The Neiman Marcus Group, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 6, 2014

31-CA-074295 (N.L.R.B. Feb. 6, 2014)

JD(SF)–04–14
Beverly Hills, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH
THE NEIMAN MARCUS GROUP, INC.
And Case 31–CA–074295
SHEILA MONJAZEB
Michelle Scannell, Esq., for the General Counsel.
David S. Bradshaw, Esq.
(Jackson Lewis LLP), for the Respondent.
Raul Perez, Esq. Alexandria White, Esq.,
(Capstone Law, APC), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, ADMINISTRATIVE LAW JUDGE. This is another case raising issues related
to D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. granted in part and denied in part 737 F.3d
433 (5th Cir. 2013). It was tried based on a joint motion and stipulation of facts I approved on
November 22, 2013. Sheila Monjazeb (Monjazeb or the Charging Party) filed the original charge
on February 7, 2012, and an amended charge on April 4, 2012.1 The General Counsel issued the
complaint on November 30, 2012, and the Neiman Marcus Group (the Respondent. Company, or
NMG) filed a timely answer denying all material allegations and setting forth affirmative
defenses. On February 26, 2013, the Respondent filed a motion for judgment on the pleadings
on timeliness grounds. This motion was referred to the National Labor Relations Board (the
Board) on April 17, but no ruling has issued.2 The Respondent filed a motion to dismiss on
March 15, 2013, alleging the Board lacked a quorum when it issued the complaint. The Board
denied this motion on May 10. The Respondent filed another motion to dismiss on June 14,
2013, asserting the General Counsel was“estopped, barred and/or otherwise

1 All dates are in 2013 unless otherwise indicated.
2 I denied the Respondent’s motion to stay proceedings pending the Board’s ruling on this motion and
a motion to dismiss upon which the Board has since ruled. I will address the reasons for my ruling on the
motion for judgment on the pleadings in the body of this decision.
JD(SF)–04–14
2
foreclosed” from pursuing the instant matter based on the terms of a settlement agreement
between the parties. The Board denied this motion on December 20, 2013.
On the entire record and after considering the briefs filed by the Acting General Counsel
and the Respondent, I make the following5
FINDINGS OF FACT
I. JURISDICTION
10
The Respondent, a corporation with an office and place of business in Beverly Hills,
California, is engaged in retail sales of luxury clothing and other goods. The parties stipulate and
I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
15
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by maintaining and enforcing a mandatory arbitration program (MAP)
consisting of: (1) a mandatory arbitration agreement and mandatory arbitration acknowledgment 20
form requiring employees to individually arbitrate employment-related disputes; (2) a resolutions
plan and a resolutions plan acknowledgment form requiring all employment-related disputes to
be submitted to individual binding arbitration; and (3) an associate handbook and associate
handbook acknowledgment form requiring all employment-related disputes to be submitted to
individual binding arbitration. The complaint further asserts that the Respondent violated Section 25
8(a)(1) when it enforced its MAP by: (1) requiring the Charging Party to agree to the mandatory
arbitration agreement, resolutions plan, and associate handbook; and (2) asserting the MAP in
litigation the Charging Party brought against it.
III. BACKGROUND30
A. The Application
On or about October 28, 2009, the Respondent required Monjazeb to agree to the terms
set forth in its job application. Specifically, Monjazeb was required to agree to the following 35
provision:
I understand that if I accept or continue employment with NMG, I will automatically be
deemed to have (1) accepted the terms of the mandatory Arbitration Agreement, (2)
agreed to arbitrate such disputes, and (3) waived all rights to a judge or jury trial for all 40
such disputes.
JD(SF)–04–14
3
(Stip. at 4; GC Exh. 1(g) at Appx. A.)3 Monjazeb was hired and worked as a sales associate at
Neiman Marcus’ Beverly Hills, California store from November 20, 2009 through May 10, 2010.
B. The Mandatory Arbitration Agreement
5
The Respondent has a mandatory arbitration agreement (Arbitration Agreement) that
requires covered employees to submit most legal claims arising out of their employment to
binding arbitration.4 The agreement is more than 9 pages long and contains 23 numbered
sections. (Stip. at 5, GC Exh. 1(g) at Appx. B.) Monjazeb was required to agree to the terms set
forth in the Arbitration Agreement on November 23, 2009 (Stip. at 5, GC Exh. 1(g) at Appx. C.) 10
Section 15 of the Arbitration Agreement precludes class and collective actions, stating:
Class Action Prohibition. The arbitrator shall not consolidate claims of different
employees into one (1) proceeding, nor shall the arbitrator have the authority to consider,
certify, or hear an arbitration as a class action. While Section 22 hereof contains a 15
severability clause, this provision that precludes class actions may not be severed from
this Agreement for any reason.
(GC Exh. 1(g) at Appx. B.)
