THE SCHERZINGER CORPORATION

National Labor Relations Board - Administrative Judge Opinions

Jun 17, 2016

09-CA-165460 (N.L.R.B. Jun. 17, 2016)

JD–52–16
Cincinnati, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
THE SCHERZINGER CORPORATION
and Case 09–CA–165460
ROBERT COLLEY, An Individual
Daniel Goode, Esq.,
for the General Counsel.
Katharine C. Weber, Esq., and
Ryan M. Martin, Esq.,
(Jackson Lewis, P.C.)
Cincinnati, Ohio,
for the Respondent.
Ryan Keith Hymore, Esq.,
(Mangano Law Offices, Co. L.P.A.)
Cincinnati, Ohio,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. Robert Colley, an individual charging party,
(the Charging Party) filed the charge in this case on December 3, 2015. The Director of Region
9 of the National Labor Relations Board (the Board) issued the complaint on February 29,
2016, and an amended complaint on April 21, 2016. The complaint, as amended, alleges that
The Scherzinger Corporation (Respondent) interfered with employees’ Section 7 rights to
engage in collective action and violated Section 8(a)(1) of the National Labor Relations Act (the
NLRA) when it required employees to sign, as a condition of continued employment, an
agreement to forgo any rights those employees would otherwise have to resolve employment
disputes by collective or class action and to address any complaints regarding their terms and
conditions of employment only to management. The complaint further alleges that the
Respondent violated Section 8(a)(1) of the NLRA by seeking to enforce the agreement in
response to a class action that the Charging Party filed in federal district court over alleged
violations of the Fair Labor Standards Act (FLSA) and state wage and hour laws.
The Respondent filed a timely answer to the Board complaint in which it denied
committing any violation of the NLRA. Before the scheduled hearing in this case commenced, I
JD–52–16
2
granted the parties’ joint motion to have the allegations in the complaint decided without a
hearing based on the stipulated record submitted by the parties. Based on the stipulated record
submitted by the parties, and after considering their briefs, I make the following findings of fact
and conclusions of law.
5
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a pest control business at its facility in 10
Cincinnati, Ohio, where it annually purchases and receives goods valued in excess of $50,000
directly from points outside the State of Ohio. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the NLRA.
II. ALLEGED UNFAIR LABOR PRACTICES15
A. RESPONDENT REQUIRES EMPLOYEES
TO AGREE TO COMPLAINT PROCEDURES
The Respondent is a provider of pest control services. Since at least August 2015, it 20
has required its employees to sign and be bound by a document entitled “Scherzinger
Complaint Procedures” (Complaint Procedures) as a condition of continued employment. The
Respondent organizes those procedures into 6 steps, and prefaces them by stating that
employees who “have a problem or complaint concerning [their] employment (including wages,
hours, working conditions, etc.) . . . are expected to take the appropriate steps” under the 25
Complaint Procedures. Those procedures begin with an internal review (steps 1 through 4) and,
if the dispute is not resolved, the employee may invoke mediation before a mediator of the
Respondent’s choosing (step 5). If mediation does not resolve the dispute, either party may
request binding individual arbitration (step 6). The Complaint Procedures provide that this
arbitration process is the sole and exclusive means for “adjudicating” any unresolved30
employment-related disputes (except for representative claims that cannot be waived or claims
that cannot be arbitrated as a matter of law).
The Complaint Procedures provide, in part:
35
Step 6. Arbitration: If the Dispute remains unresolved thirty (30) days after the
[mediation] Meeting, either party may give written Request to the other party to
engage in binding arbitration (“Arbitration”).

