Citigroup Technology, Inc., and Citicorp Banking Corporation (parent), a subsidiary of Citigroup, In

CITIGROUP TECHNOLOGY, INC. 505 363 NLRB No. 55 Citigroup Technology, Inc. and Citicorp Banking Corporation (parent), a subsidiary of Citigroup, Inc. and Andrea Smith. Case 12–CA–130742 December 1, 2015 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN On December 23, 2014, Administrative Law Judge Donna N. Dawson issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.1 There are two issues in this case: (1) whether the Re- spondent violated Section 8(a)(1) of the Act by maintain- ing the Employment Arbitration Policy (EAP), which requires employees, as a condition of employment, to agree to resolve certain employment-related disputes exclusively through individual arbitration; and (2) whether the Respondent violated Section 8(a)(1) of the Act by enforcing the EAP by opposing class treatment of the arbitration demand filed with the American Arbitra- tion Association (AAA) by a former employee for claims brought under the Fair Labor Standards Act. Applying the Board’s decisions in D.R. Horton, 357 NLRB 2277 (2012), enf. denied in rel. part, 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, 361 NLRB 774 (2014), enf. denied, --F.3d-- (5th Cir. Oct. 26, 2015), the judge found that the Respondent violated Section 8(a)(1) of the Act by maintaining the EAP. We adopt that find- ing.2 The judge also found that the Respondent violated Section 8(a)(1) of the Act by enforcing the EAP because, after the demand for class arbitration was filed with the AAA, the Respondent called to the AAA’s attention the fact that the arbitration agreement did not provide for class treatment of arbitration demands. Based on the fact that the former employee initiated the arbitration pro- ceeding, and considering the provisions and policies of the Federal Arbitration Act, we find, contrary to the judge, that the Respondent’s conduct did not amount to 1 We have amended the remedy and modified the judge’s recom- mended Order and notice to conform to our findings. 2 For the reasons stated in Murphy Oil, supra, we disagree with the views of our dissenting colleague. enforcement of the EAP in violation of Section 8(a)(1).3 Accordingly, we reverse the judge and dismiss the en- forcement allegation. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Citigroup Technology, Inc. and Citigroup Banking Cor- poration (Parent), a Subsidiary of Citigroup, Inc., Tampa, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraphs 1(b), 2(c), and (d) and reletter the subsequent paragraphs. 2. Substitute the attached notice for that of the admin- istrative law judge. MEMBER MISCIMARRA, concurring in part and dissenting in part. In this case, my colleagues find that the Respondent’s Employment Arbitration Policy (EAP) violates Section 8(a)(1) of the National Labor Relations Act (the Act or NLRA) because the EAP waives the right to participate in class or collective actions regarding non-NLRA em- ployment claims. I respectfully dissent from this finding for the reasons explained in my partial dissenting opinion in Murphy Oil USA, Inc.1 Charging Party Andrea Smith signed the EAP and later participated in a demand for class arbitration filed by employee Darlene Echevarria with the American Arbitration Association (AAA) alleg- ing violations of the Fair Labor Standards Act. The EAP does not authorize group or class arbitration. In reliance on the EAP, the Respondent requested that the AAA re- ject Echevarria’s demand for class arbitration and instead only accept her individual claim. The AAA granted the request. For the reasons that follow, I agree with my colleagues that the Respondent’s request did not violate the Act. I agree that an employee may engage in “concerted” activities for “mutual aid or protection” in relation to a claim asserted under a statute other than NLRA.2 How- 3 If the former employee’s claims had been brought in court as a collective action, and the Respondent had moved to dismiss based on the EAP, we would have found that the Respondent violated Sec. 8(a)(1) by enforcing the unlawful policy. See Murphy Oil, supra at 799–801. 1 361 NLRB 774, 775–808 (2014) (Member Miscimarra, dissenting in part). The Board majority’s holding in Murphy Oil invalidating class-action waiver agreements was recently denied enforcement by the Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB, No. 14–60800, 2015 WL 6457613 (5th Cir. Oct. 26, 2015). 2 I agree that non-NLRA claims can give rise to “concerted” activi- ties engaged in by two or more employees for the “purpose” of “mutual aid or protection,” which would come within the protection of NLRA DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506 ever, Section 8(a)(1) of the Act does not vest authority in the Board to dictate any particular procedures pertaining to the litigation of non-NLRA claims, nor does the Act render unlawful agreements in which employees waive class-type treatment of non-NLRA claims. To the con- trary, as discussed in my partial dissenting opinion in Murphy Oil, NLRA Section 9(a) protects the right of every employee as an “individual” to “present” and “ad- just” grievances “at any time.”3 This aspect of Section 9(a) is reinforced by Section 7 of the Act, which protects each employee’s right to “refrain from” exercising the collective rights enumerated in Section 7. Thus, I be- lieve it is clear that (i) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims;4 (ii) a class-waiver agreement per- taining to non-NLRA claims does not infringe on any NLRA rights or obligations, which has prompted the overwhelming majority of courts to reject the Board’s position regarding class-waiver agreements;5 and (iii) Sec. 7. See Murphy Oil, 361 NLRB 774, 796–798 (Member Miscimar- ra, dissenting in part). However, the existence or absence of Sec. 7 protection does not depend on whether non-NLRA claims are pursued as a class or collective action, but on whether Sec. 7’s statutory re- quirements are met—an issue separate and distinct from whether an individual employee chooses to pursue a claim as a class or collective action. Id.; see also Beyoglu, 362 NLRB 1238, 1241–1242 (2015) (Member Miscimarra, dissenting). 