Uber Technologies, Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 11, 2020369 N.L.R.B. 102 (N.L.R.B. 2020) Copy Citation 369 NLRB No. 102 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. Uber Technologies, Inc. and Lenza H. Mcelrath III. Case 20–CA–181146 June 11, 2020 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On June 13, 2017, Administrative Law Judge Mara- Louise Anzalone issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the Gen- eral Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel filed cross-ex- ceptions with supporting argument, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings, and conclusions only to the extent consistent with this Decision and Order. I. BACKGROUND The Respondent engages in the operation of a smartphone application and has places of business nation- wide, including a facility located in San Francisco, Cali- fornia. Since January 29, 2016, the Respondent has re- quired its software engineers to execute a Dispute Resolu- tion Agreement (Agreement) as a condition of their em- ployment. In relevant part, the Agreement provides as follows (emphasis in original): How this Agreement Applies: This Agreement is gov- erned by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. This Agreement applies to any dispute arising out of or related to Employee’s employment with Uber Technol- ogies, Inc. or one of its affiliates, successor, subsidiaries or parent companies (“Company”) or termination of em- ployment and survives after the employment relation- ship terminates. Except as it otherwise provides, this Agreement is intended to apply to the resolution of dis- putes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agree- ment requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. . . . Except where this Agreement otherwise provides, this Agreement also applies, without limitation, to disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest peri- ods, termination, or harassment . . . . Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an ad- ministrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims in- clude without limitation claims or charges brought be- fore . . . the National Labor Relations Board (www.nlrb.gov) . . . . . . . . Class Action Waiver: You and the Company agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative basis. There will be no right or authority for any dispute to be brought, heard or arbi- trated as a class, collective, representative or private at- torney general action, or as a member in any purported class, collective, representative or private attorney gen- eral proceeding, including without limitation pending but not certified class actions (“Class Action Waiver”) . . . . Although an Employee will not be retaliated against, dis- ciplined or threatened with discipline as a result of his or her exercising his or her rights under Section 7 of the National Labor Relations Act by the filing of or partici- pation in a class, collective or representative action in any forum, the Company may lawfully seek enforce- ment of this Agreement and the Class Action Waiver, Collective Action Waiver and Private Attorney General Waiver under the Federal Arbitration Act and seek dis- missal of such class, collective or representative actions or claims. . . . The judge found that the Respondent violated Section 8(a)(1) of the National Labor Relations Act (NLRA or Act) by maintaining its mandatory arbitration agreement because, in her view, “the Agreement would lead a rea- sonable employee to question his Section 7 rights and, worse still, restrain him from exercising them out of fear that doing so would run afoul of the Agreement.” In so concluding, the judge relied on the “reasonably construe” prong of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which was extant law at the time the judge issued her decision. On December 12, 2019, the Board issued a Notice to Show Cause why this case should not be remanded to the judge for further proceedings in light of the Board’s deci- sion in Boeing Co., 365 NLRB No. 154 (2017). In Boeing, the Board overruled the “reasonably construe” prong of Lutheran Heritage and announced a new standard, which applies retroactively for evaluating the lawfulness of a 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD facially neutral policy. Id., slip op. at 3.1 The Respondent and the General Counsel each filed a response to the No- tice to Show Cause.2 II. DISCUSSION We reverse the judge’s decision and find that the Re- spondent did not violate Section 8(a)(1) of the Act by maintaining its Agreement. The Agreement, when rea- sonably interpreted, does not potentially interfere with employees’ right to file Board charges and participate in Board proceedings. In Prime Healthcare Paradise Valley, LLC, the Board held that “an arbitration agreement that explicitly prohib- its the filing of claims with the Board or, more generally, with administrative agencies must be found unlawful” be- cause “[s]uch an agreement constitutes an explicit prohi- bition on the exercise of employee rights under the Act.” 368 NLRB No. 10, slip op. at 5 (2019). The deci- sion further stated that where an arbitration agreement does not contain such an explicit prohibition but rather is facially neutral, the standard set forth in Boeing applies. Id. Under that standard, the Board determines whether the arbitration agreement at issue, “when reasonably inter- preted, would potentially interfere with the exercise of NLRA rights.” Boeing, 