SF MARKETS, LLC D/B/A SPROUTS FARMERS MARKET

National Labor Relations Board - Administrative Judge Opinions

Feb 18, 2014

21-CA-099065 (N.L.R.B. Feb. 18, 2014)

JD(ATL)–06–14
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
SF MARKETS, LLC d/b/a
SPROUTS FARMERS MARKET
and Case 21–CA–099065
LAURA CHRISTENSEN, an Individual
and Case 21–CA–104677
JANA MESTANEK, an Individual
Ami Silverman, Esq.,
for the General Counsel.
Daniel B. Pasternak, Esq. (Squire Sanders (US) LLP),
for the Respondent.
John Glugoski, Esq. (Righetti Glugoski, P.C.),
for Charging Party Christensen.
Alison M. Miceli, Esq. (Aegis Law Firm, PC),
for Charging Party Mestanek.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This case is before me on an order
consolidating cases, consolidated complaint, and notice of hearing issued on July 31, 2013 (the
complaint). The General Counsel alleges that SF Markets, LLC d/b/a Sprouts Farmers Market
(the Respondent) committed various violations of Section 8(a)(1) of the National Labor
Relations Act (the Act) in connection with the mutual binding arbitration agreements (MAAs)
that it has required as a condition of hiring and continued employment.
On December 12, 2013, the parties filed a joint motion to submit the case on stipulation,
stipulation of facts, and request to forgo submission of short position statements. They
requested that, pursuant to Section 102.35(a)(9) of the Board’s Rules and Regulations, I approve
in full their stipulation of facts (along with attached exhibits), grant their request to waive a
hearing in this consolidated proceeding, and issue a decision.
JD(ATL)–06–14
2
The joint motion and stipulation of facts were made without prejudice to any objection
that any party might have as to the materiality or relevance of any stipulated facts. The
Respondent did not waive any objections or defenses, including any affirmative defenses and
avoidances that it asserted in its first amended answer to the complaint.
5
On December 23, 2013, I issued an order granting the motion and setting January 27,
2014, as the due date for the parties’ briefs.
On January 6, 2014, the Respondent filed a motion to dismiss, and the Respondent and
the General Counsel later filed briefs, all of which I have considered.10
Stipulated Issues
(1) Should the Respondent’s maintenance of its MAAs as a condition of employment
and continued employment be held to violate employees’ Section 7 rights15
pursuant to D.R. Horton, Inc. (Horton), 357 NLRB No. 184 (2012), enfd. in part,
denied in part 737 F.3d 344(5th Cir. 2013)? The answer to this question is pivotal
to deciding all of the allegations in this case.
(2) Did the Respondent unlawfully file a petition to compel arbitration in Orange 20
County Superior Court, on December 17, 2012, and a motion to compel
arbitration in Los Angeles County Superior Court, on April 22, 2013, to enforce
its MAA with Jana Mestanek, so as to preclude her from pursuing, on a class or
collective-action basis, wage-hour claims under California law that she filed in
Los Angeles Superior Court on November 7, 2012?25
(3) Did the Respondent, through Managers Frank Lopez and Don Robertson,
unlawfully tell Laura Christensen, on about January 18, 2013, that if she did not
sign the acknowledgement of the California team member handbook supplement,
and thereby agree to the terms of a revised MAA, she would be considered to 30
have resigned her employment?
(4) Did the Respondent unlawfully terminate Christensen’s employment on January
30, 2013, based on her refusal to sign the acknowledgement described above?
35
In the joint motion, the Respondent also requested that I consider several issues,
including:
(1) Whether the complaint is barred, in whole in part, because (a) the Board lacked a
quorum at the time it issued its decision in Horton; (b) the consolidated complaint 40
was issued on the authority of a regional director appointed to that position by a
Board that lacked a quorum at the time of her appointment; and/or (c) the
complaint was issued pursuant to a delegation of authority from the Acting
General Counsel who was appointed to that position in violation of the Vacancies
Reform Act, 5 U.S.C.§ 3345 et seq., and who therefore lacked authority to so 45
delegate.