3 Murphy Oil, above at 803–807 (Member Miscimarra, dissenting in part). Sec. 9(a) states: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representa- tives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual em- ployee or a group of employees shall have the right at any time to pre- sent grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargain- ing representative has been given opportunity to be present at such adjustment” (emphasis added). The Act’s legislative history shows that Congress intended to preserve every individual employee’s right to “adjust” any employment-related dispute with his or her employer. See Murphy Oil, aboveat 804–805 (Member Miscimarra, dissenting in part). 4 When courts have jurisdiction over non-NLRA claims that are po- tentially subject to class treatment, the availability of class-type proce- dures does not rise to the level of a substantive right. See D. R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class action procedures . . . is not a substantive right.”) (citations omitted), petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980) (“[T]he right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims.”). 5 The Fifth Circuit has twice denied enforcement of Board orders invalidating a mandatory arbitration agreement that waived class-type treatment of non-NLRA claims. See Murphy Oil USA, Inc. v. NLRB, above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority of courts considering the Board’s position have likewise rejected it. enforcement of a class-action waiver as part of an arbitra- tion agreement is also warranted by the Federal Arbitra- tion Act (FAA).6 Although questions may arise regard- ing the enforceability of particular agreements that waive class or collective litigation of non-NLRA claims, I be- lieve these questions are exclusively within the province of the court or other tribunal that, unlike the NLRB, has jurisdiction over such claims. The majority properly finds that the Respondent’s suc- cessful invocation of the EAP before the AAA to pre- clude class arbitration was lawful. See Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 684– 685 (2010) (holding that a “party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so”) (emphasis in original). Accordingly, I join my colleagues in dismissing this complaint allegation. Because I believe the Respondent’s EAP was lawful under the NLRA, however, I respectfully disagree with the majority’s assertion that the Respondent would have violated the Act if, based on the EAP, it had moved to dismiss claims filed in court. A multitude of court deci- sions have enforced similar agreements in such circum- stances.7 As the Fifth Circuit recently observed after rejecting (for the second time) the Board’s position re- garding the legality of class waiver agreements: “[I]t is a bit bold for [the Board] to hold that an employer who followed the reasoning of our D. R. Horton decision had no basis in fact or law or an ‘illegal objective’ in doing so. The Board might want to strike a more respectful balance between its views and those of circuit courts reviewing its orders.”8 I also believe that any Board finding of a violation based on filing with a court a meri- torious motion to compel arbitration would improperly See Murphy Oil, 361 NLRB 774, 807 (Member Miscimarra, dissenting in part); id., at 808 fn. 5 (Member Johnson, dissenting) (collecting cases); see also Patterson v. Raymours Furniture Co., Inc., No. 14-CV- 5882 (VEC), 2015 WL 1433219 (S.D.N.Y. Mar. 27, 2015); Nanavati v. Adecco USA, Inc., No. 14-cv-04145-BLF, 2015 WL 1738152 (N.D. Cal. Apr. 13, 2015), motion to certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration of prior determination that class waiver in arbitration agreement violated NLRA). 6 Even if a conflict existed between the NLRA and an arbitration agreement’s class waiver provisions, the FAA requires that the arbitra- tion agreement be enforced according to its terms. Murphy Oil, above, at 807 (Member Miscimarra, dissenting in part); id., at 822–831 (Mem- ber Johnson, dissenting). 7 See, e.g., Murphy Oil, Inc., USA v. NLRB, above; Johnmoham- madi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013). 8 Murphy Oil USA, Inc. v. NLRB, above, at fn.6. CITIGROUP TECHNOLOGY, INC. 507 risk infringing on the Respondent’s rights under the First Amendment’s Petition Clause. See Bill Johnson’s Res- taurants v. NLRB, 461 U.S. 731 (1983); BE & K Con- struction Co. v. NLRB, 536 U.S. 516 (2002); see also my partial dissent in Murphy Oil, above, 361 NLRB 774, 806–808. 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain our Employment Arbitration Policy (EAP), which requires employees, as a condition of their employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial, and requires all disputes relating to wages, hours, or other working conditions to be submitted to individual binding arbitration. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind or revise the EAP in all of its forms to make it clear to employees that the policy does not constitute a waiver of their right in all forums to maintain class or collective actions about wages, hours, and other working conditions. WE WILL notify all former and current employees who were required to sign or otherwise agree to the EAP in any form at our facilities at any time since December 26, 2012, that the EAP has been rescinded or revised and, if revised, WE WILL provide them with a copy of the revised agreement. CITIGROUP TECHNOLOGY, INC. AND CITIGROUP CITICORP BANKING CORPORATION (PARENT), A SUBSIDIARY OF CITIGROUP, INC. Thomas W. Brudney, Esq., for the General Counsel. Edward M. Cherof, Esq., Jonathan J. Spitz, Esq., Stephanie Adler-Paindiris, Esq. (Jackson Lewis, LLP), of Orlando, Florida, & Andrew Frisch, Esq. (Morgan & Morgan), for the Respondent. DECISION STATEMENT OF THE CASE DONNA N. DAWSON, Administrative Law Judge. This case involves issues related to Murphy Oil USA, Inc., 361 NLRB 774 (2014), and D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. granted in part and denied in part 737 F.3d 344 (5th Cir. 2013). On June 12, 2014, Andrea Smith (Charging Party or Smith) filed an initial charge, and on August 27, 2014, she filed a first amended charge. A complaint issued on August 29, 2014, and an amended complaint issued on September 10, 2014 (the complaint). The complaint alleges that Citigroup Technol- ogy, Inc. and Citicorp Banking Corporation (parent), a subsidi- ary of Citigroup, Inc. (Respondent) violated Section 8 (a)(1) of the National Labor Relations Act (the NLRA or the Act) by maintaining and enforcing a mandatory employment arbitration policy precluding its employees from pursuing any group, class, or collective actions, arbitration or otherwise, concerning wages, hours, and other terms and conditions of employment. Although Respondent admits in its amended answer that it maintained and enforced its arbitration policy, it denies that any of its actions violated the Act and sets forth several affirmative defenses. On October 8, 2014, the parties jointly requested that the case be decided without a hearing based on a stipulated record, with attachments. The motion was granted on October 9, 2014, and the parties subsequently filed their briefs. Having considered the entire stipulated record and the briefs, for the reasons set forth below, I make the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent, a Delaware corporation with an office and place of business in Tampa, Florida (Re- spondent’s Tampa facility), has been engaged in the business of providing global financial services. 