FUJI Food Products, Inc.

FUJI FOOD PRODUCTS, INC. 1115 363 NLRB No. 118 Fuji Food Products, Inc. and Nancy Sandra Gonzalez. Case 21–CA–095997 February 19, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On July 15, 2014, Administrative Law Judge Jeffrey D. Wedekind issued the attached decision. The Re- spondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The judge found, applying the Board’s decision in D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), that the Re- spondent violated Section 8(a)(1) of the Act by enforcing its Confidential Information and Inventions Agreement (Agreement) in a manner that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The judge also found, relying on D. R. Horton, that maintain- ing the Agreement violated Section 8(a)(1) because em- ployees reasonably would believe that it bars or restricts their right to file unfair labor practices with the Board. In Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), the Board reaffirmed the relevant holdings of D. R. Horton, supra. The Board has considered the decision and record in light of the exceptions and briefs, 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 find- ings and conclusions,1 and adopt the recommended Order as modified and set forth in full below.2 1 Although the Agreement does not explicitly restrict activities pro- tected by Sec. 7, we agree with the judge in finding, based upon the parties’ stipulation, that the Agreement has been enforced to compel arbitration on an individual rather than a class or collective basis. Ac- cordingly, the Agreement has been applied to restrict the exercise of Sec. 7 rights, and is thus unlawful under Lutheran Heritage Village- Livonia, 343 NLRB 646, 647 (2004). See Countrywide Financial Corp., 362 NLRB 1331, 1333–1335 (2015); see also, Employers Re- source, 363 NLRB 644, 645 fn. 2 (2015). The Respondent argues that the complaint is time barred by Sec. 10 (b) because the initial unfair labor practice charge was filed and served more than 6 months after the Charging Party, Nancy Sandra Gonzalez, signed and became subject to the Agreement. We reject this argument, as did the judge, because the Respondent continued to maintain the unlawful Agreement during the 6-month period preceding the filing of the initial charge. The Board has long held under these circumstances that maintenance of an unlawful workplace rule, such as the Respond- ent’s Agreement, constitutes a continuing violation that is not time barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB 1452, 1452 (2015); Neiman Marcus Group, 362 NLRB 1286, 1287 fn. 6 (2015); and Cellular Sales of Missouri, LLC, 362 NLRB 241, 242 fn. 7 (2015). It is equally well established that an employer’s enforcement of an unlawful rule, like the Agreement here, independently violates Sec. 8(a)(1). See Murphy Oil, at 792–794. The Respondent enforced its Agreement on December 28, 2012, within the relevant 6-month period before the charge was filed and served. To the extent the Respondent argues that Charging Party Gonzalez was not engaged in concerted activity in filing the State lawsuit in State court, we reject that argument. As the Board made clear in Beyoglu, 362 NLRB 1238 (2015), “the filing of an employment-related class or collective action by an individual is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Sec- tion 7.” Id., at 1240; see also D. R. Horton, 357 NLRB 2277, 2279. We reject the Respondent’s argument that because Charging Party Gonzalez was no longer an employee at the time she filed her charge, the complaint based on her charge should be dismissed. The Board has long held that the broad definition of “employee” contained in Sec. 2(3) of the Act covers former employees. See Briggs Mfg. Co., 75 NLRB 569, 571 (1947). Accord: Leslie’s Poolmart, Inc., supra, 362 NLRB 1509, 1509 fn. 2; PJ Cheese, Inc., 362 NLRB 1452, 1454 fn. 9 (2015). Moreover, Sec. 102.9 of the Board’s Rules & Regulations provides that a charge may be filed by “any person,” without regard to whether that person is a Sec. 2(3) employee. In the absence of exceptions, we adopt pro forma the judge’s conclu- sion that the Respondent abandoned its challenge to the complaint on the ground that the Acting General Counsel at the time the complaint issued was not properly appointed. Our dissenting colleague, relying on his dissenting position in Mur- phy Oil, 361 NLRB 774, 795–808 (2015), would find that the Agree- ment does not violate Sec. 8(a)(1). He observes that the Act does not “dictate” any particular procedures for the litigation of non-NLRA claims, and “creates no substantive right for employees to insist on class-type treatment” of such claims. This is all surely correct, as the Board has previously explained in Murphy Oil, above, at 775, and Bristol Farms, 363 NLRB 442, 443 fn. 2 (2015). But what our col- league ignores is that the Act “does create a right to pursue joint, class, or collective claims if and as available, without the interference of an employer-imposed restraint.” Murphy Oil, above, at 77 (emphasis in original). The Agreement is just such an unlawful restraint. See On Assignment Staffing Services, 362 NLRB 1672, 1675, 1680 fns. 28, 29, and 31 (2015). Likewise, for the reasons explained in Murphy Oil and Bristol Farms, there is no merit to our colleague’s view that finding the Agreement unlawful runs afoul of employees’ Sec. 7 right to “refrain from” engaging in protected concerted activity. See Murphy Oil, above, at 791; Bristol Farms, above, at 449. Nor is he correct in insist- ing that Sec. 9(a) of the Act requires the Board to permit individual employees to prospectively waive their Sec. 7 right to engage in con- certed legal activity. See Murphy Oil, above, at 790–791; Bristol Farms, above, at 443. 