Adriana’s Insurance Services, Inc.

118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 NLRB No. 17 Adriana’s Insurance Services, Inc.; Just Auto Insur- ance Services, Inc.; Veronica’s Auto Insurance Services, Inc. and Aldo Alpizar and Liset Viamontes. Cases 31–CA–113416, 31–CA– 113417, 31–CA–113420, 31–CA–113423, 31–CA– 113425, and 31–CA–113428 May 31, 2016 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN On April 7, 2015, Administrative Law Judge Mary Miller Cracraft issued the attached decision. Respond- ents Adriana’s Insurance Services, Inc. (Adriana’s) and Just Auto Insurance Services, Inc. (Just Auto) filed joint exceptions and a supporting brief, Respondent Veroni- ca’s Auto Insurance Services, Inc. (Veronica’s) filed separate exceptions and a supporting brief, the General Counsel filed an answering brief, and Respondents Adri- ana’s and Just Auto filed a joint reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The judge found, applying the Board’s decision in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in rele- vant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), that the Respondents violated Section 8(a)(1) of the Act by enforcing an arbi- tration agreement that requires employees to waive their rights to pursue class or collective actions involving em- ployment-related claims in all forums, whether arbitral or judicial. The judge also found, relying on D. R. Horton and U-Haul of California, 347 NLRB 375, 377–378 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007), that the maintaining of the arbitration agreement by the Re- spondents Adriana’s Insurance Services, Inc. (Adriana’s) and Veronica’s Auto Insurance Services, Inc. (Veroni- ca’s) violated Section 8(a)(1) because employees reason- ably would believe that it bars or restricts their right to file unfair labor practice charges with the Board. The Board has considered the decision and the record in light of the exceptions and briefs and, based on the judge’s application of D. R. Horton and Murphy Oil, we affirm1 the judge’s rulings,2 findings,3 and conclusions4 1 The Respondents assert that the D. R. Horton decision is invalid because it was issued by a panel that included Member Becker. The appointment of Member Becker was constitutionally valid and had not expired, and thus the Board had a quorum at the time it issued D. R. Horton. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014); Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812, 814 (D.C. Cir. 2014); Gestamp South Carolina, L.L.C. v. NLRB, 769 F.3d 254, 257–258 (4th Cir. 2014); Entergy Mississippi, Inc., 361 NLRB 892 (2014), affd. in part, revd. in part on other grounds 810 F.3d 287 (5th Cir. 2015). The Respondents additionally argue that Regional Director Mori Pam Rubin was appointed at a time when the Board lacked a quorum, and therefore lacked authority to issue and prosecute the complaint. We reject this argument for the reasons stated in Prime Healthcare Centinela, d/b/a Centinela Hospital Medical Center, 363 NLRB 411, 411 fn. 2 (2015). See also Pallet Cos., 361 NLRB 339, 339–340 (2014). Finally, we reject the Respondents’ argument that the Acting Gen- eral Counsel was not properly “appointed.” The Respondents cite the decision in Hooks v. Kitsap Tenant Support Services, 2013 WL 4094344 (W.D. Wash. Aug. 13, 2013), as supporting a finding that the Acting General Counsel was not properly “appointed” under the Feder- al Vacancies Reform Act and therefore lacked authority to delegate his responsibilities to Regional Director Rubin. At the outset, we note that under the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., a person is not “appointed” to serve in an acting capacity in a vacant office that otherwise would be filled by appointment by the President, by and with the advice and consent of the Senate. Rather, either the first assistant to the vacant office per- forms the functions and duties of the office in an acting capacity by operation of law pursuant to 5 U.S.C. § 3345(a)(1), or the President directs another person to perform the functions and duties of the vacant office in an acting capacity pursuant to 5 U.S.C. § 3345(a)(2) or (3). On June 18, 2010, the President directed Lafe Solomon, then- Director of the NLRB’s Office of Representation Appeals, to serve as Acting General Counsel pursuant to subsection (a)(3)—the senior agency employee provision. Under the strictures of that provision, Solomon was eligible to serve as Acting General Counsel at the time the President directed him to do so. See S. W. General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), rehearing en banc denied, Nos. 14–1107 & 14–1121, 2016 U.S.App.LEXIS 981 (D.C. Cir. Jan. 20, 2016). Thus, Solomon properly assumed the duties of Acting General Counsel and we find no merit in the Respondents’ affirmative defense that the Act- ing General Counsel was “improperly and unlawfully appointed.” We acknowledge that the court in S. W. General also held that Sol- omon lost his authority as Acting General Counsel on January 5, 2011, when the President nominated him to be General Counsel. While that question is still in litigation, the Respondent never raised that argument in this proceeding, and we find that it has waived the right do so. Finally, on October 22, 2015, General Counsel Richard F. Griffin, Jr., issued a Notice of Ratification which states, in relevant part, I was confirmed as General Counsel on November 4, 2013. After ap- propriate review and consultation with my staff, I have decided that the issuance of the complaint in this case and its continued prosecution are a proper exercise of the General Counsel’s broad and unreviewa- ble discretion under section 3(d) of the Act. My action does not reflect an agreement with the appellate court rul- ing in S.W. General. Rather, my ratification authorizes the continued prosecution of this matter and facilitates the timely resolution of the charges that I have found meritorious. Congress expressly exempted “the General Counsel of the National Labor Relations Board” from the FVRA provisions that would otherwise preclude the ratification of certain actions of other persons found to have served in violation of the FVRA. [Citation omitted.] For the foregoing reasons, I hereby ratify the issuance and continued prosecution of the complaint. Even if the Respondent had not previously waived its right to chal- lenge the continued authority of the Acting General Counsel following his nomination by the President, this ratification by the General Coun- ADRIANA’S INSURANCE SERVICES 119 sel would render moot any argument that the S. W. General holding concerning the former Acting General Counsel’s authority precludes further litigation in this matter. The Respondents filed a response to the Notice of Ratification on December 4, 2015, arguing that General Counsel Griffin lacks the authority to ratify the actions taken by former Acting General Counsel Solomon because those actions were void under S. W. General. We reject this argument. The Respondent has misstated the holding of S. W. General. In that case the court recognized that the General Counsel of the National Labor Relations Board is one of several officers ex- pressly exempted from the “void-ab-initio” and “no ratification” provi- sions of the FVRA. 796 F.3d at 78–79, citing 5 U.S.C. § 3348(e)(1). Therefore, the court treated the actions of an improperly serving Acting General Counsel as “voidable, not void,” and indicated that any statuto- ry defect in actions could be cured through ratification by a subsequent, properly appointed General Counsel. Id. (discussing 5 U.S.C. § 3348); see also Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 (D.C.Cir.1998); Federal Election Commission v. Legi– Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996). Indeed, the court held that the Board’s order finding the violation in S. W. General “did not ratify or otherwise render harmless the FVRA defect in the ULP complaint” precisely because, given the scope of prosecutorial discretion under the Act, it could not be confident that the underlying complaint would have been issued by a different General Counsel. 