Employers Resource

644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 59 Employers Resource and Talina Torres. Case 31– CA–097189 December 17, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On May 18, 2015 Administrative Law Judge Jeffrey D. Wedekind issued the attached decision. The Re- spondent 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 judge found, applying the Board’s decisions in D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in rel- evant part No. 14-60800, 2015 WL 6457613, ___ F.3d. ___ (5th Cir. 2015), that the Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing an arbi- tration provision that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The Board has considered the decision and the record in light of the exceptions and briefs1 and, based on the judge’s application of D. R. Horton and Murphy Oil, supra, we affirm the judge’s rulings, findings2 and con- 1 We deny the Respondent’s request for oral argument as the record, exceptions, and briefs adequately present the issues and positions of the parties. 2 We disagree with our dissenting colleague’s argument that manda- tory arbitration agreements do not violate the Act for the reasons stated in Murphy Oil, 361 NLRB 774, 774–794. The Respondent argues that the complaint is time barred by Sec. 10 (b) because the initial unfair labor practice charge was filed and served more than 6 months after the Charging Party, Talina Torres, signed and became subject to the arbitration provision. We reject this argument, as did the judge, because the Respondent continued to maintain the unlaw- ful arbitration provision during the 6-month period preceding the filing of the initial charge. The Board has long held under these circumstanc- es that maintenance of an unlawful workplace rule, such as the Re- spondent’s arbitration provision, constitutes a continuing violation that is not time barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB 1452, 1452 (2015); Neiman Marcus Group, Inc., 362 NLRB 1286, 1287 fn. 6 (2015); Cellular Sales of Missouri, LLC, 362 NLRB 241, 241 fn. 7 (2015). It is equally well established that an employer’s enforcement of an unlawful rule, like the arbitration provision here, independently violates Sec. 8(a)(1). See Murphy Oil, 792–794. The Respondent enforced its arbitration provision on January 8, 2013, within the rele- vant 6-month period before the charge was filed. To the extent the Respondent argues that Torres was not engaged in concerted activity in filing a class action wage and hour lawsuit in Los Angeles Superior Court, we reject that argument. As the Board made clear in Beyoglu, 362 NLRB 1238 (2015), “the filing of an employ- ment-related class or collective action by an individual is an attempt to clusions, and adopt the recommended Order as modified and set forth in full below.3 ORDER The National Labor Relations Board orders that the Respondent, Employers Resource, San Marcos and Tustin, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining and/or enforcing a mandatory arbitra- tion provision that requires employees, as a condition of initiate, to induce, or to prepare for group action and is therefore con- duct protected by Section 7.” Id., slip op. at 2. See also D. R. Horton, 357 NLRB 2277, 2279. We reject the Respondent’s argument that because Torres was no longer an employee at the time she filed her charge, the complaint based on her charge should be dismissed. The Board has long held that the broad definition of “employee” contained in Sec. 2(3) of the Act covers former employees. See Briggs Mfg. Co., 75 NLRB 569, 571 (1947). Accord: Leslie’s Poolmart, Inc., 362 NLRB 1509, 1509 fn. 2 (2015); PJ Cheese, Inc., 362 NLRB 1452, 1454 fn. 9. Moreover, Sec. 102.9 of the Board’s Rules and Regulations provides that a charge may be filed by “any person,” without regard to whether that person is a 2(3) employee. The Respondent’s claim that the arbitration provision is lawful be- cause it does not expressly bar class or collective arbitration fails under our decision in Countrywide Financial Corp., 362 NLRB 1331 (2015). In Countrywide, the arbitration agreement at issue was also silent with respect to prohibition of class or collective claims. The Board found that the employers’ filing in Federal district court a motion to compel individual arbitration constituted unlawful enforcement of the arbitra- tion agreement and “completely den[ied] employees their Section 7 right of access to all other forums where they could seek to litigate their employment claims collectively.” Id. Likewise, here, the Respondent responded to Torres’ State class action suit by filing a motion to compel individual arbitration, arguing that the court must enforce the arbitra- tion agreement by its express terms and not impose any class arbitration “which was never agreed to by the parties.” Consistent with our deci- sion in Countrywide, supra, we find that the Respondent’s filing of the motion to compel effectively denied Torres her Sec. 7 right to all other forums where she could seek to litigate her collective claims, and that such