2 Consistent with our decision in Murphy Oil, supra at 21, we adopt the judge’s remedy and shall order the Respondent to reimburse Gonza- lez and all other plaintiffs, if any, for all reasonable expenses and legal fees, with interest, incurred in opposing the Respondent’s unlawful motion in State court to compel individual arbitration of her, or 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 wrongful- ly sued for their attorneys’ fees and other expenses” as well as “any other proper relief that would effectuate the policies of the Act.”). Interest shall be computed in the manner prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). See Teamsters Local 776 1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Fuji Food Products, Inc., Santa Fe Springs, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a Confidential Information and Inven- tions Agreement (Agreement) that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board. (b) Maintaining and/or enforcing the Agreement in a manner 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. (c) 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 Agreement in all of its forms, or revise it in all of its forms to make clear to employees that the Agreement does not constitute a waiver of their right to maintain employment-related joint, class, or collective actions in all forums, and that it does not bar or restrict employees’ right to file charges with the National Labor Relations Board. (b) Notify all current and former employees who were required to sign the Agreement in any form that the Agreement has been rescinded or revised and, if revised, provide them a copy of the revised agreement. (c) Notify the Los Angeles Superior Court in Nancy Sandra Gonzalez v. Fuji Food Products, Inc., Case. No. (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 neces- sary to award interest on litigation expenses”), enfd. 973 F.2d 230 (3d Cir. 1992). We shall also amend the judge’s remedy to order the Respondent to notify the State court that it has rescinded or revised the Agreement and to inform the court that it no longer opposes Gonzalez’ lawsuit on the basis of the Agreement. We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and we shall substitute a new notice to conform to the Order as modified. We reject the position of the Respondent and our dissenting col- league that the Respondent’s motion to compel arbitration was protect- ed by the First Amendment’s Petition Clause. In Bill Johnson's Restau- rants v. NLRB, supra, the Court identified two situations in which a lawsuit enjoys no such protection: where the action is beyond a State court's jurisdiction because of Federal preemption, 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 motion to compel arbitration that have the illegal objective of limiting employees' Sec. 7 rights and enforcing an unlaw- ful contractual provision, even if the litigation was otherwise meritori- ous or reasonable. See Murphy Oil, supra, at 793–794; Convergys Corp., 363 NLRB 477, 478 fn. 5 (2015). BC487352, that it has rescinded or revised the mandatory arbitration agreement upon which it based its motion to dismiss Nancy Sandra Gonzalez’ class and representative claims, and inform the court that it no longer opposes the lawsuit on the basis of the Agreement. (d) In the manner set forth in this decision, reimburse Nancy Sandra Gonzalez and any other plaintiffs for any reasonable attorneys’ fees and litigation expenses that she, or they, may have incurred in opposing the Re- spondent’s motion to stay the collective lawsuit and compel individual arbitration. (e) Within 14 days after service by the Region, post at its facilities in Santa Fe Springs, California, copies of the attached notice marked “Appendix.”3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 21, after being signed by Respondent’s authorized representative, shall be posted by Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent cus- tomarily communicates with its employees by such means. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in these pro- ceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at any time since December 28, 2012. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that Respondent has taken to comply. MEMBER MISCIMARRA, concurring in part and dissenting in part. In this case, the Respondent required employees to sign its Confidential Information and Inventions Agree- ment (the Agreement), which provided for the arbitration of non-NLRA employment-related claims. The Agree- ment was silent regarding class arbitration. Charging Party Nancy Sandra Gonzalez signed the Agreement and later filed a class action lawsuit against the Respondent in California State court alleging wage and hour viola- 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” FUJI FOOD PRODUCTS, INC. 1117 tions. In reliance on the Agreement, the Respondent filed a motion with the court to compel individual arbi- tration of the Charging Party’s claims. That motion is still pending. My colleagues find that the Respondent violated NLRA Section 8(a)(1) under Lutheran Heritage Village– Livonia1 on the basis that the Respondent applied the Agreement to require individual arbitration. In other words, it applied the Agreement as a waiver of class-type treatment of non-NLRA claims.2 I respectfully dissent from this finding for the reasons explained in my partial dissenting opinion in Murphy Oil USA, Inc.3 I concur, however, in my colleagues’ finding that the Agreement violates the Act because employees would reasonably read it to restrict or preclude filing charges with the Board. 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.4 How- 1 343 NLRB 646 (2004). 2 My colleagues rely on the Board’s holding in Lutheran Heritage, which is sometimes referred to as Lutheran Heritage “prong three,” that a policy, work rule or handbook provision will be unlawful if it “has been applied to restrict the exercise of Section 7 rights.” Id. at 647. This differs from another holding in Lutheran Heritage, some- times referred to as Lutheran Heritage “prong one,” under which a policy, work rule or handbook provision is invalidated if “employees would reasonably construe the language to prohibit Section 7 activity.” Id. I have expressed disagreement with Lutheran Heritage prong one, and I advocate that the Board formulate a different standard in an ap- propriate future case regarding facially neutral policies, work rules, and handbook provisions. See, e.g., Lily Transportation Corp., 362 NLRB 406, 406 fn. 3 (2015); Conagra Foods, Inc., 361 NLRB 944, 951 fn. 2 (2014); Triple Play Sports Bar & Grille, 361 NLRB 301, 310 fn. 3 (2014), affd. sub nom. Three D, LLC v. NLRB, Nos. 14–3284, –3814, 2015 WL 6161477 (2d Cir. Oct. 21, 2015). In the instant case, for the reasons noted in the text, I disagree with my colleagues’ finding in reliance on Lutheran Heritage prong three that the Agreement has been unlawfully applied to restrict the exercise of Sec. 7 rights. 3 361 NLRB 774, 795–808 (2014) (Member Miscimarra, dissenting in part); see also San Fernando Post Acute Hospital, 363 NLRB 551, 556–558 (2015) (Member Miscimarra, dissenting). The Board majori- ty’s holding in Murphy Oil invalidating class action waiver agreements was denied enforcement by the Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). 4 I agree that non-NLRA claims can give rise to “concerted” activi- ties engaged in by two or more employees for the “purpose” of “mutual aid or protection,” which would come within the protection of 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). Here, I agree with the Respondent that the Charging Party was not engaged in concerted activity when, acting individually, she filed a class action lawsuit in California State court. See my dissent in Beyoglu, above. 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.”5 This aspect of Section 9(a) is reinforced by Section 7 of the Act, which protects each employee’s right to “refrain from” exercising the collective rights enumerated in Section 7. Thus, I be- lieve it is clear that (i) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims;6 (ii) a class-waiver agreement per- taining to non-NLRA claims does not infringe on any NLRA rights or obligations, which has prompted the overwhelming majority of courts to reject the Board’s position regarding class-waiver agreements;7 and (iii) 5 Murphy Oil, above, at 803–807 (Member Miscimarra, dissenting in part). Sec. 9(a) states: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive 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 804–805 (Member Miscimarra, dissenting in part). 6 When courts have jurisdiction over non-NLRA claims that are po- tentially subject to class treatment, the availability of class-type proce- dures does not rise to the level of a substantive right. See D. R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class action procedures . . . is not a substantive right.”) (citations omitted), petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980) (“[T]he right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims.”). 7 The Fifth Circuit has twice denied enforcement of Board orders 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., slip op. at 36 fn. 5 (Member Johnson, dissenting) (collect- ing cases); see also Patterson v. Raymours Furniture Co., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 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. 