Lincoln Eastern Management Corporation

112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 NLRB No. 16 Lincoln Eastern Management Corporation and Alecia Winters. Case 28–CA–147123 May 31, 2016 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN Upon a charge filed February 26, 2015, by Alecia Winters, the General Counsel issued a complaint and notice of hearing on March 31, 2015, alleging that the Respondent has been violating Section 8(a)(1) of the Act by maintaining its “Arbitration Policy” and “Employee Handbook Acknowledgement and Agreement to Arbi- trate.” On June 24, 2015, the Respondent, the Charging Party, and the General Counsel filed a joint motion to waive a hearing and a decision by an administrative law judge and to transfer this proceeding to the Board for a decision based on a stipulated record. On November 4, 2015, the Board granted the parties’ joint motion. Thereafter, the Respondent and the General Counsel filed briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record and briefs, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation with an office and place of business in Scottsdale, Arizona, has been en- gaged in the business of managing, maintaining, and leasing apartments and condominiums. In conducting its operations during the 12-month period ending February 26, 2015, the Respondent purchased and received at its facility, goods valued in excess of $50,000 directly from points outside the State of Arizona, and the Respondent derived gross revenues in excess of $500,000. The Re- spondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts The Charging Party is a former employee of the Re- spondent. At all material times, the Respondent has maintained the “Arbitration Policy” (the Policy) and has required employees to sign a document entitled the “Em- ployee Handbook Acknowledgement and Agreement to Arbitrate” (the Agreement). Both the Policy and Agree- ment are contained in the Respondent’s employee hand- book and employees are required to abide by the Policy and sign the Agreement as a condition of their employ- ment. By signing the Agreement, each employee acknowledges receipt of the Policy and agreement to its terms. The Policy applies to all current and former em- ployees hired since June 14, 2014. The Charging Party signed the Agreement during her employment with the Respondent. The 3½ -page Policy states in relevant part: • “Lincoln Property Company has a policy requiring arbitration of all claims or causes of action arising in any way from its (and its affiliates’) employment re- lationships and, as a condition of employment, re- quires all employees to agree to arbitrate disputes.” (Jt. Exh. 4, p. 49) • “It is understood and agreed that any claims or caus- es of action between you and Company, or any of its employees or agents, that arise in any way from or relate in any way to your employment or termination from employment with the Company, or any of the terms or benefits related to your employment— excluding claims covered by workers’ compensation or as otherwise specifically excluded below—will be determined exclusively by final and binding arbitra- tion.” (Jt. Exh. 4, p. 49–50) • “This Arbitration Policy is intended to broadly cover the entire relationship between [the employee] and Company and includes, without limitation (except as specifically noted herein), . . . iii) any dispute, claim or controversy arising under any state or federal common law or any state, federal or local statute or ordinance . . . . This Arbitration Policy includes all claims arising at any time during Employee’s em- ployment with Company (including any preexisting claims), and also includes claims that [the employee] may bring against other employees or agents of Company that are based in whole or in part on the employment relationship between [the employee] and Company. The arbitrator will only have author- ity to hear each employee’s individual claims and will not have the authority to (i) consolidate the claims of other employees, (ii) fashion a proceeding as a class or collective action, or (iii) award relief to a group or class of employees in one arbitration pro- ceeding. Neither Company nor you will pursue any claim against the other as a member or representa- tive of a class. In addition, nothing in this policy is intended to prevent you from filing any claims for re- lief under the National Labor Relations Act with the National Labor Relations Board or any other appro- priate administrative agency related to your em- ployment claims. In fact, following the appropriate LINCOLN EASTERN MANAGEMENT CORP. 113 administrative processes including, but not limited to, proper procedure as required by the EEOC (or equivalent state commission) for obtaining a right to suit against Company, is