JD(ATL)–06–14
3
The Board has addressed these issues, and I will discuss them in the analysis and
conclusions section. I simply state here that I recognize the Respondent’s need to raise them
before me in order to preserve them on the record should the Board or the courts later consider
this case. 5
(2) Whether requiring the Respondent to withdraw its motion to compel arbitration
violates its Constitutional right to seek redress.
(3) Whether the Board possesses the authority to order the Respondent to reimburse 10
Mestanek for all reasonable litigation expenses directly related to opposing the
Respondent’s efforts to enforce its MAA with her.
My role is not to interpret the United States Constitution as a first-level judge, or to
define the Board’s authority to issue appropriate remedies for Horton violations. Therefore, I 15
find it beyond my jurisdiction to decide these questions, both of which relate to the remedy that
the General Counsel requests. I note that the Respondent has cited no precedent directly on point
on either subject.
(4) Whether any issues regarding its motion to compel should be dismissed on 20
mootness grounds.
The Respondent does not address this in either its motion to dismiss or its brief.
Accordingly, I consider it to have been withdrawn.
25
Facts
Based on the stipulated facts and documents, the thoughtful posttrial briefs that the
General Counsel and the Respondent filed, and the Respondent’s motion to dismiss, I find the
following.30
Pertinent Stipulated Facts
At all times material, the Respondent has been a Delaware limited liability company with
a principal office located in Phoenix, Arizona, and has operated retail stores in various States, 35
including locations in Irvine, Seal Beach, Tustin, and Yorba Linda, California. The Respondent
has admitted Board jurisdiction as alleged in the complaint, and I so find.
At all times material, Frank Lopez has held the position of regional human resources
manager, and Don Robertson has held the position of store manager, and both have been Section 40
2(11) supervisors, and the Respondent’s agents.
Since at least January 1, 2012, the Respondent has required that employees agree to
MAAs as a condition of employment. Since about January 2013, the Respondent has required
employees at its California retail stores, including the locations listed above, as a condition of 45
JD(ATL)–06–14
4
employment or continued employment, to agree to be bound by a revised MAA1 The revised
MAA requires that the Respondent and employees resolve employment-related disputes, except
for certain specifically excluded claims, through individual arbitration proceedings, and to waive
any rights that they may have to resolve covered disputes through collective and/or class action.
Additionally, the Respondent has required employees at its California stores, including the 5
locations listed above, to execute an “acknowledgment of receipt of California team member
handbook supplement” (handbook supplement),2 which incorporates by reference said MAA.
Jana Mestanek
10
On about January 23, 2012, the Respondent hired Mestanek to work at its Yorba Linda
store and, as a condition of employment, required her to sign an MAA that required in relevant
part:3
The Employee agrees and acknowledges that the Company and Employee will15
utilize binding arbitration to resolve all disputes that may arise out of the
employment context. Both the Company and Employee agree that any claim,
dispute, and/or controversy that either the Employee may have against the
Company . . . or the Company may have against the Employee, arising from,
related to, or having any relationship or connection whatsoever with my seeking 20
employment by, or other association with the Company, shall be submitted to and
determined exclusively by binding arbitration under the Federal Arbitration Act,
and following the procedures of the applicable state arbitration act, if any.
