24 Hour Fitness USA, Inc.

24 HOUR FITNESS USA, INC. 765 363 NLRB No. 84 24 Hour Fitness USA, Inc. and Alton J. Sanders. Case 20–CA–035419 December 24, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On November 6, 2012, Administrative Law Judge Wil- liam L. Schmidt issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The Acting General Counsel filed an answering brief and cross-exceptions with a supporting brief. The Charging Party together with the Intervenor Union (collectively, the Charging Party) filed a cross-exception and a com- bined brief in opposition to the Respondent’s exceptions and in support of its cross-exception. The Respondent filed a combined answering brief to the Acting General Counsel’s and Charging Party’s cross-exceptions, and separate reply briefs to the Acting General Counsel’s and the Charging Party’s answering briefs. In addition, the Chamber of Commerce of the United States of America filed an amicus curiae brief in support of the Respondent. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Applying the Board’s decision in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), the judge found that the Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing an arbitration policy 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. In Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part Murphy Oil USA, Inc. v. NLRB, No. 14–60800 (5th Cir. 2015), the Board reaffirmed the relevant holdings of D. R. Horton, supra. 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 on our subse- quent decision in Murphy Oil, we affirm the judge’s rul- ings, findings, and conclusions,2 and adopt the recom- mended Order as modified and set forth in full below.3 1 The Respondent has requested oral argument. The request is de- nied as the record and briefs adequately present the issues and the posi- tions of the parties. 2 For the reasons fully stated in Murphy Oil, we reject the Respond- ent’s contentions that D. R. Horton was not decided by a validly ap- pointed Board, that it was wrongly decided and should be overruled, and that its holding is inconsistent with Supreme Court decisions re- garding the Federal Arbitration Act issued both before and after D. R. Horton was decided. 3 There were 11 identified collective lawsuits in which the Re- spondent sought to enforce the class action ban portion of its arbitration 1. The Respondent and our dissenting colleague con- tend that the opt-out provision of the arbitration policy places it outside the scope of the prohibition against mandatory individual arbitration agreements under D. R. Horton. Deciding an issue left open in D. R. Horton, the Board now has rejected this argument, holding that an opt-out procedure still imposes an unlawful mandatory condition of employment that falls squarely within the rule of D. R. Horton and affirmed in Murphy Oil. See On Assignment Staffing Services, 362 NLRB 1672, 1672, 1675–1676 (2015). The Board further held in On As- signment, supra at 1672, 1676–1679, that even if non- mandatory, an arbitration policy precluding collective action in all forums is unlawful because it requires em- ployees to prospectively waive their Section 7 right to engage in concerted activity.4 policy during the 6 months preceding the unfair labor practice charge. While the parties’ exceptions were pending with the Board, we took administrative notice of documents indicating that 6 of the 11 lawsuits had been dismissed with prejudice at the plaintiffs’ request. Therefore, to the extent that the plaintiffs in the 11 identified lawsuits have not already settled their respective claims against the Respondent, and consistent with our decision in Murphy Oil, supra, at 794, we amend the judge’s remedy and shall order the Respondent to reimburse those plaintiffs for all reasonable expenses and legal fees, with interest, in- curred in opposing the Respondent’s unlawful motions in the identified courts to compel individual arbitration of their class or collective claims. See Bill Johnson’s Restaurants v. NLRB, 461 U. S. 731, 747 (1983) (If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attor- neys’ fees and other expenses” as well as “any other proper relief that would effectuate the policies of the Act.). We reject our dissenting colleague’s view that the Respondent’s mo- tions to compel arbitration were protected by the First Amendment’s Petition Clause. In Bill Johnson’s the Court identified two situations in which a lawsuit enjoys no such First Amendment protection: where the action is beyond a State court’s jurisdiction because of Federal preemp- tion, and where “a suit . . . has an objective that is illegal under federal law.” 461 U.S. at 737 fn. 5. Thus, the Board may properly restrain litigation efforts such as the Respondent’s motions to compel arbitra- tion that have the illegal objective of limiting an employee’s exercise of Sec. 7 rights and enforcing an unlawful contractual provision, even if the litigation was otherwise meritorious or reasonable. See Murphy Oil, supra, at 793–794. Interest shall be computed in the manner prescribed in New Hori- zons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole orders for suits maintained in violation of the Act, it is appropriate and necessary to award interest on litigation expenses”), enfd. 973 F.2d 230 (3d Cir. 1992). To the extent that any of the 11 identified lawsuits are still pending in court, we shall also amend the judge’s remedy to order the Respond- ent to notify the identified courts that it has rescinded or revised the arbitration policy and to inform the courts that it no longer opposes plaintiffs’ lawsuits on the basis of the arbitration policy. We shall substitute a new notice to conform to the Order as modi- fied. 4 Our dissenting colleague also observes that the Act “creates no substantive right for employees to insist on class-type treatment of non- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766 2. We also reject the Respondent’s contention that the asserted potential for joinder of claims under its arbitra- tion policy renders the policy lawful. We need not de- cide whether an unambiguous provision for arbitral join- der, standing alone, would satisfy the D. R. Horton standard, because the Respondent’s policy lacks such a provision. The Respondent points to the policy’s state- ment that “[i]n arbitration, the parties will have the right to conduct civil discovery and bring motions as provided by the Federal Rules of Civil Procedure.” But this spare language, which makes no specific mention of joinder, is insufficient to put employees on notice that the policy permits them to pursue joint claims together with their coworkers. Moreover, the policy’s nondisclosure provi- sion5—stating that “[e]xcept as may be required by law, neither a party nor an arbitrator may disclose the exist- ence, content or results of any arbitration hereunder without the prior consent of both parties”—would effec- tively preclude employees in many circumstances from learning that coworkers are pursuing arbitral claims that might be joined and from communicating with them about that possibility. There is no evidence, meanwhile, that any employees have successfully sought to join their claims in arbitration. Under these circumstances, we NLRA claims.” This is surely correct, as the Board has previously explained in Murphy Oil, supra, slip op. at 2, 16 and Bristol Farms, 363 NLRB 442, 443 fn. 2 (2015). But what our colleague ignores is that the Act does “create[] the right to pursue joint, class, or collective claims in and as available without the interference of an employer-imposed re- straint.” Murphy Oil, at 789–790 (emphasis in original). The Re- spondent’s arbitration policy is just such an unlawful restraint. Likewise, for the reasons explained in Murphy Oil and Bristol Farms, there is no merit to our colleague’s view that finding the arbitra- tion policy unlawful runs afoul of employees’ Sec. 7 right to “refrain from” engaging in protected activity. See Murphy Oil, at 791; Bristol Farms, at 443. Nor is he correct in insisting that Sec. 9(a) of the Act requires the Board to permit individual employees to prospectively waive their Sec. 7 right to engage in concerted legal activity. Murphy Oil, supra at 790–791; Bristol Farms, at 443. 5 We reject the Acting General Counsel’s exception that the judge erred in failing to find that the nondisclosure provision independently violated the Act. We agree with the judge that the policy’s non- disclosure provision would normally present an independent violation of Sec. 8(a)(1), as a workplace rule that categorically prohibits the discussion of terms and conditions of employment. See, e.g., Rio All- Suites Hotel & Casino, 362 NLRB 1690, 1690–1692 (2015) (finding unlawful rule that prohibited disclosure of “any information about the Company which has not been shared by the Company with the general public”). See also Double Eagle Hotel & Casino, 341 NLRB 112, 115 (2004), enfd. 414 F. 3d 1249 (10th Cir. 2005), cert denied 546 U.S. 1170 (2006) (finding unlawful handbook rule that prohibited disclosure of “confidential information,” including “grievance/complaint infor- mation”). However, on the facts of this case, we find that the legality of the nondisclosure provision was not fully and fairly litigated. There was no corresponding allegation in the complaint, and the issue was mentioned at hearing only as a counter to the Respondent’s assertion that the arbitration policy allowed for joinder of claims. conclude that employees would reasonably construe the policy to prohibit the joinder of claims in arbitration (along with other forms of concerted legal activity), which suffices to make the policy unlawful. See D. R. Horton, slip op. at 4 (applying test of Lutheran Heritage Village-Livonia, 343 NLRB 46 (2004)). 