c.1 Except for representative claims which cannot be waived under 40
applicable law, the Parties agree that any and all unresolved issues shall
be solely, finally, exclusively and conclusively adjudicated through
Arbitration before American Arbitration Association (“AAA”) in Cincinnati,
Ohio, pursuant to the rules of the AAA. The Company agrees to pay the
cost of the Arbitrator and the Parties agree that they shall be responsible 45
for any costs they individually incur in connection with the Arbitration,
including attorney’s fees. Employee waives any right Employee may
have to seek relief by or through a collective or class action. Arbitration
shall proceed solely on an individual basis or on bases involving claims

1
Subsection (c.) is the first subsection after the step 6 (Arbitration) heading. Subsections (a.) and
(b.) are found after the step 5 (Mediation) heading.
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3
brought in a purported representative capacity on behalf of others. The
Arbitrator’s authority to resolve and make written awards is limited to
claims between the employee and the Company alone. Claims may not
be joined or consolidated unless agreed to in writing by all parties. No
arbitration award or decision will have any preclusive effect as to issues 5
or claims in any dispute with anyone who is not a named party to the
arbitration.
d. The Parties understand and fully agree that by entering into this
Agreement to arbitrate , they are giving up their constitutional right to 10
have a trial by jury, and are giving up their normal rights of appeal
following the rendering of a decision except as the law provides for
judicial review of arbitration decisions. The Parties anticipate that by
entering into this Agreement, they will gain the benefits of a speedy and
less expensive dispute resolution procedure. 15
e. Claims not covered by this Agreement are claims for workers’
compensation, unemployment compensation benefits or any other claims
that, as a matter of law, the Parties cannot agree to arbitrate. Nothing in
this Agreement shall be interpreted to mean that Employee is precluded 20
from filing complaints with the federal Equal Employment Opportunity
Commission or the National Labor Relations Board.
f. Notwithstanding the foregoing, a Party may seek injunctive relief from
the Hamilton County Court of Common Pleas, in the event the Party 25
believes it will suffer irreparable harm or to maintain the status quo,
including any breach of this Agreement. The Company and employee
also agree that they are subject to the exclusive venue and jurisdiction of
the Hamilton County Court of Common Pleas in the event either seeks
injunctive relief or in the event the Company or the employee seek[s] to 30
confirm an Arbitration award.
The employees are required to sign the Complaint Procedures and to “agree to rely on [the]
complaint procedures to resolve issues related to [their] employment with [the Respondent] both
during and after [their] employment.”35
B. RESPONDENT SEEKS TO ENFORCE
PROHIBITION ON COMPLAINT PROCEDURES
40
On November 8, 2015, Colley (the charging party), on behalf of himself and similarly
situated employees of the Respondent, filed a class and collective action complaint in the
United States District Court for the Southern District of Ohio. The district court complaint
alleges that the Respondent violated the Fair Labor Standards Act, 29 U.S.C. Section 201 et
seq., and wage and hour laws of the State of Ohio and the Commonwealth of Kentucky. On 45
December 2, 2015, the Respondent filed an answer to the district court complaint in which it
asserted that the class action complaint was barred to the extent that Colley or any member of
the proposed class had agreed to be bound by the Complaint Procedures that, as set forth
above, require that employees’ claims regarding wages, hours and working conditions be
arbitrated and which preclude employees from seeking resolution of such claims in federal 50
district court, or through any class litigation or class arbitration. On December 4, 2015, Steven
Davenport, an employee of the Respondent, filed an opt-in consent form to join the plaintiff
JD–52–16
4
class in the district court action filed by Colley. The Respondent filed a motion to dismiss
Davenport from the class litigation on the basis that he had signed the Respondent’s Complaint
Procedures, and thereby agreed to arbitrate the claims asserted in the class action.2
5
C. COMPLAINT ALLEGATIONS
The complaint alleges that the Respondent interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights, and violated Section 8(a)(1): since August
2015, by requiring employees, as condition of continued employment, to agree to forgo any 10
rights to the resolution of employment-related disputes through collective or class action and by
requiring them to address any complaints regarding their terms and conditions of employment
only to management; and by attempting to enforce that agreement by asserting it as a defense
to, and as the basis for a motion to dismiss Davenport from, the class and collective action that
Colley filed in district court.15
III. DISCUSSION
A. REQUIREMENT THAT EMPLOYEES
WAIVE RIGHT TO SEEK RELIEF REGARDING 20
TERMS AND CONDITIONS OF EMPLOYMENT
THROUGH COLLECTIVE OR CLASS ACTION.