20
A separate page, not included as a section of the agreement, describes the Arbitration
Agreement’s scope, stating:
THIS MANDATORY ARBITRATION AGREEMENT REQUIRES YOU TO SUBMIT ALL
COMPLAINTS, DISPUTES, AND LEGAL CLAIMS (“DISPUTES”) YOU HAVE 25
AGAINST THE COMPANY, AND THE COMPANY TO SUBMIT ALL DISPUTES IT HAS
AGAINST YOU, TO BINDING ARBITRATION. THE MANDATORY ARBITRATION
AGREEMENT COVERS ALL DISPUTES, WHETHER THEY BE COMMON LAW,
STATUTORY (SUCH AS STATE AND FEDERALDISCRIMINATION CLAIMS), OR
OTHERWISE—IN SHORT ANY DISPUTE.30
THIS MANDATORY ARBITRATION AGREEMENTMEANS BOTH YOU AND THE
COMPANY ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO A TRIAL
BEFORE A JUDGE IN A COURT OF LAW ON ALL DISPUTES. INSTEAD, ALL
DISPUTES MUST BE SUBMITTED TO FINAL AND BINDING ARBITRATION.35
THIS AGREEMENT FOR MANDATORY ARBITRATION IS NOT OPTIONAL. IT IS
MANDATORY AND A CONDITION AND TERM OF YOUR EMPLOYMENT. IF YOU
ARE AN EMPLOYEE ON OR AFTER JULY 15, 2007, WHICH IS THE EFFECTIVE
DATE OF THIS AGREEMENT (THE “EFFECTIVE DATE”), YOU ARE DEEMED TO40

3 Abbreviations used in this decision are as follows: “Stip.” for stipulated fact; “Jt. Exh.” for joint
exhibit; “GC Exh.” for General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; “R Br. for
the Respondents’ brief. Although I have included several citations to the record to highlight particular
exhibits, I emphasize that my findings and conclusions are based not solely on the evidence specifically
cited, but rather are based my review and consideration of the entire record.
4 Employees who have signed separate employment agreements and employees who are covered by a
collective-bargaining agreement are not covered by the Arbitration Agreement.
JD(SF)–04–14
4
HAVE ACCEPTED AND AGREED TO THE MANDATORY ARBITRATION GREEMENT
BY COMING TO WORK AFTER THAT DATE. IF YOU ACCEPT EMPLOYMENT WITH
TILE COMPANY AFTER THE EFFECTIVE DATE, YOU ARE DEEMED TO HAVE
ACCEPTED AND AGREED TO THIS MANDATORY ARBITRATION AGREEMENT BY
ACCEPTING A JOB AT THE COMPANY5
NOTHING IN THE MANDATORY ARBITRATION AGREEWNT KEEPS YOU FROM
FILING A CHARGE OR COMPLAINT WITH THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR
LIKE STATE AGENCIES.10
Id. [Emphasis in original.] Employees sign a separate form to acknowledge receipt and
understanding of the Arbitration Agreement:
By signing below, I acknowledge and affirm that:15
I have received and had an opportunity to review the NMG Mandatory Arbitration
Agreement (the “Arbitration Agreement”);
I understand that the Arbitration Agreement is an important legal document that requires 20
me to submit all complaints, disputes, and legal claims (“Disputes”) I have against the
Company, and the Company to submit all Disputes it has against me, to binding
arbitration;
I understand that the Arbitration Agreement mans both I and the Company are waiving 25
the right to a trial by jury or to a trial before a Judge in a court of law an[sic] all Disputes.
Instead, all Disputes must be submitted to final and binding arbitration;
I understand that the Arbitration Agreement is not optional. Rather, it is mandatory and a
condition and term of my employment if I am employed or continue employment on or 30
after July 15, 2007.
(GC Exh. 1(g) at Appx. C.)
C. The Associate Handbook and NMG Resolutions35
The Respondent’s associate handbook requires employees to take employment disputes
through its 4-step process referred to and trademarked as “NMG Resolutions™.”. Relevant here,
the fourth and final step requires employees to submit to arbitration, in accordance with the
Arbitration Agreement, any workplace dispute that has not been resolved internally or through 40
mediation. (GC Exh. 1(g), Appx. D–E.) Monjazeb was required to agree to the terms in the
handbook on November 23, 2009. The acknowledgment form states, in relevant part:
I have received and had an opportunity to review The NMG Binding Arbitration
Program, which sets forth the terms and conditions of NMO’s binding arbitration plan 45
which provides that arbitration is the exclusive means of resolving any and all disputes or
claims I or the Company may have against each other, arising out of or connected in any
way with my employment with NMG, in lieu of a judge or jury trial. The Company has
JD(SF)–04–14
5
advised me that if I accept or continue employment with the Company, I am deemed to
have accepted the Binding Arbitration Program.
(GC Exh. 1(g), Appx. F.)
5
D. Monjazeb’s Class Complaint
On August 20, 2010, Monjazeb filed a class action wage-and-hour complaint against the
Respondent in the Superior Court of the State of California, San Francisco County, alleging
violations of various California Labor Code provisions. (Jt. Exh. 1.) The Respondent filed an 10
answer on October 12, 2010, and asserted as its eighth affirmative defense that Monjazeb was
“subject to a written arbitration agreement requiring her to submit any employment-related
dispute to final and binding arbitration.”5 (Jt. Exh. 2.)
On August 3, 2011, the Respondent filed a motion to compel arbitration or in the 15
alternative to stay the class action. Monjazeb responded on August 19, 2011, with an opposition.
The Respondent replied on August 25, and the parties then filed a slew of related motions with
the Superior Court. On December 20, 2011, Superior Court Judge Richard A. Kramer issued an
order dismissing Monjazeb’s claims except those covered by the Private Attorney General’s Act
(PAGA), which were stayed pending outcome of the arbitration or further court order. (Jt. Exhs. 20
4–11.)