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 Act. II. ALLEGED UNFAIR LABOR PRACTICES Since about December 26, 2012, Respondent has “main- tained and enforced” as part of its U.S. Employee Handbook, “Appendix A: The Employment Arbitration Policy” revised (EAP) which is applicable to all of its employees in the United States, including those employed at its Tampa facility. This arbitration policy includes the following relevant provision: The Policy makes arbitration the required and exclusive fo- rum for the resolution of all disputes arising out of or in any way related to employment based on legally protected rights (i.e., statutory, regulatory, contractual, or common-law rights) that may arise between an employee or former employee and Citi or its current and former parents, subsidiaries, and affili- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508 ates and its and their current and former officers, directors, employees, and agents (and that aren’t resolved by the inter- nal Dispute Resolution Procedure) including, without limita- tion, claims, demands, or actions under Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1866 and 1991, the Age Discrimination in Employment Act of 1967, the Old- er Workers Benefit Protection Act of 1990, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the Equal Pay Act of 1963, the Em- ployee Retirement Income Security Act of 1974, the Worker Adjustment and Retraining Notification Act, the Sarbanes- Oxley Act of 2002, and the amendments thereto, and any oth- er federal, state, or local statute, regulation, or common-law doctrine regarding employment, employment discrimination, the terms and conditions of employment, termination of em- ployment, compensation, breach of contract, defamation, re- taliation, whistle-blowing, or any claims arising under the Citigroup Separation Pay Plan. Except as otherwise required by applicable law, this Policy applies only to claims brought on an individual basis. Conse- quently[,] neither Citi nor any employee may submit a class action, collective action, or other representation action for res- olution under this Policy. (Jt. Exh. 4.) Since about December 26, 2012, and at all material times thereafter, Respondent has required its newly hired employees to agree to and accept it’s EAP as a condition of employment. Based on this agreement, Respondent has precluded these em- ployees from filing any “group, class, collective, or other repre- sentative action claims in arbitration,” or otherwise, in connec- tion with disputes identified in the EAP concerning wages, hours, and other terms and condition of employment. Of note, Respondent’s EAP also states that it does not “exclude the Na- tional Labor Relations Board from jurisdiction over disputes covered by the [Act]” (Id.). In January 2013, Respondent hired Darlene Echevarria (Echevarria) as an antimoney laundering operations analyst in its Tampa facility. Echevarria worked in this position from January 7 until August 23, 2013. Similarly, Respondent hired Charging Party Smith. By letter dated January 31, 2013, Respondent offered Smith the position of antimoney laundering operations analyst in its Tampa facili- ty. The job offer letter includes an arbitration provision which reads in relevant part: Arbitration: Any controversy or dispute relating to your employment with or separation from Citi will be resolved in accordance with Citi's Employment Arbitration Policy as set forth in the Prin- ciples of Employment which you will be required to sign as a condition of your Citi employment, the terms of which are in- corporated herein. A copy of the Principles of Employment is attached. I acknowledge that I have received and read or have had the opportunity to read this arbitration agreement. I understand that this arbitration agreement requires that disputes that in- volve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge and jury in court. (Jt. Exh. 2, p. 4.) The referenced “Principles of Employment,” state in relevant part: [Y]ou agree to follow our dispute resolution/arbitration pro- cedure for resolving all disputes (other than disputes which by statute are not arbitrable) arising out of or relating to your em- ployment with and separation from Citi.* This applies while you are employed by us as well as after your employment ends. While we hope that disputes with our employees will never arise, we want them resolved promptly if they do arise. These procedures do not preclude us from taking disciplinary actions (including terminations) at any time, but if you dispute those actions, we both agree that the disagreement will be re- solved through these procedures. Our procedures are divided into two parts: 1. An internal dispute resolution procedure that allows you to seek review of any action taken regarding your employment or termination of your employment which you think is unfair. 