Section 7 of the NLRA protects the right of employees to engage in concerted legal
action for their mutual aid and protection, including, as the Supreme Court has recognized, by25
concertedly seeking to vindicate their rights through “resort to administrative and judicial forums”
or other “channels outside the immediate employee-employer relationship.” Eastex, Inc. v.
NLRB, 437 U.S. 556, 565-566 (1978).3 Accordingly, the Board has held, in D.R. Horton and in
multiple subsequent cases, that an employer interferes with employees’ substantive Section 7
rights to engage in concerted activity, and violates Section 8(a)(1), “when it requires employees 30
covered by the Act, as a condition of their employment, to sign an agreement that precludes
them from filing joint, class, or collective claims addressing their wages, hours or other working
conditions against the employer in any forum, arbitral or judicial.” D.R. Horton, Inc., 357 NLRB
2277, 2277 (2012),4 enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), petition for
rehearing en banc denied (5th Cir. No. 12-60031, April 16, 2014), see also Tarlton and Son, Inc., 35
363 NLRB No. 175 (2016); Amerisave Mortgage Corporation, 363 NLRB No. 174 (2016),
Bloomingdale’s Inc., 363 NLRB No. 172 (2016), and Murphy Oil USA, Inc., 361 NLRB No. 72

2
Subsequent to the submission of the stipulated record, the district court, in an order dated May 25,
2016, granted the Respondent’s motion to dismiss Davenport as a party plaintiff from the case. Colley v.
Scherzinger Corp., 2016 U.S. Dist. LEXIS 68574 (S.D. Ohio May 25, 2016).
3
See also National Licorice Co. v. NLRB, 309 U.S. 350, 360-361 (1940) (striking down individual
employment contracts that require employees to present their discharge grievances individually because
such contracts are contrary to the NLRA); Brady v. Nat’l Football League, 644 F.3d 661, 673 (8
th
Cir.
2011) (filing a collective or class action suit constitutes “concerted activity” under Section 7) Altex Ready
Mixed Concrete Corp. v. NLRB, 542 F.2d 295, 297 (5
th
Cir. 1976) (“filing by employees of a labor related
civil action is protected activity under section 7”); Leviton Mfg. Co. v. NLRB, 486 F.2d 686, 689 (1
st
Cir.
1973) (same).
4
Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7.” Thus, “requiring that [covered employees] waive their
right to engage in protected, concerted activity” in the form of class or collective legal action regarding
their working conditions, runs afoul of the “the core of the prohibitions contained in Section 8.” D.R.
Horton, supra.
JD–52–16
5
(2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015); cf. Logisticare Solutions, Inc.,
363 NLRB No. 85 (2015), slip op. at 1 (an employer violates the NLRA by requiring employees
to waive their right to participate as a member of a class or collective action lawsuit, even if it
does not require them to submit their complaints to arbitration). The Board has also held that an
employer commits a further violation of Section 8(a)(1) if it seeks to enforce an unlawful rule of 5
this type by moving to strike the class and collective allegations in employees’ work-related
lawsuit, Convergys Corp., 363 NLRB No. 51 (2015), or by moving to dismiss employees’
collective court action and compel them to arbitrate their mutual, work-related, claims
individually, Murphy Oil, 361 NLRB slip op. at 2 and 19.
10
There is no dispute that the Respondent required employees, as a condition of
continued employment, to sign the Complaint Procedures, which prohibit employees from filing
joint, class or collective claims relating to their working conditions in any forum arbitral or
judicial, and require employees to “adjudicate” such claims exclusively through individual
arbitration. In addition, the Respondent has sought to enforce that restriction by asserting the 15
Complaint Procedures as a defense to Colley’s district court class action concerning wages and
hours and by moving to bar participation by Davenport, a plaintiff/employee who opted into the
class. Under the Board’s decisions in D.R. Horton, Murphy Oil, Convergys, et al. this conduct
by the Respondent violated Section 8(a)(1) of the NLRA.