Monjazeb filed a demand for arbitration with the American Arbitration Association
(AAA) on January 10, 2012. She filed an amended demand on January 18, to include a demand
for class arbitration. (Jt. Exh. 12.) On February 5, the Respondent’s attorney sent a letter to 25
Lesley Barton, manager of ADR services at the AAA, stating that in accordance with paragraph
15 of the Agreement, it would not participate in class arbitration. (Jt. Exh. 13.) In response,
Monjazeb sought to have her class action lawsuit reinstated in state court. The parties continued
to file various motions, ultimately culminating in an October 30, 2012, order from Judge Kramer
vacating the previous order compelling arbitration, based upon his finding that Arbitration 30
Agreement was unconscionable under California law, and issuing a new order denying the
Respondent’s motion to compel arbitration. The Respondent appealed Judge Kramer’s order on
December 20, 2012. At the time of this decision the appeal was pending before the California
Court of Appeal for the First Appellate District. (Jt. Exhs. 13A-28.)
35
IV. DECISION AND ANALYSIS
A. Mandatory Waiver of Class Action Claims
Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer to interfere 40
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. The
rights guaranteed in Section 7 include the right “to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection
. . .” 45

5 That same day, the Respondent filed an application with the state court for an order designating the
case as complex. (Jt. Exh. 3.)
JD(SF)–04–14
6
The Board has held that activity is concerted if it is “engaged in with or on the authority
of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 5
(1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988). Concerted activity also includes “circumstances where individual employees seek to
initiate or to induce or to prepare for group action” and where an individual employee brings
“truly group complaints to management’s attention.” Meyers II, 281 NLRB at 887.
10
The Respondent asserts that as a putative class member, the Charging Party was not
engaged in concerted activity. Established case law instructs otherwise. Section 7 “protects
employees from retaliation by their employers when they seek to improve [their] working
conditions through resort to administrative and judicial forums. Eastex, Inc. v. NLRB, 437 U.S.
556, 565−566 (1978); see also D.R. Horton, supra, slip op. at 3; see also Standsco Oil & Royalty 15
Co., 42 NLRB 942, 948−949 (1942); United Parcel Service, 252 NLRB 1015, 1018, 1022 fn. 26
(1980), enfd. 677 F.2d 421 (6th Cir. 1982). Whether class member status existed is immaterial
since the Act “protects employees who engage in individual action . . . with the objective of
initiating or inducing group action.” Mushroom Transportation Co. v. NLRB, 330 F.2d. 683, 685
(3d Cir. 1964). Even without class member status, Monjazeb’s class action lawsuit sought to 20
“enlist the support of fellow employees in mutual aid and protection” and intended to “initiat[e]
or induc[e] group action” regarding alleged wage-and-hour violations against the Respondent.
Whitaker Corp., 289 NLRB 933 (1988). “Clearly, an individual who files a class or collective
action regarding wages, hours or working conditions, whether in court or before an arbitrator,
seeks to initiate or induce group action and is engaged in conduct protected by Section 7.” D.R. 25
Horton, supra, slip op. at 3.6 I therefore find Monjazeb was engaged in protected concerted
activity when she filed and pursued her class action suit.
I find the MAP is a condition of employment, as employees and applicants must agree to
its terms to be employed by the Respondent.7 Accordingly, it is treated in the same manner as30
other unilaterally implemented workplace rule. When evaluating whether a rule, including a
mandatory arbitration policy, violates Section 8(a)(1), the Board applies the test set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). See U-Haul Co. of California, 347
NLRB 375, 377 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D.R. Horton, supra. Under
Lutheran Heritage, the first inquiry is whether the rule explicitly restricts activities protected by 35
Section 7. If it does, the rule is unlawful. If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage at 647.
Because the MAP explicitly prohibits employees from pursuing employment-related claims on a 40
class or collective basis, I find it violates Section 8(a)(1). In addition, by moving to compel

6 At footnote 5 in D.R. Horton, the Board, citing to court decisions, notes, “Employees surely
understand what several Federal courts have recognized: that named plaintiffs run a greater risk of
suffering unlawful retaliation than unnamed class members.” As such, the Board observed that “in a quite
literal sense, named-employee-plaintiffs protect the unnamed class members.”
7 The Respondent’s asserted affirmative defense that the MAP was voluntary is discussed below.
JD(SF)–04–14
7
arbitration and refusing to arbitrate anything other than an individual claim, the Respondent has
applied the MAP to restrict Section 7 rights.
The Respondent argues, based on the Supreme Court’s reasoning in AT&T Mobility v.
Concepcion, 131 S.Ct. 1740, 1746 (2011), and other related case law,8 that the Board in D.R. 5
Horton erred by failing to follow the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et. seq. The
Board, however, considered these arguments and precedents in D.R. Horton to support a
different conclusion by which I am bound.9
Next, the Respondent argues that I should follow the reasoning of the Court of Appeals 10
for the Fifth Circuit, which vacated the Board’s D.R. Horton decision. D.R. Horton,
Incorporated v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013). Because I am bound by Board
precedent until it is either overturned by the Supreme Court or reversed by the Board itself, this
argument fails.
15
Citing to the Supreme Court precedent discussed above, along with American Express.
