Aryzta LLC

National Labor Relations Board - Board Decisions

Apr 13, 2020

369 N.L.R.B. 55 (N.L.R.B. 2020)

369 NLRB No. 55
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.
Aryzta, LLC and Bernabe Cipres. Case 31–CA–
178826
April 13, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On April 9, 2018, Administrative Law Judge Eleanor
Laws issued the attached decision. 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 brief
and has decided to affirm the judge’s rulings, findings, and
conclusions for the reasons set forth below and to adopt
the recommended Order as modified.1
Background
The stipulated issue before the Board, as modified by
the General Counsel and the Respondent after the issuance
of Boeing Co., 365 NLRB No. 154 (2017), is whether the
Respondent’s maintenance of the Mutual Agreement to
Arbitrate (MAA) violates Section 8(a)(1) of the Act. The
Respondent maintained the MAA from about July 16,
2014, through January 31, 2016. The MAA includes the
following provisions:
This Agreement requires you and the Company to arbi-
trate any claims or controversies during or following
your employment, whether or not they are in any way
related to or associated with your employment or the ter-
mination of your employment with the Company (de-
fined in Section 1, below). This Agreement includes
Claims (defined in Section 4, below) that the Company
may have against you, or that you may have against the
Company. This Agreement affects your rights to a trial
by a jury. You may wish to seek legal advice before
signing this Agreement.
Section 4: Claims Covered by Arbitration
The “Claims” covered by this Agreement include, but
are not limited to, all past, present, [and] future claims,
including any pending litigation, for: wrongful termina-
tion; breach of any contract or covenant, express or im-
plied; breach of any duty owed to you by the Company
or to the Company by you; wages or other compensation
due; penalties; benefits; reimbursement of expenses;
1 We shall substitute a new notice to conform to the violation found
and the modified Order.
discrimination or harassment, including but not limited
to discrimination or harassment based on race, sex, preg-
nancy, religion, national origin, ancestry, age, marital
status, physical disability, mental disability, medical
condition, genetic characteristics, gender expression,
gender identity, or sexual orientation; retaliation; viola-
tion of any federal, state or other governmental constitu-
tion, statute, ordinance or regulation (as originally en-
acted and as amended), including but not limited to Title
VII of the Civil Rights Act of 1964 (“Title VII”), the Age
Discrimination in Employment Act of 1967 (“ADEA”),
the Americans with Disabilities Act (“ADA”), the Fair
Labor Standards Act (“FSLA”), the Employee Retire-
ment Income Security Act (“ERISA”), the Consolidated
Omnibus Budget Reconciliation Act (“COBRA”), the
Family and Medical Leave Act (“FMLA”), the Califor-
nia Fair Employment and Housing Act (“FEHA”), the
California Family Rights Act (“CFRA”), the California
Labor Code, the California Civil Code, and the Califor-
nia Wages Orders. As used herein, “Claims” does not
mean any dispute if arbitration of the dispute is prohib-
ited by law. Employees may learn more about their legal
rights by visiting websites hosted by federal and state
governmental agencies . . . . Current links to some of
these federal websites are listed below . . . .
Section 12: Opt Out Rights
You have 10 days after signing this Agreement to opt
out of arbitration. If you opt out, then neither you nor
the Company will be bound by the terms of this Agree-
ment. To opt out, you must: (1) notify the Company in
writing that you are opting out; (2) sign a notice of opt
out; and (3) mail or have it delivered to your local Hu-
man Resources Representative so that the Company re-
ceives it no later than thirty (30) days after the date you
signed this Agreement. Such written notice may simply
state "I wish to opt out of the arbitration program" or
words to that effect. If no such notice is delivered before
the 10-day deadline, then this Agreement will become
fully effective and binding upon the date below.
BY SIGNING THIS AGREEMENT, THE PARTIES
HEREBY WAIVE THEIR RIGHT TO HAVE ANY
DISPUTE, CLAIM OR CONTROVERSY DECIDED
BY A JUDGE OR JURY IN A COURT.
The agreement also states that the arbitrator’s decision is “fi-
nal and binding.” When the Respondent introduced the
MAA, it offered employees $10 as consideration for signing
it and presented them with the opt-out provision above.2
2 There is no evidence that the Respondent retaliated against employ-
ees who declined to sign the MAA or exercised opt-out rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
On July 16, 2014, Charging Party Bernabe Cipres
signed the MAA and accepted the $10. He did not exer-
cise his right to opt out. In late 2014, Cipres filed a claim
with the Equal Employment Opportunity Commission al-
leging that the Respondent violated the Americans with
Disabilities Act. The EEOC issued Cipres a right-to-sue
letter. Cipres filed an unfair labor practice charge and an
amended charge alleging, as relevant here, that the Re-
spondent violated Section 8(a)(1) by maintaining the
MAA. On December 30, 2016, the General Counsel is-
sued a complaint.3
In February 2016, the Respondent issued a revised
MAA (Revised MAA) that expressly states it “. . . does
not prohibit the filing of or pursuit of relief through . . . an
administrative charge to the National Labor Relations
Board . . . .” The Revised MAA is not alleged to be un-
lawful.
The Judge’s Decision
Questioning the application of Boeing to arbitration
agreements, the judge found that the MAA was a contract
written in “legalese,” as opposed to a work rule drafted by
and for laymen. Applying contract law, the judge found
that the MAA “explicitly addresse[d] fundamental Section
7 rights” and therefore was to be analyzed outside the Boe-
ing framework, which applies to facially neutral rules and
policies. The judge found that because the MAA provided
that all claims and controversies and all violations of fed-
eral statutes must be arbitrated, without clearly excepting
claims for violation of the NLRA, the MAA restricted em-
ployees’ access to the Board and its processes. Although
the judge found that the MAA was not mandatory because
it contained the opt-out provision, she found that the MAA
was nevertheless unlawful, relying on National Licorice
Co. v. NLRB, 309 U.S. 350, 364 (1940) (individual con-
tracts that require employees to waive statutory rights are
unenforceable), and J. I. Case Co. v. NLRB, 321 U.S. 332,
340 (1944) (contracts used as a means of interfering with
rights guaranteed by the Act are invalid). Alternatively,
the judge applied Boeing and found that “as reasonably
interpreted, [the MAA] would prohibit or limit NLRA-
protected conduct, and the adverse impact on NLRA
rights is not outweighed by any justifications associated
with the rule.” The judge ordered the Respondent to (1)
cease and desist from violating the Act in any like or
3 The charge and complaint also alleged that the Respondent had at-
tempted to enforce the MAA. The General Counsel and the Respondent
explicitly stipulated that the General Counsel was not pursuing the at-
tempted enforcement allegation in this proceeding.
The complaint also included allegations based on class- and collec-
tive-action waivers in the MAA and in an arbitration agreement main-
tained by a second named Respondent, Real Time Staffing. As noted in
fn. 1 of the judge’s decision, at the time of her decision those allegations
related manner; (2) notify all applicants and current and
former employees who signed the MAA, and who did not
receive and sign the Revised MAA, that the MAA was re-
scinded and provide them a copy of the revised agreement;
and (3) post a notice.