20
The Respondent does not seek to distinguish its conduct from that which the Board
found to be unlawful in D.R. Horton and subsequent cases, but rather defends by arguing that
the Board’s reasoning in those cases was defective, that the Federal Arbitration Act (FAA), 9
U.S.C. Section 1, et seq., trumps the NLRA, and that the Board’s precedent should be
overturned. The Respondent’s arguments in this regard are for the Board to consider, not me, 25
since I am bound to follow Board precedent that has not been reversed by the Supreme Court.
See Pathmark Stores, 342 NLRB 378 fn. 1 (2004); Hebert Industrial Insulation Corp., 312 NLRB
602, 608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736 F.2d
507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984). I note, at any rate, that in D.R. Horton
and Murphy Oil the Board provided detailed and comprehensive support for its decisions and 30
that the Respondent’s argument for overturning those decisions is deficient in a number of
obvious ways. For instance, the Respondent’s brief does not mention the precedent most
prominently cited in the Board’s D.R. Horton and Murphy Oil analysis –- i.e., the Supreme
Court’s decision in Eastex, Inc., supra, which stands for the proposition that when employees
seek to vindicate their employment-related claims through resort to administrative and judicial 35
forums they are engaged in concerted activity that is protected by Section 7 of the NLRA. In
addition, although the Respondent relies on what it describes as the “mountain of precedent”
rejecting the Board’s conclusion, it make no mention of the Seventh Circuit’s recent decision in
Lewis v. Epic Systems, Corp., which agrees with the Board’s conclusion, as had the trial court
before it. 2016 Westlaw 3029464 (7th Cir. 2016). In Epic Systems the Seventh Circuit analyzed 40
the issue in depth, gave consideration to both the NLRA and the FAA, and arrived at the
conclusion that the Board was correct in holding that an employer violates the NLRA by
requiring employees, as a condition of continued employment, to waive the right to participate
“in any class collective, or representative proceeding” regarding wage and hour claims. The
Seventh Circuit panel unanimously found that such an agreement was unenforceable and 45
denied the employer’s motion to compel arbitration. In its analysis, the Circuit Court endorsed
the Board’s view that the Section 7 right to act collectively is a substantive (rather than a
procedural) right, Epic Systems, supra at *7 and *9, that Congress granted that substantive right
for the express purpose of addressing the “inequality of bargaining power” between employees
and employers, 29 U.S.C. Section 151, and that the right is at the very heart of the NLRA’s 50
function. Epic Systems, supra at *2 and *7, quoting NLRB v. City Disposal Systems, Inc., 465
U.S. 822, 835 (1984) and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937). The
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6
Seventh Circuit also agreed with the Board’s view that its holding did not contravene the FAA
inasmuch as the FAA specifically provides that contracts to arbitrate are invalid and
nonenforceable “upon such grounds as exist at law or in equity for the revocation of any
contract” and that a provision waiving collective legal action is unlawful under the NLRA and
therefore, “meets the criteria of the FAA’s saving clause for nonenforcement.” Epic Systems, 5
supra, at *5, quoting 9 U.S.C. Section 2. Thus while it is true that the Courts of Appeals for the
Fifth and Eighth Circuit analyzed the issue and reached a conclusion contrary to the Board’s,
see Cellular Sales of Missouri v. NLRB, 2016 Westlaw 3093363 (8th Cir. June 2, 2016), D.R.
Horton, Inc. v. NLRB, 737 F.3d 344, 357 (5th Cir. 2013), and that the Second Circuit disagreed
with the Board without substantively engaging the arguments, see Sutherland v. Ernst & Young 10
LLP, 726 F.3d 290 (2d Cir. 2013), there is a circuit split5 that will likely have to be resolved by
the Supreme Court, not the one-sided circumstance portrayed by the Respondent.