Co. v. Italian Colors Restaurant, 133 S.Ct. 2034 (2013), as well as lower court decisions
repudiating D.R. Horton, the Respondent asserts that the instant complaint lacks merit. The
Respondent requests that I follow the recent decision of Administrative Law Judge Bruce
Rosenstein in Chesapeake Energy Corporation, No. 14-CA-100530 (November 8, 2013). This 20
decision is not precedential, however, and to the extent it conflicts with the Board’s case law, I
am precluded from following it. The Respondent argues, and Judge Rosenstein found, that
American Express Co. makes clear that it is improper to find a congressional command where
none exists. American Express Co. involved a group of merchants who were unhappy with the
rates American Express charged them to use their cards at their respective businesses. At issue 25
before the Court was whether the merchants were bound by agreements mandating individual
arbitration of these disputes and precluding a class action suit for violation of antitrust law. The
merchants argued that without the ability to proceed collectively, it was not cost effective to
challenge American Express’ rates. The Court noted that the laws at issue, the Sherman and
Clayton Acts, fail to reference class actions, and found that the “antitrust laws do not guarantee 30
an affordable procedural path to the vindication of every claim.” Id. at 2309. Though the NLRA
likewise does not reference class or collective actions, the Board in D.R. Horton distinguished it
from other statutes the Court has considered by finding that Section 7 substantively guarantees
employees the right to engage in collective action, including collective legal action, for mutual
aid and protection concerning wages, hours, and working conditions. As the Board stated, “the 35
intent of the FAA was to leave substantive rights undisturbed.” D.R. Horton, slip op. at 11. No
such substantive statutory provision was asserted in American Express Co., and therefore the

8 AT&T Mobility LLC v.Concepcion, supra; CompuCredit Corp. v.
Greenwood, 132 S.Ct. 665 (2012); Marmet Health Care Center. v. Brown, 132 S.Ct. 1201 (2012); Stolt-
Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662 (2010); 14 Penn Plaza LLC v. Pyett, 556
U.S. 247 (2009); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001); Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Shearson/American Express v. McMahon, 482 U.S.
220, 227 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628 (1985); Moses
H. Cone Memorial Hospital v. Mercury Construction. Corp., 460 U.S. 1 (1983). Though a couple of the
cases the Respondent cites were not specifically referenced in D.R. Horton, the principles for which they
were cited were addressed.
9 Though the American Express Co. decision came after D.R. Horton, I have addressed this below.
JD(SF)–04–14
8
decision is not sufficiently on point to warrant straying from Board precedent. See Waco, Inc.,
273 NLRB 746, 749 fn. 14 (1984); Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979),
enfd. 640 F2d 1017 (9th Cir. 1981).
The Respondent next contends that the remedies the General Counsel has requested 5
create obstacles to the enforcement of the FAA, and because the FAA is preemptive, they must
be denied. The Board has rejected this position regarding the relationship between the FAA and
the NLRA, as set forth in D. R. Horton, so I am unable to find merit to this defense as a general
matter. More specifically, the Respondent incorporates its 10th, 11th, and 12th affirmative
defenses to argue a lack of remedial power. I address these more specific arguments below.10
In support of its 10th, 12th, and t13th affirmative defenses, the Respondent asserts that
the Board lacks the authority to order reimbursement of litigation expenses for actions taken in
court because this would interfere with the authority of the Superior Court in Monjazeb’s
pending civil case. I disagree, as the court is not determining whether the Respondent violated 15
the Act by its actions in litigation. Monjazeb may lose her lawsuit alleging violations of the
California Labor Code and therefore lose any entitlement for the court to order reimbursement
attorney’s fees as a remedy.10 Win or lose, her class action lawsuit is still protected concerted
activity under the Act. It is a matter of common sense that if collective and class legal actions
are protected by the Act, any remedy imposed upon the Respondent for interfering with an active 20
protected lawsuit is going to implicate another forum in some fashion. Such interference, be it
by way of legal action or otherwise, is unlawful and requires a make whole remedy, including
attorney’s fees incurred in fighting the unlawful legal action. J.A. Croson Co., 359 NLRB No. 2,
slip op. at 10 (2012); See also Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 747 (1983).
The fact that Monjazeb initiated the lawsuit does not, in my view, create a meaningful 25
distinction. The Respondent by its actions in court is challenging Board case law which very
clearly holds the MAP violates the Act. The motion to compel arbitration, which by virtue of the
MAP can only be on an individual basis, is the crux of the challenge. Inherent in the challenge
are risks, which the Respondent is assuming by declining to follow the Board’s case law as it
works its way through the system. In any event, the General Counsel’s requested remedy of 30
attorney’s fees for defending against the motion to compel arbitration does not intrude upon the
court’s ability to determine the merits of Monjazeb’s claims before it. Should Monjazeb prevail
in court and be entitled to attorney’s fees as a result of the Respondent’s violations of State law,
the California Superior Court judiciary is fully capable of applying California law to sort out the
equities when devising its remedy. 35
The 11th affirmative defense asserts that the complaint is barred because it would require
the Respondent to rescind the MAP with respect to all employees, including supervisors,
mangers, and other employees not covered by the Act. The General Counsel contends that the
complaint only seeks a remedy for employees as defined by the Act. Any remedial order will 40
thus reflect the scope of the complaint the term “employee” will be construed in accordance with
the Act.

10 I note that California Labor Code sec.218.5 authorizes attorney’s fees for the prevailing party in “
any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund
contributions . . . if any party to the action requests attorney’s fees and costs upon the initiation of the
action.” Sec. 1194(a) entitles employees who have been found to have received less than minimum wage
or overtime compensation to attorney’s fees, among other remedies.
