Everglades College d/b/a Keiser University and Everglades University

368 NLRB No. 123 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Everglades College, Inc. d/b/a Keiser University and Everglades University and Lisa K. Fikki. Case 12–CA–096026 November 27, 2019 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS MCFERRAN, KAPLAN, AND EMANUEL On December 23, 2015, the National Labor Relations Board issued a Decision and Order finding that the Re- spondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining its Employee Arbitration Agreement (EAA). Keiser University, 363 NLRB No. 73 (2015). Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant 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), the Board found that the EAA unlawful- ly required employees, as a condition of their employ- ment, to waive their rights to pursue class or collective actions involving employment-related claims in all fo- rums, whether arbitral or judicial. Keiser University, above, slip op. at 1. The Board also found that the EAA violated the Act on the basis that employees reasonably would construe it to restrict their access to the Board’s processes. Id., slip op. at 1 and fn. 2. Based on these violations, the Board further found that the Respondent violated Section 8(a)(1) by discharging Charging Party Lisa K. Fikki for failing to sign the EAA. The Respondent filed a petition for review with the United States Court of Appeals for the Eleventh Circuit. The Board filed a cross-application for enforcement and, subsequently, the Charging Party filed a motion to inter- vene in the case, which the court granted. On May 21, 2018, the Supreme Court held that employer-employee agreements that contain class- and collective-action waivers and require individualized arbitration do not violate Section 8(a)(1) of the Act and should be enforced as written pursuant to the Federal Arbitration Act (FAA). Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612, 1632 (2018). On June 26, 2018, the Eleventh Circuit granted the Re- spondent’s petition for review and denied the cross- application for enforcement with respect to the portion of the Board’s Order governed by Epic Systems and re- manded the remainder of the case for further proceedings before the Board. Everglades College v. NLRB, 893 F.3d 1290 (11th Cir. 2018). On November 29, 2018, the Board issued a Notice to Show Cause why this case should not be remanded to the administrative law judge for application of the Boeing1 standard, discussed below. The parties filed statements of position, with the Re- spondent favoring remand and the General Counsel and Charging Party opposing it. The Board has considered its previous decision and the record in light of the statements of position filed by the parties regarding the necessity of remanding the case to the administrative law judge. For the reasons that fol- low, we conclude that no remand is necessary, and, under the standard set forth in Boeing and its progeny, we find that the EAA unlawfully restricts access to the Board and its processes. Accordingly, we find that the Respondent violated Section 8(a)(1) of the Act by maintaining the EAA and by discharging Fikki for failing to sign it. I. FACTS On July 13, 2008, Lisa K. Fikki began working as a graduate admissions counselor for the Respondent, a private, non-profit university in Fort Lauderdale, Florida. In early 2009, the Respondent decided to implement mandatory arbitration as part of its personnel policies and procedures and required its existing employees, includ- ing Fikki, to sign a document titled, “Confidentiality, Non-Solicitation, and Arbitration Agreement.” Fikki signed this agreement in 2010. In late 2011, the Respondent did away with its paper employment agreements and adopted electronic person- nel records for all employees. On June 15, 2012,2 the Respondent sent an email to all employees requiring them to complete a “re-boarding” process for the Re- spondent to move all its personnel files to an electronic format. The Respondent’s e-mail asked all existing em- ployees to complete the reboarding process by June 22. The reboarding process required employees, among other things, to electronically sign a document titled “Employ- ee Arbitration Agreement” (EAA). The EAA included the following class- or collective-action waiver and re- quirement that employment disputes be resolved exclu- sively through individualized arbitration rather than court litigation: Arbitration of Claims. Any controversy or claim arising out of or relating to Employee’s employment, Employ- ee’s separation from employment, and this Agreement, including but not limited to, claims or actions brought pursuant to federal, state or local laws regarding pay- ment of wages, tort, discrimination, harassment and re- taliation, except where specifically prohibited by law, shall be referred to and finally resolved exclusively by 1 Boeing Co., 365 NLRB No. 154 (2017). 