The Respondent’s Exceptions
The Respondent argues that the judge erred in finding
that Boeing does not apply to arbitration agreements, in
applying contract law, and by applying Boeing incor-
rectly. The Respondent also argues that the MAA is not
mandatory or a condition of employment and that the
judge’s recommended remedy exceeds the stipulated rem-
edy. As explained below, we find that Boeing is applica-
ble here, that the MAA is unlawful, and that the judge’s
recommended remedies are appropriate with minor cor-
rections.
Analysis
As the Board explained in Prime Healthcare Paradise
Valley, LLC, 368 NLRB No. 10, slip op. at 5 (2019), it
applies Boeing in assessing the lawfulness of facially neu-
tral arbitration agreements. Under Boeing, the Board first
determines whether the agreement, when reasonably inter-
preted, would potentially interfere with the exercise of
Section 7 rights. See Boeing, 365 NLRB No. 154, slip op.
at 3. If it does, the Board will evaluate (1) the nature and
extent of the potential impact on NLRA rights, and (2) le-
gitimate justifications associated with the rule. See id.
Applying the Boeing analysis in Prime Healthcare Par-
adise Valley, LLC, the Board found that although the arbi-
tration agreement at issue did not explicitly prohibit the
filing of a charge, “when reasonably interpreted, [it] inter-
fere[d] with the exercise of the right to file charges with
the Board.” 368 NLRB No. 10, slip op. at 6. With regard
to the next step in the Boeing analysis—balancing the po-
tential impact on Section 7 rights against the employer’s
justification—the Board concluded that “as a matter of
law, there is not and cannot be any legitimate justification
for provisions, in an arbitration agreement or otherwise,
that restrict employees’ access to the Board or its pro-
cesses.” Id. As a result, the Board placed provisions that
restrict employees’ access to the Board by making arbitra-
tion the exclusive forum for the resolution of all claims in
Boeing Category 3, which designates rules and policies
that are unlawful to maintain. Id., slip op. at 7.
had been placed in abeyance. On July 16, 2018, following the issuance
the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 584 U.S.
__, 138 S. Ct. 1612 (2018), the Regional Director for Region 31 ap-
proved the Charging Party’s request to withdraw the entire charge (Case
31–CA–178827) against Real Time Staffing and the portion of the
charge (Case 31–CA–17726) against Aryzta alleging the unlawful
maintenance of a class- and collective-action waiver. Accordingly, the
Regional Director dismissed the corresponding complaint allegations.
ARYZTA, LLC 3
Here, as in Prime Healthcare, the Respondent’s MAA
does not expressly mention the Board or the filing of
charges pursuant to the Act. Its coverage, however, is ex-
pansive. The MAA states:
The “Claims” covered by this Agreement include, but
are not limited to, all past, present, [and] future claims,
including any pending litigation, for: wrongful termina-
tion . . . wages or other compensation due . . . benefits . .
. discrimination or harassment . . . violation of any fed-
eral, state or other governmental Constitution, statute,
ordinance or regulation . . . including but not limited to
[Title VII, ADEA, ADA, FSLA, ERISA, COBRA,
FMLA and specified California equal rights and em-
ployment statues]. As used herein, "Claims" does not
mean any dispute if arbitration of the dispute is prohib-
ited by law . . . .
Reasonably read, the MAA’s scope and the litany of statutes
it covers would be perceived as making arbitration the exclu-
sive forum for the resolution of statutory claims, including
those arising under the Act. Therefore, we find that the MAA
falls within Category 3 of Boeing and is unlawful to maintain.
See E.A. Renfroe & Co., 368 NLRB No. 147, slip op. at 3–4
(2019), and Everglades College, Inc. d/b/a Keiser University
and Everglades University, 368 NLRB No. 123, slip op. at
1–2 and 4 (2019).4 In so finding, we disagree with the Re-
spondent that the MAA’s exclusions clause makes the MAA
lawful. The language in that clause— “‘Claims’ does not
mean any dispute if arbitration of the dispute is prohibited by
law”—is insufficient to apprise employees that they may file
charges with the Board and otherwise access its processes.
Everglades College, Inc., d/b/a Keiser University, supra, slip
op. at 3–4 (“Vague, generalized language . . . purporting to
exclude claims for which arbitration is ‘prohibited by law’
would undoubtedly require employees to meticulously deter-
mine the state of the law themselves.”).5
4 Having found that the MAA is unlawful under Boeing, we find it
unnecessary to pass on the judge’s contract analysis.
5 Moreover, on its face the exclusion does not clearly apply to NLRA
claims. The Act does not prohibit employers and employees subject to
the Board’s jurisdiction from arbitrating disputes arising under the Act—
and in fact parties in collective-bargaining relationships lawfully agree
to arbitrate claims every day, so arbitration of NLRA disputes is not cat-
egorically prohibited by law. See Collyer Insulated Wire, 192 NLRB
837, 839, 843 (1971) (Board deferred to arbitration, but retained limited
jurisdiction, where dispute derived entirely from contract itself and con-
tract contained a “quick and fair means [of] resolution”), and United
Technologies Corp., 268 NLRB 557, 560 (1984) (Board deferred dis-
criminatory threat allegation to arbitration where it was clearly cogniza-
ble under the broad grievance-arbitration provision of the parties’ collec-
tive-bargaining agreement).
Member Emanuel dissented in Everglades College, supra, and did not
participate in E.A. Renfroe, supra. However, he agrees that the exclusion
language in the present case—“‘Claims” does not mean any dispute if
arbitration of the dispute is prohibited by law”—does not make the MAA
lawful. As his colleagues note, this language would not encompass
We also reject the Respondent’s argument that the
MAA is lawful because it is not mandatory. Citing U-
Haul Co. of California, 347 NLRB 375, 378 fn. 10 (2006),
the Respondent argues that in order to violate the Act, an
arbitration agreement must either be “mandatory as a con-
dition of employment” or be “one that imposes sanctions”
for violation of its terms. Having found that the MAA un-
lawfully restricts access to the Board and its processes, we
need not determine whether it is mandatory. We reiterate
that “there cannot be any legitimate justification for pro-
visions, in an arbitration agreement or otherwise, that re-
strict employees’ access to the Board or its processes.”
(Emphasis added.) Prime Healthcare, 368 NLRB No. 10,
slip op. at 6. As the Supreme Court stated in NLRB v. In-
dustrial Union of Marine & Shipbuilding Workers, 391
U.S. 418, 424 (1968):
The Board cannot initiate its own proceedings; imple-
mentation of the Act is dependent “upon the initiative of
individual persons.” The policy of keeping people “com-
pletely free from coercion” against making complaints
to the Board is therefore important in the functioning of
the Act as an organic whole. [Citation omitted.]
Accordingly, inasmuch as the MAA does not withstand scru-
tiny under the standards set forth in Boeing and Prime
Healthcare because it restricts employees’ access to the
Board and is unjustifiable, we find that it violates Section
8(a)(1) of the Act irrespective of whether it is mandatory.
The Remedy
As stated above, the Respondent excepts to the judge’s
recommended remedy, order, and notice to employees on
the basis that they exceed the stipulated remedy. With one
minor exception, noted below, we disagree.