365 NLRB No. 154, slip op. at 3.3 The “when reasonably interpreted” standard is an objec- tive one and looks solely to the wording of the rule, policy, or other provision at issue interpreted from the perspective of an objectively reasonable employee, who does not view every employer policy through the prism of the NLRA. 1 Under Boeing, the Board first determines whether a challenged rule or policy, reasonably interpreted, would potentially interfere with the ex- ercise of rights under Sec. 7 of the Act. If not, the rule or policy is lawful. If so, the Board evaluates two things: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications asso- ciated with the rule.” Id. slip op. at 3 (emphasis omitted). In conducting this evaluation, the Board will strike a proper balance between the as- serted business justifications and the invasion of employee rights in light of the Act and its policies, viewing the rule or policy from the employees’ perspective. Id. “[T]he Board will delineate three categories” of work rules: Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifica- tions associated with the rule. . . . Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected con- duct is outweighed by legitimate justifications. Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected con- duct, and the adverse impact on NLRA rights is not outweighed by jus- tifications associated with the rule. See LA Specialty Produce, 368 NLRB No. 93, slip op. at 2. In Briad Wenco, 368 NLRB No. 72, the Board ad- dressed the lawfulness of arbitration agreements that re- quire employees to arbitrate federal statutory claims but also include “savings” language that clearly and promi- nently informs employees that they are free to file charges with the Board. The first paragraph of the arbitration agreements at issue in Briad Wenco, when reasonably in- terpreted, included claims arising under the Act within the scope of their arbitration mandate. Id., slip op. at 1. But the agreements also contained a savings clause providing that “[n]othing in this Agreement shall be construed to prohibit any current or former employee from filing any charge or complaint or participating in any investigation or proceeding conducted by an administrative agency, in- cluding . . . the National Labor Relations Board.” Id. The Board found that the savings clause was sufficiently prom- inent within the agreements, inasmuch as it was referenced in the agreements’ second paragraph, listing claims cov- ered, and contained in the eleventh paragraph, which was separated from the first and second paragraphs by only about a page of text. Id., slip op. at 2. Because the savings clause explicitly informed employees that they retained the right to file charges with the Board and access its pro- cesses, the Board concluded that employees could not rea- sonably interpret the agreements to prohibit them from fil- ing Board charges or participating in Board proceedings. Id. Id., slip op. at 3–4 (emphasis in original). The subdivisions of Category 1 were subsequently redesignated 1(a) and 1(b). See LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 2 fn. 2 (2019). Placement of a rule or policy in Category 1(a) does not result from balancing NLRA rights and legitimate jus- tifications. See id., slip op. at 2 (for a Category 1(a) rule, “there is no need for the Board to take the next step in Boeing of addressing any general or specific legitimate interests justifying the rule”). Other aspects of Lutheran Herit- age remain intact, including whether a challenged rule or policy explicitly re- stricts activities protected by Sec. 7. See Anderson Enterprises, Inc. d/b/a Royal Motor Sales, 369 NLRB No. 70, slip op. at 2 fn. 3 (2020). 2 In its response to the Notice to Show Cause, the Respondent urges the Board to dismiss the allegation without remand, asserting that its Agreement is comparable to that which the Board found lawful in Briad Wenco, LLC d/b/a Wendy’s Restaurant, 368 NLRB No. 72 (2019). The General Counsel does not oppose remand but agrees with the Respondent that if the Board does not remand, it should find the Agreement to be a lawful Boeing Category 1(a) rule under Briad Wenco and Private Na- tional Mortgage Acceptance Co. LLC, 368 NLRB No. 126 (2019). Be- cause the only issue in this case is the facial lawfulness of the arbitration agreement—which is already a part of the record before us—we find that a remand is unnecessary. 3 As Boeing itself makes clear, a challenged rule may not be found unlawful merely because it could be interpreted, under some hypothetical scenario, as potentially limiting some type of Sec. 7 activity or because the employer failed to eliminate all ambiguities from the rule. See id., slip op. at 9. UBER TECHNOLOGIES, INC. 3 Here, similar to the arbitration agreements in Briad Wenco, the Agreement requires arbitration of all “disputes regarding the employment relationship,” which would in- clude claims arising under the Act. However, this cover- age language is immediately followed by a savings clause that explicitly permits employees to bring claims to the Board: Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an ad- ministrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims in- clude without limitation claims or charges brought be- fore . . . the National Labor Relations Board (www.nlrb.gov) . . . . Consistent with Briad Wenco, we conclude that this savings clause renders the Agreement lawful under Boeing. First, the savings clause is