3. The Respondent further argues that the complaint is time barred by Section 10(b) as to employees hired be- fore 2007 because the initial unfair labor practice charge was filed and served more than 6 months after those em- ployees became subject to a prior version of the arbitra- tion policy (from which they could not opt out), and be- cause there is no evidence that the policy was enforced against any of these employees within the 10(b) period. We reject this argument because the Respondent contin- ued to maintain the unlawful arbitration policy during the 6-month period preceding the filing of the initial charge. The Board has held under these circumstances 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). ORDER The National Labor Relations Board orders that the Respondent, 24 Hour Fitness USA, Inc., San Ramon, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining and/or enforcing a mandatory arbitra- tion policy that requires employees, as a condition of 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 policy in all of its forms, or revise it in all of its forms to make clear to employees that the arbitration policy does not constitute a waiver of their right to maintain employment-related joint, class, or collective actions in all forums. (b) Notify all current and former employees who were required to sign or otherwise become bound to the man- datory arbitration policy in any form that it has been re- scinded or revised and, if revised, provide them a copy of the revised policy. (c) Notify each of the courts in which one or more of the 11 identified collective lawsuits is still pending that it 24 HOUR FITNESS USA, INC. 767 has rescinded or revised the mandatory arbitration policy upon which it based its motions to compel individual arbitration of plaintiffs’ claims, and inform the courts that it no longer opposes the lawsuits on the basis of the arbitration policy. (d) In the manner set forth in this decision, reimburse plaintiffs in each of the 11 identified collective lawsuits that has not settled for any reasonable attorneys’ fees and litigation expenses that they may have incurred in oppos- ing the Respondent’s motions to compel individual arbi- tration. (e) Within 14 days after service by the Region, post at its San Ramon, California facility copies of the attached notice marked “Appendix A,” and at all other facilities where the unlawful arbitration policy is or has been in effect, copies of the attached notice marked “Appendix B.”6 Copies of the notices, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- utive 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 distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates 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 facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix A” to all current employees and former employees employed by the Re- spondent at any time since August 15, 2010, and all cur- rent and former employees against whom the Respondent has attempted to enforce its arbitration policy since Au- gust 15, 2010. (f) Within 21 days after service by the Region, file with the Regional Director for Region 20 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 Arbitration of Disputes Policy (the Policy) violates Sec- 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices 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.” tion 8(a)(1) of the National Labor Relations Act (the Act or NLRA) because the Policy waives the right to partici- pate in class or collective actions regarding non-NLRA employment claims, even though the Policy gives em- ployees the right to opt out of the waiver. Various em- ployees signed the Policy, did not exercise the right to opt out, and later filed class action lawsuits against the Respondent in Federal and State court alleging violations of Federal and State wage and hour and other employ- ment laws. In reliance on the Policy, the Respondent filed motions to compel individual arbitration, which were granted in some cases and denied in others. My colleagues find that the Respondent thereby unlawfully enforced its Policy. I respectfully dissent from these find- ings for the reasons explained in my partial dissenting opinion in Murphy Oil USA, Inc. 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. How- ever, I disagree with my colleagues’ finding that Section 8(a)(1) of the NLRA prohibits agreements that waive class and collective actions, and I especially disagree with the Board’s finding here, similar to the Board ma- jority’s finding in On Assignment Staffing Services, that class-waiver agreements violate the NLRA even when they contain an opt-out provision. In my view, Sections 7 and 9(a) of the NLRA render untenable both of these propositions. As discussed in my partial dissenting opin- ion in Murphy Oil, NLRA Section 9(a) protects the right of every employee as an “individual” to “present” and “adjust” grievances “at any time.” 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;1 (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;2 (iii) en- 1 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 ac- tion procedures . . . is not a substantive right.) (citations omitted), peti- tion for rehearing en banc denied No. 12–60031 (5th Cir. 2014); De- posit 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.). 2 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, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768 forcement of a class-action waiver as part of an arbitra- tion agreement is also warranted by the Federal Arbitra- tion Act (FAA);3 and (iv) for the reasons stated in my dissenting opinion in Nijjar Realty d/b/a Pama Manage- ment, 363 NLRB 384, 386–388 (2015), the legality of such a waiver is even more self-evident when the agree- ment contains an opt-out provision, based on every em- ployee’s 9(a) right to present and adjust grievances on an “individual” basis and each employee’s Section 7 right to “refrain from” engaging in protected concerted activi- ties.4 Although questions may arise regarding the en- forceability of particular agreements that waive class or collective litigation of non-NLRA claims, I believe these questions are exclusively within the province of the court or other tribunal that, unlike the NLRB, has jurisdiction over such claims. 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., at 809 fn. 5 (Member Johnson, dissenting) (collecting cases); see also Patterson v. Raymours Furniture Co., 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, 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). 3 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,at 807 (Member Miscimarra, dissenting in part); id.,at 822–831 (Member Johnson, dissenting). 4 The legality of the Policy is further reinforced by the fact that it authorizes the parties to “bring motions as provided by the Federal Rules of Civil Procedure” and thus permits joinder of claims before an arbitrator under FRCP 20. The class-action waiver agreements were voluntarily signed, even though the Respondent was willing to hire applicants only if they en- tered into the agreements. For my colleagues, however, the voluntari- ness of such a waiver is immaterial. They believe that even if a waiver is nonmandatory, it is still unenforceable. See On Assignment Staffing Services, above (finding class-action waiver agreement unlawful even where employees are free to opt out of the agreement); Bristol Farms, 363 NLRB 442 (2015) (finding class-action waiver agreement unlawful even where employees must affirmatively opt in before they will be covered by a class-action waiver agreement, and where they are free to decline to do so). By definition, every agreement sets forth terms upon which each party may insist as a condition to entering into the relation- ship governed by the agreement. Thus, conditioning employment on the execution of a class-action waiver does not make it involuntary. However, the Board’s position is even less defensible when the Board finds that NLRA “protection” operates in reverse—not to protect em- ployees’ rights to engage or refrain from engaging in certain kinds of collective action, but to divest employees of those rights by denying them the right to choose whether to be covered by an agreement to litigate non-NLRA claims on an individual basis. See Bristol Farms, above, at 445 (Member Miscimarra, dissenting). Because I believe the Respondent’s Policy was lawful under the NLRA, I would find it was similarly lawful for the Respondent to file motions in Federal and State courts seeking to enforce the Policy. It is relevant that the courts having jurisdiction over the non-NLRA claims granted the Respondent’s motion to compel arbitration in several of the cases cited by the majority. That the Re- spondent’s motions were reasonably based is also sup- ported by the multitude of court decisions that have en- forced similar agreements.5 As the Fifth Circuit recently observed after rejecting (for the second time) the Board’s position regarding the legality of class waiver agree- ments: “[I]t is a bit bold for [the Board] to hold that an employer who followed the reasoning of our D. R. Hor- ton decision had no basis in fact or law or an ‘illegal ob- jective’ in doing so. The Board might want to strike a more respectful balance between its views and those of circuit courts reviewing its orders.”6 I also believe that any Board finding of a violation based on the Respond- ent’s meritorious motions to compel arbitration would improperly risk infringing on the Respondent’s rights under the First Amendment’s Petition Clause. See Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983); BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002); see also my partial dissent in Murphy Oil, above, 361 NLRB 774, 806–807. Finally, for similar reasons, I be- lieve the Board cannot properly require the Respondent to reimburse the employee-plaintiffs for their attorneys’ fees in the circumstances presented here. Murphy Oil, above, 361 NLRB 774, 808. Accordingly, as to these issues,7 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 vio- lated 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 5 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). 6 Murphy Oil, Inc., USA v. NLRB, above, at fn. 6. 7 I agree with the majority’s reversal of the judge’s finding that the Policy’s confidentiality clause violates the Act. Like my colleagues, I believe that issue was not fully and fairly litigated. 