2 All dates hereinafter refer to 2012 unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 binding arbitration in Fort Lauderdale, Florida, in ac- cordance with the Employment Law Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstand- ing the above, Employee agrees that there will be no right or authority, and hereby waives any right or au- thority, for any claims within the scope of this Agree- ment to be brought, heard or arbitrated as a class or col- lective action, or in a representative or private attorney general capacity on behalf of a class of persons or the general public. Filing and arbitration fees shall be in accordance with the arbitration rules and any applicable laws. The arbitrator shall have the authority to appor- tion the filing fee and costs of arbitration with the pre- sumption that the prevailing party shall be entitled to recover all legitimate costs. Unless provided by statute to the contrary, each party shall bear its/his/her own at- torneys’ fees. The EAA also contained a provision acknowledging that each party has had “ample opportunity to seek independent legal counsel . . . with respect to the negotiation and execu- tion of this Agreement.” On June 21, Fikki responded to the Respondent’s e- mail, asking if she could print the re-boarding documents and have them reviewed by an attorney. The Respondent agreed to Fikki’s request but reminded her of the June 22 re-boarding deadline and asked her to notify the Re- spondent if she needed more time. On June 26, the Re- spondent sent Fikki (and two other employees) an e-mail, asking them again to complete the reboarding process given the June 22 deadline. Fikki replied that she needed more time to review the documents. On June 27, the Respondent held mandatory meetings for those employees who had not yet completed the re- boarding process. During the meeting she attended, Fikki told the Respondent’s officials that she wanted to obtain legal advice regarding the documents. The Re- spondent’s Chancellor told Fikki that she could have more time to complete the re-boarding process if she could verify by June 29 that she had scheduled an ap- pointment with an attorney. Fikki contacted an attorney seeking review of the re-boarding documents. On June 29, Fikki provided the Respondent with a letter from the attorney stating that Fikki was scheduled to meet with the attorney, but that the attorney could not meet until July 18. That same day, the Respondent sent an e-mail to Fikki and other employees who had not finished the re-boarding process, notifying them that the re-boarding deadline had been extended to July 10. Fikki, however, failed to complete the re-boarding process by July 10 given that her attorney was unavailable to meet until July 18. Finally, on July 12, the Respondent discharged Fikki for her failure to complete the reboarding process. II. DISCUSSION The Eleventh Circuit’s June 26, 2018 order having disposed of all allegations controlled by the Supreme Court’s decision in Epic Systems, above, the remaining issues for decision are whether the EAA unlawfully re- stricts access to the Board and its processes and, if so, whether the Respondent violated the Act by discharging Fikki for failing to sign the EAA. In its prior decision, the Board resolved this issue under the analytical frame- work set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). See Keiser University, 363 NLRB No. 73, slip op. at 1. In Lutheran Heritage, the Board held, among other things, that an employer violates Sec- tion 8(a)(1) of the Act if it maintains a facially neutral work rule that employees “would reasonably construe . . . to prohibit Section 7 activity.” 343 NLRB at 647. Recently, the Board issued a decision in Boeing, above, overruling the “reasonably construe” prong of Lutheran Heritage. Under Boeing, facially neutral rules must be evaluated in such a way to strike a proper bal- ance between the asserted business justifications and the invasion of employee rights in light of the Act and its policies, viewing the rule or policy from the employees’ perspective. Id., slip op. at 3. The Board also decided to apply its new standard retroactively to all pending cases in whatever stage. Id., slip op. at 16-17. Subsequently, in Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10, slip op. at 5 (2019), the Board held that, notwithstanding the Supreme Court’s decision in Epic Systems upholding individual arbitration agree- ments containing class- and collective-action waivers, the Federal Arbitration Act “does not authorize the maintenance or enforcement of agreements that interfere with an employee’s right to file charges with the Board” (citations omitted). This is so because the FAA’s re- quirement that arbitration agreements be enforced as written may be “overridden by a contrary congressional command,” which the Board found to be established in Section 10 of the