sufficiently prominent. It follows shortly after the sentence providing for arbitration of “all” disputes, necessarily including claims arising under the Act, and there- fore is even more prominent than the savings clause that ren- dered the arbitration agreements lawful in Briad Wenco. See 368 NLRB No. 72, slip op. at 2. Second, the savings clause here, like the one in Briad Wenco, specifically and affirma- tively states that employees may bring claims and charges be- fore the National Labor Relations Board. Finally, we are unpersuaded that employees would not understand that they retain the right to file unfair labor practice charges with the Board because the Agreement also provides that “claims may be brought before and rem- edies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.” (Emphasis added.) Certainly, it is unlikely that rank-and-file employees would know whether the Board is an administrative agency to which they are guaranteed access by “applicable law . . . notwithstanding the existence of an agreement to arbitrate.” However, the very next sentence of the Agree- ment identifies claims brought to the National Labor Re- lations Board as administrative claims that employees are entitled to bring. Thus, any ambiguity created by the ital- icized language above is immediately resolved. See An- derson Enterprises, Inc., 369 NLRB No. 70, slip op. at 3– 4 The specific reference to the “National Labor Relations Board” in the savings clause here distinguishes this case from Cedars-Sinai Medi- cal Center, 368 NLRB No. 83 (2019), where the Board found that the respondent violated Sec. 8(a)(1) by maintaining an arbitration agreement that encompassed federal statutory claims while excluding claims that were “preempted by federal labor laws.” Id., slip op. at 2–3. The Board found it unlikely that an objectively reasonable employee would be fa- miliar with the legal doctrine of preemption, let alone what actions and claims were preempted by federal labor laws, and therefore concluded that the clause was legally insufficient. Id., slip op. at 3. As a result, the 4 (finding substantially similar arbitration agreement to be lawful).4 For these reasons, the Agreement cannot be reasonably understood to potentially interfere with employees’ access to the Board and its processes. Accordingly, we find that the Agreement is lawful under Boeing Category 1(a). Boeing, 365 NLRB No. 154, slip op. at 4 (holding that Category 1(a) consists of “rules that are lawful because, when reasonably interpreted, they would have no ten- dency to interfere with Section 7 rights”) (footnote omit- ted). ORDER The complaint is dismissed. Dated, Washington, D.C. June 11, 2020 ______________________________________ John F. Ring, Chairman _____________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Richard McPalmer, Esq., for the General Counsel. Alan I. Model, Esq. (Littler Mendelson, PC), for the Respondent. Lenza McElrath III, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE MARA-LOUISE ANZALONE, Administrative Law Judge. Upon a charge and amended charge filed by Lenza McElrath III (McElrath or Charging Party) on July 27, 2016, and November 30, 2016, respectively, the Regional Director for Region 20 of the National Labor Relations Board (Board) issued a complaint and notice of hearing on December 29, 2016, and an amended complaint and notice of hearing on March 10, 2017 (the amended complaint). The General Counsel alleges that Respondent Uber Board found that the arbitration agreement restricted employee access to the Board and that such a restriction could not be supported by any legit- imate business justification as a matter of law. Id. Here, unlike in Ce- dars-Sinai, the Agreement makes clear that employees may bring claims before the National Labor Relations Board specifically. Member Emanuel did not participate in Cedars-Sinai and expresses no opinion on whether the arbitration agreement in that case was lawful. Nevertheless, he agrees with his colleagues that the present case is dis- tinguishable from Cedars-Sinai. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Technologies, Inc. (Uber or Respondent) has been violating Sec- tion 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. sec. 151, et. seq. (the Act), by maintaining and enforcing an arbitration policy labeled as its “Dispute Resolution Agree- ment.” As discussed infra, following the issuance of the original com- plaint, certain portions of this case were stayed by the General Counsel pending an expected ruling from the United States Su- preme Court. The parties also agreed to submit the non-stayed portion of the case to me based on a stipulated record, thereby waiving a hearing pursuant to Section 102.35(a)(9) of the Board’s Rules and Regulations. Accordingly, based upon the entire record herein, including the stipulated facts and exhibits, and after considering post-hearing briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT JURISDICTION At all times material herein, Respondent, a Delaware corpora- tion with places of business nationwide, including a facility lo- cated in San Francisco, California, has been engaged in the op- eration of a smartphone application. During the 12-month period immediately preceding the issuance of the complaint, Respond- ent, in the normal course and conduct of its above-described business operations, purchased and received at its San Francisco facility products, goods, and materials in excess of $50,000 di- rectly from points outside