JD(SF)–04–14
9
The Respondent’s 12th affirmative defense contends that the Board lacks jurisdiction to
order the Respondent to take or abstain from taking action with regard to the Charging Party’s
civil action in state court. The law does not require the employer to permit class action civil
lawsuits. Instead, D.R. Horton states that a forum for class or collective claims must be 5
available. The MAP foreclosed both judicial and arbitral class action options, and therefore
Monjazeb, in turn, attempted to pursue her class claims in each forum. Because the MAP is
facially invalid and unlawful, a Board order requiring the Respondent to withdraw its opposition
to Monjazeb’s state court claim comports with established precedent. Bill Johnson’s Restaurants,
supra, fn. 5 (1983); Loehmann’s Plaza, 305 NLRB 663, 671 (1991); Federal Security, Inc., 336 10
NLRB 703 (2001), remanded on other grounds, 202 WL31234984 (D.C. Cir. 2002). I find,
however that an order requiring the Respondent to withdraw its opposition to Monjazeb’s class
claim either in court or arbitration better aligns with the Board’s decision in D.R. Horton.
The Respondent argues that D.R. Horton is void because the Board lacked a quorum 15
when it issued the decision. This argument derives from the D.C. Circuit’s decision in Noel
Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), which the Board has rejected and so must I.
See, e.g., Bloomingdale’s Inc., 359 NLRB No. 113 (2013). Moreover, the Board denied the
Respondent’s motion to dismiss based on alleged lack of quorum, and therefore any argument
that this was erroneous is properly addressed to the Board. The Respondent further argues that 20
the complaint is barred because individuals involved in prosecuting it were not properly
appointed.
Next, the Respondent asserts that continued prosecution of this case violates its First
Amendment rights to defend itself in the lawsuit the Charging Party initiated under Bill 25
Johnson’s v. NLRB, 461 U.S. 731, 741 (1983), and BE&K Construction, 536 U.S. 516 (2002).
I find that instant case falls within the exception set forth in Bill Johnson’s at footnote 5, which
states in relevant part:
It should be kept in mind that what is involved here is an employer’s lawsuit that the 30
federal law would not bar except for its allegedly retaliatory motivation. We are not
dealing with a suit that is claimed to be beyond the jurisdiction of the state courts because
of federal-law preemption, or a suit that has an objective that is illegal under federal law.
Petitioner concedes that the Board may enjoin these latter types of suits. Brief of
Petitioner 12-13, 20; Reply Brief for Petitioner 8. Nor could it be successfully argued 35
otherwise, for we have upheld Board orders enjoining unions from prosecuting court suits
for enforcement of fines that could not lawfully be imposed under the Act, see Granite
State Joint Board, Textile Workers Union, 187 N.L.R.B. 636, 637 (1970), enforcement
denied, 446 F.2d 369 (CA1 1971), rev’d, 409 U.S. 213, 93 S.Ct. 385, 34 L.Ed.2d 422
(1972); Booster Lodge No. 405, Machinists & Aerospace Workers, 185 N.L.R.B. 380, 40
383 (1970), enforced in relevant part, 148 U.S.App.D.C. 119, 459 F.2d 1143 (1972),
aff’d, 412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764 (1973), and this Court has concluded
that, at the Board’s request, a District Court may enjoin enforcement of a state-court
injunction “where [the Board’s] federal power pre-empts the field.” NLRB v. Nash-Finch
Co., 404 U.S. 138, 144, 92 S.Ct. 373, 377, 30 L.Ed.2d 328 (1971).45
The Board has determined that these exceptions apply in the wake of Bill Johnson’s and BE&K
Construction. See, e.g., Allied Trades Council (Duane Reade Inc.), 342 NLRB 1010, 1013 fn. 4
JD(SF)–04–14
10
(2004); Teamsters, Local 776 (Rite Aid Corp.), 305 NLRB 832, 835 (1991). Moreover, as the
General Counsel notes, particular litigation tactics may fall within the exception even if the
entire lawsuit may not be enjoined. Wright Electric, Inc., 327 NLRB 1194, 1195 (1999), enfd.
200 F.3d 1162 (8th Cir. 2000); Dilling Mechanical Contractors, Inc, 357 NLRB No. 56 (2011).
As such, since the Board has concluded in D.R. Horton that agreements such as those comprising 5
the MAP explicitly restrict Section 7 activity, the Respondent’s attempt to enforce the MAP in
state court by moving to compel arbitration fall within the unlawful objective exception in Bill
Johnson’s.
The Respondent asserts that the proceedings before the Board must be stayed pending 10
outcome of the state court civil action, relying on the Board’s decision following remand in Bill
Johnson’s. Bill Johnson’s Restaurants, 290 NLRB 29 (1988). The facts of that case, however,
did not implicate the exception set forth above, as stated by Associate Chief Administrative Law
Judge Gerald Etchingham in his order denying the Respondent’s motion to stay. The
Respondent further contends that the Board’s complaint should be stayed because it seeks 15
remedies inconsistent or incompatible with those of the San Francisco Superior Court in the
Charging Party’s wage-and-hour lawsuit. These arguments were not distinguished from the
arguments in support of the Bill Johnson’s defense asserted above, and are therefore unavailing.11
(R. Br. pp. 17–21.)
