UNITEDHEALTHCARE SERVICES, INC. AND UNITEDHEALTH GROUP, INC., AS SINGLE OR JOINT EMPLOYERS

1238 DECISIONS OF THENATIONAL LABOR RELATIONS BOARD 363 NLRB No. 134 UnitedHealth Group, Inc. and UnitedHealth Care Ser- vices Inc. and Carlos Aviles, Seynabou Ba, Cher- rie Blackman, Siro Brenes, Robert Burnett, Ru- ben Dejesus, Dennis Edwards, Victor Feliciano, Maria Fonseca, Claudie Foutika, Lisandro Gal- van, Rosa Garcia, Mohamed Haque, Danielle Herard, Monika Krynska, Tamika Lewis, Fiordalisa Marte, Setou Mcclendon, Carmelita Ratna, Victor Serrano, Carmilo Suarez, Janira Torres, and Mirrian Zelaya. Case 02–CA–118724 February 25, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA On August 5, 2014, Administrative Law Judge Ray- mond P. Green issued the attached decision. The Re- spondents filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondents filed a reply brief. The General Counsel addi- tionally filed a cross-exception. 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, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), the judge found that the Re- spondents violated Section 8(a)(1) of the Act by maintain- ing and enforcing an arbitration policy that requires em- ployees, as a condition of employment, to waive their rights to pursue class or collective actions involving em- ployment-related claims in all forums, whether arbitral or judicial. 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. Hor- ton. 1 The Respondents argue that the complaint’s maintenance allegation is time barred by Sec. 10(b) of the Act because the initial unfair labor practice charge was filed and served more than 6 months after any of the Charging Parties signed and became subject to the arbitration policy at issue here. We reject this argument, as did the judge, because the Re- spondents continued to maintain the unlawful arbitration policy during the 6-month period preceding the filing of the initial charge. The Board has long held under these circumstances that maintenance of an unlawful workplace rule, such as the Respondents’ arbitration policy, constitutes a continuing violation that is not time-barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB 1452 (2015); The Neiman Marcus Group, Inc., 362 NLRB 1286, 1287 & fn. 6 (2015); Cellular Sales of Missouri, LLC, 362 NLRB 241, 242 & fn. 7 (2015). The Respondents argue that their arbitration policy includes an ex- emption allowing employees to file charges with administrative agen- cies, including the Board, and thus does not, as in D. R. Horton, unlaw- fully prohibit them from collectively pursuing litigation of employment claims in all forums. In support of its argument, the Respondents cite Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053–1054 (8th Cir. 2013), The Board has considered the decision and the record in light of the exceptions and briefs. Based on the judge’s application of D. R. Horton and our subsequent decision in Murphy Oil, we affirm the judge’s rulings, findings, and conclusions1 as modified below, and we adopt the judge’s recommended Order as modified and set forth in full be- low.2 The judge found that the Respondents violated Section 8(a)(1) by enforcing their unlawful arbitration policy in two lawsuits filed in federal district court: Torres v. United Healthcare Services, Inc., 920 F.Supp.2d 368 (E.D.N.Y. 2013) (Torres), and Litvinov v. UnitedHealth Group, Inc., No. 13 Civ. 8541 (KBF), 2014 WL 1054394 (S.D.N.Y. Mar. 11, 2014) (Litvinov). The Respondents contend that this finding is erroneous because (i) the com- plaint did not allege unlawful enforcement, and (ii) even assuming unlawful enforcement was alleged, the allega- tion is time-barred as to Torres. As explained below, we agree that Section 10(b) precludes finding that the Re- spondents unlawfully enforced the arbitration policy in Torres. The Respondents are also correct that the com- plaint did not allege an enforcement violation. Nonethe- less, we affirm the judge’s finding that the Respondents unlawfully enforced the arbitration policy in Litvinov be- cause the enforcement issue is “closely connected to the subject matter of the complaint and has been fully liti- gated.”3 In Torres, the Respondents filed a motion to compel ar- bitration on June 22, 2012, which the court granted on February 1, 2013. The plaintiffs appealed, but the Second Circuit issued an order granting the parties’ stipulated withdrawal of the appeal on May 17, 2013.4 The initial Board charge was filed and served more than 6 months later on December 10, 2013. Thus, the last date on which enforcement efforts remained pending in Torres—May 17, 2013—was outside 10(b)’s 6-month limitations in which the court stated, in dicta, that the arbitration agreement there did not bar all concerted employee activity in pursuit of employment claims because the agreement permitted employees to file charges with admin- istrative agencies that could file suit on behalf of a class of employ- ees. We reject this argument for the reasons set forth in SolarCity Corp., 363 NLRB 717 (2015). 2 The parties stipulated that “any order . . . shall apply equally to Respondents and all of their subsidiaries to which the Arbitration Policy applies.” The General Counsel cross-excepts to the judge’s failure to provide that all the Respondents’ subsidiaries to which the arbitration policy applies are subject to the Order. Consistent with the parties’ stip- ulation, we grant this unopposed cross-exception. We shall modify the judge’s recommended Order to conform to our findings and the Board’s standard remedial language. We shall substi- tute a new notice to conform to the Order as modified. 3 Pergament United Sales, Inc., 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). 4 Torres v. United Healthcare Services, Inc., Docket No. 13-707 (2d Cir. May 17, 2013) (available on PACER). UNITED HEALTH GROUP, INC. 1239 period. Accordingly, we are precluded from finding that the Respondents unlawfully enforced their arbitration pol- icy in Torres. Cf. Ross Stores, Inc., 363 NLRB 750 (2015) (finding allegation that employer violated the Act by en- forcing its unlawful arbitration policy timely, where em- ployer filed motion to compel arbitration outside the 6- month limitations period but continued to litigate its mo- tion within the 6-month limitations period). In Litvinov, the Respondents filed a motion to compel arbitration on February 12, 2014. Again, the charge was filed December 10, 2013; the complaint issued January 31, 2014.5 Neither the charge nor the complaint alleged that the Respondents unlawfully enforced their arbitration pol- icy in Litvinov. Indeed, they could not have so alleged, given that the filing of the motion to compel arbitration in Litvinov postdated the charge and complaint. But “[i]t is well settled that the Board may find and remedy a viola- tion even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.” Per- gament United Sales, supra; see also SNE Enterprises, Inc., 347 NLRB 472, 473, 476, 481 (2006) (finding and remedying violation that postdated the charge and com- plaint and thus was alleged in neither), enfd. 257 Fed. Appx. 642 (4th Cir. 2007). The complaint alleged that the Respondents have maintained an unlawful arbitration pol- icy. Further, the enforcement violation found by the judge flows from, and depends entirely on, the determination 5 An amended charge was filed April 11, 2014, but it did not allege unlawful enforcement of the Respondents’ arbitration policy. The Gen- eral Counsel did not issue an amended complaint. 