Act. Id. (citations omitted). Indeed, “[u]nder Section 10(b) of the Act, the Board has no pow- er to issue [a] complaint unless an unfair labor practice charge is filed, and Section 10(a) of the Act relevantly provides that the Board’s power to prevent unfair labor practices ‘shall not be affected by any other means of adjustment or prevention that has been or may be estab- lished by agreement, law, or otherwise.’” Id. at 5. Con- sistent with Lutheran Heritage, 343 NLRB at 646, the Board held that an arbitration agreement that “explicitly prohibits the filing of claims with the Board or, more generally, with administrative agencies must be found EVERGLADES COLLEGE, INC. D/B/A KEISER UNIVERSITY 3 unlawful.” Prime Healthcare, above, slip op. at 5. The Board further found that where an arbitration agreement does not contain such an express prohibition—i.e., where the arbitration agreement in question is facially neutral— the Boeing standard applies. Id. Applying Boeing, the Board in Prime Healthcare concluded that “as a matter of law, there is not and cannot be any legitimate justifica- tion for provisions, in an arbitration agreement or other- wise, that restrict employees’ access to the Board or its processes.” Id. at 6. Finally, the Board placed provi- sions that restrict employees’ access to the Board by making arbitration the exclusive forum for the resolution of all claims in Boeing Category 3, which designates rules and policies that are unlawful to maintain. Id. at 7. Applying these principles, the Board in Prime Healthcare found that the arbitration agreement at issue there violated the Act because, although it did not explic- itly prohibit charge filing (or the exercise of other Sec- tion 7 rights), it did, when reasonably interpreted, inter- fere with employees’ right to file charges with the Board. Prime Healthcare, above, slip op. at 6. The arbitration provision at issue in that case required “all claims or con- troversies for which a federal or state court would be authorized to grant relief”—“includ[ing], but . . . not limited to” claims under a long list of employment- related statutes and “claims for violation of any federal, state, or other governmental constitution, statute, ordi- nance, regulation, or public policy”—to be resolved by binding arbitration. Id. That agreement contained no exception for filing charges with the Board or other ad- ministrative agencies and stated that “[t]he purpose and effect of this Agreement is to substitute arbitration as the forum for resolution of the Claims.” Id. The Board found that, when reasonably interpreted, the foregoing language made arbitration the exclusive forum for the resolution of all claims, including federal statutory claims under the National Labor Relations Act, thereby restricting charge filing with the Board, and that “there is not and cannot be any legitimate justification” for such a restriction. Id. Here, the EAA provides that “[a]ny controversy or claim arising out of or relating to Employee’s employ- ment, Employee’s separation from employment, and this Agreement, including but not limited to, claims or ac- tions brought pursuant to federal, state or local laws re- garding payment of wages, tort, discrimination, harass- ment and retaliation, except where specifically prohibited by law, shall be referred to and finally resolved exclu- sively by binding arbitration.” As in Prime Healthcare, the Respondent maintained a mandatory arbitration agreement that, when reasonably interpreted, plainly makes arbitration the exclusive forum for the resolution of all claims, including statutory claims under the Act. Accordingly, a reasonable employee would understand that agreement to restrict access to the Board. Further, as in Prime Healthcare, the EAA contains no specific exception for filing charges with the Board. The EAA makes no mention of this protected activity, the Board, or the Act. Rather, the EAA merely purports to except from its arbitration mandate claims or actions “where specifically prohibited by law.” As recounted in Prime Healthcare, above, slip op. at 3-4, the General Counsel has distilled six principles for analyzing arbitra- tion agreements in light of Boeing, with the fourth such principle stating as follows: Vague savings clauses that would require employees to “meticulously determine the state of the law” them- selves are likely to interfere with the exercise of NLRA rights. Such clauses include, for example, those stating that “nothing in this agreement shall be construed to re- quire any claim to be arbitrated if an agreement to arbi- trate such claim is prohibited by law,” or that exclu- sively require arbitration but limit that requirement to circumstances where a claim “may lawfully be re- solved by arbitration.” We agree with this principle and conclude that it applies here.3 Vague, generalized language like that in the EAA purporting to exclude claims for which