RPM Pizza LLC

National Labor Relations Board - Board Decisions

Dec 22, 2015

363 NLRB No. 82 (N.L.R.B. 2015)

363 NLRB No. 82
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
RPM Pizza, LLC and Dale Firmin. Case 15–CA–
113753
December 22, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On July 11, 2014, Administrative Law Judge Donna N.
Dawson issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decision in D.
R. Horton, 357 NLRB No. 184 (2012), enf. denied in
relevant part, 737 F.3d 344 (5th Cir. 2013), that the Re-
spondent violated 8(a)(1) by maintaining, threatening to
enforce, and enforcing an arbitration policy (“Arbitration
Agreement”) that requires employees, as a condition of
employment, to waive their rights to pursue class or col-
lective actions involving employment-related claims in
all forums, whether arbitral or judicial.1 In Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), enf. denied in part,
Murphy Oil USA, Inc. v. NLRB, No. 14–60800, __ F.3d
__, 2015 WL 6457613 (5th Cir. Oct. 26, 2015), the
Board affirmed the relevant holdings of D. R. Horton.2
The Board has considered the decision and the record
in light of the exceptions3 and briefs and, based on the

1 In so finding, the judge stated inadvertently that the Respondent
“did the opposite of what the Board in D. R. Horton specifically for-
bid[s]”, rather than stating that the Respondent “did exactly what the
Board in D. R. Horton forbids.”
2 The Respondent argues that the Board had only two valid mem-
bers at the time D. R. Horton issued because, in the Respondent’s view,
the recess appointment of then-Member Becker was constitutionally
invalid under NLRB v. Noel Canning, 134 S.Ct 2550 (2014), and that
the Board therefore lacked a quorum. New Process Steel, L.P. v.
NLRB, 560 U.S. 674 (2010). We reject this argument for the reasons
set forth in Murphy Oil, slip op. at 2 fn. 16. See also Mathew Enter-
prise, Inc., v. NLRB, 771 F.3d 812, 813 (D. C. Cir. 2014) (holding that
the “President’s recess appointment of Member Becker . . . was consti-
tutionally valid.”)
3 The Respondent argues that its arbitration agreement includes an
exemption allowing employees to file charges with administrative
agencies, including with the Board, and thus does not, as in D. R. Hor-
ton, unlawfully prohibit them from collectively pursuing litigation of
employment claims in all forums. Cf. Owen v. Bristol Care, Inc., 702
F.3d 1050, 1053–1054 (8th Cir. 2013) (court stated, in dicta, that the
arbitration agreement did not bar all concerted employee activity in
pursuit of employment claims because the agreement permitted em-
ployees to file charges with administrative agencies that could file suit
judge’s application of D. R. Horton and our subsequent
decision in Murphy Oil, we affirm the judge’s rulings,
findings, and conclusions, and adopt the recommended
Order as modified and set forth in full below.
We adopt the judge’s finding that the Respondent un-
lawfully enforced the Arbitration Agreement by (1)
threatening to file a motion to dismiss Charging Party
Firman’s class action complaint in United States District
Court, Southern District of Mississippi Southern Divi-
sion, alleging violations of the Fair Labor Standards Act
if Firmin did not withdraw this complaint, and (2) by its
motion to dismiss the class arbitration action Firman
filed with the American Arbitration Association (AAA).4
As to the latter, we note that the Respondent advised the

on behalf of a class of employees). We reject this argument for the
reasons set forth in SolarCity Corp., 363 NLRB No. 83 (2015).
We also reject the Respondent’s and our dissenting colleague’s ar-
gument that the opt-out provision of its Arbitration Agreement places it
outside the scope of the prohibition against mandatory individual arbi-
tration agreements under D. R. Horton, slip op. at 13 fn. 28. The Board
has rejected this argument, holding that an opt-out procedure still im-
poses an unlawful mandatory condition of employment that falls
squarely within the rule set forth in D. R. Horton and affirmed in Mur-
phy Oil. See On Assignment Staffing Services, 362 NLRB No. 189, slip
op. at 1, 4–5 (2015). The Board further held in On Assignment, slip op.
at 1, 5–8, that even assuming that an opt-out provision renders an arbi-
tration agreement not a condition of employment (or nonmandatory), an
arbitration agreement precluding collective action in all forums is un-
lawful even if entered into voluntarily because it requires employees to
prospectively waive their Sec. 7 right to engage in concerted activity.
Our dissenting colleague also observes that the Act “creates no sub-
stantive right for employees to insist on class-type treatment of non-
NLRA claims.” This is surely correct, as the Board has previously
explained in Murphy Oil, supra, slip op. at 2, 16 and Bristol Farms, 363
NLRB No. 45, slip op. at 2 and fn. 2 (2015). But what our colleague
ignores is that the Act does “create[ ] the right to pursue joint, class, or
collective claims if and as available without the interference of an em-
ployer-imposed restraint.” Murphy Oil, slip op at 16–17 (emphasis in
original). The Respondent’s arbitration policy is just such an unlawful
restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the arbitra-
tion policy unlawful runs afoul of employees’ Section 7 right to “re-
frain from” engaging in protected activity. See Murphy Oil, slip op. at
18; Bristol Farms, slip op. at 3. Nor is he correct in insisting that Sec.
9(a) of the Act requires the Board to permit individual employees to
prospectively waive their Sec. 7 right to engage in concerted legal
activity. Murphy Oil, slip op. at 17–18; Bristol Farms, slip op. at 2.
4 We reject the Respondent’s argument that Firmin was not engaged
in concerted activity in filing his class action lawsuit. As the Board
made clear in Beyoglu, 362 NLRB No. 152 (2015), “the filing of an
employment-related class or collective action by an individual employ-
ee is an attempt to initiate, to induce, or to prepare for group action and
is therefore protected by Section 7.” Id., slip op. at 2. See also D. R.
Horton, slip op. at 3. For the reasons set forth by the judge, we also
reject the Respondent’s argument that its letter threatening to enforce
the Arbitration Agreement if Firmin did not dismiss his lawsuit, and its
motion to dismiss his class arbitration action, was protected by the First
Amendment. See Murphy Oil, supra, slip op. at 20–21 and Convergys
Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
AAA that the Arbitration Agreement to which Firmin
was bound, and which we find is unlawful, expressly
waived class arbitration as well as all other class and
collective actions. Thus, by enforcing the Arbitration
Agreement through this motion to preclude class arbitra-
tion, and threatening Firmin that the Arbitration Agree-
ment would be enforced to preclude pursuit of his class
action lawsuit, the Respondent effectively and unlawful-
ly prohibited class and collective actions in all forums,
judicial and arbitral. By doing so, the Respondent was
not “free to insist that [the] arbitral proceedings be con-
ducted on an individual basis.” D. R. Horton, supra, slip
op. at 12.5

