Citi Trends, Inc.

676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 74 Citi Trends, Inc. and Dedrick Peterkin. Case 10–CA– 133697 December 22, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On March 9, 2015, Administrative Law Judge Ira San- dron issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent 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 1. We affirm the judge’s finding, pursuant to D. R. Horton, 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), that the Respondent’s Man- datory Arbitration Agreement (MAA) is unlawful be- cause it requires employees to waive their right to main- tain class or collective actions in all forums, whether arbitral or judicial. We, like the judge, reject the Re- spondent’s argument that the complaint is time barred by Section 10(b) because the initial unfair labor practice charge was filed and served more than 6 months after the Charging Party signed the MAA. The Respondent con- tinued to maintain the unlawful arbitration policy during the 6-month period preceding the filing of the initial charge. The Board has long held under these circum- stances that maintenance of an unlawful workplace rule, such as the Respondent’s arbitration policy, constitutes a continuing violation that is not time barred by Section 10(b). See PJ Cheese, Inc., 362 NLRB 1452, 1452 (2015); Neiman Marcus Group, 362 NLRB 1286, 1287 fn. 6 (2015); and Cellular Sales of Missouri, LLC, 362 NLRB 241, 242 fn. 7 (2015).2 2. The judge found the MAA independently unlawful because employees would reasonably believe that it bars or restricts their right to file charges with the Board. Because the General Counsel did not litigate this theory 1 We shall modify the judge’s recommended Order to conform to our findings and to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified. 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, and in Bristol Farms, 363 NLRB 442 (2015). of a violation before the judge, we find that the judge erred in making this finding. The complaint sets forth portions of the MAA and generally alleges that, by maintaining the MAA, the Re- spondent has been interfering with, restraining, and co- ercing employees in the exercise of their Section 7 rights. The General Counsel’s statement of position to the judge3 argued only that the MAA was unlawful because it prohibited employees from filing joint, class, or collec- tive workplace claims against their employer; the Gen- eral Counsel did not argue that the MAA was also unlaw- ful because employees would reasonably read it to re- strict their right to file charges with the Board. Similarly, in his subsequent brief to the judge, the General Counsel focused exclusively on the MAA’s restriction on filing joint, class, or collective claims and made no argument regarding how employees would understand the MAA’s impact on their ability to file charges with the Board. In these circumstances, the judge’s finding of an unfair labor practice on the theory that employees would rea- sonably believe that the MAA bars or restricts their right to file charges with the Board cannot stand. Compare Sierra Bullets LLC, 340 NLRB 242, 242–243 (2003). Accordingly, we reverse that finding. ORDER The National Labor Relations Board orders that the Respondent, Citi Trends, Inc., Darlington, South Caroli- na, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a mandatory arbitration agreement (MAA) that requires employees, as a condition of em- ployment, to waive the right to maintain class or collec- tive 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 them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the MAA in all of its forms, or revise it in all of its forms to make clear to employees that the MAA does not constitute 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 became bound to the MAA in any form that it has been rescinded or revised and, if revised, provide them a copy of the revised agreement. 3 This case was submitted to the judge on a joint motion to waive a hearing and have the case decided on a stipulated record. CITI TRENDS, INC. 677 (c) Within 14 days after service by the Region, post at its Darlington, South Carolina facility and at all other facilities where the unlawful MAA is or has been in ef- fect, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Re- spondent's authorized representative shall be posted by the Respondent 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, 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. If the Respondent has gone out of business or closed the facili- ty involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since January 30, 2014. (d) Within 21 days after service by the Region, file with the Regional Director for Region 10 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 part. In this case, my colleagues find that the Respondent’s Mandatory Arbitration Agreement (MAA) violates Sec- tion 8(a)(1) of the National Labor Relations Act (the Act or NLRA) because the MAA waives the right to partici- pate in class or collective actions regarding non-NLRA employment claims. I respectfully dissent from this find- ing for the reasons explained in my partial dissenting opinion in Murphy Oil USA, Inc.1 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.” 1 361 NLRB 774, 795–808 (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). As my colleagues point out, the General Counsel did not challenge the MAA on the basis that employees would reasonably believe it bars or restricts their right to file charges with the Board. The judge therefore erred in finding the MAA unlawful on this ground, and I join my colleagues in reversing that finding. 