2. In the unusual situation when this procedure does not fully resolve a dispute, and such dispute is based upon a legally protected right (i.e., statutory, contractual, or common law), we both agree to submit the dispute, within the time provided by the applicable statute(s) of limitations, to binding arbitra- tion as follows: . . . . Before the American Arbitration Association ("AAA") where you don't meet the criteria above for FINRA [Fi- nancial Industry Regulatory Authority, Inc.] arbitration, FINRA declines the use of its facilities, or you are a Dual Employee and your dispute does not involve CGMI [Citigroup Global Markets Inc.] or activities relat- ed to your securities license(s). Arbitrations shall be conducted in accordance with the respec- tive arbitration rules of the FINRA or AAA, as applicable, then in effect and as supplemented by Citi's Arbitration Policy then in effect ("Arbitration Policy"). A detailed description of the Arbitration Policy is included in the Employee Handbook, and is available for review prior to your acceptance of em- ployment if you choose to review it. Again, it is your respon- sibility to read and understand the dispute resolu- tion/arbitration procedure. (Jt. Exh. 2, pp. 7–8.) On February 5, 2013, Smith accepted and signed the January 31, 2013 job offer as a condition of her employment. She also electronically signed the receipt for Respondent’s U.S. 2013 Employee Handbook and EAP. (Jt. Exhs. 2–3.) Smith worked for Respondent as an antimoney laundering operations analyst from about February 19, 2013, until March 28, 2014, when she voluntarily resigned. On March 28, 2014, Echevarria, on her own behalf, and also on the behalf of other similarly situated employees of Respond- CITIGROUP TECHNOLOGY, INC. 509 ent, including Smith and Danielle Lucas (Lucas), Yadira Calde- ron (Calderon), and Kelleigh S. Weeks (Weeks), through coun- sel, filed a demand for arbitration with the American Arbitra- tion Association (the AAA), titled: “Nationwide Class Action Arbitration Submission,” (class arbitration action), along with a “Notice of Filing Notice of Consent to Join,” and notices of “Consent to Join” collective action.1 They sought designation of the action as a collective action and alleged that Respondent violated the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et. seq., by failing to pay overtime premium pay. (Jt. Exh. 5.) On April 14, 2014, the AAA case filing coordinator, Kristen Cottone (Cottone) sent a letter to the representatives of the parties to the class arbitration action, requesting a copy of the complete arbitration agreement so that the AAA could deter- mine whether to proceed with the class action. The letter stated that “[t]he Association requests that either Claimant or Re- spondent provide a contract clause providing for administration by the [AAA].” Cottone also requested any additional docu- ments that “discuss arbitration procedures to be followed, such as an employee handbook,” as well a court order or joint stipu- lation, if any, compelling the dispute to arbitration. (Jt. Exh. 6.) On April 15, 2014, counsel for Respondent sent a letter to the AAA, along with a copy of the EAP, and requested that the AAA reject Echevarria’s demand for designation of the claim as a nationwide collective arbitration action, and instead, only accept her individual claim. (Jt. Exh. 7.) On April 28, 2014, Cottone, on behalf of the AAA, notified the parties that the AAA had received a copy of the EAP, and that “[i]n accord- ance with the AAA’s policy on class arbitrations, we cannot administer this matter as a class action since the agreement between the parties prohibits class claims.” She further advised the parties that they “may proceed with this matter on an indi- vidual basis.” (Jt. Exh. 8.) Thus, as admitted by Respondent, it successfully enforced its EAP. III. DECISION AND ANALYSIS A. Respondent’s Maintenance and Enforcement of its EAP Violates Section 8(a)(1) of the Act The complaint asserts violations of Section 8(a)(1) of the Act. Under Section 8(a)(1), it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 col- lective bargaining or other mutual aid or protection . . .” In D.R. Horton, 357 NLRB 2277, 2277, the Board found that an employer violates Section 8(a)(1) of the Act by im- posing, as a condition of employment, a mandatory arbitration agreement that precludes employees from “filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, 1 Darlene Echevarria, on her own behalf and others similarly situat- ed v. Citigroup, Inc., a Foreign Corporation and Citibank, N.A., Case No. 01–14–0000–0324. arbitral or judicial.” Citing to Spandsco Oil & Royalty Co., 42 NLRB 942, 948–949 (1942), Salt River Valley Water Us- ers Assn., 99 NLRB 849, 853–854 (1952), enfd. 206 F.2d 325 (9th Cir. 1953), and many other cases, the Board noted that such concerted legal action addressing wages, hours, and working conditions has consistently fallen within Section 7’s protections. Most recently, in Murphy Oil USA, Inc., 361 NLRB 774, 774–775, the Board adopted and reaffirmed the rationale and decision in D. R. Horton. The Murphy Oil Board found that the respondent violated Section 8(a)(1) of the Act by requiring its employees to agree to mandatory arbitration agreements requiring them to resolve all employment-related disputes through individual arbitration, and by taking steps to enforce the unlawful agreements in Federal district court when the charging party and three other employees filed a collective action under the FLSA. Id. The complaint here specifically alleges that Respondent vio- lated the Act by maintaining and enforcing the EAP as a condi- tion of its employees’ employment, including that of the Charg- ing Party (Smith), by precluding them from filing any group, class, collective, or other representative action claims, through arbitration or the judicial system, of disputes identified in the EAP concerning wages, hours, and other terms and conditions of employment. First, it is undisputed that Respondent’s EAP has been main- tained as a condition of the newly hired employees’ employ- ment from December 26, 2012, and continuing to the present, as evidenced by the stipulated record. This includes, of course, Smith’s employment. Further, Smith electronically signed the EAP on February 5, 2013, when she accepted Respondent’s employment offer and acknowledged receipt of the principles of employment and the U.S. 2013 Employee Handbook receipt form. (Jt. Exh. 4.) Therefore, I find the EAP was a mandatory rule imposed by Respondent as a condition of employment. As such, the EAP is evaluated in the same manner as any other workplace rule. See D. R. Horton, 357 NLRB 2277, 2281. To determine if such a rule, including a mandatory arbitra- tion policy, violates Section 8(a)(1) of the Act, the Board ap- plies 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, 357 NLRB 2277. Under Lutheran Heritage, the first inquiry is whether the rule explic- itly restricts activities protected by 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 activi- ty; (2) the rule was promulgated in response to [Section 7] activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage, supra at 647. In the instant case, I find that the EAP explicitly restricts activities protected by Section 7, in that it states: Except as otherwise required by applicable law, this Policy applies only to claims brought on an individual basis. Conse- quently neither Citi nor any employee may submit a class ac- tion, collective action, or other representation action for reso- lution under this Policy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510 Further, Respondent admitted, in its answer, to paragraph 4(c) of the complaint that by maintenance of its EAP, it “has pre- cluded employees from filing any group, class, collective, or other representative action claims in arbitration with respect to disputes identified in the [EAP] which concern wages, hours and other terms and conditions of employment.” In addition, Respondent admitted, to paragraph 5(b) of the complaint, that since on or about April 15, 2014, it made efforts to enforce its EAP when it requested that the AAA reject the nation-wide class action submission filed by Echevarria, on her own behalf, and on behalf of other of Respondent’s similarly situated em- ployees, including Smith. (Jt. Exh. 5.) Accordingly, I find that Respondent’s maintenance of its EAP and efforts to enforce it violate the Act because the EAP expressly precludes any class or collective actions. In doing so, I find that Respondent re- stricted the exercise of employees’ Section 7 rights in violation of Section 8(a)(1) of the Act. This finding is fully supported by the Board’s decisions in D. R. Horton and Murphy Oil. B. D. R. Horton and Murphy Oil Are Controlling Respondent insists that this matter is not one to be “decided in a vacuum of [NLRB] precedent,” but “a proceeding that brings into question the jurisdiction of the Board to act in a matter Congress has chosen to regulate through . . . the [FAA] . . . ,” and not the NLRA or Board law. In support of this ar- gument, Respondent presents a litany of recent United States Supreme Court decisions which “have established the broad preemptive sweep of the FAA,” by mandating “that arbitration agreements must be enforced according to their terms.” Re- spondent contends that these decisions “reject the application of other state and federal statutes” in order to deem arbitration agreements invalid in the absence of an express ‘congressional command’ to override the FAA. See (R. Br. citing and discuss- ing, e.g., American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013); CompuCredit, 132 S.Ct. 665, 669 (2012); and Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614, 627 (1985)). In the same vein, Respondent argues that the NLRA has not vested the Board with authority to dictate or guarantee how other courts or agen- cies would or should adjudicate non-NLRA legal claims, whether they be class, collective, joinder of individual claims, or otherwise, citing Board Member Miscimarra’s dissent in Murphy Oil. Respondent also asserts that the Board’s holding in D. R. Horton is incorrect based on its rejection by the U.S. Court of Appeals for the Fifth Circuit in its opinion on appeal of D. R. Horton (737 F.3d 344 (2013)), and based on other federal court opinions. In sum, Respondent urges that I ignore the Board’s decisions in D. R. Horton and Murphy Oil, and instead, follow its interpretation of Supreme Court precedent, Federal court opinions, and Board member dissent. However, I decline to deviate from Board precedent. The Board majority, in both D. R. Horton and Murphy Oil, consid- ered all arguments, and most court decisions, raised and relied on by Respondent, to support a different conclusion, by which I am bound unless and until it is reversed by the Supreme Court. See Pathmark Stores, 342 NLRB 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) (“it is a judge’s duty to apply established Board precedent which the Supreme Court has not reversed,” and “for the Board, not the judge, to determine whether precedent should be varied.”) (citation omitted).2 In American Express Co., supra, the Supreme Court dis- missed claims by multiple merchants that their agreements to arbitrate individual claims as the sole method of resolving dis- putes was invalid, and concluded that when federal statutory claims are involved, such as federal antitrust laws, the FAA’s directive can only be “overridden by a contrary congressional command.”3 However, the Board in D. R. Horton distinguished American Express, finding that it did not involve the substan- tive Section 7 right of employees to engage in collective action, including collective legal action, for mutual aid and protection concerning wages, hours, and work conditions. Although the Supreme Court has upheld the enforcement of individual mutual arbitration agreements in these and other cases, the Board recognizes that the Court has never addressed or resolved the issue of exclusive individual arbitration over class and/or collective actions under the Act. The Board under- stands that the FAA establishes a liberal policy favoring arbitra- tion agreements. D. R. Horton, 357 NLRB 2277, 2284. How- ever, as noted in D. R. Horton, the Supreme Court has “repeat- edly emphasized” that the FAA protects agreements to arbitrate federal statutory claims “so long as ‘a party does not forgo the substantive rights afforded by the statute.’” Id. at 9–10, citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (quoting Mitsubishi Motors Corp., supra at 628.4 Respondent further contends that the Supreme Court in American Express makes clear that it is improper to find a con- gressional command where none exists, and therefore, since none exists in the language or legislative history of the NLRA, there should be no such finding here. However, as stated, the Board decisions in D. R. Horton and Murphy Oil establish that such a command exists in that Section 7 substantively guaran- tees employees the right to engage in collective action, in- cluding collective legal action, for mutual aid and protection concerning wages, hours, and working conditions. For the same reasons, the Supreme Court’s decision in CompuCredit, supra, and other cases cited by Respondent are distinguishable.5 Further, these general consumer litigation and commercial cas- es do not address the central questions of how and to what ex- tent the FAA may be used to interfere with, by way of private agreements, the fundamental substantive right of workers to 2 Respondent’s argument, in its brief, that the Board’s non- acquiescence position is untenable because of Federal Circuit Court opinions rejecting D. R. Horton is without merit. See (R. Br. fn. 4). 