op. at 40 (Member Johnson, dissenting). The Federal Arbitration
Act, however, must be respected if an arbitration agreement between
employees and their employer modifies or abrogates typical joinder
principles as part of the arbitration procedure.
4 See Emporium Capwell Co. v. Western Addition, 420 U.S. 50, 72–
73 (1975) (Sec. 8(a)(1) is not violated simply because Title VII has
been violated).
5 The opt-out mechanism forms the contract if the employee remains
silent (i.e., does not reject the contract) during the passage of the opt-
out period. Under the American system of contract formation, silence
can constitute acceptance of a contract if the parties have expressly
agreed that it shall, by, for instance, expressly agreeing to an opt-out
formation process during employment. See RESTATEMENT (SECOND)
OF CONTRACTS §§ 4 cmt. a, 19 (1981).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decisions really have no boundary. Under the majority’s
rationale, any contract between an employee and em-
ployer with some slight, tangential connection to poten-
tially inconveniencing a Section 7 right could potentially
constitute an unfair labor practice. Surely, it was not
Congress’s purpose in enacting the NLRA to undermine
or preempt the common law rules of contract formation
in this way. If the Act precludes the formation of a con-
tract with such an extremely attenuated effect upon any
possible concerted activity as the opt-out arbitration
agreement at issue here, it is hard to imagine that it does
not also preclude other common employment agreement
procedural provisions, such as setting deadlines for em-
ployees filing claims, or simply putting the onus on the
employee to take any action, in relation to a dispute.6
The absurdity of this consequence of the majority’s
analysis underscores the fundamental flaw in its premis-
es: that Section 7 is an independent source of rights even
though those rights were created by or embodied in stat-
utes other than the Act. The logical corollary to the ma-
jority’s position is that if no other statutory scheme had
created a procedural mechanism for class, collective, or
representative procedures, Section 7 would somehow do
so, in and of itself. But we know, because the Supreme
Court has instructed us, that the Act does not duplicate
the protection of substantive rights provided by statutes
other than the Act.7 Nor, and for the same reasons, can
Section 7 provide for additional or duplicative procedur-
al rights beyond those prescribed by the various rules
governing class, collective, or representative procedures.
Reasonable deadlines are part and parcel of administra-
tive procedure under the NLRA as well as judicial pro-
cedure under the Federal Rules of Civil Procedure and
their state equivalents. The requirement that parties act
within established deadlines in order to preserve legal
rights is an ordinary feature of our legal system and does
not vitiate the right at issue, whether that right springs

6 Of course, the danger of finding a tangential effect to constitute an
unfair labor practice extends beyond the realm of contract procedures
for agreements with individual employees. This would also apply to
more substantive provisions that might tangentially affect employees’
Section 7 rights, such as those concerning confidentiality or intellectu-
al-property protections. Indeed, there is no reason why grievance pro-
cedures in collective-bargaining agreements might not also come under
attack, as the deadlines and requirements they present also tangentially
hamper employees in asserting their Section 7 rights.
7 Emporium Capwell, above, at 71–72 (“assuming that [Title VII] s
704(a) protects employees’ picketing . . . of their employer, the same
conduct is not necessarily entitled to affirmative protection from the
NLRA”); see also Meyers, 281 NLRB at 887-888 (rejecting doctrine
that “a single employee’s invocation of a statute enacted for the protec-
tion of employees generally” was concerted activity).
from the Constitution itself,8 the common law,9 or Feder-
al statute.10 Thus, even assuming, arguendo, that Section
7 does encompass a substantive right to pursue class pro-
cedures, an affirmative requirement that an employee act
to preserve such a right by sending an email or mailing a
letter within a 10-day period—as my colleagues say
“very quickly”—would not vitiate the right. My col-
leagues’ holding to the contrary rests upon the same
NLRA exceptionalism that underpinned the majorities’
findings in D. R. Horton and Murphy Oil that the NLRA
must trump the Federal Arbitration Act and decades of
Supreme Court interpretations of that law. Accordingly,
there is no conflict between the opt-out contract for-
mation mechanism used by the employer here and em-
ployees’ rights under the Act.