796 F.3d at 80–81. Here, there is no such uncertainty: the issuance of the complaint and its con- tinued prosecution have been expressly ratified by General Counsel Griffin. 2 Respondents Adriana’s and Veronica’s argue that the judge erred in excluding from evidence a new arbitration agreement they assertedly have adopted, which they claim clearly permits filing charges with the Board. The mere adoption of a new rule, without more, does not serve as a defense to an unfair labor practice finding. See New Passages Behavioral Health & Rehab, 362 NLRB 435, 435–436 (2015); Passa- vant Memorial Area Hospital, 237 NLRB 138, 138–139 (1978). Ac- cordingly, the judge’s evidentiary ruling was not an abuse of discretion. The Respondents may introduce any new agreement at the compliance stage of these proceedings to show they have rescinded the unlawful agreement. 3 The Respondents argue that the complaint is time barred by Sec. 10 (b) because the initial unfair labor practice charge was filed and served more than 6 months after the Charging Parties signed and became sub- ject to the Agreement for Binding Arbitration. We reject this argument because the Respondents continued to maintain the unlawful agreement during the 6-month period preceding the filing of the initial charge. The Board has long held under these circumstances that maintenance of an unlawful workplace rule, such as the Respondents’ arbitration poli- cy, constitutes a continuing violation that is not time barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB 1452, 1452 (2015); Neiman Marcus Group, 362 NLRB 1286, 1287 and fn. 6 (2015); and Cellular Sales of Missouri, LLC, 362 NLRB 241, 242 and fn. 7 (2015). The dissent asserts that “[t]he class-action waiver agreements were voluntarily signed, even though the Respondents were willing to hire employees or continue their employment only if they entered into the agreements” This assertion does not withstand scrutiny. Under estab- lished law in Horton and the many cases following it, the material question is whether the employees were required to sign the waiver agreements “as a condition of their employment.” D. R. Horton, supra, 357 NLRB at 2277. By the dissent’s own admission, they were. Moreover, employees who sign the agreements after being told that, if they don’t sign, they can look elsewhere for a job, can hardly be said to have signed “voluntarily.” In any event, the Board holds that an arbi- tration agreement that, as applied, precludes collective action in all forums is unlawful even if entered into voluntarily, because it requires and adopt the recommended Order as modified and set forth in full below.5 employees to prospectively waive their Sec. 7 right to engage in con- certed activity. See Haynes Building Services, 363 NLRB 1149, 1151 fn. 12; Bristol Farms, 363 NLRB 442 (2015); On Assignment Staffing Services, 362 NLRB 1672, 1672, 1676–1679 (2015). We accordingly need not pass on whether the agreements here are voluntary. The Respondents argue that their arbitration policy includes an ex- emption allowing employees to file charges with a governmental agen- cy, such as the Equal Employment Opportunity Commission, and thus does not, as in D. R. Horton, unlawfully prohibit them from collectively pursuing litigation of employment claims in all forums. In support of their argument, the Respondents cite Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053–1054 (8th Cir. 2013), 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 agree- ment permitted employees to file charges with administrative agencies that could file suit on behalf of a class of employees. We reject the Respondents’ argument for the reasons set forth in SolarCity Corp., 363 NLRB 722 (2015). 4 Our dissenting colleague, relying on his dissenting position in Murphy Oil, 361 NLRB 774, 795–808 (2014), would find that the Respondents’ arbitration agreement does not violate Sec. 8(a)(1). He observes that the Act does not “dictate” any particular procedures for the litigation of non-NLRA claims, and “creates no substantive right for employees to insist on class-type treatment” of such claims. This is all surely correct, as the Board has previously explained in Murphy Oil, at 775, 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 interference of an employer-imposed restraint.” Murphy Oil, at 775 (emphasis in original). The Respondents’ agreement is just such an unlawful re- straint. Likewise, for the reasons explained in Murphy Oil and Bristol Farms, there is no merit to our colleague’s view that finding the agree- ment unlawful runs afoul of employees’ Sec. 7 right to “refrain from” engaging in protected concerted activity. See Murphy Oil, at 791; Bris- tol Farms, at 443. Nor is he correct in insisting that Sec. 9(a) of the Act requires the Board to permit individual employees to prospectively waive their Sec. 7 right to engage in concerted legal activity. See Mur- phy Oil, at 790–791; Bristol Farms, at 443. Further, we reject the position of the Respondents and our dissenting colleague that the Respondents’ motion to compel individual arbitration was protected by the First Amendment’s Petition Clause. In Bill John- son’s Restaurants v. NLRB, 461 U. S. 731, 747 (1983), the Court identi- fied two situations in which a lawsuit enjoys no such protection: where the action is beyond a State court’s jurisdiction because of Federal preemption, and where “a suit . . . has an objective that is illegal under federal law.” 461 U. S. at 737 fn. 5. Thus, the Board may properly restrain litigation efforts such as the Respondent’s motion to compel arbitration that have the illegal objective of limiting employees’ Sec. 7 rights and enforcing an unlawful contractual provision, 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). 5 We amend the judge’s remedy and shall order the Respondents to reimburse Charging Parties Aldo Alpizar and Liset Viamontes and any other plaintiffs for all reasonable expenses and legal fees, with interest, incurred in opposing the Respondents’ unlawful motion in State court to compel individual arbitration of their class or collective claims. See Bill Johnson’s Restaurants v. NLRB, 461 U. S. 731, 747 (1983) (“If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorneys’ fees and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120 ORDER A. The National Labor Relations Board orders that the Respondent, Adriana’s Insurance Services, Inc., Rancho Cucamonga, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining an Arbitration Agreement and Agree- ment for Binding Arbitration that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board. (b) Enforcing an arbitration agreement in a manner that requires employees to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the unlawful Arbitration Agreement and Agreement for Binding Arbitration in all of their forms, or revise them in all of their forms to make clear to em- ployees that each Agreement does not