To the extent permitted by applicable law, the arbitration procedures stated 25
below shall constitute the sole and exclusive method for the resolution of any
claim between the Company and Employee arising out of "or related to" the
employment relationship. The parties hereto EXPRESSLY WAIVE their rights. if
any, to have such a matter heard by a court or a jury. By waiving such rights,
the parties are not waiving any remedy or relief due them under applicable law.30
Included Claims
Included within the scope of this agreement are all disputes, whether they be
based on the state employment statutes, Title VII of the Civil Rights Act of 1964, 35
as amended, or any other state or federal law or regulation, equitable law, or
otherwise, with the exception of claims arising under the National Labor
Relations Act which are brought before the National Labor Relations Board,
claims brought pursuant to state workers compensation statutes, or as otherwise
required by state or federal law. 40

1 Jt. Exh. 29. Jt. Exh. 7 is the version in effect in January 2012. None of the parties contend that any
differences in the language of the two versions dictate a different outcome under Horton.
2 Jt. Exh. 30.
3 Jt. Exh. 7.
JD(ATL)–06–14
5
Excluded Claims
Nothing herein shall prevent, prohibit, or discourage an employee from filing a
charge with or participating in an investigation of the National Labor Relations 5
Board (NLRB), the Equal Employment Opportunity Commission (EEOC), or any
other state or federal agency (although if such a claim is pursued following the
exhaustion of such remedies, that claim would be subject to these provisions).
Nothing in this Agreement is intended to interfere with the Employee’s rights
under the National Labor Relations Act . . . . [Emphases in original]10
On November 7, 2012, Mestanek filed a class-action complaint in Los Angeles County
Superior Court, alleging that the Respondent had committed various violations of California
wage and hour laws. 4
15
On December 17, 2012, the Respondent filed a petition in Orange County Superior Court
to compel arbitration.5 Subsequently, the following occurred.
In Los Angeles County Superior Court
20
In response to Mestanek’s complaint, the Respondent, on April 22, 2013, filed a notice of
motion, a motion to compel arbitration and stay proceedings, a supporting declaration, and a
request for judicial notice.6
On May 13, 2013, Mestanek filed a memorandum of points and authorities in opposition 25
to the Respondent’s motion to compel arbitration.7
On May 20, 2013, the Respondent filed a reply to Mestanek’s opposition to its motion to
compel arbitration and stay a proceedings, a declaration in support thereof, and evidentiary
objections to Mestanek’s evidence in opposition to the motion to compel arbitration and stay 30
proceedings.8
On June 7, 2013, the Los Angeles County Superior Court granted in relevant part the
Respondent’s motion to compel arbitration, ordering Mestanek to arbitrate, on an individual,
nonclass basis, the claims alleged in her complaint, and denying her motion to stay proceedings 35
pending resolution of the appeal of the Board’s Horton decision.9 The court declined to find
Horton “persuasive authority,” as Mestanek had argued.10

4 Jt. Exh. 8. On December 14, 2012, she amended the complaint to include the Respondent as a named
defendant. Jt. Exh. 9.
5 Jt. Exh. 10.
6 Jt. Exhs. 21–23.
7 Jt. Exh. 24.
8 Jt. Exhs. 25–27.
9 Jt. Exh. 28.
10 Id. at 20.
JD(ATL)–06–14
6
In Orange County Superior Court
On February 4, 2013, Mestanek filed an opposition to compel arbitration, and a
supporting declaration.11 On February 6, 2013, Mestanek filed a notice of motion and motion to 5
abate action, and a declaration in support thereof.12 On February 21, 2013, the Respondent filed
an opposition to that motion.13 Mestanek filed a reply thereto on February 27, 2013.14
On February 6, 2013, the Respondent filed a request for judicial notice, and a motion to
abate.15 On February 27, 2013, Mestanek filed a reply thereto, along with a supporting 10
declaration.16 Also on February 27, 2013, the Respondent filed a response to Mestanek’s
opposition to compel arbitration.17 On April 22, 2013, the Respondent filed an opposition in
response to Mestanek’s motion to abate.18
On March 6, 2013, the Orange County Superior Court issued a tentative ruling granting 15
Mestanek’s motion to abate action and staying the Respondent’s petition to compel arbitration.19
Laura Christensen
On about January 16, 2013, the Respondent presented certain employees, including 20
Christensen, at its Tustin store, with a revised MAA and acknowledgement of receipt of the
handbook supplement.20 The agreement provided, in relevant part:21
The Company and Employee agree that, except as specifically provided in this
Agreement, any claim, complaint, grievance, cause of action, and/or controversy 25
(collectively referred to as a "Dispute”) that the Employee may have against the
Company . . . or that the Company may have against the Employee, that arises
from, relates to, or has any relationship or connection whatsoever with the
Employee's employment with the Company, shall be submitted to and determined
exclusively by final, binding, private arbitration pursuant to the terms of this 30
Agreement, the Federal Arbitration Act, and all other applicable state and federal
law.