First, although the Board holds the parties to their stip-
ulations with respect to the issues being presented for
claims arising under the Act because unfair labor practice claims can be,
and often are, subject to arbitration through collectively bargained dis-
pute resolution procedures. The language here is therefore distinguisha-
ble from the language he found lawful in Everglades College, supra, slip
op. at 3 fn. 6, and Countrywide Financial Corp., 369 No. 12, slip op. at
3 fn. 6 (2020). The agreement in Everglades required arbitration of
“[a]ny controversy or claim arising out of or relating to Employee’s em-
ployment [or] separation from employment . . . except where specifically
prohibited by law.” Supra, slip op. at 1–2. The agreement in Country-
wide included a clause stating, “Nothing in this Agreement shall be con-
strued to require arbitration of any claim if an agreement to arbitrate such
claim is prohibited by law.” Supra, slip op. at 3 fn. 6. In Member Eman-
uel’s view, an agreement requiring the mandatory exclusive arbitration
of claims arising under the Act would be “prohibited by law,” and there-
fore was expressly excluded from coverage under the plain language of
the agreements in Everglades and Countrywide. As the exclusion lan-
guage here would not exempt NLRA claims from coverage, he agrees
that the MAA unlawfully interferes with employees’ access to the
Board’s processes in violation of Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
resolution, it is not bound to their stipulations when it
comes to the choice of remedies. Compare Private Na-
tional Mortgage Acceptance Company LLC (PennyMac),
368 NLRB No. 126, slip op. at 3 (2019) (finding that judge
erred in reaching the merits of issue not stipulated for res-
olution), with Blossom Nursing Center, 299 NLRB 333,
339 (1990) (stipulated cease-and-desist remedy for ban-
ning union pins did not redress disciplinary actions taken
pursuant to ban), and Truman Medical Center, 247 NLRB
396, 398 (1980) (the Board saw “no reason to honor” a
stipulated remedy limited to a cease-and-desist order that
did not include payment of dues that employer failed to
check off, particularly because “the record clearly re-
veal[ed] the existence of the dues-checkoff provision in
the collective-bargaining agreement and the [r]espondent
conceded its failure to honor said agreement”). The
Board’s exercise of remedial discretion is based on Sec-
tion 10(a) and (c) of the Act, which empower the Board to
prevent and redress unfair labor practices. Section 10(a)
specifically states that the Board’s remedial power “shall
not be affected by any other means of adjustment or pre-
vention that has been or may be established by agreement,
law, or otherwise . . . .” Section 10(c) provides, in relevant
part, that if the Board finds the respondent has violated the
Act, the Board shall issue an order “requiring [the re-
spondent] to cease and desist from such unfair labor prac-
tice, and to take such affirmative action . . . as will effec-
tuate the policies of this Act.” (Emphasis added.) The
Board orders remedies that return the employees and the
respondent to the preunfair labor practice status quo, and
it has done so even where the record contains evidence
that the respondent has already ceased engaging in unlaw-
ful conduct—tailoring the remedy, as appropriate, to the
circumstances of the case. See Prime Healthcare, supra,
slip op. at 3 and 8 (ordering respondent to rescind or revise
unlawful policy “to the extent it has not already done so”
where the unlawful provision had already been replaced,
but the original policy had not been revoked); Lily Trans-
portation Corp., 362 NLRB 406, 407 (2015) (declining to
order rescission of unlawful rules where the parties stipu-
lated that they had already been rescinded and a new hand-
book distributed, and instead ordering that the notice to
employees state that the rules had been rescinded and de-
leted from the new handbook).
Second, the judge’s recommended remedy, order, and
notice substantially comport not only with the Board’s
customary remedies but also with the stipulation.6
6 We reiterate, however, that the Board retains discretion under Sec.
10(c) to order remedies it deems necessary to effectuate the policies of
the Act even where such remedies do not comport with the parties’ stip-
ulated remedies.
Paragraph 8 of the stipulation between the General Coun-
sel and the Respondent states:
The exclusive remedy sought in the instant proceeding,
as further noted in the remedial paragraph 9 of the Com-
plaint, is a Notice Posting and notification to the im-
pacted employees that the MAA does not prohibit access
to the National Labor Relations Board to file unfair labor
practice charges or to access the Board's processes. To
remedy the U-Haul allegation, if merit is found, the Gen-
eral Counsel proposes that the Notice to Employees con-
tain the following language: "WE HAVE revised our
MAA to make clear to employees that it does not pro-
hibit access to the National Labor Relations Board to file
unfair labor practice charges or to access the Board's
processes, and WE WILL inform current and former
employees in writing that the MAA has been revised as
described above.”
In Paragraph 9 of the complaint, the General Counsel re-
quests that the Board order the Respondent to
(i) Rescind or revise the unlawful provisions of their re-
spective Arbitration Agreements and notify all employ-
ees subject to the Agreements of the rescission or revi-
sion by providing them with a copy of the newly revised
Agreement and/or specific written notification that the
unlawful provision(s) of the Agreements have been re-
scinded;
(ii) Post a copy of the Notice at all locations where their
Arbitration Agreements have been in or are in effect.
The judge’s recommended remedy and order appropri-
ately omitted a rescission requirement, as the stipulation
makes clear that the General Counsel is no longer seeking
rescission and that the MAA has been revised.7 Other-
wise, the judge’s recommended remedy and order effec-
tively track paragraph 9 of the complaint, which is refer-
enced in the stipulation. In addition to the cease-and-de-
sist provision, the order directs the Respondent to notify
current and former employees who signed the MAA and
did not receive and sign the Revised MAA that the former
document has been rescinded or revised and to provide
them with copies of the revised agreement. Rescission or
revision, and notification of same, are customary remedies
in cases in which the Board finds rules, policies, or provi-
sions unlawful. See Prime Healthcare, supra, slip op. at
8; Beena Beauty Holding, Inc. d/b/a Planet Beauty, 368
NLRB No. 91, slip op. at 3 (2019). See also Design Tech-
nology Group, LLC d/b/a Bettie Page Clothing, 361
7 The judge’s proposed remedial notice included a rescission para-
graph. As noted, we have substituted a new notice. Supra fn. 1.
ARYZTA, LLC 5
NLRB 876, 876 (2014) (handbook rule prohibiting wage
discussions); IRIS U.S.A., Inc., 336 NLRB 1013, 1015,
1019–1020 (2001) (confidentiality rule). Moreover, the
stipulation in this case includes the requirement that the
Respondent notify current and former employees who
signed the MAA (and did not execute the Revised MAA)
of the revision. Doing so restores the status quo because
those are the individuals directly affected by MAA’s
maintenance.
The judge’s recommended order also directs the Re-
spondent to post the notice to employees “for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted” and to “dis-
tribute the notice 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.” Notice posting is included
in the parties’ stipulated remedy and is a customary reme-
dial measure and a means of notifying employees, as well
as agents of the respondent within the workforce who
could intentionally or unintentionally commit a similar
unfair labor practice, that the Board has found that the re-
spondent engaged in unlawful conduct and that the con-
duct will be rectified and how. Recognizing that methods
of communicating with employees have changed with
technology, the Board in J. Picini Flooring, 356 NLRB
11, 11, 19 (2010), began ordering notice posting electron-
ically, provided it is a regular method of communicating
with employees. See also Postal Service, 362 NLRB 865,
870 (2015) (order directing union to post notice electroni-
cally), and Part Time Faculty Association at Columbia
College, 367 NLRB No. 119, slip op. at 3 (2019) (same).
