TBC Corporation and TBC Retail Group, Inc., a wholly-owned subsidiary of TBC Corporation

National Labor Relations Board - Board Decisions

Oct 15, 2018

367 NLRB No. 18 (N.L.R.B. 2018)

367 NLRB No. 18
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.
TBC Corporation and TBC Retail Group, Inc., a
wholly-owned subsidiary of TBC Corporation1
and Luis Rodriguez. Cases 12–CA–157478 and
12–CA–170543
October 15, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On October 14, 2016, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondents filed a reply brief. The General Counsel filed
cross-exceptions and a supporting brief, and the Respond-
ents filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
1. The judge found, applying the Board’s decisions in
D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy
Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in rele-
vant part 808 F.3d 1013 (5th Cir. 2015), that the Respond-
ents violated Section 8(a)(1) of the National Labor Rela-
tions Act by maintaining and enforcing a Mutual Agree-
ment to Arbitrate (the “arbitration agreement”) that re-
quires employees, as a condition of employment, to waive
their rights to pursue class or collective actions involving
employment-related claims in all forums, whether arbitral
or judicial.
Recently, the Supreme Court issued its decision in Epic
Systems Corp. v. Lewis, 584 U.S. __, 138 S.Ct. 1612
(2018), a consolidated proceeding including review of
court decisions below in Lewis v. Epic Systems Corp., 823
F.3d 1147 (7th Cir. 2016), Morris v. Ernst & Young, LLP,
834 F.3d 975 (9th Cir. 2016), and Murphy Oil USA, Inc.
v. NLRB, 808 F.3d 1013 (5th Cir. 2015). Epic Systems
concerned the issue, common to all three cases, whether
employer-employee agreements that contain class- and

1 The judge incorrectly referred to the Respondents as TBC—Tire &
Battery Corporation d/b/a TBC Corporation and TBC Retail Group Inc.,
a wholly-owned subsidiary of TBC—Tire & Battery Corporation d/b/a
TBC Corporation, in contradiction to the parties’ joint stipulation of
collective-action waivers and stipulate that employment
disputes are to be resolved by individualized arbitration
violate the National Labor Relations Act. Id. at__, 138
S.Ct. at 1619–1621, 1632. The Supreme Court held that
such employment agreements do not violate this Act and
that the agreements must be enforced as written pursuant
to the Federal Arbitration Act. Id. at__, 138 S.Ct. at 1619,
1632.
In light of the Supreme Court’s ruling in Epic Systems,
which overrules the Board’s holding in Murphy Oil, we
conclude that the complaint allegations based on Murphy
Oil must be dismissed.2
2. The judge also found that the Respondents violated
Section 8(a)(1) of the Act by maintaining, in their 2010
employee handbook, an overly broad no-solicitation rule
that prohibited employees from soliciting on company
property and during nonwork hours. However, for the rea-
sons explained below, we find that the Respondents suc-
cessfully repudiated the unlawful rule.
A. Facts
The Respondents operate a chain of retail tire and auto-
maintenance stores. On November 10, 2010, the Re-
spondents promulgated the 2010 Associate Handbook,
which included the following no-solicitation provision
(the “2010 rule”):
[The Respondents provide] a solicitation free work en-
vironment in order to prevent workplace distractions or
misunderstandings that can result from solicitation. This
means that we do not allow Associates or non-employ-
ees to solicit in our buildings, on our property or during
work hours, unless that solicitation is approved in ad-
vance by the respective Senior Executive in conjunction
with Human Resources.
On February 25, 2016, the Charging Party filed a charge
alleging that the 2010 rule was unlawful. On April 4,
2016, the Respondents revised the 2010 rule and provided
the 2016 Associate Handbook, with a revised rule, to all
employees, or made it available to all employees. There
is no dispute that the revised rule contained in the Re-
spondents’ 2016 handbook is facially lawful.
On April 5 and 6, 2016, the Respondents distributed a
notice to employees regarding solicitation and posted it on
the employee information bulletin boards located in each
of Respondents’ locations in Florida, Georgia, Missis-
sippi, Louisiana, Ohio, Texas, Missouri, Maryland, North
facts. We have substituted the Respondents’ correct names in the cap-
tion.
2 We therefore find no need to address other issues raised by the Re-
spondents’ exceptions to the judge’s disposition of the Murphy Oil alle-
gations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Carolina, South Carolina and Vermont. The notices stated
as follows:
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose representatives to bargain with us on your be-
half;
• Act together with other employees for your benefit and
protection; and
• Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything that interferes with these
rights.
Specifically:
WE WILL NOT promulgate or maintain Written Work
rules prohibiting you from:
1) Soliciting in our buildings, on our property, or during
work hours. We will continue to have a work rule that
prohibits you from soliciting during an employee’s
working time or with another employee during that em-
ployee’s working time. “Working time” does not in-
clude such time as breaks, lunch, or rest periods, or be-
fore and after work.
***
WE HAVE rescinded and given no effect to the rules
described above. WE HAVE posted the revised Written
Work Rules in the Associate Handbook. Also, Human Re-
sources Policy 406 contains a more detailed description of
the Company’s no-solicitation and no-distribution policy,
and remains in effect.
The Respondents’ human resources managers confirmed, ei-
ther from visual inspection or through communications with
store managers, that the notices had been posted on the em-
ployee information bulletin boards located in each store.