To the extent permitted by applicable law, the arbitration procedures in this
Agreement shall constitute the sole and exclusive method for the resolution of 35
any of the Arbitrable Claims discussed below. The Company and the Employee

11 Jt. Exhs. 11, 12.
12 Jt. Exhs. 15, 16.
13 Jt. Exh. 17.
14 Jt. Exh. 18.
15 Jt. Exhs. 14–15.
16 Jt. Exhs. 18–19.
17 Jt. Exh. 13.
18 Jt. Exh. 17.
19 Jt. Exh. 20.
20 Jt. Exh. 30.
21 Jt. Exh. 29.
JD(ATL)–06–14
7
I
EXPRESSLY WAIVE their rights, if any, to have such claims heard by a court or
a jury. By waiving such rights, however, neither the Company nor the Employee
are waiving any remedy or relief that may be due to either of them under
applicable law . . . .
5
Included Claims
To the fullest extent permitted by Jaw, any Dispute between the Employee . . .
and the Company. . . that arise out of, relate in any manner, or have any
relationship whatsoever to the employment or the termination of employment of10
Employee, including, without limitation, any Dispute arising out of or related to
this Agreement (“Arbitrable Claims”), shall be resolved by final and binding
arbitration . . . .
Excluded Claims15
Nothing herein shall prevent, prohibit or discourage an employee from filing a
charge with, or participating in an investigation by, the National Labor Relations
Board (NLRB), the Equal Employment Opportunity Commission (EEOC), any
state or local fair employment practices or civil rights agency (including, but not 20
limited to, the California Department of Fair Employment and Housing
and the California Labor Commissioner, and similar agencies in other states, or
any other administrative agency or governmental body possessing jurisdiction
over employment-related claims (although if such a claim is pursued following
the exhaustion of such administrative remedies, that claim would be subject to 25
these provisions). Nothing in this Agreement is intended to interfere with the
Employee's rights to act collectively for mutual aid and protection under the
National Labor Relations Act . . . .
Waiver of Class, Collective, and Representative Action Claims 30
Except as otherwise required under applicable law, the Company and Employee
expressly intend and agree that (1) class action, collective action, and
representative action procedures shall not be asserted, nor will they apply, in any
arbitration proceeding pursuant to this Agreement; (2) neither the Company nor 35
the Employee will assert any class action, collective action, or representative
action claims against the other in arbitration or otherwise; and (3) the Company
and the Employee shall only submit their own respective, individual claims in
arbitration and will not seek to represent the interests of any other person . . . .
[Emphases in original]40
On about January 18, 2013, Managers Lopez, by telephone, and Robertson, in person,
told Christensen that she would be considered to have resigned if she did not sign the
acknowledgment of receipt of the handbook supplement.
45
JD(ATL)–06–14
8
On January 30, 2013, Christensen refused to execute said acknowledgment, and her
employment was terminated. If she received a termination notice, it is not in the record. The
parties stipulate that her refusal to execute the acknowledgment was the sole basis that her
employment ended.
5
Analysis and Conclusions
The application of Horton is at the core of all of the issues in this case. In Horton, the
Board held that an employer violates Section 8(a)(1) of the Act by “requiring employees to
waive their right to collectively pursue employment-related claims in all forums, arbitral and 10
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 slip op. at 12 (emphasis in original).