1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD enforcement of a class action waiver as part of an arbitra- tion agreement is also warranted by the Federal Arbitra- tion Act (FAA).8 Although questions may arise regard- ing the enforceability of particular agreements that waive class or collective litigation of non-NLRA claims, I be- lieve these questions are exclusively within the province of the court or other tribunal that, unlike the NLRB, has jurisdiction over such claims. Because I believe the Respondent’s Agreement, as ap- plied, was lawful under the NLRA, I would find it was similarly lawful for the Respondent to file a motion in state court seeking to enforce the Agreement.9 That the Respondent’s motion was reasonably based is supported by court decisions that have enforced similar agree- ments.10 As the Fifth Circuit recently observed after re- jecting (for the second time) the Board’s position regard- ing the legality of class-waiver agreements: “[I]t is a bit bold for [the Board] to hold that an employer who fol- lowed the reasoning of our D. R. Horton decision had no basis in fact or law or an ‘illegal objective’ in doing so. The Board might want to strike a more respectful balance between its views and those of circuit courts reviewing 25, 2015) (granting reconsideration of prior determination that class waiver in arbitration agreement violated NLRA). 8 For the reasons expressed in my Murphy Oil partial dissent and those thoroughly explained in former Member Johnson’s 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). 9 The Agreement is silent as to whether arbitration may be conduct- ed on a class or collective basis. In finding the Respondent’s motion to compel individual arbitration was nevertheless unlawful, my colleagues rely on Countrywide Financial Corp., 362 NLRB 1331 (2015). In Countrywide Financial, a Board majority decided that the employer violated the Act by moving to compel individual arbitration based on an arbitration agreement that, like the Respondent’s, was silent regard- ing the arbitrability of class and collective claims. For the reasons stated in Member Johnson’s dissent in Countrywide Financial, howev- er, id., at 1338–1340, the Board’s decision in that case is in conflict with the FAA and Supreme Court precedent construing that statute. The Court has held that a “party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 684–685 (2010) (emphasis in original). Obviously, where an arbitration agreement is silent regarding class arbitration, there is no such contractual basis. Thus, Respondent’s motion to compel individual arbitration was “well-founded in the FAA as authoritatively interpreted by the Supreme Court.” San Fernando Post Acute Hospital, above, at 554 fn. 11 (Member Miscimarra, dis- senting); see also Employers Resource, 363 NLRB 644, 646 fn. 9 (2015) (Member Miscimarra, dissenting); Countrywide Financial, above, at 1339 (Member Johnson, dissenting). 10 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). its orders.”11 I also believe that any Board finding of a violation based on the Respondent’s motion to compel arbitration would improperly risk infringing on the Re- spondent’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, 806–808. Finally, for simi- lar reasons, I believe the Board cannot properly require the Respondent to reimburse the Charging Party and oth- er plaintiffs for their attorneys’ fees in the circumstances presented here. Murphy Oil, 361 NLRB 774, 808.12 Accordingly, as to these issues, I respectfully dissent.13 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 11 Murphy Oil, Inc., USA v. NLRB, 808 F.3d at 1021. 12 I agree with my colleagues that the Charging Party’s status as a former employee does not deprive her of standing to file and pursue the unfair labor practice charge here. I also agree with the majority’s find- ing that the complaint is not time barred by Sec. 10(b). 13 For the following reasons, however, I concur in my colleagues’ finding that the Agreement unlawfully interferes with NLRB charge- filing in violation of Sec. 8(a)(1). Newly-hired employees were re- quired to sign the Agreement. In pertinent part, it required employees to resolve by arbitration “all disputes relating to all aspects of the em- ployer/employee relationship, . . . including, but not limited to . . . claims for wrongful discharge . . . [and] claims for violation of any federal . . . statute.” For the reasons stated in my separate opinion in Applebee’s Restaurant, 363 NLRB 682, 684–686 (2015) (Member Miscimarra, dissenting in part), I believe that an agreement may lawful- ly provide for the arbitration of NLRA claims, and such an agreement does not unlawfully interfere with Board charge-filing, at least where the agreement expressly preserves the right to file claims or charges with the Board or, more generally, with administrative agencies. Here, however, the Agreement does not qualify in any way the requirement that all claims for violation of any Federal statute must be resolved in binding arbitration and in this manner only. Without some further qualification, this language plainly precludes the filing of a Board charge. For these reasons, I join my colleagues in finding that the Agreement violates the Act by unlawfully restricting the filing of charges