5 This case is distinguishable from Citigroup Technology, Inc., 363
NLRB No. 55 (2015), which involved only a class arbitration action
filed by a former employee who had not previously filed a class or
collective employment action in court regarding his employment
claims. The Board found that because the respondent had not sought to
preclude a collective court action, it did not unlawfully enforce its
arbitration policy by requesting the AAA to dismiss the collective
arbitration action. Thus, unlike the Respondent here who unlawfully
closed off both judicial and arbitral forums to employees to pursue their
collective employment claims, the respondent in Citigroup had not yet
closed off the judicial forum and thus was free to insist on individual
arbitration.
As set forth in the judge’s decision, Firmin’s lawsuit was dismissed
without prejudice and his class arbitration action was settled and dis-
missed with prejudice. The Respondent argues, therefore, that because
there was no longer “any legitimate case or controversy,” the judge
erred in affirming the Regional Director’s denial of Firmin’s request to
withdraw his Board charges. We reject this argument for the reasons
set forth in Flyte Tyme Worldwide, 362 NLRB No. 46 (2015).
Because the lawsuit has been dismissed, we find it unnecessary to
order the Respondent, as in Murphy Oil (slip op. at 21–22), to remedy
the Sec. 8(a)(1) enforcement violation by notifying the court that it no
longer opposes Firmin’s lawsuit. However, consistent with our deci-
sion in Murphy Oil (slip op. at 21), we shall amend the judge’s decision
and order the Respondent to reimburse Firmin and all other plaintiffs
for all reasonable expenses and legal fees, with interest, in connection
with dismissing his lawsuit pursuant to the Respondent’s unlawful
threat to seek dismissal of his lawsuit and in connection with the Re-
spondent’s motion to dismiss his class arbitration action filed with the
American Arbitration Association. See Bill Johnson’s Restaurants v.
NLRB, 461 U.S. 731, 747 (1983) (“If a violation is found, the Board
may order the employer to reimburse the employees whom he had
wrongfully sued for their attorneys’ fees and other expenses” as well as
“any other proper relief that would effectuate the policies of the Act.”).
See also Plasterers Local 200 (Standard Drywall, Inc.), 357 NLRB No.
160, slip op. at 4 (2011) (awarding “reasonable legal expenses and
fees” associated with charging parties’ defense of arbitration award),
enfd. sub nom. Standard Drywall, Inc., v. NLRB, 547 Fed. Appx. 809
(9th Cir. 2013). Interest shall be computed in the manner prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991)
(“[I]n make-whole orders for suits maintained in violation of the Act, it
is appropriate and necessary to award interest on litigation expenses”),
enfd. 973 F.2d 230 (3d Cir. 1992), cert denied 507 U.S 959 (1993).
ORDER
The National Labor Relations Board orders that the
Respondent, RPM Pizza, LLC, Gulfport, Mississippi, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining, threatening to enforce, and/or enforc-
ing an 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.
(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 the Arbitration Agreement in all of its
forms, or revise it in all of its forms, to make clear to
employees that the Arbitration Agreement does not con-
stitute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums.
(b) Notify all applicants and current and former em-
ployees who were required to sign or otherwise become
bound to the Arbitration Agreement in any form that it
has been rescinded or revised, and, if revised, provide
them a copy of the revised agreement.
(c) In the manner set forth in this decision, reimburse
Dale Firmin and all other plaintiffs for any reasonable
attorneys’ fees and litigation expenses that they may
have incurred in dismissing the Federal lawsuit pursuant
to the unlawful threat by the Respondent to seek dismis-
sal of the lawsuit and in opposing the motion to dismiss
Firmin’s class arbitration action filed with the American
Arbitration Association.
(d) Within 14 days after service by the Region, post at
its Destrehan, Louisiana facility copies of the attached
notice marked “Appendix A,” and at all other facilities
where the unlawful Arbitration Agreement is or has been
in effect, copies of the attached notice marked “Appendix
B.”6 Copies of the notices, on forms provided by the
Regional Director for Region 15, 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
shall be distributed electronically, such as by email, post-
ing on an intranet or internet site, and/or other electronic

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RPM PIZZA, LLC 3
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. If 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 marked Appendix A to all current em-
ployees and former employees employed by the Re-
spondent at its Destrehan, Louisiana facility at any time
since March 21, 2013. If the Respondent has gone out of
business or closed any facilities other than the one in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice
marked “Appendix B” to all current employees and for-
mer employees employed by the Respondent at those
facilities at any time since March 21, 2013.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 15 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., December 22, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, my colleagues find that the Respondent’s
arbitration agreement (the Agreement) violates Section
8(a)(1) of the National Labor Relations Act (the Act or
NLRA) because the Agreement waives the right to par-
ticipate in class or collective actions regarding non-
NLRA employment claims, even though the Agreement
gives employees the right to opt out of the waiver.
Charging Party Dale Firmin electronically signed the
Agreement, he did not exercise his right to opt out, and
later he filed a class action lawsuit against the Respond-
ent in Federal court alleging violations of the minimum-
wage provisions of the Fair Labor Standards Act
(FLSA). In reliance on the Agreement, the Respondent
sent a letter to Firmin’s counsel asserting that Firmin’s
FLSA claims must be arbitrated. In that letter, the Re-
spondent stated that unless Firmin voluntarily withdrew
his complaint, the Respondent would file a motion to
dismiss it. Firmin subsequently voluntarily dismissed his
Federal court complaint without prejudice. Afterward,
Firmin pursued his FLSA claims by filing with the
American Arbitration Association (AAA) an Arbitration
Demand and Statement of Claim individually and on
behalf of a purported class of similarly situated individu-
als. In further reliance on the Agreement, the Respond-
ent filed with the arbitrator a motion to dismiss Firmin’s
class allegations. The parties settled Firmin’s FLSA dis-
pute before the arbitrator ruled on the motion to dismiss.
My colleagues find that the Respondent unlawfully
threatened to enforce the Agreement by sending the letter
and unlawfully enforced the Agreement by filing its mo-
tion to dismiss with the arbitrator. I respectfully dissent
from these findings and from the finding that the Agree-
ment itself violates the Act for the reasons explained in
my partial dissenting opinion in Murphy Oil USA, Inc.1
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.2 How-
ever, I disagree with my colleagues’ finding that Section
8(a)(1) of the NLRA prohibits agreements that waive
class and collective actions, and I especially disagree
with the Board’s finding here, similar to the Board ma-
jority’s finding in On Assignment Staffing Services,3 that
class-waiver agreements violate the NLRA even when
they contain an opt-out provision. In my view, Sections
7 and 9(a) of the NLRA render untenable both of these
propositions. As discussed in my partial dissenting opin-
ion in Murphy Oil, NLRA Section 9(a) protects the right
of every employee as an “individual” to “present” and
“adjust” grievances “at any time.”4 This aspect of Sec-

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was recently denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, No. 14–60800, __ F.3d __, 2015 WL 6457613 (5th Cir.
Oct. 26, 2015).
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 362 NLRB No. 189, slip op. at 1, 4–5 (2015).
4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
tion 9(a) is reinforced by Section 7 of the Act, which
protects each employee’s right to “refrain from” exercis-
ing the collective rights enumerated in Section 7. Thus, I
believe it is clear that (i) the NLRA creates no substan-
tive right for employees to insist on class-type treatment
of non-NLRA claims;5 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class waiver agreements;6 (iii) en-
forcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA);7 and (iv) for the reasons stated in my
dissenting opinion in Nijjar Realty, Inc. d/b/a Pama
Management, 363 NLRB No. 38, slip op. at 3–5 (2015),
the legality of such a waiver is even more self-evident
when the agreement contains an opt-out provision, based

ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
5 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
6 The Fifth Circuit has twice denied enforcement of Board orders
invalidating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D.R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., No. 14–CV–5882 (VEC), 2015 WL 1433219
(S.D.N.Y. Mar. 27, 2015); Nanavati v. Adecco USA, Inc., No. 14–cv–
04145–BLF, 2015 WL 1738152 (N.D. Cal. Apr. 13, 2015), motion to
certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal.
June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12–cv–
00062–BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA).
7 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
on every employee’s Section 9(a) right to present and
adjust grievances on an “individual” basis and each em-
ployee’s Section 7 right to “refrain from” engaging in
protected concerted activities.8 Although questions may
arise regarding the enforceability of particular agree-
ments that waive class or collective litigation of non-
NLRA claims, I believe these questions are exclusively
within the province of the court or other tribunal that,
unlike the NLRB, has jurisdiction over such claims.9
Because I believe the Respondent’s Agreement was
lawful under the NLRA, I would find it was similarly
lawful for the Respondent to inform Firmin by letter that
it would seek to enforce the Agreement by filing a mo-
tion to dismiss in Federal court unless Firmin voluntarily
withdrew his complaint and by later filing with the arbi-
trator a motion to dismiss his class allegations. My col-
leagues’ finding that the Respondent acted unlawfully in
moving to dismiss the class allegations from the arbitral
proceeding is particularly unjustified. Under the Agree-
ment, both parties—employee and Respondent—waive
class arbitration, and the Supreme Court has held that a
“party may not be compelled under the FAA to submit to
class arbitration unless there is a contractual basis for
concluding that the party agreed to do so.” Stolt-Nielsen
S.A. v. AnimalFeeds International Corp., 559 U.S. 662,

8 The class-action waiver agreements were voluntarily signed, even
though the Respondent was willing to hire applicants only if they en-
tered into the agreements. For my colleagues, however, the voluntari-
ness of such a waiver is immaterial. They believe that even if a waiver
is non-mandatory, it is still unenforceable. See On Assignment Staffing
Services, above (finding class-action waiver agreement unlawful even
where employees are free to opt out of the agreement); Bristol Farms,
363 NLRB No. 45 (2015) (finding class-action waiver agreement un-
lawful even where employees must affirmatively opt in before they will
be covered by a class-action waiver agreement, and where they are free
to decline to do so). By definition, every agreement sets forth terms
upon which each party may insist as a condition to entering into the
relationship governed by the agreement. Thus, conditioning employ-
ment on the execution of a class-action waiver does not make it invol-
untary. However, the Board’s position is even less defensible when the
Board finds that NLRA “protection” operates in reverse—not to protect
employees’ rights to engage or refrain from engaging in certain kinds
of collective action, but to divest employees of those rights by denying
them the right to choose whether to be covered by an agreement to
litigate non-NLRA claims on an individual basis. See Bristol Farms,
above, slip op. at 2–4 (Member Miscimarra, dissenting).
9 Because I disagree with the Board’s decisions in Murphy Oil,
above, and D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied
in pert. part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA does
not render unlawful arbitration agreements that provide for the waiver
of class-type litigation of non-NLRA claims, I find it unnecessary to
reach whether such agreements should independently be deemed lawful
to the extent they “leave[ ] open a judicial forum for class and collec-
tive claims,” D. R. Horton, 357 NLRB No. 184, slip op. at 12, by per-
mitting the filing of complaints with administrative agencies that, in
turn, may file class- or collective-action lawsuits. See Owen v. Bristol
Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
RPM PIZZA, LLC 5
684–685 (2010). Thus, contrary to my colleagues’ deci-
sion, the Respondent was permitted to file its motion in
the arbitration case seeking to dismiss any class allega-
tions. Moreover, in the arbitration case, I believe it is
clear that the arbitrator—not the NLRB—was empow-
ered to determine whether or not Respondent’s motion
should be granted. Finally, I believe the Board cannot
properly require the Respondent to reimburse the Charg-
ing Party and all other plaintiffs for any reasonable attor-
neys’ fees and litigation expenses they may have in-
curred in dismissing the Federal lawsuit and in opposing
the motion to dismiss the class allegations from the arbi-
tral proceeding. As to the federal lawsuit, Firmin moved
for dismissal voluntarily; and to the extent he did so
based on the letter informing Firmin that the Respondent
was prepared to file a motion to dismiss his lawsuit, the
monetary remedy is still improper because such a motion
would have been lawful.10 As to the arbitration, the mo-
tion was lawful, so any monetary remedy is unwarranted.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. December 22, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

10 That a motion to compel arbitration and dismiss Firmin’s lawsuit
would have been reasonably based is supported by court decisions that
have enforced similar agreements. See, e.g., Murphy Oil, Inc., USA v.
NLRB, above; Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072
(9th Cir. 2014); D. R. Horton, Inc. v. NLRB, above; Owen v. Bristol
Care, Inc., above; Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d
Cir. 2013). And because the motion would have been based on the
Agreement, which is lawful, it would not have fallen outside the protec-
tion of the First Amendment’s Petition Clause on the basis that the
motion would have had an “illegal objective.” See Bill Johnson’s
Restaurants , Inc. v. NLRB, 461 U.S. 731, 737 fn. 5 (1983); see also
Murphy Oil, above, 361 NLRB No. 72, slip op. at 35 (Member
Miscimarra, dissenting in part).
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain, threaten to enforce and/or en-
force an arbitration agreement that requires our employ-
ees, as a condition of employment, to waive the right to
maintain class or collective actions in all forums, wheth-
er arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Arbitration Agreement in all of its
forms, or revise it in all of its forms to make clear that
the Arbitration Agreement does not constitute a waiver
of your right to maintain employment-related joint, class,
or collective actions in all forums.
WE WILL notify all applicants and current and former
employees who were required to sign or otherwise be-
come bound to the Arbitration Agreement in any form
that that the Arbitration Agreement has been rescinded or
revised and, if revised, WE WILL provide them a copy of
the revised agreement.
WE WILL reimburse Dale Firmin and all other plaintiffs
for any reasonable attorneys’ fees and litigation expenses
that they may have incurred in dismissing the Federal
lawsuit in response to our unlawful threat to seek dismis-
sal of his lawsuit and in opposing the motion to dismiss
Firmin’s class arbitration action filed with the American
Arbitration Association.
RPM PIZZA, LLC
The Board’s decision can be found at
www.nlrb.gov/case/15-CA-113753 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain, threaten to enforce, and/or en-
force an arbitration agreement that requires our employ-
ees, as a condition of employment, to waive the right to
maintain class or collective actions in all forums, wheth-
er arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Arbitration Agreement in all of its
forms, or revise it in all of its forms to make clear that
the Arbitration Agreement does not constitute a waiver
of your right to maintain employment-related joint, class,
or collective actions in all forums.
WE WILL notify all applicants and current and former
employees who were required to sign or otherwise be-
come bound to the Arbitration Agreement in any form
that that the Arbitration Agreement has been rescinded or
revised and, if revised, WE WILL provide them a copy of
the revised agreement.
RPM PIZZA, LLC
The Board’s decision can be found at
www.nlrb.gov/case/15-CA-113753 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.
Beauford D. Pines, Esq., for the General Counsel.
Michael D. Carrouth, Esq., J. Hagood Tighe, Esq.,and Reyburn
W. Lominack, III, Esq. (Fisher & Phillips, LLP), of Colum-
bia, South Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. Based on a
charge filed by Dale Firmin (Charging Party or Firmin) on
September 20, 2013, and an amended charge filed on December
6, 2013, the Region Director of the National Labor Relations
Board (NLRB) issued a complaint and notice of hearing on
December 31, 2013. An amended complaint (the complaint)
was issued on January 16, 2014. The complaint alleges that
RPM Pizza, LLC (Respondent) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by maintaining and
enforcing an arbitration agreement that requires employees to
waive any rights to resolution of any employment-related dis-
putes by class or collective actions in any forum, judicial or
arbitral. The complaint also alleges that Respondent violated
Section 8(a)(1) in this manner by demanding that Charging
Party Dale Firmin (Firmin) relinquish his class or collective
action claim filed in federal court or face attorney’s fees, costs,
and losses, and when it moved to have Firmin’s class arbitra-
tion claim dismissed. The Respondent filed an answer (and
amended answer) denying that it engaged in the unfair labor
practices alleged and asserting a variety of affirmative defenses.
On April 4, 2014, I granted the parties’ joint motion to sub-
mit this case to me for a decision on stipulated facts, thus waiv-
ing a hearing under Section 102.35 (a)(9) of the Board’s Rules
and Regulations. Thereafter, the parties filed briefs, which I
have read and considered.
Based upon the entire stipulated record, and after thoroughly
considering both parties’ briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated to the following facts as to the nature
of the Respondent’s business and jurisdiction:
1. At all material times, Respondent, has been a limited liabil-
ity company incorporated in Mississippi, and with a principal
place of business in Gulfport, Mississippi. Respondent con-
ducts business in several locations including Destrehan, Loui-
siana, where it engages in the retail sale of pizza and related
products.1