The Board further concluded that finding the MAA unlawful was “consistent with the 15
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) [9 U.S.C. , § 1 et seq.] . . . .” Id. at 10.
The Respondents argues, on both procedural and substantive grounds, that the holding in 20
Horton should not be applied.
Procedural Grounds
The Respondent contends that (a) the Board lacked a quorum at the time it issued the 25
decision; (b) the consolidated complaint was issued on the authority of a Regional Director
appointed to that position by a Board that lacked a quorum at the time of her appointment; and/or
(c) the complaint was issued pursuant to a delegation of authority from the Acting General
Counsel who was appointed to that position in violation of the Vacancies Reform Act, and who
therefore lacked authority to so delegate.30
The Respondent relies on Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), for its
proposition that Horton was invalidly issued because the Board lacked a quorum at that time,
inasmuch as Members Sharon Block and Richard Griffin were recess appointments and hence
invalidly appointed. The Respondent further contends that this invalidated their appointment of 35
the Regional Director who issued the complaint. However, the Board has rejected the position
that it could not validly issue decisions when two of the three Board Members were recess
appointments. See G4S Regulated Security Solutions, 359 NLRB No. 101, slip op. at 1 fn. 1
(2013), citing Belgrove Post Acute Center, 359 NLRB No. 77, slip op. at 1 fn. 1 (2013). The
Board noted that other courts of appeals have reached decisions contrary to Canning and that 40
“pending a definitive resolution, the Board is charged to fulfill its responsibilities under the Act.”
Ibid.
If the Board was properly constituted, ergo it had the authority to appoint the Regional
Director who issued the complaint in this matter. 45
JD(ATL)–06–14
9
Finally, the Board has explicitly held that the Acting General Counsel was properly
appointed under the Vacancies Reform Act, and rejected the argument that he lacked authority to
issue complaints. Corona Regional Medical Center, 2014 WL 101770, at 1 fn. 1 (Jan. 9, 2014),
citing Muffley v. Massey Energy Co., 547 F.Supp. 2d 536, 542–543 (S.D. W.Va. 2008), affd. 570
F.3d 534, 536 at fn. 1 (4th Cir. 2009) (upholding authorization of 10(j) injunction proceeding by 5
Acting General Counsel).
Substantive Grounds
The Respondent argues that the Fifth Circuit Court of Appeals and other courts have 10
rejected Horton to the extent that it found it to be afoul of the Act a MAA prohibiting class
action. Thus, the Fifth Circuit concluded that neither the NLRA’s statutory text nor its
legislative history contained a congressional command against application of the FAA and that,
in the absence of an inherent conflict between the FAA and the NLRA’s purpose, a MAA should
be enforced according to its terms. 737 F.3d at 361–363. Accordingly, the court denied 15
enforcement of the Board’s order invalidating the MAA.22
However, I am constrained to follow Board precedent that has not been reversed by the
Supreme Court or by the Board itself. See Pathmark Stores, 342 NLRB 378, 378 fn. 1 (2004);
Hebert Industrial Insulation Corp., 312 NLRB 602, 608 (1993). 20
In this regard, the Board generally applies a “nonacquiescence policy” to appellate court
decisions that conflict with Board law, D.L. Baker, Inc., 351 NLRB 515, 529 at fn. 42 (2007);
Arvin Industries, 285 NLRB 753, 757 (1987), and instructs its administrative law judges to
follow Board precedent, not court of appeals precedent. Gas Spring Co., 296 NLRB 84, 97 25
(1989) (citing, inter alia, Insurance Agents (Prudential Insurance), 119 NLRB 768 (1957), revd.
260 F.2d 736 (D.C. Cir. 1958), affd. 361 U.S. 477 (1960), enfd. 908 F.2d 966 (4 th Cir. 1990),
cert. denied 498 U.S. 1084 (1991).