with the Board. See U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007); Murphy Oil, above at 795 fn. 4 (Member Miscimarra, dissenting in part); GameStop Corp., 363 NLRB 814, 819–820 (Member Miscimarra, concurring in part and dissenting in part); Applebee’s Restaurant, above (Member Miscimarra, dissenting in part). FUJI FOOD PRODUCTS, INC. 1119 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 Confidential Information and Inventions Agreement (Agreement) that our employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. WE WILL NOT maintain and/or enforce the Agreement in a manner that requires our employees, as a condition of their 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 our employees in the exercise of the rights listed above. WE WILL rescind the Agreement in all of its forms, or revise it in all of its forms to make clear that the Agree- ment does not constitute a waiver of your right to main- tain employment-related joint, class, or collective actions in all forums, and that it does not restrict your right to file charges with the National Labor Relations Board. WE WILL notify current and former employees who were required to sign or otherwise become bound to the Agreement in all of its forms that the Agreement has been rescinded or revised and, if revised, WE WILL pro- vide them a copy of the revised Agreement. WE WILL notify the court in which Nancy Sandra Gon- zalez filed her collective lawsuit that we have rescinded or revised the Agreement upon which we based our mo- tion to dismiss her collective lawsuit and compel indi- vidual arbitration, and WE WILL inform the court that we no longer oppose Gonzalez’ collective lawsuit on the basis of that Agreement. WE WILL reimburse Nancy Sandra Gonzalez and any other plaintiffs for any reasonable attorneys’ fees and litigation expenses that she, or they, may have incurred in opposing our motion to stay her lawsuit and compel individual arbitration. FUJI FOOD PRODUCTS, INC. The Board’s decision can be found at http://www.nlrb.gov/case/21–CA–095997 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. Cecelia F. Valentine, Esq., for the General Counsel. Jason A. Geller, Esq., for the Respondent Company. Matthew J. Matern, Esq., for the Charging Party. DECISION JEFFREY D. WEDEKIND, Administrative Law Judge. This is another case involving the alleged unlawful maintenance and enforcement of a mandatory-arbitration employment agree- ment. Nancy Sandra Gonzalez, the Charging Party, was initial- ly hired by Fuji Food Products in July 2009. At that time, Fuji required her to sign a so-called “Confidential Information and Inventions Agreement” (CIIA). Among other things, the CIIA stated that she agreed, “as a condition of” and “in consideration for” Fuji’s offer of employment, to resolve “all disputes relat- ing to all aspects of the employer/employee relationship, . . . including, but not limited to . . . claims for wrongful discharge . . . [and] claims for violation of any federal . . . statute,” by “final, conclusive and binding” arbitration. The CIIA did not, however, specifically address whether the disputes could be arbitrated on a class or collective basis.1 Gonzalez’ employment with Fuji lasted about 3 months, until October 2009. However, she subsequently reapplied and was rehired a year later, in October 2010. At that time, Fuji no longer required new hires to sign the CIIA. Instead, Fuji re- quired Gonzalez and other new hires to sign a document enti- tled “Employment Agreement” (EA). Unlike the CIIA, the EA did not include a mandatory arbitration provision.2 Nor did it incorporate by reference the CIIA. Indeed, it stated that the EA “contains the entire agreement” between the parties concerning its subject matter and “takes priority over all previous agree- ments.” However, Fuji never rescinded the CIIAs signed by other, current employees who were hired before October 2010, were likewise required to sign the CIIA at that time, and never signed the EA. Further, as discussed below, Fuji continued to enforce the CIIA that Gonzalez signed in 2009. Gonzalez continued to work at Fuji for about 9 months, until her employment again ended in July 2011. About 11 months later, in June 2012, she filed a putative class-action complaint in Los Angeles Superior Court, on behalf of herself and other unnamed similarly situated current and former Fuji employees, alleging wage and hour violations under the California Labor 1 The relevant provisions of the CIIA are fully set forth as Appendix A to this decision. 2 The only provision of the EA mentioning arbitration was a clause stating that the prevailing party shall be awarded reasonable attorneys’ fees and other costs “if any legal action, arbitration, or other proceeding is brought.” 