B. Discussion
The judge found that the Respondents’ 2010 no-solici-
tation rule was unlawfully broad. This finding is not in
dispute.3 The judge also found that the Respondents failed
to repudiate the unlawful 2010 rule by its April 4, 2016
revision to the handbook and its posted notices because
they did not adequately explain the Respondents’ reasons
for revising the 2010 rule. The judge further noted that

3 Although the Respondents’ exceptions include the assertion that the
2010 rule was lawful, the Respondents provided no argument in their
brief to support this exception. Accordingly, we disregard the bare ex-
ception under Sec. 102.46(b)(2) of the Board’s Rules and Regulations.
See, e.g., New Concept Solutions, LLC, 349 NLRB 1136, 1136 fn. 2
the Respondents continued to engage in unfair labor prac-
tices after repudiation by maintaining their arbitration
agreement.
We find, contrary to the judge, that the Respondents
successfully repudiated the 2010 rule. When considering
whether an employer has effectively repudiated an unfair
labor practice, the Board applies the standard set forth in
Passavant Memorial Area Hospital, 237 NLRB 138
(1978). Under Passavant, “repudiation must be timely,
unambiguous, specific in nature to the coercive conduct,
and free from other proscribed illegal conduct.” Id. at 138
(internal quotations omitted). As in Atlas Logistics Group
Retail Servs. (Phoenix), 357 NLRB 353 (2011), a case
with very similar facts, we find here that the Respondents’
efforts met the Passavant standard.4
Similar to this case, in Atlas the employer revised an
unlawful rule about a month after the initial charge alleg-
ing that the rule was unlawful and before the issuance of a
complaint, and posted notices that were functionally
equivalent to the notices posted by the Respondents. Sig-
nificantly, as required by Passavant, the notices in Atlas
and in this case were timely posted, unambiguous, and
specific, notifying the affected employees of the rescinded
rules and providing them with assurances regarding their
Section 7 rights. Atlas Logistics, 357 NLRB at 357–358;
see Boch Imports, 362 NLRB No. 83, slip op. at 1 fn. 3
(2015) (explaining that a notice notifying employees of an
employer’s unfair labor practices and giving employees
assurances that the employer will not interfere with their
Section 7 rights in the future is a standard and venerable
Board remedy and required by Passavant), enfd. 826 F.3d
558 (1st Cir. 2016).
Moreover, contrary to the judge’s decision, employers
are not required to explain why they are repudiating an
unlawful act. In Lily Transportation Corp., 362 NLRB
No. 54 (2015), the case relied upon by the judge in this
regard, the Board simply found—consistent with
longstanding precedent—no effective repudiation where
the employer revised its prior handbook and removed the
unlawful rules without giving its employees notice that it
had done so. Id., slip op. at 1, 9; see, e.g., Casino San
Pablo, 361 NLRB 1350, 1353 (2014) (finding that the em-
ployer did not effectively repudiate its unlawful handbook
rules simply by issuing a revised handbook that deleted
the rules); DaNite Sign Co., 356 NLRB 975, 981 (2011)
(affirming the judge’s finding that the employer did not
(2007); Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005),
enfd. 456 F.3d 265 (1st Cir. 2006).
4 Chairman Ring and Member Kaplan express no opinion with respect
to whether the Passavant requirements represent a proper standard for
effective repudiation of unlawful conduct, but they agree that the Re-
spondents’ actions met the Passavant standard in this case.
THE CORPORATION AND TBC RETAIL GROUP, INC. 3
cure its violation by merely issuing a revised handbook
that deleted the unlawful rule). As the Board explained in
Lily Transportation, it revised the order and notice so that
the remedy would more accurately reflect the particular
facts of that case—i.e, that the employer had already re-
scinded the unlawful rules but had not notified affected
employees of the rescission or the circumstances sur-
rounding the rescission. 362 NLRB No. 54, slip op. at 2.
By contrast, and as described above, the Respondents
here—consistent with the requirements of Passavant—re-
vised the 2010 rule and timely circulated notices notifying
the affected employees of the rescinded rules and provid-
ing them with assurances that the Respondents would not
interfere with their Section 7 rights in the future.
Finally, we reject the judge’s finding that the Respond-
ents failed to successfully repudiate the 2010 rule because
they continued to engage in unfair labor practices. Here,
the only unlawful post-repudiation conduct found by the
judge was the Respondents’ maintenance of their arbitra-
tion agreement. As previously stated, in light of Epic Sys-
tems we have reversed this finding and dismissed the com-
plaint in this respect.5 Furthermore, there is no evidence
that the Respondents have interfered with their employ-
ees’ lawful solicitation activities since repudiating the
2010 rule.
Accordingly, we find that that the Respondents’ suc-
cessfully repudiated the unlawful 2010 rule. Therefore,
we reverse the judge and dismiss this allegation as well.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. October 15, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Dallas Manuel, Esq., for the General Counsel.
Nicole Bermel Dunlap, Esq. and Shane T. Munoz (Ford &

5 We therefore do not pass on whether conduct of this type would
undermine the Respondents’ repudiation of their no-solicitation rule.
Harrison, LLP), of Tampa, Florida for the Respondent.