the State of California. The parties have stipulated and I find that at all material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Based on the foregoing, I find that this dispute affects com- merce and that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act. PROCEDURAL BACKGROUND1 The original complaint alleged that Respondent’s mainte- nance and enforcement of its Dispute Resolution Agreement (Agreement) violates Section 8(a)(1) of the Act based on two theories. First, it is alleged that the Agreement is facially unlaw- ful because it requires employees to waive their right to pursue employment-related claims through class or collective action. Second, it is alleged that the Agreement violates the Act because employees would reasonably understand it to prohibit them from filing unfair labor practice charges and/or otherwise access the Board. On March 10, 2017, the General Counsel stayed proceeding to hearing the facial challenge allegations, pending an expected ruling from the United States Supreme Court in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), cert. granted 137 S.Ct. 809 (2017). The parties then stipulated that the sole 1 Abbreviations used in this decision are as follows: “Stip. ¶ __” for the parties’ stipulation of facts; “Jt. Exh. __” for Joint Exhibit; “GC Br. at __” for the General Counsel’s post-hearing brief; and “R. Br. at __” for Respondent’s posthearing brief. 2 Based on the pleadings, it appears that the General Counsel has withdrawn the non-stayed portion of its allegation that Respondent vio- lated the Act by filing a motion to compel arbitration. See Jt. Exh. H at issue before me is whether the Agreement violates Section 8(a)(1) because employees would reasonably believe that it would prohibit them from filing Board charges.2 On April 6, 2017, Respondent, Charging Party and the General Counsel filed a joint motion to waive a hearing on this issue and submit it to me for a recommended decision based on a stipulated record. On April 7, 2017, I granted the parties’ joint motion and approved a stipulated record limited to: the parties’ joint motion, stipulation of issues presented, stipulation of facts and stipulated joint ex- hibits. ALLEGED UNFAIR LABOR PRACTICES As noted, the sole issue before me is whether the DRA violates Section 8(a)(1) of the Act, because employees would reasonably believe that it interferes with their ability to file a Board charge. A. Stipulated Facts Since January 29, 2016, Respondent has required its software engineers3 to execute the Agreement as a condition of their em- ployment. The Agreement provides, in relevant part: How This Agreement Applies: This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. This Agree- ment applies to any dispute arising out of or related to Em- ployee’s employment with Uber Technologies, Inc. or one of its affiliates, successor, subsidiaries or parent companies (“Company”) or termination of employment and survives after the employment relationship terminates. Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement re- quires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement, but not as to the enforceability, revocability or va- lidity of the Agreement or any portion of the Agreement, in- cluding the Class Action Waiver described below. Except where this Agreement otherwise provides, this Agree- ment also applies, without limitation, to disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, or harass- ment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by Insurance), and state statutes, if any, addressing the ¶ 5 (alleging violation based on maintenance, but not enforcement of, the Agreement). 3 While the amended complaint alleges a violation based on Respond- ent’s maintenance of its arbitration policy with respect to its “employ- ees,” the stipulated record establishes only that the Agreement binds in- dividuals, such as Charging Party, employed by Respondent as software engineers. As such, any complaint allegation regarding application of the Agreement to non-software engineers fails for lack of proof. UBER TECHNOLOGIES, INC. 5 same or similar subject matters, and all other federal and state statutory and common law claims to the extent permitted by law. Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency not- withstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). * * * 3. Class Action Waiver: You and the Company agreed to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representa- tive basis. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representa- tive or private attorney general action, or as a member in any purported class, collective, representative or private attorney general proceeding, including without limitation pending but not certified class actions (“Class Action Waiver”). * * * Although an Employee will not be retaliated against, disci- plined or threatened with discipline as a result of his or her ex- ercising his or her rights under Section 7 of the National Labor Relations Act by the filing of or participation in a class, collec- tive or representative action in any forum, the Company may lawfully seek enforcement of this Agreement and the Class Ac- tion Waiver, Collective Action Waiver and Private Attorney General Waiver under the Federal Arbitration Act and seek dis- missal of such class, collective or representative actions or claims. (Stip. ¶ 10; Jt. Exh. M). The Agreement does not contain a pro- cedure whereby employees may opt out of arbitration. B. The