bar or restrict em- ployees’ right to file charges with the National Labor Relations Board. (b) Notify all current and former employees who signed the Agreement for Binding Arbitration or to whom the Agreement for Binding Arbitration or the Ar- bitration Agreement was presented that they have been rescinded or revised and, if revised, provide them a copy of the revised Agreements. (c) Notify the Superior Court of California, County of Los Angeles, Central Civil West, in Case Number BC502472 and the California Court of Appeal, Second Appellate District, Division Three, in Case Number other expenses” as well as “any other proper relief that would effectu- ate the policies of the Act.”). Interest shall be computed in the manner prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole orders for suits maintained in violation of the Act, it is appropriate and necessary to award interest on litigation expenses”), enfd. 973 F.2d 230 (3d Cir. 1992). We shall also amend the judge’s remedy to order the Respondent to notify the state superior and appellate court that it has rescinded or revised the Arbitration Agreement and Agreement for Binding Arbitra- tion and to inform these courts that it no longer opposes the Charging Parties Aldo Alpizar and Liset Viamontes’ lawsuit on the basis of the Arbitration Agreement and Agreement for Binding Arbitration. Finally, we shall modify the judge’s recommended Order to conform to our findings, the amended remedy, and to the Board’s standard re- medial language, and we shall substitute new notices to conform to the Order as modified. BC502472 that it has rescinded or revised the Agreement for Binding Arbitration and the Arbitration Agreement upon which it based its motion to compel arbitration of the claims of Aldo Alpizar and Liset Viamontes, and inform the court that it no longer opposes their lawsuit on the basis of the Agreement for Binding Arbitration and the Arbitration Agreement. (d) In the manner set forth in this decision, reimburse Aldo Alpizar and Liset Viamontes and any other plain- tiffs for any reasonable attorneys’ fees and litigation ex- penses that they may have incurred in opposing the Re- spondent’s motion to compel individual arbitration. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Rancho Cucamonga, California location copies of the attached notice marked “Appendix A,”6 and at all other locations where the Arbitration Agreement and Agree- ment for Binding Arbitration have been maintained, cop- ies of the attached notice marked “Appendix B.”7 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice marked “Appendix A” to all current employees and for- mer employees employed by the Respondent at any time 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 7 See fn. 6 above. ADRIANA’S INSURANCE SERVICES 121 since March 13, 2013, and any former employees against whom the Respondent has enforced its arbitration agreements since March 13, 2013. If the Respondent has gone out of business or closed any facilities other than the ones involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix B” to all current employees and former employees employed by the Respondent at those facilities at any time since August 23, 2011. (g) Within 21 days after service by the Region, file with the Regional Director for Region 31 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. B. The National Labor Relations Board orders that the Respondent, Veronica’s Auto Insurance Services, Inc., San Bernardino, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Maintaining an Arbitration Agreement and Agree- ment for Binding Arbitration that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board. (b) Enforcing an arbitration agreement in a manner that requires employees to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the unlawful Arbitration Agreement and Agreement for Binding Arbitration in all of their forms, or revise them in all of their forms to make clear to em- ployees that each Agreement does not bar or restrict em- ployees’ right to file charges with the National Labor Relations Board. (b) Notify all current and former employees who signed the Agreement for Binding Arbitration or to whom the Agreement for Binding Arbitration or the Ar- bitration Agreement was presented that it has been re- scinded or revised and, if revised, provide them a copy of the revised Agreements. (c) Notify the Superior Court of California, County of Los Angeles, Central Civil West, in Case Number BC502472 and the California Court of Appeal, Second Appellate District, Division Three, in Case Number BC502472 that it has rescinded or revised the Agreement for Binding Arbitration and the Arbitration Agreement upon which it based its motion to compel arbitration of the claims of Aldo Alpizar and Liset Viamontes, and inform the court that it no longer opposes their lawsuit on the basis of the Agreement for Binding Arbitration and the Arbitration Agreement. (d) In the manner set forth in this decision, reimburse Aldo Alpizar and Liset Viamontes and any other plain- tiffs for any reasonable attorneys’ fees and litigation ex- penses that they may have incurred in opposing the Re- spondent’s motion to compel individual arbitration. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its San Bernardino, California location copies of the at- tached notice marked “Appendix C,”8 and at all other locations where the Arbitration Agreement and Agree- ment for Binding Arbitration have been maintained, cop- ies of the attached notice marked “Appendix D.”9 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 31, after being signed by the Respond- ent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice marked “Appendix C” to all current employees and for- mer employees employed by the Respondent at any time since March 13, 2013, and any former employees against whom the Respondent has enforced its arbitration agreements since March 13, 2013. If the Respondent has gone out of business or closed any facilities other than the ones involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix D” to all current employ- 8 See fn. 6 above. 9 See fn. 6 above. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122 ees and former employees employed by the Respondent at those facilities at any time since August 23, 2011. (g) Within 21 days after service by the Region, file with the Regional Director for Region 31 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. C. The National Labor Relations Board orders that the Respondent, Just Auto Insurance Services, Inc., Ontario, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Enforcing an arbitration agreement in a manner that requires employees to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Inform the Superior Court of California, County of Los Angeles, Central Civil West, in Case Number BC502472 and the California Court of Appeal, Second Appellate District, Division Three, in Case Number BC502472 that it no longer opposes the lawsuit of Aldo Alpizar and Liset Viamontes on the basis of the Agree- ment for Binding Arbitration and the Arbitration Agree- ment upon which it based its motion to compel arbitra- tion of the claims of Aldo Alpizar and Liset Viamontes. (b) In the manner set forth in this decision, reimburse Aldo Alpizar and Liset Viamontes and any other plain- tiffs for any reasonable attorneys’ fees and litigation ex- penses that they may have incurred in opposing the Re- spondent’s motion to compel individual arbitration. (c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its