Bernard Mazaheri, Esq., (Morgan & Morgan) of Lixington,
Kentucky for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This matter
is before me on a stipulated record. The Charging Party, Luis
Rodriguez, timely filed unfair labor practice charges and
amended charges in the above-captioned cases against the Re-
spondents, TBC—Tire & Battery Corporation d/b/a TBC Corpo-
ration and TBC Retail Group, Inc., a wholly-owned subsidiary
of TBC—Tire & Battery Corporation d/b/a TBC Corporation
(the Respondents). The complaints that followed allege that the
Respondents violated Section 8(a)(1) of the National Labor Re-
lations Act (the Act)1 by maintaining and enforcing: (1) an agree-
ment requiring its employees to resolve all employment related
claims against the Respondents by binding arbitration and fur-
ther waiving employees’ rights to initiate or maintain such
claims in a class, collective or representative basis and (2) a no
solicitation rule precluding employees from engaging in pro-
tected activity. The Respondents deny that the arbitration agree-
ment and no solicitation rule at issue, as well as the enforcement
of the arbitration agreement, violate the Act. With respect to the
arbitration agreement, they further contend that the Act does not
grant employees a right to access class procedures created by
other laws, including the Federal Arbitration Act (FAA) and Fair
Labor Standards Act (FLSA).
The hearing opened telephonically on August 18, 2016. The
formal documents were received in evidence.2 Thereafter, I ad-
journed the hearing indefinitely to allow the parties additional
time to file a joint motion for a decision on a stipulated record.
On September 1, 2016, the parties submitted a Joint Motion and
Stipulated Record pursuant to Section 102.35(a)(9) of the Na-
tional Labor Relations Board’s (the Board) Rules and Regula-
tions. The joint motion requested that I issue a decision in this
proceeding without a hearing based solely on a stipulated record.
On September 2, 2016, I granted the joint motion, received into
the record the stipulated facts and exhibits, and ordered the sub-
mission of briefs by September 21, 2016. A joint request for an
extension of time to file briefs was granted and briefs were filed
on October 7, 2016.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents, corporations with places of business at fa-
cilities in Palm Beach Gardens, Florida, have been engaged in
the business of operating a chain of retail tire and auto mainte-
nance stores throughout Florida. In conducting their business as
a single employer within the meaning of the Act, the Respond-
ents annually derive gross revenues in excess of $500,000 and
purchase and receive at their Florida facilities goods and values
1 29 U.S.C. §§ 158(a)(1), et seq.
2 GC Exh. 1 through 1(cc) and Jt. Exh. 2 through 19.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
in excess of $50,000 directly from points located outside the
State of Florida. The Respondents admit, and I find, that they are
employers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Arbitration Agreement
Since October 16, 2013, the Respondents have required all
newly hired employees to sign the Respondents’ “Mutual Agree-
ment to Arbitrate Claims and Waiver of Class/Collective Ac-
tions” (the Arbitration Agreement) as a condition of employ-
ment. The language of the Arbitration Agreement has remained
the same at all times since October 16, 2013.
On March 13, 2014, the Respondents further required all of
their employees hired before October 16, 2013 to sign the Arbi-
tration Agreement as a condition of continued employment. Alt-
hough the Respondents requested that their current employees
sign the Arbitration Agreement by March 21, 2014, this was not
a strict deadline. Some of the Respondents’ current employees
did not sign the Arbitration Agreement until after March 21,
2014, but the Respondents eventually required all current em-
ployees to sign the Arbitration Agreement as a condition of em-
ployment.
Since March 13, 2014, the Respondents have implemented
and maintained an Employee Self-Service Portal, which gives
their employees the ability to review and acknowledge policies,
processes and documents, including the Arbitration Agreement.3
After employees execute the Arbitration Agreement, the record
is electronically maintained by the Respondents.
The Arbitration Agreement includes two basic premises. The
first binds employees to arbitration as their exclusive method of
recourse in any dispute against the Respondent. The second part
prohibits employees from bringing or participating in any group
action. The agreement also provides a mechanism for judicial
enforcement to compel arbitration and enforce or vacate an arbi-
tration award if permitted by applicable law.
Matters excluded from the Agreement include claims for
workers’ compensation or unemployment compensation bene-
fits, claims expressly precluded from arbitration by federal or
state statutes or regulations not otherwise preempted from arbi-
tration by the FAA, and proceedings before federal, state or local
administrative agencies, including the Board. The agreement
states, in pertinent part:
[D]isputes, claims, complaints or controversies (“Claims”) be-
tween [the employee and the Company] . . . that in any way
arise out of or relate to your employment . . . will be resolved
by binding arbitration and NOT by a court or jury. As such, the
Company and you agree to forever waive and relinquish their
right to bring claims against the other in a court of law.
To the maximum extent permitted by law, the parties agree that

3 Jt. Exh. 3.
4 While noting that the Charging Party denies signing the Arbitration
Agreement, the parties stipulated, and the General Counsel reaffirmed,
that the Charging Party electronically signed the agreement on August 9,
2014. (Stipulation 13; Joint Exh. 2.)
5 Jt. Exh. 4–5.
this Agreement is equally binding on any person who repre-
sents or seeks to represent you or the Company in a lawsuit
against the other in a court of law. That is, the parties agree that
no Claims may be initiated or maintained on a class action ba-
sis, collective action basis, or representative action basis either
in court or arbitration. Any Claims must be brought in a party’s
individual capacity, and such claim may not be joined or con-
solidated in arbitration with Claims brought by other individu-
als. . .