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- 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 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 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 represent- atives 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 805–805 (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.”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678 position regarding class waiver agreements;5 and (iii) 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. 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 a mandatory arbitration agree- ment (MAA) that requires you, as a condition of em- ployment, to waive the right to maintain class or collec- tive actions in all forums, whether arbitral or judicial. 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, Inc., USA 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., 809 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 For the reasons expressed in my Murphy Oil partial dissent and those thoroughly explained in former Member Johnson’s dissent in Murphy Oil, the FAA requires that the arbitration agreement be en- forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem- ber Miscimarra, dissenting in part); id., at 822–831 (Member Johnson, dissenting). 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 MAA in all of its forms, or revise it in all of its forms to make clear that the MAA does not constitute a waiver of your right to maintain employ- ment-related joint, class, or collective actions in all fo- rums. WE WILL notify all applicants and current and former employees who were required to sign or otherwise be- came bound to the MAA in any form that it has been rescinded or revised and, if revised, WE WILL provide them a copy of the revised agreement. CITITRENDS, INC. The Board’s decision can be found at www.nlrb.gov/case/10-CA-133697 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. Michael W. Jeannette, Esq., for the General Counsel. Edward M. Cherof, Esq. (Jackson Lewis P.C.), for the Re- spondent. DECISION STATEMENT OF THE CASE IRA SANDRON, Administrative Law Judge. This case is be- fore me on the parties’ January 2, 2015 joint motion to waive a hearing and have a decision based on a stipulated record,1 and Associate Chief Judge William N. Cates’ January 12, 2015 order accepting the motion, setting a briefing schedule, and designating me as the judge to prepare the decision. On Febru- ary 23, 2015, the General Counsel and the Respondent timely filed briefs, which I have duly considered. Issues As stipulated, the primary issue is whether the Board’s deci- sions in D. R. Horton2 and Murphy Oil3 should be applied to find that Citi Trends, Inc. (the Respondent) violated Section 1 Jt. Exh. 1 (hereinafter the stipulation). 2 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), pet. for rehearing en banc denied (5th Cir. No. 12– 60031, April 16, 2014). 3 361 NLRB 774 (2014). CITI TRENDS, INC. 679 8(a)(1) of the National Labor Relations Act (the Act) by main- taining a mandatory arbitration agreement (MAA) that provides for arbitration of employment disputes on an individual basis. The Respondent also contends that the complaint is barred by Section 10(b) of the Act because the underlying charge was filed more than 6 months after the Charging Party signed the MAA in question. Stipulated Facts The Respondent, a Delaware corporation, operates retail clothing stores in 29 states, with 511 locations, and maintains distribution warehouses in South Carolina and Oklahoma. At all material times, the Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times through the present, Respondent has re- quired employment applicants and current employees at its retail sales and distribution warehouses to sign a document titled “Arbitration Agreement” (mandatory arbitration agree- ment or MAA), which requires employees to waive their right to pursue certain class and collective actions before an arbitra- tor and mandates that certain employment-related disputes be arbitrated rather than litigated in a court of law.4 Relevant por- tions of the MAA are as follows: Class/Collective Action Waiver This Agreement requires all claims to be pursued on an indi- vidual basis only. You and the Company hereby waive all rights to (i) commence, or be a party to, any class, representa- tive or collective claims or (ii) jointly bring any claim against each other with any other person or entity. You and the Company must pursue any claim on an individual basis only, including claims alleging a pattern and practice of unlawful conduct. In addition, the inability to join others in a claim for pattern and practice violations shall not by itself constitute a bar to the pursuit of such a claim. Lastly, nothing herein limits your right and the rights of others to collectively challenge the enforceability of this Agreement, including the class/collective action waiver. Notwithstanding, the Company will assert that the parties have agreed to pursue all claims individually in the arbitral forum and may ask a court to compel arbitration of each individual’s claims. To the extent that the filing of such an action is concerted activity protected under the National Labor Relations Act, such filing will not result in threats, discipline or discharge. . . . Receipt and Acknowledgement By your signature below, you acknowledge receipt of this Ar- bitration Agreement. You also acknowledge that this Agree- ment is a legal document which, among other things, requires you to arbitrate, all claims you may have now or in the future with the Company, which otherwise could have been brought in court. 