1 Respondent operates stores in various locations in at least three
states, Alabama, Louisiana, and Mississippi. (See Jt. Exh. 1.) As set
RPM PIZZA, LLC 7
2. During the 12 months prior to the submission of the stipu-
lated record, Respondent derived revenues in excess of
$500,000, and has directly purchased and received at its
Destrehan, Louisiana store goods and products in excess of
$5000 from suppliers located outside the State of Louisiana.
3. The parties agree, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Stipulated Background Facts
1. Respondent’s arbitration agreement
In 2011, Respondent RPM introduced an arbitration proce-
dure, including an arbitration agreement (AA), that provided
that Respondent and all of its employees must submit, with
certain exceptions set forth therein, all claims, disputes, and
controversies that either party may have against the other to
binding arbitration. Specifically, this AA provides in pertinent
part the following: 2
. . . .
B. Claims Excluded from Binding Arbitration.
Nothing herein shall prevent Team Member from filing
and pursuing administrative proceedings before the U.S.
Equal Employment Opportunity Commission or an equiv-
alent state or local agency to the full extent as permitted by
law notwithstanding the existence of an agreement to arbi-
trate. Although, if Team Member chooses to pursue a
claim following the exhaustion of such administrative
remedies, that claim would be subject to arbitration.
Likewise, nothing in this Agreement prevents a party from
participating in any investigation or proceeding conducted
by any administrative agency. Nothing herein shall pre-
vent Team Member or Company from a temporary re-
straining order or preliminary injunctive relief to preserve
the status quo or prevent any irreparable harm pending the
arbitration of the underlying claim, dispute and/or contro-
versy. The only exceptions to the mandatory arbitration
provision, besides those listed in this paragraph, are as fol-
lows:
(1) Any claim, dispute, and/or controversy arising under the
National Labor Relations Act (“NLRA”) that are brought be-
fore the National Labor Relations Board;
(2) Any claim, dispute, and/or controversy for medical and
disability benefits under Workers’ Compensation or any claim
for Unemployment Compensation filed with the state that the
Team Member resides in;
(3) Any claim, dispute, and/or controversy on an individual

forth below, Firmin applied to and was hired to work in the Destrehan,
Louisiana store.
2 Respondent also refers to all of its employees as “Team Mem-
bers.” In Respondent’s AA, “Team Member” includes all of Respond-
ent’s employees in all offices and store locations, from top-level man-
agement officials (e.g. vice presidents, managing directors, regional
directors) to local store managers, and to all non-management employ-
ees such as drivers. (See Jt. Exh. 1).
basis only which are brought properly in, and only to the ex-
tent they remain in, small claims court;
(4) Any claim, dispute, and/or controversy arising out of any
other written contract(s) between Team Member and the
Company where the contract specifically provides for resolu-
tion through the courts; and
(5) Any claim, dispute, and/or controversy for benefits under
a Company plan in which the plan provides its own arbitra-
tion procedure (such as a claim involving a Company health
plan in which the health provider has its own arbitration pro-
cedure agreed to by the Team Member).
III. Arbitration Procedure.
. . . .
A. Form of Arbitration and Waiver of Multi-Plaintiff
Litigation. In any arbitration, any claim shall be arbitrated
only on an individual basis and not on a class or private at-
torney general basis. Team Member and the Company
expressly waive any right to arbitrate as a class representa-
tive, as a class member, in a collective action, or in or pur-
suant to a private attorney general capacity, and there shall
be no joinder or consolidation of parties. All arbitration
shall be brought on a separate and individual basis. This
waiver does not prohibit a Team Member’s right to act in
concert with other applicants or Team Members under the
NLRA, and Team Members will not be subject to disci-
pline or relation for challenging this waiver of multi-
plaintiff litigation through a class or collective action.
. . . .
IV. Dismissal of Any Lawsuit. [T]he Company and
Team Member agree that if either pursues a covered claim
against the other by any method under than the arbitration
provided herein, and an exception does not apply, the re-
sponding party is entitled to a dismissal, stay and/or in-
junctive relief regarding such action, and the recovery of
all damages in responding, to include related attorney’s
fees, costs, and losses.
V. Waiver of Jury Trial. TEAM MEMBER AND
THE COMPANY UNDERSTAND THAT BY
AGREEING TO THIS BINDING ARBITRATION
PROVISION, BOTH GIVE UP THEIR RIGHT TO
TRIAL BY JURY OF ANY INDIVIDUAL, CLASS,
COLLECTIVE ACTION, MULTIPLE-PARTY,
PRIVATE ATTORNEY GENERAL, OR OTHER
CLAIM EITHER MAY HAVE AGAINST THE
OTHER, EXCEPT AS EXPRESSLY PROVIDED
HEREIN.
VI. Exclusive Opt-Out Right. The Team Member
has the right to opt out of the obligation set forth here-
in to submit to binding arbitration. To opt out, the
Team Member must send via electronic mail or first-
class mail, within thirty (30) calendar days of signing
this Arbitration Agreement, an email/letter addressed
to glennm@rpmpizza.com or mail to Glenn A.
Mueller, 15384 5th Street, Gulfport, MS 39503 stating
that the Team Member has elected to opt out of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Arbitration Agreement. The email/letter must clearly
state the Team Member’s name and must be signed by
the Team Member. Absent the proper and timely ex-
ercise of this opt-out right, the Team Member will be
required to arbitrate all disputes covered by this Arbi-
tration Agreement.
. . . .
MY SIGNATURE BELOW ATTESTS TO THE
FACT THAT I HAVE READ, UNDERSTAND, AND
AGREE TO BE LEGALLY BOUND TO ALL OF THE
ABOVE TERMS. I UNDERSTAND THAT, UNLESS I
TIMELY SEND THE OPT-OUT LETTER
REFERENCED ABOVE TO THE PROPER
ADDRESSEE, I WILL BE REQUIRED TO ARBITRATE
ALL DISPUTES WITH THE COMPANY THAT ARE
COVERED BY THIS ARBITRATION AGREEMENT.
(Jt. Exh. 1.)3
In summary, and relevant to this matter, Respondent’s AA
requires that all employment-related disputes with its employ-
ees be resolved as individual claims exclusively through final
arbitration. In other words, parties to a dispute cannot pursue
claims related to the dispute, individually or collectively, or by
class, in any judicial or court forum. If a party does file such an
action, the responding party can bring a dismissal, stay, and/or
injunctive relief regarding such action, and recover all damages
in responding, to include related attorney’s fees, costs, and
losses. The AA specifically excludes “[a]ny claim, dispute,
and/or controversy arising under the National Labor Relations
Act (NLRA) that are brought before the National Labor Rela-
tions Board.” Finally, the AA includes an opt-out provision,
provided the employee/team member opts out in writing pursu-
ant to the terms of the AA within 30 calendar days of signing
the AA via email or letter addressed to Respondent’s chief
executive officer, Glenn A. Mueller (Mueller).4
2. Roll out of Respondent’s arbitration procedure
and agreement
Respondent’s roll out of its new AA process included invit-
ing employees to question and answer sessions conducted by
district managers, as well as other several face-to-face meetings
with employees from February through June 2011, in which
Respondent explained the new process and gave its employees
copies of the AA and an applicant acknowledgement form.
These communications also included a memorandum issued by
its controller, Jeanne Quesenberry (Quesenberry), to store em-
ployees during this same period, and to office staff who do not
work in the stores in August 2011, that generally explained the
arbitration procedure, and its opt-out process, along with vari-
ous benefits of “final and binding” arbitration (i.e., elimination
of the costs and delay associated with long trials and provision