B. The Charging Party Executes the Arbitration Agreement
Between August 11, 2014 and mid-February 2015, the Re-
spondents employed the Charging Party as an employee within
the meaning of Section 2(3) of the Act, at its Tire Kingdom store
in Kissimmee, Florida. In accordance with the Respondents’ re-
quirement as a condition of employment since October 16, 2013,
the Charging Party electronically signed the Arbitration Agree-
ment on August 9, 2014.4
On April 29 and May 12, 2015, Bernard Mazaheri, Esq., on
behalf of the Charging Party and other employees, notified in the
Respondents regarding alleged violations of the overtime provi-
sions of Section 7(a) of the FLSA.5 On June 3, 2015, Brian
Maciak, the Respondents’ Senior Vice President and a statutory
supervisor within the meaning of Section 2(11) of the Act, re-
sponded that “[b]eginning in October 2013, associates have
signed mandatory arbitration agreements. [Charging Party] did
so as well. Further, these agreements contain a class action
waiver.”6
On June 19, 2015, the Respondents’ former employees, Corey
Desimoni and James Reiter, individually and on behalf of an al-
leged class of all similarly situated employees, filed a complaint
in the United States District Court for the Middle District of Flor-
ida in the matter of Corey Desimoni & James Reiter, individually
& on behalf of all similar situated v. TBC Corporation, Case No.
2:15-cv-366-UA-CM (M.D. Fla. 2015) (the FLSA Lawsuit), also
alleging violations of the FLSA.7 The Charging Party’s signed
Consent to Join the Florida Lawsuit as an opt-in plaintiff was
filed the same day.8 On July 28, 2015, the Plaintiffs in the FLSA
Lawsuit filed a motion for conditional class certification and no-
tice of the lawsuit to all putative class members.9
C. Court Enforcement of the Arbitration Agreement
On August 20, 2015, the Respondents sought dismissal or a
stay of the FLSA Lawsuit by filing a motion to compel arbitra-
tion of the claims pursuant to the FAA. The motion to compel
was supported by the Declaration of Megan Filoon, the Respond-
ents’ Vice President for Human Resources.10 On September 8,
2015, Plaintiffs filed their opposition to the motion to compel
arbitration. On September 14, 2015, the Respondents filed oppo-
sition to the Plaintiffs’ motion for class certification.11
On June 9, 2016, Magistrate Judge Carol Mirando entered a
Report and Recommendation to compel arbitration. On July 7,
6 Jt. Exh. 6.
7 Jt. Exh. 7.
8 Jt. Exh. 8.
9 Jt. Exh. 9.
10 Jt. Exh. 10–11.
11 Jt. Exh. 12–13.
THE CORPORATION AND TBC RETAIL GROUP, INC. 5
2016, United States District Judge Sheri Polster Chappell entered
an Order accepting and adopting the Report and Recommenda-
tion. The Plaintiffs have not appealed the order compelling arbi-
tration.12
C. The Respondents’ No Solicitation Provision
From November 1, 2010 until April 14, 2016, the Respond-
ents maintained a 2010 Associate Handbook, which includes a
no solicitation provision. During that period, the Respondents
provided the 2010 Associate Handbook to, and/or made it avail-
able to, all of their employees. The no solicitation provision
states as follows:
[The Respondents provide] a solicitation free work environ-
ment in order to prevent workplace distractions or misunder-
standings that can result from solicitation. This means that we
do not allow Associates or non-employees to solicit in our
buildings, on our property or during work hours, unless that so-
licitation is approved in advance by the respective Senior Ex-
ecutive in conjunction with Human Resources.13
Since January 18, 2012, the Respondents have maintained Hu-
man Resources Policies and Procedures, Policy No. 406 regard-
ing Solicitation and Distribution. The policy “limits Associates
from engaging in solicitation or distribution during work time or
in work areas, that may interfere with [the Respondents’] opera-
tions.”14 Solicitation and distribution are defined as:
a. Engaging in solicitation for subscriptions, memberships,
money to purchase gifts or flowers, or other outside activities
is not permitted during an associate’s working time or with an-
other associate during that associate’s working time.
b. Distribution of pamphlets or other printed materials of any
kind is not permitted in the work areas of the facility at any
time.
c. Distribution of pamphlets or other printed materials of any
kind is not permitted by an associate during his or her working
time or to another associate during that associate’s working
time.
d. Solicitation or distribution on facility premises by non-asso-
ciates is not permitted at any time.
Notwithstanding Policy No. 406’s restrictions against solici-
tation in work areas, the policy makes an exception for charitable
solicitation:
[The Respondents] believe that it is our responsibility to be a
good corporate citizen in our communities. For this reason, we
permit solicitation for a few, recognized charities selected by
the Company which have a particular significance and benefit
to our communities and their citizens. In such event, a specific
notice of the solicitation for the charitable cause is posted on
the bulletin boards (electronic or otherwise, whichever is ap-
propriate). These solicitations are approved, initiated and con-
ducted by members of management only.

12 Jt. Exh. 14–15.
13 Jt. Exh. 16.
14 Jt. Exh. 17.
15 Jt. Exh. 18.
16 Jt. Exh. 19.
On February 25, 2016, the Charging Party filed the charge al-
leging that the no solicitation rule in the 2010 Associate Hand-
book was unlawful. On April 4, 2016, the Respondents revised
the no solicitation provision contained in the 2010 Associate
Handbook. Beginning on April 4, 2016, the Respondents pro-
vided the 2016 Associate Handbook, including the revised no
solicitation provision, to and/or made it available to, all their em-
ployees. Since April 8, 2016, the 2016 Associate Handbook has
been communicated to all employees and new hires at those lo-
cations through Respondents’ intranet system. The pertinent pro-
vision states as follows:
[The Respondents prohibit] solicitation during working time to
prevent workplace distractions or misunderstandings that can
result from solicitation. This means that we do not allow Asso-
ciates to engage in solicitation for subscriptions, memberships,
money to purchase gifts or flowers, or other outside activities
during the working time, of an Associate or with another em-
ployee during that Associate’s working time. Working time is
that period during the workday when the associate is supposed
to be on the job or otherwise attending to the duties of his or
her job. It does not include such time as breaks, lunch, or rest
periods, or before and after work. Non-employees are prohib-
ited from any solicitation in our buildings or elsewhere on our
property 15
On April 5 and 6, 2016, Filoon distributed a notice to employ-
ees regarding solicitation and posted it on the associate infor-
mation bulletin boards located in each of Respondents’ locations
in Florida, Georgia, Mississippi, Louisiana, Ohio, Texas, Mis-
souri, Maryland, North Carolina, South Carolina and Vermont.