arbitration is “pro- hibited by law” would undoubtedly require employees to meticulously determine the state of the law themselves. See Prime Healthcare, above, slip op. at 3; see also Ingram Book Co., 315 NLRB 515, 516 fn. 2 (1994) (“Rank-and-file employees do not generally carry lawbooks to work or ap- 3 The analysis and result are the same here, notwithstanding that the clause in the EAA is an exclusion clause as opposed to a savings clause. An exclusion clause in an arbitration agreement carves out or excludes certain claims or types of claims from the scope of the agree- ment. By contrast, a savings clause in an arbitration agreement pro- vides that employees retain the right to file charges with the Board, even if the agreement otherwise includes claims arising under the Act within its scope. The Board recently considered whether an arbitration agreement that contained a savings clause interfered with access to the Board and its processes. See Briad Wenco, LLC d/b/a Wendy’s Restau- rant, 368 NLRB No. 72 (2019). Like the agreement in Prime Healthcare, the agreement in Briad Wenco included claims arising under the Act within the scope of the agreement. Id., slip op. at 2 (re- ferring to paragraph 11 of the agreement “as excluding certain claims from arbitration,” but observing that “[p]aragraph 11 [did] not express- ly exclude claims arising under the Act from covered claims subject to arbitration”). Unlike the agreement in Prime Healthcare, however, the arbitration agreement in Briad Wenco contained a savings clause providing that nothing in the agreement was to be construed to prohibit employees from filing charges with, or participating in any investiga- tion or proceeding conducted by, an administrative agency, including the National Labor Relations Board. Id. Based on this savings clause and its sufficiently prominent placement, the Board found the agree- ment in Briad Wenco lawful. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ply legal analysis to company rules as do lawyers, and can- not be expected to have the expertise to examine company rules from a legal standpoint.”). A reasonable employee interpreting the EAA cannot be expected to divine any in- tent to exclude from its coverage claims arising under the Act. See Prime Healthcare, above, slip op. at 6 fn. 12 (quoting Boeing, above, slip op. at 3) (“Boeing requires the Board to interpret disputed provisions from ‘the perspective of the employees.’”); see also Trailmobile, 221 NLRB 1088, 1089 (1975) (“It is equally well established that [an overbroad] rule is not validated by the qualification, ‘except as provided by law,’ as an employer is not entitled to place upon its employees the burden of determining their legal rights in this manner.”) (citing Fasco Industries, Inc., 173 NLRB 522 (1968), enfd. 412 F.2d 589 (4th Cir. 1969)). We readily concede that an objectively reasonable em- ployee would understand that the arbitration agreement does not apply where “specifically prohibited by law,” but we find that language leaves that reasonable employ- ee in the dark as to what is “specifically prohibited by law.” For the reasons stated above, the language remains impermissibly vague and ambiguous as to whether it applies to claims that the NLRA has been violated. There is no disagreement with our dissenting colleague about the interplay between the FAA and the NLRA as was set out by the Supreme Court in Epic Systems Corp. v. Lewis, 584 U.S. ____, 138 S. Ct. 1612, 1621, 1632 (2018). We are in agreement that Section 10 of the NLRA represents a contrary congressional command that overrides the FAA’s requirement that arbitration agree- ments be enforced according to their terms if a mandato- ry arbitration agreement precludes access to the Board’s processes, as we unanimously held in Prime Healthcare. Where we see things differently is that our dissenting colleague does not believe that an objectively reasonable employee would read “where specifically prohibited by law” as creating the same conflict with the FAA that was present in Prime Healthcare. In his view, this EAA clause creates an exception to the exclusivity of the arbi- tration provision. In our view, this clause is unavailing because a reasonable employee cannot be expected to understand its import. The FAA does not preempt the Act’s mandate under Section 10(a) to protect employees’ Section 7 rights by the filing of unfair labor practice charges, a prerequisite to the exercise of Board jurisdiction. Indeed, as summa- rized above, the unanimous Prime Healthcare Board concluded that, consistent with Supreme Court prece- dent, the FAA’s requirement that arbitration agreements be enforced as written may be “overridden by a contrary congressional command,” which the Board found to be established in Section 10 of the Act. 368 NLRB No. 10, slip op. at 5. And we view the objective reasonable em- ployee perspective standard to be an