3 Abbreviations used in this decision are as follows: “Tr.” For tran-
script; “GC Exh.” for General Counsel’s exhibit; “R. Exh.” for Re-
spondent’s exhibit; “Jt. Exh.” for Joint exhibit; “GC Br.” for General
Counsel’s brief; and “R. Br.” for Respondent’s brief.
4 At all material times, Glenn A. Mueller (Mueller), chief executive
offer/managing member, has been Respondent’s supervisor and agent
within the meaning of Sec. 2(11) and (13) of the Act.
of “a fair and reasonable judgment by an outside legal party”).
The memorandum also notified then employed employees that
the AA was voluntary for all employees hired prior to January
1, 2011. (R. Exhs. 1–3; Jt. Exh. 1.) Of note, between Septem-
ber 8, 2011, and November 14, 2011, nine employees submitted
email messages or letters expressing their desire to opt out of
the AA.
Regarding applicants for employment on January 1, 2011,
and thereafter, Respondent has required them to review infor-
mation about its arbitration procedure and AA as part of its on
line application process. Although applicants may view the AA
from an outside computer, in completing the on line application
process, they must meet with the store manager and, using Re-
spondent’s computer in the store manager’s office, complete
the application process. In completing the application or on
boarding process, applicants must click on the screen to indi-
cate that they have read and agree with the AA before the com-
puter will proceed to the next screen. Applicants confirm their
understanding and acceptance of and agreement with the AA
with an electronic signature and date on an applicant acknowl-
edgment form. (R. Exh. 4–5.) Mueller authorizes Respondent’s
on line process.
3. Charging Party Firmin
Firmin worked for Respondent as a pizza delivery driver on
five different occasions between January 2001 and January 1,
2013. His most recent employment period began in November
2012. On November 21, 2012, Firmin met with Store Manager
Scott Green (Green) at Respondent’s Destrehan, Louisiana
store.5 At Green’s direction, but not in his presence, Firmin
completed his on line application using the computer in Green’s
office. As a part of this application process, Firmin electroni-
cally signed the AA, acknowledging that he read and agreed
with it as required for employment. His signature also
acknowledged that he understood the opt-out procedures of-
fered in the AA. (Jt. Exh. 1.) He did not ask Green if he could
be hired without electronically signing the AA, nor did he ask
any other questions about the AA. Green in turn did not inform
Firmin that he could be hired if he did not electronically sign
the AA. Firmin was hired, and began working for Respondent
as a pizza delivery driver at Respondent’s Destrehan, Louisiana
store. Firmin did not subsequently inform Respondent that he
wished to opt out of the AA.
On January 1, 2013, Firmin voluntarily resigned from his
employment with Respondent.
On July 23, Firmin filed a complaint against Respondent in
the Unites States District Court, Southern District of Mississip-
pi Southern Division, alleging violations of the Fair Labor
Standard Act’s (FLSA) minimum wage provisions. (Jt. Exh.
2.) He filed this complaint both individually and on behalf of a
class of similarly situated delivery drivers. On August 15, Re-
spondent’s counsel sent a letter to Firmin’s counsel, notifying
him of the AA.6 (Jt. Exh. 3.) This letter explained that the

5 At all material times, Scott Green (Green), store manager, has also
been one of Respondent’s supervisors and agents within the meaning of
Sec. 2(11) and (13) of the Act.
6 At all times material, Respondent’s counsel has been its agent
within the meaning of Sec. 2(13) of the Act.
RPM PIZZA, LLC 9
claims in Firmin’s federal court complaint were specifically
covered by the AA signed by Firmin, including a waiver of the
right to arbitrate as a class representative or class member in a
collective action, or otherwise. Respondent’s counsel also
requested that that Firmin dismiss the federal court claim on
behalf of Firmin and other similarly situated employees, and if
Firmin desired, pursue his individual claim pursuant to the
terms of the AA. He explained that if Firmin did not dismiss
his federal court complaint, that Respondent would be entitled
to the recovery of all damages in responding to the lawsuit, to
include attorney’s fees, costs, and losses. Subsequently, on
August 29, Firmin voluntarily dismissed the federal court com-
plaint, without prejudice. (Jt. Exh. 4.)
On September 17, Firmin filed an Arbitration Demand and
Statement of Claim individually and on behalf of a purported
class of similarly situated individuals with the American Arbi-
tration Association (AAA). (Jt. Exh. 5.) On October 22, Re-
spondent filed an answer to Claimant’s statement of claim and
a motion to dismiss regarding Firmin’s class action allegations
filed with the AAA. (Jt. Exh. 6.) The motion to dismiss was
never decided; rather, on December 26, the presiding arbitrator
issued an order granting the parties’ joint motion to approve
settlement that included a settlement of all claims by Firmin.
(Jt. Exh. 7.)
On December 26 (and thereafter), Firmin’s underlying unfair
labor practice charge in the instant case was still pending before
the NLRB’s Regional Office.7
III. PARTIES’ STIPULATED ISSUES
Whether Respondent has been interfering with, restraining,
and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1) of the Act
by generally maintaining and enforcing the terms of the AA
that precludes class or collective actions, and by:
1. Enforcing the terms of the AA by requiring Charging Party
Firmin to relinquish his class claim in the United States Dis-
trict Court, Southern District of Mississippi Southern Division
(federal court) and threatening the payment of attorney’s fees,
costs, and losses if the lawsuit was not dismissed.
2. Filing a motion to dismiss Charging Party Firmin’s class
arbitration claim and requesting that the AAA dismiss the
claim based on the class and collective action waiver in Re-
spondent’s AA.
IV. DISCUSSION AND ANALYSIS
As indicated above, the General Counsel alleges that Re-
spondent violated Section 8(a)(1) of the Act by maintaining its
AA, which precludes employees from filing class or collective
arbitrations or lawsuits, by requiring Firmin to relinquish his
federal class action complaint filed on his and other employees’
behalf and by filing a motion to dismiss class allegations with
the AAA. I agree and find the violations alleged.