The Board has explained that it is not required, on either legal or pragmatic grounds, to 30
automatically follow an adverse court decision but will instead respectfully regard such ruling
solely as the law of that particular case. See Manor West, Inc., 311 NLRB 655, 667 fn. 43
(1993), revd. 60 F.3d 1195 (6th Cir. 1995).
The Supreme Court has upheld the enforcement of individual MAAs in various contexts, 35
enunciating the general principal that the FAA was designed to promote arbitration. See, e.g.,
AT & T Mobility LLC v. Conception, 131 S. Ct. 1740, 1749 (2011). Moreover, the Court in
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), held that a MAA signed by an
employee waived his right to bring a Federal court action under the Age Discrimination in
Employment Act. However, as the Board noted in Horton, Gilmer dealt with an individual 40
claim, and the MAA therein contained no language specifically waiving class or collective
claims; ergo, the Court in Gilmer addressed neither Section 7 nor the validity of a class-action
waiver. 357 NLRB slip op. at 12. Since the Supreme Court has not specifically addressed the

22 The court did enforce the Board’s order that Sec. 8(a)(1) had been violated because an employee would
reasonably interpret the MAA as prohibiting the filing of a claim with the Board, a violation not alleged
here.
JD(ATL)–06–14
10
issue of mandatory arbitration provisions that cover class and/or collective actions vis-à-vis the
Act, it follows that the Court has not overruled Horton, which remains controlling law.
Therefore, I must analyze this case under the Horton standards to determine whether the
Respondent’s MAA, and its concomitant conduct, violated Section 8(a)(1) of the Act.5
The Respondent contends that if, indeed, Horton applies, its MAAs do not contravene
Horton; rather, that they come under the following “exception” posited in Horton:
“[N]othing in our holding here requires the Respondent or any other employer to 10
permit, participate in, or be bound by a class-wide or collective action
proceeding. . . . We need not and do not mandate class arbitration in order to
protect employees’ rights under the NLRA. Rather, we hold only that employers
may not compel employees to waive their NLRA right to collectively pursue
litigation of employment claims in all forums, arbitral and judicial. So long as 15
the employer leaves open a judicial forum for class and collective claims,
employees’ NLRA rights are preserved without requiring the availability of
class-wide arbitration. Employers remain free to insist that arbitral proceedings
be conducted on an individual basis. 357 NLRB slip op. at 16 (emphasis added).
20
The Respondent’s argument is misplaced. As I earlier stated, the Board in Horton
emphasized the importance of employees not being prohibited from pursuing collective legal
action: “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 slip op. at 12 (emphasis in original). The “exception” to which 25
the Respondent refers indicates that an employer may require arbitration on an individual basis if
it does not foreclose employees from class or collective judicial recourse.
Such is not the case here. Both MAAs in question provide that the sole venue for
disputes is individual arbitration. The MAA relating to Christensen expressly prohibits her from 30
asserting any class or concerted action “in arbitration or otherwise,” thus precluding collective
action in both arbitral and judicial settings. The MAA pertinent to Mestanek contains an express
waiver of the right to have an employment-related matter “heard by a court or a jury.” Although
that MAA is silent on the matter of class arbitration, the Respondent argued, in both Los Angeles
and Orange County Superior Courts, that the language and intent of the MAA was that Mestanek 35
could pursue only her own individual claims in arbitration,23 and the Respondent continues to
adhere to that position.
Thus, the Respondent’s MAAs have barred employees from pursuing, on a collective
basis, either in court or in arbitration, matters relating to their employment, placing them 40
squarely within the parameters of the MAAs prohibited by Horton.
The fact that both MAAs specifically provide that employees may file charges with
administrative agencies, including the NLRB, does not cure this defect. Rather, this obviates the

23 See, e.g., Jt. Exh. 10 at 17–20; Jt. Exh. 21 at 19–21.
JD(ATL)–06–14
11
finding of a separate violation that employees could reasonable believe that the MAAs bar or
restrict their right to file NLRB charges.