3 The merchants in American Express challenged the rates that American Express charged them, and argued that it would only be cost effective to proceed collectively. The Court found that the Federal antitrust laws at issue failed to guarantee “an affordable procedural path to the vindication of every claim.” American Express, supra at 2039. 4 The Board distinguished Gilmer, in that it “addresses neither Sec- tion 7 nor the validity of a class action waiver,” and involved an indi- vidual claim and an arbitration agreement without any language specif- ically waiving class or collective actions. D. R. Horton, 357 NLRB 2277, 2286 fn. 22. 5 The Supreme Court in CompuCredit invalidated an arbitration agreement waiving the ability of consumers to sue a credit card market- er and the card’s issuing bank in court for alleged violations of the Credit Repair Organization Act (CROA). CITIGROUP TECHNOLOGY, INC. 511 engage in concerted activity established and protected by the NLRA—the gravamen of the violation here and in D.R. Hor- ton. Respondent also points to AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011),6 Marmet Health Care Center v. Brown, 133 S.Ct. 1201 (2012) (requirement that courts enforce the parties’ bargain to arbitrate), and other Supreme Court cases to support its argument that the validity of their EAP and class action waiver contained therein must be based only on the FAA. Similarly, the Supreme Court in these cases did not ad- dress the issue of mandatory arbitration agreements in the con- text of individual employment agreements and the well- established substantive right of employees under the NLRA to engage in concerted legal action against their employer. The Murphy Oil Board has reaffirmed, and thoroughly and convinc- ingly explained its rationale as to why D. R. Horton was cor- rectly decided, despite the FAA’s liberal arbitration policy. Thus, Respondent’s argument that the FAA must always over- ride the NLRA in these mandatory arbitration agreement cases fails. The Board in Murphy Oil noted the Supreme Court’s recent confirmation “that the Federal policy favoring arbitration, how- ever, liberal, has its limits. It does not permit a ‘prospective waiver of a party’s right to pursue statutory remedies.’” Mur- phy Oil, 361 NLRB 774, 781, citing Italian Colors, supra, 133 S.Ct. at 2310 (quoting Mitsubishi Motors Corp., supra, at 637) (emphasis in original). In doing so, the Board established that an arbitration agreement that prevents employees from exercis- ing their substantive Section 7 right to pursue legal claims con- certedly to address work conditions in any forum “amounts to a prospective waiver of a right guaranteed by the NLRA,” and is unlawful. Id. at 9. The Board in Murhpy Oil also found that even applying the framework applied by the Fifth Circuit Court of Appeals, D. R. Horton is good law. The Board established that both excep- tions to the FAA’s requirement that arbitration agreements must be enforced according to their terms, apply to cases such as D.R. Horton. First, the Murphy Oil Board found the arbitra- tion agreement in its case “invalid under Section 2 of the FAA, the statute’s savings clause, which provides for the revocation ‘upon such grounds as exist at law or in equity for the revoca- tion of any contract.’” Murphy Oil, 361 NLRB 774, 782, citing 9 U.S.C. § 2. The Board found that such grounds existed in its case, and relied on earlier Supreme Court decisions to establish that, “any individual employment contract that purports to ex- tinguish rights guaranteed by Section 7 of the National Labor Relations Act is unlawful.” Id. at 782, citing National Licorice, Co. v. NLRB, 309 U.S. 350, 361 (1940), and J. I. Case, Co. v. NLRB, 321 U.S. 332, 337 (1944). Second, the Board agreed with the D. R. Horton Board’s opinion regarding the second exception of the FAA’s mandate, that Section 7 of the Act does constitute a “contrary congres- sional command” overriding the FAA. It saw “no compelling basis for the court’s conclusion that to override the FAA, Sec- 6 In AT&T Mobility LLC v. Concepcion, the Supreme Court found the FAA preempted California state law making class-action waivers in consumer adhesion contracts unconscionable. tion 7 was required to explicitly provide for a private cause of action for employees, a right to file a collective legal action, and the procedures to be employed.” Further, the Board em- phasized the substantive right to engage in collective legal ac- tivity “plainly authorized by the broad language of Section 7, as it has been authoritatively construed by the Supreme Court in [Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978)] as part of the protected ‘resort to administrative and judicial forums.’” Mur- phy Oil, 361 NLRB 774, 782. All other cases cited by Re- spondent in support of its positions favoring the FAA over the NLRA and discrediting Board precedent are not specifically addressed here as they are so thoroughly explained in D. R. Horton and Murphy Oil. C. Respondent’s Remaining Arguments Are Unsupported Respondent’s assertion that unrepresented employees are on an equal playing field with unions that, on behalf of its mem- bers, can voluntarily agree to waive a judicial forum in favor of arbitration is without merit. The Act clearly recognizes the inequality of bargaining power between employees without benefit of a collective-bargaining agreement or union represen- tation and employers who are corporately or otherwise orga- nized. See 29 U.S. C. § 151. Therefore, a mandatory arbitra- tion agreement, such as Respondent’s EAP, which embodies a waiver restricting employees’ substantive rights under the Act, “is the antithesis of an arbitration agreement providing for un- ion representation in arbitration that was reached through the statutory process of collective bargaining . . . ” Murphy Oil, 361 NLRB 774, 7873. Although the D.R. Horton and Murphy Oil Boards recognize the importance of such balancing of pow- er under the Act, neither claims the inequality in bargaining power between individual employees and employers is the only reason to invalidate mandatory arbitration agreements. Respondent argues that its EAP is distinguishable from the agreement that the Board found unlawful in D. R. Horton be- cause it specifically states that it does not “exclude the National Labor Relations Board from jurisdiction over disputes covered by the [Act] . . . ” Similarly, Respondent claims that its EAP would not preclude the U.S. Department of Labor, or similar state