7 Although not included in the stipulated facts, I note that Firmin,
through his counsel, served a written, formal request to withdraw his
initial and amended charges filed with the Region. This request was
denied. (R. Exh. 6.)
A. The Positions of the Parties
The General Counsel argues, and I agree, that this matter is
controlled by the Board’s holding in D. R. Horton, Inc., 357
NLRB No. 184 (2012), which was denied enforcement in rele-
vant part, 737 F.3d 344 (5th Cir. 2013). In that case, the Board
held that an employer violates Section 8(a)(1) of the Act by
maintaining a mandatory arbitration agreement “requiring em-
ployees to waive their right to collectively pursue employment-
related claims in all forums, arbitral and judicial,” because “the
right to engage in collective action—including collective legal
action—is the core substantive right protected by the NLRA
and is the foundation on which the Act and Federal labor policy
rest.” 357 NLRB No. 184, slip op. at 12. The Board also con-
cluded that its finding was “consistent with the well-established
interpretation of the NLRA and with core principles of Federal
labor policy,” and did not “conflict with the letter or interfere
with the policies underlying the Federal Arbitration Act
(FAA).” Id. at 10. Thus, the General Counsel contends that
such a ban on employees’ rights to pursue class and/or collec-
tive actions, as contained in Respondent’s AA, unlawfully in-
terferes with employees’ Section 7 rights. The General Coun-
sel also argues that although Respondent’s AA excepts claims
filed with the NLRB and includes an opt-out provision, such
exceptions do not insulate Respondent from prohibitions estab-
lished in D. R. Horton.
Respondent disputes the controlling effects of the Board’s
decision in D. R. Horton, arguing that it is not viable based on
current Supreme Court precedent, the United States Court of
Appeals for the Fifth Circuit’s partial overruling of D. R. Hor-
ton; and numerous state and federal courts’ rejection of the
Board’s reasoning and findings set forth in D. R. Horton and
their refusal to invalidate arbitration agreements containing
class action waivers. Respondent also asserts that the terms of
its AA in this case are distinguishable from the mutual arbitra-
tion agreement analyzed in D. R. Horton because its AA ex-
pressly excludes claims that are brought before the NLRB,
includes an opt-out provision which renders the AA and class
and collective action waiver voluntary, and allows its employ-
ees to act in concert with other applicants or employees under
the NLRA. Respondent further argues that Section 7 of the Act
does not provide Firmin or any other of its employees the right
to pursue class or collective action litigation in any forum, and
further, that Firmin did not engage in any protected, concerted
activity by filing a class action complaint and demand for class
arbitration. Finally, Respondent contends that its efforts to
enforce its AA’s class action waiver were constitutionally pro-
tected conduct under the First Amendment.
B. D. R. Horton is Controlling
Although the Fifth Circuit, as well as several other courts as
set forth in Respondent’s brief, disagreed with the Board’s
finding that a class or collective action waiver was illegal, and
that such finding conflicted with the FAA, I am bound by the
findings in D. R. Horton until either the Board or the Supreme
Court specifically overturns them. Pathmark Stores, 342
NLRB 378 fn. 1 (2004); Herbert Industrial Insulation Corp.,
312 NLRB 602, 608 (1993); Waco, Inc., 273 NLRB 746, 749
fn. 14 (1984) (“it is a judge’s duty to apply established Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
precedent which the Supreme Court has not reversed,” and “for
the Board, not the judge, to determine whether precedent
should be varied.”) (citation omitted). Los Angeles New Hospi-
tal, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th
Cir. 1981).8
Similarly, I reject Respondent’s insistence that I should devi-
ate from the Board’s findings in D. R. Horton because they are
contrary to subsequent Supreme Court’s decisions in
CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 668–669
(2012) and American Express Co. v. Italian Colors Rest., 133
S. Ct. 2304, 2309 (2013). (R. Br. at 12–13). Respondent as-
serts that the Supreme Court in these cases has stated that the
FAA mandates enforcement of arbitration agreements unless
justification to override them is established by a “contrary Con-
gressional command.” Respondent also contends that the Su-
preme Court has applied this principle to employment related
arbitration agreements (citing Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20 (1991) and Granite Rock Co. v. Int’l.
Brotherhood of Teamsters, 130 S.Ct. 2847, 2858 (2010). Alt-
hough the Supreme Court has upheld the enforcement of indi-
vidual mutual arbitration agreements in these and other cases,
the Court has not addressed or resolved the issue of exclusive
arbitration over class and/or collective actions under the Act.
Therefore, I disagree with Respondent’s view that these sub-
sequent cases lead to a decision contrary to that of the Board’s
in D. R. Horton. I understand, as the Board pointed out, that
the FAA establishes a liberal policy favoring arbitration agree-
ments. 357 NLRB No. 184, slip op. at 8. However, in D. R.
Horton, the Board found that “the Supreme Court’s jurispru-
dence under the FAA, permitting enforcement of agreements to
arbitrate federal statutory claims, including employment claims,
makes clear that the agreement may not require a party to ‘for-
go the substantive rights afforded by the statute.”’ Id. at 9–10,
citing Gilmer, supra at 26.9 I find in this case, the NLRA is

8 I reject Respondent’s argument, which appears for the first time in
its brief, that the Board’s decision in D.R. Horton, issued on January 3,
2012, is invalid since on the date of its issuance the Board lacked a
quorum and was unconstitutionally constituted (R. Br. at 11–12, fn. 2,
citing New Process Steel v. NLRB, 1380 S. Ct. 2635, 2640 (2010) and
Noel Canning, 705 F.3d 490 (D.C. Cir. 2013), cert. granted 133 S. Ct.
2861 (2013)). The Fifth Circuit rejected a similar argument made in
the D.R. Horton case itself, albeit for technical reasons. 737 F.3d at
350–352. Further, the Board has rejected this same contention when
raised in other cases. See Belgrove Post Acute Care, 359 NLRB No.
77, slip op. 1, fn. 1 (2013); Bloomingdale’s Inc., 359 NLRB No. 113
(2013). On June 26, 2014, the Supreme Court did issue a narrow ruling
that the President’s recess appointments made on January 4, 2012, were
invalid because he did not have the authority to make them. NLRB v.
Noel Canning, 573 U.S. ___ (2014). However, the Supreme Court in
Noel Canning addressed the recess appointments made by the President
on January 4, 2012, the day after D. R. Horton decision issued. Moreo-
ver, I am bound by and agree with the substantive holdings and princi-
ples in D.R. Horton, and find, as discussed below, that they are not
contrary to Supreme Court precedent, and further, are well reasoned
and predicated on well established, valid Board law.
9 The Board distinguished Gilmer, in that it “addresses neither Sec-
tion 7 nor the validity of a class action waiver,” and involved an indi-
vidual claim and an arbitration agreement without any language specif-
ically waiving class or collective actions. 357 NLRB No. 184, slip op.
at 10, fn. 22.
neither preempted by, nor in conflict with, the FAA, because
Respondent effectively precluded Firmin and other of its em-
ployees from exercising their substantive rights under Section 7
of the Act.
In American Express Co., supra, the Supreme Court dis-
missed a claim brought by a group of merchants, that their
agreement to arbitrate individual claims as the sole method of
resolving disputes was invalid, and concluded that when federal
statutory claims are involved, the FAA’s directive can only be
“overridden by a contrary congressional command.” However,
American Express Co. is distinguishable from the instant case
because it did not involve the substantive Section 7 right of
employees to collectively file class action lawsuits or arbitra-
tions, which was the basis of the Board’s D. R. Horton deci-
sion. Nor did it involve, as in this case, an employer who com-
pels its employees to waive those rights. For the same reasons,
the Supreme Court’s decision in CompuCredit, supra, is distin-
guishable.10 Moreover, these general consumer litigation and
commercial cases do not address the central question of how
and to what extent the FAA may be used to interfere with, by
way of private agreements, the fundamental substantive right of
workers to engage in concerted activity established and protect-
ed by the NLRA—the gravamen of the violation here and in D.
R. Horton.11
Likewise, I reject Respondent’s reliance on the Supreme
Court’s recognition in these cases that the texts of the federal
statutes involved (such as the antitrust statutes in
CompuCredit), do not “mention” class actions, and the Court’s
reference to its earlier decision in Gilmer, in which it upheld a
class action waiver even though the Age Discrimination in
Employment Act (ADEA) permitted collective actions. 136
S.Ct. at 673 and 133 S.Ct. at 2311. In further contrast, the
ADEA, addressed in Gilmore, has as its central purpose the
protection of older workers from discrimination in the work-
place, whereas here, the NLRA expressly mandates as its core
purpose the “right to engage in collective action—including
collective legal action.” of disputes challenging employment
related rights of employees. See D. R. Horton, 357 NLRB No.
184, slip op. at 12.
C. Respondent Violated Section 8(a)(1) of the Act by Maintain-
ing and Enforcing the Terms Of Its AA that Preclude Class or
Collective actions, Notwithstanding, Exceptions Regarding
NLRB Claims or Opt-out Provisions
An employer violates Section 8(a)(1) by maintaining work
rules that tend to chill employee Section 7 activities. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998). Rules explicitly re-
stricting Section 7 activities violate Section 8(a)(1). Lutheran
Heritage Village - Livonia, 343 NLRB 646 (2004). But where
a workplace rule does not explicitly restrict Section 7 activity,