24 HOUR FITNESS USA, INC. 769 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 policy that requires our employees, as a condi- tion 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 policy in all of its forms, or revise it in all of its forms to make clear that the arbitration policy does not constitute a waiver of your right to maintain employment-related joint, class, or collective actions in all forums. WE WILL notify all current and former employees who were required to sign or otherwise become bound to the mandatory arbitration policy in all of its forms that the arbitration policy has been rescinded or revised and, if revised, WE WILL provide them a copy of the revised pol- icy. WE WILL notify each of the courts in which one or more of the 11 identified collective lawsuits are still pending that we have rescinded or revised the mandatory arbitration policy upon which we based our motions to compel individual arbitration, and WE WILL inform the courts that we no longer oppose plaintiffs’ collective lawsuits on the basis of that policy. WE WILL reimburse plaintiffs’ in each of the 11 identi- fied collective lawsuits that have not settled for any rea- sonable attorneys’ fees and litigation expenses that they may have incurred in opposing our motions to compel individual arbitration. 24HOUR FITNESS USA, INC. The Board’s decision can be found at www.nlrb.gov/case/20–CA–035419 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. APPENDIX B 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 vio- lated 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 policy that requires our employees, as a condi- tion 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 policy in all of its forms, or revise it in all of its forms to make clear that the arbitration policy does not constitute a waiver of your right to maintain employment-related joint, class, or collective actions in all forums. WE WILL notify current and former employees who were required to sign or otherwise become bound to the mandatory arbitration policy in all of its forms that the arbitration policy has been rescinded or revised and, if revised, WE WILL provide them a copy of the revised pol- icy. 24HOUR FITNESS USA, INC. The Board’s decision can be found at www.nlrb.gov/case/20–CA–035419 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770 lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. Carmen Leon and Richard J. McPalmer, Attys., for the Acting General Counsel. Marshall Babson, Atty. (Seyfarth Shaw LLP), of New York, New York; Garry G. Mathiason, Atty. (Littler Mendelson, P.C.), of San Francisco, California; and Daniel L. Nash, Atty. (Akin Gump Strauss Hauer & Feld), of Washington, DC, for the Respondent. Cliff Palefsky, Atty. (McGuinn, Hillsman, & Palefsky), of San Francisco, California, for the Charging Party with Michael Rubin and Caroline P. Cincotta, Attys. (Altshuler Berzon LLP), San Francisco, California, and Judith A. Scott, Atty., Service Employees International Union, Washington, DC, on the posthearing brief. Willis J. Goldsmith and Kristina A. Yost, Attys. (Jones Day), of New York, New York, and Robin S. Conrad and Shane B. Kawka, Attys., National Chamber Litigation Center, Wash- ington, DC, submitted a brief amicus curiae on behalf of the Chamber of Commerce of the United States of America in support of 24 Hour Fitness USA, Inc. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. I heard this case at San Francisco, California, on June 28, 2012. The unfair labor practice charge, filed by Alton J. Sanders (Sand- ers), an individual, on February 15, 2011, alleges that 24 Hour Fitness USA, Inc. (Company or Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act or NLRA). On April 30, 2012, the Regional Director for Region 20 of the National Labor Relations Board (Board or NLRB) issued a formal complaint alleging that Respondent violated Section 8(a)(1) by maintaining and enforcing a provision in the arbitra- tion policy, contained in its employee handbook, that requires employees to forego any rights they have to the resolution of employment-related disputes by collective or class action (the class action ban). The complaint also alleges that Respondent violated Section 8(a)(1) by asserting the class action ban in the 10(b) period in eight specific cases brought against it by em- ployees. The Respondent filed a timely answer denying that it engaged in the unfair labor practices alleged and interposing a variety of affirmative defenses, including a claim the Board lacked a quorum when it decided a case critical to the outcome here due to the expiration of the term of one of the Board Members. Having now carefully considered the entire record, including the demeanor of the witnesses and the reliability of their testi- mony, together with the arguments set forth in the extensive briefs filed on behalf of the Acting General Counsel (AGC), the Respondent, and the Charging Party as well as the briefs ami- cus curiae filed by the Service Employees International Union (SEIU) and the Chamber of Commerce of the United States of America (Chamber), I find that Respondent violated the Act as alleged based on the following1 FINDINGS OF FACT I. JURISDICTION Respondent, a California corporation, operates fitness cen- ters in seventeen different states, including a facility in San Ramon, California. During the calendar year ending December 31, 2011, Respondent, in conducting its business operations, derived gross revenues in excess of $500,000. During the same period, Respondent purchased and received, at its San Ramon facility, products, goods, and services valued in excess of $5000 directly from points outside of the State of California. 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. I further find that it would effectuate the purposes of the Act for the Board to exercise its statutory jurisdiction to resolve this labor dispute. II. ALLEGED UNFAIR LABOR PRACTICES A. The Pleadings and the Basic Arguments about the Merits The complaint alleges that in the 6-month period preceding the filing of the charge Respondent enforced the provisions in its employee handbook that requires employees to “forego any rights they have to the resolution of employment-related dis- putes by collective or class action.” In that same period, the complaint alleges that Respondent initiated legal actions in eight separate cases pending in both State and Federal courts seeking to enforce the unlawful terms of its arbitration policy. Respondent’s answer admits that it “has maintained and en- forced” employee handbook policies, including its arbitration policy, but denies that its arbitration policy violates the Act. Respondent also denies that it violated the Act by taking the certain legal actions to enforce the class action ban contained in its arbitration policy in the eight specific cases cited in the complaint, as well as three others identified in a hearing stipula- tion. The AGC, the Charging Party, and the SEIU contend that D. R. Horton, 357 NLRB 2277 (2012), controls the outcome here. (AGC Br., p. 1). They argue that employees have a right under Section 7 to engage in collective or class activities when seek- ing to resolve disputes with their employer about their wages, hours, and other terms and conditions of employment and, hence, the ban on those particular activities contained in Re- 1 On May 18, 2012, Associate Chief Judge Cracraft granted the Ser- vice Employees International Union (SEIU) motion to intervene but limited the degree of the SEIU’s participation to that of “an amicus curiae in briefing to the administrative law judge and to the Board.” In an order issued September 10, 2012, I likewise granted the request of the Chamber to appear as amicus curiae to file a brief in support of Respondent’s position. 24 HOUR FITNESS USA, INC. 771 spondent’s arbitration policy unlawfully interferes with em- ployee Section 7 rights within the meaning of Section 8(a)(1).2 Respondent disputes the controlling effect of Horton on the facts present here. Instead, Respondent and the Chamber argue that the opt-out feature of its arbitration policy, described in more detail below, establishes that the waiver of collective or class action is voluntary on the part of the employee, thereby making this case fundamentally distinguishable from Horton. They argue that Horton applies only to arbitration agreements containing a class action ban that are a mandatory condition of employment. Because the employees here have the opportunity to opt-out of Respondent’s arbitration policy completely, the policy cannot be fairly characterized as mandatory. Hence, as Respondent’s policy is not mandatory, they argue, Horton does not apply. B. Relevant Facts The Company, which commenced operations in the early 1980s, currently operates more than 400 membership fitness clubs scattered across 17 states. Charging Party Sanders sub- mitted an application for work at the Company on August 25, 2008, and commenced working on October 6. He remained employed at the Company for approximately 2 years as a group exercise instructor providing instruction primarily in yoga and spinning. During his tenure, he worked at Company facilities in Larkspur, Santa Rosa, Petaluma, and Fairfield, California. The 3-page employment application that Sanders submitted in August 2008 contained an “Applicant’s Certification” that included the following: I understand that as an expeditious and economical way to settle employment disputes without need to go through courts, 24 Hour Fitness agrees to submit such disputes to final and binding arbitration. I understand that I may opt out of the arbitration procedure, within a specified period of time, as the procedure provides. 