Ontario, California location copies of the attached notice marked “Appendix E.” 10 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized repre- 10 See fn. 6 above. sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable 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 facilities involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix E” to all current employees and former employees employed by the Respondent at any time since March 13, 2013, and any former employees against whom the Respondent has enforced its arbitration agreements since March 13, 2013. (g) Within 21 days after service by the Region, file with the Regional Director for Region 31 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, concurring in part and dissenting in part. In this case, my colleagues find that the Respondents violated Section 8(a)(1) of the National Labor Relations Act (NLRA or the Act) when they enforced the Agree- ment for Binding Arbitration by filing a motion to com- pel individual arbitration of claims asserted by Charging Parties Aldo Alpizar and Liset Viamontes in a State- court class action lawsuit against the Respondents alleg- ing wage and hour violations of the California Labor Code. The Respondents filed their motion, which the court denied, in reliance on the Agreement for Binding Arbitration, which Alpizar and Viamontes signed, and which requires that non-NLRA employment claims be resolved through arbitration. I respectfully dissent from this finding for the reasons explained in my partial dis- senting opinion in Murphy Oil USA, Inc.1 For the rea- sons stated below, I concur in finding that the Agreement for Binding Arbitration and a separate Arbitration Agreement (collectively, the Agreements) violated Sec- 1 361 NLRB 774, 795–808 (2014) (Member Miscimarra, dissenting in part). The Board majority’s holding in Murphy Oil invalidating class-action waiver agreements was denied enforcement by the Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). ADRIANA’S INSURANCE SERVICES 123 tion 8(a)(1) because they unlawfully interfere with NLRB charge filing.2 1. Alleged Interference with Class Action Participa- tion. I agree that an employee may engage in “concert- ed” activities for “mutual aid or protection” in relation to a claim asserted under a statute other than the NLRA.3 However, Section 8(a)(1) of the Act does not vest author- ity in the Board to dictate any particular procedures per- taining 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 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 “ad- just” grievances “at any time.”4 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;5 (ii) a class-waiver agreement per- 2 I also agree with my colleagues that the Board had a quorum at the time it issued the decision in D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), that the instant case is properly before the Board, and that the charges were not untimely filed and served under Sec. 10(b) of the Act. 3 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). 4 Murphy Oil, at 803–807 (Member Miscimarra, dissenting in part). Sec. 9(a) states: “Representatives designated or selected for the purpos- es 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 griev- ances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjust- ment is not inconsistent with the terms of a collective-bargaining con- tract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjust- ment” (emphasis added). The Act’s legislative history shows that Con- gress 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). 5 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, 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;6 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).7 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.8 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.”). 6 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 overwhelming majority of courts considering the Board’s position have likewise re- jected it. See Murphy Oil, 361 NLRB 774, at 807 (Member Miscimar- ra, dissenting in part); id. at 809 fn. 5 (Member Johnson, dissenting) (collecting cases); see also Patterson v. Raymours Furniture Co., 96 F.Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco USA, Inc., 99 F.Supp. 3d 1072 (N.D. Cal. 2015), motion to certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30, 2015); Brown v. Citicorp Credit Services., No. 1:12-CV-00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 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). 7 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). 8 The class-action waiver agreements were voluntarily signed, even though the Respondents were willing to hire employees or continue their employment only if they entered into the agreements. For my colleagues, however, the voluntariness of such a waiver is immaterial. They indicate that the waiver was “unlawful even if entered into volun- tarily.” See On Assignment Staffing Services, Inc., 362 NLRB 1672 (2015) (finding class-action waiver agreement unlawful even where employees are free to opt out of the agreement); Bristol Farms, 363 NLRB 442 (2015) (finding class-action waiver agreement unlawful even where employees must affirmatively opt in before they will be covered by a class-action waiver agreement, and where they are free to decline to do so). By definition, every agreement sets forth terms upon which each party may insist as a condition to entering into the relation- ship governed by the agreement. Thus, conditioning employment on the execution of a class-action waiver does not make it involuntary. However, the Board’s position is even less defensible when the Board finds that NLRA “protection” operates in reverse—not to protect em- ployees’ rights to engage or refrain from engaging in certain kinds of collective action, but to divest employees of those rights by denying them the right to choose whether to be covered by an agreement to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124 Because I believe the Respondents’ Agreement was lawful under the NLRA, I would find it was similarly lawful for the Respondents to file a motion in State court seeking to enforce the Agreement.9 That the Respond- ents’ motion was reasonably based is supported by court decisions that have enforced similar agreements.10 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 rea- soning 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 or- litigate non-NLRA claims on an individual basis. See Bristol Farms, at 443–445 (Member Miscimarra, dissenting). Because I disagree with the Board’s decisions in Murphy Oil, above, and D. R. Horton, above, and I believe the NLRA does not render un- lawful 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 2277, 2286, by permitting the filing of com- plaints 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). 9 As I explain below, I concur in my colleagues’ finding that the Agreements unlawfully interfered with the right of employees to allege a violation of the NLRA through the filing of an unfair labor practice charge with the NLRB. However, the unlawfulness of the Agreements in this regard is not material to the merits of the Respondents’ state court petition, in reliance on the Agreement for Binding Arbitration, to compel the Charging Parties to arbitrate their non-NLRA claims. See Fuji Food Products, 363 NLRB 1115, 1118, 1118–1119 fn. 13 (2016) (Member Miscimarra, concurring in part and dissenting in part) (find- ing that employer lawfully enforced class-waiver agreement by filing motion to compel arbitration of non-NLRA claims, notwithstanding additional finding that agreement unlawfully interfered with Board charge filing). 