I. AN ARBITRATION AGREEMENT THAT PERMITS
EMPLOYEES TO OPT OUT IS NOT A MANDATORY
CONDITION OF EMPLOYMENT.
Contrary to my colleagues, an employer does not im-
pose a mandatory condition of employment by proffering
an arbitration agreement that permits employees to opt
out. To begin with, the Board has no special expertise in
analyzing whether such an agreement is voluntary or
mandatory. And Congress has delegated to the Board no
special interpretive authority by virtue of which the
Board’s analysis of such a contractual question would be
due any deference from a reviewing court.11 Thus, the
starting point for our analysis of this question should be
to look to the courts, which do have expertise in contract
interpretation, for guidance. And the courts have uni-
formly held that a meaningful opportunity to opt out
makes an arbitration agreement voluntary, and thus not
procedurally unconscionable.12 Simply put, a condition

8 For example, a defendant waives the Seventh Amendment right to
a jury trial by failing timely to assert it. FED. R. CIV. P. 38(a), (d).
9 For example, a property owner may lose the common law right to
exclude others from her property by failing to assert the right over a
period of time. RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17
(2000).
10 For example, a labor organization loses the protection of the Act
in certain circumstances by failing to provide timely notice prior to
conducting an otherwise protected work stoppage. 29 U.S.C. § 158(g).
11 See Chevron USA, Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 865–866 (1984).
12 See, e.g., Davis v. O’Melveny & Meyers, 485 F.3d 1066, 1073 (9th
Cir. 2007) (“if an employee has a meaningful opportunity to opt out of
the arbitration provision when signing the agreement and still preserve
his or her job, then it is not procedurally unconscionable”); Legair v.
Circuit City Stores Inc., 213 Fed. Appx. 436, 439 (6th Cir. 2007) (when
plaintiff “failed to take the required action to opt out. . . . [he] by his
conduct demonstrated his agreement to be bound.”); Garrett v. Circuit
City Stores, Inc., 449 F.3d 672, 675 & fn. 2 (5th Cir. 2006) (employee
agreed to arbitrate dispute at issue where he had had notice and an
opportunity to opt out of arbitration agreement but did not do so); Cir-
cuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1109 (9th Cir. 2002)
ON ASSIGNMENT STAFFING SERVICES 13
of employment that an employee can unilaterally avoid is
not a mandatory condition.13 Unfortunately, my col-
leagues instead conclude—in an opinion that flies in the
face of the considered judgment of those courts which
have addressed the issue—that an arbitration agreement
with an opt-out option is a mandatory condition of em-
ployment.14
My colleagues further assert that, despite the fact that
the arbitration agreement’s opt-out feature permits em-
ployees to pursue class or representative actions, it nev-
ertheless coerces them in the exercise of their Section 7
rights. This assertion is equally unfounded. To the ex-

(where employee could “mull over whether to opt out of [the agree-
ment, he] . . . assented . . . by failing to exercise his right to opt out”);
Circuit City v. Ahmed, 283 F.3d 1198, 1199 (9th Cir. 2002) (arbitration
agreement not procedurally unconscionable where employee had mean-
ingful opportunity to opt out); Michalski v. Circuit City Stores, Inc.,
177 F.3d 634, 636 (7th Cir. 1999) (employee “was free not to arbitrate;
she was given a choice and she chose—by not signing the opt-out pro-
vision—to be bound”).
13 Indeed, the Board has recently found a worker’s inability to uni-
laterally change working conditions to be a significant indicator that the
worker is not an independent contractor, but a true employee. FedEx
Home Delivery, 361 NLRB No. 55 (2014).