24 Hour Fitness and I also understand that if I am offered employment and I do not opt out, we both will submit exclusively to final and binding arbitration all dis- putes arising out of or relating to my employment. This means a neutral arbitrator, rather than a court or jury, will de- cide the dispute. (R. Exh. 1, p. 3). No evidence establishes that Sanders sought or was provided with any information at that time concerning the opt-out proce- dures. Later in October 2008, when he commenced working for the Company, Sanders went through the typical “on-boarding” process required of all employees. At that time, he received a copy of the 2007 Team Member Handbook (employee hand- book) and a copy of the “New Team Member Handbook Re- ceipt Acknowledgement (handbook receipt form). He was 2 In pertinent part, Sec. 7 of the Act protects the right of employees “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Emphasis added.) Sec. 8(a)(1) provides that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce” employees in the exercise of their Sec. 7 rights. requested to sign and return the handbook receipt form to the Company, which he did. The handbook receipt form included the following statement: I have received the 2007 Handbook and I understand that in consideration for my employment it is my responsibility to read and comply with the policies contained in this Handbook and any revisions made to it. In particular, I agree that if there is a dispute arising out of or related to my employment as de- scribed in the ‘Arbitration of Disputes’ policy, I will submit it exclusively to binding and final arbitration according to its terms, unless I elect to opt out of the ‘Arbitration of Dis- putes’policy as set forth below. I understand that I may opt out of the ‘Arbitration of Dis- putes’ policy by signing the Arbitration of Disputes Opt-Out Form (‘Opt-Out Form’) and returning it through interoffice mail to the CAC/HR File Room no later than 30 calendar days after the date I received this Handbook, as determined by the Company’s record. I understand that I can obtain the Opt- Out Form by calling the Employee Hotline at1.866.288.3263. I understand that if I do not opt out, disputes arising out of or related to my employment will be resolved under the ‘Arbitra- tion of Disputes’ policy. I understand that my decision to opt out or not opt out will not be used as a basis for the Company taking any retaliatory action against me. (G.C. Exh. 2) (Em- phasis in original.) Concededly, Sanders did not opt-out of the Respondent’s arbi- tration policy. When he later learned of a race and sex discrim- ination case another employee brought against the Company and sought to join in the case, he was informed that he would have to proceed individually. As noted, the process that Sanders encountered when he be- gan employment with the Respondent is typical. All new em- ployees receive a copy (or access to a copy) of the Respond- ent’s 60-plus page handbook usually on their first day of work. The handbook contains a description of various work policies. For example, the initial section headed “our employment rela- tionship” in the 2010 edition of the handbook contains provi- sions related to the Respondent’s open door policy, the at-will nature of the employment relationship, its policies concerning equal employment opportunity and accommodations for disa- bilities, its policy against harassment, discrimination and retali- ation, its policy regarding the arbitration of disputes (the provi- sion at issue here), policies regarding conflicts of interest and nonfraternization, and its policies regarding confidentiality, proprietary information, trademarks, and copyrights. Other sections of the handbook contain detailed provisions about workplace conduct, health, security and safety, employee de- velopment, compensation and benefits to name only a few. Each new employee is also given a copy of the handbook re- ceipt form designed to acknowledge receipt of the handbook and is requested to sign it. Employees who decline to sign the receipt form are told that the policies described in the handbook will, nonetheless, apply to them. Both the handbook and the handbook receipt form have gone through several revisions in the last decade. The Respondent first instituted its unilaterally devised arbi- tration policy for resolving employment-related disputes that it DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772 imposed as a condition of employment more than a decade ago. Since that time Respondent has fervently promoted its arbitra- tion policy in documents distributed to employees. The heart of Respondent’s arbitration policy has always provided that “any employment-related dispute between a Team Member and 24 Hour Fitness” must be submitted to final and binding arbitra- tion. All versions of the Company’s arbitration policy since 2005 have provided explicitly that nothing in the policy “shall be deemed to preclude a Team Member from filing or main- taining a charge with the Equal Employment Opportunity Commission or the National Labor Relations Board.” Additionally, the Respondent made another significant modi- fication to its arbitration policy in 2005 by adding language that banned class and other forms of concerted actions. This revised language set forth in the handbook sought to effectively pre- clude employees from combining their identical or closely re- lated employment disputes against Respondent. The policy adopted in 2005 and retained in various editions of the hand- book thereafter provided: In arbitration, the parties will have the right to conduct civil discovery and bring motions as provided by the Federal Rules of Civil Procedure. However, there will be no right or author- ity for any dispute to be brought, heard or arbitrated as a class action (including without limitation opt out class actions or opt in collective class actions), or in a representative or private attorney general capacity on behalf of a class of persons of the general public. In addition, Respondent’s revised arbitration policy further limited employee collaboration by including nondisclosure language stating that “[e]xcept as may be required by law, nei- ther a party nor an arbitrator may disclose the existence, con- tent, or results of any arbitration hereunder without the prior written consent of both parties.” All subsequent editions of the handbook after 2005 retained these restrictions barring concert- ed employee activity in pursuit of employment-related disputes. The accompanying handbook receipt containing limited in- formation about the arbitration policy made no reference to these new limitations on concerted activities. Respondent’s practice of applying all of its handbook policies to employees whether or not they signed the handbook receipt effectively made the handbook policies a condition of employment appli- cable to all current employees immediately and to future em- ployees on their first day of work. The next revision to Respondent’s arbitration policy oc- curred in or about January 2007. Although the language of its arbitration policy as set forth in its 2005 handbook remained the same, the Respondent gave each newly-hired employee an opportunity to opt out of the arbitration policy provided the employee did so within the 30-day period following their re- ceipt of the handbook. Except for its employees working in the State of Texas, none of the employees hired before 2007 were provided with an opportunity to opt out of the arbitration poli- cy.3 As a consequence, those employees remained bound by 3 This anomaly as to the Texas employees resulted from a court- mandated agreement in Carey v. 24 Hour Fitness USA Inc., No. 10- 03009 (S.D. Tex.). Although the full details are not known, it appears the arbitration policy in effect when they were originally hired. The opt-out revision resulted in changes to two employment forms, the application for employment and the handbook re- ceipt. The last paragraph of the employment application form was revised to include a general reference to the new opt-out procedure. It stated only that an employee could “opt out of the arbitration procedure within a specified period of time, as the procedure provides.” It then went on to state that if the appli- cant chose not to opt-out of the yet undisclosed arbitration poli- cy, it would be binding on both parties. The new handbook receipt form contained the following lan- guage describing the opt-out procedure in detail: I have received the January 2005 handbook and I understand that in consideration for my employment it is my responsibil- ity to read and comply with the policies contained in this handbook and any revisions made to it. In particular, I agree that if there is a dispute arising out of or related to my em- ployment as described in the “Arbitration of Disputes” policy, I will submit it exclusively to binding and final arbitration ac- cording to its terms, unless I elect to opt out of the “Arbitra- tion of Disputes” policy as set forth below. I understand that I may opt out of the “Arbitration of Disputes” policy by signing the Arbitration of Disputes Opt-Out Form (“Opt-Out Form”) and returning it through interoffice mail to the CAC/HR File Room no later than 30 calendar days after the date I received this handbook, as determined by the Company’s records. I understand that I can obtain the Opt-Out Form by calling the Employee Hotline at 1.866.288.3283. I understand that if I do not opt out, disputes arising out of or related to my employ- ment will be resolved under the “Arbitration of Disputes” pol- icy. I understand that my decision to opt out or not opt out will not be used as a basis for the Company taking any retalia- tory action against me. [Jt. Exh. 5.] In September 2007, Respondent issued a new employee handbook and a new handbook receipt form. The new hand- book contained no changes in Respondent’s arbitration policy. The handbook receipt form was revised to reflect that the em- ployee had received the new 2007 handbook rather than the 2005 handbook. The 2010 edition of Respondent’s handbook retained the same arbitration policy language as set forth in the 2007 handbook. In or about February 2009, Respondent converted its new employee on-boarding process to an electronic system. This new digital system required the new employee to review the new employee materials, including the 60 plus page handbook, at a computer terminal and provide a digital signature where required. All of the materials included a print option that the employee could use to obtain a copy for her or his personal records. A separate series of screens dealt with the terms of the arbitration policy and the opt-out process. After completing the electronic on-boarding process, employees always had access that all of the Respondent’s Texas employees were provided a full written explanation of the arbitration policy and another opportunity to opt out if they so choose. Consequently, Texas employees of the Re- spondent hired before January 1, 2007, received an opportunity to opt- out by virtue of this special, court-approved procedure. 