Accordingly, the conditional electronic posting language
here is part of the Board’s standard notice-posting lan-
guage and, therefore, is not inconsistent with the parties’
stipulation (which included both notice posting and noti-
fication to employees).
The recommended order also includes the standard con-
ditional notice-mailing language, requiring that if, “during
the pendency of these proceedings, 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 employees employed by the Re-
spondent at any time since July 16, 2014.” The Respond-
ent excepts both to the requirement that it mail the notice
and that it mail it to employees employed on or after July
16, 2014 (the date the Respondent introduced the MAA).
Apart from being a customary remedy, the requirement
8 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
that a respondent mail the notice to employees is condi-
tioned on the respondent having gone out of business or
closed the facility involved in the proceeding. Here, the
Respondent does not contend that it has done so or is on
the brink of a complete or partial closure or cessation of
business, so the issue is unripe. And, if such a condition
comes to fruition between the date this decision issues and
the Respondent’s compliance with the Board’s Order, it
may raise the issue in compliance proceedings. We note,
however, that the Charging Party filed the charge on June
21, 2016. Because Section 10(b) proscribes the issuance
of a complaint based upon conduct that occurred more
than 6 months before the filing of the charge, the Board’s
“remedy period” is also tailored to Section 10(b). Six
months preceding June 21 is December 21, 2015. Accord-
ingly, we will modify this aspect of the recommended or-
der.
The only substantive difference between the stipulated
remedy and the recommended order is the judge’s di-
rective that the Respondent provide applicants and current
and former employees who signed the MAA with copies
of the Revised MAA. This, too, is a customary remedy,
and it, too, tracks the complaint. See Beena Beauty, supra,
slip op. at 3, and Bettie Page Clothing, supra at 877. Were
the MAA rescinded and nothing substituted for it, notifi-
cation of its rescission would suffice, but where, as here,
it has been supplanted with a Revised MAA that corrects
the illegality of the original MAA, the impacted employ-
ees ought to be made aware of, and have an opportunity to
read and digest, the presumably legal revised agreement.
ORDER
The National Labor Relations Board adopts the Order
of the administrative law judge as modified below and or-
ders that the Respondent, Aryzta, LLC, Los Angeles, Cal-
ifornia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for Paragraph 3:
Within 14 days after service by the Region, post at its
Los Angeles, California facility and all other facilities
where the MAA has been maintained, copies of the at-
tached notice marked “Appendix.”8 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 31, 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 customarily posted. In addition to physical posting
of paper notices, the notices shall be distributed
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 employ-
ees 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. In the event
that during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees em-
ployed by the Respondent at any time since December
21, 2015.
2. Add the following after paragraph 3:
“4. Within 21 days after service by the Region, file with
the Regional Director for Region 31 a sworn certifica-
tion of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. April 13, 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
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 mutual agreement to arbitrate
(MAA) that interferes with employees’ fundamental Sec-
tion 7 right to file charges with the National Labor Rela-
tions 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 notify all current and former employees who
signed the MAA at any location but did not sign the Re-
vised MAA that the MAA has been rescinded or revised,
and WE WILL provide them with a copy of the revised
agreement.
ARYZTA, LLC
The Administrative Law Judge’s decision can be found
at https://www.nlrb.gov/case/31-CA-178826 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National La-
bor Relations Board, 1099 14th Street, N.W, Washington,
D.C. 20570, or by calling (202) 273-1940.
Rudy L. Fong Sandoval, Esq., for the General Counsel.
Jason W. Kearnaghan Esq. (Sheppard, Mullin, Richter & Ham-
ilton, LLP), for the Respondent.
Michael Nourmand, Esq. (The Nourmand Law Firm, APC), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried based on a joint motion and stipulation of facts Associate
Chief Administrative Law Judge Gerald Etchingham approved
on November 21, 2017. The case was subsequently assigned to
me.
Bernabe Cipres (Charging Party or Cipres) filed the initial
charge on June 21, 2016, and an amended charge on September
29, 2016. The General Counsel filed the complaint on December
30, 2016, and Aryzta (the Respondent) filed a timely answer on
January 11, 2017, denying all material allegations.
The complaint alleges the Respondent violated Section 8(a)(1)
of the National Labor Relations Act (the Act) by maintaining and
ARYZTA, LLC 7
enforcing a “Mutual Agreement to Arbitrate” (MAA).1
On the entire record, and after considering the brief filed by
the General Counsel and the brief and supplemental brief filed
by the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with an office
and place of business in Los Angeles, California, manufactures
and distributes prepared food products. In conducting its opera-
tions during the 12-month period ending June 21, 2016, Re-
spondent derived gross revenues in excess of $500,000, and pur-
chased and received at its Los Angeles, California facility goods,
supplies, and materials valued in excess of $5000 directly from
points outside the State of California. 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.
II. ALLEGED UNFAIR LABOR PRACTICES
Since about July 16, 2014, through on or about January 31,
2016, Respondent maintained the MAA. (Stip. ¶ 4(g); Jt. Exh.
2.) 2 The agreement informs employees they must individually
arbitrate “any claims or controversies during or following your
employment, whether or not they are in any way related to or
associated with your employment or the termination of your em-
ployment with the Company.” (Jt. Exh. 2.) In the section enti-
tled: “Claims Subject to Arbitration” the MAA states:
The “Claims” covered by this Agreement include, but are not
limited to, all past, present, future claims, including any pending
litigation, for: wrongful termination; breach of any contract or
covenant, express or implied; breach of any duty owed to you by
the Company or to the Company by you; disclosure of trade se-
crets or proprietary information, improper use of Company prop-
erty or equipment; personal, physical or emotional injury; fraud,
misrepresentation, defamation, or any other tort claims; wages
or other compensation due; penalties; benefits; reimbursement of
expenses; discrimination or harassment, including but not lim-
ited to discrimination or harassment based on race, sex, preg-
nancy, religion, national origin, ancestry, age, marital status,
physical disability, mental disability, medical condition, genetic
characteristics, gender expression, gender identity, or sexual ori-
entation; retaliation; violation of any federal, state or other gov-
ernmental Constitution, statute, ordinance or regulation (as orig-
inally enacted and as amended), including but not limited to Title
VII of the Civil Rights Act of 1964 (Title VII), the Age
1 The complaint also contains allegations that the arbitration agree-
ments violate the Act by prohibiting class/collective actions. These alle-
gations were placed in abeyance pending the outcome of Murphy Oil
USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015); Lewis v. Epic System
Corp., 823 F.3d 1147 (7th Cir. 2016), and Morris v. Ernst & Young, 834
F.3d 975 (9th Cir. 2016), pending before the Supreme Court at the time
of this decision.