4 Stipulation, Exh. 2. I knowingly and freely agree to this mutual agreement to arbi- trate claims, which otherwise could have been brought in court. I affirm that I have had sufficient time to read and un- derstand the terms of this agreement and that I have been ad- vised of my right to seek legal counsel regarding the meaning and effect of this agreement prior to signing. By issuance of this agreement, the company agrees to be bound to its terms without any requirement to sign this agreement. [Emphasis on the form omitted] G) Either party can reference or rely upon other sections of the Arbitration Agreement in support of its position. Peterkin began employment at the Respondent’s Darlington, South Carolina distribution warehouse on about November 24, 2008. On October 16, 2012, he signed the above MAA.5 His discharge from employment on November 11, 2014, is not pertinent to this matter. He has never filed or pursued a collec- tive action against the Respondent. Analysis and Conclusions The Respondent’s 10(b) argument Section 10(b) of the Act provides that “no complaint shall is- sue based upon on any unfair labor practice occurring more than six months prior to the filing of the charge. . . .” The Respondent contends that Section 10(b) bars the General Counsel from pursuing a complaint inasmuch as the charge was filed on July 30, 2014, more than 6 months after Peterkin signed the MAA, on September 16, 2012. However, the Board has long recognized that Section 10(b) does not bar an allega- tion of unlawful conduct that began more than 6 months before a charge was filed but has continued within the 6-month period. More specifically, Section 10(b) does not preclude a complaint allegation based on the maintenance of a facially invalid rule or policy within the 10(b) period, even if the rule or policy was promulgated earlier and has not been enforced, since “[t]he maintenance during the 10(b) period of a rule that transgresses employee rights is itself a violation of Sec. 8(a)(1).” Register- Guard, 351 NLRB 1110, 1110 fn. 2 (2007), enfd. in part 571 F.3d 53 (D.C. Cir. 2009), citing Eagle-Picher Industries, Inc., 331 NLRB 169, 174 fn. 7 (2000). See also Lafayette Park Ho- tel, 326 NLRB 824, 825 (1998). The Respondent has cited no contrary precedent. Therefore, I conclude that Section 10(b) does not bar the in- stant complaint. The legality of the MAA The parties agree that if the principles enunciated in Horton and Murphy Oil govern, the MAA violates Section 8(a)(1) of the Act. Thus, the Respondent does not dispute that the MAA is unlawful under Horton and Murphy Oil; rather, the thrust of the Respondent’s defense is that those decisions are bad law. In Horton, the Board analyzed an MAA in the context of how the Board decides whether other unilaterally-implemented workplace rules violate Section 8(a)(1), under the test set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). 5 Stipulation, Exh. 3. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680 The Board found that the MAA explicitly restricted the exercise of Section 7 rights and was therefore unlawful under the first inquiry set out in Lutheran Heritage Village. The Board held that an employer violates Section 8(a)(1) of the Act by “requir- ing employees to waive their right to collectively pursue em- ployment-related claims in all forums, arbitral and judicial,” because “[t]he right to engage in collective action—including collective legal action—is the core substantive right protected by the NLRA and is the foundation on which the Act and Fed- eral labor policy rest.” Horton, supra, at 2288 (emphasis in original). The Board further concluded that finding such MAA unlaw- ful was “consistent with the well-established interpretation of the NLRA and with core principles of Federal labor policy” and did not “conflict with the letter or interfere with, the policies underlying the Federal Arbitration Act (FAA) [9 U.S.C., § 1 et seq.]. . . .” Id., at 2286. The Respondent argues that the Fifth Circuit Court of Ap- peals and other Federal appellate courts have rejected Horton to the extent that it found it to be afoul of the Act an MAA prohib- iting class action. Thus, the Fifth Circuit concluded that neither the Act’s statutory text nor its legislative history contained a congressional command against application of the FAA and that, in the absence of an inherent conflict between the FAA and the Act’s purpose, an MAA should be enforced according to its terms. 737 F.3d at 361–363. Accordingly, the court de- nied enforcement of the Board’s order invalidating the MAA.6 In Murphy Oil, the Board acknowledged the Fifth Circuit's rejection of the Board’s Horton decision on appeal, by a divid- ed panel, as well as decisions of the Second and Eighth Circuits also indicating disagreement with Horton, but it cited the well- established rule that “[t]he Board is not required to acquiesce in adverse decisions of the Federal courts in subsequent proceed- ings not involving the same parties.” Murphy Oil, supra, at 2278 fn. 17, citing Enloe Medical Center v. NLRB, 433 F.3d 834, 838 (D.C. Cir. 2005), and Nielsen Lithographing Co. v. NLRB, 854 F.2d 1063, 1066–1067 (7th Cir. 1988). Thus, the Board has explained that it is not required, on either legal or pragmatic grounds, to automatically follow an adverse court decision but will instead