a prerequisite to the filing of any related arbitration. In other words, this arbi- tration process is limited to disputes, claims or con- troversies that a court of law would be authorized to consider or would have jurisdiction over to grant re- lief.” [emphasis in original] (Jt. Exh. 4, p. 50) The Agreement states in relevant part: “I agree that I have read the Arbitration Policy and any claim, dispute or controversy between myself and my employer, Lin- coln Property Company or any of its related affiliates shall be submitted to and determined exclusively by binding arbitration in accordance with [the] policy as described in the Handbook.” (Jt. Exh. 4, p. 5.) Unlike the Policy, the Agreement does not specify that employ- ees may file charges with the Board or other administra- tive agencies. B. Discussion The Board held in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in rel. part 737 F.3d 344 (5th Cir. 2013), and reaffirmed in Murphy Oil USA, Inc., 361 NLRB 774, 774 (2014), enf. denied in rel. part 808 F.3d 1013 (5th Cir. 2015), that an employer violates Section 8(a)(1) “when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral or judicial.” Additionally, an employer violates Section 8(a)(1) if employees would reasonably believe that its arbitration policy interferes with their ability to file a Board charge or to access the Board’s processes. U-Haul Co. of California, 347 NLRB 375, 377–378 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007). Here, we find that the Respondent violated Section 8(a)(1) by maintaining the Policy and the Agreement (collectively, the Respondent’s arbitration policy). First, we find that the Respondent’s arbitration policy is facial- ly unlawful under D. R. Horton and Murphy Oil. Like the policies in those cases, the Respondent’s arbitration policy requires employees, as a condition of their em- ployment, to submit their employment-related legal claims to individual arbitration, thereby compelling em- ployees to waive their Section 7 right to pursue such claims through class or collective action in all forums, arbitral and judicial.1 See Murphy Oil, 361 NLRB 774, at 774; D. R. Horton, 357 NLRB at 2277. Second, applying the test of Lutheran Heritage Vil- lage-Livonia, 343 NLRB 646 (2004), we find that the Respondent’s arbitration policy violates Section 8(a)(1) because employees would reasonably believe that the arbitration policy interferes with their ability to file a Board charge or otherwise access the Board’s processes. See SolarCity, 363 NLRB 717, 720 (2015); Murphy Oil, supra, 361 NLRB 774, 786, 792 fn. 98, 812 fn. 15; D. R. Horton, supra, 357 NLRB at 2278 fn. 2, 4; Bill’s Elec- tric, 350 NLRB 292, 296 (2007); U-Haul Co. of Califor- nia, 347 NLRB at 377–378. “Preserving and protecting access to the Board is a fundamental goal of the Act,” and so the Board must carefully examine employer rules that may interfere with this goal. SolarCity, supra, at 720. Furthermore, “the Board must recognize that ‘rank- and-file employees . . . cannot be expected to have the same expertise to examine company rules from a legal standpoint.’” Ralph’s Grocery Co., 363 NLRB 1166, 1166 (2016) (quoting SolarCity, supra, at 721). The Board construes ambiguity against the promulgator of the rule, but does not presume interference with Section 7 rights and does not read phrases in isolation. See So- larCity, supra, at 722; Lutheran Heritage, 323 NLRB at 646; U-Haul Co. of California, 347 NLRB at 377. The Respondent’s arbitration policy is ambiguous when read as a whole. The first two paragraphs of the Policy broadly require arbitration of “all claims or causes of action arising in any way from [the Respondent’s] (and its affiliates’) employment relationship.” The fol- lowing page, with the long paragraph including the pur- ported NLRB exclusion, reiterates that the Policy is “in- tended to broadly cover the entire [employment] rela- tionship. . . and includes, without limitation (except as 1 Our dissenting colleague, relying on his dissenting position in Murphy Oil, 361 NLRB 774, 795–808 (2014), would find that the arbitration 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-type treatment of non-NLRA claims.” This is surely correct, as the Board has previously explained in Murphy Oil, supra, at 775, 789 and Bristol Farms, 363 NLRB 442, 443 fn. 2 (2015). 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 interfer- ence of an employer-imposed restraint.” Murphy Oil, at 775 (emphasis in original). The Respondent’s arbitration policy is just such an unlaw- ful 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 policy unlawful runs afoul of employees’ Sec. 7 rights to “refrain from” engaging in protected activity. See Murphy Oil, at 791; Bristol Farms, at 444. Nor is he correct in insisting that Sec. 9(a) of the Act requires the Board to permit individual employees to prospectively waive their Section 7 rights to engage in concerted legal activity. Mur- phy Oil, at 790–791; Bristol Farms, at 443. 