14 That employees must necessarily accept, before opting out, that
there will be an opt-out mechanism presents at most a de minimis con-
dition. My colleagues vigorously disagree, persisting in labeling the
opt-out process a mandatory condition of employment and, further,
claiming an entitlement to deference from the courts in doing so. I
respect their views, but whether arbitration is a mandatory or voluntary
condition of employment is not a creature of the Act. It is instead part
of contract law, and the courts have repeatedly found that the opt-out
process results in a voluntary condition of employment. See, e.g.,
Tillman v. Macy’s, Inc., 735 F.3d 453, 461 (6th Cir. 2013) (“Because
the information conveyed in the [arbitration agreement] and brochure
was part of a valid offer, and because [the employee] accepted that
offer by continuing her employment with Macy’s without returning an
opt-out form, it follows that [the employee] knowingly and voluntarily
assented to all of its terms…”) (internal footnote omitted). Moreover,
the evaluation of procedural unconscionability in an agreement often
turns on whether the agreement is truly voluntary, and courts have
repeatedly ruled that opt-out agreements are voluntary in this regard.
E.g., Grynko v. Sears Roebuck and Co., 2014 WL 66495, *6 (N.D.
Ohio, January 6, 2014) (“Plaintiff argues that the [Arbitration] Agree-
ment is procedurally unconscionable for two reasons. First, the
Agreement does not allow employees to “negotiate the terms or condi-
tions” of the Agreement. ... The Court disagrees. As to the first reason,
if an employee does not agree with the terms or conditions of the
Agreement, she can opt out of the Agreement.”). Something that the
courts have repeatedly recognized is voluntary and valid then logically
cannot serve as the basis for an unfair labor practice. Notably, even the
academic source my colleagues cite on “mandatory arbitration”
acknowledges that, in mandatory arbitration, the employer makes the
decision to adopt arbitration, not the employees. See Alexander J.S.
Colvin, Mandatory Arbitration and Inequality of Justice in Employ-
ment, 35 Berkeley Journal of Employment & Labor Law 71, 78 (2014)
(“[T]he incidence of mandatory arbitration is not the product of calcu-
lation of desirability by the individual employee. … Rather, whether
any given employee must bring individual rights claims through a
mandatory arbitration procedure depends on the decision of his or her
employer to adopt the procedure for its employees.”) (emphasis added).
tent that it is the employer’s expressed or implied prefer-
ence that employees do not opt out, Section 8(c) of the
Act precludes any finding by the Board that the employ-
er’s mere advocacy of its agreement constitutes or evi-
dences an unfair labor practice. Nor is there a shred of
evidence that the Respondent has retaliated or threatened
retaliation against employees who have chosen to opt out
of the agreement. Indeed, the Respondent’s Dispute
Resolution Agreement expressly provides that “[a]n em-
ployee who timely opts out of the Agreement…will not
be subjected to any adverse employment action as a con-
sequence of that decision and may pursue available legal
remedies without regard to this Agreement.”
My colleagues point to cases in which the Board has
held that an employer unlawfully coerces its employees’
choices by requiring employees to obtain permission to
engage in protected activity, to give advance notice prior
to engaging in protected activity, or to make an observa-
ble choice that demonstrates their support for or rejection
of protected activity.
None of those cases control here. First, Chromalloy
Gas Turbine Corp.,15 and Brunswick Corp.,16 involved
work rules that were unlawful because they required em-
ployees to secure permission from their employer before
engaging in protected activity. Here, employees can opt
out of the arbitration agreement without seeking any em-
ployer permission. Next, in Special Touch Home Care
Services,17 the Board found unlawful a requirement that
individual employees give notice prior to engaging in
protected activity. And, in Allegheny Ludlum Corp.,18
and multiple other cases cited by the majority, the Board
has held that an employer may not lawfully require em-
ployees to make an observable choice that demonstrates
their support for or rejection of concerted activity. Here,
however, employees’ choice to opt out is not directly
observable by any representative of management whose
actions directly affect their working conditions. And,
there is no evidence that the employees’ supervisors
knew who was opting out. Indeed, the Respondent’s
Dispute Resolution Agreement provides that employees
who choose to opt out are to send their completed opt-out
forms to Human Resources, which will maintain the
forms in a file separate from employees’ personnel files.