essential safeguard in fulfillment of that command. In sum, the language of the EAA, when reasonably in- terpreted under Boeing, makes arbitration the exclusive forum for resolution of claims arising under the Act, and the EAA’s exclusion clause is legally insufficient. The EAA restricts employee access to the Board and such restriction of Section 7 rights cannot be supported by any legitimate business justification; therefore, the EAA is a Boeing Category 3 policy. Accordingly, we find that the Respondent violated Section 8(a)(1) of the Act by main- taining, and requiring that employees sign, the EAA and that Fikki’s discharge for failing to sign the EAA like- wise violated Section 8(a)(1).4 AMENDED REMEDY In addition to the remedies provided in the judge’s Or- der as amended, we shall order the Respondent to com- pensate Lisa K. Fikki for reasonable search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings, in accordance with our decision in King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017). Search-for-work and interim employment ex- penses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Hori- zons, 283 NLRB 1173 (1987), compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). 4 Member McFerran joins her colleagues in finding that the Re- spondent violated Sec. 8(a)(1) by maintaining the EAA and by dis- charging Fikki for failing to sign the EAA. In doing so, Member McFerran acknowledges that Boeing Co., 365 NLRB No. 154 (2017), is currently governing law, and she joins the majority for institutional reasons, but adheres to and reiterates her dissent in that case. That said, Member McFerran agrees with her colleagues that Boeing did not dis- turb prior precedent holding that arbitration agreements that explicitly prohibit filing claims with the Board or with administrative agencies are unlawful. Further, Member McFerran observes that the EAA argu- ably does explicitly prohibit filing Board charges. See Prime Healthcare, 368 NLRB No. 10, slip op. at 6 fn. 11 (Member McFerran observing the same regarding the respondent’s mandatory arbitration agreement). Although the Board is not specifically named, the EAA’s prohibition on filing charges is explicit because, subject only to a vague savings clause, the EAA broadly states that “[a]ny controversy or claim arising out of or relating to Employee’s employment . . . shall be re- ferred to and finally resolved exclusively by binding arbitration.” Member McFerran nonetheless agrees with her colleagues’ conclu- sions, above, that the only reasonable interpretation of the EAA from employees’ perspective is that it does prohibit the filing of charges and that no legitimate employer justification could outweigh this core statu- tory right. Further, Member McFerran agrees that the EAA’s attempt to exclude claims “where specifically prohibited by law” is wholly inadequate. EVERGLADES COLLEGE, INC. D/B/A KEISER UNIVERSITY 5 ORDER The National Labor Relations Board orders that the Respondent, Everglades College, Inc. d/b/a Keiser Uni- versity and Everglades University, Daytona Beach, Fort Lauderdale, Fort Myers, Jacksonville, Lakeland, Mel- bourne, Miami, Orlando, Pembroke Pines, Port St. Lucie, Sarasota, Tallahassee, Tampa, and West Palm Beach, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts the right of employees to file charges with the National Labor Relations Board. (b) Discharging an employee for failing or refusing to sign a mandatory arbitration agreement that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board. (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 Employee Arbitration Agreement in all of its forms, or revise it in all of its forms to make clear to employees that the Employee Arbitration Agreement does not bar or restrict employees’ right to file charges with the National Labor Relations Board. (b) Notify all applicants and current and former em- ployees who were required to sign or otherwise become bound to the Employee Arbitration Agreement in any form that the Employee Arbitration Agreement has been rescinded or revised and, if revised, provide them a copy of the revised agreement. (c) Within 14 days from the date of this Order, offer Lisa K. Fikki full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (d) Make Lisa K. Fikki whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against her, plus reasonable search-for-work and interim employment expenses, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (e) Compensate Lisa K. Fikki for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 12, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year. (f) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Lisa K. Fikki, and within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way. (g) 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. (h) Within 14 days after service by the Region, post at its Fort Lauderdale, Florida facility copies of the