agency, from seeking class-wide or collective action on behalf of the Charging Party. See (R. Br., fn. 2). However, there is nothing in Respondent’s EAP which allows for em- ployees, past or present, to pursue in any way, even as parties in an FLSA or DOL action, class, joint, or collective claims in arbitration or court. Moreover, Respondent’s EAP “makes arbitration the required and exclusive forum for the resolution of all disputes arising out of or in any way related to employ- ment based on legally protected rights.” (Jt. Exh. 1.) It does not leave open any judicial forum, as required by the Board in D. R. Horton, nor does it allow for collective or class arbitra- tion. See D. R. Horton, 357 NLRB 2277, 2288. Of note, the Murphy Oil Board rejected a similar argument where a revised arbitration agreement stated that employees would not waive their Section 7 right to file a class or collective action in court, but maintained its original language under which employees “explicitly waive their right” to file or be a party or class mem- ber in a class or collective action in arbitration or other forum. See Murphy Oil, 361 NLRB 774, 792. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512 Respondent also asserts that the Board has no authority to order it to take action regarding litigation initiated by the Charging Party in another forum, and which involves another federal statute, the FLSA. The Board, in D. R. Horton and Murphy Oil, explained how the Board and court decisions rec- ognized this authority in cases, such as this one, where manda- tory arbitration agreements “restrict the exercise of the substan- tive right to act concertedly for mutual aid or protection that is central to the [NLRA].” Murphy Oil, 361 NLRB 774, 778, citing D. R. Horton, 357 NLRB 2277, 2278–2279 & fn. 4. The Murphy Oil Board recognized that while the underlying claims before it involved the FLSA, the NLRA “is the source of the relevant, substantive right to pursue those claims concertedly.” Id. at 5. Further, the Board and courts have held that the filing of FLSA cases, and seeking support of others in pursuit of those cases, constitutes the kind of concerted activity protected by the Act. See, Murphy Oil, id., citing Spandso Oil & Royalty Co., 42 NLRB 942, 949–950 (1942); Salt River Valley Water Users’ Assn. v. NLRB, 206 F.2d 325 (9th Cir. 1953). Next, Respondent contends that even if the EAP was mandato- ry, it did not violate the Act because the use of class action pro- cedures is not a substantive right. Similarly, Respondent denies that Smith, Echevarria, and other similarly situated employees, engaged in concerted activities with other employees for the purpose of mutual aid and protection by filing a nationwide col- lective action arbitration submission before the AAA on about March 28, 2014. This contention fails on both counts. First, the Board has made clear that the Act does not create or ensure a right to “class certification or the equivalent,” but a right “to pursue joint, class, or collective claims if and as available, with- out the interference of an employer-imposed restraint.” Murphy Oil, 361 NLRB 774, 775 citing D. R. Horton, 357 NLRB 2277, 2277, 2286 & fn. 14. Second, Smith and other employees joined the nationwide class action submission filed by Echevarria, as is evidenced by the “Notice of filing Notice of Consent to Join” and “Notices of Consent to Join Collective Action” signed by Echevarria, Smith, Lucas, Calderon, and Weeks. (Jt. Exh. 5.) There is simply no evidence in this case that Smith, Eschevarria, and the other des- ignated, similarly situated employees were acting on their own behalf. Thus, I reject Respondent’s argument that concerted activity in this case is merely presumed, and not based on actual evidence as required by the Board, see Meyers Industries & Prill, 268 NLRB 493 (Meyers I) and Meyers Industries & Prill, 281 NLRB 882 (1986) (Meyers II). Respondent also contends, in the same context, that since Smith was no longer an employee at the time she filed the un- derlying charge, she could not have been engaged in protected concerted activity when she submitted a demand for class-wide arbitration, or have joined a putative class action for the pur- pose of mutual aid or protection. Respondent relies on Statuto- ry Engineers Local 39, 346 NLRB 336, 347 fn. 9, in which the Board affirmed an administrative law judge’s decision finding that Section 2(3) of the Act does not include in its definition of employees former employees who are filing personal lawsuits against their former employer and who have lost their jobs for reasons other than a labor dispute or because of an unfair labor practice. Accepting this argument would mean that Smith would not have standing to have filed the underlying charge, which she clearly does. Unlike this case, in Statutory Engi- neers, supra, the affected employee was found to have been terminated for good cause, and had filed a personal lawsuit. Here, Smith did not file a personal lawsuit. Moreover, the Act does not place such a limitation on who may file a charge. See Sec. 10 of the Act and NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17 (1943). It is well established that the term “employee” under the Act includes former employees of the employer. See Section 2(3) of the Act; Redwood Empire, Inc., 296 NLRB 369, 391 (1989); Waco, Inc., 273 NLRB 746, 747 fn. 8 (1984). Next, Respondent asserts this claim should be barred due to the “Voluntariness Carve-Out” in footnote 28 of D. R. Horton. In other words, Respondent argues that because Smith, unlike the charging party in D. R. Horton, signed and agreed to the terms of the EAP when she applied for employment, she was fully informed, and voluntarily agreed to individually arbitrate any employment disputes with Respondent. However, as Re- spondent acknowledged, the charging party in Murphy Oil, like Smith, did in fact sign the arbitration agreement when she ap- plied for employment. Although the Murphy Oil Board did not specifically address the matter of voluntariness, it clearly estab- lishes that it matters not when an employee signs a mandatory arbitration agreement forfeiting his or her Section 7 substantive rights. Next, Respondent argues that this claim is untimely under Section 10(b) of the Act because Respondent’s alleged actions causing Smith to be bound by its EAP occurred more than six months before she filed her charge on June 8, 2014. Respond- ent contends that the 6-month statute of limitations commenced