24 HOUR FITNESS USA, INC. 773 to an electronic version of the handbook at any location though their electronic employee account. The 2009 digital version of the employee handbook receipt retained the same notice providing that employees who de- clined to sign would nonetheless be bound by all policies set forth in the handbook. This digital version of the arbitration policy in the employee handbook contained three added para- graphs that had not previously appeared in the hardcopy ver- sions of the handbook. Those added paragraphs stated: I agree that if there is a dispute arising out of or related to my employment as described in the Arbitration of Disputes Poli- cy, I will submit it exclusively to binding and final arbitration according to its terms, unless I elect to opt out of the Arbitra- tion of Disputes Policy as set forth below. I understand that I may opt out of the Arbitration of Disputes Policy by signing the Arbitration of Disputes Opt-Out Form (“Opt-Out Form”) and returning it through interoffice mail to the CAC/HR File Room no later than 30 calendar days after the date I click on the button below. I understand that I can obtain the Opt-Out Form by calling the Employee Hotline at 1.866.288.3283. I understand that if I do not opt out, disputes arising out of or related to my employment will be resolved under the Arbitration of Disputes Policy. I understand that my decision to opt out or not opt out will not be used as a basis for 24 Hour Fitness taking any retaliatory action against me. I UNDERSTAND THAT BY ENTERING MY INITIALS AND CLICKING THE “CLICK TO ACCEPT” BUTTON, I AM AGREEING TO THE ARBITRATION OF DISPUTES POLICY (WHICH INCLUDES MY ABILITY TO OPT- OUT OF THE POLICY WITHIN THE PERIOD OF TIME NOTED ABOVE). I ALSO AGREE THAT THIS ELECTRONIC COMMUNICATION SATISFIES ANY LEGAL REQUIREMENT THAT SUCH COMMUNICATION BE IN WRITING. Employees who successfully pursued the opt-out alternative received a simple form to sign, date and return. The current form, sans the signature and other identity lines, reads as fol- lows:4 DISPUTE RESOLUTION AGREEMENT OPT-OUT FORM By signing and dating below, I am choosing to opt-out of the 24 Hour Fitness' Dispute Resolution Agreement (“Agreement”). I understand that by opting out, I will not participate in or be bound by the alterna- tive dispute resolution procedures described in the Agree- ment. . . . 4 The Respondent modified the opt-out notices and its internal pro- cedures for handling opt-out requests in 2010 when it shifted responsi- bility for handling and dealing with opt-out inquiries from its human resources to its legal department. The new opt-out information sheet instructed employees interested in the process to contact a paralegal with that responsibility rather than the employee hotline connected with its human resources department. IN ORDER TO OPT-OUT OF THE DISPUTE RESOLUTION AGREEMENT, YOU MUST SIGN AND RETURN THIS FORM TO THE LEGAL DEPARTMENT THROUGH INTEROFFICE MAIL OR BY FAX TO 925- 543-3358, NO LATER THAN 30 CALENDAR DAYS AFTER DATE OF HIRE. The Respondent’s brief argues that the next to last sentence of the above quoted paragraph establishes that the arbitration policy is inoperative until the 30-day opt out period expires. (R. Br., p. 9) Deborah Lauber, Respondent’s vice president and corporate counsel, explained that this bifurcated opt-out proce- dure was adopted to minimize the potential for retaliation or adverse inferences that might result if local managers knew of an employee’s opt-out decision. In addition, she said, the pro- cedure provided the employee with the opportunity to reflect on that “important decision.” In the week before the hearing, the Respondent employed 20,563 “Team Members” to serve the more than three million members of its clubs. It admits that 19,614 are employees within the meaning of Section 2(3). Of that number, 3,605 were hired prior to January 1, 2007, when the opt-out aspect of its arbitration policy became effective. Based on Respondent’s review of approximately 20,000 personnel files “out of a uni- verse of approximately 70,000 files,” the parties stipulated that “no fewer and no more than 70 Section 2(3) employees” suc- cessfully opted out of the Respondent’s arbitration policy. The number of pre-2007 Texas employees who opted out under the special agreement in the Carey case is unknown. Since August 15, 2010 (the last day of the 10(b) period), Re- spondent has sought in several court cases to enforce the class action ban aspect of its arbitration policy, including the Carey case previously mentioned. Respondent acknowledges that it took action to enforce the class action ban in the following cases alleged in complaint paragraph 5: (1) Fulcher v. 24 Hour Fitness USA, Inc., No. RG 10524911 (Alameda County Superior Court, Cal.), a class action case in- itiated by former employee Raoul Fulcher and other named plaintiffs containing causes of action brought individually and on behalf of others similarly situated for (1) Race, Color, Na- tional Origin Discrimination (California Fair Employment and Housing Act, Government Code Section 12940, et seq., ''FEHA''), (2) Gender Discrimination (FEHA), and (3) Viola- tions of the California Unfair Competition Law, Business & Professions Code Sections 1700, et seq., (“UCL”). On Octo- ber 22, 2010, Respondent filed a motion to compel individual arbitration under the terms of the Arbitration Policy. On March 29, 2011, the court granted the motion, in part ordering the plaintiffs to submit their individual claims for monetary relief to binding arbitration pursuant to the terms of the Arbi- tration Policy. However, the court retained jurisdiction over the plaintiffs' claims for declaratory and injunctive relief. On January 17, 2012, the court denied Respondent's motion to compel arbitration of plaintiffs' claims for declaratory and in- junctive relief. On January 27, 2012, Respondent appealed the court's January 17 ruling. (2) Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-715 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774 SC (N.D. Cal.), a class action brought by former employee Gabe Beauperthuy and other named plaintiffs (current and former employees of Respondent) who had worked (or were working) in 11 states in various capacities as managers, sales counselors, and trainers as well as others similarly situated al- leging violations of the Fair Labor Standards Act (FSLA), 29 U.S.C. § 201 et seq. On February 21, 2006, Respondent filed a motion to dismiss the complaint based on the failure to state a claim upon which relief can be granted (FRCP 12(b)(6)) or, in the alternative, for a more definite statement (FRCP 12(e)), because the plaintiffs had agreed to the Arbitration Policy. On February 21,2006, Respondent filed a Motion to Dismiss. On April 11, 2006, the court denied Respondent's motion to dismiss, but granted the motion for a more definite statement. On November 28, 2006, the Court issued an order that Re- spondent had waived its right to compel arbitration. On Feb- ruary 24, 2011, the court granted Respondent's motion to decertify the class. The court has retained jurisdiction over the plaintiffs' claims.5 (3) Lee v. 24 Hour Fitness USA, Inc., No. 11-22700 (S.D. Fla.), a class action brought by a former employee Jeanlin Lee and other named plaintiffs on behalf of themselves and others similarly situated alleging FSLA violations. On September 6, 2011, Respondent filed a motion to compel individual arbitra- tion and to stay proceedings pending arbitration based in part on the Arbitration Policy. On October 18, 2011, the court granted Respondent's motion to compel arbitration pursuant to the terms of the Arbitration Policy and granted Respondent's motion to stay proceedings pending arbitration. The court has retained jurisdiction over this case. (4) Constanza v. 24 Hour Fitness USA, Inc., No. 11-22694 (S.D. Fla.), a class action brought by a former employee Elio Constanza on behalf of himself and others similarly situated alleging violations of the FLSA. On September 6, 2011, Re- spondent filed a motion to compel individual arbitration and to stay proceedings pending arbitration based on the Arbitra- tion Policy. On November I, 2011, the court granted Re- spondent's motion. The court has retained jurisdiction over this case. (5) Carey v. 24 Hour Fitness USA, Inc., No. 10–03009 (S.D. Tex.), a class action brought by a former employee John Car- ey on behalf of himself and others similarly situated alleging violations of the FLSA. On October 27, 2010, Re- spondent filed a motion to stay and to compel individual arbi- tration based on the Arbitration Policy. On December 1, 2010, the court denied Respondent's motion. On December 13, 2010, Respondent filed an appeal. On January 25, 2012, the United States Court of Appeals for the Fifth Circuit af- firmed the court's decision. The District Court has retained ju- 5 When the court denied Respondent’s 2006 motion to dismiss, it held that Respondent’s conduct amounted to a waiver of its right to compel plaintiffs to arbitrate their claims and barred it from any future effort to do so. But when the court granted the Respondent’s motion in February 2011 to decertify the various classes previously recognized, it provided the named plaintiffs with the option of arbitrating their indi- vidual claims or proceeding before the court. risdiction allowing plaintiffs to pursue a collective action in court. (6) Lewis v. 24 Hour Fitness USA, Inc., (Cal.App. 2 Dist. 2011), a class action brought by former employee Kevin Lewis and other named plaintiffs on behalf of themselves and others similarly situated alleging violations of the California Labor Code, Lab. Code §§ 510, 1194(a), 203, 226 (a) , 226(e), 2698(a), 2698(f), and UCL. On July 29, 2010, Respondent filed a motion to compel individual arbitration and stay all civil court proceedings based on the Arbitration Policy. On September 20, 2010, the court denied the motion to compel arbitration. The court has retained jurisdiction over this case. On November 3, 2011, Respondent successfully appealed the denial of its motion. In March 2012, the trial court ruled that the plaintiffs' claim for relief under California's Private Attor- ney General Act is not subject to arbitration and ordered that claim to proceed while staying the arbitration on the other claims. Respondent has appealed the court's ruling on that matter. (7) Dominguez v. 24 Hour Fitness USA, Inc., No. BC439206 (Los Angeles County Superior Ct.), a class action brought by former employee Iva Dominguez on behalf of herself and others similarly situated alleging violations of the California Labor Code. On Septem- ber 16, 2010, Respondent