attached notice marked “Appendix A,” and at all other facilities where the unlawful arbitration agreement is or has been in effect, copies of the attached notice marked “Appen- dix B.”5 Copies of the notices, on forms provided by the Regional Director for Region 12, 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 to all current employees and former employees employed by the Respondent at any time since July 9, 2012. (i) Within 21 days after service by the Region, file with the Regional Director for Region 12 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. Dated, Washington, D.C. November 27, 2019 ______________________________________ John F. Ring, Chairman 5 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 ______________________________________ Lauren McFerran, Member ______________________________________ Marvin E. Kaplan, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER EMANUEL, dissenting in part and concurring in part. Contrary to my colleagues, I would find that the Re- spondent’s maintenance of its Employee Arbitration Agreement (EAA) was lawful. However, because the Respondent denied Lisa K. Fikki the opportunity to con- sult an attorney before signing the agreement, and then discharged her because she refused to sign the agree- ment, I concur that her discharge was unlawful. Section 2 of the Federal Arbitration Act (FAA) states that an arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Thus, the Supreme Court has decided that federal courts must “enforce arbitration agreements according to their terms”; that the FAA establishes a “liberal federal policy favoring arbitration agreements”; and that such agreements must be “enforced as written.” Epic Systems Corp. v. Lewis, 584 U.S. ____, 138 S. Ct. 1612, 1621, 1632 (2018). However, Section 10(a) of the National Labor Rela- tions Act (NLRA) empowers the Board “to prevent any person from engaging in any unfair labor practice,” and it provides that this power “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.” Thus, there is a conflict between the FAA and the NLRA in this case. But the Supreme Court has also held that it is “this court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another.” Id. at 1619. Thus, when there is a conflict between the NLRA and the FAA, the Board must consider the Su- preme Court’s objective of interpreting the two statutes as a “harmonious whole” and not in a way that will result in a “war” between them. I believe that in this case, the only way to harmonize the two statutes in view of the Supreme Court precedent is to find that the arbitration agreement is lawful. Otherwise the Board’s decision will completely override the FAA, a result not acceptable under Supreme Court precedent. The Supreme Court explained in Epic Systems that an argument that another federal statute overrides the FAA and thus invalidates an arbitration agreement “faces a stout uphill climb.” Id. at 1624. The Court also stated that when confronted with two Acts of Congress alleged- ly touching on the same topic, it is “not at liberty to pick and choose among congressional enactments,” and it “must instead strive to give effect to both.” Id. (citations omitted). In addition, the Court stated that a party that suggests that two statutes cannot be harmonized, and that one displaces the other, bears a “heavy burden” of show- ing a “clearly expressed congressional intention that such a result should follow,” and that this intention must be “clear and manifest.” Id. (citations omitted). Moreover, the Court stated that there is a strong presumption that repeals by implication are disfavored, and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute. Id. (citations omitted). Furthermore, the Court stated that the NLRA “does not even hint at a wish to displace” the FAA, let alone accomplish that much “clearly and mani- festly.” Id. These statements by the Court indicate that the Board is very likely to be overruled if it does not at- tempt to harmonize the conflict between the FAA and the NLRA in this case. In cases where an arbitration agreement prevents em- ployees from filing charges with the Board, as in Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), the Board is justified in invalidating the agree- ment; and when a savings clause expressly provides that employees retain the right to file charges with the Board, the agreement is valid, as the Board held in Briad Wenco, LLC d/b/a Wendy’s Restaurant, 368 NLRB No. 72 (2019). But when a savings or exclusion clause is oth- erwise legally sufficient but does not expressly refer to the NLRA or the NLRB, as in this case, the Board must strive to give effect to both the FAA and the NLRA.1 Otherwise the result will be a “war” between the two statutes, which is contrary to the Supreme Court prece- dent discussed above. 