conduct is precisely what the Board enjoined in D.R. Horton and Murphy Oil. See also Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (a rule that does not expressly restrict protected activity is nevertheless unlawful if it has been applied to restrict protected activi- ty). We likewise reject, for the reasons stated by the judge, the Respond- ent’s remaining arguments. Specifically, we finding lacking in merit its contentions that D.R. Horton and Murphy Oil are distinguishable from this case because: (1) the Respondent was not Torres’s common-law employer; (2) the arbitration provision was not a mandatory condition of employment; (3) it did not maintain the arbitration agreement; and (4) Torres is not precluded from pursuing a collective action in State court against her former employer, Beth’s Kitchen, Inc. 3 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language, including the requirements that the Respondent post a remedial notice at its own facility and distribute it electronically if it customarily communicates with employees in that manner. See Dr. Pepper Snapple Group, 357 NLRB 1804 (2011). We shall substitute a new notice to conform to the Order as modified. EMPLOYERS RESOURCE 645 employment, to waive the right to maintain class or col- lective actions in all forums, whether arbitral or judicial. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the mandatory arbitration provision in all of its forms, or revise it in all of its forms to make clear to employees that the arbitration provision does not con- stitute a waiver of their right to maintain employment- related joint, class, or collective actions in all forums. (b) Notify all applicants and current and former em- ployees who were required to sign or otherwise become bound to the mandatory arbitration provision in any form that it has been rescinded or revised and, if revised, pro- vide them a copy of the revised provision. (c) Notify the Superior Court of the State of California, County of Los Angeles, in LASC Case BC488455 that it has rescinded or revised the mandatory arbitration provi- sion upon which it based its motion to stay Talina Torres’ collective lawsuit and to compel individual arbi- tration of her claim, and inform the court that it no longer opposes the lawsuit on the basis of the arbitration provi- sion. (d) In the manner set forth in the judge’s decision, re- imburse Talina Torres for any reasonable attorneys’ fees and litigation expenses that she may have incurred in opposing the Respondent’s motion to stay the collective lawsuit and compel individual arbitration. (e) Within 14 days after service by the Region, dupli- cate and mail, at its own expense, the attached notice marked “Appendix” to all current and former employees who have been covered by its employment agreement and performed work for its clients at any time since Jan- uary 8, 2013. (f) Within 14 days after service by the Region, post at its facilities in San Marcos and Tustin, California, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Region, after being signed by the Respondent’s authorized representative, shall be posted and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, 4 If this Order is enforced by a judgment of the 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.” if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. MEMBER MISCIMARRA, dissenting. In this case, my colleagues find that the Respondent’s Employment Agreement (the Agreement) violates Sec- tion 8(a)(1) of the National Labor Relations Act (the Act or the NLRA) because the Respondent has applied it to require individual arbitration of non-NLRA employment claims.1 Talina Torres signed the Agreement, and later she filed a class-action lawsuit against the Respondent and Beth’s Kitchen, Inc. in State court alleging Califor- nia labor law violations. In reliance on the Agreement, the Respondent filed a Notice of Motion and Motion to Compel Individual Arbitration, Strike Class Allegations, and Stay or Dismiss Proceedings (Motion to Compel).2 My colleagues find that the Respondent thereby unlaw- fully enforced its Agreement. I respectfully dissent from these findings for the reasons explained in my partial dissenting opinion in Murphy Oil USA, Inc.3 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 the NLRA.4 1 The Agreement requires that non-NLRA employment claims be re- solved through arbitration, but it does not expressly prohibit class or collective arbitration. 2 The Respondent provided payroll and other personnel services to Beth’s Kitchen, where Torres was employed as a server. The court granted the Respondent’s motion as to Torres’ claims against the Re- spondent, but denied it as to her claims against Beth’s Kitchen. 3 361 NLRB 774, 798–808 (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. 2015). 