Legal Standard “[A]n employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004) (citing Lafayette Park Hotel, 326 NLRB 824, 825–827 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999)).4 “Where the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their mainte- nance is an unfair labor practice, even absent evidence of en- forcement.” Lafayette Park Hotel, 326 NLRB at 825 (footnote omitted). The test for 8(a)(1) violations is not subjective, but objective: whether the policy or rule in question “would reasonably have a 4 Section 7 of the Act states that employees have the right to engage in certain rights, or refrain from them. Those rights include the right: . . . to self-organization, 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 tendency to interfere with, restrain or coerce employees in the exercise of their Section 7 rights . . . .” See generally Multi-Ad Services, Inc., 331 NLRB 1226, 1227–1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001); see also Whole Foods Market, 363 NLRB No. 87, slip op. at 2 (2015) (citation omitted), affd. -- Fed. Appx. --, 2017 WL 2374843 (2d Cir. 2017). The Board gives rules a “reasonable reading”; it does not presume interference with Section 7 rights or read phrases in isolation. Lutheran Her- itage, 343 NLRB at 646; U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255 Fed. Appx. 517 (D.C. Cir. 2007). That said, the Board will construe ambiguous language against the employer as the promulgator of the rule. Hyundai America Shipping Agency, 357 NLRB 860, 862 (2011) (employ- ees “should not have to decide at their own peril what infor- mation is not lawfully subject to such a prohibition”); see also Whole Foods Market, Inc., 363 NLRB No. 87, slip op. at 3 fn. 11 (ambiguous rule can chill employees’ Section 7 protected ac- tivities by creating “a cautious approach” to protected conduct based on fear of retaliation). Furthermore, “the Board must rec- ognize that ‘rank-and-file employees . . . cannot be expected to have the same expertise to examine company rules from a legal standpoint.’” Ralph’s Grocery Co., 363 NLRB No. 128, slip op. at 1 (2016) (quoting SolarCity Corp., 363 NLRB No. 83, slip op. at 5 (2015)). By its D.R. Horton5 and Murphy Oil USA, Inc.6 decisions, the Board has applied these principles to policies requiring em- ployee arbitration of disputes arising out of their employment. Specifically, where an employer maintains a broadly worded policy requiring employees to arbitrate all disputes arising out of their employment, the Board has found a violation Section 8(a)(1), “because employees would reasonably construe it to pro- hibit filing Board charges or otherwise accessing the Board’s processes.” Dish Network, LLC, 365 NLRB No. 47, slip op. at 2–3 (2017) (finding violation based on arbitration policy appli- cable to “any claim, controversy and/or dispute between them, arising out of and/or in any way related to [e]mployee’s applica- tion for employment, employment and/or termination of employ- ment, whenever and wherever brought”) (citing U-Haul Co. of California, 347 NLRB 375, supra at 377–378) (finding violation based on policy requiring arbitration of “all disputes relating to or arising out of an employee’s employment. . . [including] claims. . . recognized by . . . federal law or regulations”)). Filing unfair labor practice charges with the Board “is a vital employee right designed to safeguard the procedure for protect- ing all other employee rights guaranteed by Section 7.” Mesker Door, Inc., 357 NLRB 591, 596 (2011). Moreover, because the Board does not initiate its own proceedings, implementation of the Act is critically dependent on individuals filing charges on their own (and their coworkers’) behalf. As such, employees’ “complete freedom” to access to the Board’s processes is a fun- damental purpose of the Act and must be vigorously safe- guarded. NLRB v. Scrivener, 405 U.S. 117, 122 (1972) (citations bargaining or other mutual aid and protection. 5 357 NLRB 2277, 2280 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013). 6 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), cert. granted 137 S.Ct. 809 U.S. (2017). 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD omitted); see also ISS Facility Services, Inc., 363 NLRB No. 160, slip op. at 4 (2016); SolarCity, 363 NLRB No. 83, slip op. at 4. C. Respondent’s Arbitration Policy Violates the Act Applying the above principles to the instant case, I find that employees would reasonably understand the Agreement to inter- fere with their ability to file a Board charge. Specifically, I find that the Agreement is ambiguous when read as a whole from the perspective of an employee attempting to discern whether, by signing it, he is waiving that right. Essentially, the Agreement plays “cat-and-mouse” with the reasonable employee-reader by referencing filing Board charges and accessing the Board with- out asserting, in plain and understandable language, that the Agreement does not impede on these critical Section 7 rights. SolarCity Corp., 363 NLRB No. 83, supra at 5 (rejecting arbitra- tion policy where, “absent language more clearly informing em- ployees about the precise nature of the rights supposedly pre- served, the rule remains vague and likely to leave employees un- willing to risk violating the rule by exercising Section 7 rights”). As noted, supra, the Board has cautioned against the use of vague and unexplained language in agreements purporting to govern employees’ access to the Board. This case presents a classic example of legal jargon that is too clever by half; I find that, as drafted, the Agreement would lead a reasonable em- ployee to question his Section 7 rights and, worse still, restrain him from exercising them out of fear that doing so would run afoul of the Agreement. In particular, I find that a reasonable employee, having read the Agreement, would likely conclude as follows: I am required to arbitrate any employment-related dispute I have with Uber on an individual—not collective—basis, ex- cept where the Agreement “otherwise provides,” but the docu- ment is far from clear from what, exactly it otherwise provides. one sentence in the Agreement (¶ 2, second sentence) suggests that “applicable law” might permit my “access” to the Board, but another (¶ 2, first sentence) seems to say that Uber might be “permitted by law” to use the Agreement to bar me from filing “claims” with federal agencies such as the Board. if Uber wanted me to understand how the Agreement affected my rights, it would have simply said something like, “nothing in this Agreement prohibits you from filing Board charges,” period. while Uber says it won’t retaliate against me for exercising my Section 7 right to file a “class, collective or representative ac- tion,” doing so would appear to violate the Agreement itself, which I signed as a condition of my employment. even if it doesn’t result in retaliation, filing a Board charge would very likely be a waste of my time, because Uber can lawfully seek dismissal of my claims. There is no question that an enforcement regime wholly depend- ent on the initiative of individual employees to file charges can- not be sustained under these conditions. See ISS Facility Ser- vices, Inc., 363 NLRB No. 160, supra; Ralph’s Grocery Co., 363 NLRB No. 128, supra; SolarCity, 363 NLRB No. 83, supra; Murphy Oil, 361 NLRB 774, supra; D. R. Horton, 357 NLRB at 2278, supra; U-Haul Co. of California, 347 NLRB 375, supra. In its defense, Respondent argues that the Agreement effec- tively carves out through “clear and unambigious language,” em- ployees’ “right to file a charge with and seek remedies from” the Board. But, as noted above, the language Respondent relies upon is anything but clear: Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency not- withstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before. . .the National Labor Relations Board (www.nlrb.gov). . . (emphasis added). This language echoes similar “savings clause” language the Board has in recent years found insufficient to clarify, for a reasonable employee, that the agreement in ques- tion did not prohibit the filing of Board charges. See ISS Facility Services, Inc., 363 NLRB No. 160 (2016), and SolarCity, 363 NLRB No. 83 (2015). I find no meaningful distinction between the language in those cases and the instant one; the fatal flaw in each policy is the attempt to “save” a layman’s rights by condi- tioning them upon his ability to interpret “applicable law.” As the Board stated in the ISS Facility Services case: “[r]ank-and-file employees do not generally carry lawbooks to work or apply legal analysis to company rules as do lawyers, and cannot be expected to have the expertise to examine com- pany rules from a legal standpoint.” Ingram Book Co., 315 NLRB 515, 516 fn. 2 (1994). As a result, the Board routinely has found insufficient language in workplace rules purporting to except, or “save,” employees’ legal rights from restrictions on their conduct. See SolarCity Corp., 363 NLRB No. 83, slip op. at 5 and fn. 18 (and cases cited therein) (2015). This is so even where such exceptions referred to the “NLRA” or “the National Labor Relations Act.” See id. at 5 and fn. 19 (and cases cited therein). “The rationale underlying these decisions is that, absent language more clearly informing employees about the precise nature of the rights supposedly preserved, the rule remains vague and likely to leave employees unwilling to risk violating the rule by exercising Section 7 rights.” Id. at 5. 363 NLRB No. 160, slip op. at 3 (2016). Respondent by its posthearing brief makes no mention of the SolarCity or ISS Facility Services cases, but nonetheless suggests that certain aspects of its policy (present in neither of those cases) cure any chill caused by its vague and confusing language. First, Respondent argues, its Agreement specifically “guides employ- ees to the NLRB’s website (www.nlrb.gov) should they wish to file charges.” I disagree. Merely referencing the agency’s web- site does nothing to resolve the Agreement’s ambiguity on the critical issue of employee access to the Board’s processes. Con- sidering the placement of the web address within the Agreement, I believe a reasonable employee would understand the reference to be, at best, a suggestion that visiting the site might help him figure out what Respondent was refusing to tell him outright: whether, despite signing the Agreement, he could access the Board to protect his Section 7 rights. Second, Respondent argues that the Agreement should be con- sidered lawful because it explicitly contemplates that, should UBER TECHNOLOGIES, INC. 7 “applicable law” allow, employees will be allowed to pursue both Board charges and any accompanying remedies. This is truly a distinction without a difference; as set forth above, the Agreement fails based on its flawed savings clause. Explicating that employees may seek administrative remedies, conditioned upon the same unlawful