in February 13, 2013, when Smith began employment with Respondent, and agreed to its EAP. However, this argument is without merit under controlling case law holding that a continu- ing violation exists as long as the rule is still being enforced at the time the charge is filed. See, e.g., Carney Hospital, 350 NLRB 627, 640 (2007). Further, Respondent did not attempt to enforce its EAP until April 14, 2014, when it sent a letter to the AAA requesting that the class-action arbitration submission be rejected. See Alamo Cement Co., 277 NLRB 1031, 1036–1037 (1985) (not time barred where enforcement allegation could not have been litigated sooner). Finally, in its answer, Respondent relied on the Supreme Court decisions Bill Johnson’s v. NLRB, 461 U.S. 731, 741 (1983), and BE&K Construction, 536 U.S. 516 (2002), to argue that its request for the AAA to preclude class arbitra- tion pursuant to its EAP is constitutionally protected by the First Amendment, and should therefore be stayed pending the final outcome of Smith’s FLSA claim. This argument is admit- tedly based on Respondent’s belief that its EAP and enforce- ment thereof are lawful. As Respondent acknowledges, the Murphy Oil Board rejected this argument and reliance on Bill Johnson’s and BE&K because it found the underlying arbitra- tion agreements and enforcement of those agreements unlawful. Further, the First Amendment does not protect the right to file lawsuits or motions that have an illegal objective under the Act. See Murphy Oil, 361 NLRB 774, 793–794; Allied Trades Council (Duane Reade), 342 NLRB 1010, 1013 fn. 4 (2004), CITIGROUP TECHNOLOGY, INC. 513 citing Bill Johnson’s, supra at 738. I reject these First Amend- ment arguments, as well as Respondent’s claim that its efforts did not constitute enforcement of its EAP. I find that Respond- ent’s efforts to enforce its unlawful EAP, by petitioning the AAA to reject the nation-wide class action claim pursuant to the EAP, clearly had an illegal basis pursuant to the Board de- cisions in D.R. Horton and Murphy Oil. Based on the foregoing, I find that Respondent’s mainte- nance of its EAP and enforcement efforts through the AAA violate Section 8(a)(1) of the Act as alleged in complaint. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(a)(1) of the Act by main- taining the EAP, and by enforcing that policy by moving to compel individual arbitration of the Charging Party’s class- action submission before the AAA. 3. Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that 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. As I have concluded that the EAP is unlawful, the rec- ommended order requires that Respondent revise or rescind it and advise its employees in writing that said rule has been so revised or rescinded. Because Respondent utilized the EAP on a corporate-wide basis, Respondent shall post a notice at all locations where the EAP, or any portion of it requiring all and/or enumerated employment-related disputes to be sub- mitted to individual arbitration, was in effect. See, e.g., U-Haul Co. of California, supra, fn. 2 (2006); D. R. Horton, supra, at 2293. Respondent is also ordered to distribute appropriate remedial notices to its employees electronically, such as by email, posting on an intranet or internet site, and/or other ap- propriate electronic means, if it customarily communicates with its employees by such means. J. Picini Flooring, 356 NLRB 11 (2010). I recommend Respondent be required to reimburse Charging Party Andrea Smith and other grievants for any litiga- tion and related expenses, with interest, to date and in the fu- ture, directly related to Respondent’s filing its request/petition for the AAA to reject their demand for a nationwide collective or class arbitration in Darlene Echevarria et al. v. Citigroup, Inc., et al. (Case No. 01–14–0000–0324). Determining the applicable rate of interest on the reimbursement will be as outlined in New Horizon, 283 NLRB 1173 (1987) (adopting the Internal Revenue Service rate for underpayment of Federal taxes). Interest on all amounts due to Ms. Smith shall be computed on a daily bases as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended.7 ORDER Respondent, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining an EAP that precludes employees from fil- ing and/or maintaining class or collective actions in any arbitral or judicial forum. (b) Enforcing (or attempting to enforce) the EAP to prohibit class or collective actions; (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Rescind or revise the EAP, in all forms and places, to make it clear to employees that the policy does not require them, as a condition of their employment, to waive their right to maintain employment-related class or collective actions in all forums, whether arbitral or judicial. (b) Notify the employees of the rescinded or revised EAP, to include providing them with a copy of any revised policies, acknowledgement forms or other related documents, or specific notification that the EAP has been rescinded. (c) Reimburse Smith and all grievants for all reasonable ex- penses and legal fees, if any, incurred in opposing Respond- ent’s request/petition to compel individual arbitration before the AAA, with interest, in Darlene Echevarria et al. v. Citigroup, Inc., et al. (Case No. 01–14–0000–0324). (d) Ensure that the Charging Party Andrea Smith, and all similarly situated employees, have a forum to litigate or arbitrate their class complaint by either moving the AAA, jointly with the Charging Party upon request, to vacate its decision to not administer the matter as a class action, or permitting her/their claims, upon request, to be arbitrated on a class-wide basis. (e) Within 14 days after service by the Region, post at its facility in Tampa, Florida, and in all facilities where it has maintained and/or enforced the EAP, copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by Respondent’s authorized representative, shall be posted by R espondent and maintained for 60 consecutive days in conspicuous places including all places where notic- es to employees are customarily posted. In addition to phys- ical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or 7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514 an internet site, and/or other electronic means, if Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by Respondent to en- sure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 26, 2012. (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.