The Respondent further contends that its opposition to Mestanek’s class-action lawsuit
did not violate the Act because (1) the Respondent has a constitutional right to petition the 5
Government for redress under Amendment I; (2) the Respondent’s petition and motion to compel
arbitration were “objectionably reasonable under BE & K Constr. v. NLRB, 536 U.S. 516 (2002);
and (3) the petition and motion were not advanced for any “unlawful objective.”
The Respondent cites no cases that have held lawful on any of these grounds an 10
employer’s seeking to enjoin an employee’s lawsuit based on an unlawful MAA (as Horton
dictates). I decline to be the first judge to do so.
Based on the above, I conclude that the Respondent has violated Section 8(a)(1) by
maintaining MAAs that unlawfully restrict employees from engaging in collective activity 15
through filing either class or collective lawsuits or arbitrations, as a condition of employment and
continued employment. Using the analogy of fruit flowing from a poisoned tree, it follows that
the Respondent also violated Section 8(a)(1) by filing motions in California Superior Court to
compel Mestanek to arbitrate her wage-hour claims rather than have them heard as a class-action
lawsuit, by telling Christensen that she had to agree to sign a MAA or face termination, and by 20
terminating Christensen because she refused to do so.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of 25
Section 2(2), (6), and (7) of the Act.
2. By the following conduct, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section
8(a)((1) of the Act.30
(a) Maintained, as a condition of employment and continued employment,
mandatory arbitration agreements (MAAs) prohibiting employees from pursuing collective or
class lawsuits and arbitrations.
35
(b) Filed a petition to compel arbitration in one State court, and a motion to
compel arbitration in another State court, to enforce its MAA with an employee, to preclude her
from pursuing, on a collective or class basis, wage-hour disputes with the Respondent.
(c) Told an employee, in essence, that if she did not agree to the terms of a 40
MAA, which precluded her from pursuing collective or class lawsuits and arbitrations, she would
be terminated.
(d) Terminated an employee’s employment based solely on her refusal to sign
such an MAA.45
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REMEDY
Because I have found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.5
Specifically, the Respondent shall make Laura Christensen whole for any losses,
earnings, and other benefits that she suffered as a result of the unlawful discipline imposed on
her. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), 10
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Further, the Respondent shall file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters and, if it becomes applicable, shall
compensate Christensen for any adverse tax consequences of receiving a lump-sum backpay 15
award. Latino Express, Inc., 359 NLRB No. 44 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
20
ORDER
The Respondent, SF Markets, LLC d/b/a Sprouts Farmers Market, Phoenix, Arizona, its
officers, agents, successors, and assigns, shall
25
1. Cease and desist from
(a) Maintaining, as a condition of employment and continued employment,
mandatory arbitration agreements (MAAs) prohibiting employees from pursuing collective or
class lawsuits and arbitrations.30
(b) Filing court petitions or motions to compel individual arbitration to
enforce its MAAs with employees, to preclude them from pursuing, on a collective or class
basis, employment-related disputes with the Respondent.
35
(c) Telling employees that if they do not agree to the terms of an MAA that
precludes them from pursuing collective or class lawsuits and arbitrations, they will be
terminated or otherwise subjected to adverse action.
(d) Terminating or otherwise taking adverse action against employees because 40
of their refusal to sign such a MAA.

24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)–06–14
13
(e) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the 5
Act.
(a) Within 14 days from the date of the Board’s Order, offer Laura
Christensen full reinstatement to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or privileges previously 10
enjoyed.
(b) Make Laura Christensen whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her in the manner set forth in the remedy section
of the decision.15
(c) Within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful termination of Laura Christensen, and within 3 days thereafter
notify her in writing that this has been done and that the termination will not be used against her
in any way.20
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored 25
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Reimburse Jana Mestanek for any litigation expenses directly related to
opposing Respondent's petition and motion to compel arbitration (or any other legal action taken 30
to enforce the arbitration agreement).