The notice stated that the Respondents would no longer promul-
gate or maintain written work rules prohibiting them from solic-
iting on company property during work hours, engage in any
conduct that will negatively impact the Respondents, and fail to
participate in any company investigation. The notice also stated
the permissible scope of rules prohibiting soliciting during work-
ing time, engaging in activities that compete with the company
or exploit an employee’s position for personal gain, and requir-
ing employees to cooperate in misconduct investigations. Since
April 6, 2016, the Respondents’ human resources managers have
either visually or verbally confirmed with each store manager
that the notices have been posted to the associate information
bulletin boards located in each store.16
E. Applicability of Disputed Policies to Respondents’
Subsidiaries
In addition to the dissemination and maintenance of the Arbi-
tration Agreement, 2010 Associate Handbook, 2016 Associate
Handbook and Posted Notices to Respondents’ employees, these
documents were disseminated and maintained with respect to
employees of several, but not all of, the Respondents’ subsidiar-
ies.17
17 The parties agree that any final determination regarding the legality
of the Arbitration Agreement and the 2010 Associate Handbook will also
be binding as to subsidiaries of the Respondents where the Arbitration
Agreement and 2010 Associate Handbook were disseminated and main-
tained, and the Respondents agree that any final remedial order shall be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Legal Analysis
I. THE ARBITRATION AGREEMENT
The complaint alleges that the class and collective action
waiver contained in the Arbitration Agreement, as well as its en-
forcement, violates Section 8(a)(1) of the Act. In support of the
allegations, the General Counsel alleges that the administrative
law judge is bound to follow extant agency precedent in D.R.
Horton, Inc., 357 NLRB 2277 (2012), and Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004). In those cases, the
Board held that Section 7 creates a substantive right for employ-
ees to pursue collective action and, thus, a required waiver of
such right violates Section 8(a)(1) of the act.
The Respondents contends that the Arbitration Agreement
does not violate the Act because: (1) the FAA requires that the
Arbitration Agreement must be enforced as written; (2) a federal
court has already entered an order enforcing the Arbitration
Agreement; and (3) neither the General Counsel nor Charging
Party ever argued to that court that the arbitrations were unlawful
under the Act, any reconsideration of the district court’s decision
should be barred on equitable principles.
B. Board Precedent in D. R. Horton, Inc. Governs the
Arbitration Agreement
It is undisputed that the Arbitration Agreement expressly pro-
hibits employees, as a condition of their employment, from en-
gaging in protective concerted activity pursuant to Section 7 of
the Act. The Respondents maintain, however, that the General
Counsel and Charging Party cannot rely on Board decisions in
D.R. Horton and Murphy Oil that were erroneously decided
and/or reversed by the federal courts upholding class action
waivers. D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 359–360 (5th
Cir. 30 2013); Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013,
1016 (5th Cir. 2015). In Murphy Oil, the Board affirmed the
holding in D.R. Horton and addressed the Fifth Circuit’s rejec-
tion of the Board’s decision by reiterating its position that the
Board is not required to follow their decisions in other cases.
Murphy Oil, 361 NLRB 774, 776, fn. 17, citing Enloe Medical
Center v. NLRB, 433 F.3d 834, 838 (D.C. Cir. 2005).
Only the Board or the Supreme Court can reverse extant Board
precedent in D.R. Horton and Murphy Oil. See Waco, Inc., 273
NLRB 746, 749, fn. 14 (1984); Iowa Beef Packers, Inc., 144
NLRB 615, 616–617 (1963), enf. granted in part, 331 F.2d 176
(1964). As such, unless and until the Supreme Court holds oth-
erwise, an administrative law judge is bound to follow the
Board’s controlling precedent finding class action waivers un-
lawful. See, e.g., Pathmark Stores, 342 NLRB 378 fn. 1 (2004)
(finding that the administrative law judge has duty to apply es-
tablished Board precedent which the Supreme Court has not re-
versed); Chesapeake Energy Corp., 362 NLRB No. 80 (2015)
(rejecting the administrative law judge’s deference of the Act to
the FAA and finding that arbitration policies violated Section
8(a)(1)).
Moreover, the federal courts diverge in their opinions regard-
ing the issue. The Seventh and Ninth Circuits recently agreed

applicable to all of their subsidiaries in the United States and its territo-
ries where the Arbitration Agreement and 2010 Associate Handbook
were disseminated and maintained.
with the Board’s decision in D.R. Horton and deferred to the
Board’s interpretation of Section 7 as prohibiting employers
from restraining employees in the pursuit of class action reme-
dies. Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016);
Morris v. Ernst & Young, __ F.3d __, Case No. 13-16599 (9th
Cir. 8/22/16). Deference to the Board’s interpretation of the Act
is neither a novel nor new concept, even at the Supreme Court.
See, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527, 536 (1992).
The Supreme Court has not overturned the Board precedent in
D. R. Horton and Murphy Oil holding that class action waivers
in arbitration agreements restricting the right of employees to en-
gage in concerted activity are unlawful. Therefore, D.R. Horton
remains controlling Board law. Manor West, Inc., 311 NLRB
655, 667 fn. 43 (1993).