6 As in Murphy Oil, supra, at 794–795, because Litvinov has been dismissed, we find it unnecessary to order the Respondents to remedy this enforcement violation by notifying the court that it no longer opposes the lawsuit on the basis of its unlawful arbitration policy. However, con- sistent with our decision in Murphy Oil, supra, slip op. at 21, we amend the judge’s remedy and shall order the Respondents to reimburse Maxim Litvinov, Charging Party Tamika Lewis, and any other plaintiffs who participated in Litvinov for all reasonable expenses and legal fees, with interest, incurred in opposing the Respondents’ unlawful motion in United States District Court to compel individual arbitration of their class or collective claims. See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 NLRB 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 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 Cen- ter, 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. 873 F.2d 230 (3d Cir. 1992). Our dissenting colleague, relying on his dissenting position in Murphy Oil, 361 NLRB 774, 795–808, would find that the Respondents’ arbitra- tion policy 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- whether the maintenance of the arbitration policy enforced in Litvinov was unlawful. Consequently, the unlawful en- forcement issue is closely connected to the complaint’s unlawful maintenance allegation. Moreover, we find the enforcement issue was fully litigated. The Respondents stipulated that they filed the motion to dismiss and to com- pel individual arbitration in Litvinov pursuant to their ar- bitration policy. See SNE Enterprises, 347 NLRB at 473 (unalleged issue fully litigated where respondent effec- tively admitted the dispositive facts). Accordingly, we find that, under Pergament, the unlawful enforcement is- sue is properly before us. As the Act clearly prohibits an employer from enforcing an unlawful arbitration policy by filing a motion to compel arbitration based on that policy, we find that the Respondents violated Section 8(a)(1) when they moved to compel arbitration in Litvinov.6 See, e.g., Murphy Oil, 361 NLRB 774, 792–794. ORDER The National Labor Relations Board orders that the Re- spondents, UnitedHealth Group, Inc. and UnitedHealth Care Services Inc., New York, New York, their officers, agents, successors, and assigns, and the Respondents’ sub- sidiaries to which the UnitedHealth Group Employment Arbitration Policy applies, shall 1. Cease and desist from (a) Maintaining and/or enforcing a mandatory arbitra- tion policy that requires employees, as a condition of type treatment” of such claims. This is all surely correct, as the Board has previously explained in Murphy Oil, supra, at 775, and Bristol Farms, 363 NLRB 442, 443 fn. 2. But what our colleague 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 re- straint.” Murphy Oil, supra, at 774, 775 (emphasis in original). The Re- spondents’ 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 arbitration pol- icy unlawful runs afoul of employees’ Sec. 7 right to “refrain from” en- gaging in protected concerted activity. See Murphy Oil, supra, slip op. at 18; Bristol Farms, supra, 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 activ- ity. See Murphy Oil, supra, at 790–791; Bristol Farms, supra, at 443. We also reject the position of our dissenting colleague that the Re- spondents’ motions to compel arbitration were protected by the First Amendment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB, 461 U.S. at 747, 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 that have the illegal ob- jective of limiting employees’ Sec. 7 rights and enforcing an unlawful contractual provision (such as the Respondents’ motion to compel arbi- tration in Litvinov), even if the litigation was otherwise meritorious or reasonable. See Murphy Oil, supra, at 793–794; Convergys Corp., 363 NLRB 477, 478 fn. 5 (2015). 1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate 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 em- ployees 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 manda- tory 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) In the manner set forth in this decision, reimburse Maxim Litvinov, Tamika Lewis, and any other plaintiffs for any reasonable attorneys’ fees and litigation expenses that they may have incurred in opposing the Respondents’ motion to compel individual arbitration and dismiss the complaint in Litvinov v. UnitedHealth Group, Inc., No. 13 Civ. 8541 (KBF), 2014 WL 1054394 (S.D.N.Y. Mar. 11, 2014). (d) Within 14 days after service by the Region, post at their offices nationwide where the arbitration policy is or has been in effect copies of the attached notice marked “Appendix.”7 Copies of the notices, on forms provided by the Regional Director for Region 2, after being signed by the Respondents’ authorized representative, shall be posted by the Respondents and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. In ad- dition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents customarily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the fa- cilities involved in these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of 7 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in rele- vant part 808 F.3d 1013 (5th Cir. 2015). 2 I agree that non-NLRA claims can give rise to “concerted” activities engaged in by two or more employees for the “purpose” of “mutual aid the notice to all current employees and former employees employed by the Respondents at any time since June 10, 2013. (e) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. MEMBER MISCIMARRA, concurring in part and dissenting in part. In this case, my colleagues find that the Respondents’ Arbitration Policy (the Policy) violates Section 8(a)(1) of the National Labor Relations Act (the Act or the NLRA) because the Policy waives the right to participate in class or collective actions regarding non-NLRA employment claims. Employees who had signed the Policy filed two collective-action lawsuits against the Respondents: Torres v. United Healthcare Services, Inc., 920 F.Supp.2d 368 (E.D.N.Y. 2013) (Torres), and Litvinov v. UnitedH- ealth Group, Inc., No. 13 Civ. 8541 (KBF), 2014 WL 1054394 (S.D.N.Y. Mar. 11, 2014) (Litvinov). The Re- spondents filed motions to compel arbitration and dismiss the complaints in both cases, which the courts granted. Based on Section 10(b), my colleagues find the Respond- ents did not violate Section 8(a)(1) by enforcing the Policy in Torres. My colleagues also find that although the com- plaint did not allege an enforcement violation, this issue was closely connected to the complaint’s maintenance al- legation and has been fully litigated. Accordingly, they find the Respondents did violate Section 8(a)(1) by en- forcing the Policy in Litvinov. Even assuming that finding both enforcement violations would be consistent with Sec- tion 10(b) and due process, I dissent from my colleagues’ findings that the Respondents’ Policy and its enforcement in the Litvinov lawsuit was unlawful and concur in finding that its enforcement in the Torres lawsuit was lawful for the reasons explained in my partial dissenting opinion in Murphy Oil USA, Inc.1 I agree that an employee may engage in “concerted” ac- tivities for “mutual aid or protection” in relation to a claim asserted under a statute other than NLRA.2 However, Sec- tion 8(a)(1) of the Act does not vest authority in the Board to dictate any particular procedures pertaining to the or protection,” which would come within the protection of NLRA Sec. 7. See Murphy Oil, 361 NLRB 774, 796–798 (Member Miscimarra, dis- senting in part). However, the existence or absence of Sec. 7 protection does not depend on whether non-NLRA claims are pursued as a class or collective action, but on whether Sec. 7’s statutory requirements are met—an issue separate and distinct from whether an individual em- ployee chooses to pursue a claim as a class or collective action. Id.; see also Beyoglu, 362 NLRB 1238, 1241–1242 (2015) (Member Miscimarra, dissenting). UNITED HEALTH GROUP, INC. 1241 litigation of non-NLRA claims, nor does the