4 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 the NLRA, Sec. 7. See Murphy Oil, 361 NLRB 774, 798–790 (Member Miscimarra, 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 requirements 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). Here, Torres filed the lawsuit by herself, and there is no evidence that she ever sought the support of any other employee. Accordingly, the record fails to establish that Torres engaged in protected concerted activity. See Beyoglu, above (Member DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646 However, Section 8(a)(1) of the Act does not vest author- ity in the Board to dictate any particular procedures per- taining 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 contrary, as discussed in my partial dissenting opinion in Murphy Oil, the NLRA, Section 9(a) protects the right of every employee as an “individual” to “present” and “ad- just” grievances “at any time.”5 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;6 (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;7 and (iii) Miscimarra, dissenting) (finding that employee’s individual act of filing a collective action was not concerted activity). 5 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, above at 804–805 (Member Miscimarra, dissenting in part). 6 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.”). 7 The Fifth Circuit has twice denied enforcement of Board orders in- validating 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. See Murphy Oil, 361 NLRB 774, 807 (Member Miscimarra, dissenting in part); id., 805 fn. 5 (Member Johnson, dissenting) (collecting cases); see also Patterson v. Raymours Furniture Co., 96 F.Supp., 3d 71 2015 WL 1433219 (S.D.N.Y. 2015); Nanavati v. Adecco USA, Inc., 99 F.Supp.3d 1072 2015 WL 1738152 (N.D. Cal. Apr. 13, 2015), motion to certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. enforcement of a class-action waiver as part of an arbitra- tion agreement is also warranted by the Federal Arbitra- tion Act (FAA).8 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. Because I believe the Respondent’s Agreement was lawful under the NLRA, I would find it was similarly lawful for the Respondent to file a motion in State court seeking to enforce the Agreement.9 It is relevant that the State court that had jurisdiction over the non-NLRA claims granted the Respondent’s motion to compel arbi- tration. That the Respondent’s motion was reasonably based is also supported by the multitude of court deci- sions that have enforced similar agreements.10 As the Fifth Circuit recently observed after rejecting (for the second time) the Board’s position regarding the legality of class waiver agreements: “[I]t is a bit bold for [the Board] to hold that an employer who followed the rea- soning of our D. R. Horton decision had no basis in fact or law or an ‘illegal objective’ in doing so. The Board June 30, 2015); Brown v. Citicorp Credit Services, No. 1:12-cv-00062- BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsid- eration of prior determination that class waiver in arbitration agreement violated NLRA). 8 For the reasons expressed in my Murphy Oil partial dissent, and those thoroughly explained in former Member Johnson’s partial dissent in Murphy Oil, the FAA requires that the arbitration agreement be enforced according to its terms. Murphy Oil, above at 807 (Member Miscimarra, dissenting in part); id., at 822–831 (Member Johnson, dissenting). 9 The Agreement was silent as to whether arbitration may be con- ducted on a class or collective basis. In finding the Respondent’s Mo- tion to Compel Individual Arbitration unlawful, my colleagues rely on Countrywide Financial Corp., 362 NLRB 1331 (2015). In Country- wide Financial, a Board majority decided that the employer violated the Act by moving to compel individual arbitration based on an arbitra- tion agreement that, like the Respondent’s, was silent regarding the arbitrability of class and collective claims. For the reasons stated in Member Johnson’s dissent in Countrywide Financial, however, id., at 1339–1341, the Board’s decision in that case is in conflict with the FAA and Supreme Court precedent construing that statute. The Court has held 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.” Stolt-Nielsen S.A. v. AnimalFeeds Interna- tional Corp., 559 U.S. 662, 684–685 (2010) (emphasis in original). Obviously, where an arbitration agreement is silent regarding class arbitration, there is no such contractual basis. Thus, the Respondent’s motion to compel individual arbitration was “firmly grounded in the Supreme Court’s FAA jurisprudence.” Id., slip op. at 9 (Member John- son, dissenting). 10 See, e.g., Murphy Oil USA, Inc. v. NLRB, above; Johnmohammadi v. Bloomingdale’s, Inc., 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). EMPLOYERS RESOURCE 647 might want to strike a more respectful balance between its views and those of circuit courts reviewing its or- ders.”11 I also believe that any Board finding of a viola- tion based on the Respondent’s meritorious State court motion to compel arbitration would improperly risk in- fringing 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, 808–808. Finally, for similar reasons, I believe the Board cannot properly require the Respondent to reim- burse the Charging Party for its attorneys’ fees in the circumstances presented here. Murphy Oil, above at 808. Accordingly, I respectfully dissent. 