10 See, e.g., Murphy Oil USA, Inc. v. NLRB, above; Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., above; Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013). The Agreement for Binding Arbitration is silent as to whether arbi- tration may be conducted on a class or collective basis. For the reasons stated in former Member Johnson’s dissent in Countrywide Financial Corp., 362 NLRB 1331, 1338–1340 (2015), and my dissent in Philmar Care, LLC, 363 NLRB 551 , 558 fn. 11 (2015), finding that the Re- spondents’ efforts to compel individual arbitration violated the Act is in conflict with the FAA and Supreme Court precedent construing that statute. The Court has held that a “party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 684–685 (2010) (em- phasis in original). Obviously, where an arbitration agreement is silent regarding class arbitration, there is no such contractual basis. Thus, Respondent’s motion to compel individual arbitration “was well- founded in the FAA as authoritatively interpreted by the Supreme Court.” Philmar Care, LLC, above (Member Miscimarra, dissenting). ders.”11 I also believe that any Board finding of a viola- tion based on the Respondents’ meritorious State court motion to compel arbitration would improperly risk in- fringing on the Respondents’ rights under the First Amendment’s Petition Clause. See Bill Johnson’s Res- taurants v. NLRB, 461 U.S. 731 (1983); BE & K Con- struction Co. v. NLRB, 536 U.S. 516 (2002); see also my partial dissent in Murphy Oil, above, 361 NLRB 774, at 806–808. Finally, for similar reasons, I believe the Board cannot properly require the Respondents to reim- burse the Charging Parties and any other plaintiffs for their attorneys’ fees in the circumstances presented here. Murphy Oil, above, 361 NLRB 774, at 808. 2. Alleged Interference with NLRB Charge Filing. For the following reasons, however, I concur in my col- leagues’ finding that the Agreements unlawfully interfere with NLRB charge filing in violation of NLRA Section 8(a)(1).12 In pertinent part, the Arbitration Agreement, which is contained in an employee handbook, requires employees to resolve by arbitration “any dispute, contro- versy or claim arising out of or related to the employ- ment relationship, including without limitation . . . all . . . statutory claims, . . . to the extent the law provides such claims may be arbitrated . . . .” And the Agreement for Binding Arbitration states in relevant part: “I knowingly and voluntarily agree to submit and settle any dispute, controversy or claim arising out of or relating to my em- ployment relationship . . . to arbitration as described in the ‘Arbitration Agreement’ section of the handbook.” 11 Murphy Oil USA, Inc. v. NLRB, 808 F.3d at 1021. 12 I agree with my colleagues that the judge did not abuse her discre- tion in refusing to admit into evidence a revised arbitration agreement that Respondents Adriana’s Insurance Services, Inc. (Adriana) and Veronica’s Auto Insurance Services, Inc. (Veronica) say they imple- mented in 2014 and 2015, respectively, after the complaint issued in this case. At the hearing, the Respondents stated that they offered this evidence “to show the current state of arbitration at the company, in terms of what is communicated to employees. We believe that it shows that the company has—has certain steps in place regarding arbitration. We basically are introducing it for a full and complete record, given what the subpoenas were that were issued.” On brief, Respondents Adriana and Just Auto Insurance Services, Inc. assert that the evidence should have been admitted because “no employee could reasonably read the new language as waiving Section 7 rights.” However, there is no contention and no finding that the “new language” is unlawful. My colleagues find that the excluded “new language” evidence was proper- ly excluded on the ground that even if admitted, it would not have established that Adriana and Veronica repudiated the Agreements. I find it unnecessary to reach the issue of repudiation because I believe that the Respondents’ proffer at the hearing and their argument on brief do not raise that issue. Also, because the Order requires only that Re- spondents Adriana and Veronica rescind or revise the offending Agreements, there is no merit to their claim that the Board’s remedy necessarily requires them to rescind or revise the alleged revised agreement. ADRIANA’S INSURANCE SERVICES 125 For the reasons stated in my separate opinion in Apple- bee’s Restaurant, 363 NLRB 682, 684–686 (2015) (Member Miscimarra, concurring in part and dissenting in part), I believe that an agreement may lawfully pro- vide for the arbitration of NLRA claims, and such an agreement does not unlawfully interfere with Board charge filing, at least where the agreement expressly pre- serves the right to file claims or charges with the Board or, more generally, with administrative agencies. Here, however, the Arbitration Agreement does not qualify in any way the requirement that all “statutory claims,” and therefore all claims for violation of any fed- eral statute, including the NLRA, must be resolved in binding arbitration and in this manner only. There is no exception preserving employees’ right to file charges with administrative agencies such as the NLRB. As not- ed above, the Arbitration Agreement requires arbitration of covered claims only “to the extent the law provides such claims may be arbitrated.” Contrary to the Re- spondents, however, this provision is insufficient to indi- cate to employees that the right to file NLRB charges is preserved. See, e.g., Keiser University, 363 NLRB 742, 746, 747–748 (2015) (arbitration agreement unlawfully restricted NLRB charge filing where it broadly required arbitration of employment-related disputes “except where specifically prohibited by law”; wording of exception found ineffective to communicate exception for filing charges with the Board). For these reasons, I join my colleagues in finding that the Agreements violate the Act by unlawfully restricting the filing of charges with the Board. See U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007); Murphy Oil, at 795 fn. 4 (Member Miscimarra, dissenting in part); GameStop Corp., 363 NLRB 814, 819–821 (Member Miscimarra, concurring in part and dissenting in part); Rose Group d/b/a Applebee’s Restau- rant, above (Member Miscimarra, concurring in part and dissenting in part). Accordingly, I respectfully dissent in part from, and concur in part with, my colleagues’ decision. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain an Arbitration Agreement and Agreement for Binding Arbitration that our employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. WE WILL NOT enforce an arbitration agreement in a manner that requires our employees to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind our unlawful Arbitration Agreement and Agreement for Binding Arbitration in all of their forms, or revise them in all of their forms to make clear that each Agreement does not restrict your right to file charges with the National Labor Relations Board. WE WILL notify all current and former employees who signed the Agreement for Binding Arbitration or to whom the Agreement for Binding Arbitration or the Ar- bitration Agreement was presented that they have been rescinded or revised and, if revised, provide them a copy of the revised Agreements. WE WILL notify the court in which Aldo Alpizar and Liset Viamontes filed their collective lawsuit and the court hearing our appeal that we have rescinded or re- vised the Agreement for Binding Arbitration and the Ar- bitration Agreement upon which we based our motion to compel individual arbitration, and WE WILL inform these courts that we no longer oppose Aldo Alpizar and Liset Viamontes’ collective lawsuit on the basis of the Agree- ments. WE WILL reimburse Aldo Alpizar and Liset Viamontes and any other plaintiffs for any reasonable attorneys’ fees and litigation expenses that they may have incurred in opposing our motion to dismiss their collective lawsuit and compel individual arbitration. ADRIANA’S INSURANCE SERVICES, INC. The Board’s decision can be found at www.nlrb.gov/case/31-CA-113416 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126 APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain an Arbitration Agreement and Agreement for Binding Arbitration that our employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. 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 NOT rescind our unlawful Arbitration Agreement and Agreement for Binding Arbitration in all of their forms, or revise them in all of their forms to make clear that each Agreement does not restrict your right to file charges with the National Labor Relations Board. WE WILL notify all current and former employees who signed the Agreement for Binding Arbitration or to whom the Agreement for Binding Arbitration or the Ar- bitration Agreement was presented that they have been rescinded or revised and, if revised, provide them a copy of the revised Agreements. ADRIANA’S INSURANCE SERVICES, INC. The Board’s decision can be found at www.nlrb.gov/case/31-CA-113416 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. APPENDIX C NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain an Arbitration Agreement and Agreement for Binding Arbitration that our employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. WE WILL NOT enforce an arbitration agreement in a manner that requires our employees to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind our unlawful Arbitration Agreement and Agreement for Binding Arbitration in all of their forms, or revise them in all of their forms to make clear that each Agreement does not restrict your right to file charges with the National Labor Relations Board. WE WILL notify all current and former employees who signed the Agreement for Binding Arbitration or to whom the Agreement for Binding Arbitration or the Ar- bitration Agreement was presented that they have been ADRIANA’S INSURANCE SERVICES 127 rescinded or revised and, if revised, provide them a copy of the revised Agreements. WE WILL notify the court in which Aldo Alpizar and Liset Viamontes filed their collective lawsuit and the court hearing our appeal that we have rescinded or re- vised the Agreement for Binding Arbitration and the Ar- bitration Agreement upon which we based our motion to compel individual arbitration, and WE WILL inform these courts that we no longer oppose Aldo Alpizar and Liset Viamontes’ collective lawsuit on the basis of the Agree- ments. WE WILL reimburse Aldo Alpizar and Liset Viamontes and any other plaintiffs for any reasonable attorneys’ fees and litigation expenses that they may have incurred in opposing our motion to dismiss their collective lawsuit and compel individual arbitration. VERONICA’S AUTO INSURANCE SERVICES, INC. The Board’s decision can be found at www.nlrb.gov/case/31-CA-113416 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. APPENDIX D NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain an Arbitration Agreement and Agreement for Binding Arbitration that our employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. 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 our unlawful Arbitration Agreement and Agreement for Binding Arbitration in all of their forms, or revise them in all of their forms to make clear that each Agreement does not restrict your right to file charges with the National Labor Relations Board. WE WILL notify all current and former employees who signed the Agreement for Binding Arbitration or to whom the Agreement for Binding Arbitration or the Ar- bitration Agreement was presented that they have been rescinded or revised and, if revised, provide them a copy of the revised Agreements. VERONICA’S AUTO INSURANCE SERVICES, INC. The Board’s decision can be found at www.nlrb.gov/case/31-CA-113416 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. APPENDIX E NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 128 Choose not to engage in any of these protected activities. WE WILL NOT enforce an arbitration agreement in a manner that requires our employees to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL notify the court in which Aldo Alpizar and Liset Viamontes filed their collective lawsuit and the court hearing our appeal that we no longer oppose the lawsuit of Aldo Alpizar and Liset Viamontes on the basis of the Agreement for Binding Arbitration and the Arbi- tration Agreement upon which we based our motion to compel arbitration of the their claims. WE WILL Reimburse Aldo Alpizar and Liset Viamontes and any other plaintiffs for any reasonable attorneys’ fees and litigation expenses that they may have incurred in opposing our motion to dismiss their collective lawsuit and compel individual arbitration. JUST AUTO INSURANCE SERVICES, INC. The Board’s decision can be found at www.nlrb.gov/case/31-CA-113416 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. Yaneth Palencia, Esq., for the General Counsel. H. Spencer Hamer, III, Esq., for the Respondents. Janette C. Lee, Esq., for the Charging Parties. DECISION MARY MILLER CRACRAFT, Administrative Law Judge. Adria- na’s Insurance Services, Inc. (Adriana’s),1 Just Auto Insurance 1 The unfair labor practice charge, first amended charge, and second amended charge in Case 31–CA–113416 were filed by Charging Party Aldo Alpizar (Alpizar) against Adriana’s on respectively September 13, November 6 and 27, 2013. The unfair labor practice charge, first amended charge, and second amended charge in Case 31–CA–113423 Services, Inc. (Just),2 and Veronica’s Auto Insurance Services, Inc. (Veronica’s),3 jointly referred to here as Respondents, maintain or maintained arbitration agreements which require their employees to submit employment-related claims, includ- ing claims arising under Federal statutes, to arbitration. The General Counsel alleges that employees would reasonably con- strue the language used in these agreements to preclude them from filing unfair labor practice charges with the National La- bor Relations Board (the Board or NLRB) in violation Section 8(a)(1) of the National Labor Relations Act (the Act).4 Addi- tionally, when in October 2013 employees Alpizar and Viamontes filed a State court class action wage and hour law- suit against Respondents, Respondents moved to compel indi- vidual arbitration. The General Counsel alleges that Respond- ents’ attempt to compel individual arbitration in the State court class action also violates Section 8(a)(1) of the Act.5 I find both violations as alleged. On the entire record,6 and after considering the briefs filed by counsel for the General Counsel and counsel for the Re- spondents, the following findings of fact and conclusions of law are made. JURISDICTION Respondents are not alleged to be joint employers. Each of the Respondents admits that it is a corporation with an office and place of business in California and that it meets the Board’s retail jurisdictional standard7 and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Thus, this dispute affects interstate commerce and the Board has jurisdiction of this case pursuant to Section 10(a) of the Act. were filed by Charging Party Liset Viamontes (Viamontes) against Adriana’s on respectively September 13, November 6 and 27, 2013. 