filed a motion to compel individual arbitration and stay all civil court proceedings based on the Arbitration Policy. On December 7, 2010, the court granted Respondent's motion. The court has retained jurisdiction over this case. (8) Martinez v. 24 Hour Fitness USA, Inc., No. 20-201l- 00484316-CU-CE-CXC (Orange County Superior Court), originally brought as a class action by a former employee Max Martinez on behalf of him- self and others similarly situated alleging violations of the California Labor Code, Lab. Code §§ 510, 1198, 226.7, 512, 201, et seq., and the UCL. On December 9, 2011, Respondent filed a motion to compel individual arbitration and stay judi- cial proceedings based on the Arbitration Policy. On January 31, 2012, the court granted Respondent's motion. The court has retained jurisdiction over this case. In addition to the foregoing proceedings, the parties stipulat- ed that the Respondent sought to enforce the class action ban in other legal proceedings pending as of August 15, 2010, includ- ing, but not limited to, the following cases in the California courts: 1) Rosenloev, et al. v. 24 Hour Fitness USA, Inc., Orange County Superior Court Case No. 30-2009-00180140, and Suppa v. 24 Hour Fitness, USA, Inc., Los Angeles County Superior Court Case No. BC4221O: The Suppa case was transferred and coordinated as a single action with the Rosenloev case. Re- spondent sought to compel individual arbitration. The trial court denied Respondent's motion. Respondent appealed the decision, and the Court of Appeal affirmed the trial court; 24 HOUR FITNESS USA, INC. 775 2) Burton v. 24 Hour Fitness USA, Inc., Orange County Supe- rior Court, Case No. 30-2007-00031558: Respondent sought to compel individual arbitration. The trial court denied Re- spondent's motion. Respondent appealed the decision. The Court of Appeal affirmed the trial court; and 3) Lawler v. 24 Hour Fitness, Inc., San Bernardino County Superior Court, Case No. CNDS 1001737: Respondent sought to compel individual ar- bitration. The trial court granted Respondent’s motion. C. Further Findings and Conclusions An employer violates Section 8(a)(1) by maintaining work rules that tend to chill employee Section 7 activities. Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Rules explicitly re- stricting Section 7 activities violate Section 8(a)(1). Lutheran Heritage Village—Livonia, 343 NLRB 646 (2004). But where a workplace rule does not explicitly restrict Section 7 activity, the General Counsel must establish by a preponderance of the evidence that: (1) employees would reasonably construe the rule to prohibit Section 7 activity; (2) the employer adopted the rule in response to union activity; or (3) the employer applied a rule to restrict employee Section 7 activity. Id. at 647. If a rule explicitly infringes on the Section 7 rights of employees, the mere maintenance of the rule violates the Act without regard for whether the employer ever applied the rule for that purpose. Guardsmark v. NLRB, 475 F.3d 369, 375–376 (DC Cir. 2007). Relying on these fundamental principles, the Board found the mandatory arbitration agreement in Horton violated Section 8(a)(1) because it expressly restricted protected activity by requiring employees to “refrain from bringing collective or class claims in any forum.”6 357 NLRB 2277, 2282. (Empha- sis added). This conclusion is predicated on the conclusion that “employees who join together to bring employment-related claims on a classwide or collective basis in court or before an arbitrator are exercising rights protected by Section 7 of the NLRA.”7 Id. at 3. (Emphasis added.) In finding the violation, the Board stated: 6 The Board separately found the Horton arbitration agreement vio- lated Sec. 8(a)(1) because employees would reasonably interpret it as barring or restricting their right to file charges with the Board. No such claim is made here presumably because Respondent’s arbitration policy specifically provides that it does not preclude the filing charges with the NLRB or the EEOC. 7 Horton cites three prior Board cases (two of which were enforced in court) and two added court cases decided between 1980 and 2011, for the proposition that the filing of a civil action by employees relating to their wages, hours, and other terms and conditions of employment is activity protected by Section 7. 357 NLRB 2277, 2278 fn 4. The Su- preme Court has reached a similar conclusion. In Eastex, Inc. v NLRB, 437 U.S. 556, 565–566 (1978), Justice Powell, writing for the majority, noted “it has been held that the ‘mutual protection’ clause protects employees from retaliation by their employers when they seek to im- prove working conditions through resort to administrative and judicial forums.” It cited numerous prior Board and lower court decisions with approval. Id at fn. 15. Yet, Respondent explicitly rejects the notion that “the right to engage in class or collective action is a protected, concerted activity under Section 7 of the Act” but provides no convinc- ing rationale. See R. Br., p. 30. We need not and do not mandate class arbitration in order to protect employees’ rights under the NLRA. Rather, we hold only that employers may not compel employees to waive their NLRA right to collectively pursue litigation of employment claims in all forums, arbitral and judicial. So long as the em- ployer leaves open a judicial forum for class and collective claims, employees’ NLRA rights are preserved without re- quiring the availability of classwide arbitration. Employers remain free to insist that arbitral proceedings be conducted on an individual basis. The Acting General Counsel argues that all renditions of Re- spondent’s arbitration policy have been incompatible with the first prong of the Lutheran Heritage Village-Livonia test since the class action ban in 2007 prohibited employees from pursu- ing employment-related claims collectively in any forum. But assuming that this arbitration policy does not expressly restrict Section 7 activity, the Acting General Counsel contends that the Respondent has repeatedly applied the class action ban in pending cases in order to restrict collective activity contrary to the second prong of the Lutheran Heritage Village-Livonia test. The Acting General Counsel further contends, in effect, that the opt-out provision fixes the removal of Section 7 protections as the default position and puts employees in the position of fol- lowing a convoluted process to regain their statutory rights. This requirement that employees act affirmatively to secure rights the law already provides, the Acting General Counsel argues, has long been found to be unlawful. In support, the Acting General Counsel cites this rationale in Horton: That this restriction on the exercise of Section 7 rights is im- posed in the form of an agreement between the employee and the employer makes no difference. From its earliest days, the Board, again with uniform judicial approval, has found un- lawful employer-imposed, individual agreements that purport to restrict Section 7 rights –including, notably, agreements that employees will pursue claims against their employer only individually. In National Licorice Co. v. NLRB, 309 U.S. 350 (1940), the Supreme Court upheld the Board’s holding that individual em- ployment contracts that included a clause discouraging, if not forbidding, a discharged employee from presenting his griev- ance to the employer “through a labor organization or his cho- sen representatives, or in any way except personally” was un- lawful and unenforceable. Id. at 360. The Court agreed that the contracts “were a continuing means of thwarting the policy of the Act. Id. at 361. “Obviously,” the Court concluded, “em- ployers cannot set at naught the NationalLabor Relations Act by inducing their workmen to agree not to demand performance of the duties which it imposes.” Id. at 364. Four years later, the Court reaffirmed the principle that em- ployers cannot enter into individual agreements with employ- ees in which the employees cede their statutory rights to act collectively. In J. I. Case Co. v. NLRB, 321 U.S. 332 (1944), the Court held that individual employment contracts predating the certification of a union as the employees’ representative cannot limit the scope of the employer’s duty to bargain with the union. The Supreme Court observed that: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776 Individual contracts no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act. . . . . . . . Wherever private contracts conflict with [the Board’s] func- tions [of preventing unfair labor practices], they obviously must yield or the Act would be reduced to a futility. Id. at 337. During this same period of time, the Board held unlawful a clause in individual employment contracts that required em- ployees to attempt to resolve employment disputes individual- ly with the employer and then provided for arbitration. J. H. Stone & Sons, 33 NLRB 1014 (1941), enfd. in relevant part 125 F.2d 752 (7th Cir. 1942). “The effect of this restriction,” the Board explained, “is that, at the earliest and most crucial stages of adjustment of any dispute, the employee is denied the right to act through a representative and is compelled to pit his individual bargaining strength against the superior bar- gaining power of the employer.” Id. at 1023 (footnote omit- ted). The Seventh Circuit affirmed the Board’s holding, de- scribing the contract clause as a per se violation of the Act, even if “entered into without coercion,” because it “obligated [the employee] to bargain individually” and was a “restraint upon collective action.” NLRB v. Stone, 125 F.2d 752, 756 (7th Cir. 1942). 