1 Here, the EAA excludes claims “where specifically prohibited by law.” Because the NLRA prohibits interference with an employee’s right to file charges with the Board, the NLRA falls squarely within the EAA’s exclusion. The majority’s reliance on Trailmobile, 221 NLRB 1088 (1975), is unavailing. Trailmobile holds that the phrase “except as provided by law” is insufficient to render a no-solicitation, no-distribution rule lawful. Unlike the EAA, that rule is not subject to the Supreme Court’s mandate, expressed in the FAA, that arbitration agreements must be enforced as written. This crucial difference, in my view, requires that the Board find the EAA lawful as written. In addition, the majority’s reliance on the General Counsel’s guidelines for analyzing arbitration agreements under Boeing is equally misplaced. These guidelines are merely advisory, and the Board is not bound by them. EVERGLADES COLLEGE, INC. D/B/A KEISER UNIVERSITY 7 Finally, the Board should consider the fact that several previous Board members have found in dissenting opin- ions that arbitration agreements with clauses that were similar to the exclusion clause in this case were lawful to maintain under the NLRA. See, e.g., Countrywide Fi- nancial Corp., 362 NLRB 1331, 1338 fn. 2 (2015) (Member Johnson, dissenting) (finding lawful arbitration agreement excluding any claim where “an agreement to arbitrat[e] . . . is prohibited by law”); 2 Sisters Food Group, 357 NLRB 1816, 1829–1830 (2011) (Member Hayes, dissenting) (finding lawful arbitration agreement limited to claims “that may be lawfully [] resolve[d] by arbitration”); see also U-Haul Co. of California, 347 NLRB 375 (2006) (Chairman Battista dissenting). In sum, I would find that the Respondent lawfully maintained the EAA, but violated Section 8(a)(1) by dis- charging Fikki for failing to sign the EAA because the Respondent prevented her from consulting with an attor- ney. Dated, Washington, D.C. November 27, 2019 ______________________________________ William J. Emanuel, Member NATIONAL LABOR RELATIONS BOARD 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 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 a mandatory arbitration agree- ment that our employees reasonably would believe bars or restricts the right of our employees to file charges with the National Labor Relations Board. WE WILL NOT discharge you for engaging in protected activities, including for failing or refusing to sign a man- datory arbitration agreement that our employees reasona- bly would believe bars or restricts the right to file charg- es 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 mandatory Employee Arbitration Agreement in all of its forms, or revise it in all of its forms to make clear that the Employee Arbitration Agreement does not restrict your right to file charges with the National Labor Relations Board. WE WILL notify all applicants and current and former employees who were required to sign or otherwise be- come bound to the Employee Arbitration Agreement in all of its forms that the Employee Arbitration Agreement has been rescinded or revised and, if revised, WE WILL provide them a copy of the revised agreement. WE WILL, within 14 days from the date of the Board’s Order, offer Lisa K. Fikki full reinstatement to her for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Lisa K. Fikki whole for any loss of earnings and other benefits resulting from the discrimina- tion against her, less any net interim earnings, plus inter- est, and WE WILL also make her whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Lisa K. Fikki for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 12, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Lisa K. Fikki, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way. EVERGLADES COLLEGE, INC., D/B/A KEISER UNIVERSITY AND EVERGLADES UNIVERSITY The Board’s decision can be found at www.nlrb.gov/case/12-CA-096026 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 8 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 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 a mandatory arbitration agree- ment that our employees reasonably would believe bars or restricts the right of our employees 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 mandatory Employee Arbitration Agreement in all of its forms, or revise it in all of its forms to make clear that the Employee Arbitration Agreement does not restrict your right to file charges with the National Labor Relations Board. WE WILL notify all applicants and current and former employees who were required to sign or otherwise be- come bound to the mandatory Employee Arbitration Agreement in all of its forms that the Employee Arbitra- tion Agreement has been rescinded or revised and, if revised, WE WILL provide them a copy of the revised agreement. EVERGLADES COLLEGE, INC. D/B/A KEISER UNIVERSITY AND EVERGLADES UNIVERSITY The Board’s decision can be found at www.nlrb.gov/case/12-CA-096026 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.