2 Alpizar filed the unfair labor practice charge and first amended charge against Just in Case 31–CA–113417 on September 13 and No- vember 6, 2013, respectively. Viamontes filed the unfair labor practice charge and first amended charge against Just in Case 31–CA–113428 on September 13 and November 6 respectively. 3 Alpizar filed the unfair labor practice charge, first amended charge, and second amended charge against Veronica’s in Case 31–CA–113420 on September 13, November 6 and 27, 2013, respectively. Viamontes filed the unfair labor practice charge, first amended charge, and second amended charge against Veronica’s in Case 31–CA–113425 on Sep- tember 13, November 6 and 27, 2013. 4 29 U.S.C. §158(a)(1). 5 The consolidated complaint issued on February 27, 2014, and was amended at hearing. Hearing was held in Los Angeles, California on February 10, 2015. 6 The facts were, for the most part, submitted by stipulation. No credibility resolutions are required on this record. 7 The Board asserts jurisdiction over all retail enterprises which fall within its statutory jurisdiction and have a gross annual volume of business of at least $500,000. Carolina Supplies & Cement Co., 122 NLRB 88 (1958). ADRIANA’S INSURANCE SERVICES 129 ARBITRATION AGREEMENTS Facts Since at least the fall of 2011, Adriana’s and Veronica’s have utilized an identical Arbitration Agreement in their respective employee handbooks. The provision is as follows: Accordingly, if work-related complaints and concerns are un- able to be informally resolved, then any dispute, controversy or claim arising out of or related to the employment relation- ship, including without limitation, contract claims, tort claims, breach of duty claims, wrongful termination claims, wage claims, claims of discrimination, harassment and all other common law and statutory claims, including all claims based upon federal or state civil rights laws, including claims under the EEOC, FEHA or otherwise, to the extent the law provides such claims may be arbitrated, shall at the request of either the employee or [Adriana’s or Veronica’s] be submitted to and settled by binding arbitration. Such arbitration shall be con- ducted in Los Angeles County, California. Such arbitration shall include any claims you have against [Adriana’s or Ve- ronica’s] officers, managers, supervisors, agents, directors or owners. On September 26, 2011, Veronica’s required its employee Viamontes to sign an Agreement for Binding Arbitration and on October 4, 2011, Adriana’s required its employee Alpizar to sign an identical Agreement for Binding Arbitration as follows: I KNOWINGLY AND VOLUNTARILY AGREE TO SUBMIT AND SETTLE ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO MY EMPLOYMENT RELATIONSHSIP WITH ADRIANA’S TO ARBITRATION AS DESCRIBED IN THE “ARBITRATION AGREEMENT” SECTION OF THE HANDBOOK. I AGREE THAT THE ARBITRATION OF SUCH ISSUES, INCLUDING THE DETERMINATION OF ANY AMOUNT OF DAMAGES SUFFERED, SHALL BE FINAL AND BINDING UPON ME AND ADRIANA’S TO THE MAXIMUM EXTENT PERMITTED BY LAW. I REALIZE BY AGREEING TO ARBITRATION, I WILL HAVE WAIVED MY RIGHT TO TRIAL BY JURY. THIS POLICY CANNOT CHANGE EXCEPT BY WRITTEN AGREEMENT BETWEEN ADRIANA’S AND ME. Analysis Section 7 protects the right of employees to file charges with the Board or otherwise access the Board’s processes. Bill’s Electric, 350 NLRB 292, 296 (2007); U-Haul Co. of Califor- nia, 347 NLRB 375, 377 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir 2007) (unpublished decision). Although the Arbitra- tion Agreement does not specifically state that employees may not file charges with the NLRB, a rule which does not explicit- ly restrict Section 7 rights may nevertheless violate the Act if employees would reasonably construe the language to prohibit Section 7 activity. Lutheran Heritage Village –Livonia, 343 NLRB 646, 647 (2004). The language in Veronica’s and Adriana’s Arbitration Agreements would reasonably be construed by employees to prohibit or restrict employees’ Section 7 right to file an unfair labor practice charge. Read in context, the language broadly mandates arbitration for “any dispute, controversy or claim arising out of or related to the employment relationship.” This all-inclusive language is reasonably construed to cover unfair labor practice claims arising from the employment relation. Cellular Sales of Missouri, LLC, 362 NLRB 241, 241, fn. 4 (2015) (work rule reasonably construed to interfere with ability to file charges with Board even if rule did not expressly prohib- it access to Board). The qualifying term, “to the extent such claims may be arbi- trated,” does not save the rule because the Board does not as- sume that employees have specialized legal knowledge which could be employed in understanding such a clause to exclude NLRB claims. For instance, the Board found language limiting a compulsory arbitration rule to claims “that may be lawfully resolve[d] by arbitration” would not be reasonably understood by employees to exclude unfair labor practice charges from the scope of the agreement. 2 Sisters Food Group, 357 NLRB 1816–1817, 1837 (2011); see also U-Haul, supra, 347 NLRB at 377–378. Veronica’s and Adriana’s argue that they have fully reme- died any ambiguity in the Arbitration Agreement and Agree- ment for Binding Arbitration by implementing new rules. Their question and answer offers to prove the facts underlying this assertion were rejected at hearing. Moreover, even were these facts in evidence, they fall short of a defense to the allegations. In order to fully remedy an unlawful rule, an employer must publish a timely, specific, unambiguous, untainted notice to employees announcing repudiation of the old rule and assuring employees that in the future it will not interfere with Section 7 rights. See New Passages Behavioral Health, 362 NLRB 435, 435–436 (2015), citing Casino San Pablo, 361 NLRB 1350, 1353 (2014), and Passavant Memorial Area Hospital, 236 NLRB 138, 138–139 (1978). Here one Respondent appears to have replaced one rule with another rule. This effort is insuffi- cient to remedy the unlawful rule. Thus I find that by maintenance of an Arbitration Agreement which employees would reasonably construe as limiting their right to access to the NLRB, Adriana’s and Veronica’s inter- fered with employee Section 7 rights in violation of Section 8(a)(1) of the Act. Because the “Agreement for Binding Arbi- tration,” which employees are required to sign by Adriana’s and Veronica’s, utilizes the same all-inclusive language and incorporates the “Arbitration Agreement” by reference, the Agreement for Binding Arbitration is similarly flawed and interferes with employee Section 7 rights in violation of Section 8(a)(1) of the Act. STATE COURT WAGE AND HOUR CLASS ACTION LITIGATION Facts On March 7, 2013, Viamontes and Alpizar filed a class ac- tion complaint in the Superior Court of the State of California, County of Los Angeles, Central Civil West, Case No. BC502472, alleging that Adriana’s, Veronica’s, and Just had committed various wage and hour violations of the California Labor Code. Although neither the Arbitration Agreement nor the Agreement for Binding Arbitration