Furthermore, even if an employee’s choice to opt out
were directly observable, it would not be the equivalent
of the prior-notice requirement or observable choices

15 331 NLRB 858, 858-859 (2000), enfd. 262 F.3d 184 (2d Cir.
2001).
16 282 NLRB 794, 794-795 (1987).
17 357 NLRB No. 2, slip op. at 7 (2011), enfd. in part 708 F.3d 447
(2d Cir. 2013).
18 333 NLRB 734, 740 (2001), enfd. 301 F.3d 167 (3d Cir. 2002).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
burdening employees’ Section 7 rights that appear in the
cases cited by the majority. Unlike in those cases, the
choice faced by employees here is not a proxy for their
attitudes toward Section 7 activity because employees
choose not simply to opt out of the class action waiver,
but rather to opt out of the arbitration agreement as a
whole, and all of its terms. Employees might choose to
opt out of the arbitration agreement because they like
judges and juries better than arbitrators, or because of
some other term or feature of the agreement equally un-
reflective of their inclination to file a class or representa-
tive action. Their choice to do so therefore does not in-
dicate to their employer that they support, or intend to
engage in, concerted activity.
To the extent that my colleagues suggest that there
cannot be a true and non-coercive agreement between an
employer and an employee simply because the employer
advocates for the agreement, they turn both contract doc-
trine and the policy goals of the NLRA—discussed in
detail below—on their heads. As discussed above, courts
have repeatedly found that arbitration agreements are not
procedurally unconscionable contracts of adhesion where
employees have the ability voluntarily to opt out. Here,
there is absolutely no evidence of any retaliation, or
threat thereof, toward any employee who chose to opt out
of the agreement. In sum, any conclusion that the
agreement here is not voluntary is untenable.19
II. A VOLUNTARY AGREEMENT TO INDIVIDUALLY
ARBITRATE EMPLOYMENT-RELATED DISPUTES DOES NOT
VIOLATE THE ACT.
The Board exists, in part, to redress the inequality of
bargaining power between employers and their employ-
ees, who did not, when the NLRA was enacted in 1935,
generally “possess . . . actual liberty of contract.”20 We
continue to address such inequality where it persists, as
we should, but it does not persist here as an empirical
matter. 21 To the contrary, the Respondent here—by vir-

19 My colleagues believe that my view “entitle[s] employers to use
their economic power to determine whether and how workers may
collectively pursue their rights…” I disagree. First, it is the employ-
ee’s voluntary decision to opt out that determines “whether” that em-
ployee may collectively pursue his or her rights. That is obviously up
to the employee and not the employer, as explained above. Second, in
terms of “how” an employee may pursue such rights, regardless of the
“economic power” of the parties, our legal system has traditionally
recognized limitations imposed by both law and private agreement.
The Act is not a license to wipe out those limitations.
20 29 U.S.C. § 151.
21 The Agreement on its face evidences the absence of bargaining in-
equality here. It states, without reservation, “[i]f Employee does not
want to be subject to this Agreement, Employee may opt out,” and “an
employee who timely opts out . . . will not be subjected to any adverse
employment action as a consequence of that decision . . . .” Moreover,
it is an observable fact that, across the nation, employees have opted
tue of its own binding contractual surrender of its right
not to employ someone who does not agree to its pre-
ferred terms of employment—ensures that its employees
are actually free not to contract with it to arbitrate their
employment disputes. Rather, they will and must con-
tinue to be employed if they exercise that freedom. The
Act’s legislative purpose does not speak to such a condi-
tion. We should not read the Act so as to punish em-
ployers who choose truly to surrender their contractual
rights and all their bargaining power by nullifying their
voluntarily-entered-into agreements.