357 NLRB 2330, 2333–2334. Respondent seeks to distinguish its arbitration policy from the arbitration agreement in the Horton case by claiming that its opt-out opportunity makes the agreement voluntary. It asserts that no violation occurs when employees voluntarily refrain from exercising Section 7 rights. By providing employees with an opt-out opportunity, Respondent argues that it has properly balanced its arbitration policy with the policies contained in the NLRA, the Federal Arbitration Act (FAA), and the Rules Ena- bling Act. Respondent also argues that by incorporating the Federal Rules of Civil Procedure in its arbitration policy, it has provided an avenue for employees to pursue class action through a permissive joinder of claims under FRCP Rule 20. Even though Respondent explicitly rejects any notion that the right to engage in class or collective action is a protected con- certed activity under Section 7, it argues that the Acting Gen- eral Counsel failed to prove the essential elements of his case for other reasons. On this latter score, Respondent correctly argues that there is no evidence of interference, restraint, or coercion that brought about the Charging Party’s or any other employee’s voluntary decision at the beginning of their em- ployment to forego participation in class or collective actions. Respondent advances a variety of other claims. First, Re- spondent asserts that Horton “was wrongly decided” because “even an arbitration policy with a class action waiver that is a mandatory condition of employment must be enforced” under the FAA and Supreme Court precedent. Second, Respondent argues that the charge is untimely with respect to employees hired before January 2007 who have not been provided with an opt-out opportunity but, in the event a violation is found as to them, the appropriate remedy would be merely to require that they be provided with the opportunity to opt out of the arbitra- tion policy. Third, Respondent asserts that its motion to dis- miss complaint paragraph 5 should be granted because the NLRB does not have authority to require courts to undo deter- minations that they have already made and because a retroac- tive remedy in the case is not appropriate. And fourth, Re- spondent claims that the NLRB did not have a proper quorum when Horton was decided because the term of Board Member Becker (one of the panel participants) had expired when the case was decided. As counsel for Respondent and the amicus know full well, I lack authority to adjudicate any claims that Horton was wrong- ly decided, or was decided after Member Becker’s term ex- pired. Even so, Horton compiles statutory declarations and case precedent that date back seven decades that are binding on me. So regardless of the outcome of that case, the precedent it details is clearly binding until overruled. The most important beginning point in the analysis of the is- sues presented here is to recognize that this case does not place in question an employer’s right to require employees to arbi- trate employment-related disputes. For purposes of this deci- sion, I have presumed that employers may do exactly that and, if they do so, they would be entitled to enforce that require- ment. But the tedious arguments advanced by Respondent and its amicus ally fail to convince me that the FAA provides em- ployers with a license to unilaterally craft an arbitration re- quirement in their terms and conditions of employment that serve to sweep away the well recognized statutory rights of employees to act concertedly by bringing legal actions against their employer. Quite plainly, this case presents the altogether different question as to whether an employer may design and enforce an arbitration policy that prevents its workers from acting in concert for their mutual aid and benefit by initiating and prosecuting a good-faith legal action against their employ- er. If one accepts Respondent’s arguments, the Supreme Court’s recent decisions involving the FAA have radically empowered employers to limit employees Section 7 activity. Relatively speaking, AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) and CompuCredit, v. Greenwood, 132 S. Ct. 665 (2012), which Respondent cites in support, have little, if anything, to do with arbitration in the context of the employer-employer rela- tionship. In Concepcion, the U.S. Supreme Court held FAA’s requirement that the courts enforce private arbitration agree- ments preempted the California Supreme Court’s holding in Discover Bank v. Superior Court, 30 Cal. Rptr. 3d 76 (2005), a case where the state court held that arbitration agreements con- taining class-action waivers in certain consumer contracts of adhesion unenforceable because they operated effectively as exculpatory contract clauses that are contrary to that state’s public policy. Further, CompuCredit is essentially a statutory construction case. It arose after lower courts decided to deny the defend- ant’s motion to compel arbitration per a private agreement based on their conclusion that certain statutory language evi- denced a congressional intent that claims arising under the Credit Repair Organizations Act (CROA) would not be arbitra- 24 HOUR FITNESS USA, INC. 777 ble. In its decision, the Supreme Court concluded that the low- er courts had misconstrued specific statutory language in CROA that required a consumer rights notice to include the right to “sue” as precluding litigation in an arbitral forum. It concluded that the remedial language elsewhere in CROA did not foreclose the parties from adopting “a reasonable forum- selection clause” that included arbitration and, if they did so, the courts were obliged to enforce parties’ agreement under the FAA. 132 S.Ct. at 671–672. In my judgment, these cases do not address the fundamental question of whether, and to what degree, the FAA may be used as a tool to alter, by way of private “agreements” that are in large measure imposed unilaterally by employers, the funda- mental substantive rights of workers established by decades old congressional legislation. There should be no mistake about it that such a conclusion would be a radical departure from the manner in which the NLRA has been applied in the past. Here, the core issue is whether or not the Respondent may restrict the rights of employees to engage in concerted activity long recog- nized and protected by Section 7. Though instructive with respect the FAA’s standing in the world of general consumer litigation, the arguments Respondent and its amicus ally have fashioned from Concepcion and CompuCredit would require that the decades old statutory rights of employees be thrown overboard in order to reach the conclusions they advocate. Employer devised agreements that seek to restrict employees from acting in concert with each other are the raison d'être for both the Norris-LaGuardia Act and Section 7 of the NLRA. The congressional findings giving rise to NLRA and Norris- LaGuardia plainly state that these statutes were intended to correct the massive imbalance in bargaining power between the individual worker and his employer. To correct this imbalance, Congress empowered workers to act concertedly for their mu- tual aid and benefit in the workplace. Thus, the public policy declaration in Section 2 of the Norris-LaGuardia Act passed in 1932 states: Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership as- sociation, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negoti- ate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . 29 USC § 102. (Emphasis add- ed) Similarly, Section 1 of the NLRA states in part: The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate re- current business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by pre- venting the stabilization of competitive wage rates and work- ing conditions within and between industries. 29 USC § 151. Respondent’s arbitration policy serves to restore the imbal- ance between the individual worker and the corporate employer by prohibiting employees from pursuing the resolution of work place disputes with concerted legal actions and by imposing broad nondisclosure requirements.8 Essentially, the Respond- ent and its amicus ally lobby for this administrative tribunal to establish an employer’s right to restrict employees, in order to hold a job, from exercising their statutory right to use the full- range of legal remedies generally available to all citizens. Lafayette Park, supra, requires a determination as to whether Respondent’s arbitration policy contains terms that would tend to chill its employees Section 7 activities. On this fundamental question, I find that both the class action ban and the nondisclo- sure restriction contained in Respondent’s arbitration policy unlawfully limit Respondent’s employees from exercising their Section 7 right to commence and prosecute employment-related legal actions in concert with other employees, Respondent’s arbitration policy unlawfully requires its em- ployees to surrender core Section 7 rights by imposing signifi- cant restraints on concerted action regardless of whether the employee opts to be covered by it or not. For the purposes of worker rights protected by Section 7, the opt-out process de- signed by the Respondent is an illusion. The requirement that employees must affirmatively act to preserve rights already protected by Section 7 rights through the opt-out process is, as the Acting General Counsel argues, an unlawful burden on the right of employees to engage in collective litigation that may arise in the future. Board precedent establishes that employees may not be required to prospectively trade away their statutory rights. Ishikawa Gasket American, Inc., 337 NLRB 175–176 (2001). Even if a worker consciously chooses to opt-out and com- pletes the separate process necessary to do so in a timely man- ner, the Respondent can still effectively prevent concerted em- ployee activity between those who opt out and the vast majority of other employees who (1) consciously chose not to opt-out; (2) unconsciously failed to opt-out in a timely fashion; and (3) were hired before 2007 and thereby not given an opportunity to opt out.9 Respondent’s arbitration policy limits the assistance 8 I found the claims made in the briefs filed by Respondent and the amicus that Horton seeks to alter all manner of rules governing the prosecution of complaints in federal and state courts unconvincing. All Horton, and this decision for that matter, seek to protect is the right of employees to invoke the ordinary rules that apply to all. Nothing would alter how the courts of any jurisdiction deal with complaints brought before them by Respondent’s employees. 