B. The Arbitration Agreement Restrains Employees From
Filing Unfair Labor Practices Charges with The Board.
The Respondents also assert that the Arbitration Agreement is
lawful because employees can legally waive their rights to en-
gage in collective litigation. The Respondents rely on Circuit
City Stores, Inc. 532 U.S. 105 (2001) for the proposition that the
waiver merely affects employees’ procedural, not substantive,
rights to pursue collective action.
It is true that federal courts and the Board have recognized the
employee’s right to waive statutorily protected rights. BE & K
Constr. Co. v. NLRB, 23 F.3d 1459, 1462 (8th Cir. 1994) (hold-
ing that the right to refrain from joining or assisting a union is an
equally protected right with that of joining or forming a union).
However, the Board rejected that argument in MasTec Services
Co., 363 NLRB No. 81 (2015), enf. denied No. 16-60011 (per
curiam) (5th Cir. July 11, 2016) (rejected contention that opt-out
provision afforded employees the freedom to enter into a class
waiver, or refrain from doing so). Based on current Board deci-
sional law, the Respondents’ class action waiver unlawfully re-
stricts the Section 7 rights of employees.
C. Respondents’ Enforcement of the Arbitration Agreement
Also Violates the Act.
The Respondent successfully enforced the Arbitration Agree-
ment as against the Charging Party and at least two other em-
ployees, Desimoni and Reiter. As a result, the Charging Party,
Desimoni and Reiter were prevented from pursuing their FLSA
claims in Federal district court and relegated to arbitration.
The Respondents assert that the FAA takes precedence over
the Act by requiring that arbitration agreements be enforced ac-
cording to their terms unless they fall within a specific exception.
CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 668–669
(2012). Board precedent, however, holds otherwise. In Murphy
Oil, the Board reaffirmed the applicability of the FAA’s savings
clause exception and congressional intent that the Act’s mandate
to protect employees’ substantive Section 7 rights overrides the
FAA’s interest in enforcing private agreements. 361 NLRB 774,
782–783.
The Respondents’ additional reliance on the doctrines of res
judicata, collateral estoppel, laches and/or waiver based on the
THE CORPORATION AND TBC RETAIL GROUP, INC. 7
federal court’s determining granting the motion to compel arbi-
tration, is unavailing. Under extant Board law, court judgments
are not given collateral estoppel effect in Board proceedings. See
Field Bridge Associates, 306 NLRB 322 (1992), enfd. 982 F.2d
845 (2d Cir. 1993). This rationale is premised on the general rule
that if the Board was not a party to the prior private litigation, it
is not barred from litigating an issue involving enforcement of
Federal law which the private plaintiff has litigated unsuccess-
fully.” Roadway Express, Inc., 355 NLRB 197 (2010). Given the
Board’s interests in preventing the erosion of employees’ Sec-
tion 7 rights, the Board’s “Spielberg-Olin” standard for deferring
to an arbitrator’s decision is inapplicable here because it is
“clearly repugnant” to the purposes of the Act. See Olin Corp.,
268 NLRB 573, 574 (1984); Spielberg Manufacturing Co., 112
NLRB 1080, 1082 (1955).
Lastly, the Respondents refer to the General Counsel’s failure
to intervene, after unfair labor practice charges were filed, as an
interested party in the FLSA Lawsuit pursuant to FRCP Rule 24.
The Respondent’s argument that the General Counsel is in priv-
ity with the charging party because he seeks relief on his behalf
ignores the governmental interests involved. This argument also
fails. The Board adheres to the general rule that if the federal
agency was not a party to the prior private litigation, it is not
barred from litigating an issue involving enforcement of Federal
law which the private plaintiff has litigated unsuccessfully. See
Allbritton Communications, 271 NLRB 201, 202 fn. 4 (1984). In
accordance with Section 3(d) of the Act, the General Counsel is
accorded a prosecutorial function in seeking relief for the charg-
ing party in order “to assure protection from the described unfair
conduct in order to remove obstructions to interstate commerce.”
Amalgamated Utility Workers v. Consolidated Edison Co. of
New York, 309 U.S. 261, 265 (1940).
Accordingly, the Respondents’ successful motion to compel
arbitration in the federal court cases unlawfully restricted Sec-
tion 7 activity in violation of Section 8(a)(1) of the Act. See Bris-
tol Farms, 364 NLRB No. 34 (2016). Moreover, consistent with
the Board’s decision in Murphy Oil, supra at 21, the Charging
Party, Desimoni and Reiter are entitled to recover all reasonable
litigation expenses and attorneys’ fees incurred in opposing the
Respondents’ motion to compel arbitration in the FLSA Law-
suits. See also Nijjar Realty, Inc., d/b/a Pama Management, 363
NLRB No. 38 (2015).
II. THE NO SOLICITATION POLICY
The complaint alleges that the Respondents’ no solicitation
rule, in effect from November 1, 2010 to April 4, 2016, unlaw-
fully restricted employees’ Section 7 rights to engage in pro-
tected conduct. The Respondents deny that their no solicitation
rule was unlawful and further aver that they lawfully repudiated
it by their promulgation of a revised rule in 2016.