While the case was pending, the Board issued Boeing Co., 365 NLRB
No. 154 (2017), which overruled some of the Board’s decision in in Lu-
theran Heritage Village-Livonia, 343 NLRB 646 (2004). As a result, the
parties reached a revised stipulated issue and I permitted supplemental
briefs. The Respondent objected to the initial stipulated issue and re-
quested that I dismiss the complaint in its initial brief. Though the parties
Discrimination in Employment Act of 1967 (ADEA), the Amer-
icans With Disabilities Act (ADA), the Fair Labor Standards Act
(FLSA); the Employee Retirement Income Security Act
(ERISA), the Consolidated Omnibus Budget Reconciliation Act
(COBRA), the Family and Medical Leave Act (FMLA), the Cal-
ifornia Fair Employment and Housing Act (FEHA), the Califor-
nia Family Rights Act (CFRA), the California Labor Code, the
California Civil Code, and the California Wage Orders. As used
herein, “Claims” does not mean any dispute if arbitration of the
dispute is prohibited by law. Employees may learn more about
their legal rights by visiting websites hosted by federal and state
governmental agencies. Current links to some of these federal
websites are listed below, although they are subject to change by
the hosting agencies: www.dol.gov; www.dol.gov/compli-
ance/laws/comp-flsa.htm; www.dol.gov/dol/topic/waqes/in-
dex.htm; and www.eeoc.gov/.
The MAA was given to employees in July 2014. Current em-
ployees were provided $10 as consideration for signing the
MAA. (Stip. ¶4(j).) Employees were given the option to forego
the compensation and opt out of the MAA. Specifically, the
MAA’s opt-out provision states:
You have 10 days after signing this Agreement to opt out of
arbitration. If you opt out, then neither you nor the Company
will be bound by the terms of this Agreement. To opt out, you
must: (1) notify the Company in writing that you are opting out,
(2) sign a notice of opt out; and (3) mail or have it delivered to
your local Human Resources Representative so that the Com-
pany receives it no later than thirty (30) days after the date you
signed this Agreement. Such written notice may simply state “I
wish to opt out of the arbitration program” or words to that ef-
fect. If no such notice is delivered before the 10-day deadline,
then this Agreement will become fully effective and binding
upon the date below.
Following the opt-out provision, the MAA states:
BY SIGNING THIS AGREEMENT, THE PARTIES
HEREBY WAIVE THEIR RIGHT TO HAVE ANY
DISPUTE, CLAIM OR CONTROVERSY DECIDED BY A
JUDGE OR JURY IN A COURT.
BY SIGNING THIS AGREEMENT, YOU
ACKNOWLEDGE THAT YOU HAVE CAREFULLY
READ THIS AGREEMENT, THAT YOU UNDERSTAND
ITS TERMS, AND THAT YOU HAVE ENTERED INTO
THIS AGREEMENT VOLUNTARILY AND NOT IN
RELIANCE ON ANY PROMISES OR
agreed to a revised stipulation, I note that even if they had not, I would
not have dismissed the complaint based on the originally framed issue.
This is because the Board in Boeing, at footnote 51, stated, “Other than
the cases addressed specifically in this opinion, we do not pass on the
legality of the rules at issue in past Board decisions that have applied the
Lutheran Heritage ‘reasonably construe’ standard.” Arbitration agree-
ments were not addressed in Boeing.
2 Jt. Exh.” stands for “joint exhibit” and Stip. stands for “stipulation
of facts.” Although I have included some citations to the record, I em-
phasize that my findings and conclusions are based not solely on the ev-
idence specifically cited, but rather are based my review and considera-
tion of the entire record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
REPRESENTATIONS BY THE COMPANY OTHER
THAN THOSE CONTAINED IN THIS AGREEMENT.
(Jt. Exh. 2.)
The Charging Party was hired at Aryzta on August 26, 2013.
He signed a copy of the MAA on July 16, 2014, accepted the $10
consideration, and did not exercise his opt-out rights. (Stip ¶¶
4(i); Jt. Exhs. 3–4.)
In February 2016, Aryzta revised the MAA (“Revised
MAA”). The revised version, which is not alleged to violate the
Act, contains the following provision entitled: “Claims not Sub-
ject to Arbitration”:
You and the Company agree that neither party shall initiate or
prosecute any lawsuit or administrative action in any way re-
lated to any Claim covered by this Agreement, except that this
Agreement does not prohibit the filing of or pursuit of relief
through the following: (1) a Court action for temporary equita-
ble relief in aid of arbitration, where such an action is otherwise
available by law, (2) an administrative charge to any federal,
state or local equal opportunity or fair employment practices
agency, (3) an administrative charge to the National Labor Re-
lations Board, or (4) any other charge filed with or communi-
cation to a federal, state or local government office, official or
agency.
The following actions are not covered by this Agreement: (1)
claims for workers' compensation or unemployment compen-
sation benefits, (2) claims that as a matter of law cannot be sub-
ject to arbitration, (3) claims under an employee benefit or pen-
sion plan that specifies a different arbitration procedure, and (4)
claims covered by (and defined in) the Franken Amendment,
first enacted in Section 8116 of the Defense Appropriations Act
of 2010, or any similar statute, regulation or executive order,
including but not limited to Executive Order 13673 to the ex-
tent that any such statute, regulation or executive order is effec-
tive and applicable to this Agreement. (Jt. Exh. 6.)
III. DECISION AND ANALYSIS
Under Section 8(a)(1), it is an unfair labor practice for an em-
ployer to interfere with, restrain, or coerce employees in the ex-
ercise of the rights guaranteed by Section 7 of the Act. The rights
Section 7 guarantees include the right “to form, join or assist la-
bor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection . . .” Interfering with employees’ rights to file
charges with the Board or other public agencies in furtherance of
concerted employee activities concerning wages or other work-
ing conditions violates Section 8(a)(1). See, e.g., Bill's Electric,
350 NLRB 292, 296 (2007); Ralph’s Grocery Co., 363 NLRB
No. 128, slip op. at 1 (2016).
A. The Boeing Case
On December 14, 2017, the Board issued Boeing Co., 365
NLRB No. 154 (2017), which reversed part of the Board’s
3 Boeing was given retroactive application.
4 This part of Lutheran Heritage was not reversed by Boeing.
longstanding paradigm, set forth in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), for evaluating workplace rules.3
Under Lutheran Heritage, the first inquiry is whether the rule ex-
plicitly restricts activities protected by Section 7. If it does, the
rule is unlawful.4 For facially neutral rules, a violation was pre-
viously “dependent upon a showing of one of the following: (1)
employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the ex-
ercise of Section 7 rights.” Lutheran Heritage at 647. See also
U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255
Fed.Appx. 527 (D.C. Cir. 2007) (applying Lutheran Heritage to
determine if arbitration policy violated the Act). Boeing over-
ruled Lutheran Heritage with respect to the first prong of the fa-
cially-neutral paradigm, and the Board no longer will find certain
work rules unlawful merely upon a showing that employees
would reasonably construe the rule’s language to prohibit or in-
terfere with Section 7 activity.
Instead, when faced with a work rule that would, reasonably
read, potentially interfere with NLRA rights, the Board will con-
duct a balancing test that considers: (1) the nature and extent of
the potential interference with Section 7 rights; and (2) legitimate
employer justifications for the rule. Boeing, slip op. at 3.