20
The Respondent raises a timeliness defense under Section 10(b) of the Act, which states
in pertinent part, that “no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board . . .” The Respondent filed
a motion to dismiss on February 26, 2013, asserting the charge was untimely. As of the date this
decision was written, the Board had not ruled on this motion, and I denied a motion to stay 25
proceedings pending the Board’s ruling. I did so based on my determination that the issue has
repeatedly and consistently been decided squarely against the Respondent’s position.
The Respondent contends that this case should be dismissed, because Monjazeb’s charge
was filed more than 6 months after November 20, 2009, the date she signed and was subject to 30
the agreement, and more than 6 months after her employment with the Respondent ended.
However, this argument is without merit under controlling case law holding that a continuing
violation exists as long as the rule is still being enforced at the time of the charge. See American
Cast Iron Pipe Co., 234 NLRB 1126 fn. 1 (1978); Alamo Cement Co., 277 NLRB 1031, 1036-
−1037 (1985) (no time bar where enforcement allegation could not have been litigated sooner); 35
The Guard Publishing Co., 351 NLRB 1110, 1110, fn. 2 (2007)(“maintenance during the 10(b)
period of a rule that transgresses employee rights is itself a violation of Sec. 8(a)(1).”) In this
case, the agreement mandated that Monjazeb arbitrate employment-related claims pursuant to the
MAP even after her termination. She acted in a timely fashion while the MAP was in effect and
the Respondent was enforcing it against her.1240

11 Associate Chief Administrative Law Judge Gerald Etchingham denied the Respondent’s motion to
stay proceedings, and I agree with his reasoning, as incorporated by reference.
12 Any contention that Monjazeb was not an employee at the time she filed her charge is unavailing,
as an “employee” includes “former employees of a particular employer.” Briggs Mfg. Co., 75 NLRB 569,
571 (1947); See also Frye Electric Inc., 352 NLRB 245, 357 (2008.)
JD(SF)–04–14
11
The Respondent further contends that, even if D.R. Horton is accepted as good law, by
accepting employment with Neiman Marcus after being informed about the MAP, Monjazeb
voluntarily agreed to arbitration. Specifically, the Respondent avers that footnote 28 of D.R.
Horton leads to the conclusion that applicants, as opposed to current employees, who accept
employment after knowingly signing an arbitration agreement have voluntarily acceded to abide 5
by it. Footnote 28 states that the Board does not reach the following question:
[W]hether, if arbitration is a mutually beneficial means of dispute resolution, an employer
can enter into an agreement that is not a condition of employment with an individual
employee to resolve either a particular dispute, or all potential employment disputes 10
through a non-class arbitration rather than litigation in court.
Here, however, the MAP was a condition of Monjazeb’s employment, i.e., she could either agree
to the MAP’s terms or not work for the Respondent. Whether it was a condition of her
employment from the outset or a condition she was required to accept as a current employee in 15
order to retain employment makes no difference analytically with regard to whether the MAP
interfered with her Section 7 right to collective legal action.13 The question posed by the Board
in footnote 28 was whether an agreement to engage in non-class arbitration on a purely voluntary
basis without regard to employment or continued employment would violate the Act. The
mandatory nature of the agreement here takes it outside the scope of the Board’s reference in20
footnote 28.
B. Effect on Employees’ Ability to file Board Charges
Finally, I will address the Respondent’s contention that the complaint does not allege that 25
the MAP violates the Act because it would reasonably be interpreted as preventing employees
from filing charges with the Board. While the complaint could have been more specific, it
provided the Respondent with sufficient notice of the documents at issue (the application,
Arbitration Agreement, the associate handbook and the attendant acknowledgement forms), the
time frame when the alleged violation occurred, and the relief requested . Under the Board’s 30
requirements, this is sufficient. See American Newspaper Publishers Assn. v. NLRB, 193 F.2d
782, 800 (7th Cir. 1951), affd. 345 U.S. 100 (1953). The complaint alleges that the MAP
violates Section 8(a)(1) by requiring employees to agree to individual arbitration of employment-
related disputes and requests the following relief, at paragraph 8:
35
As part of the remedy for Respondent’s unfair labor practices, the Acting General
Counsel seeks an order requiring that Respondent cease and desist from maintaining

13 To hold otherwise renders meaningless longstanding protections for applicants. See Phelps Dodge
Corp. v. NLRB, 313 U.S. 177 (1941). Moreover, while it was the Charging Party’s choice to work for
Neiman Marcus even though it meant agreeing to the MAP, taken to its logical extreme, if waivers such
as the MAP are judicially sanctioned and become the norm for employers, employees will increasingly be
faced with the option of foregoing statutorily protected collective litigation about wages, hours, and
working conditions for mutual aid and protection or not working.
In any event, Monjazeb was required to agree to the terms set forth in the Arbitration Agreement and
the associate handbook on November 23, 2009, 3 days after her employment with the Respondent started.
JD(SF)–04–14
12
and/or attempting to enforce a mandatory arbitration agreement that employees
reasonably could believe bars or restricts their right to file charges with the National
Labor Relations Board.