For reasons discussed above, I find that the Respondent interfered with employees’
Section 7 rights in violation of Section 8(a)(1) of the NLRA since August 2015 by requiring 15
employees, as a condition of continued employment, to agree to forgo any rights to the
resolution of employment-related disputes through collective or class action and by attempting
to enforce that agreement by asserting it as a defense to, and as the basis for a motion to
dismiss Davenport from, the class action Colley filed in district court.
20
B. ALLEGED REQUIREMENT THAT EMPLOYEES
ADDRESS COMPLAINTS CONCERNING TERMS
AND CONDITIONS ONLY TO MANAGEMENT.
Section 7 protects the right of employees to “seek to improve working conditions through 25
resort to . . . channels outside the immediate employee-employer relationship.” Eastex, Inc. v.
NLRB, 437 U.S. at 565-566. The General Counsel alleges that, in addition to violating Section
8(a)(1) of the NLRA by prohibiting employees from pursuing class or collective legal action as
found above, the Respondent’s Complaint Procedures also violate Section 8(a)(1) by requiring
employees to address their work-related complaints exclusively to management, thereby 30
infringing on their right to use channels outside the immediate employee-employer relationship.
The question here is whether the Complaint Procedures would, in fact, reasonably tend to chill
employees from exercising their Section 7 right to resort to such outside channels. See T-
Mobile USA, Inc., 363 NLRB No. 171, slip op at 1 (2016), citing Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Under the Board’s standards, if a work rule 35
does not explicitly restrict Section 7 rights, the General Counsel may still establish a violation by
showing: (1) that employees would reasonably construe the language to prohibit Section 7
activity; (2) that the rule was promulgated in response to union activity: or (3) the rule has been
applied to restrict the exercise of Section 7 rights. Id., citing Lutheran Heritage, 343 NLRB 646
(2004). “In construing rules, Lutheran Heritage teaches that they are to be given a reasonable 40
reading, and are not to be considered in isolation.” T-Mobile, slip op. at 2. “[A]ny ambiguity in
the rule must be construed against the drafter – here, the Respondent.” Id., citing Lafayette
Park, 326 NLRB at 825.
The General Counsel does not claim that the Complaint Procedures explicitly, or in their 45
application, prohibit Section 7 activity by requiring employees to address any complaints
exclusively to the Respondent. Nor does the General Counsel claim that the Complaint
Procedures were promulgated in response to union activity. The General Counsel’s argument
is, instead, based on the contention that “[w]hile the [Respondent’s Complaint Procedure] does

5
In Epic Systems, the Seventh Circuit addressed contrary circuit precedent, as well as the relevant
supportive Supreme Court precedent in reaching its conclusion.
JD–52–16
7
not on its face prohibit employees from approaching someone other than Respondent
concerning work-related complaints, ‘reasonable employees would construe the language to
prohibit Section 7 activity.’” Brief of General Counsel at 9. The General Counsel suggests that,
reading the Complaint Procedures as a whole, employees would reasonably understand that
the Respondent was prohibiting them from bringing their allegations to the Board or discussing 5
their work-related complaints with other employees. The General Counsel’s contentions in this
regard are unpersuasive for the reasons discussed below.
The Complaint Procedures cannot reasonably be understood to prohibit employees from
bringing their complaints to the Board given that the procedures expressly state that “Nothing in 10
this Agreement shall be interpreted to mean that Employee is precluded from filing complaints
with . . . the National Labor Relations Board.” The General Counsel encourages me to presume
that employees would reasonably overlook this clause because it is “buried in the bottom of
page two of the [Complaint Procedures]” and, further, because employees might understand the
clause to apply only to the arbitration procedure, not to the internal process and mediation. I 15
disagree. First, the language stating that Board filings are not prohibited cannot reasonably be
characterized as “buried,” if for no other reason than that the entire Complaint Procedures
document is barely over two pages long. The language permitting Board filings is included
where an employee would reasonably expect to find it – i.e., in one of two concluding
subsections dedicated to identifying employee rights and recourses that are not barred by the 20
Complaint Procedures. Given the brevity of the document, the clarity of the language with
which it permits Board filings, and the logical placement of that language within the document, I
conclude that employees would not, and could not reasonably, construe that policy as a whole
to prohibit employees from bringing complaints to the Board. Second, the clause regarding
filings with the Board clearly states that such filings are not prohibited by anything in “the 25
agreement.” The agreement is a single document encompassing internal review, mediation and
arbitration, and the General Counsel does not point to any language showing that, contrary to
the plain language, the clause exempting Board complaints from “the agreement” only exempts
such complaints from one part of the agreement.