After applying the balancing test, the Board will place it into
one of three categories, as described in Boeing:5
 Category 1 will include rules that the Board designates
as lawful to maintain, either because (i) the rule, when
reasonably interpreted, does not prohibit or interfere
with the exercise of NLRA rights; or (ii) the potential
adverse impact on protected rights is outweighed by
justifications associated with the rule. Examples of
Category 1 rules are the no-camera requirement in this
case, the “harmonious interactions and relationships”
rule that was at issue in William Beaumont Hospital,
and other rules requiring employees to abide by basic
standards of civility.
 Category 2 will include rules that warrant individual-
ized scrutiny in each case as to whether the rule would
prohibit or interfere with NLRA rights, and if so,
whether any adverse impact on NLRA-protected con-
duct is outweighed by legitimate justifications.
 Category 3 will include rules that the Board will des-
ignate as unlawful to maintain because they would
prohibit or limit NLRA-protected conduct, and the ad-
verse impact on NLRA rights is not outweighed by jus-
tifications associated with the rule. An example of a
Category 3 rule would be a rule that prohibits employ-
ees from discussing wages or benefits with one an-
other.
Id. slip op. at 3–4 (footnote omitted).
B. Interpreting the MAA
The Board has applied Lutheran Heritage’s “reasonably con-
strue” standard to determine whether arbitration agreements
5 The categorization must come after the balancing test, as the Board
stated, “The above three categories will represent a classification of re-
sults from the Board’s application of the new test.” Id. slip op. at 4.
ARYZTA, LLC 9
violate the Act by interfering with employees’ ability to file
charges with the Board. See, e.g., U-Haul Co. of California, 347
NLRB 375 fn. 2 (2006); Securitas Security Systems, 363 NRLB
No. 12 (2016); SolarCity Corp., 363 NLRB No. 83, slip op. at 4
(2015). The revised Boeing standards, however, cause me to take
a closer look at the nature of the MAA and the language of Lu-
theran Heritage, and to question whether such application fits.
In my view, the MAA is not a workplace rule; it is a contract that
explicitly addresses fundamental Section 7 rights. As such, I do
not believe the analysis proceeds to the Lutheran Heritage fa-
cially neutral criteria.
The “reasonably construe” standard applies only to rules that
do not explicitly restrict activity protected by Section 7. In Lu-
theran Heritage, the Board analyzed whether a rule about using
abusive or profane language in the workplace was unlawful on
its face as follows: “The rules do not expressly cover Section 7
activity. Nor are verbal abuse and profane language an inherent
part of Section 7 activity.” Lutheran Heritage, supra. at 647.
Only after making this determination did the Board move on to
the criteria for facially neutral rules. The first step then is to de-
termine whether the MAA expressly covers Section 7 activity or
whether the conduct it seeks to regulate is an inherent part of
Section 7 activity.6 For the reasons discussed below, I find the
conduct the rule seeks to regulate, i.e. litigation of workplace dis-
putes, expressly covers Section 7 activity and/or is an inherent
part of Section 7 activity.
Notably, the very essence of the MAA is different than most
workplace rules. The MAA, like most other arbitration agree-
ments, does not regulate workplace conduct at all. Instead, it
regulates the employees’ and the employer’s legal forum in the
event of a dispute, such as, for example, a dispute over discipline
for violating a rule in the employee handbook. The MAA is a
rule about how employees and the employer can litigate, pure
and simple. It encompasses, in a very direct way, employees’
rights to file charges with the Board. It is therefore not facially
neutral with regard to its subject matter. Its express connection
to Section 7 rights is markedly different than, say, a rule prohib-
iting violence in the workplace or a rule monitoring workplace
dress and appearance. As the rule clearly governs employees’
right to file Board charges, the only question that remains is, does
the MAA, as written, curtail those rights?
To answer this question, the MAA’s draftsmanship must is
key, and the required focus on draftsmanship is another im-
portant distinction between the MAA and other typical work-
place rules. As the Board noted in in Lutheran Heritage, “Work
rules are necessarily general in nature and are typically drafted
by and for laymen, not experts in the field of labor law.” 343
NLRB at 648; see also Boeing, supra. at fn. 41. Not so with the
MAA.
With most work rules, the task is to interpret the impact of a
plain-language rule about employee conduct on employees’
6 The crux of the issue in this case is whether the MAA is facially
neutral with regard to employees’ rights to access the Board. What does
the agreement, on its face, actually say? Facial neutrality is not a thresh-
old issue—it is the ultimate issue.
7 Indeed, the MAA here instructs the employee that he or she may
want to seek legal advice prior to signing the document. It goes without
NLRA rights. The no-photography rule in Boeing will generally
be readily understood by employees who can read. Language in
that rule, as well as in rules promoting workplace civility and
most other common workplace rules, consists of words people
actually use in their lives. Where there is specialized language
in workplace rules, it generally involves words specific to the
employee’s job or industry, which the employees will know by
virtue of training and performance in that job or industry.
By contrast, arbitration agreements, such as the MAA here,
are invariably drafted using legalese, and are inherently more
difficult for employees to interpret than most work rules.7 The
language in the MAA largely consists of legal terms of art, so the
task for the employee becomes untangling legally complex and
specific terms and phrases. In the section “Claims Subject to Ar-
bitration,” for example, the MAA refers to “breach of any con-
tract or covenant, express or implied,”8 “violation of any federal
state or other governmental constitution, statute, ordinance or
regulation (as originally enacted and as amended) . . .,” and var-
ious other types of claims which have specific legal meaning and
often convoluted procedural enforcement apparatus not readily
known to lay employees.9
If the language itself is not confusing enough, figuring out
what the MAA actually says requires comparing various provi-
sions that can be difficult to reconcile. For example, the first
sentence of the MAA states:
This Agreement requires you and the Company to arbitrate any
claims or controversies during or following your employment,
whether or not they are in any way associated with your em-
ployment or the termination of your employment with the
Company (defined in Section 1, below.)
This opening statement is not really accurate, as there are many
exceptions to the requirement it seeks to impose, which are de-
scribed in later sections. It would be very easy to add qualifying
language to cure this initial sentence’s inaccuracy. Just add,
“With certain exceptions below . . .” or similar verbiage at the
sentence’s outset, and it becomes a true standalone sentence. It
begs the question why any employee would read this sentence
and think it means anything other than what it says—arbitrate all
disputes.
A final distinction between the MAA and most workplace
rules or policies is that the MAA is a contract between the em-
ployee and employer. As noted above, it does not regulate work-
place conduct; it’s about litigation. It is also three pages long,
contains various sections that cross-reference each other, and is
clearly drafted as a legal instrument.
Most importantly, however, the MAA is enforced as a con-
tract, not as a garden variety workplace rule. Section 1 of the
Restatement 2d of Contracts defines a contract as “a promise or
a set of promises for the breach of which the law gives a remedy,
or the performance of which the law in some way recognizes as
saying that not all applicants for employment can afford to consult a law-
yer prior to singing an arbitration agreement.
8 Employees who understand the breach of implied covenant ironi-
cally might have a tool to argue against the MAA’s enforcement.
9 Sec. 3 of the MAA requires the employee to agree that he under-
stands the Company is engaged in transactions involving interstate com-
merce.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
a duty.” If the employer believes an employee is violating its
dress code, the employer’s redress is in the form of workplace
discipline, not a lawsuit. If the employer believes an employee
has breached the MAA, its recourse is to file a motion in court.