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD specifically noted herein) . . . any dispute, claim or con- troversy arising under any state or federal common law or any state, federal or local statute or ordinance.” Fur- ther along in the same paragraph, italicized text empha- sizes that the arbitrator only has the authority to hear claims and provide remedial relief on an individual basis and bars class or collective action, stating that “[n]either [the Respondent] nor [the employee] will pursue any claim against the other as a member or representative of a class.” Such broad language might confuse employees about their ability to file unfair labor practice charges, as it “clearly encompasses filing an unfair labor practice charge with the Board when that charge purports to speak to a group or collective concern.” SolarCity, su- pra, at 722. The purported NLRB exclusion follows that text, also stating in italics that “nothing in this policy is intended to prevent you from filing any claims for relief under the National Labor Relations Act with the National Labor Relations Board or any other appropriate adminis- trative agency related to your employment claims.” The next sentence, however, states that “following the appro- priate administrative processes . . . is a prerequisite to the filing of any related arbitration.” This statement seems to suggest that it is futile to file a charge with the Board because all disputes are ultimately resolved through arbi- tration. See Ralph’s Grocery Co., supra, at 1167–1168 (employer’s arbitration policy could be reasonably read to suggest that the right to file charges with Board is fu- tile; although the policy contains an NLRB exclusion, language in same paragraph dictates that disputes must nonetheless be resolved through arbitration per the poli- cy). Considering the policy as a whole, we find that it is not written in a manner reasonably calculated to assure employees that their statutory right of access to the Board’s processes remains unaffected. Accordingly, the Respondent’s arbitration policy violates Section 8(a)(1) because employees would reasonably believe that it in- terferes with their right to file charges or to access the Board’s processes. See U-Haul Co. of California, 347 NLRB at 377–378.2 2 The Respondent argues that its arbitration policy includes an ex- emption allowing employees to file charges with administrative agen- cies such as the Board, and thus does not, as in D. R. Horton, and Mur- phy Oil, unlawfully prohibit them from collectively pursuing litigation of employment claims in all forums. In support of its argument, the Respondent argues that the arbitration policy does not bar all concerted employee activity in pursuit of employment claims because it permits employees to file charges with administrative agencies that could file suit on behalf of a class of employees. We reject the Respondent’s argument for the reasons set forth above, pp. 379–380, and in SolarCity Corp., 363 NLRB 717 (2015). In his dissent, our colleague repeats his argument that an individual arbitration agreement lawfully may require the arbitration of unfair labor practice claims if the agreement reserves to employees the right to CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. By maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts them from filing charges with the National Labor Rela- tions Board or to access the Board’s processes, and by maintaining a mandatory arbitration policy under which employees are required, as a condition of employment, to waive the right to maintain employment-related class or collective actions in all forums, whether arbitral or judi- cial, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act, and has violated Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall also order the Respondent to rescind or revise its arbitration policy and to notify employees that it has done so. ORDER The National Labor Relations Board orders that the Respondent, Lincoln Eastern Management Corporation, Scottsdale, Arizona, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a mandatory arbitration policy that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board. (b) Maintaining a mandatory arbitration policy that requires employees, as a condition of employment, to waive the right to maintain employment-related class or collective actions in all forums, whether arbitral or judi- cial. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the “Arbitration Policy” (the Policy) and the “Employee Handbook Acknowledgement and Agreement to Arbitrate” (the Agreement) in all of their forms, or revise them in all of their forms to make clear to employees that they do not constitute a waiver of their file charges with the Board. As explained in Ralph’s Grocery Co., supra, at 1168, that argument is at odds with well-established Board law. LINCOLN EASTERN MANAGEMENT CORP. 115 right to maintain employment-related joint, class, or col- lective actions in all forums, and that they do 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 or otherwise become bound to the Policy and Agreement in any form that they have been rescind- ed or revised and, if revised, provide them a copy of the revised documents. (c) Within 14 days after service by the Region, post at its Scottsdale, Arizona facility copies of the attached notice marked “Appendix,” and at all other facilities where the unlawful arbitration policy is or has been in effect.3 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- utive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix” to all current em- ployees and former employees employed by the Re- spondent at any time since February 26, 2015. (d) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. MEMBER MISCIMARRA, dissenting. In this case, my colleagues find that the Respondent’s “Arbitration Policy” (Policy) and the “Employee Hand- book Acknowledgment and Agreement to Arbitrate” (Acknowledgment) violate Section 8(a)(1) of the Nation- al Labor Relations Act (the Act or NLRA) because they waive the right to participate in class or collective actions regarding non-NLRA employment claims. I respectfully dissent from this finding for the reasons explained in my 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” partial dissenting opinion in Murphy Oil USA, Inc.1 I also dissent from my colleagues’ finding that the Policy and Acknowledgment unlawfully interfere with the right of employees to file charges with the Board. 1. Legality of the class action waiver I agree that an employee may engage in “concerted” activities for “mutual aid or protection” in relation to a claim asserted under a statute other than NLRA.2 How- ever, Section 8(a)(1) of the Act does not vest authority in the Board to dictate any particular procedures pertaining to the litigation of non-NLRA claims, nor does the Act render unlawful agreements in which employees waive class-type treatment of non-NLRA claims. To the con- trary, as discussed in my partial dissenting opinion in Murphy Oil, NLRA Section 9(a) protects the right of every employee as an “individual” to “present” and “ad- just” grievances “at any time.”3 This aspect of Section 9(a) is reinforced by Section 7 of the Act, which protects each employee’s right to “refrain from” exercising the collective rights enumerated in Section 7. Thus, I be- lieve it is clear that (i) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims;4 (ii) a class-waiver agreement per- 1 361 NLRB 774, at 795–808 (2014) (Member Miscimarra, dissent- ing in part). The Board majority’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). 2 I agree that non-NLRA claims can give rise to “concerted” activi- ties engaged in by two or more employees for the “purpose” of “mutual aid or protection,” which would come within the protection of NLRA Sec. 7. See Murphy Oil, 361 NLRB 774, at 796–798 (Member Misci- marra, dissenting in part). However, the existence or absence of Sec. 7 protection does not depend on whether non-NLRA claims are pursued as a class or collective action, but on whether Sec. 7’s statutory re- quirements are met—an issue separate and distinct from whether an individual employee chooses to pursue a claim as a class or collective action. Id.; see also Beyoglu, 362 NLRB 1238, 1241–1242 (2015) (Member Miscimarra, dissenting). 3 Murphy Oil, above, at 803–807 (Member Miscimarra, dissenting in part). Sec. 9(a) states: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive represent- atives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual em- ployee or a group of employees shall have the right at any time to pre- sent grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargain- ing representative has been given opportunity to be present at such adjustment” (emphasis added). The Act’s legislative history shows that Congress intended to preserve every individual employee’s right to “adjust” any employment-related dispute with his or her employer. See Murphy Oil, at 804–805 (Member Miscimarra, dissenting in part). 