A. The 2010 No Solicitation Rule
The Respondents’ 2010 Associate Handbook, which was in
effect from November 1, 2010 until April 4, 2016, and publicized
to all of their employees, included a rule prohibiting solicitation
by employees anywhere on company property during “working

18 As noted by the General Counsel, there is no evidence that HR Pol-
icy 406 was distributed to employees.
hours” without the express permission of management. HR Pol-
icy 406, promulgated on January 18, 2012, describes a different
no solicitation rule by “[limiting] Associates from engaging in
solicitation or distribution during work time or in work areas,
that may interfere with [the Respondents’] operations.”18
A rule or policy violates Section 8(a)(1) of the Act if it explic-
itly restricts activities protected by Section 7 or if it can reason-
ably be read by employees to chill their Section 7 rights. Lafa-
yette Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d 52 (DC
Cir. 1999). As such, a rule prohibiting solicitation during work-
ing hours, in contrast to working time, is overly broad and pre-
sumptively invalid, as it could reasonably be construed as pro-
hibiting solicitation during break times or periods when employ-
ees are not working. One Way, Inc., 268 NLRB 394 (1983).
The Respondents’ 2010 no solicitation rule restricting em-
ployees’ solicitations on company property was overly broad and
presumptively invalid. William Beaumont Hospital, 363 NLRB
No. 162, slip op. at 1–2 (2016), citing Lutheran Heritage Village,
supra at 646–647. The rule required employees to request and
receive permissions from Respondents’ management before en-
gaging in solicitation on company property or during work
hours. The clear implication of the rule was that certain solicita-
tion might be permitted, while permission for other types of so-
licitation might be declined. By requiring management approval,
the rule causes anyone seeking to engage in Section 7 activities
to disclose the nature of the activity. Thus, the disclosure require-
ment tended to chill employees’ from engaging in protected ac-
tivity. UPMC, 362 NLRB No. 191, slip op. at 30 (2015).
B. Respondents’ Efforts to Repudiate the 2010 Rule
On April 4, 2016, the Respondents replaced the 2010 Associ-
ate Handbook’s no solicitation provision with a new no solicita-
tion rule. The parties agree that the April 2016 no solicitation
rule is facially valid and that the applicable notice purportedly
repudiating the 2010 no solicitation rule was distributed to em-
ployees at its facilities. The General Counsel contends, however,
that the notice was an ineffective repudiation of its past policy
and that there is no evidence that it was posted at the facilities of
the Respondents’ affiliates.
The Respondents’ repudiation of the 2010 no solicitation rule,
although only 37 days after the Charging Party filed the applica-
ble charge, was still ineffective under the Board’s standard set
forth in Passavant Memorial Hospital, 237 NLRB 138 (1978)
(repudiation must be timely, unambiguous, describe the unlaw-
ful conduct being remedied and be free from other unlawful con-
duct after its publication). The Posted Notices were timely and
unambiguous, but did not adequately explain the reasons for re-
placing the 2010 rule with the 2016 no solicitation policy, in-
cluding the unfair labor practices being remedied. Lily Transpor-
tation Corp., 362 NLRB No. 64, slip op. at 1 (2015). Moreover,
the Respondents continued engaging in unfair labor practices af-
ter the repudiation by maintaining the aforementioned unlawful
arbitration and class action waiver. Douglas Division, The Scott
& Feltzer Company, 228 NLRB 1016 (1977).
Under the circumstances, the Respondents’ 2010 No
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Solicitation Rule unlawfully coerced employees from engaging
in Section 7 activities in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondents TBC—Tire & Battery Corporation d/b/a TBC
Corporation and TBC Retail Group, Inc., a wholly-owned sub-
sidiary of TBC—Tire & Battery Corporation d/b/a TBC Corpo-
ration, constitute a single employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Since March 13, 2014, the Respondents have violated Sec-
tion 8(a)(1) of the Act by maintaining and enforcing an Arbitra-
tion Agreement requiring employees to resolve employment-re-
lated disputes exclusively through individual arbitration and
forego any right they have to resolve such disputes through class
or collective action.
3. Since November 1, 2010, the Respondents have violated
Section 8(a)(1) of the Act by maintaining a policy prohibiting
employees from soliciting other employees during non-working
time of the involved employees, prohibiting employees from so-
liciting in working areas during nonworking time, and requiring
employees to get permission from management before engaging
in solicitation during non-working time.
4. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated the Act by main-
taining and enforcing the Arbitration Agreement, I shall order it
to cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have concluded that the No Solicitation and Mutual
Agreement to Arbitrate Claims and Waiver of Class/Collective
Actions provisions are unlawful, the recommended order re-
quires that Respondents revise or rescind them and advise their
employees in writing that said rules have been so revised or re-
scinded. Because Respondents utilized these rules on a corporate
wide basis, Respondents shall post a notice at all locations, in-
cluding all affiliates and subsidiaries, where these rules, or any
portion of them were in effect. See, e.g., U-Haul Co. of Califor-
nia, 347 NLRB 375, fn. 2 (2006), enfd. 255 Fed.Appx. 527 (D.C.
Cir. 2007); D.R. Horton, supra, slip op. at 17.