1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Code. Nancy Sandra Gonzalez v. Fuji Food Products, Inc., Case No. BC487352. Gonzalez subsequently offered to submit the foregoing claims to class arbitration. However, Fuji rejected this pro- posal. Instead, on December 28, 2012, Fuji formally moved the court to dismiss and compel arbitration of the claims on an individual rather than a class basis “pursuant to the terms of the [CIIA] entered into between [Gonzalez] and Fuji” in 2009. In support, Fuji cited, inter alia, the Federal Arbitration Act (FAA) and the Supreme Court’s opinion in Stolt-Nielsen S.A. v. Ani- mal Feeds International Corp., 559 U.S. 662 (2010), which held that the parties’ intent in entering an arbitration agreement controls, and that consent to class arbitration may not be pre- sumed where, as here, the arbitration agreement is silent on the issue. Gonzalez opposed Fuji’s motion to compel individual arbi- tration, which remains pending before the court. In addition, several months later, in August 2013, she filed a motion to amend the lawsuit to add three named former employees as class representatives. This motion likewise remains pending before the court. In the meantime, Gonzalez also filed the instant unfair labor practice charges with the Board. She filed the original charge, alleging that Fuji had unlawfully enforced the CIIA to prohibit class arbitration, on January 7, 2013. She filed the amended charge, alleging that the CIIA was also unlawful on its face because it interfered with employee access to the Board, on July 2, 2013. On July 8, 2013, the General Counsel issued a complaint in- corporating both allegations. Fuji timely filed an answer deny- ing the allegations and asserting numerous defenses, and the case was therefore scheduled for hearing. However, on March 24, 2014, following several pretrial conferences, the parties jointly requested that the case be decided without a hearing based on a stipulation of facts.3 The motion was granted the following day, and the parties subsequently filed briefs on April 29, 2014. Having carefully considered the briefs and the entire stipu- lated record, for the reasons set forth below, I find that Fuji violated the Act as alleged. I. ALLEGED UNLAWFUL ENFORCEMENT OF THE CIIA As indicated by the General Counsel, Fuji’s pending motion to compel individual arbitration of Gonzalez’ class-action wage and hour suit pursuant to the CIIA is clearly unlawful under the Board’s decision in D. R. Horton, 357 NLRB 2277 (2012) (holding that mandatory arbitration agreements requiring em- ployees, as a condition of employment, to waive their right to pursue class or collective legal action in any forum, judicial or arbitral, violate Section 8(a)(1) of the Act). This is so notwith- standing that, unlike the “agreement” in Horton, the CIIA does not explicitly restrict the right to pursue class or collective re- lief in arbitration. See Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (a facially valid rule or policy may neverthe- less violate Section 8(a)(1) if it is applied to restrict the exercise 3 See Sec. 102.35(a)(9) of the Board’s rules. Jurisdiction is admit- ted and well established. of rights protected by the Act).4 Fuji argues that it had a First Amendment right to file the motion with the state court. However, the First Amendment does not protect the right to file lawsuits or motions that have an illegal objective under the NLRA. See Allied Trades Coun- cil (Duane Reade), 342 NLRB 1010, 1013 fn. 4 (2004), citing Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 738 fn. 5 (1983). As indicated above, Fuji’s motion to compel individual arbitration pursuant to the CIIA clearly had an illegal objective under the Board’s decision in Horton. Fuji also argues that the Board’s holding in Horton is incor- rect, citing the Fifth Circuit’s opinion on appeal (737 F.3d 344 (Dec. 3, 2013)) and numerous other Fderal and State court opinions rejecting it. However, I am required to follow Board precedent unless and until it is reversed by the Supreme Court. See Pathmark Stores, 342 NLRB 378 fn. 1 (2004), and cases cited there. Fuji also argues that Horton is no longer good law in light of the Supreme Court’s post-Horton opinions in CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012); and American Ex- press Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013). However, the mandatory individual arbitration provisions at issue in those cases were contained in credit card use and ac- ceptance agreements. The Court in those cases did not address the issue in the context of individual employment agreements and the well-established substantive right of employees under the NLRA to engage in concerted legal action against their employer. Moreover, there has been no indication from the Board itself that Horton is no longer good law in light of the Court’s opinions.5 Fuji also argues that Horton is invalid because one of the participating members (Member Becker) was appointed by the President during an intrasession recess, citing the D.C. Circuit’s 2013 opinion in Noel Canning v. NLRB, 705 F.3d 490. How- ever, the Supreme Court has since rejected the D.C. Circuit’s view that intra-session recesses are unconstitutional (___ S.Ct. ___, 2014 WL 2882090 (June 26, 2014)). Further, the Court’s analysis suggests that recess appointments will be upheld if the recess lasted 10 days or longer. Member Becker was appointed during a 17-day intrasession recess.6 Thus, his appointment appears to have been valid. 