respectfully regard such ruling solely as the law of that particular case. See Manor West, Inc., 311 NLRB 655, 667 fn. 43 (1993), revd. 60 F.3d 1195 (6th Cir. 1995). See also D.L. Baker, Inc., 351 NLRB 515, 529 at fn. 42 (2007); Arvin Industries, 285 NLRB 753, 757 (1987). The Board in Murphy Oil expressly reaffirmed Horton, stat- ing that “[t]he rationale of D. R. Horton was straightforward, clearly articulated, and well supported at every step.” Murphy Oil, supra, at 779, and that “[w]ith due respect to the courts that have rejected D. R. Horton, and to our dissenting colleagues, we adhere to its essential rationale for protecting workers’ core substantive rights under the National Labor Relations Act.” Id., at 780. Even assuming arguendo that I agree with the rationales of the circuit courts that have rejected Horton, I am constrained to 6 The court did enforce the Board’s order that Sec. 8(a)(1) had been violated because an employee would reasonably interpret the MAA as prohibiting the filing of a claim with the Board. follow Board precedent that has not been reversed by the Su- preme Court or by the Board itself, rather than contrary courts of appeals precedent. See Pathmark Stores, 342 NLRB 378, 378 fn. 1 (2004), citing Iowa Beef Packers, Inc., 144 NLRB 615 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984). The Supreme Court, in upholding the enforcement of indi- vidual MAAs in various contexts, has enunciated the general principal that the FAA was designed to promote arbitration. See, e.g., AT & T Mobility LLC v. Conception, 131 S.Ct. 1740, 1749 (2011). Moreover, the Court in Gilmer v. Inter- state/Johnson Lane Corp., 500 U.S. 20 (1991), held that a MAA signed by an employee waived his right to bring a Feder- al court action under the Age Discrimination in Employment Act. However, as the Board noted in Horton, Gilmer dealt with an individual claim, and the MAA contained no language spe- cifically waiving class or collective claims; ergo, the Court in Gilmer addressed neither Section 7 nor the validity of a class- action waiver. Horton, supra, at 2288. Inasmuch as the Su- preme Court has not specifically addressed the issue of manda- tory arbitration provisions that cover class and/or collective actions vis-à-vis the Act, it follows that the Court has not over- ruled the Board’s Horton decision, which I therefore must ap- ply to determine whether the Respondent’s MAA violated Sec- tion 8(a)(1) of the Act. This MAA expressly requires “all claims to be pursued on an individual basis only” and provides that employees “waive all rights to (i) commence, or be a party to, any class, representa- tive or collective claims or (ii) jointly bring any claim against each other with any other person or entity,” including claims alleging a pattern and practice of unlawful conduct. Clearly, the MAA runs afoul of Horton’s prohibition against requiring that “employees waive their right to collectively pursue em- ployment-related claims in all forums, arbitral and judicial.” Horton, supra, at 2288. The MAA contains the caveat that: [N]othing herein limits your right and the rights of others to collectively challenge the enforceability of this Agreement, including the class/collective action waiver. Notwithstanding, the Company will assert that the parties have agreed to pursue all claims individually in the arbitral forum and may ask a court to compel arbitration of each individual’s claims. To the extent that the filing of such an action is concerted activity protected under the National Labor Relations Act, such filing will not result in threats, discipline or discharge. This provision fails to cure the defects in the MAA. In Horton, the Board analyzed the mitigating effect of language in an MAA that employees have the right to file a class or collective action, including Board charges, challenging the validity of the required waiver. It found such language to lack substance be- cause employees “still would reasonably believe that they were barred from filing or joining class or collective action, as the arbitration agreement . . . still expressly state[s] that they waive the right to do so.” Horton, supra, at 2285 (fn. omitted). The Board proceeded to explain how such a purported assurance is CITI TRENDS, INC. 681 confusing to employees since “employees [are] told they have the right to do the very thing they waive the right to do. . . .” Ibid. See also Murphy Oil, supra at 799 (at best, the language creates an ambiguity, which must be construed against the em- ployer as the drafter), citing Lafayette Park Hotel, 326 NLRB 824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Therefore, I conclude that the Respondent violated Section 8(a)(1) of the Act by maintaining, as a condition of employ- ment and continued employment, a mandatory arbitration agreement (MAA) that requires employees to waive their right to pursue collective or class lawsuits and arbitrations, and which employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By the following conduct, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)((1) of the Act. 3. Maintained, as a condition of employment and continued employment, a mandatory arbitration agreement (MAA) that requires employees to waive their right to pursue collective or class lawsuits and arbitrations, and which employees reasona- bly would believe bars or restricts their right to file charges with the National Labor Relations Board. REMEDY Because I have found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended order omitted from publication.]