Act render unlawful agreements in which employees waive class- type treatment of non-NLRA claims. To the contrary, as discussed in my partial dissenting opinion in Murphy Oil, NLRA Section 9(a) protects the right of every employee as an “individual” to “present” and “adjust” grievances “at any time.”3 This aspect of Section 9(a) is reinforced by Section 7 of the Act, which protects each employee’s right to “refrain from” exercising the collective rights enumer- ated in Section 7. Thus, I believe it is clear that (i) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims;4 (ii) a class- waiver agreement pertaining to non-NLRA claims does not infringe on any NLRA rights or obligations, which has prompted the overwhelming majority of courts to reject the Board’s position regarding class-waiver agreements;5 and (iii) enforcement of a class-action waiver as part of an arbitration agreement is also warranted by the Federal Ar- bitration Act (FAA).6 Although questions may arise re- garding the enforceability of particular agreements that waive class or collective litigation of non-NLRA claims, I believe these questions are exclusively within the prov- ince of the court or other tribunal that, unlike the NLRB, has jurisdiction over such claims.7 3 Murphy Oil, above, at 803–807 (Member Miscimarra, dissenting in part). Sec. 9(a) states: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives 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 condi- tions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the inter- vention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agree- ment then in effect: Provided further, That the bargaining 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, slip op. at 31–32 (Member Miscimarra, dissenting in part). 4 When courts have jurisdiction over non-NLRA claims that are po- tentially subject to class treatment, the availability of class-type proce- dures does not rise to the level of a substantive right. See D. R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class action procedures . . . is not a substantive right.”) (citations omitted), petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980) (“[T]he right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims.”). 5 The Fifth Circuit has twice denied enforcement of Board orders in- validating a mandatory arbitration agreement that waived class-type treatment of non-NLRA claims. See Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015); D. R. Horton, Inc. v. NLRB, above. The over- whelming majority of courts considering the Board’s position have like- wise rejected it. See Murphy Oil, 361 NLRB 774, 807 (Member Because I believe the Respondents’ Policy was lawful under the NLRA, I would find it was similarly lawful for the Respondents to file motions in Federal district court seeking to enforce the Policy. It is relevant that the district courts that had jurisdiction over the non-NLRA claims granted the Respondents’ motions to compel arbitration. That the Respondents’ motions were reasonably based is also supported by court decisions that have enforced sim- ilar agreements.8 As the Fifth Circuit recently observed after rejecting (for the second time) the Board’s position regarding the legality of class-waiver agreements: “[I]t is a bit bold for [the Board] to hold that an employer who followed the reasoning of our D.R. Horton decision had no basis in fact or law or an ‘illegal objective’ in doing so. The Board might want to strike a more respectful balance between its views and those of circuit courts reviewing its orders.”9 I also believe that any Board finding of a viola- tion based on the Respondents’ meritorious federal court motions to compel arbitration would improperly risk in- fringing on the Respondents’ rights under the First Amendment’s Petition Clause. See Bill Johnson’s Restau- rants v. NLRB, 461 U.S. 731 (1983); BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002); see also my partial dis- sent in Murphy Oil, above, 361 NLRB No. 72, slip op. at 33–35. Finally, for similar reasons, I believe the Board Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member Johnson, dissenting) (collecting cases); see also Patterson v. Raymours Furniture Co., Inc., 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 interloc- utory appeal denied 2015 WL 4035072 (N.D. Cal. June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration of prior de- termination that class waiver in arbitration agreement violated NLRA); but see Totten v. Kellogg Brown & Root, LLC, No. ED CV 14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal. Jan. 22, 2016). 6 For the reasons expressed in my Murphy Oil partial dissent and those thoroughly explained in former Member Johnson’s dissent in Murphy Oil, the FAA requires that the arbitration agreement be enforced accord- ing to its terms. Murphy Oil, above, at 807 (Member Miscimarra, dis- senting in part); id., at 822–831 (Member Johnson, dissenting). 7 Because I disagree with the Board’s decisions in Murphy Oil, above and D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in pertinent part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA does not ren- der unlawful arbitration agreements that provide for the waiver of class- type litigation of non-NLRA claims, I find it unnecessary to reach whether such agreements should independently be deemed lawful to the extent they “leave open a judicial forum for class and collective claims,” D. R. Horton, 357 NLRB at 2288, by permitting the filing of complaints with administrative agencies that, in turn, may file class- or collective- action lawsuits. See Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013). 8 See, e.g., Murphy Oil USA v. NLRB, above; Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072 (9th Cir. 2014); D. R. Horton v. NLRB, above; Owen v. Bristol Care, above; Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013). 9 Murphy Oil USA v. NLRB, above at fn. 6. 1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cannot properly require the Respondents to reimburse Tamika Lewis and any other plaintiffs for their attorneys’ fees in the circumstances presented here. Murphy Oil, above, 361 NLRB 774, 808. Accordingly, I respectfully dissent. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT maintain and/or enforce a mandatory arbitra- tion policy that requires our employees, as a condition of em- ployment, to waive the right to maintain employment-related class or collective actions in all forums, whether arbitral or judi- cial. 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 any of its forms that the arbitration policy has been rescinded or revised and, if re- vised, WE WILL provide them a copy of the revised policy. WE WILL reimburse Maxim Litvinov, Tamika Lewis, and any other plaintiffs in Litvinov v. UnitedHealth Group, Inc., No. 13 Civ. 8541 (KBF), 2014 WL 1054394 (S.D.N.Y. Mar. 11, 2014), for any reasonable attorneys’ fees and litigation expenses that they may have incurred 1 By entering into the Stipulation, the parties agreed that the facts contained therein are true, albeit the parties do not concede the relevance of each fact recited. Each party reserved the right to make objections to the relevance of any fact stated. 