Notably, the Supreme Court has held that employees
qua employees are not generally a special class that is
immune from the ordinary principles of contract interpre-
tation, which are applicable to arbitration agreements
under the Federal Arbitration Act (FAA).22 Employees
may enter into and be bound by FAA-compliant agree-
ments just like any other party. To hold, as my col-
leagues do today, that one party can never be held to its
voluntary arbitration agreement simply because that par-
ty is an employee is blatant discrimination against arbi-
tration agreements, a position that the Supreme Court has
condemned throughout the history of the FAA. The ma-
jority’s logic here must fail on this basis alone.
And, an employee who is truly free to accept or reject
arbitration—as are the employees here—is actually an
equal bargaining partner with contractual power akin to
that of a union. The Supreme Court long ago made clear
that the Board may not interfere with such balance under
the guise of deciding cases.23 By contorting the Act to
offer additional protection to a party that is already on
equal contract footing, my colleagues undermine, rather
than encourage, “practices fundamental to the friendly

out of opt-out agreements without repercussion. My colleagues’ sug-
gestion that there is bargaining inequality where an employer can “im-
pose a uniform arbitration agreement on all of its employees as a condi-
tion of employment” is inapposite: no agreement is imposed here, but
merely offered. An employee who declines to participate stands to lose
nothing but the potential benefits of arbitration over litigation. The
premises of federal labor law and policy do not dictate that we ignore
the facts before us in a particular case. To make our decisions in light
of those facts is not, contrary to my colleagues’ suggestion, to “opt out
of Section 1 of the National Labor Relations Act,” but to fulfill our
statutory duty to interpret the Act as it applies to the nation’s continu-
ously changing employment landscape.
22 9 U.S.C. § 1 et seq. See Circuit City v. Adams, 532 U.S. 105, 109
(2001) (finding FAA covers every class of employees except transpor-
tation workers and seamen and that employee was bound to arbitration
agreement); Perry v. Thomas, 482 U.S. 483, 489 (1987) (state law
precluding arbitration of employee claims struck down); see also Equal
Employment Opportunity Commission v. Luce, Forward, Hamilton &
Scripps, 345 F.3d 742, 749–750 (9th Cir. 2003).
23 See American Shipbuilding Co. v. NLRB, 380 U.S. 300, 316–317
(1965); NLRB v. Insurance Agents International Union, 361 U.S. 477,
499–500 (1960).
ON ASSIGNMENT STAFFING SERVICES 15
adjustment of industrial disputes,” in direct contravention
of the Act’s foundational policies.24 And, the majority’s
rationale also falls afoul of Section 8(c), which should
allow an employer to advocate for its arbitration agree-
ment, without that advocacy being considered evidence
contributing to an unfair labor practice finding.
Nor do my colleagues’ arguments provide any compel-
ling support for their conclusion. The majority relies on
cases in which the Board has held that employees may
not prospectively waive substantive rights to conclude
that the arbitration agreement here is unlawful even if it
is voluntary. Again, this conclusion rests on a funda-
mental misconception underlying the decisions in D. R.
Horton and Murphy Oil concerning the nature of the
concerted activity protected by Section 7.
My colleagues cannot assert that the use of an arbitral
forum in itself denies a party any substantive right.25
And, the Supreme Court has held that the use of class
action procedures is not a substantive right.26 This ques-
tion has been thoroughly litigated, and numerous deci-
sions hold that various employment-related statutes—
even those that explicitly contemplate class or collective
procedures—do not guarantee class litigation. Thus, the
Supreme Court has determined that there is no substan-
tive right to collective procedures under the Age Dis-
crimination in Employment Act (ADEA),27 despite the
statute expressly providing for collective procedures.28
Similarly, numerous courts have held that there is no
substantive right to proceed collectively under the Fair
Labor Standards Act (FLSA),29 despite the fact that the
FLSA, like the ADEA, explicitly provides for class ac-
tion suits.30 Nor is there any such right under the Uni-
formed Services Employment and Reemployment Rights

24 29 U.S.C. § 151.