10 The Supreme Court in CompuCredit invalidated an arbitration
agreement waiving the ability of consumers to sue a credit card market-
er and the card’s issuing bank in court for alleged violations of the
Credit Organization Act (CROA).
11 Both CompuCredit and American Express Co., were decided sub-
sequent to D.R. Horton, but did not mention it.
RPM PIZZA, LLC 11
the General Counsel must establish by a preponderance of the
evidence that: (1) employees would reasonably construe the
rule to prohibit Section 7 activity; (2) the employer adopted the
rule in response to union activity; or (3) the employer applied a
rule to restrict employee Section 7 activity. Id. at 647. If a rule
explicitly infringes on the Section 7 rights of employees, the
mere maintenance of the rule violates the Act without regard
for whether the employer ever applied the rule for that purpose.
Guardsmark v. NLRB, 475 F.3d 369, 375–376 (DC Cir. 2007).
Indeed, the Board in D. R. Horton relied on these principles
in finding that the mandatory arbitration agreement violated
Section 8(a)(1) because it expressly restricted protected activity
by requiring employees to “refrain from bringing collective or
class claims in any forum.” 357 NLRB No. 184, slip op. at 5.
This conclusion is based on the determination that “employees
who join together to bring employment-related claims on a
classwide or collective basis in court or before an arbitrator
are exercising rights protected by Section 7 of the NLRA.” Id.
at 3. In other words, the Board in its reasoning provides that an
employer may require arbitration on an individual basis if it
does not preclude employees from all class or collective judi-
cial options.
Further, the Court and Board have long held that concerted
legal action addressing wages, hours, and working conditions
constitute concerted protected activity under Section 7 of the
Act. D. R. Horton, 357 NLRB No. 184, slip op. at 2–3, citing
Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978); Le Madri
Restaurant, 331 NLRB 269, 275 (2000) (filing of a civil suit by
employees is protected activity). Again, the Board has repeat-
edly made clear that the right to engage in collective action,
including legal action, around these types of issues is a funda-
mental right specifically protected by the NLRA and is “the
foundation on which the Act and Federal labor policy rest.”
357 NLRB No. 18, slip op. at 10. In this case, Respondent has
not only prohibited collective concerted activity, but did the
opposite of what the Board in D. R. Horton specifically forbid,
expressly limiting its employees to individual arbitration as the
sole venue for disputes, and requiring all employees, including
those drivers referenced in Firmin’s class claim, to forgo their
substantive right to collectively pursue legal action. Respond-
ent expressly required this in its AA, and enforced it through its
efforts, including threat of attorneys’ fees and costs, to get
Firmin to dismiss his federal complaint and its motion to dis-
miss Firmin’s class arbitration claim.
Although the AA here does not restrict access to the Board,
it unlawfully precludes all other substantive collective legal
action in a court or arbitral forum as addressed above. In D. R.
Horton, the mutual arbitration agreement was unlawful, not just
because it restricted access to the Board, but also because it
prohibited other collective legal action. Thus, I find that Re-
spondent’s AA and its class or collective action waiver in this
case violates Section 8(a)(1) not because it does or does not
allow its employees to file charges with the Board, but because
it interferes with and restricts its employees from engaging
concerted activity, i.e., bringing class or collective action re-
garding employment disputes in any forum at all. The fact that
Respondent’s AA provides that employees may file charges
with the Board does not cure this defect or rather, make its
actions lawful.
Likewise, I disagree with Respondent’s argument that be-
cause its AA expressly allows its employees to act in concert
with others, without fear of discipline (even for actually brining
class and collective claims), their Section 7 rights have been
sufficiently preserved. Respondent also maintains that its AA
therefore allows other non-legal action among its employees
such as allowing them, for example, to discuss their individual
claims, to serve as witnesses in each others’ individual actions
or to assist in those actions, and to pool their resources towards
those efforts. Those employees, however, would obviously be
precluded, for example, from joining with employees who had
opted out, consciously or by failing to meet the unreasonable
30-day deadline, to pursue resolution of employment-related
disputes through litigation or arbitration. They would certainly,
and reasonably, be hesitant to engage, or even chilled from
engaging with, those employees who opted out, or not, to
strategize regarding such matters given the otherwise prohibi-
tive language in Respondent’s AA. Nevertheless, Respondent
does not escape liability from expressly restricting its employ-
ees from filing a class or concerted action in any and all fo-
rums.
Respondent’s attempt to insulate itself from liability by way
of its AA’s opt-out provision also fails. Respondent claims its
AA differs from the one at issue in D. R. Horton, in that its one-
time opt-out opportunity makes the AA voluntary, thereby ren-
dering it lawful under the Act, and creating a balance between
its goals associated with its AA and the Act. However, the
purpose of the Act, to balance to the inequality of bargaining
power between employees, who are not on the same standing,
and employers “who are organized in the corporate or other
forms of ownership association” simply cannot be ignored here.
29 USC § 102. Indeed, the very act of requiring employees,
especially new employees, to affirmatively make a decision to
permanently waive their future rights protected under the Act,
within a short time period (30 days of employment or of sign-
ing the AA), creates a smokescreen and serves to restore the
inequity the Act intends to restore. Such a requirement is also
an unreasonable burden which presumes that employees will
have considered, without representation, complex legal rights
and consequences, many of which cannot reasonably be fore-
seen. It matters not, as Respondent suggests, that the Board in
D. R. Horton did not address this issue, and in fact, referenced
such an issue as presenting a “more difficult question.” 357
NLRB No. 184, slip op. at 13, fn. 28. It is clear here that the
AA with its class action waiver and opt-out provision not only
chills Firmin’s (and other employees’) Section 7 concerted
activity, but imposes an unlawful burden on him and other em-
ployees to irrevocably relinquish certain fundamental employ-
ment rights. This is true whether employees decide to opt out
or not. Further, the Board has consistently established that
employees may not be required to prospectively waive their
statutory rights. Ishikawa Gasket American, Inc., 337 NLRB
175, 176 (2001).
Respondent also seeks to disavow administrative law judge
decisions in which the judges rejected the argument that an opt-
out provision rendered an arbitration agreement voluntary, and
therefore, legal under the Act. (See R. Br. citing, e.g. 24 Hour
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Fitness USA, Inc. (Case 20–CA–035419, Nov. 6, 2012). Alt-
hough I understand that administrative law judge decisions are
not precedent I agree with the reasoning in those decisions that
such opt-out provisions do not preclude a finding of violation
of the Act. (R. Br.) I do not agree with Respondent’s reliance
on contrary administrative law judge decision, Bloomingdale,
Inc., Case 31–CA–071281 (June 25, 2013), for the reasons set
forth above.
Next, Respondent argues that Firmin did not engage in pro-
tected, concerted activity by filing a class action complaint and
demand for class arbitration. Respondent asserts that there is
no evidence that Firmin engaged in any activity “with or on
authority of others,” or sought support of others before filing
his complaint, and that the mere filing of a class complaint is
not enough to engage protection of the Act. (R. Br.) Respond-
ent also claims, and cites cases in support thereof, that it is
necessary to present evidence that the employer had knowledge
that there existed legitimate and actual evidence of concerted
activity. (See R. Br. at 6.) These arguments also fail. The
Board in D. R. Horton recognized that an individual who files a
class or collective action, whether in court or through arbitra-
tion, clearly seeks to induce or initiate group action and is en-
gaged in collective activity protected by Section 7. 357 NLRB
No. 184, slip op. at 3. Moreover, the Board has long held that
concerted activity can include actions of a single person who
“seek[s] to initiate or to induce or to prepare for group action.”
Meyers Industries, 281 NLRB 882, 885–887 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. de-
nied 487 U.S. 1205 (1988). I agree with the Board’s recogni-
tion in D. R. Horton.
I also reject Respondent’s argument that its interference with
Firmin’s efforts to pursue his FLSA claims in federal court (by
sending its August 15, 2013 letter to Firmin’s counsel) and to
dismiss Firmin’s request for class arbitration are protected by
the First Amendment. Respondent’s reliance on the Supreme
Court’s decision in Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U.S. 731, 737 (1983), is misplaced. In Bill Johnson’s, 461
U.S. at 737, fn. 5, the Supreme Court, in its formulation of an
accommodation between Section 7 rights and the First
Amendment, clearly stated that the Board could in fact enjoin a
lawsuit that seeks relief that is unlawful under the NLRA, and
also cited several authorities where that had been done and
approved by the courts.12 Thus, this explicit exclusion from the
Court’s analysis of lawsuits with “an objective that is illegal
under federal law,” applies to the instant case where I have
already found that Respondent violated the Act by maintaining
its AA’s class action waiver and enforcing it by using threats to
influence Firmin to withdraw his federal complaint and filing a
motion to dismiss his class arbitration claim. Id.
Finally, I reject Respondent’s assertion that this case should
be dismissed because Firmin attempted to withdraw the under-