4 When courts have jurisdiction over non-NLRA claims that are po- tentially subject to class treatment, the availability of class-type proce- 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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;5 and (iii) enforcement of a class-action waiver as part of an arbitra- tion agreement is also warranted by the Federal Arbitra- tion Act (FAA).6 Although questions may arise regard- ing the enforceability of particular agreements that waive class or collective litigation of non-NLRA claims, I be- lieve these questions are exclusively within the province of the court or other tribunal that, unlike the NLRB, has jurisdiction over such claims.7 2. Interference with NLRB charge filing My colleagues also find that the Respondent violated Section 8(a)(1) by maintaining the Policy and Acknowl- edgment because, in their view, reasonable employees would read the Policy and Acknowledgment as restrict- ing them from filing unfair labor practice charges with the Board. See, e.g., U-Haul Co. of California, 347 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 repeatedly denied enforcement of Board or- ders invalidating a mandatory arbitration agreement that waived class- type treatment of non-NLRA claims. See, e.g., Murphy Oil USA, Inc. v. NLRB, above; D. R. Horton, Inc. v. NLRB, above. The overwhelm- ing majority of courts considering the Board’s position have likewise rejected it. See Murphy Oil, 361 NLRB 774 at 807 (Member Misci- marra, dissenting in part); id., at 809 fn. 5 (Member Johnson, dissent- ing) (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 interlocuto- ry appeal denied 2015 WL 4035072 (N.D. Cal. June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration of prior determination that class waiver in arbitration agreement violated NLRA); 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 en- forced according to its terms. Murphy Oil, at 807 (Member Miscimar- ra, dissenting 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 relevant part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA does not render unlawful arbitration agreements that provide for the waiver of class-type litigation of non-NLRA claims, I find it unneces- sary 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 2277, 2288, by permitting the filing of complaints with administrative agencies that, in turn, may file class- or collective-action lawsuits on employees’ behalf. See Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013). NLRB 375, 377–378 (2006) (finding that employer vio- lated the Act by maintaining an arbitration policy that employees would reasonably read as prohibiting them from filing unfair labor practice charges with the Board), enfd. mem. 255 Fed. Appx. (D.C. Cir. 2007). I respect- fully disagree. The Policy and Acknowledgment broadly require arbi- tration of all employment-related claims, including those arising under the NLRA,8 but I do not believe the scope of these documents makes them violative of the Act. As I explained in Ralph’s Grocery Co.,9 GameStop Corp.,10 and Applebee’s Restaurant,11 decades of case law— including the Board’s recent decision in Babcock & Wil- cox Construction Co., 361 NLRB 1127 (2014)— establish that parties may lawfully agree to submit NLRA claims to arbitration, provided that the agreement does not otherwise interfere with NLRB charge filing.12 Such an agreement does not unlawfully prohibit the fil- ing of charges with the NLRB, particularly when the right to do so is expressly stated in the agreement itself. In this case, the Policy expressly provides that “nothing in this policy is intended to prevent you from filing any claims for relief under the National Labor Relations Act with the National Labor Relations Board” (italics in Pol- icy). This language eliminates any possible uncertainty about the right of employees to file charges with the Board.13 See Murphy Oil USA, Inc. v. NLRB, 808 F.3d at 8 The Policy is contained in the Respondent’s employee handbook. The Policy requires “arbitration of all claims or causes of action arising in any way from [the Respondent’s] . . . employment relationships.” The Policy further states that “any claims or causes of action between you and [the Respondent] . . . that arise in any way from or relate to your employment or termination from employment with [the Respond- ent] . . . will be determined exclusively by final and binding arbitra- tion,” and it reiterates that it is “intended to broadly cover the entire relationship between [the employee] and [the Respondent],” including “without limitation (except as specifically noted herein) . . . any dis- pute, claim or controversy arising under . . . any . . . federal . . . statute.” The Acknowledgment, in turn, states: “I agree that I have read the Arbitration Policy and any claim, dispute or controversy between my- self and my employer . . . shall be submitted to and determined exclu- sively by binding arbitration in accordance with [the] policy as de- scribed in the Handbook.” 9 363 NLRB 1166, 1171–1173 (2016) (Member Miscimarra, con- curring in part and dissenting in part). 