The MAA also bears other indicia of a contract, such as enforce-
ability by both parties.
Because I find the MAA is a contract and determining what it
says on its face requires interpretation of legal terms, contract
law is implicated. One of the primary canons of contract law is
that a contract’s terms should be harmonized if possible. As
noted above, the MAA seems to state two different things. The
first sentence states:
This Agreement requires you and the Company to arbitrate any
claims or controversies during or following your employment,
whether or not they are in any way related to or associated with
your employment or the termination of your employment with
the Company. . . .
(Emphasis supplied.) In section 4, “claims” is defined to include
“violation of any federal . . . statute,” with no specific exception
for the NLRA. On page 2, the MAA states, toward the end of
Section 4:
As used herein “Claims” does not mean any dispute if arbitra-
tion of the dispute is prohibited by law.
The exception does not address “controversies.”
In other words, the first sentence of the entire document read
together with the first sentence of section 4 states that any
“claims or controversies” must be arbitrated and defines
“claims” to include violations of federal statutes. The provision
near the end section 4, by belatedly providing an exclusionary
definition of “claims” that requires employees to know what
claims cannot be subjected to arbitration by law, essentially
states that not all claims must be arbitrated.10 Then again, at the
end of the document in the paragraphs above the signature line,
the MAA states, emphasized in all caps:
BY SIGNING THIS AGREEMENT, THE PARTIES
HEREBY WAIVE THEIR RIGHT TO HAVE ANY
DISPUTE, CLAIM OR CONTROVERSY DECIDED BY A
JUDGE OR JURY IN A COURT.
Parsing the document like a lawyer, the first sentence can ar-
guably be read in conjunction with language toward the end of
section 4, buried directly beneath a sentence containing over 245
words (most of which are legal terms), to exclude arbitration of
10 General exception language like the clause present here has not
withstood scrutiny even in the dissents from Board decisions finding ar-
bitration agreements violate the Act. See, e.g., Solarcity Corp., supra.
slip op. at 10–11 (Member Miscimarra dissenting).
11 This is particularly true considering “controversy” and “dispute” are
not defined in the MAA
12 This is true regardless of whether evaluated “as reasonably inter-
preted,” “focusing on the employees’ perspective,” or from the stand-
point of a “reasonable employee who is ‘aware of his legal rights but who
also interprets work rules as they apply to the everydayness of his job.’”
Boeing, fn. 14.
There are other inconsistencies in the MAA, such as specifically in-
cluding Title VII and other discrimination claims as included “claims”
that must be arbitrated, but then, in its vague exception, excluding the
disputes that could comprise NLRA charges. Even interpreted
by someone trained in the law, this is a tortured way for a docu-
ment to say employees are free to file NLRA charges.11 It is
virtually impossible to believe the lay employee will be able to
follow this maze and conclude he may file a claim about wrong-
ful termination or wages (specifically subject to arbitration in the
MAA) under the National Labor Relations Act (a federal statute,
claims under which are specifically included in the MAA) with
the Board.12
In cases of uncertainty, the language of a contract should be
interpreted most strongly against the party who caused the un-
certainty to exist, i.e. the drafting party.13 See, e.g., Restatement
(Second) of Contracts § 206; United States v. Seckinger, 397
U.S. 203, 210 (1970). As the Court stated in Mastrobuono v.
Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995), “Re-
spondents drafted an ambiguous document, and they cannot now
claim the benefit of the doubt.” 14
Because the MAA states, on its face, that all claims or contro-
versies must be arbitrated, and all violations of federal statutes
must be arbitrated, and it does not provide a clear exception for
NLRA charges, I find it restricts employees’ access to Board pro-
cedures and violates Section 8(a)(1). I address the opt-out provi-
sion in section D below.
C. Application of Boeing
Even if the MAA is considered facially neutral, application of
the Boeing test still results in a violation of Section 8(a)(1). Ap-
plying the balancing test, under a reasonable interpretation of the
MAA, I find the nature and extent of the potential interference
with Section 7 rights outweighs any legitimate business justifi-
cation.
Turning to the “reasonable interpretation” part of the balanc-
ing test, a plurality of two members (then-Chairman Miscimarra
and Member Emmanuel), stated it should be resolved by, “focus-
ing on the employees' perspective,” asking if the rule or policy
“would potentially interfere with the exercise of NLRA rights.”
Member Kaplan, in a concurring statement, framed the inquiry
as follows:
the threshold inquiry of whether the rule, when reasonably in-
terpreted, prohibits or interferes with [NLRA rights] should be
determined by reference to the perspective of an objectively
reasonable employee who is “aware of his legal rights but who
also interprets work rules as they apply to the everydayness of
his job. The reasonable employee does not view every
legal right to file a charge alleging violation of Title VII as a “claim”
because to do so would violate the law. All “past present and future
claims” for “wrongful terminations” and for “wages and other compen-
sation due” are also included as covered claims.
13 The Board in Boeing found that “the Board has consistently misap-
plied an evidentiary principle that ambiguity in general work rule lan-
guage must be construed against the drafter.” Slip op. at fn. 43. I am
deciding whether a contract about litigation, not a “general work rule”,
violates the Act.
14 This is particularly true with adhesion contracts, such as the MAA.
See Batory v. Sears, Roebuck and Co., 124 Fed.Appx. 530, 531–532 (9th
Cir.2005) (arbitration agreement was adhesion contract even though em-
ployees were given a choice as to whether to enter into the agreement).
ARYZTA, LLC 11
employer policy through the prism of the NLRA.”15
Under either standard, I find the MAA would potentially inter-
fere with the exercise of NLRA rights for the reasons detailed
above.16
The nature and extent of potential interference strike at the
heart of the employees’ legal rights, for if employees believe
they cannot file Board charges, there is no recourse for violations
of the Act. Employees’ ability to file charges with the Board is
“integral to the Act.” Supply Technologies, LLC, 359 NLRB 379
(2012). “As the Supreme Court has explained, Congress aimed
to ensure that employees were ‘completely free from coercion’
with respect to Board access.” Id. quoting NLRB v. Scrivener,
405 U.S. 117, 123. (1972).
Accordingly, I find that analyzed under Boeing, the MAA is
unlawful because, as reasonably interpreted, it would prohibit or
limit NLRA-protected conduct, and the adverse impact on
NLRA rights is not outweighed by any justifications associated
with the rule.
D. The Opt-Out Provision
The Respondent argues that the MAA does not violate the Act
because it is voluntary and does not impose sanctions for em-
ployees who violate it. As addressed above, there are no sanc-
tions because the MAA is a contract and redress of violations of
it is through the legal system.
I agree with the Respondent that the MAA is not a mandatory
condition of employment by virtue of the opt-out provision.17
The question that remains is of whether an opt-out provision like
the current one, which does not eradicate the employees’ rights,
nonetheless interferes with or coerces employees. This in turn
raises the question of under what conditions, if any, an employee
can prospectively and irrevocably waive his statutory right to en-
gage in protected activity.