2 The Respondents and the General Counsel reserved their respective positions as to whether the Respondents and any subsidiaries applying in opposing our motion to dismiss their collective lawsuit and compel individual arbitration. UNITEDHEALTH GROUP, INC. AND UNITEDHEALTH CARE SERVICES INC. The Board’s decision can be found at http://www.nlrb.gov/case/02-CA-118724 or by using the QR code below. Alternatively, you can obtain a copy of the de- cision from the Executive Secretary, National Labor Rela- tions Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Julie Polakoski-Rennie, Esq., for the the General Counsel. Peter A. Walker, Esq., Christopher H. Lowe, Esq., and Lori M. Meyers, Esq. (Seyfarth Shaw LLP), for the Respondent. DECISION RAYMOND P. GREEN, Administrative Law Judge. This case was presented to me by way of a stipulated record.1 The charge was filed by Outten & Golden LLP, counsel for the Charging Parties named above in the caption on December 10, 2013, and served on December 11, 2013. The amended charge was filed on April 11, 2014, and served on April 16, 2014. The complaint was issued by the Regional Director on January 31, 2014. FINDINGS AND CONCLUSIONS I. JURISDICTION The Respondents admit and I find that they are employers en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 II. THE ALLEGED UNFAIR LABOR PRACTICE The stipulated facts are as follows: Since at least September 2007, the Respondents have promul- gated and maintained individual arbitration agreements entitled “UnitedHealth Group Employment Arbitration Policy” with its current and former employees and the current and former em- ployees or its subsidiaries. A copy of an exemplar agreement, at times referred to herein as the Arbitration Agreement, is attached to the Stipulation as Exhibit G. the UnitedHealth Group Employment Arbitration Policy are or are not joint employers. They agree that in light of the stipulated record, it is unnecessary to litigate this issue or make any findings of fact or conclu- sions of law as to it. UNITED HEALTH GROUP, INC. 1243 In pertinent part, the Arbitration Policy as set forth in Exhibit G to the Stipulation; this being the document signed by Carlos J Aviles on April 3, 2012, states: Statement of Intent UnitedHealth Group… acknowledges that disagreements may arise between an individual employee and UnitedHealth Group or between employees in a context that involves UnitedHealth Group. UnitedHealth Group believes that the resolution of such disagreements is best accomplished through internal dispute resolution (IDR) and where that fails by arbitration adminis- tered through the American Arbitration Association (AAA)…. This policy is a binding contract between UnitedHealth Group and its employees. Acceptance of employment or continua- tion of employment with UnitedHealth Group is deemed to be acceptance of this Policy. However, this Policy is not a promise that employment will continue for any specified pe- riod of time or end only under certain conditions. Employment at UnitedHealth Group is a voluntary (at will) relationship ex- isting for no definite period of time and this Policy does not change that relationship Scope of Policy The agreement between each individual employee and Unit- edHealth Group to be bound by the Policy creates a contract requiring both parties to resolve most employment-related dis- putes (excluded disputes are listed below) that are based on a legal claim through final and binding arbitration. Arbitration is the exclusive forum for the resolution of such disputes and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under the Policy. The disputes covered by this Policy include any dispute be- tween an employee and any other person where (1) the em- ployee seeks to hold UnitedHealth Group liable on account of the other person’s conduct, or (2) the other person is also cov- ered by this Policy and the dispute arises from or relates to em- ployment, including termination of employment with Unit- edHealth Group. The disputes covered under the Policy also include any dispute UnitedHealth Group might have with a current or former employee which arises or relates to employ- ment. . . . . A dispute is based on a legal claim and is subject to this Policy if it arises from or involves a claim under any federal, state or local statute, ordinance, regulation or common law doctrine re- garding or relating to employment discrimination, terms and conditions of employment, or termination of employment in- cluding, but not limited to the following: Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Dis- crimination in Employment Act, the Americans with 3 Exh. H to the Stipulation which is entitled “Employment Arbitration Policy” indicates that its effective date is October 2, 1995. It differs in some respects from Exh. G which was executed in 2013 by an employee. Among other things, it excludes from mandatory arbitration a number of claim types that are not excluded in Exh. G. For example it excludes from mandatory arbitration, inter alia, claims under Title VII of the Civil Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act and all applicable amendments and regu- lations, state human rights and non-discrimination laws; whis- tleblower or retaliation claims, breach of contract, promissory estoppels, or any other contract claim, and defamation, em- ployment negligence, or any other tort claim. Claims excluded from arbitration under the Policy are claims for severance ben- efits under the UnitedHealth Group Severance Pay Plan, claims for benefits under UnitedHealth Group other ERISA benefit plans and claims for benefits under UnitedHealth Group’s Short-Term Disability Plan. A separate arbitration policy ap- plies to certain of these benefit-related claims. . . . .3 Any dispute covered by this policy will be arbitrated on an in- dividual basis. No dispute between an employee and UnitedH- ealth group may be consolidated or joined with a dispute be- tween any other employee and UnitedHealth group, nor may an individual employee seek to bring his/her dispute on behalf of other employees as a class or collective action. Any arbitra- tion ruling by an arbitrator consolidating the disputes of two or more employees or allowing class or collective action arbitra- tion would be contrary to the intent of this Policy and would be subject to immediate judicial review. This Policy does not preclude an employee from filing a claim or charge with a governmental administrative agency, such as the National Labor Relations Board, the Department of Labor, and the Equal Employment Opportunity Commission, or from filing a workers’ compensation or unemployment compensa- tion claim in a statutorily specified forum In addition, this Pol- icy does not preclude either an employee or UnitedHealth Group from seeking emergency or temporary injunctive relief in a court of law in accordance with applicable law. However, after the court has issued a ruling concerning the emergency or temporary injunctive relief, the employee and UnitedHealth Group are required to submit the dispute to arbitration pursuant to this Policy. The Policy goes on to describe the procedures relating to the arbitration process. For example, it permits either side to compel pretrial disclosure in the form of interrogatories, requests for the production of documents, the taking of depositions, and the re- quirement for submission to mental and physical examinations. It also provides for the filing of posthearing briefs. Thus, in sub- stantial respects, the procedure outlined in the Policy mimics that of a civil trial held in a Federal or State court. And unless we are exaggerating the knowledge or skill set of lawyers, we can as- sume that having competent legal counsel would be advisable for any individual who seeks to utilize this procedure. As to costs, the Policy basically allows an individual who files with the AAA to pay only a $25 filing fee. In the event that the arbitration is initiated by the Employer, the Policy states that it will pay 100 percent of the administrative fees.4 It further states Rights Act of 1964, or any tort related to or arising out of sexual assault or harassment, false imprisonment claims, negligent hiring claims and claims arising pursuant to the Dodd-Frank Wall Street Reform and Con- sumer Protection Act. 4 If an employee or group of employees files a lawsuit and the em- ployer seeks to have the lawsuit dismissed and to compel