specifically precludes DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130 collective or class action, on October 21, 2013, the three Re- spondents filed a motion to compel individual arbitration rely- ing on the Agreements for Binding Arbitration signed by Viamontes and Alpizar. Following oral argument, on December 6, 2013, Judge Elihu M. Berle of the Superior Court signed an order denying the motion to compel individual arbitration. The order issued on December 10, 2013, and on December 23, 2013, Respondents filed a notice of appeal of Judge Berle’s order. Briefs followed in the California Court of Appeal, Second Appellate District, Division Three. No ruling had issued at the time of hearing. Analysis As the opening sentence of Murphy Oil USA, 361 NLRB 774, 774 (2014), states, “For about 80 years, Federal labor law protected the right of employees to pursue their work-related legal claims together, i.e., with one another, for the purpose of improving their working conditions.” Starting from this vantage point, the Board reaffirmed its holding in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), that an employer violates the Act when it re- quires an employee, as a condition of employment, to sign an agreement that precludes employees from filing class action suits addressing their wages, hours, and working conditions. Murphy Oil USA, supra, 361 NLRB 774, at 775. The issue here, however, is not whether the Respondents’ Agreements for Binding Arbitration constitute agreements that preclude employees from filing class action suits regarding employment claims. In fact, the Agreements for Binding Arbi- tration are silent on that issue. Rather, the issue here is whether Respondents’ filing a motion to compel individual arbitration and Respondents’ appeal from denial of that motion, constitute a restriction on employees’ Section 7 rights. Section 8(a)(1) provides, inter alia, that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their Section 7 right to engage in concerted activities for their mutual aid and protection. Con- certed activities include employee efforts to improve working conditions outside the immediate employer-employee relation- ship by joining together in concerted legal action regarding wages, hours, and working conditions.8 Because employees have a Section 7 right to jointly pursue legal redress in Federal or State court, Respondents’ efforts to preclude this Section 7 activity have an illegal objective and are unlawful. Thus, I find that by filing the motion to compel individual arbitration and by appealing denial of that motion, i.e., by seeking to stop the concerted activity of Viamontes and Alpizar, Respondents vio- lated Section 8(a)(1) of the Act. Respondents argue that their motion to compel individual ar- bitration and their appeal from denial of that motion are specif- ically permitted by the Federal Arbitration Act (FAA) as re- cently interpreted in American Express Co. v. Italian Colors Restaurant, ___ U.S. ___, 133 S.Ct. 2304 (2013), and AT&T 8 See, e.g., Brady v. National Football League, 644 F.3d 661, 673 (8th Cir. 2011); Mohave Elec. Co-op, Inc. v. NLRB, 206 F.3d 1183, 1188 (D.C. Cir. 2000); see generally Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978). Mobility LLC v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740 (2011). In Murphy Oil, supra, 361 NLRB 774, at 783–788, the Board rejected this argument. The Board found instead that its view—that “requiring employees to waive their right to collec- tively pursue employment-related claims in all forums, arbitral and judicial” violated Section 8(a)(1)—did not “conflict with the letter or interfere with the policies underlying the [FAA].” An administrative law judge must follow Board precedent that has not been reversed by the Supreme Court itself.9 Murphy Oil is consistent with the Court’s holdings. Ameri- can Express did not involve the core substantive Section 7 right of employees to act together to file a class action lawsuit. The Board’s interpretation of the Section 7 right of employees to act together to file lawsuits against for employment related claims as a core substantive right is entitled to judicial deference.10 Moreover, American Express did not involve an employer who required employees to waive their substantive Section 7 rights. Because Murphy Oil is not reversed by Supreme Court prece- dent, Respondents’ argument is rejected. CONCLUSIONS OF LAW Respondents Adriana’s and Veronica’s violated Section 8(a)(1) of the Act by maintaining their identical Arbitration Agreements and Agreements for Binding Arbitration” which employees would reasonably construe to preclude filing of charges with the Board. Respondents Adriana’s, Just, and Ve- ronica’s violated Section 8(a)(1) of the Act by filing a motion to compel individual arbitration and an appeal from denial of the motion to compel individual arbitration in a State court wage and hour class action. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall order that they cease and desist and take certain affirmative action designed to effectuate the policies of the Act. Specifically, having concluded that the Arbitration Agree- ment is unlawful, to the extent Respondents Adriana’s and Veronica’s have not already done so,11 they must revise or re- scind the Arbitration Agreement and advise their employees in writing that the Arbitration Agreement has been revised or rescinded. Further, Respondents Adriana’s and Veronica’s shall post notices at all locations where the Arbitration Agreement, 9 See Pathmark Stores, 342 NLRB 378 fn. 1 (2004); Iowa Beef Packers, 144 NLRB 615, 616 (1968), enfd. in part, 331 F.2d 176 (8th Cir. 1964). 10 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.837 (1984). 11 At hearing, Adriana’s and Veronica’s offered to prove that they had implemented or were planning to implement a new Arbitration Agreement. The General Counsel would not stipulate to this evidence and objected to receipt of this evidence at hearing on the basis of rele- vance. Technically, such evidence might be relevant to the remedy only. Although this evidence was rejected, to the extent the Region is satisfied that new handbook Arbitration Agreements were actually implemented and assuming no new charges involving them, the remedy should be revised accordingly. See, e.g., Lily Transportation Corp., 362 NLRB 406, 407 (2015). ADRIANA’S INSURANCE SERVICES 131 or any portion of it which is reasonably construed to preclude employees from filing unfair labor practice charges with the Board was or is in effect. The Agreement for Binding Arbitra- tion must be revised or rescinded to reflect that it references a revised arbitration agreement. Respondents must also reimburse Charging Parties Viamontes and Alpizar for any litigation and related expenses, with interest, to date and in the future, directly related to the Respondents’ motion to compel individual arbitration and Re- spondents’ notice of appeal from denial of that motion in the Superior Court of California, County of Los Angeles, Central Civil West, Case BC502472. Interest shall be computed in ac- cordance with New Horizons, 283 NLRB 1173 (1987). Finally, the Respondents must withdraw their motion to compel individual arbitration and their appeal of denial of their motion to compel individual arbitration. Bill Johnson’s Restau- rants v. NLRB, 461 U.S. 731, 737 fn. 5 (1983) (legal proceed- ings which have an objective that is illegal may be enjoined without infringing the First Amendment). [Recommended Order omitted from publication.]