I find this put the Respondent on sufficient notice.5
The Respondent contends that the NMG Resolutions program was modified to ensure
employees are notified they may file charges with the Board. The Board denied the
Respondent’s motion to dismiss based on this argument and any argument that this was
erroneous is properly made to the Board. 10
Turning to the merits, in evaluating the impact of a rule on employees, the appropriate
inquiry is whether the rule would reasonably tend to chill employees in the exercise of their
Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999). A rule does not violate the Act if a reasonable employee merely could conceivably read it 15
as barring Section 7 activity. Rather, the inquiry is whether a reasonable employee would read
the rule as prohibiting Section 7 activity. Lutheran Heritage, supra. The Board must give the
rule under consideration a reasonable reading and ambiguities are construed against its
promulgator. Lafayette Lutheran Heritage, supra at 647; Lafayette Park Hotel, 326 NLRB at
828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467-470 (D.C. Cir. 2007). Moreover, the Board 20
must “refrain from reading particular phrases in isolation, and it must not presume improper
interference with employee rights.” Lutheran Heritage supra at 646.
The Respondent states that the Arbitration Agreement expressly states: “The Agreement
does not prohibit a Covered Employee from filing a charge or complaint with a governmental 25
agency such as the Equal Employment Opportunity Commission, the National Labor Relations
Board, or like state agencies.” Section 3 of the agreement includes as “covered disputes”
numerous claims involving wages, hours and working conditions, such as
Discrimination or harassment on the basis of race, color, gender, sexual orientation, 30
religion, national origin, age, disability, or any other unlawful basis (emphasis added.)
. . .
Violations of any . . . governmental statute . . . relating to workplace health, and safety, 35
voting, meal or rest breaks, . . . minimum wage and overtime pay, pay days, holiday pay,
vacation pay, severance/separation pay, or payment at termination.
. . .
Retaliation for filing a protected claim for benefits (such as workers’ compensation) or 40
exercising rights under any statute. (emphasis added).
. . .
[C]laims of wrongful termination or constructive discharge. 45
. . .
JD(SF)–04–14
13
All other employment-related legal disputes, controversies, or claims arising out of,
concerning, or relating in any way to, employment or cessation of employment with the
Company
Notably, section 4, which directly follows and is entitled, “Claims not Covered by This 5
Agreement,” contains no exception for filing charges with the Board. The last sentence of
section 4 states, “If there is any inconsistency between this Section and the definition of covered
Claims in Section 3, then this Section controls. It is not until section 5, entitled “Agreement
Limitations” where the language stating that the Agreement does not prohibit a covered
employee from filing a charge with the Board appears. There is, unlike in section 4, no 10
statement that section 5 controls in the event of an inconsistency between section 5 and the
covered disputes set forth in section 3.
Moreover, as the General Counsel points out, the job application, the Arbitration
Agreement acknowledgement form, the NMG Resolutions Plan document, the NMG Resolutions 15
Plan document acknowledgement form, and the associate handbook all expressly state that
disputes with the Respondent must be resolved through arbitration, with no reference to filing
charges with the Board.
Considering that ambiguities must be construed against the employer, I find the MAP 20
violates Section 8(a)(1) because would cause employees to reasonably believe that they would
need to arbitrate employment-related claims covered by section rather than file charge with the
Board. See Aroostook County Regional Opthamology Center, 317 NLRB 218 (1995).
25
V. CONCLUSIONS OF LAW
(1) The Respondent, The Neiman Marcus Group, Inc., is an employer within the meaning
of Section 2(6) and (7) of the Act.
30
(2) The Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing a
mandatory and binding arbitration program (MAP), consisting of: (a) a mandatory arbitration
agreement and mandatory arbitration agreement acknowledgment form requiring employees to
individually arbitrate employment-related disputes; (b) a resolutions plan and a resolutions plan
acknowledgment form requiring all employment-related disputes to be submitted to individual 35
binding arbitration; and (c) an associate handbook and associate handbook acknowledgment
form requiring all employment-related disputes to be submitted to individual binding arbitration.
(3) The Respondent violated Section 8(a)(1) of the Act when it enforced the MAP by : (a)
requiring the Charging Party to agree to the mandatory arbitration agreement, resolutions plan 40
and associate handbook; and (b) asserting the MAP in litigation the Charging Party brought
against the Respondent.
(4) The Respondent violated Section 8(a)(1) of the Act by maintaining a mandatory and
binding arbitration policy that employees reasonably would believe bars or restricts their right to 45
file charges with the National Labor Relations Board.
JD(SF)–04–14
14
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.5
As I have concluded that the MAP is unlawful, the recommended order requires that the
Respondent revise or rescind it, and advise its employees in writing that said rule has been so
revised or rescinded. Because the Respondent utilized the MAP on a corporatewide basis, the
Respondent shall post a notice at all locations where the MAP, or any portion of it requiring all 10
employment-related disputes to be submitted to individual binding arbitration, was in effect. See,
e.g., U-Haul Co. of California, supra, fn. 2 (2006); D.R. Horton, supra, slip op. at 17.