9 Charging Party and its amicus ally suggested that I essentially con- clude the Respondent deliberately designed its initial employment documents in order to, among other things, dupe new employees into being bound by its arbitration policy. Although I am not willing to reach that conclusion based on the limited evidence in this case, I would be startled to learn that the number of employees who made a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778 the opted-out employee may obtain from fellow workers even in pursuit of their own individual claims. But aside from that, any notion that an opt-out employee can identify others who have opted-out in order to secure their fullest cooperation in a collective action is simply belied by Respondent’s own inabil- ity to readily identify other opted out individuals in responding to the Acting General Counsel’s hearing subpoena. Respondent also argues that its arbitration policy only re- quires employees to bring their employment-related disputes individually and does nothing to prevent ordinary concerted activities among employees. That assertion is simply far from the case. The nondisclosure requirement in Respondent’s arbi- tration policy imposes extreme limitations on activities protect- ed by Section 7. The following portion of the Board’s decision in Kinder-Care Learning Centers, 299 NLRB 1171 (1990), illustrates the long history of precedent finding that limitations on employee communications about their wages, hours and working conditions such as those imposed by this nondisclo- sure policy to be unlawful: Under Section 7 of the Act, employees have the right to en- gage in activities for their ‘‘mutual aid or protection,’’ includ- ing communicating regarding their terms and conditions of employment. 3 It is well established that employees do not lose the protection of the Act if their communications are re- lated to an ongoing labor dispute and are not so disloyal, reck- less, or maliciously untrue 4 as to constitute, for example, ‘‘a disparagement or vilification of the employer’s product or reputation.’’ 5 For example, the Board has found employees’ communications about their working conditions to be protect- ed when directed to other employees, 6 an employer’s custom- ers, 7 its advertisers, 8 its parent company, 9 a news reporter, 10 and the public in general. 11 ______________ 3 See Eastex, Inc. v. NLRB, 437 U.S. 556 (1978). 4 Cf. NLRB v. Electrical Workers IBEW Local 1229 (Jeffer- son Standard), 346 U.S. 464 (1953). 5 See Sahara Datsun, 278 NLRB 1044, 1046 (1986), enfd. 811 F.2d 1317 (9th Cir. 1987), quoting Allied Aviation Service Co. of New Jersey, 248 NLRB 229, 230 (1980), enfd. 636 F.2d 1210 (3d Cir. 1980). 6 In addition to Waco, Inc., 273 NLRB 746 (1984), cited by the judge, see also Heck’s, Inc., 293 NLRB No. 132, slip op. at 23 (May 18, 1989), and Scientific-Atlanta, Inc., 278 NLRB 622, 625 (1986). 7 Greenwood Trucking, Inc., 283 NLRB 789 (1987). 8 Sacramento Union, 291 NLRB No. 83 (Oct. 31, 1988), enfd. 899 F.2d 210 (9th Cir. 1989). 9 Oakes Machine Corp., 288 NLRB 456 (1988), enfd. 897 F.2d 84 (2d Cir. 1990); Mitchell Manuals, Inc., 280 NLRB 230, 232 fn. 7 (1986). conscious, fully-informed decision to be bound by Respondent’s highly self-serving arbitration policy even came close to the infinitesimal number of employees who actually opted out. 10 Auto Workers Local 980, 280 NLRB l378 (1986), enfd. 819 F.2d 1134 (3d Cir. 1987); Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). 11 Cincinnati Suburban Press, 289 NLRB No. 127 (July 20, 1988). More to the point here, the Board found in Double Eagle Hotel & Casino, 341 NLRB 112 (2004), that a communication rule providing for the discipline of any employee who disclosed “disciplinary information, grievance/complaint information, performance evaluations, salary information, salary grade, types of pay increases and termination data for employees who have left the company” to be unlawful on its face. (Emphasis added) Although the nondisclosure requirement here does not speci- fy the type of the remedial action available where an employee fails to heed its limitations, this lack of specificity permits the inference that Respondent could either resort to disciplinary action or institute a separate legal action for breach of the arbi- tration policy’s terms. The chilling effect of either option should be obvious. Absent the unlikely consent of Respondent, this non-disclosure provision could be read by a reasonable employee as requiring the retention of a lawyer just to learn, among other things, whether it would be permissible to openly solicit one’s fellow workers: (1) for evidence or service as a witness; (2) for monetary contributions to help pay for the very expensive costs of arbitration; or (3) for the presence of fellow employees at an arbitration proceeding merely for moral sup- port. It also means, of course, that the employee who has gone through the arbitration process under Respondent’s policy would be prohibited, again absent Respondent’s very unlikely consent, from advising other employees who have like or simi- lar employment disputes whether or not these other employees have opted out of the arbitration policy. Even though Respond- ent’s management would have full access to the detail of prior arbitration decisions, the nondisclosure provision muzzles the employee who did not opt out and who invoked the arbitration process from providing a useful critique of the process, the outcome, or any other worthwhile advice to any fellow worker with a similar dispute whether that employee had opted out or not. This nondisclosure provision vividly illustrates that Re- spondent, by way of the restrictions in its arbitration policy, seeks to restore the power imbalance between workers and their employers that existed prior to congressional passage of Norris- LaGuardia and the NLRA.10 10 Any claims that the nondisclosure provision in Respondent’s arbi- tration policy was not properly plead nor fully litigated lack merit. In defending the class action ban in its arbitration policy, Respondent’s arguments encompassed the entirety of its arbitration policy. Apart from Respondent’s argument that its arbitration policy lawfully restricts class actions and does not otherwise restrict concerted employee activi- ty, Respondent’s defense relies on a variety of other provisions in its arbitration policy. The most striking illustration is found in its unmeri- torious claim that FRCP Rule 20, incorporated in its policy by general reference to the FRCP, preserves an avenue for employees to join in a concerted judicial action, thereby satisfying the Horton requirement that there be an arbitral or judicial avenue open for collective litigation of employment claims. In as much as Respondent has chosen to cher- 24 HOUR FITNESS USA, INC. 779 For the foregoing reasons, I find Respondent’s arbitration policy with its class action ban and its nondisclosure provision amounts to the type of private employment agreement that is unlawful and unenforceable under the NLRA because it severe- ly restricts protected concerted employee activity. By main- taining it as well as enforcing it as to the pending cases de- scribed above against individuals who are employees within the meaning of Section 2(3), Respondent has violated, and is con- tinuing to violate, Section 8(a)(1). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce or an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By maintaining and enforcing the arbitration policy con- tained in its “Team Member Handbook,” Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. Respondent’s conduct found above affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. In accord with the request of the Acting General Counsel, my recommended order will also require Respondent to notify “all judicial and arbitral forums wherein the (arbitration policy) has been enforced that it no longer opposes the seeking of col- lective or class action type relief.” This will include a require- ment that Respondent: (1) withdraw any pending motion for individual arbitration, and (2) request any appropriate court to vacate its order for individual arbitration granted at Respond- ry-pick provisions throughout its arbitration policy, whether explicitly stated or not, in support its defense, it cannot properly be heard to com- plain about the scrutiny of its entire policy on the ground that it has not been fully litigated. ent’s request if a motion to vacate can still be timely filed. Respondent opposes this added relief. It argues that the Board has no authority to direct a federal or state court, or an arbitration tribunal to modify its own prior orders or awards. In addition, Respondent argues that such retroactive relief is inap- propriate. I find the remedial action sought by the Acting General Counsel is appropriate here. Respondent’s contention concern- ing the Board’s lack of authority misapprehends the nature of this relief sought and granted. The Acting General Counsel seeks no order or directive that would require any federal or state court, or arbitral tribunal to do anything. Instead the relief sought, and which I grant, merely requires Respondent to take action consistent with this decision by notifying any court or arbitral tribunal that have compelled the individual arbitration of claims at the request of Respondent that it is withdrawing such a motion or request and no longer objects to class or col- lective employment-related claims brought by those of its workers who qualify as employees within the meaning of Sec- tion 2(3) of the Act. If the court or tribunal chooses not to hon- or Respondent’s good-faith request for whatever reason, then so be it. And the same is true with respect to an order requiring Respondent to withdraw any pending motion seeking to prevent Section 2(3) employees from acting collectively. Respondent’s further assertion that such relief is inappropri- ate as retroactive in nature also misapprehends the nature of the relief. Any remedial order under Section 10(c) necessarily applies to the past conduct of the employer or labor organiza- tion against whom it is issued. An order that applies to a re- spondent’s own past conduct found unlawful following a hear- ing conducted in accord with the principles of due process is not the type of order that would be subject to, or require justifi- cation under, the principles of retroactive application. My rec- ommended order applies to no other pending case, no other employer, and to no other conduct than alleged unlawful in this complaint. For these reasons, Respondent’s assertions about retroactive application lack merit. [Recommended Order omitted from publication.]