arbitration 1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) that expenses of witnesses for either side shall be paid by the party requiring the presence of such witness; and (b) that each side shall pay its own legal fees and expenses, except where such legal fees and expenses may be awarded under applicable law. The Policy goes on to state that all other expenses (except Post- ponement Fees or Additional Hearing Fees resulting from the ac- tions or inactions of the employee or employee’s representative), of the arbitration, such as required travel and other expenses of the arbitrator (including any witness produced at the direction of the arbitrator), and the expenses of a representative of AAA, if any, shall be paid completely by UnitedHealth Group. It goes on to state that if the arbitrator finds that either party’s demand for arbitration is frivolous, or vexatious, or not filed in good faith, he may require the offending party to reimburse the other party for the arbitrator’s expenses. Written in a manner perhaps un- derstandable by persons having a legal degree, I don’t think that this section of the Policy actually states or describes who will be responsible for paying the arbitrator’s fee, typically at about a $1000 per day. (Expenses are not the same thing as fees.) I don’t know the wage scales of the employees who are re- quired to sign this document as a condition of retaining their jobs, or the wage scales of those individuals who are the Charg- ing Parties in this case. But, it seems obvious to me that unless they are highly paid individuals, such as high-level or senior- level managers, having annual earnings of at least six figures, the cost structure of the Policy would clearly place employees at a substantial disadvantage vis-a-vis the company, even assuming that such employee would even be able to pay for legal representation. As such, it is probable that many employees if they were compelled to arbitrate, on a nonclass basis, their em- ployment-related claims, including wage and hour claims under Federal or State statutes, they would find themselves effectively precluded from vindicating statutory rights through nongovern- mentally initiated legal action. Nevertheless, considerations of cost or equity may not be a relevant consideration and in this respect, the Respondents cite American Express Co. v. Italian Colors Rest., U.S., No. 12-133, 6/20/13, in which the Supreme Court held that a class-action waiver in a commercial arbitration agreement between American Express Co. and merchants accepting the company’s credit cards is enforceable under the Federal Arbitration Act even if individ- ual arbitration claims of alleged antitrust violations would be too expensive to pursue. The Court’s majority opinion stated that the Federal Arbitration Act does not permit a court to invalidate a contractual waiver of class arbitration because a plaintiff’s costs in individually arbitrating a Federal statutory claim would exceed any potential recovery. Since at least September 2007 and currently, the Respondents have required their employees and the employees of their sub- sidiaries to enter into the Arbitration Agreements described above. The following employees are among those of Respondents employees who signed the Arbitration Agreement. under this Policy, does this mean that it is the employer which is initiat- ing the arbitration? UNITED HEALTH GROUP, INC. 1245 Name Hire date Termination date Date Arbitration Agreement signed Aviles, Carlos 04/02/12 02/07/13 04/03/12 Ba, Senynabou 01/31/11 06/22/11 02/23/11 Blackman, Cherrie 02/21/11 Active 02/21/11 Brenes, Siro 10/15/07 03/26/11 10/22/07 Burnett, Robert 09/27/10 07/25/13 10/07/10 Dejesus, Reuben 06/07/10 12/16/10 06/08/10 Edwards, Dennis 12/17/12 06/30/13 12/17/12 Feliciano, Victor 11/05/07 10/15/11 11/09/07 Fonseca, Maria 11/29/10 07/20/11 12/20/10 Foutika, Claudie 01/03/11 03/20/12 01/24/11 Galvan, Lisandro 10/17/11 08/09/12 11/11/11 Garcia, Rosa 02/11/13 07/12/13 03/04/13 Hague, Mohamed 01/02/08 05/13/08 01/02/08 Herard, Danielle 02/07/11 07/01/11 02/07/11 Krynska, Monika 04/08/13 11/18/13 04/08/13 Lewis, Tamika 12/17/12 05/19/13 12/17/12 Marte, Fiordalisa 09/24/07 12/17/08 10/02/07 (nee Martinez) McClendon, Sekou 12/17/12 04/28/13 12/17/12 Ratna, Carmelita 05/21/12 02/02/13 05/31/12 Serrano, Victor 08/17/09 05/29/10 09/09/09 Suarez, Camilo 11/06/12 06/22/13 11/14/12 Torres, Janira 08/03/09 10/27/11 08/22/09 Zelaya, Miriam 04/08/13 Active 04/08/13 There are more than 100,000 current and former employees of the Respondents and their subsidiaries who have been covered by the Arbitration Agreement. Since 2011, there have been ap- proximately 2500 cases which have begun the individual dispute resolution and been resolved both prior to and at arbitration, in- cluding cases involving supervisors and managers who are not covered by the National Labor Relations Act. On or about February 1, 2013, the Honorable Dennis R. Hur- ley issued a Memorandum Decision & Order compelling arbitra- tion in Torres v. United Healthcare Services, Inc., 920 F.Supp.2d 368 (E.D.N.Y. 2013). On or about December 2, 2013, Maxim Litvinov filed a class- action complaint in the United States District Court for the Southern District of New York alleging violations of the Fair La- bor Standards Act (FLSA). This is captioned Maxim Litvinov, on behalf of himself and all others similarly situated, against Unit- edHealth Group Inc., Case 13-Civ.08541-KBF. On January 3, 2014, Tamika Lewis, an employee, filed a writ- ten consent with the United States District Court for the Southern District of New York, to join in the law suit filed by Litvinov, described above. On February 12, 2014, UnitedHealth Care Group, Inc. filed a Motion with the United States District Court for the Southern District of New York in the above-described matter seeking to dismiss the claim of Litvinov and the one opt-in plaintiff, Lewis, and to compel them to arbitrate their claims individually pursu- ant to the terms of the Arbitration Agreement. On or about March 11, 2014, the Honorable Katherine B. For- rest issued a Memorandum Decision & Order enforcing the Ar- bitration Agreement and compelling arbitration of the Litvinov suit. 2014 WL 1054394 (S.D.N.Y. March 11, 2014). III. ANALYSIS It should be kept in mind what is not being decided here. We are not being asked to decide what would happen if a group of employees or a single employee on behalf of a group, disavowed the arbitration agreement, asserting that because it has no finite duration, it is terminable at will by either side. Nor are we being asked to decide what would happen if employees who file a class-action lawsuit (or disavow the arbitration agreement before doing so), are discharged on that account. Could the employer in such circumstance declare that by filing, or expressing an inten- tion to file a class-action lawsuit, the employees involved had breached their employment agreements and therefore could be discharged without violating Section 8(a)(1) of the Act? The Respondents contend that the complaint is barred by the Statute of Limitations set forth in Section 10(b) of the Act. In this regard, it is noted that the Policy was initiated more than 6 months before the charge was filed. Also, all of the individual employees cited in the charge executed arbitration agreements more than 6 months prior to the filing of the charge. Nevertheless, the complaint alleges and the Respondents con- cede that the arbitration policy is currently in force and effect. Indeed, the evidence here shows that after the filing of the charge, and before the issuance of the complaint, the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246 Respondents have successfully sought to enforce the policy by filing Motions in the Federal District Courts to compel arbitra- tions on an individual