30
The General Counsel also suggests that the policy is unlawful because it “does not
explicitly make clear that it is not intended to prevent employees from speaking to each other”
about work-related issues. Brief of the General Counsel at 10. The notion that the Respondent
was required to include an explicit disclaimer might be persuasive if there was something in the
Complaint Procedure suggesting that such communications were prohibited in the first place. 35
However, the General Counsel points to no language that prohibits, limits, or even mentions,
employee communications among themselves. The existence of a procedure governing how
employees are to present their complaints to the Respondent does not, without more, suggest
that employees cannot also discuss their complaints among themselves. In these
circumstances, the General Counsel attempts to place an unfair burden on the Respondent by 40
arguing that it should reasonably be understood to be prohibiting protected activity because it
did not state that such activity was not prohibited. I conclude that employees would not
reasonably understand the Complaint Procedures to prohibit them from discussing work-related
issues with co-workers or to otherwise require employees to bring their complaints exclusively to
the attention of the company.45
I am not persuaded to reach a different conclusion by the General Counsel’s citation to
Kinder-Care Learning Center, 299 NLRB 1171 (1990). In that case, the Board found that a
daycare center violated the NLRA by maintaining a rule that mandated, on threat of discipline
(up to and including termination), that employees resolve their work-related complaints through 50
the company’s process and not discuss those issues with customers, including with co-workers
who were also customers. The rule in the Respondent’s Complaint Procedures is not
JD–52–16
8
comparably restrictive because, inter alia: (1) the Respondent’s rule, unlike the rule in Kinder-
Care, does not state that employees are prohibited from discussing work-related complaints
with customers or employees; (2) the Respondent only states an expectation that employees
will bring their complaints to the company, not, as in Kinder-Care, a requirement that employees
bring their complaints to the company as the means of resolving those complaints; and (3) the 5
Respondent, unlike the employer in Kinder-Care does not state, or suggest, that employees will
be disciplined if they discuss work-related complaints with other employees or otherwise pursue
them through channels outside the employer-employee relationship. To the contrary, the
Respondent, unlike the employer in Kinder-Care, explicitly states that employees are not
prohibited from bringing their complaints to the Board and the Equal Employment Opportunity 10
Commission.
For the reasons discussed above, the allegation that the Respondent violated Section
8(a)(1) by requiring employees to address any complaints regarding their terms and conditions
of employment exclusively to the Respondent should be dismissed. 15
CONCLUSIONS OF LAW
20
1. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By requiring employees, as a condition of continued employment, to agree to forgo
the right to seek resolution of employment-related disputes through collective or class action 25
and by attempting to enforce that agreement, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 2(6) of and (7) of the NLRA and has
violated Section 8(a)(1) of the NLRA.
3. The record does not show that the Respondent required employees to address 30
complaints regarding terms and conditions of employment exclusively to management in
violation of Section 8(a)(1) of the NLRA.