25 See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 626–627 (1985). Indeed the majority’s reconciliation of
the NLRA and the FAA in Murphy Oil, above, presupposes that the
flaw in a class-action waiver in an arbitration agreement lies only in its
proscription of the ability to pursue claims as a class, and not in its
prescription of the arbitral forum. See, e.g., Murphy Oil, above slip op.
at 6 (“Finding a mandatory arbitration agreement unlawful [in this
context] . . . does not conflict with the Federal Arbitration Act or un-
dermine its policies, because . . . such a finding treats an arbitration
agreement no less favorably than any other private contract that con-
flicts with federal law.”).
26 See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612–613
(1997); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332
(1980); Murphy Oil, above, slip op. at 42-44 (Member Johnson, dis-
senting).
27 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991).
28 29 U.S.C. § 621 et seq.
29 Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 298 (5th
Cir. 2004); see also Adkins v. Labor Ready, Inc., 303 F.3d 496, 505–
506 (4th Cir. 2002); Kuehner v. Dickinson & Co., 84 F.3d 316, 319–
320 (9th Cir. 1996).
30 29 U.S.C. § 201 et seq.
Act (USERRA).31 Finally, even though precedent under
Title VII of the Civil Rights Act of 1964 (Title VII)32
expressly provides for pattern and practice claims on
behalf of a group of employees, there is no right for em-
ployees to proceed as a class in a Title VII action.33 Be-
cause no employment statute provides for a substantive
right to a class or collective procedure, the arbitration
agreement here does not involve the prospective waiver
of any substantive statutory right.34
In any event, the Board has long recognized that
“[a]rbitration as a means of resolving labor disputes has
gained widespread acceptance . . . and now occupies a
respected and firmly established place in Federal labor
policy” with the strong endorsement of the Supreme
Court.35 For this reason, the Board generally refrains
from adjudicating unfair labor practice issues that arise
from a collective-bargaining agreement where the
agreement provides, as most do, for arbitration as a
method of resolving disputes over the meaning of its
provisions.36 Granted, a distinction can be made between
an agreement to arbitrate disputes that is contained with-
in a collective-bargaining agreement and one into which
an employee voluntarily enters on an individual basis.37
But, from the perspective of an employee whose entire
period of employment occurs during the term of one or
more collective-bargaining agreements that “waive” his
or her Section 7 rights by permanently consigning their
adjustment to arbitration, the distinction is one that
makes no difference. The Act permits, and the Board

31 38 U.S.C. § 4301 et seq. See Garrett v. Circuit City Stores, Inc.,
449 F.3d 672, 680–681 (5th Cir. 2006).
32 42 U.S.C. § 2000 et seq.
33 Parisi v. Goldman, Sachs & Co., 710 F.3d 483, 487–488 (2d Cir.
2013).
34 My colleagues posit that an employer cannot impose “a require-
ment to take action or forfeit a statutory right,” citing a law review
article that argues that opt-out mechanisms “create a presumption in
favor of the waiver because they require affirmative action on the part
of the employee.” But, since arbitration agreements themselves can
permissibly result in the total forfeiture of the constitutional right to a
jury trial, a mere procedural requirement related to the potential for-
mation of such an agreement cannot possibly constitute a burden un-
lawful under our statute, which important though it is, enjoys lesser
footing than the Constitution. Moreover, as I explain above, a require-
ment of affirmative action to preserve rights is not alien to our system
of law, including labor law.
35 United Technologies Corp., 268 NLRB 557, 558 (1984) (citing
Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steelworkers
v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Steelworkers
v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) (commonly
referred to collectively as the Steelworkers Trilogy); Textile Workers v.
Lincoln Mills, 353 U.S. 448 (1957)).