Abundant caselaw has developed on the issue of when a union
may, through collective bargaining, waive employees’ statutory
rights. In the context of collective bargaining, “in order to estab-
lish a waiver of a statutory right, there must be a clear and un-
mistakable relinquishment of that right.” Gem City Ready Mix
Co., 270 NLRB 1260, 1260–1261 (1984); see also In Re Tide
Water Associated Oil Co., 85 NLRB 1096, 1098 (1949) (estab-
lishing the “clear and unmistakable” standard for waivers of stat-
utorily protected rights); Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983) (“we will not infer from a general contrac-
tual provision that the parties intended to waive a statutorily pro-
tected right unless the undertaking is ‘explicitly stated’. More
succinctly, the waiver must be clear and unmistakable”); 14
Penn Plaza LLC v. Pyett, 556 U.S. 247, 257 (2009).
With regard to individual employees who are not party to a
collective-bargaining agreement, the Supreme Court’s decision
in National Licorice Co. v. NLRB, 309 U.S. 350, 364 (1940), that
an employer cannot not contract with individual employees to
relinquish their rights under the Act, provides the fundamental
answer. In National Licorice, a committee of three employees
15 As detailed above, the concurring view demonstrates why Boeing
and the MAA are a misfit—the “everydayness of his job” aspect of the
test has no application.
negotiated a contract with the employer providing for a wage in-
crease, overtime, holiday pay, and vacation time. The contracts
as executed were between the employer and the individual em-
ployees who signed them. Employees who signed the contract
relinquished their rights to strike, demand a closed shop, or sign
an agreement with any union. Employees who did not sign the
contract did not reap its benefits.
The focus in National Licorice was the employment contracts
themselves, not whether they were conditions of continued em-
ployment; they were not. Because the contracts discouraged
membership in a labor organization, and constituted “yellow
dog” agreements, they were found to be invalid. The right to file
charges with the Board is just as protected as the right to engage
in union activity. The agreement, whether it is a condition of
employment or not, extracts a promise to refrain from activity
protected by Section 7, and is therefore invalid under the reason-
ing set forth in National Licorice and like cases. See also J.I.
Case Co. v. NLRB, 321 U.S. 332, 340 (1944) (contracts utilized
as a means of interfering with rights guaranteed by the Act inva-
lid); NLRB v. J.H. Stone & Sons, 125 F.2d 752, 756 (7th Cir.
1942) (employment contract requiring employees to attempt to
resolve employment disputes individually with employer is per
se violation even if “entered into without coercion” and not all
employees signed because it was a “restraint upon collective ac-
tion”); Jahn & Oilier Engraving Co., 24 NLRB 893, 900–901,
906–907 (1940), enfd. in relevant part, 123 F.2d 589, 593 (7th
Cir. 1941).
Employees clearly have the statutory right to file Board
charges. As noted above, the Board has held that access to the
Board’s procedures is “integral to the Act.” Supply Technolo-
gies, supra. “It is a bedrock principle of federal labor law and
policy that agreements in which individual employees purport to
give up the statutory right to act concertedly for their mutual aid
or protection are void.” Bristol Farms, 363 NRLB No. 45, slip
op. at 3 (2015). Compare the statutory right to freedom from re-
ligious discrimination under Title VII of the Civil Rights Act of
1964. One of the processes available for employees to enforce
this statutory right is by requesting religious accommodation
from the employer to permit the employee to observe his religion
while retaining his job. It is difficult to imagine an employment
contract requiring employees to agree they will not avail them-
selves of the employer’s processes for seeking religious accom-
modation, with a 10-day opt-out provision, would pass muster.
An agreement to forego the statutorily protected activity of filing
Board charges, with a 10-day opt out provision, is a similar pro-
spective waiver of fundamental statutory rights.
Based on the foregoing, I find that even with the opt-out pro-
vision, the MAA violates Section 8(a)(1).
CONCLUSIONS OF LAW
1. By maintaining mutual agreement to arbitration (MAA)
from July 16, 2014, to January 31, 2016, that interferes with em-
ployees’ fundamental Section 7 right to file charges with the
16 The Respondent’s arguments about the exclusion to the definition
of “claims” is specifically addressed above.
17 Unlike the description of claims covered by arbitration, the opt-out
provision section of the MAA is easy to understand.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Board, the Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By maintaining mutual agreement to arbitration (MAA)
from July 16, 2014, to January 31, 2016, that interferes with em-
ployees’ fundamental Section 7 right to file charges with the
Board, the Respondent has violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having found the Respondent maintained a mutual agreement
to arbitration (MAA) from July 16, 2014, to January 31, 2016,
that interfered with employees’ fundamental Section 7 rights to
file charges with the Board, I will order the Respondent to cease
and desist from interfering with, restraining, or coercing employ-
ees in the exercise of rights in any like or related manner.
The Respondent shall notify all current and former employees
who were required to sign the MAA, who did not receive and
sign the Revised MAA, that it been rescinded or revised and pro-
vide them a copy of the revised agreement. I will recommend
that the Respondent post a notice in all locations where the MAA
was utilized. 18 U-Haul Co. of California, 347 NLRB 375 fn. 2
(2006); see also Guardsmark, LLC, 344 NLRB 809, 812 (2005),
enfd. in relevant part 475 F.3d 369 (DC Cir. 2007).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The Respondent, Aryzta, LLC, its officers, agents, and repre-
sentatives, shall
1. Having maintained a mutual agreement to arbitration
(MAA) from July 16, 2014, to January 31, 2016, that interferes
with employees’ fundamental Section 7 right to file charges with
the Board, cease and desist from violating the Act in any like or
related manner.
2. Notify all applicants and current and former employees
who signed the MAA who did not receive and sign the Revised
MAA, that it been rescinded or revised and provide them a copy
of the revised agreement.
3. Within 14 days after service by the Region, post at its Los
Angeles, California facility and all other facilities where the
MAA has been maintained, copies of the attached notice marked
“Appendix.”20 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent 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,
18 The Respondent’s brief states that the bakery where Cipres worked
was sold on March 1, 2018. This is not a stipulated fact, so the remedies
in this decision do not reflect a sale, but such a contingency is provided
for in the decision.
19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
the 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 em-
ployees 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. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness 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 em-
ployed by the Respondent at any time since July 16, 2014.
Dated, Washington, D.C. April 9, 2018.
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 do anything to prevent you from exercising the
above rights.
WE WILL NOT maintain a mutual agreement to arbitrate (MAA)
that our employees reasonably would believe bars or restricts
their right to file charges with the National Labor Relations
Board.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the National Labor Relations Act.
WE WILL rescind the arbitration agreement in all of its forms
on a nationwide basis to make clear to employees that the arbi-
tration agreement does not prohibit or restrict employees’ right
to file charges with the Board, including charges that seek to
raise group or collective concerns.
WE WILL notify all applicants and current and former employ-
ees who signed the mutual agreement to arbitrate (MAA), at any
location but did not sign the Revised MAA that the MAA has
been revised.
ARYZTA, LLC
Order 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.
20 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.”
ARYZTA, LLC 13
The Administrative Law Judge’s decision can be found
at https://www.nlrb.gov/case/31-CA-178826 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National La-
bor Relations Board, 1099 14th Street, N.W, Washington,
D.C. 20570, or by calling (202) 273-1940.