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 and/or enforce a mandatory ar- bitration provision that requires our employees, as a con- dition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the mandatory arbitration provision in all of its forms, or revise it in all of its forms to make clear that the arbitration provision does not constitute a waiver of your right to maintain employment-related joint, class, or collective actions in all forums. WE WILL notify all applicants and current and former employees who were required to sign or otherwise be- come bound to the mandatory arbitration provision in all of its forms that the arbitration provision has been re- 11 Murphy Oil USA, Inc. v. NLRB, above, at fn 3. scinded or revised and, if revised, WE WILL provide them a copy of the revised provision. WE WILL notify the court in which Talina Torres filed her collective lawsuit that we have rescinded or revised the mandatory arbitration provision upon which we based our motion to dismiss her collective lawsuit and compel individual arbitration, and WE WILL inform the court that we no longer oppose Talina Torres ‘collective lawsuit on the basis of that provision. WE WILL reimburse Talina Torres for any reasonable attorneys’ fees and litigation expenses that she may have incurred in opposing our motion to dismiss her collective lawsuit and compel individual arbitration. EMPLOYERS RESOURCE The Board’s decision can be found at www.nlrb.gov/case/31-CA-097189 or by using the QR code below. 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. Amanda W. Dixon, Esq., for the General Counsel. Jennifer L. Santa Maria, Esq. (Ogletree, Deakins, Nash, Smoak & Steward, P.C), for the Respondent. Shayna E. Dickstein, Esq. (Matern Law Group), for the Charg- ing Party. DECISION STATEMENT OF THE CASE JEFFREY D. WEDEKIND, Administrative Law Judge. This is another case involving an alleged unlawful mandatory arbitra- tion clause. The Charging Party is Talina Torres, who was employed as a server by Beth’s Kitchen, Inc. (BK) from Sep- tember 2009 until she was laid off for lack of work in June 2011, and who subsequently filed a wage and hour suit in Cali- fornia superior court “on behalf of herself and all other persons similarly situated” in July 2012. The Respondent is Employers Resource (ER), a self-described “professional employer organi- zation” (PEO) that provided payroll and other personnel ser- vices to BK and other employers during the relevant period, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648 and was named along with BK as a defendant in Torres’ class action suit.1 The subject mandatory arbitration clause is contained in the standard “Employment Agreement” that ER provided to BK and other California clients to use in hiring new employees. The provision is silent about whether such wage and hour claims could be arbitrated on a collective or class basis.2 Nev- ertheless, it is undisputed that, on January 8, 2013, ER moved the State court to compel individual arbitration of Torres’ class- action suit against it pursuant to that provision, citing the Su- preme Court’s holding in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010), that an implicit agreement to authorize class arbitration may not be inferred from the contract’s silence on the matter. The instant complaint alleges that, by filing the foregoing motion (which the court granted), ER unlawfully maintained and enforced the mandatory arbitration provision to restrict the right of employees under the National Labor Relations Act to engage in concerted legal action. In support, the General Counsel cites the Board’s recent decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014). The Board in that case reaffirmed its prior decision in D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and held that the respondent employer violated Section 8(a)(1) of the Act by requiring its employees to sign an agreement, as a condition of employment, that expressly barred them from pur- suing collective or class claims either in court or in arbitration, and by seeking to enforce that agreement in court by moving to compel individual arbitration of the employees’ pending collec- tive and class wage and hour claims. ER contends that the Board lacks jurisdiction over the matter because BK was Torres “true employer” and because Torres was no longer an “employee” within the meaning of the Act at 1 BK and its alleged successor in interest Freshlunches, Inc. were al- so named respondents in the original complaint that issued in this mat- ter on January 30, 2014 (GC Exh. 1(j)). However, the allegations against BK and Freshlunches were subsequently settled (GC Exh. 1(q); Tr. 14). Accordingly, the amended complaint names only ER as a respondent (GC Exh. 1(aa)). 