7 4 The General Counsel does not allege that the CIIA was unlawful on its face in light of the Supreme Court’s opinion in Stolt-Nielsen, above. 5 A cursory search of the NLRB’s website and Westlaw reveals nu- merous similar cases that have been pending before Board since the Court’s 2012 and 2013 opinions issued. Thus, the reasonable assump- tion is that the Board is marshalling its arguments in those cases to persuade the Court to uphold Horton. In any event, I will not presume otherwise. 6 See NLRB v. New Vista Nursing & Rehabilitation, 719 F.3d 203, 218 (3d Cir. 2013) (“[Member Becker] was appointed during an in- trasession break that began on March 26, 2010, and ended on April 12, 2010. This break lasted seventeen days and the Senate was indisputably not open for business.”). 7 Fuji’s answer also challenges the complaint on the ground that the Acting General Counsel at the time was not properly appointed. How- ever, Fuji appears to have abandoned this argument, presumably be- FUJI FOOD PRODUCTS, INC. 1121 Fuji also raises two other meritless defenses to the allegation. First, Fuji argues that Gonzalez lacked standing to file the un- derlying charge because she was not employed by Fuji at the time of the alleged unlawful conduct, and was therefore not protected by the NLRA. However, the statute places no limita- tion on who may file a charge. See Sec. 10 of the NLRA; and NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17 (1943). Nor does Section 102.9 of the Board’s Rules, which states that a charge may be filed by “any person.” Further, it is well established that the term “employee” under the Act in- cludes former employees of the employer. See Section 2(3) of the NLRA; Redwood Empire, Inc., 296 NLRB 369, 391 (1989); Waco, Inc., 273 NLRB 746, 747 fn. 8 (1984); Little Rock Crate & Basket Co., 227 NLRB 1406 (1977); and Briggs Mfg. Co., 75 NLRB 569 (1947).8 Moreover, Gonzalez and the other named and unnamed for- mer employees in the state court lawsuit could obviously bene- fit from a Board order requiring Fuji to cease and desist from enforcing the CIIA in the manner alleged. The circumstances here are therefore clearly distinguishable from the cases cited by Fuji arising under other federal employment statutes where courts have denied former employees standing to seek class injunctive or declaratory relief pursuant to FRCP 23. See Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 623 (9th Cir. 2010), revd. on other grounds 131 S.Ct. 2541 (2011).9 Second, Fuji argues that the complaint allegations are barred by the statutory 6-month limitations period because Gonzalez failed to file the underlying charge until several years after she signed the CIIA. However, it is well established that the maintenance and enforcement of an unlawful rule, policy, or agreement constitutes a continuing violation for purposes of tolling the Section 10(b) statute of limitations. See, e.g., Car- ney Hospital, 350 NLRB 627, 640 (2007); Register Guard, 351 NLRB 1110 fn. 2 (2007), enfd. in relevant part 571 F.3d 53 (D.C. Cir. 2009); and Central Pennsylvania Regional Council of Carpenters, 337 NLRB 1030 (2002), enfd. 352 F.3d 831 (3d Cir. 2003). As indicated by Fuji, the continuing-violation theory is inap- plicable where the maintenance and enforcement of an agree- ment outside the 6-month limitations period can only be found unlawful if the agreement was unlawfully executed within that period. See Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960) (allegation that employer and union unlawfully cause there is no dispute that the current General Counsel was validly appointed and confirmed. 8 Fuji does not contend that Gonzalez, or any of the three other for- mer employees who have agreed to join her state court lawsuit as class representatives, abandoned the work force when their employment ended. Cf. Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157 (1971). 9 Fuji also argues that Gonzalez was not engaged in concerted activ- ity when she filed the lawsuit, as she was the sole named plaintiff and there is no evidence that she filed the lawsuit on the authority of any other employees, citing Meyers Industries, 281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 108 S.Ct. 2847 (1988). I need not reach this issue given that three other former employees sub- sequently agreed to join the suit as class representatives, and Fuji did not thereafter withdraw its motion to compel individual arbitration of the claims. maintained and enforced a facially lawful union-security agreement outside the 10(b) period was barred because the allegation required the General Counsel to prove that the union lacked majority status, and that the agreement was therefore unlawful, at the time it was executed). And it is true that the Board in Horton only addressed and outlawed the maintenance and enforcement of mandatory individual arbitration agree- ments that employees had executed involuntarily, i.e., agree- ments that employees were required to execute as a condition of hire or continued employment.10 However, the CIIA states on its face that employees are re- quired