36 Collyer Insulated Wire, 192 NLRB 837 (1971).
37 This difference may underlie the majority’s somewhat puzzling
claim to leave unresolved the question of whether a voluntary agree-
ment to resolve a particular dispute through non-class arbitration would
be lawful.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and the courts enthusiastically endorse, prospective
agreements to resolve disputes by arbitration in the union
context; the current context should be no different. As
expressed in my Murphy Oil dissent (and the Murphy Oil
partial dissenting opinion by Member Miscimarra), Sec-
tion 9(a) of the Act protects an employee’s right “at any
time” to agree on the “individual” adjustment of dis-
putes, which encompasses any individual agreement to
engage in arbitration.38
Even if there were a prospective waiver of a substan-
tive statutory right, a proper accommodation of the
NLRA and the FAA would require finding that such a
waiver does not violate the Act. Apart from the concerns
discussed above, the majority’s theory that an employee
cannot prospectively and bindingly agree to arbitrate
employment-related disputes obliterates one of the three
fundamental statutory attributes of arbitration under the
FAA: the irrevocability of an agreement to settle disputes
by arbitration.39 The Act cannot be read in such an abso-
lutist fashion.40
Finally, the majority’s remaining arguments, which are
largely a reprise of those presented in Murphy Oil, re-
main unconvincing. Their reliance on National Licorice
Co. v. NLRB41 and J.I. Case Co. v. NLRB,42 avails them
no more here than it did in Murphy Oil. As described in
my Murphy Oil dissent, slip op. 48-49, in National Lico-
rice, the agreements themselves had been procured as
part of an overall scheme to prevent unionization, and, in
J.I. Case, the employer was attempting to refuse to bar-
gain with a majority union on the basis of individual
agreements previously obtained. Neither of those cases
have anything to do with individual opt-out arbitration
agreements formed as a matter of ordinary course, with
no union present or waiting in the wings.
As in Murphy Oil, the majority concludes by again
claiming that the Norris-LaGuardia Act makes individu-
al-specific arbitration agreements the equivalent of “yel-
low dog” contracts and by again subordinating the FAA,
the text of which obviously militates against the majori-
ty’s position here. But they are no more correct now
than they were then. Neither the text of these statutes nor

38 Sec. 9(a). See Murphy Oil, slip op. at 47-48 (Member Johnson,
dissenting); id., slip op. at 30–34 (Member Miscimarra, dissenting in
part).
39 9 U.S.C. § 2 (stating that “A written provision in . . . a contract . . .
to settle by arbitration a controversy . . . shall be valid, irrevocable, and
enforceable”) (emphasis added).
40 Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (“[T]he
Board has not been commissioned to effectuate the policies of the La-
bor Relations Act so single-mindedly that it may wholly ignore other
and equally important Congressional objectives.”).
41 309 U.S. 350 (1940).
42 321 U.S. 332 (1944).
the precedent interpreting them supports the majority’s
interpretation. The Norris-LaGuardia Act does not sanc-
tion the breach of FAA-protected arbitration contracts,
and the FAA has not been overridden by any “express
congressional command,” as the Supreme Court would
require. See Murphy Oil, slip op. 49–51, 54–55 (Mem-
ber Johnson, dissenting). The majority cannot point to a
single court decision since Murphy Oil issued that sup-
ports their view of these statutes—statutes over which
the courts and not the Board have expertise. See Patter-
son v. Raymours Furniture Co., No. 14– CV5882–VEC,
–––F.Supp.3d ––––, ––––, 2015 WL 1433219, at *7 and
fn. 7 (S.D.N.Y. Mar. 27, 2015) (declining to apply Mur-
phy Oil, instead following binding Second Circuit prece-
dent rejecting D. R. Horton to enforce a class action
waiver, and observing that “the NLRB stands alone in
holding that the NLRA overrides the FAA relative to
class action waivers”); Nanavati v. Adecco USA, Inc.,
No. 14–CV–04145–BLF, 2015 WL 4035072, at *2 (N.D.
Cal. Jun. 30, 2015) (observing that “every court to have
considered Horton I and Murphy Oil has rejected the
reasoning in those opinions…”); Hobson v. Murphy Oil
USA, Inc., No. CV–10–S–1486–S, 2015 WL 4111661, at
*2 (N.D. Ala. Jul. 8, 2015) (citing D. R. Horton and ob-
serving that “the NLRB’s decisions are not entitled to
deference when they concern the interpretation of the
Federal Arbitration Act, or any statutory provision other
than the NLRA”).