10 363 NLRB 814, 817–819 (2015) (Member Miscimarra, concur- ring in part and dissenting in part). 11 363 NLRB 682, 684–686 (2015) (Member Miscimarra, concur- ring in part and dissenting in part). 12 Although NLRA claims may lawfully be made subject to arbitra- tion, the Board in all cases retains the right, under Sec. 10(a) of the Act, to independently review any allegations of unfair labor practices made in a charge filed with the Board. See, e.g., GameStop Corp., above, 363 NLRB 814, 817–818 fn. 10 (Member Miscimarra, concurring in part and dissenting in part). 13 See Applebee’s Restaurant, at 685 (Member Miscimarra, concur- ring in part and dissenting in part) (finding that employer’s Dispute LINCOLN EASTERN MANAGEMENT CORP. 117 1019–1020 (rejecting Board’s finding that employer’s Revised Arbitration Agreement, which stated that “‘[n]othing in this Agreement precludes [employees] . . . from participating in proceedings to adjudicate unfair labor practice[] charges before the [Board],’” unlawfully interfered with Board charge filing: “it would be unrea- sonable for an employee to construe the Revised Arbitra- tion Agreement as prohibiting the filing of Board charges when the agreement says the opposite”) (alterations in original). Accordingly, as set forth above, I respectfully dissent from the majority’s decision. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Resolution Program eliminated any possible uncertainty about the right of employees to file charges with the Board by stating that the Program “will not prevent you from filing a charge with any . . . federal administrative agency”). The Policy includes language expressly preserving Board charge fil- ing, but the Acknowledgement does not. In GameStop, above, 363 NLRB 814, 819–820, I found that the employer’s long-form arbitration policy protected the right to file Board charges, but I concluded that the separate acknowledgment form unlawfully interfered with Board charge filing, where (i) the acknowledgment characterized the arbitra- tion policy in a short-form manner, stating it was the employer’s “pro- cedure for resolving workplace disputes ending in final and binding arbitration,” and (ii) the acknowledgment set forth a one-sentence agreement stating that the employee agrees “that all workplace disputes or claims will be resolved under” the arbitration policy. Thus, the acknowledgment form in GameStop appeared to include a free-standing agreement, without any qualification, that all workplace disputes would be resolved in final and binding arbitration, which would preclude Board charge filing. Here, by contrast, the Acknowledgment expressly describes the employee’s agreement by reference to the Policy, which in turn makes clear that the employee retains the right to file charges with the NLRB. Thus, the Acknowledgment states the employee agrees that “any claim, dispute or controversy between myself and my employer . . . shall be submitted to and determined exclusively by bind- ing arbitration in accordance with [the] policy as described in the handbook” (emphasis added). Because the Acknowledgment indicates that employees must refer to the Policy to determine the contours of the arbitration agreement they are entering into—and, as explained above in the text, the Policy preserves the right to file Board charges—I be- lieve the Acknowledgment does not unlawfully interfere with Board charge filing. Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain a mandatory arbitration policy that our employees would reasonably believe bars or restricts their right to file charges with the National La- bor Relations Board. WE WILL NOT maintain a mandatory arbitration policy that requires our employees, as a condition of employ- ment, to waive the right to maintain employment-related class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the “Arbitration Policy” (the Policy) and the “Employee Handbook Acknowledgement and Agreement to Arbitrate” (the Agreement) in all of their forms, or revise them in all of their forms to make clear that the Policy and the Agreement do not constitute a waiver of your right to maintain employment-related joint, class, or collective actions in all forums, and that they do not restrict your right to file charges with the National Labor Relations Board. WE WILL notify all current and former employees who were required to sign or otherwise become bound to the Policy and the Agreement in any of their forms that the Policy and the Agreement have been rescinded or revised and, if revised, WE WILL provide them a copy of the re- vised documents. LINCOLN EASTERN MANAGEMENT COR- PORATION The Board’s decision can be found at www.nlrb.gov/case/28-CA-147123 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.