to sign it as a condition of employment. Thus, unlike the parties’ enforcement of the union-security provision in Bry- an Mfg., Fuji’s enforcement of the CIIA during the 10(b) period to require individual arbitration is not “perfectly lawful on the face of things,” and proof that it is unlawful “plainly does not require resort to testimony about past events” (362 U.S. at 422 fn. 14). Further, Gonzalez had no apparent reason to file a charge over the matter within 6 months of signing the CIIA. As indi- cated above, the CIIA is completely silent regarding class or collective arbitration. And the Supreme Court’s opinion in Stolt-Nielsen that silence cannot be interpreted as consent to class arbitration (an opinion which effectively rejected contrary California court decisions)11 did not issue until April 2010, after Gonzalez’ initial 3-month period of employment had end- ed. Thus, Gonzalez had no reason or basis to file a charge that the CIIA prohibited class or collective arbitration at the time she executed and was covered by it. Nor would Gonzalez have had a reason or basis to file a charge when she was rehired in October 2010. As indicated above, she was only required to execute the EA at that time, which did not contain a mandatory arbitration provision and expressly stated that it contained “the entire agreement” be- tween the parties concerning its subject matter and took “priori- ty over all previous agreements.” In sum, the first time Gonzalez had a reason or basis to file a charge regarding the individual arbitration issue was in late December 2012, when Fuji cited the 2009 CIIA as support for its motion to dismiss the class-action lawsuit and compel indi- vidual arbitration. Thus, as she filed the charge less than a month later, it was clearly timely. See generally Salem Electri- cal Co., 331 NLRB 1575 (2000); and Leach Corp., 312 NLRB 990 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995) (6-month limi- tations period does not begin to run until a party has clear and unequivocal notice, either actual or constructive, of a violation). Finally, as discussed below, the complaint here also alleges that the CIIA on its face unlawfully interferes with the right of employees to file charges with the Board with respect to any and all future employment disputes. This is a separate issue that the Board in Horton and prior cases has not in any way sug- gested turns on whether the employees executed the arbitration 10 The Board in Horton did not address the 10(b) limitations issue, apparently because the defense was not raised by the respondent com- pany in that case. 11 See the Second Circuit’s underlying opinion in Stolt-Nielsen (which the Supreme Court reversed), 548 F.3d 85, 101 fn. 15 (2008). 1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement involuntarily.12 II. ALLEGED FACIAL OVERBREADTH OF THE CIIA It is well established that mandatory arbitration provisions are unlawful if they would reasonably lead employees to be- lieve that they could not file charges with the Board. See D. R. Horton, 357 NLRB 2277, at fn. 2 (2012), enfd. in relevant part 737 F.3d 344, 362 (5th Cir. 2013), and cases cited there. As indicated by the General Counsel, there is no basis to distin- guish this precedent on the facts here. The CIIA provision on its face states that all employment disputes under federal law must be submitted to arbitration, and there is no exception for alleged unfair labor practices under the NLRA. Accordingly, it is clearly unlawful. CONCLUSIONS OF LAW Respondent Fuji Food Products, Inc. has engaged in unfair labor practices affecting commerce within the meaning of Sec- 12 See also BP Amoco Chemical-Chocolate Bayou, 351 NLR 614 (2007); and Hughes Christensen Co., 317 NLRB 633 (1995), enf. de- nied on other grounds 101 F.3d 28 (5th Cir. 1996), and cases cited there (upholding voluntary employee severance agreements that waive the right to file unfair labor practice charges over disputes that arose during employment, provided that the agreements do not also waive the right to file charges with respect to disputes arising in the future). tion 8(a)(1) and 2(6) and (7) of the Act by the following con- duct: 1. Requesting a state court, since December 28, 2012, to compel individual arbitration of the class-action wage and hour lawsuit filed against it by former employee Nancy Sandra Gon- zalez, pursuant to the mandatory arbitration provisions of the “Confidential Information and Inventions Agreement” (CIIA) it required Gonzalez to sign as a condition of employment. 2. Maintaining, since at least January 2, 2013, provisions in the CIIA stating that employees must submit all employment- related disputes, including those arising under federal statutes, to final and binding arbitration. REMEDY The appropriate remedy for the violations found is an order requiring Fuji to cease and desist from its unlawful conduct and to take certain affirmative action. See, e.g., Allied Trades Council, and Horton, above. Interest on any monetary relief due shall be compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). [Recommended Order omitted from publication.]