clause, adds nothing to the equation. Finally, Respondent claims that its anti-retaliation language reforms the Agreement. I disagree. As a preliminary matter, this language on its face extends protection from retaliation only to those who file group or collective charges, leaving the reader to ponder what repercussions might befall an individual charge filer. Secondly, immediately after reading this language, the em- ployee is informed in no uncertain terms that filing charges would be futile in any event, because Respondent may “law- fully” enforce the Agreement to seek dismissal of any claim he files. This effectively nullifies whatever limited comfort the anti-retaliation might provide. See Ralph’s Grocery Co., supra, slip op. at 2–3 (arbitration policy could be reasonably read to suggest that the right to file charges with Board is futile; although the policy contains an NLRB exclusion, language in same para- graph dictates that disputes must nonetheless be resolved through arbitration per the policy). As set forth above, considering the Agreement as a whole, I find that it is not written in a manner reasonably calculated to assure employees that their right, central to the Act’s enforce- ment scheme, to file Board charges remains unaffected. Accord- ingly, I find that the Agreement violates Section 8(a)(1) because employees would reasonably believe that it interferes with this right. CONCLUSIONS OF LAW 1. Respondent Uber Technologies, Inc. (Respondent) has at all material times been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent has engaged in an unfair labor practice affect- ing commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by maintaining a mutual arbitration agree- ment that employees would reasonably believe bars or restricts them from filing unfair labor practice charges with the National Labor Relations Board. REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I find that it should be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, Respondent should be ordered to rescind or revise its dispute resolution agreement as it applies to its employee- software engineers and to notify such employees that it has done so. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der 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. ORDER The Respondent, Uber Technologies, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a dispute resolution agreement that employ- ees would reasonably believe bars or restricts them from filing unfair labor practice charges with the NLRB. (b) 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 effectu- ate the policies of the Act. (a) Rescind the dispute resolution agreement in all of its forms, or revise it in all of its forms to make clear to employees that it does not bar or restrict them from filing charges with the NLRB. (b) Notify all current and former employee-software engi- neers who were required to sign or otherwise become bound to the dispute resolution agreement in any form that it has been re- scinded or revised and, if revised, provide them a copy of the revised agreement. (c) Within 14 days after service by the Region, post copies of the attached notice marked “Appendix” at all of its facilities where the dispute resolution agreement has been maintained with respect to Respondent’s employee-software engineers, in- cluding, but not limited to, its San Francisco, California, Seattle, Washington and New York, New York locations.8 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by Respondent’s authorized representa- tive, shall be posted by Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to phys- ical posting of paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents custom- arily communicate with their employees by such means. Rea- sonable steps shall be taken by Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Re- spondent has gone out of business or has closed or ceased doing business at a facility covered by this order, Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respond- ent at those facilities at any time since January 29, 2016. (d) Within 21 days after service by the Region, file with the Regional Director for Region 20 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. It is further ordered that the Complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. June 13, 2017 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.” 8 DECISIONS 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT do anything to prevent you from exercising the above rights. WE WILL NOT maintain a mandatory arbitration policy cover- ing our employee-software engineers that they would reasonably believe bars or restricts their right to file charges with the Na- tional Labor Relations Board. 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 rescind the Dispute Resolution Agreement in all of its forms, or revise it in all of its forms, to make clear that it does not bar or restrict our employee-software engineers’ right to file charges with the National Labor Relations Board. WE WILL notify all current and former employee-software en- gineers who were required to sign or otherwise become bound to the Dispute Resolution Agreement in any form that it has been rescinded or revised and, if revised, WE WILL provide them a copy of the revised agreement. UBER TECHNOLOGIES, INC. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-181146 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. Copy with citationCopy as parenthetical citation