2 In relevant part, the arbitration provision states: Employee agrees that any claim, dispute and/or controversy (includ- ing, but not limited to any claims of discrimination and harassment) that either Employee or Employers Resource (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) may have against the other, or which Employee would have against the Worksite Employer (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) which would otherwise require or allow resort to any court or other governmental dispute resolution forum arising from, related to, or having any rela- tionship or connection whatsoever with Employers Resource and/or the Worksite Employer, whether based on tort, contract, statutory, or equitable law, or otherwise, (with the sole exception of claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under the California Workers’ Compensation Act, and Em- ployment Development Department claims) shall be submitted to and determined exclusively by binding arbitration under the Federal Arbi- tration Act . . . . [Jt. Exh. 5.] the time she filed her lawsuit.3 Alternatively, ER argues that the allegations are without merit because, unlike in Murphy Oil and D. R. Horton, Torres and other employees were not re- quired to sign the employment agreement as a condition of employment, the arbitration provision does not expressly bar class or collective arbitration, and Torres filed her lawsuit by herself, without the support or authorization of any other em- ployees, and was therefore not engaged in protected “concert- ed” activity under the Act.4 A hearing to address the foregoing issues was held on April 6 in Los Angeles. Thereafter, on May 11, the General Counsel, Charging Party Torres, and Respondent ER filed posthearing briefs.5 After carefully considering those briefs and the entire record, for the reasons set forth below, I find that ER violated the Act as alleged. I. WHETHER ER IS AN “EMPLOYER” LIABLE UNDER THE ACT The record supports ER’s contention that BK was Torres’ primary or worksite employer. Although the employment agreement stated that ER was a party to the agreement and that Torres was a “co-employee” of both BK and ER,6 BK alone interviewed, hired, trained, scheduled, and supervised Torres, and determined her wages and benefits (GC Exh. 2; Tr. 25–27, 31–32, 55–56). Indeed, there is no evidence that Torres ever had any direct contact with any ER personnel. However, the General Counsel’s theory of violation does not turn on whether or to what extent ER was an employer of Torres. Indeed, the General Counsel made clear at the hearing that this is not the theory. Rather, the General Counsel’s theory is that ER is liable under the Act because it is an employer en- gaged in commerce generally and because of its particular ac- tions with respect to the mandatory arbitration employment agreement—specifically, preparing the agreement and provid- ing it to BK, making itself a party to the agreement, and assert- ing to the State court that the agreement barred class or collec- 3 ER does not dispute, and the record establishes, that the Board’s commerce standards for asserting jurisdiction are satisfied. See Tr. 58. Although ER contends that the underlying unfair labor practice charge was untimely filed by Torres more than 6 months after she signed the employment agreement, the contention is without merit. It is well established that an 8(a)(1) violation may be found when an unlawful rule or policy is maintained or enforced within 6 months of the charge, regardless of when the rule or policy became effective. See Cellular Sales of Missouri, LLC, 362 NLRB 241, 241 (2015), and cases cited there. Here, the original charge was filed and served on ER on January 24 and 29, 2013, respectively (GC Exh. 1(g), (i)), less than a month after ER filed the alleged unlawful motion to compel individual arbitra- tion. 4 ER also argues that the Board’s decisions in Murphy Oil and D. R. Horton are wrong. However, this is an argument for the Board and the reviewing courts to address. See D. L. Baker, Inc., 351 NLRB 515, 529 fn. 42 (2007); and Pathmark Stores, 342 NLRB 378 fn. 1 (2004). 5 In evaluating the issues presented in this case, I have not consid- ered or relied on any of the nonrecord exhibits attached to the Charging Party’s brief. 6 Jt. Exh. 5. See also GC Exh. 3, Torres’ June 15, 2011 termination notice, which states that she was being “terminated from . . . employ- ment with Employers Resource” for lack of work. EMPLOYERS RESOURCE 649 tive arbitration of Torres’ wage and hour claims against it. (See Tr. 12–13, 27–31, 43; and GC Br. at 11–15.)7 The General Counsel’s theory is well supported by Board and court precedent. See New York New York Hotel & Casino, 356 NLRB 907, 912–913 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 133 S.Ct. 1580 (2013), and cases cited there (holding, in a wide variety of circumstances, that an employer may properly be held accountable for restricting or interfering with the protected rights of employees regardless of whether it is an employer of those employees). Contrary to ER’s conten- tion, there is no rational basis to conclude that this precedent is inapplicable to the particular circumstances here. Accordingly, I find that ER is properly named as a respondent employer in the complaint. II. WHETHER TORRES IS AN “EMPLOYEE” COVERED BY THE