(f) Withdraw its notice of motion and motion to compel arbitration filed in
Los Angeles County Superior Court; or if the court issues an adverse order/judgment against
Jana Mestanek based thereon, move together with her, upon her request, to vacate the 35
order/judgment, provided that said motion can still be timely filed.
(g) Rescind the requirement that employees enter into or sign the MAAs that
are currently in effect, or sign acknowledgements relating to them, as a condition of
employment, and expunge all such agreements and acknowledgements at any of the 40
Respondent's California facilities where the Respondent has required employees to sign such
agreements or acknowledgements.
(h) Rescind or revise the MAAs to make it clear that the agreements do not
constitute a waiver of the employees’ right to initiate or maintain employment-related collective45
or class actions in arbitrations and in the courts.
JD(ATL)–06–14
14
(i) Notify employees that the MAAs have been rescinded or revised to
comport with subparagraph (h), and provide them with any revised agreement.
(j) Within 14 days after service by the Region, post at its facilities in Irvine, 5
Seal Beach, Tustin, and Yorba Linda, California, and any other facilities where MAAs have been
maintained as a condition of employment, copies of the attached notice marked “Appendix.”25
Copies of the notice, on forms provided by the Regional Director for Region 21, after being
signed by the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where notices to 10
employees are customarily posted. In addition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on an intranet or an internet set, and/or
other electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of 15
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 December 17, 2012.
20
(k) Within 21 days after service by the Region, file with the 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. February 18, 201425
______________________________30
Ira Sandron
Administrative Law Judge

25 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(ATL)–06–14
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain, as a condition of employment and continued employment,
mandatory arbitration agreements (MAAs) prohibiting employees from pursuing collective or
class lawsuits and arbitrations.
WE WILL NOT file court petitions or motions to compel individual arbitration to enforce our
MAAs with employees, to preclude them from pursuing, on a collective or class basis,
employment-related disputes with us.
WE WILL NOT tell employees that if they do not agree to the terms of a MAA, which
precludes them from pursuing collective or class lawsuits and arbitrations, they will be
terminated or otherwise subjected to adverse action.
WE WILL NOT terminate or otherwise take adverse action against employees because of their
refusal to sign such an MAA.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer Laura Christensen full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Laura Christensen whole for any loss of earnings and other benefits suffered as
a result of our discrimination against her, with interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful termination of Laura Christensen, and within 3 days thereafter notify
JD(ATL)–06–14
her in writing that this has been done and that the termination will not be used against her in any
way.
WE WILL reimburse Jana Mestanek for any litigation expenses directly related to opposing our
petition and motion to compel arbitration (or any other legal action taken to enforce the
arbitration agreement).
WE WILL withdraw our notice of motion and motion to compel arbitration filed in Los Angeles
County Superior Court; or if the court issues an adverse order/judgment against Jana Mestanek
based thereon, move together with her, upon her request, to vacate the order/judgment, provided
that said motion can still be timely filed.
WE WILL rescind the requirement that employees enter into or sign the MAAs that are
currently in effect, or sign acknowledgements relating to them, as a condition of employment,
and expunge all such agreements and acknowledgements at all of the Respondent's facilities
where the Respondent has required employees to sign such agreements or acknowledgements.
WE WILL rescind or revise the MAAs to make it clear that the agreements do not constitute a
waiver of the employees’ right to initiate or maintain employment-related collective or class
actions in arbitrations and in the courts.
WE WILL notify employees that the MAAs have been so rescinded or revised, and provide
them with any revised agreement.
SF MARKETS, LLC D/B/A
SPROUTS FARMERS MARKET
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor, Los Angeles, CA 90017-5449
(213) 894-5200, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (213) 894-5184.