I recommend Respondent be required to reimburse Charging
Party Rodriguez and other FLSA Lawsuit plaintiffs for any liti-
gation and related expenses, with interest, to date and in the fu-
ture, directly related to Respondent’s filing its motion to compel
arbitration in Corey Desimoni & James Reiter, individually & on
behalf of all similar situated v. TBC Corporation, Case No. 2:15-
cv-366-UA-CM (M.D. Fla. 2015). Determining the applicable
rate of interest on the reimbursement will be as outlined in New
Horizons, 283 NLRB 1173 (1987). Interest on all amounts due
to Rodriguez shall be computed on a daily bases as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondents shall also be required to move the United
States District Court for the Middle District of Florida jointly
with the Charging Party on request, to vacate their order compel-
ling arbitration and permit employees to proceed with class ac-
tion claims regarding wages, hours and/or working conditions in
some forum, whether arbitral or judicial.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER
The Respondents, TBC—Tire & Battery Corporation d/b/a
TBC Corporation and TBC Retail Group, Inc., a wholly-owned
subsidiary of TBC—Tire & Battery Corporation d/b/a TBC Cor-
poration, and their affiliates and subsidiaries, officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing an arbitration agreement or
waiver of class or collective actions which employees would be-
lieve compel them to individually arbitrate claims against the Re-
spondents with respect to disputes about their wages, hours or
other terms and conditions of employment.
(b) Maintaining and/or enforcing an arbitration agreement
that requires employees to waive the right to maintain employ-
ment-related class or collective actions in all forums, whether ar-
bitral or judicial.
(c) Maintaining a policy prohibiting employees from solicit-
ing other employees during non-working time of the involved
employees, prohibiting employees from soliciting in working ar-
eas during non-working time, or requiring employees to get per-
mission from management before engaging in solicitation during
non-working time.
(d) In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Notify all employees at locations where the aforemen-
tioned policies are in effect that they will no longer maintain or
enforce the provisions contained in the No Solicitation provision
and the Mutual Agreement to Arbitrate Claims and Waiver of
Class/Collective Actions that waives employees’ right to bring
or participate in class or collective actions.
(b) Notify arbitral or judicial panels, if any, where the Re-
spondents have attempted to enjoin or otherwise prohibit em-
ployees from bringing or participating in class or collective ac-
tions, that it is withdrawing those objections and that it no longer
seeking to compel arbitration pursuant to the Arbitration Agree-
ment.
(c) Reimburse the Charging Party, Luis Rodriguez and the
other plaintiffs in Corey Desimoni & James Reiter, individually
& on behalf of all similarly situated vs. TBC Corporation, Case
No. 2:15-cv-366-UA-CM (M.D. Fla. 2015) for reasonable attor-
neys’ fees and other litigation expenses incurred in their efforts
opposing the Respondents’ efforts to compel arbitration of their
lawsuit against the Respondents.
(d) Within 14 days after service by the Region, post at all
facilities where the Mutual Agreement to Arbitrate Claims and
Waiver of Class/Collective Actions is or has been maintained or
THE CORPORATION AND TBC RETAIL GROUP, INC. 9
enforced, copies of the attached notice marked “Appendix.”19
Copies of the notice, on forms provided by the Regional Director
for Region 12, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents and main-
tained for 60 consecutive 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
distributed electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if the Re-
spondents customarily communicate with their employees and
former employees by such means. Respondents also shall dupli-
cate and mail, at their expense, a copy of the notice to all former
employees who were required to sign the mandatory and binding
arbitration policy during their employment with the Respond-
ents. Reasonable steps shall be taken by the Respondents to en-
sure that the notices are not altered, defaced, or covered by any
other material. In the event that during the pendency of these
proceedings, the Respondents have gone out of business or
closed the facilities involved in these proceedings, the Respond-
ents shall duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees employed
by the Respondents at any time since November 1, 2010.
(e) 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. October 14, 2016
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
On or after March 13, 2014, we required you to sign the com-
pany’s “Mutual Agreement to Arbitrate Claims and Waiver of
Class/Collective Actions” as a condition of employment. In ad-
dition, on or after April 4, 2016, we distributed to you a new
Associate Handbook. The new handbook revised the previous
Associate Handbook by eliminating a rule that was alleged to
violate Federal labor law. The National Labor Relations Board
has now found that those rules were unlawful.

19 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
WE WILL NOT maintain a provision in the Associate Handbook
entitled “No Solicitation” that contains the following language:
“TBC provides a solicitation free work environment in order to
prevent workplace distractions or misunderstandings that can re-
sult from solicitation. This means that we do not allow Associ-
ates or non-employees to solicit in our buildings, on our property
or during work hours, unless that solicitation is approved in ad-
vance by the respective Senior Executive in conjunction with
Human Resources.”
WE WILL NOT maintain an arbitration agreement that employ-
ees reasonably would believe bars or restricts the right to file in-
dividual class, collective or representative action claims against
us with respect to employment-related disputes, at all locations,
with respect to all current and former employees, within the
United States and its territories.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL notify all current and former employees who were
required to sign or otherwise become bound to the arbitration
agreement in all of its forms that it has been rescinded or revised
and, if revised, WE WILL provide them a copy of the revised
agreement.
WE WILL notify the court in which Corey Desimoni, James
Reiter and Luis Rodriguez filed their collective lawsuit that we
have rescinded or revised the arbitration agreement upon which
we based our motion to dismiss their collective lawsuit and com-
pel individual arbitration, and WE WILL inform the court that we
no longer oppose the collective lawsuit brought by Desimoni,
Reiter and Rodriguez on the basis of that agreement.
WE WILL reimburse Desimoni, Reiter, Rodriguez and any
other plaintiffs for any reasonable attorneys’ fees and litigation
expenses that they may have incurred in opposing our motion to
dismiss the collective lawsuit and compel individual arbitration.
TBC—TIRE & BATTERY CORPORATION D/B/A TBC
CORPORATION AND TBC RETAIL GROUP, INC., A
WHOLLY-OWNED SUBSIDIARY OF TBC—TIRE &
BATTERY CORPORATION D/B/A TBC CORPORATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-157478 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”