I recommend the Company be required to reimburse Charging Party Monjazeb for any
litigation and related expenses, with interest, to date and in the future, directly related to the 15
Company’s filing its motion to compel arbitration in Case No. CGC-10-502877, in the Superior
Court of California, San Francisco County and in the California Court of Appeal for the First
Appellate District. Determining the applicable rate of interest on the reimbursement will be as
outlined in New Horizons for the Retarded, 283 NLRB 1173 (1987), (adopting the Internal
Revenue Service rate for underpayment of Federal taxes). Interest on all amounts due to 20
Monjazeb shall be computed on a daily bases as prescribed in Kentucky River Medical Center,
356 NLRB 8 (2010), enf. denied on other grounds sub. nom., Jackson Hospital Corp. v. NLRB,
647 F. 3d 1137 (D.C. Cir. 2011).
I recommend the Respondent be required to ensure the Charging Party has a forum to 25
litigate her class complaint by either: (1) withdrawing its appeal of the California Superior
Court’s order vacating its prior order compelling Charging Party to arbitrate and issuing a new order
denying Respondent’s motion to compel arbitration; or (2) permitting the Charging Party to renew
her demand arbitrate her class claims and notifying the Manager of ADR Services at the AAA that
it will proceed with classwide arbitration. 30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14
35
ORDER
The Respondent, The Neiman Marcus Group, Inc., Beverly Hills, California, its officers,
agents, successors, and assigns, shall
40
1. Cease and desist from

14 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(SF)–04–14
15
(a) Maintaining and enforcing a mandatory arbitration program that requires its
employees to waive the right to maintain class or collective actions in all forums, whether
arbitral or judicial.
(b) Enforcing its mandatory arbitration program by requiring employees, including 5
the Charging Party to sign acknowledgement forms agreeing to the mandatory arbitration
agreement, resolutions plan and associate handbook.
(c) Enforcing its mandatory arbitration program by asserting it in litigation the
Charging Party brought against the Respondent.10
(d) Maintaining a mandatory and binding arbitration policy that restricts employees’
protected activity or that employees reasonably would believe bars or restricts their right to file
charges with the National Labor Relations Board.
15
(e) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
20
(a) Rescind or revise all elements of the MAP to make it clear to employees that it
does not constitute a waiver in all forums of their right to maintain employment-related class or
collective actions and does not restrict employees’ right to file charges with the National Labor
Relations Board.
25
(b) Notify the employees of the rescinded or revised MAP provisions to include
providing them a copy of the revised MAP documents or specific notification that the agreement
has been rescinded.
(c) Reimburse the Charging Party for any litigation expenses: (i) directly related to 30
opposing the Respondent’s motion to compel arbitration; and/or (ii) resulting from any other
legal action taken in response to Respondent’s efforts to enforce the arbitration agreement.15
(d) Ensure the Charging Party has a forum to litigate her class complaint by either: (1)
withdrawing its appeal of the California Superior Court’s order vacating its prior order compelling 35
Charging Party to arbitrate and issuing a new order denying Respondent’s motion to compel
arbitration; or (2) permitting the Charging Party to renew her demand arbitrate her class claims and
notifying the Manager of ADR Services at the AAA that it will proceed with classwide
arbitration.
40

15 The General Counsel requests that I order reimbursement for all employees who have incurred
legal expenses during the 10(b) period. As no evidence of any other legal proceeding other than the
Charging Party’s has been presented, I have fashioned the remedy accordingly.
JD(SF)–04–14
16
(e) Within 14 days after service by the Region, post at all facilities where the MAP, or
any portion of it requiring all employment-related disputes to be submitted to individual binding
arbitration copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 5
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 intranet or an internet site, 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, 10
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
August 3, 2011.15
(f) 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.
20
Dated, Washington, D.C. February 6, 2014
____________________25
Eleanor Laws
Administrative Law Judge

16 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.”
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 or enforce a mandatory arbitration program consisting of: (a) a
mandatory arbitration agreement and mandatory arbitration acknowledgment form requiring
employees to individually arbitrate employment-related disputes; (b) a resolutions plan and a
resolutions plan acknowledgment form requiring all employment-related disputes to be
submitted to individual binding arbitration; and (c) an associate handbook and associate
handbook acknowledgment form that requires all employment-related disputes to be submitted to
individual binding arbitration.
WE WILL NOT enforce a mandatory arbitration program by requiring Charging Party Sheila
Monjazeb to agree to the mandatory arbitration agreement, resolutions plan and associate
handbook.
WE WILL NOT enforce a mandatory arbitration program by asserting it in litigation the Charging
Party Sheila Monjazeb brought against us.
WE WILL NOT maintain a mandatory arbitration policy that employees reasonably would
believe bars or restricts their right to file charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.
WE WILL rescind or revise the Mandatory Arbitration Program to make it clear to employees
that the agreement does not constitute a waiver of their right in all forums to maintain class or
collective actions and does not restrict employees’ right to file charges with the National Labor
Relations Board.
WE WILL notify employees of the rescinded or revised mandatory arbitration program,
including providing them with a copy of any revised agreements, acknowledgement forms or
other related documents, or specific notification that the agreement has been rescinded.
WE WILL reimburse Charging Party Sheila Monjazeb for any litigation expenses: (i) directly
related to opposing the Respondent’s Motion to Compel Arbitration; and/or (ii) resulting from
any other legal action taken in response to Respondent’s efforts to enforce the arbitration
agreement.
WE WILL ensure the Charging Party Sheila Monjazeb has a forum to litigate her class complaint
by either: (1) withdrawing our appeal of the California Superior Court’s order vacating its prior
order compelling Charging Party to arbitrate and issuing a new order denying Respondent’s motion
to compel arbitration; or (2) permitting her to renew her demand arbitrate her class claims and
notifying the manager of ADR services at the AAA that it will proceed with class arbitration.
THE NEIMAN MARCUS GROUP, INC.
(Employer)
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.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, 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, (310) 235-7424.