CONCLUSION
Two overarching reasons compel this dissent. First,
the continued undermining of arbitration principles in the
service of the Murphy Oil theory, and its expansion, is
not good for the nation. Now, with this opinion, ordinary
contract formation doctrines, typical opt-out provisions,
and even traditional concepts of voluntariness have also
been thrown into the sacrificial bonfire. What we are
sacrificing is not some second-class forum for the resolu-
tion of employment disputes, but arbitration. Arbitration
is a time-honored system of dispute resolution which
used to be thought synonymous with labor peace. I see
no reason to continue a war between the Act and arbitra-
tion. Arbitration agreements, including the individual-
specific ones, are indeed a valid and a preferred system
of dispute resolution, not only according to the express
decisions of the Supreme Court and the mandate of the
Federal Arbitration Act, but also according to most par-
ticipants in our nation’s economy. This war should have
never started, and it should have stopped right here in
this opinion.
Second, although the Murphy Oil decision was made
ostensibly on behalf of employee rights, its continuation
is not cost-free to employees. The courts are independ-
ON ASSIGNMENT STAFFING SERVICES 17
ent actors. As shown above, they have not adopted the
Board’s basic theory in Murphy Oil, and will be even
less inclined to agree with this new permutation overrid-
ing yet more traditional contract doctrine. More im-
portantly, it is the courts who determine the ultimate fate
of the class action lawsuits before them. Employees who
actually believe in the protection the Board is offering
here, and who delay their lawsuits for Board resolution,
may find that protection a mirage. As a striking exam-
ple, Judge Charles Lynwood Smith Jr., the federal dis-
trict court judge in the underlying Murphy Oil lawsuit,
dismissed the employees’ claim with prejudice because
they chose to keep arguing that D. R. Horton and Murphy
Oil were correct rather than proceeding in arbitration, as
he had ordered:
More substantively, plaintiffs have not cited any au-
thority to support their outlandish suggestion that a fed-
eral court order is without effect if there is a related
proceeding pending before the NLRB. If plaintiffs truly
were concerned about their rights under the NLRA be-
ing “irreparably harmed” by the requirement to arbi-
trate their individual claims, they could have requested
either a stay of the arbitration order pending an out-
come of the proceedings before the NLRB, or permis-
sion to seek an interlocutory appeal. They did neither.
Instead, they simply disregarded this court’s order be-
cause it required them to do something they did not
want to do. That is not “reasonable behavior.”
Hobson, 2015 WL 4111661, at *2. Judge Smith is
quite correct in noting that we as a Board cannot inher-
ently postpone or supersede court orders in these law-
suits. In a contest between the Board and the courts here,
we are tilting at windmills. I do not think the majority
intends to turn Section 7 into a siren song dooming other
employee rights to a premature litigation graveyard. But,
this is inevitable so long as the Board persists in forward-
ing a theory that lacks soundness, forfeits judicial defer-
ence, and then crawls at the typical slow pace of Board
adjudication.43 I respectfully wish that my colleagues
had taken a different path.
______________________________________
Harry I. Johnson, III, Member

43 The Board chose not to take D. R. Horton directly to the Supreme
Court via a petition for certiorari.
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 ben-
efit and protection
Choose not to engage in any of these protected
activities.
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,
unless they opt out of the waiver.
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 or revise the Dispute Resolution
Agreement to make clear that the Dispute Resolution
Agreement does not constitute a waiver of your right to
maintain employment-related class or collective actions
in all forums.
WE WILL notify all current and former employees who
were issued the Dispute Resolution Agreement that the
Dispute Resolution Agreement has been rescinded or
revised and, if revised, provide them a copy of the re-
vised agreement.
ON ASSIGNMENT STAFFING SERVICES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-095025 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.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD