20/20 Communications, Inc.

National Labor Relations Board - Board Decisions

Jul 15, 2020

369 N.L.R.B. 119 (N.L.R.B. 2020)

369 NLRB No. 119
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board, Washington, D.C. 20570, of
any typographical or other formal errors so that corrections can be in-
cluded in the bound volumes.
20/20 Communications, Inc. and Charlie Smith. Case
12–CA–165320
July 15, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On September 6, 2016, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The General
Counsel filed exceptions with supporting argument, and
the Respondent filed an answering brief. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings, find-
ings, and conclusions1 only to the extent consistent with
this Decision and Order.2
Background
Since at least May 12, 2014, Respondent 20/20 Com-
munications, Inc. has maintained a Mutual Arbitration
Agreement (MAA), which employees are required to sign
as a condition of employment. The relevant portions of
the MAA read as follows:
1. Except as provided below, Employee and Employer
. . . both agree that all disputes and claims between them,
including those relating to Employee’s employment
with Employer, and any separation therefrom . . . shall
be determined exclusively by final and binding arbitra-
tion . . . . Claims subject to arbitration under this Agree-
ment include without limitation claims for discrimina-
tion, harassment, or retaliation; wages, overtime, bene-
fits, or other compensation . . . .
2. The only disputes and actions excluded from this
Agreement are: (a) claims by Employee for workers’
compensation or unemployment benefits; (b) claims by
Employee for benefits under an Employer plan or pro-
gram that provides its own process for dispute resolu-
tion; (c) claims by Employer or Employee for declara-
tory or injunctive relief relating to a confidentiality, non-
solicitation, non-competition, or similar obligation (any
such proceedings will be without prejudice to the par-
ties’ rights under this Agreement to obtain additional
1 We have amended the judge's conclusions of law consistent with
our findings herein.
2 We shall modify the judge’s recommended Order to conform to our
findings and in accordance with our recent decision in Danbury
relief in arbitration with respect to such matters); (d) any
other claim which by law cannot be subject to an arbi-
tration agreement; and (e) actions to enforce this Agree-
ment. . . . Additionally, by agreeing to submit the de-
scribed claims to binding arbitration, Employee does not
waive his or her right to file an administrative complaint
with the appropriate administrative agency (e.g. the
Equal Employment Opportunity Commission or state
agencies of a similar nature), but does knowingly and
voluntarily waive the right to file, or seek or obtain relief
in, a civil action of any nature seeking recovery of
money damages or injunctive relief against Employer,
except as described above.
. . .
6. . . . Employee will not be disciplined, discharged, or
otherwise retaliated against for exercising his or her
rights under Section 7 of the National Labor Relations
Act. Employer may use this Agreement to defeat any at-
tempt by Employee to file or join other employees in a
class, collective or joint action lawsuit or arbitration, but
Employer shall not retaliate against Employee for any
such attempt.
The complaint alleges that the MAA violates Section
8(a)(1) of the National Labor Relations Act in two ways:
by requiring employees to waive their right to pursue class
or collective actions in all forums, and by requiring “em-
ployees to submit all employment related disputes and
claims to arbitration, thus interfering with employee ac-
cess to the National Labor Relations Board.” Relying on
Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. den. in
relevant part 808 F.3d 1013 (5th Cir. 2015), the judge
found that the Respondent violated Section 8(a)(1) of the
Act by maintaining and enforcing the MAA based on its
class- and collective-action waiver.
The General Counsel excepted to the judge’s failure to
address the complaint allegation that the maintenance of
the MAA violated the Act because employees would rea-
sonably read the MAA to prohibit or restrict the filing of
unfair labor practice charges with the Board. See U-Haul
Co. of California, 347 NLRB 375, 377–378 (2006) (ap-
plying the “reasonably construe” prong of Lutheran Her-
itage Village-Livonia, 343 NLRB 646 (2004), to deter-
mine if arbitration policy violated the Act by interfering
with employees' access to the Board or its processes),
enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
On December 3, 2018, the Board issued a Decision, Or-
der, and Notice to Show Cause in this case. The Board
Ambulance Service, Inc., 369 NLRB No. 68 (2020). We shall substitute
a new notice to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
dismissed the allegation that the maintenance and enforce-
ment of the MAA unlawfully restricted employees' rights
to pursue class or collective actions in light of the Supreme
Court's decision in Epic Systems Corp. v. Lewis, 584 U.S.
___, 138 S. Ct. 1612 (2018). In that case, the 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 Ar-
bitration Act (FAA). Id. at 1632. The Board also gave
notice to the parties to show cause why the remaining is-
sue in the case—concerning the alleged restriction on em-
ployee access to the Board—should not be remanded to
the judge for further proceedings in light of the Board's
decision in Boeing Co., 365 NLRB No. 154 (2017).3 The
Respondent and the General Counsel each filed a response
to the Notice to Show Cause, and both parties opposed a
remand. In doing so, the Respondent stated that “Boeing
is a purely legal test that does not require additional find-
ings of fact before the ALJ.”
In view of the parties’ responses, and since the remain-
ing allegation may be decided based on the existing rec-
ord, we find that a remand is unnecessary. For the reasons
explained below, we find that the Respondent violated
Section 8(a)(1) of the Act by maintaining the MAA.
Discussion
In Prime Healthcare Paradise Valley, LLC, 368 NLRB
No. 10 (2019), the Board held that, notwithstanding the
Supreme Court's decision in Epic Systems, above, the
FAA “does not authorize the maintenance or enforcement
of agreements that interfere with an employee's right to
file charges with the Board.” Id., slip op. at 5. This is so
because the FAA's requirement that arbitration agree-
ments 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. (quot-
ing Shearson/American Express, Inc. v. McMahon, 482
U.S. 220, 226 (1987)); see IIG Wireless, Inc., 369 NLRB
No. 66, slip op. at 2 (2020).
3 In Boeing, the Board overruled the “reasonably construe” prong of
Lutheran Heritage, above, and announced a new standard, applied retro-
actively, for evaluating the lawfulness of a facially neutral policy. 365
NLRB No. 154, slip op. at 2–3, 17. Under Boeing, the Board first deter-
mines whether a challenged rule or policy, reasonably interpreted, would
potentially interfere with the exercise of rights under Sec. 7 of the Act. If
not, the rule or policy is lawful and placed in Category 1(a). If so, the
Board determines whether an employer violates Sec. 8(a)(1) of the Act
by maintaining the rule or policy by balancing “the nature and extent of
the potential impact on NLRA rights” against “legitimate justifications
associated with the rule,” viewing the rule or policy from the employees’
perspective. Id., slip op. at 3. As a result of this balancing, the Board
places a challenged rule into one of three categories. Category 1(b) con-
sists of rules that are lawful to maintain because, although the rule,
Accordingly, the Board held in Prime Healthcare that
an arbitration agreement that “explicitly prohibits the fil-
ing of claims with the Board or, more generally, with ad-
ministrative agencies must be found unlawful.” 368
NLRB No. 10, slip op. at 5. The Board further held that
where an arbitration agreement does not contain such an
express prohibition but rather is facially neutral, the Board
must apply the standard set forth in Boeing and initially
“determine whether that agreement, ‘when reasonably in-
terpreted, would potentially interfere with the exercise of
NLRA rights.’” Id. (quoting Boeing, 365 NLRB No. 154,
slip op. at 3). The Board found that, under Boeing, arbi-
tration agreements violate the Act when, “taken as a
whole, [they] make arbitration the exclusive forum for the
resolution of all claims, including federal statutory claims
under the National Labor Relations Act.” Id., slip op. at
6. Further, the Board found that, “as a matter of law, there
is not and cannot be any legitimate justification for provi-
sions, in an arbitration agreement or otherwise, that re-
strict employees' access to the Board or its processes.” Id.
Here, the MAA requires that “all disputes and claims”
“be determined exclusively by final and binding arbitra-
tion,” and none of the listed exclusions from the MAA’s
coverage includes claims arising under the National Labor
Relations Act. Without more, the MAA thus makes arbi-
tration the exclusive forum for the resolution of federal
statutory claims under the Act.
In decisions subsequent to Prime Healthcare, however,
we made clear that the analysis does not end there if the
challenged arbitration agreement includes a savings
clause, i.e., a clause providing 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.” Everglades College, Inc. d/b/a Keiser University,
368 NLRB No. 123, slip op. at 3 fn. 3 (2019). Thus, in
Anderson Enterprises, Inc. d/b/a Royal Motor Sales, 369
NLRB No. 70 (2020), and Briad Wenco, LLC d/b/a Wen-
dy's Restaurant, 368 NLRB No. 72 (2019), the Board
found that the agreements at issue, which also required ar-
bitration of claims arising under the Act, were
reasonably interpreted, potentially interferes with the exercise of Sec. 7
rights, the interference is outweighed by legitimate employer inter-
ests. Category 3, in contrast, consists of rules that are unlawful to main-
tain because their potential to interfere with the exercise of Sec. 7 rights
outweighs the legitimate interests they serve. Categories 1(a), 1(b) and
3 designate types of rules; once a rule is placed in one of these categories,
rules of the same type are categorized accordingly without further case-
by-case balancing (for Category 1(b) and 3 rules; balancing is never re-
quired for rules in Category 1(a)). Some rules, however, resist designa-
tion as either always lawful or always unlawful and instead require case-
by-case analysis under Boeing’s balancing framework. These rules are
placed in Category 2. See id., slip op. at 3–4; LA Specialty Produce Co.,
368 NLRB No. 93, slip op. at 2–3 (2019).
20/20 COMMUNICATIONS, INC. 3
nevertheless lawful because they contained savings
clauses that explicitly informed employees that they re-
tained the right to file charges with the Board and access
its processes.4 The Board has also indicated that a savings
clause may be legally sufficient, even if it does not ex-
pressly refer to “the National Labor Relations Board,” “the
NLRB” or “the Board,” if it informs employees of their
right to file claims or charges with administrative agencies
generally.5 The Board examines savings-clause language
in the context of the arbitration agreement as a whole to
ensure that the right of employees to access the Board and
its processes is adequately safeguarded. See Anderson
Enterprises, above, slip op. at 3 (finding arbitration agree-
ment lawful based on both the wording of the savings
clause and its sufficiently prominent placement within the
agreement); Briad Wenco, above, slip op. at 2 (same).
Here, the MAA includes a savings clause providing that
an individual who signs the MAA “does not waive his or
her right to file an administrative complaint with the ap-
propriate administrative agency (e.g. the Equal Employ-
ment Opportunity Commission or state agencies of a sim-
ilar nature).” Although the only federal administrative
agency referenced is the Equal Employment Opportunity
Commission (EEOC), the clause includes “e.g.,” meaning
“for example”: permitted administrative complaints are
those filed with, for example, the EEOC.
We need not decide, however, whether this language,
without more, would be legally sufficient to preserve em-
ployees’ right to file charges with the Board. This is be-
cause the savings clause goes on to state that employees
“waive the right to file, or seek or obtain relief in, a civil
action of any nature seeking recovery of money damages
or injunctive relief against Employer, except as described
above” (emphasis added).6 Interpreted from the perspec-
tive of a reasonable employee, this provision prohibits re-
covering backpay or other monetary remedies ordered by
the Board. Such prohibitions violate the Act. Kelly
4 The arbitration agreement in Anderson Enterprises contained a sav-
ings clause providing that “[c]laims may be brought before an adminis-
trative agency . . . . Such administrative claims include without limita-
tion claims or charges brought before . . . the National Labor Relations
Board.” 369 NLRB No. 70, slip op. at 1. The arbitration agreement in
Briad Wenco contained a savings clause providing that “[n]othing in this
Agreement shall be construed to prohibit any current or former employee
from filing any charge or complaint or participating in any investigation
or proceeding conducted by an administrative agency, including . . . the
National Labor Relations Board.” 368 NLRB No. 72, slip op. at 1.
5 See Beena Beauty Holding, Inc. d/b/a Planet Beauty, 368 NLRB
No. 91, slip op. at 2 (2019) (arbitration agreement at issue “contained no
exception for filing charges with the Board or other administrative agen-
cies”); E. A. Renfroe & Co., 368 NLRB No. 147, slip op. at 3 (2019)
(agreement at issue “[did] not contain a savings clause preserving em-
ployees’ right to file charges with the Board or, more generally, with
administrative agencies”); Haynes Building Services, LLC, 369 NLRB
No. 2, slip op. at 3 (2019) (agreement at issue “did not contain a savings
Services, Inc., 368 NLRB No. 130, slip op. at 3–4 (2019).
As the Board explained in Kelly Services, a prohibition on
recovering backpay or other monetary remedies ordered
by the Board interferes with the Section 7 right of employ-
ees to utilize the Board’s processes, which includes the
right to invoke the exercise of the Board’s statutory pow-
ers under Section 10 of the Act, including its power to de-
termine appropriate relief for violations found. Id., slip
op. at 3. Prohibitions on the recovery of a monetary rem-
edy also interfere with employees’ access to the Board and
its processes by undermining the incentive to file a charge
in the first place. Id., slip op. at 3–4.7
Those who carry lawbooks for a living may quibble
over whether a Board charge may be characterized as a
“civil action of any nature seeking recovery of money
damages or injunctive relief,” but we do not expect the or-
dinary employee to do so. See Ingram Book Co., 315
NLRB 515, 516 fn. 2 (1994) (“Rank-and-file employees
do not generally carry lawbooks to work or apply legal
analysis to company rules as do lawyers, and cannot be
expected to have the expertise to examine company rules
from a legal standpoint.”). Moreover, the filing of a Board
charge is the first step in a process that eventuates in a
complaint seeking injunctive relief (an order to cease and
desist from certain unfair labor practices) and, where ap-
propriate, money damages (backpay and related ex-
penses). See Section 10(b) and (c) of the Act; King Soop-
ers, Inc., 364 NLRB No. 93 (2016). Thus, Board-ordered
remedies are among those waived by the savings clause.
Given this and considering the breadth of the waiver—
which applies to civil actions “of any nature” (emphasis
added)—we find that reasonable employees would believe
they are barred from obtaining monetary relief from the
Board. On this basis, we find that the MAA impermissibly
interferes with employees’ access to the Board and its pro-
cesses.8
clause preserving employees’ right to file charges with the Board or with
administrative agencies generally”).
6 “Except as described above” refers to the MAA’s exclusion clause.
That clause does not exclude claims arising under the NLRA from the
scope of the MAA, so it does not exclude Board charges from the above-
quoted waiver.
7 While the parties did not argue that the MAA violated the Act on
this basis, our finding that it did is based on the language of the MAA
itself, which is part of the stipulated record.
8 Par. six of the MAA states: “Employee will not be disciplined, dis-
charged, or otherwise retaliated against for exercising his or her rights
under Sec[.]7 of the National Labor Relations Act. Employer may use
this Agreement to defeat any attempt by Employee to file or join other
employees in a class, collective or joint action lawsuit or arbitration, but
Employer shall not retaliate against Employee for any such attempt.”
This clause does not suggest that employees are permitted to file charges
with the Board. Rather, its purpose is to assure employees that if they
engage in the Sec. 7–protected act of concertedly filing a class-,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
For these reasons, the MAA, when reasonably inter-
preted, makes arbitration the exclusive forum for resolu-
tion of claims arising under the Act. Therefore, the MAA
falls within Boeing Category 3, and we find that the Re-
spondents violated Section 8(a)(1) of the Act by maintain-
ing it.
AMENDED CONCLUSIONS OF LAW
1. The Respondent violated Section 8(a)(1) of the Act
by maintaining a mandatory arbitration agreement that
employees reasonably would believe bars or restricts their
right to file charges with the National Labor Relations
Board.
2. The above violation constitutes an unfair labor prac-
tice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the Re-
spondent, 20/20 Communications, Inc., Fort Worth,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that em-
ployees reasonably would believe bars or restricts their
right to file charges with the National Labor Relations
Board.
(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) Rescind the Mutual Arbitration Agreement in all its
forms or revise it in all its forms to make clear to employ-
ees that the Mutual Arbitration Agreement does not bar or
restrict employees' right to file charges with the National
Labor Relations Board.
(b) Notify all current and former employees who were
required to sign or otherwise became bound to the Mutual
Arbitration Agreement in any form that the Mutual Arbi-
tration Agreement has been rescinded or revised and, if
revised, provide them a copy of the revised agreement.
(c) Post at its Fort Worth, Texas facility copies of the
attached notice marked “Appendix.”9 Copies of the
collective-, or joint-action lawsuit or arbitration, the Respondent will use
the MAA to defeat that lawsuit in the judicial or arbitral forum, but those
employees will not be disciplined or discharged or suffer any other ad-
verse employment action in retaliation for that protected concerted act.
Thus, par. six does not mitigate the MAA’s unlawful interference with
Board charge filing.
9 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus Disease 2019 (COVID-19)
pandemic, the notices must be posted within 14 days after the facility
notice, on forms provided by the Regional Director for Re-
gion 12, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained 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, and/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 facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
May 12, 2014.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 12 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. July 15, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
reopens and a substantial complement of employees have returned to
work, and the notices may not be posted until a substantial complement
of employees have returned to work. Any delay in the physical posting
of paper notices also applies to the electronic distribution of the notice if
the Respondent customarily communicates with its employees by elec-
tronic means. If this Order is enforced by a judgment of a United States
court of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
20/20 COMMUNICATIONS, INC. 5
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain a mandatory arbitration policy
that bars or restricts your right to file charges with the Na-
tional 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 the Mutual Arbitration Agreement in
all its forms or revise it in all its forms to make clear that
the Mutual Arbitration Agreement does not restrict your
right to file charges with the National Labor Relations
Board.
WE WILL notify all current and former employees who
were required to sign or otherwise became bound to the
Mutual Arbitration Agreement in any form that the Mutual
Arbitration Agreement has been rescinded or revised and,
if revised, WE WILL provide them a copy of the revised
agreement.
20/20 COMMUNICATIONS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/12-CA-165320 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.
1 29 U.S.C. §§ 158(a)(1), et seq.
John W. Plympton, Esq., for the General Counsel.
Kevin Zwetsch and Ina Crawford, Esqs. (Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.), of Tampa, Florida, for the
Respondent.
Andrew Frisch, Esq. (Morgan & Morgan), of Plantation, Flor-
ida, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This matter is
before me on a stipulated record. The Charging Party, Charlie
Smith, filed unfair labor practice charges and amended charges
against the Respondent, 20/20 Communications, Inc., on De-
cember 12, 2015, and February 17, 2016, respectively. The Gen-
eral Counsel issued the complaint on April 29, 2016. The com-
plaint alleges that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (the Act)1 by promulgating, main-
taining and enforcing an agreement requiring its employees to
waive their right to pursue class and collective employment re-
lated actions against it and submit such disputes to arbitration.
The Respondent denies that the arbitration agreement at issue vi-
olates the Act and contends that the Act does not grant employ-
ees a right to access class procedures created by other laws, in-
cluding the Federal Arbitration Act (FAA) and Fair Labor Stand-
ards Act (FLSA).
On July 28, 2016, the parties submitted a Joint Motion and
Stipulated Record, requesting that the foregoing allegations be
decided without a hearing based on a stipulated record. I granted
the parties’ motion on July 29, 2016, and on August 10, 2016,
the parties submitted their respective post-hearing briefs in this
case.
On the entire record, after considering the stipulated record
and briefs filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business located in Fort Worth, Texas, employs employees, in-
cluding Field Sales Managers, located throughout the United
States and has been engaged in the business of providing sales
support, marketing support and brand advocacy to clients
throughout the United States.2 In conducting its business opera-
tions, the Respondent receives annually at its Fort Worth facility
goods and materials valued in excess of $50,000 directly from
points outside the State of Texas. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the Un-
ion is a labor organization within the meaning of Section 2(5) of
the Act.
2 At the relevant times herein, Pat Thrianon and Kimberly Warren
were employed as supervisors within the meaning of Sec. 2(11) of the
Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Mutual Arbitration Agreement
Since on or before May 12, 2014, the Respondent has main-
tained in effect and enforced a Mutual Arbitration Agreement
(MAA) with respect to all of its employees in the United States
and its territories. The MAA is part of a series of electronic doc-
uments that the Charging Party and other newly hired employees
must review as part of the on-boarding process. Those docu-
ments are viewed through an online portal. As part of the hiring
process, newly hired employees, including the Charging Party,
have been required to acknowledge receipt of the MAA before
advancing to the next step of the on-line portion of the on-board-
ing process. The MAA includes the following pertinent provi-
sions:
1. Except as provided below, Employee and Employer, on be-
half of their affiliates, successors, heirs, and assigns, both agree
that all disputes and claims between them, including those re-
lating to Employee’s employment with Employer, and any
separation therefrom, and including claims by Employee
against Employer’s subsidiaries, affiliates and directors, em-
ployees, or agents, shall be determined exclusively by final and
binding arbitration before a single, neutral arbitrator as de-
scribed herein, and that judgment upon the arbitrator’s award
may be entered in any court of competent jurisdiction. Claims
subject to arbitration under this Agreement include without
limitation claims for discrimination, harassment, or retaliation;
wages, overtime, benefits, or other compensation; breach of
any express or implied contract; violation of public policy; per-
sonal injury; and tort claims including defamation, fraud, and
emotional distress. Except as expressly provided herein, Em-
ployer and Employee voluntarily waive all rights to trial in
court before a judge or jury on all claims between them.
2. The only disputes and actions excluded from this Agreement
are: (a) claims by Employee for workers’ compensation of un-
employment benefits; (b) claims by Employee for benefits un-
der an Employer plan or program that provides its own process
for dispute resolution; (c) claims by Employer or Employee for
declaratory or injunctive relief relating to a confidentiality,
non-solicitation, non-competition, or similar obligation (any
such proceedings will be without prejudice to the parties’ rights
under this Agreement to obtain additional relief in arbitration
with respect to such matters); (d) any other claim which by law
cannot be subject to an arbitration agreement; and (e) actions
to enforce this Agreement, such actions to be governed by the
Federal Arbitration Act and the law of the state of Texas, both
of which the parties agree shall to and govern this Agreement
and its enforceability. To the extent there is an conflict between
federal and Texas law, Texas law shall control. Additionally,
by agreeing to submit the described claims to binding arbitra-
tion, Employee does not waive his or her right to file an admin-
istrative complaint with the appropriate administrative agency
(e.g. the Equal Employment Opportunity Commission or state
3 There is no record of Vine’s onboarding information, but his asser-
tion in joining the Florida case that he “likewise was subjected to the
illegal pay practices at issue” is not disputed. (Jt. Exh. 6.)
agencies of a similar nature), but knowingly and voluntarily
waive the right to file, or seek or obtain relief in, a civil action
of any nature seeking recovery and monetary damages or in-
junctive relief against Employer, except as described above.
13. By signing this Agreement, Employee acknowledges that
he or she is knowingly and voluntarily waiving the right to file
a lawsuit or other civil proceeding relating to Employee's em-
ployment with Employer as well as the right to resolve disputes
in a proceeding before a judge or jury, except as described
above. Employee further acknowledges and agrees that this
Agreement, while mutually binding on the parties, does not
constitute a guarantee of continued employment for any fixed
period or under any particular terms except those contained
herein, and does not alter in any way the at-will nature of Em-
ployee’s employment relationship
The MAA also includes a class and collective action waiver
requiring employees to resolve all employment related disputes
by individual arbitration:
6. Arbitration allows Employer and Employee to work directly
with each other to resolve any problems as quickly and effi-
ciently as possible. In this spirit, the parties agree that this
Agreement prohibits the arbitrator from consolidating the
claims of others into one proceeding, to the maximum extent
permitted by law. This means that an arbitrator will hear only
individual claims and does not have the authority to fashion a
proceeding as a class or collective action or to award relief to a
group of employees in one proceeding, to the maximum extent
permitted by law. Employee will not be disciplined, dis-
charged, or otherwise retaliated against for exercising his or her
rights under Section 7 of the National Labor Relations Act.
Employer may use this Agreement to defeat any attempt by
Employee to file or join other employees in a class, collective
or joint action lawsuit or arbitration, but Employer shall not re-
taliate against Employee for any such attempt.
Since May 12, 2014, the Charging Party and other similarly
situated employees of the Respondent, including David Vine,
could elect to opt out of the MAA within 15 days, through a pro-
cedure specified in the MAA, without being subject to adverse
employment action:
10. Employee may opt-out of this Agreement by delivering,
within 15 days of the date this Agreement is provided to Em-
ployee, a completed and signed Opt-Out Form to Employer's
Director of Human Resources. An Opt-Out Form is available
from the Human Resources office. If Employee does not de-
liver the form within 15 days, and if Employee accepts or con-
tinues employment with Employer after that date, Employee
will be deemed to have accepted the terms of this Agreement.
The Charging Party electronically signed the MAA during the
onboarding hiring process on May 12, 2014. Vine also followed
the same procedure upon commencing employment with the Re-
spondent.3 Neither choose to opt-out of the MAA.
20/20 COMMUNICATIONS, INC. 7
B. Enforcement of The Agreement
The Charging Party was employed by the Respondent as a
Field Sales Manager from March 7, 2014, until March 12, 2015.
On October 30, 2015, the Charging Party filed a complaint
against the Respondent in United States District Court for the
Middle District of Florida in Case 2:15-CV-687-FtM-99CM (the
Florida case). On November 9, 2015, Vine, another former em-
ployee of the Respondent, opted into that proceeding. On No-
vember 19, 2015, the Respondent filed Defendant’s Motion to
Dismiss or in the Alternative, to Stay and Compel Arbitration in
Charlie Smith, on behalf of himself and those similarly situated
v. 20/20 Communications, Inc., Case 2:15-cv-00687, filed in the
United States District Court for the Middle District of Florida
(the Florida enforcement case).
On December 1, 2015, counsel for the Charging Party filed
Notice of Dismissal Without Prejudice in the Florida case. On
December 2, 2015, the Florida case was dismissed without prej-
udice as to the Charging Party, but otherwise remains pending as
to Vine.4
Between April 1, 2016, and May 13, 2016, Andrew Frisch of
the Morgan and Morgan law firm filed separate arbitration cases
with the American Arbitration Association, alleging violations
of the FLSA, on behalf of 18 individuals, including the Charging
Party and Vine.
The Respondent’s Florida enforcement case, filed in response
to Florida case brought by the Charging Party and joined by
Vine, is not an isolated event. On June 9, 2016, employee James
Richmond filed a complaint alleging violations of the FLSA by
the Respondent in the United States District Court for the North-
ern District of Illinois in Case 1:16-CV-06051 (the Illinois case).
On June 17, 2016, the Respondent filed a petition to compel ar-
bitration in the United States District Court for the Northern Dis-
trict of Texas in Case 4:16-CV-488 (the Texas case) seeking to
compel individual arbitration of Richmond’s claims in the Illi-
nois case. On August 18, 2016, the Respondent filed an amended
complaint and petition in the Texas case. On June 24, 2016,
Richmond filed an amended complaint against the Respondent
in the Illinois case.5
LEGAL ANALYSIS
The complaint alleges that the class and collective action
waiver contained in the MAA violates Section 8(a)(1) of the Act
even though the agreement includes an opt-out procedure for em-
ployees who do not want to sign the agreement. It is further al-
leged that enforcement of the class action waiver in the MAA
constitutes an additional violation. In support of the allegations,
the General Counsel alleges that the administrative law judge is
bound to follow extant agency precedent in D. R. Horton, Inc.,
357 NLRB 2277 (2012). In that case, the Board held that Section
7 creates a substantive right for employees to pursue collective
4 The court order in the Florida case clearly had a typographical error
in further stating that the complaint, while dismissed without prejudice
as to Smith, remained pending as to Smith. The order obviously was re-
ferring to continued pendency as to Vine, who was also added as an opt-
in plaintiff at that time. (Jt. Exh. 9.)
5 On August 25, 2016, the General Counsel moved to reopen the rec-
ord and amend the complaint to add allegations regarding the
action and, thus, a required waiver of such right violates Section
8(a)(1) of the act.
The Respondent contends that the MAA does not violate the
Act because: (1) the Board decision in D. R. Horton was over-
ruled by several federal courts; (2) D. R. Horton was wrongly
decided because the Act conflicts with several substantive stat-
utes; (3) an employee may opt-out and is not required to sign the
MAA as a condition of employment; and (4) Section 7 does not
create a substantive right to pursue collective legal action in fo-
rums other than arbitration.
I. BOARD PRECEDENT IN D.R. HORTON, INC. GOVERNS THE MAA
The Respondent maintains that the General Counsel and
Charging Party cannot rely on Board decisions in D. R. Horton
and Murphy Oil that were reversed by the federal courts uphold-
ing class action waivers. D.R. Horton, Inc. v. NLRB, 737 F.3d
344, 359–360 (5th Cir. 2013); Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013, 1016 (5th Cir. 2015). In Murphy Oil, the Board
affirmed the holding in D. R. Horton and addressed the Fifth Cir-
cuit’s rejection of the Board’s decision by reiterating its position
that the Board is not required to follow their decisions in other
cases. Murphy Oil, 361 NLRB 774, 775 fn. 17, citing Enloe Med-
ical Center v. NLRB, 433 F.3d 834, 838 (D.C. Cir. 2005).
Only the Board or the Supreme Court can reverse extant Board
precedent in D.R. Horton and Murphy Oil. Waco, Inc., 273
NLRB 746, 749 fn. 14 (1984); Iowa Beef Packers, Inc., 144
NLRB 615, 616–617 (1963), enf. granted in part, 331 F.2d 176
(1964). As such, unless and until the Supreme Court holds oth-
erwise, an administrative law judge is bound to follow the
Board’s controlling precedent finding class action waivers un-
lawful. See, e.g., Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984);
Pathmark Stores, 342 NLRB 378 fn.1 (2004) (finding that the
administrative law judge has duty to apply established Board
precedent which the Supreme Court has not reversed); Chesa-
peake Energy Corp., 362 NLRB 681 (2015) (rejecting the ad-
ministrative law judge’s deference of the Act to the FAA and
finding that arbitration policies violated Section 8(a)(1)).
Moreover, the federal courts diverge in their opinions regard-
ing the issue. The Seventh and Ninth Circuits recently agreed
with the Board’s decision in D.R. Horton and deferred to the
Board’s interpretation of Section 7 as prohibiting employers
from restraining employees in the pursuit of class action reme-
dies. Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016);
Morris v. Ernst & Young, __ F.3d __, Case No. 13-16599 (9th
Cir. 8/22/16). Deference to the Board’s interpretation of the Act
is neither a novel nor new concept, even at the Supreme Court.
See, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527, 536 (1992).
The Supreme Court has not overturned the Board precedent in
D. R. Horton and Murphy Oil holding that class action waivers
in arbitration agreements restricting the right of employees to en-
gage in concerted activity are unlawful. Therefore, D. R. Horton
Respondent’s enforcement efforts in the Texas case in response to the
Illinois case. I denied the motion on August 29, 2016, but stated my
intent to take administrative notice of the pleadings in the Texas case,
both containing facts which the Respondent concedes, pursuant to Fed.
R. of Evid. 201.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
remains controlling Board law. Manor West, Inc., 311 NLRB
655, 667 fn. 43 (1993).
II. D.R. HORTON, INC. WAS NOT WRONGLY DECIDED
The Respondent further contends that the Board’s decision in
D. R. Horton was wrongly decided because it fails to accommo-
date Congress’s policies advanced in other laws. See e.g., Hoff-
man-La Roche, Inc. v. Sperling, 493 U.S. 165, 173 (1989)
(FLSA); Ortiz v. Fireboard Corp., 527 U.S. 815, 845 (1999)
(Rules Enabling Act); AT&T Mobility v. Concepcion, 131 S. Ct.
1740, 1746 (2011) (FAA); and CompuCredit Corp. v. Green-
wood, 132 S.Ct. 665, 669 (2012) (same).
The General Counsel relies on the Board’s holding in D. R.
Horton that “the right to engage in collective action—including
collective legal action—is the core substantive right protected by
the [Act] and is the foundation on which the Act and Federal la-
bor policy rest,” citing Murphy Oil, supra at 780, quoting D.R.
Horton, supra at 2286. The General also notes the Board’s con-
sistent distinction of cases to the contrary. For example, Concep-
cion was decided in the context of a commercial arbitration
agreement and the preemption of a state consumer protection
law, not employees’ substantive, federal collective action rights
under Section 7 of the Act. 357 NLRB at 2288. The D. R. Horton
Board explained that its holding did not conflict with the FAA
because the intent of that statute was to leave substantive rights
undisturbed and, thus, the right to join or pursue collective relief
was a substantive Section 7 right. In Murphy Oil, the Board re-
jected the Fifth Circuit’s reliance on Concepcion’s holding that
the FAA preempted a California State law finding class-action
waivers in consumer contracts unconscionable. Murphy Oil, su-
pra, at 782.
In any event, regardless as to whether the Board precedent was
wrongly decided, I am bound to follow applicable Board law.
Chesapeake Energy Corp. supra.
III. RESPONDENT’S VOLUNTARY MAA RESTRICTS SECTION 7
RIGHTS AND VIOLATES THE ACT.
The Respondent further alleges that the Board’s decision in
D.R. Horton is not applicable to the MAA because D. R. Horton
only applies to mandatory class waivers, “imposed upon” em-
ployees and “required” by employers “as a condition of employ-
ment.” 357 NLRB 2277. The Respondent argues that the MAA
is voluntary and agreeing to its terms is not required as a condi-
tion of employment.
It is undisputed that the Charging Party signed the MAA and
did not voluntarily opt out within 15 days thereafter. Neverthe-
less, recent Board decisions have further construed D. R. Horton
to extend to arbitration agreements that are voluntary. See On
Assignment Staffing Services, 362 NLRB 1672, 1681 (2015). As
such, whether the policy was mandatory or voluntary is not dis-
positive of whether such policy violates the Act. On Assignment
Staffing Services, supra, at 1677 (finding the arbitration policy
violated the Act even if employees could opt out of arbitration.);
Pama Management, 363 NLRB 384, 385 (2015) (rejecting em-
ployer's assertion that the opt-out provision of its arbitration
agreement made the agreement lawful); U.S. Xpress Enterprises,
Inc., 363 NLRB 457, 457–458 (2015) (same).
In On Assignment Staffing Services, the Board held that
voluntary agreements are “contrary to the National Labor Rela-
tions Act and to fundamental principles of federal labor policy.”
Supra, at 1678 The Board found that the opt-out procedure inter-
feres with Section 7 rights by requiring employees to take af-
firmative steps and burdens the exercise of Section 7 rights. A
policy requiring employees to obtain their employer’s permis-
sion to engage in protected concerted activity is unlawful, even
if the rule does not absolutely prohibit such activity and regard-
less of whether the rule is actually enforced. Chromalloy Gas
Turbine Corp., 331 NLRB 858, 858–859 (2000), enfd. 262 F.3d
184 (2d Cir. 2001); Brunswick Corp., 282 NLRB 794, 794–795
(1987). The Board also found that the respondents opt-out pro-
cedure interfered with Section 7 rights because it required em-
ployees who wished to retain their right to pursue class or col-
lective claims to “make ‘an observable choice that demonstrated
their support for or rejection of’” concerted activity. On Assign-
ment Staffing Services, supra, at 1677, citing Allegheny Ludlum
Corp., 333 NLRB 734, 740 (2001), enfd. 301 F.3d 167 (3d Cir.
2002).
Applying Board precedent to this case, the Respondent’s
MAA policy violates the Act. Although the MAA has an opt-out
provision, employees have to take affirmative steps to opt out in
order to exercise their Section 7 rights. Employees who want to
opt out are required to sign and return the form it within 15 days
of receipt of the policy. The Board has essentially deemed the
additional action that must be taken to sidestep the MAA as an
ineffective offset to the coercive nature of the MAA. The ra-
tionale there is that it is reasonable to expect that employees
would not be inclined to affirmatively opt out of the MAA over
concern of standing out as an employee who rejected the em-
ployer’s request that they waive their Section 7 rights.
IV. THE MAA RESTRAINS EMPLOYEES FROM FILING UNFAIR LABOR
PRACTICES WITH THE BOARD.
The Respondent also asserts that the MAA is lawful because
employees can exercise their right to “refrain” from concerted
activity. Relying on Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), the Respondent notes the absence of evidence
that the MAA was adopted in response to union activity or other
Section 7 activity.
It is true that federal courts and the Board have recognized the
employee’s right to waive statutorily protected rights. BE & K
Constr. Co. v. NLRB, 23 F.3d 1459, 1462 (8th Cir. 1994) (hold-
ing that the right to refrain from joining or assisting a union is an
equally protected right with that of joining or forming a union).
However, the Board already rejected the argument that an opt-
out provision affords employees the unfettered freedom to enter
into a class waiver, or refrain from doing so. MasTec Services
Co., 363 NLRB No. 81 (2015) (not reported in Board volume),
enf. denied No. 16-60011 (per curiam) (5th Cir. July 11, 2016).
Accordingly, even the voluntary nature of a class action waiver
is deemed to restrict the Section 7 rights of employees.
V. RESPONDENT’S MOTIONS TO COMPEL ARBITRATION VIOLATE
THE ACT.
The Respondent successfully enforced the MAA as against
the Charging Party and continues a similar effort against Vine in
the Florida case. As a result, the Charging Party was preventing
20/20 COMMUNICATIONS, INC. 9
from pursuing his FLSA claims in Federal district court and rel-
egated to arbitration. Under the circumstances, the Respondent’s
enforcement of the MAA constituted additional violations of
Section 8(a)(1) of the Act. See Murphy Oil, supra at 800. Evi-
dence of the Respondent’s enforcement of the MAA in the Illi-
nois and Texas cases, while not a part of the complaint, confirms
that the Respondent’s coercive actions in the Florida case are not
isolated events.
Here, the Respondent insists that the right to engage in class
or collective action is not a protected, concerted activity under
Section 7 of the Act. The Respondent refers to the voluntary na-
ture of the MAA in support of their contention that the Respond-
ent did not interfere with, restrain or coerce the Charging Party
or Vine from opting out of the right to participate in class or col-
lective actions. Board precedent, however, holds otherwise and
the Respondent’s motions to compel arbitration in the Florida
case violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent 20/20 Communications, Inc. is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Since May 12, 2014, the Respondent has violated Section
8(a)(1) of the Act by maintaining and enforcing a Mutual Arbi-
tration Agreement requiring employees to resolve employment-
related disputes exclusively through individual arbitration and
forego any right they have to resolve such disputes through class
or collective action.
3. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated the Act by main-
taining and enforcing the Mutual Arbitration Agreement, I shall
order it to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, 20/20 Communications, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing its Mutual Arbitration Agree-
ment.
(b) Seeking court action to enforce the Mutual Arbitration
Agreement that, either expressly or impliedly, or by Respond-
ent’s actions or practice, waives the right to maintain employ-
ment-related class or collective actions against the Respondent
in all forums, whether arbitral or judicial, including the processes
of the National Labor Relations Board.
(c) In any like or related manner, interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind or revise the Mutual Arbitration Agreement to
make it clear to employees that the agreement does not constitute
a waiver of their right to maintain employment related class or
collective actions in all forums, or their right to access the Na-
tional Labor Relations Board processes.
(b) Notify all employees at locations where the policy is in
effect, that it will no longer maintain or enforce the provisions
contained in the Mutual Arbitration Agreement that waives em-
ployees’ right to bring or participate in class or collective actions.
(c) Notify arbitral or judicial panels, if any, where the Re-
spondent has attempted to enjoin or otherwise prohibit employ-
ees from bringing or participating in class or collective actions,
that it is withdrawing those objections and that it no longer seek-
ing to compel arbitration pursuant to the Mutual Arbitration
Agreement.
(d) Reimburse the Charging Party, Vine and/or other employ-
ees who joined Case 2:15-CV-687-FtM-99CM in the United
States District Court for the Middle District of Florida (for any
litigation expenses: (i) directly related to opposing Respondent’s
Motion to Dismiss or in the Alternative, to Stay and Compel Ar-
bitration in Charlie Smith, on behalf of himself and those simi-
larly situated v. 20/20 Communications, Inc., Case 2:15-cv-
00687, filed in the United States District Court for the Middle
District of Florida; and/or (ii) resulting from any other legal ac-
tion taken in response to Respondent’s efforts to enforce the ar-
bitration agreement; and/or (ii) resulting from any other legal ac-
tion taken in response to Respondent’s efforts to enforce the ar-
bitration agreement.
(e) Within 14 days after service by the Region, post at all fa-
cilities where the Mutual Arbitration Agreement is maintained
or enforced, copies of the attached notice marked “Appendix.”7
Copies of the notice, 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 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In ad-
dition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees and for-
mer employees by such means. Respondent also shall duplicate
and mail, at its expense, a copy of the notice to all former em-
ployees who were required to sign the mandatory and binding
arbitration policy during their employment with the Respondent.
Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other ma-
terial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the fa-
cility involved in these proceedings, the Respondent shall
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Re-
spondent at any time since May 12, 2014.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification 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. September 6, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce the Mutual Arbitration
Agreement that requires our employees, as a condition of em-
ployment, to waive the right to maintain employment-related
class or collective actions in all forums, whether judicial or arbi-
tral.
WE WILL NOT maintain or enforce the Mutual Arbitration
Agreement that interferes with your right to access the processes
of, or to file charges with, the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce you in the exercise of your exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL rescind or revise the Mutual Arbitration Agreement
in all of its forms or revise it to make clear that it does not con-
stitute a waiver of your right to maintain employment-related
class or collective actions against the company in all forums, and
that it does not constitute a waiver of your right to access the
processes of, or file charges with, the National Labor Relations
Board.
WE WILL notify any arbitral or judicial panel where we have
attempted to prevent or enjoin you from commencing, or partic-
ipating in, joint or class actions that we are withdrawing our ob-
jections to these actions.
WE WILL notify current and former employees who were re-
quired to sign the Mutual Arbitration Agreement of the rescinded
or revised agreement, including providing them with a copy of
the revised agreement or specific notification that the agreement
has been rescinded.
WE WILL Reimburse Charlie Smith, David Vine and/or other
employees who joined Case 2:15-CV-687-FtM-99CM in the
United States District Court for the Middle District of Florida
(for any litigation expenses: (i) directly related to opposing Re-
spondent’s motion to compel arbitration in Charlie Smith, on be-
half of himself and those similarly situated v. 20/20 Communi-
cations, Inc., Case 2:15-cv-00687, filed in the United States Dis-
trict Court for the Middle District of Florida; and/or (ii) resulting
from any other legal action taken in response to Respondent’s
efforts to enforce the arbitration agreement.
20/20 COMMUNICATIONS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-165320 or by using the QR code be-
low. 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.