ACT ER contends that Torres is not an “employee” covered by the Act because she was not terminated by BK “as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice,” as provided in Section 2(3) of the Act. However, Section 2(3) of the Act does not state that for- mer employees of an employer are only covered by the Act in such circumstances. Further, it states that the term “employee” shall include “any employee, and shall not be limited to the employees of a particular employer, unless [the Act] explicitly states otherwise.”8 The Board has therefore interpreted the term broadly to encompass members of the working class gen- erally, including individuals in circumstances similar to those here. See Cellular Sales of Missouri, LLC, 362 NLRB 241, 241 fn. 3 & JD. at 6–7 (2015) (finding that the charging party was an “employee” notwithstanding that he filed his class ac- tion FLSA suit against the employer after being terminated for unrelated reasons). Accordingly, I find that Torres is an “em- ployee” covered by the Act. III. WHETHER THE EMPLOYMENT AGREEMENT WAS A CONDITION OF EMPLOYMENT ER’s chief operations officer, Keith Kuznitz, testified that ER’s clients, including BK, were not required to use the em- 7 The General Counsel asserts (Br. 14) that ER was actually the sole party to the agreement with Torres. However, the first line of the agreement states that it “is entered into by and between the undersigned employee (Employee), Employers Resource, and the entity to whom Employee regularly reports (hereinafter the ‘Worksite Employer’).” 8 In full, Sec. 2(3) states: The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchap- ter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any cur- rent labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employ- ment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual em- ployed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amend- ed from time to time, or by any other person who is not an employer as herein defined. ployment agreement, and that BK’s employees did not actually sign the employment agreement until after their employment commenced. However, the record as a whole clearly estab- lishes otherwise. ER’s “Client Service Agreement” with BK specifically stated that “no employee of [BK] will be covered by this Agreement, or will become a co-employee of [ER], until [BK] has completed and delivered to [ER], an enrollment pack- et for that individual.” It also prohibited BK from altering the terms of the employment agreement without ER’s written au- thorization. (GC Exh. 2, secs. 1, 8.b.) Further, it is undisputed that the employment agreement was included in the “New Em- ployee Hiring Information Packet” ER provided to BK. Also included in the new-hire packet were a W-4 tax withholding form and an I-9 employment eligibility verification form. The cover page to the packet “instruct[ed]” the employee to “sign” the “employment agreement” and W-4 and I-9 forms “prior to starting work,” and stated that the company would be “unable to process payroll unless these forms are properly completed.” Consistent with these written instructions, Torres credibly testi- fied that a BK manager told her she had to sign the documents, including the employment agreement, in order to get paid, and that she did, in fact, sign the employment agreement before she started working. (Jt. Exhs 1–5; Tr. 19–20, 23–24, 37.)9 Ac- cordingly, in agreement with the General Counsel, I find that, like the employees in Murphy Oil and D.R. Horton, Torres was required by ER and BK to sign the employment agreement containing the mandatory arbitration provision as a condition of employment.10 IV. WHETHER THE EMPLOYMENT AGREEMENT BARS CLASS OR COLLECTIVE ARBITRATION As discussed above, unlike in Murphy Oil and D.R. Horton, the mandatory arbitration provision here does not expressly bar class or collective arbitration. However, ER argued in its suc- cessful January 2013 motion to the State court that, under Stolt- Nielsen, the provision implicitly or effectively does so. See Jt. Exhs. 8 and 10. Accordingly, in agreement with the General Counsel, I find that Murphy Oil and D. R. Horton are not mate- rially distinguishable, and that the mandatory arbitration provi- sion here likewise violates Section 8(a)(1) of the Act. See Lu- theran Heritage Village-Livonia, 343 NLRB 646 (2004) (a rule that does not expressly restrict protected activity is nevertheless unlawful if it has been applied to restrict protected activity); and Chesapeake Energy Corp., 362 NLRB 681 (2015) (Luther- an Heritage test is properly applied in evaluating whether an employer’s mandatory arbitration policy unlawfully bars em- ployees from pursuing employment-related claims on a class or collective basis in any forum).11 9 Torres’ testimony was uncontroverted; no managers, supervisors, or other employees of BK were called to testify. 10 In light of this finding (which is consistent with the State court’s finding that the agreement was presented to Torres “on a take it or leave it basis,” Jt. Exh. 10, p. 9, it is unnecessary to address the General Counsel’s alternative argument that the mandatory arbitration provision violated Sec. 8(a)(1) even if Torres was not required to sign it as a condition of employment. 