12 Citing e.g., Granite State Joint Board, Textile Workers Union,
187 NLRB.636, 637 (1970), enforcement denied, 446 F.2d 369 (CA1
1971), revd., 409 U.S. 213 (1972); Booster Lodge No. 405, Machinists
& Aerospace Workers, 185 NLRB 380, 383 (1970), enfd. in relevant
part, 148 U.S. App. D.C. 119, 459 F.2d 1143 (1972), affd., 412 U.S. 84
(1973).
lying charge. The Regional Director obviously did not grant
this request, and caused the complaint in this case to be issued.
For the foregoing reasons, I find that Respondent has been
interfering with, restraining, and coercing employees in the
exercise of rights of Firmin and its other employees, guaranteed
under Section 7, in violation of Section 8(a)(1) of the Act by
maintaining and enforcing the terms of its AA that preclude
class or collective action in any forum; requiring Firmin to
relinquish his class or collective claims in federal court and
threatening imposition of attorney’s fees and other costs if the
suit was not dismissed; and moving to dismiss Firmin’s class
arbitration claim before the AAA. This is true despite the
NLRB claim exception and opt-out provision contained in the
AA in question.
CONCLUSIONS OF LAW
1. Respondent RPM Pizza, LLC, is an employer engaged in
commerce or an industry affecting commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. By maintaining and enforcing the terms of its arbitration
agreement that waives the right of its employees/team members
to file and maintain class and collective actions in all forums,
judicial and arbitral, Respondent violated Section 8(a)(1) of the
Act.
3. By enforcing an arbitration agreement, with its class ac-
tion waiver, by threatening Firmin with attorney’s fees and
costs if his federal lawsuit was not dismissed, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By enforcing an arbitration agreement and class action
waiver by asserting the provisions thereof and filing a motion
with the AAA to have Firmin’s class arbitration claim dis-
missed, Respondent violated Section 8(a)(1) of the Act.
5. The above violations are unfair labor practices within the
meaning of the Act.
6. Respondent’s conduct found above affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices set forth above, I shall order it to cease and
desist from such conduct and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent’s arbitration agreement is un-
lawful, Respondent shall be ordered to rescind or revise such
arbitration agreement to make clear to all of its employees/team
members, as defined in the arbitration agreement, that the
agreement does not constitute or require a waiver in all forums
of their right to maintain collective or class actions, and shall
notify such employees and team members of the rescinded or
revised policy by providing them a copy of the revised policy
or specific written notification that the policy has been rescind-
ed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
RPM PIZZA, LLC 13
ORDER
Respondent RPM Pizza, LLC, Gulfport, Mississippi, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining, enforcing, or seeking to enforce any arbi-
tration agreement and/or policy that waives the right of em-
ployees/team members to file and maintain class or collective
actions in all forums, arbitral and judicial, and which applies
irrevocably to those employees/team members who fail to opt
out.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise the arbitration policy to make it clear to
all of its employees/team members, as defined in the arbitration
agreement, that the agreement does not constitute or require a
waiver in all forums of their right to maintain collective or class
actions.
(b) Notify the employees/team members of the rescinded or
revised policy by providing them a copy of the revised policy
or specific written notification that the policy has been rescind-
ed.
(c) Within 14 days after service by the Region, post at its
Gulfport, Mississippi, Destrehan, Louisiana, and all other of its
facilities where the AA at issue has been in effect copies of the
attached notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 15, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distribut-
ed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, inasmuch as Re-
spondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent
to ensure that the posted hard copy notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 26, 2011.
(d) Within 21 days after service by the Region, file with the

ed by the Board and all objections to them shall be deemed waived for
all purposes.
14 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.”
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. July 11, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce a binding arbitration
agreement (AA) that waives the right of employees/team mem-
bers to file or maintain class or collective action in all forums,
arbitral or judicial.
WE WILL NOT enforce or seek to enforce arbitration agree-
ments by threatening employees/team members with attorney’s
fees or costs if they do not dismiss class or collective claims.
WE WILL NOT enforce or seek to enforce arbitration agree-
ments by filing motions to dismiss class or collective action
lawsuits or arbitrations and to compel individual arbitration
pursuant to terms of the AA.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce employees/team members in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL NOT require our employees/team members to sign
binding arbitration agreements that prohibit class and collective
litigation in all forums, judicial and arbitral.
WE WILL rescind or revise the arbitration policy to make it
clear to all of its employees/team members, as defined in the
arbitration agreement, that the agreement does not constitute or
require a waiver in all forums of their right to maintain collec-
tive or class actions.
WE WILL notify the employees/team members of the rescind-
ed or revised policy by providing them a copy of the revised
policy or specific written notification that the policy has been
rescinded.
RPM PIZZA, LLC