REMEDY35
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. Consistent with the Board’s usual practice in cases involving
unlawful litigation, I shall order the Respondent to reimburse the plaintiffs for all reasonable 40
expenses and legal fees, with interest,6 incurred in opposing the Respondent’s unlawful efforts
to enforce the agreement by asserting it as a defense to, and as the basis for a motion to
dismiss Davenport from, the class action Colley filed in district court under the FLSA and state
wage and hour laws. See Murphy Oil, slip op. at 21, Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731, 747 (1983) (“If a violation is found, the Board may order the employer to reimburse 45
the employees whom he had wrongfully sued for their attorneys’ fees and other expenses” and

6
Interest is to be computed in the manner prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). See
Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole orders for suits
maintained in violation of the Act, it is appropriate and necessary to award interest on litigation
expenses.”), enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993).
JD–52–16
9
“any other proper relief that would effectuate the policies of the Act.”). I shall also order the
Respondent to rescind and revise the Complaint Procedures, to notify employees and the
district court that it has done so, and to inform the district court that it no longer opposes the
plaintiffs’ claims on the basis of the Complaint Procedures.
5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.7
ORDER10
The Respondent, The Scherzinger Corporation , its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Maintaining and/or enforcing any agreement or rule that requires employees, as 15
condition of employment, to waive the right to maintain class or collective actions in all forums,
whether arbitral or judicial.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.20
(a) Rescind the Scherzinger Complaint Procedures (“Complaint Procedures”) or revise
them to make clear to employees that the Complaint Procedures do not constitute a waiver of
employees’ rights to maintain employment-related joint, class, or collective actions.
(b) Notify all current and former employees who were required to sign, or otherwise
agree to, the Complaint Procedures that the Complaint Procedures have been rescinded or 25
revised and, if revised, provide them a copy of the revised Complaint Procedures.
(c) Notify the United States District Court for the Southern District of Ohio that it has
rescinded or revised the Complaint Procedures upon which it based a defense and motion to
dismiss Steven Davenport, and any other plaintiffs, in the collective action filed by Robert Colley
under the FLSA and state wage and hour laws, and inform the court that it no longer opposes 30
that action on the basis of the Complaint Procedures.
(d) In the manner set forth in the remedy section of this decision, reimburse the plaintiffs
for any reasonable attorneys’ fees and litigation expenses that they may have incurred in
opposing the Respondent’s unlawful efforts to enforce the Complaint Procedures by asserting it
as a defense to, and as the basis for a motion to dismiss Davenport and any other plaintiffs35
from, the class action Colley filed in district court under the FLSA and state wage and hour laws.
(e) Within 14 days after service by the Region, post at its facility in Cincinnati, Ohio,
copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by
the Regional Director for Region Nine, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in 40
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

7
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.
8 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.”
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, th
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 ti5
(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.
Dated, Washington, D.C. June 17, 201610

15

10
me since August 2015.
PAUL BOGAS
Administrative Law Judge
JD–52–16
e
APPENDIX
NOTICE TO MEMBERS
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 on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and/or enforce an agreement or rule that requires you, as a condition of
employment, to waive the right to maintain class or collective actions in all forums, whether
arbitral or judicial.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the Scherzinger Complaint Procedures (“Complaint Procedures”) or revise
them to make clear that the Complaint Procedures do not constitute a waiver of employees’
rights to maintain employment-related joint, class, or collective actions.
WE WILL notify you that the Complaint Procedures have been rescinded or revised and, if
revised, provide you with a copy of the revised Complaint Procedures.
WE WILL notify the United States District Court for the Southern District of Ohio that we have
rescinded or revised the Complaint Procedures upon which we based a defense and motion to
dismiss Steven Davenport, and any other plaintiffs, in the collective action filed by Robert Colley
under the FLSA and state wage and hour laws, and inform the district court that we no longer
oppose that action on the basis of the Complaint Procedures.
WE WILL reimburse the plaintiffs for any reasonable attorneys’ fees and litigation expenses that
they may have incurred in opposing our unlawful efforts to enforce the Complaint Procedures by
JD–52–16
asserting them as a defense to, and as the basis for a motion to dismiss Davenport and any
other plaintiffs from, the class action Colley filed in district court under the FLSA and state wage
and hour laws.
The Scherzinger Corporation
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/09-CA-165460 or by using
the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (513) 684-3750.