11 Under Lutheran Heritage, a rule that does not expressly restrict protected activity may also be found unlawful if employees would DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650 V. WHETHER TORRES’ LAWSUIT CONSTITUTED PROTECTED CONCERTED ACTIVITY As indicated above, ER also contends that Torres’ class ac- tion wage and hour suit did not constitute “concerted activity” within the meaning of Section 7 of the Act because Torres was the sole named plaintiff and she admitted that she never dis- cussed either the employment agreement or the lawsuit with her coworkers (Tr. 33–34). However, in D. R. Horton, the Board specifically held that “an individual who files a class or collec- tive action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7.” 357 NLRB 2277, 2279. The Board subsequently reaffirmed this holding in Murphy Oil, rejecting the argument that such a lawsuit is not “concerted” within the meaning of the Act. 361 NLRB 774, 785–786. I therefore likewise reject ER’s argument here, and find that Torres’ class action wage and hour suit constituted protected concerted activity. Accordingly, as ER’s motion to the State court sought to restrict that activity, it violated Section 8(a)(1) of the Act. See also Cellular Sales, above (finding a similar violation on similar facts). CONCLUSIONS OF LAW 1. ER is an “employer” within the meaning of Section 2(2), (6), and (7) of the Act. 2. Torres is an “employee” within the meaning of Section 2(3) of the Act. 3. By filing a motion in January 2013 to compel individual arbitration of Torres’ State court class action wage and hour claims against it pursuant to its mandatory arbitration employ- ment agreement with Torres, ER has maintained and enforced reasonably construe it as restricting such activity. However, the Gen- eral Counsel does not contend that employees would reasonably con- strue ER’s mandatory arbitration provision to bar class or collective arbitration. Rather, the General Counsel contends that the mandatory arbitration provision is unlawful only because ER applied it to bar class or collective arbitration by filing a motion in State court to compel individual arbitration of Torres’ claims against it. See GC Br. at 9–10. As indicated by ER, the record indicates that Torres has not been precluded from litigating the classwide wage and hour claims against BK in court. However, the State court denied BK’s motion to compel arbitration because it found that the mandatory arbitration provision was both procedurally and substantively unconscionable with respect to BK. Thus, the court did not reach whether the provision barred class or collective arbitration against BK. See Jt. Exh. 10, pp. 13–16. In any event, whether ER violated the Act as alleged turns on its own actions, not BK’s actions or the State court’s rulings. that agreement to restrict the right of employees under the Act to engage in protected concerted activities, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY The appropriate remedy for the violations found is an order requiring ER to cease and desist from its unlawful conduct and to take certain affirmative action to effectuate the policies of the Act. Specifically, ER must rescind or revise the mandatory arbitration employment agreement, notify Torres, other current and former employees who executed the agreement, and the State court that it has done so, and inform the State court that it no longer opposes Torres’ class action wage and hour suit on the basis of the agreement. ER must also reimburse Torres for all reasonable expenses and legal fees incurred in opposing ER’s unlawful January 8, 2013 motion to compel individual arbitration of her class action suit, with interest computed and compounded daily in the manner prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010). See Murphy Oil and Cellular Sales, above.12 The appropriate remedy normally also includes a require- ment that the respondent employer post a notice to employees at its facilities. However, as discussed above, the record indi- cates that the employees covered by ER’s employment agree- ment do not work at ER’s facilities, but at facilities owned and/or operated by ER’s clients. Therefore, ER must instead duplicate and mail the notice to all employees who have been covered by its employment agreement and performed work for its clients at any time since January 8, 2013. See, e.g., Dr. Pepper Snapple Group, 357 NLRB 1804, 1804 fn. 1 & JD fn. 28 (2011), and cases cited there. Accordingly, based on the foregoing findings of fact and conclusions of law and on the entire record, I issue the follow- ing recommended13 [Recommended order omitted from publication.] 12 See also Good Samaritan Medical Center, 361 NLRB 1294 (2014) (ordering rescission of a workplace civility policy that was unlawful because it had been applied to restrict the exercise of Section 7 rights). 13 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.