basis. The complaint essentially alleges a “continuing” violation of the Act and the Board has consistently held that an agreement entered into outside the 10(b) period may be found to be unlaw- ful if the provisions are unlawful and are being enforced within the 10(b) period. Control Services, Inc., 305 NLRB 435 fn. 2 (1991), enfd. 961 F.2d 1569 (3d Cir. 1992); Teamsters Local 293 (R. L. Lipton Distributing), 311 NLRB 538, 539 (1993); and Whiting Milk Corp., 145 NLRB 1035, 1037–1038 (1964). Indeed, the Board has held that even where an employer’s published rules restricting union or concerted activity, were en- acted and not enforced within the 10(b) period, it will violate the Act merely by maintaining such rules in existence. The Carney Hospital, 350 NLRB 627, 640 (2007). The Respondents assert that the provisions of the Policy are not illegal because among other things, various Circuit Courts have ruled that substantially similar provisions are not violative of the NLRA. This presents a chicken and egg problem because it is the General Counsel’s position that the provisions of the Pol- icy are facially illegal and the Respondents’ position is that they are not. Thus, the two questions are inextricably linked and if the General Counsel is correct, then the Respondents’ 10(b) de- fense cannot prevail. But if the Respondents are correct on the merits, then it need not rely on Section 10(b). The Respondents argue that because two Federal District Judges have already concluded that the arbitration agreements are valid under the Federal Arbitration Act, the Board is collat- erally estopped from challenging that conclusion in this case. I don’t agree. For one thing, the Board was not a party in those cases and therefore it is not bound by the legal conclusions of those cases. In Field Bridge Associates, 306 NLRB 322 (1992), the Board stated: The Board adheres to the general rule that if the Government was not a party to the prior private litigation, it is not barred from litigating an issue involving enforcement of Federal law which the private plaintiff has litigated unsuccessfully. Allbrit- ton Communications, 271 NLRB 201, 202 fn. 4. . . . Underly- ing this rule is the long-recognized principle that “Congress has entrusted to the Board exclusively the prosecution of the pro- ceeding by its own complaint, the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the de- scribed unfair conduct in order to remove obstructions to inter- state commerce.” Amalgamated Utility Workers v. Consoli- dated Edison Co., 309 U.S. 261, 265 (1940). See also National Licorice Co., v. NLRB, 309 U.S. 362–3364 (1940). . . . Thus 5 Somewhat ironically, the Respondent’s main point is that through private agreements, it should be allowed to require employees to forego their right to petition the courts. 6 This concise description of the Court’s decision may be a bit abrupt inasmuch as there were three separate opinions by the Court. Justice O’Connor wrote the opinion of the Court. Justice Breyer wrote a the Board, as a public agency asserting public rights should not be collaterally estopped by the resolution of private claims as- serted by private parties. . . . In this case, the Board was not a party to the New York State Court proceedings. Accordingly, we decline to give them a preclusive effect. The Respondents assert that Board could have been a party to the private actions filed by Litvinov and Torres and therefore should be estopped. It is legally possible for the Board, through its General Counsel, to intervene in a lawsuit having been filed in a State or Federal court of first impression. But that has oc- curred in exceptionally few instances and only in the most com- pelling of circumstances. There is nothing in the Statute which would require the Board to intervene in any private law suit which could impact on issues covered by the NLRA. The Respondents contend that by trying to prevent them from seeking judicial enforcement of the arbitration and nonclass ac- tion agreements, the Board is violating the Respondents’ First Amendment rights to petition to the Government. In this regard, the Respondents cite Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731–743 (1983), and BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002).5 The immediate question before the Supreme Court in BE & K was whether an unsuccessfully completed lawsuit could be the basis for the Board to find that an employer violated 8(a)(1) of the Act. In BE & K, the employer responded to a union’s cam- paign and lawsuits against it by filing a lawsuit of its own. Ulti- mately, all of the counts in the employer’s lawsuit were dis- missed or withdrawn. After the BE & K’s suit was concluded, two of the union-defendants filed charges with the NLRB con- tending that by filing and maintaining the lawsuit, BE & K had violated Section 8(a)(1). The Board found that the employer had violated the Act and ordered it to reimburse the unions for their attorney fees. The Supreme Court unanimously invalidated the Board’s standard for imposing unfair labor practice liability on employ- ers who file lawsuits against unions. It concluded that even if a lawsuit was motivated by retaliatory reasons and even if it was ultimately unsuccessful, a lawsuit could not be grounds for an unfair labor practice if it had some reasonable basis. That is, the Court indicated that in order to have a reasonable basis, the plain- tiff in such a lawsuit needs to only show that he is trying to stop conduct he reasonably believes is illegal. The standard set out by the Court was that the plaintiff’s belief be “genuine both ob- jectively and subjectively.” The only possible exception is a lawsuit that is shown to constitute “sham litigation.”6 Notwithstanding the above, the Supreme Court at footnote 5 in Bill Johnson, made what it described as an exception to the above-described rule.7 The Court stated: concurrence on behalf of himself and Justices Souter, Ginsberg, and Ste- vens. Justice Scalia wrote a concurrence on behalf of himself and Justice Thomas. 7 There is no indication in BE & K that the Court intended to overrule or eliminate the Bill Johnson fn. 5 UNITEDHEALTH GROUP, INC. 1247 It should be kept in mind that what is involved here is an em- ployer’s lawsuit that the federal law would not bar except for its allegedly retaliatory motivation. We are not dealing with a suit that is claimed to be beyond the jurisdiction of the state courts because of federal-law preemption, or a suit that has an objective that is illegal under federal law. Petitioner concedes that the Board may enjoin these latter types of suits. . . . Nor could it be successfully argued otherwise for we have upheld Board orders enjoining unions from prosecuting court suits for enforcement of fines that could not lawfully be imposed under the Act, Granite State Joint Board, Textile Workers Union, 187 NLRB 636, 637, enforcement denied 446 F.2d 369, revd. 409 U.S. 213; Booster Lodge No. 405 185 NLRB 380, 385, en- forced 459 F.2d 1143, affd. 412 U.S. 84, and this Court has concluded that, at the Board’s request, a District Court may en- join enforcement of a state-court injunction “where [the Board’s] federal power pre-empts the field.” NLRB v Nash- Finch Co., 404 U.S. 138, 144.8 There is a category of cases where an employer, by means of a lawsuit, has directly sought to prevent employees from having access to the Board’s processes. In such cases, it is typically al- leged that a person or persons have maliciously filed charges with the NLRB or have furnished false statements or affidavits to the agency. Such lawsuits are almost always without merit and should be preempted by the supremacy clause of the Consti- tution. While such suits would typically be baseless and moti- vated by retaliatory considerations, their mere filing would rea- sonably be expected to have a chilling effect on the right of peo- ple to have access to the Board’s processes.9 In other words, such a lawsuit is a direct attempt to prevent the Board from car- rying out its statutory mandate and can be viewed as an attempt by a private party to nullify the Board’s jurisdiction insofar as it affects that party. See for example LP Enterprises, 314 NLRB 580 (1994), and Manno Electric, Inc., 321 NLRB 278 (1996). There is another category of cases which, in my opinion, would fit within the footnote 5 exception. These involve cases where the underlying acts constitute unfair labor practices and the lawsuit is simply an attempt to enforce the underlying act. The cases cited by the Supreme Court in footnote 5, involved situations where a union was alleged to have violated Section 8(b)(1)(A) of the Act by fining employee/members and the law- suits were simply the mechanism to enforce and collect the fines. Along equivalent lines there are cases where a union is charged with violating Section 8(b)(4) and (e) of the Act when it seeks to enforce a contract provision that is itself illegal under the hot cargo provisions of the Act. In such cases, as the underlying con- tract is either facially illegal or would be illegal as enforced, a lawsuit or grievance seeking to enforce such an illegal contract provision would itself be illegal under the footnote 5 exception of Bill Johnson’s. Thus, in Elevator Constructors (Long Eleva- tor), 289 NLRB 1095, (1988), the Board held that a union 8 In NLRB v Nash-Finch Co., 404 U.S. 138 (1971), the Supreme Court held that the NLRB has implied authority to obtain a Federal court in- junction to enjoin enforcement of a State court injunction regulating peaceful picketing by a union on preemption grounds. 9 Consider the time, expense, and anxiety of defending even a frivo- lous lawsuit that is ultimately dismissed by a judge before a trial. One violated Section 8(b)(4)(ii)(A) by filing a grievance that was predicated upon a reading of the collective-bargaining agreement that, if successful, would have resulted in a de facto hot cargo clause. That is, had the grievance been successful and had it been enforced by a court, the order issued would have been one that was a violation of Section 8(e). The Board stated: Because we have concluded that the contract clause as con- strued by the Respondent would violate Section 8(e), we may properly find the pursuit of the grievance coercive, notwith- standing the Supreme Court’s decision in Bill Johnson’s Res- taurant v. NLRB, 461 U.S. 731 (1983). Although holding that the Board could not enjoin, as an unfair labor practice, the law- suit at issue in that case, the Court expressly noted that it was not dealing with a “suit that has an objective that is illegal under federal law.” 461 U.S. at 737 fn. 5. See also Teamsters Local 705 v. NLRB (Emery Air Freight), 820 F.2d 448 (D.C. Cir. 1987) (distinguishing between having an unlawful motive in bringing a lawsuit and seeking to enforce an unlawful contract provision). Finally, there are cases involving an attempt by an employer, via a lawsuit, to prohibit peaceful picketing or solicitation. Three cases discussing this type of situation are Loehmann’s Plaza, 305 NLRB 663 (1991), Riesbeck Food Markets, Inc., 315 NLRB 940 (1994), enfd. denied 91 F.3d 132 (4th Cir. 1996), and Be-Lo Stores, 318 NLRB 1, 12 (1995), enfd. denied 126 F.3d 268 (4th Cir. 1997). In Loehmann’s Plaza, supra, the Board dealt with two related issues. The first was whether the respondent’s demands that un- ion representatives cease engaging in area standards picketing and handbilling on private property in front of entrances of the target employer at a shopping mall, was a violation of Section 8(a)(1). In finding a violation, the Board applied the balancing test of Jean Country, 291 NLRB 11 (1988), and concluded that although the area standards picketing and handbilling was not at the strong end of Section 7 rights, it was worthy of accommoda- tion. In that case, the Board found that the union’s alternative means of communicating its message was not reasonable. The second issue in Loehmann’s Plaza, was whether the re- spondent violated Section 8(a)(1) by filing a State court lawsuit seeking injunctive relief. The General Counsel contended that the filing of the lawsuit was an unfair labor practice because un- der footnote 5 of Bill Johnson’s, the lawsuit was a preempted case and therefore excluded from the general principles of Bill Johnson’s. After discussing the Supreme Court’s decisions in Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180 (1978), and International Longshore- men’s Assn., AFL–CIO v. Davis, 476 U.S. 380 (1986) (both deal- ing with the issue of preemption and peaceful picketing), the Board concluded that unless and until the NLRB’s General Counsel issues a complaint alleging as an unfair labor practice, the filing of a lawsuit seeking a remedy against peaceful must file an answer; file and respond to pretrial motions; answer inter- rogatories; produce documents; and give testimony under oath in pretrial depositions. When one considers the scope of the pretrial questions that may be posed in a civil suit, one can see that being a defendant in a civil action is no small matter. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248 picketing, that lawsuit cannot be considered to be preempted within the meaning of footnote 5 and therefore the complaint should be dismissed unless the General Counsel can show that the lawsuit was baseless and motivated by retaliatory reasons. (That is, the complaint must be evaluated under the general Bill Johnson’s standards and not the footnote 5 exceptions.) On the other hand, the Board also concluded that once the General Counsel issues a complaint alleging that the lawsuit is an unfair labor practice, the respondent will violate the Act by continuing to prosecute the lawsuit, because it is now on notice that the sub- ject matter of the lawsuit is preempted. The Board stated: A different analysis is warranted with respect to the Respond- ent’s post-complaint pursuit of the state court lawsuit. The Re- spondent’s prosecution of the suit during that time period need not be evaluated under Bill Johnson’s because the suit was preempted and thus fell within the footnote 5 exception to the Court’s decision. For the reasons stated below, we find that there is a sound basis for applying a different rule to a preempted lawsuit alleged to violate Section 8(a)(1) of the Act. As illustrated by that case, a respondent pursuing a State court action seeking to enjoin alleged trespassatory union picketing has a right, without being initially preempted, to seek adjudica- tion of its property rights. However, once the General Counsel decides to initiate a formal adjudicatory proceeding, the Board’s jurisdiction is invoked and it becomes the exclusive forum for an adjudication of a respondent’s property rights. Because at that point the State court tribunal “has no power to adjudicate the [preempted] subject matter,” any attempt to continue the litiga- tion necessarily amounts to pure harassment, i.e., an effort to subject the defendant or defendants in the lawsuit to litigation costs and burdens before a tribunal that indisputably lacks juris- diction over the matter at that time. (Footnotes omitted.) In Riesbeck Food Markets, 315 NLRB 940 (1994), enfd. de- nied 91 F.3d 132 (4th Cir. 1996), the Board dealt with a situation similar to that in Loehmann’s Plaza and which involved, inter alia, allegations that the respondent violated Section 8(a)(1) by (1) denying access to private property by union pickets and hand- billers, and (2) prosecuting a State lawsuit seeking to limit peace- ful picketing and handbilling activity to public property. In that case, a Board majority concluded that where a lawsuit involves a matter which is preempted, the respondent “has an affirmative duty to take action to stay the state court proceedings following issuance of the Board complaint.” In Be-Lo Stores, 318 NLRB 1, 12 (1995), the Board found, among other things, that the respondent violated the Act by deny- ing union nonemployee picketers access to private property in order to engage in solicitation and also violated the Act by main- taining a state trespass lawsuit after the General Counsel issued a complaint alleging that the denial of access was unlawful. Cit- ing Loehmann’s Plaza, the Board found that the continuation of the lawsuit, after the complaint was issued violated Section 8(a)(1) and ordered the respondent to reimburse the union for litigation expenses incurred in the State Court proceeding. On appeal, the court refused to enforce this aspect of the Board’s Order. Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir. 1997). In this regard, the court held that the respondent did not violate Sec- tion 8(a)(1) by denying access for solicitation and picketing and therefore the lawsuit seeking an injunction could not violate the Act. It seems to me that the bottom line in all of this is that if the arbitration agreements that the Respondents have required em- ployees to execute are illegal on their face, then an attempt to enforce those agreements through legal proceedings, would be a violation of Section 8(a)(1) of the Act and would fit into the foot- note 5 exception in Bill Johnson’s. And like the discussion of Section 10(b), we have the same chicken and egg problem. If the agreements are lawful, then a lawsuit to enforce them would be lawful. But if the agreements are ultimately construed to be unlawful, then a lawsuit to enforce them would not be protected by the Supreme Court decisions in Bill Johnson’s and BE & K. The General Counsel argues that the present case is controlled by the Board’s decision in D. R. Horton Inc., 357 NLRB 2277 (2012), enf. denied 737 F.3d 344 (5th Cir. 2013). And if it was decided at a time when there was a proper quorum, then the Gen- eral Counsel would be correct because notwithstanding contrary Circuit Court decisions, I am bound to follow the Board’s view of the law until such time as it either changes its collective mind or is compelled to alter its view in light of a contrary decision by the Supreme Court. Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004); Waco Inc., 273 NLRB 746, 749 fn. 14 (1984). With respect to D. R. Horton, the Respondents assert that the decision in that case was issued on January 3, 2012, and that pur- suant to the rationale in the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), there were only two validly appointed members of the Board and therefore there was no quorum as required in New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010). Specifically, it is argued that Member Becker’s appointment to the Board had expired by that date. In Noel Canning, supra, the Court’s actual finding was that appointments made during a 3-day period beginning on January 4, 2012, were unconstitutional. That decision did not purport to decide the validity of the Board’s composition at any time prior to that date and therefore it did not directly affect the composi- tion of the Board at the time that the decision in D. R. Horton was issued; January 3, 2012. It seems that the Respondents are not seriously challenging the initial appointment of Member Becker which was made on March 27, 2010, during an intracession recess during the Second Session of the 111th Congress, occurring from March 26 to April 12, 2010. What they are asserting is that this appointment would have expired at the end of the First Session of the 112th Congress on December 30, 2011. They argue that on December 30, the Senate adjourned until the Second Session of the 112th Congress was to reconvene at noon on January 3, 2012. In this regard, the Respondents cite Article II, Section 2 of the Constitution to the affect that, “the President shall have the power to fill up all va- cancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The question, as I see it, is how we define the words, “next session.” It seems to me that this is an issue that the Board and any re- viewing courts will have to deal with, irrespective of my opinion as to the merits of this argument. Read literally, as a term of art, the constitutional provision could mean that Becker’s term should have expired at the end of December 2011 and before the UNITEDHEALTH GROUP, INC. 1249 Board issued its decision in D. R. Horton. But read in more col- loquial terms, it could be interpreted that the Senate’s action by convening “pro forma sessions” during a hiatus, was in reality, extending the existing session so that Becker’s term never actu- ally expired. However, interpreted, I think that even if not construed as binding precedent, the Board, with its current composition is likely to reaffirm the D. R. Horton decision. I therefore think that I should give it substantial if not controlling deference. This brings us finally to the decision in D. R. Horton and the respective arguments as to whether the provisions of the Federal Arbitration Act trump the provisions of the NLRA insofar as al- lowing enforceable agreements whereby employees as a condi- tion of continued employment, are required to waive certain rights to take collective actions. In this case, to file class action lawsuits relating to their wages and hours pursuant to yet another statute; the Fair Labor Standards Act. Without weighing in on the arguments for or against the Board’s decision in D. R. Horton, I nevertheless think that the Board’s rationale is reasonable and likely to be reaffirmed. (What the Circuit Courts do is another matter.) Therefore, I am going to conclude that by maintaining its arbitration policy and by enforcing arbitration agreements through court proceedings, the Respondents have interfered with the rights of employees to engage in collective actions for their mutual aid and protection and that the Respondents have therefore violated Section 8(a)(1) of the Act. REMEDY As I concluded that the Respondents have unlawfully main- tained an Arbitration Policy that precludes class or collective actions by employees, I shall recommend that they be ordered to rescind or revise that policy to make it clear to employees that the Policy and agreements made pursuant to the Policy do not constitute a waiver in all forums of their rights to maintain class or collective actions relating to their wages, hours, or other terms and conditions of employment. I shall also recommend that the Respondents be required to notify its employees of the rescinded or revised Policy. Because the Arbitration Policy has been and continues to be maintained throughout the United States, it recommended that the Respondents be ordered to post the attached notice at all lo- cations where the Policy has been or is still in effect. To the extent that the Charging Parties have incurred litigation expenses relating to the Respondents’ Motions to dismiss the class actions and to compel arbitration under those agreements made in conformance with the Arbitration Policy, it is recom- mended that the Respondents reimburse the Charging Parties for such expenses with interest as determined in Kentucky River Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds sub nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). Additionally, it is recommended that the Respondents be re- quired to file Motions with the United States District Court in Litvinov v. UnitedHealth Care Group Inc., and Torres v. United Healthcare Services Inc., requesting the withdrawal of their mo- tions to dismiss those actions and to compel arbitration of the claims made in those lawsuits. [Recommended Order omitted from publication.]