AWG Ambassador, LLC

National Labor Relations Board - Board Decisions

Feb 25, 2016

363 NLRB No. 137 (N.L.R.B. 2016)

363 NLRB NO. 137
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.
AWG Ambassador, LLC and Steven Stroh. Case 28–
CA–118801
February 25, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
AND MCFERRAN
On October 17, 2014, Administrative Law Judge Elea-
nor Laws issued the attached decision. The Respondent
and the General Counsel each filed exceptions and sup-
porting briefs, the Respondent filed a brief in opposition
to the General Counsel’s exceptions, and the General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decision in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in rele-
vant part 737 F.3d 344 (5th Cir. 2013), that the Respond-
ent violated Section 8(a)(1) of the Act by maintaining
and enforcing an arbitration agreement that requires em-
ployees, as a condition of employment, to waive their
rights to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial. In Murphy Oil USA, Inc., 361 NLRB No. 72
(2014), enf. denied in part 808 F.3d 1013 (5th Cir. 2015),
the Board reaffirmed the relevant holdings of D. R. Hor-
ton, supra.
The Board has considered the decision and the record
in light of the exceptions and briefs and, based on the
judge’s application of D. R. Horton and on our subse-
quent decision in Murphy Oil, we affirm the judge’s rul-
ings, findings, and conclusions,1 and adopt the recom-

1 The Respondent argues that the complaint is time barred by Sec.
10(b) because the initial unfair labor practice charge was filed and
served more than 6 months after the Charging Party, Steven Stroh,
signed and became subject to the arbitration agreement. We reject this
argument, as did the judge, because the Respondent continued to main-
tain the unlawful agreement during the 6-month period preceding the
filing of the initial charge. The Board has long held under these cir-
cumstances that maintenance of an unlawful workplace rule, such as
the Respondent’s arbitration agreement, constitutes a continuing viola-
tion that is not time barred by Sec. 10(b). See PJ Cheese, Inc., 362
NLRB No. 177, slip op. at 1 (2015); Neiman Marcus Group, 362
NLRB No. 157, slip op. at 2 fn. 6 (2015); and Cellular Sales of Mis-
souri, LLC, 362 NLRB No. 27, slip op. at 2 fn. 7 (2015). It is equally
well established that an employer’s enforcement of an unlawful rule,
like the arbitration agreement here, independently violates Sec. 8(a)(1).
See Murphy Oil, supra, at 19–21. The Respondent enforced its arbitra-
tion agreement on September 18, 2013, within the relevant 6-month
period before the charge was filed and served.
The Respondent argues that, because multiple employees have re-
mended Order as modified and set forth in full below.2

fused to sign its arbitration agreement and were not disciplined for
doing so, its arbitration agreement is voluntary and therefore does not
fall within the proscriptions of D. R. Horton, supra at 2289 fn. 28. The
Board has rejected this argument, holding that an arbitration agreement
that precludes collective action in all forums is unlawful even if entered
into voluntarily because it requires employees to prospectively waive
their Sec. 7 right to engage in concerted activity. See On Assignment
Staffing Services, 362 NLRB No. 189, slip op. at 1, 5–8 (2015).
The Respondent also emphasizes that its arbitration agreement in-
cludes an exemption allowing employees to file charges with adminis-
trative agencies including the Board, and also contains an assurance
that an employee who exercises her Sec. 7 rights “will not be retaliated
against.” The Respondent argues that the arbitration agreement conse-
quently does not, as in D. R. Horton, unlawfully prohibit them from
collectively pursuing litigation of employment claims in all forums.
We reject this argument for the reasons stated in SolarCity Corp., 363
NLRB No. 83 (2015).
Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, 361 NLRB No. 72, slip op. at 22–35 (2015), would find that
the Respondent’s arbitration agreement does not violate Sec. 8(a)(1).
He observes that the Act does not authorize the Board to “dictate” any
particular procedures for the litigation of non-NLRA claims, and “cre-
ates no substantive right for employees to insist on class-type treat-
ment” of such claims. This is all surely correct, as the Board has previ-
ously explained in Murphy Oil, supra, slip op. at 2, and Bristol Farms,
363 NLRB No. 45, slip op. at 2 fn. 2 (2015). But what our colleague
ignores is that the Act “does create a right to pursue joint, class, or
collective claims if and as available, without the interference of an
employer-imposed restraint.” Murphy Oil, supra, slip op. at 2 (empha-
sis in original). The Respondent’s arbitration agreement is just such an
unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the arbitra-
tion agreement unlawful runs afoul of employees’ Sec. 7 right to “re-
frain from” engaging in protected concerted activity. See Murphy Oil,
supra, slip op. at 18; Bristol Farms, supra, slip op. at 3. Nor is he cor-
rect in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, supra, slip op. at 17–
18; Bristol Farms, supra, slip op. at 2.
We reject the position of our dissenting colleague that the Respond-
ent’s motion to compel arbitration was protected by the First Amend-
ment’s Petition Clause. In Bill Johnson’s Restaurants v. NLRB, 461 U.
S. 731, 747 (1983), the Court identified two situations in which a law-
suit enjoys no such protection: where the action is beyond a State
court’s jurisdiction because of Federal preemption, and where “a suit
. . . has an objective that is illegal under federal law.” 461 U. S. at 737
fn. 5. Thus, the Board may properly restrain litigation efforts such as
the Respondent’s motion to compel arbitration that have the illegal
objective of limiting employees’ Sec. 7 rights and enforcing an unlaw-
ful contractual provision, even if the litigation was otherwise meritori-
ous or reasonable. See Murphy Oil, supra, slip op. at 20–21; Convergys
Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
2 Consistent with our decision in Murphy Oil, supra at 21, we will
amend the judge’s remedy to order the Respondent to reimburse the
plaintiffs in the underlying class action lawsuit initially brought by
former employee Frank Cohn for any reasonable expenses and legal
fees, with interest, incurred in opposing the Respondent’s unlawful
motion in United States District Court to compel individual arbitration
of the class or collective claims. See Bill Johnson’s Restaurants v.
NLRB, 461 U. S. 731, 747 (1983) (“If a violation is found, the Board
may order the employer to reimburse the employees whom he had
wrongfully sued for their attorneys’ fees and other expenses” as well as
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that the
Respondent, AWG Ambassador, LLC, Las Vegas, Neva-
da, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or enforcing a mandatory arbitra-
tion agreement that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions for employment-related claims in all fo-
rums, whether arbitral or judicial.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Rescind the arbitration agreement in all of its
forms, or revise it in all of its forms to make clear to em-
ployees that the agreement does not constitute a waiver
of their right to maintain employment-related joint, class,
or collective actions in all forums.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the arbi-
tration agreement in any form that the agreement has
been rescinded or revised and, if revised, provide them a
copy of the revised agreement.
(c) In the manner set forth in this decision, reimburse
the plaintiffs for any reasonable attorneys’ fees and liti-
gation expenses they may have incurred in opposing the
Respondent’s motion to dismiss the collective lawsuit
and compel individual arbitration.
(d) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper

“any other proper relief that would effectuate the policies of the Act.”).
Interest shall be computed in the manner prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). See Teamsters Local 776
(Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole orders
for suits maintained in violation of the Act, it is appropriate and neces-
sary to award interest on litigation expenses”), enfd. 973 F.2d 230 (3d
Cir. 1992).
Finally, we shall substitute a new notice to conform to the Order as
modified.
3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
notices, 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 employees by such
means. Reasonable steps shall be taken by the Respond-
ent 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 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 cur-
rent employees and former employees employed by the
Respondent at any time since June 12, 2013, and any
current or former employees against whom the Respond-
ent has enforced its mandatory arbitration agreement
since September 18, 2013.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. February 25, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.1
In this case, my colleagues find that the Respondent’s
Arbitration Agreement (Agreement) violates Section
8(a)(1) of the National Labor Relations Act (the Act or
NLRA) because the Agreement waives the right to par-
ticipate in class or collective actions regarding non-
NLRA employment claims. Various employees, includ-
ing Charging Party Steven Stroh, signed the Agreement
and later joined a class action lawsuit pending against the
Respondent in federal district court alleging violations of
the Fair Labor Standards Act (FLSA) and Nevada wage
law, breach of contract, and related tort claims. In reli-
ance on the Agreement, the Respondent filed a motion to
dismiss and/or compel arbitration and strike
cass/collective claims as to the plaintiffs who had signed
the Agreement, including Stroh. The court granted the

1 I agree with my colleagues that the complaint is not time barred
under Sec. 10(b) of the Act.
AWG AMBASSADOR, LLC 3
Motion to Compel. My colleagues find that the Re-
spondent thereby unlawfully enforced its Agreement. I
respectfully dissent from these findings for the reasons
explained in my partial dissenting opinion in Murphy Oil
USA, Inc.2
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.3 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”4 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7.5 Thus, I be-

2 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
3 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
5 The Arbitration Agreements were voluntarily signed, even though
the Acknowledgment and Agreement form that employees receive with
the Arbitration Agreement states that the Arbitration Agreement is a
condition of employment. By definition, every agreement sets forth
terms upon which each party may insist as a condition to entering into
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;6 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;7 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).8 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.9
Because I believe the Respondent’s Agreement was
lawful under the NLRA, I would find it was similarly
lawful for the Respondent to file a motion in Federal

the relationship governed by the agreement. Thus, conditioning em-
ployment on an agreement to be bound by a class-action waiver does
not make the agreement involuntary. For my colleagues, however, the
voluntariness of such an agreement is immaterial. They say “an arbitra-
tion agreement that precludes collective action in all forums is unlawful
even if entered into voluntarily,” citing On Assignment Staffing Ser-
vices, 362 NLRB No. 189 (2015) (finding class-action waiver agree-
ment unlawful even where employees are free to opt out of the agree-
ment). I respectfully disagree for the reasons set forth in my dissenting
opinion in Nijjar Realty, Inc. d/b/a Pama Management, 363 NLRB No.
38, slip op. at 3–5 (2015).
6 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
7 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D.R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., 96 F.Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco
USA, Inc., 99 F.Supp. 3d 1072 (N.D. Cal. 2015), motion to certify for
interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30,
2015); Brown v. Citicorp Credit Services, No. 1:12-CV-00062-BLW,
2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration
of prior determination that class waiver in arbitration agreement violat-
ed NLRA); but see Totten v. Kellogg Brown & Root, LLC, No. ED CV
14–1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal. Jan. 22, 2016).
8 For the reasons expressed in my Murphy Oil partial dissent and those
thoroughly explained in former Member Johnson’s dissent in Murphy
Oil, the FAA requires that the arbitration agreement be enforced ac-
cording to its terms. Murphy Oil, above, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 49–58 (Member Johnson,
dissenting).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
district court seeking to enforce the Agreement. It is
relevant that the court that had jurisdiction over the non-
NLRA claims granted the motion to compel. That the
Respondent’s motion was reasonably based is also sup-
ported by court decisions that have enforced similar
agreements.10 As the Fifth Circuit recently observed
after rejecting (for the second time) the Board’s position
regarding the legality of class-waiver agreements: “[I]t
is a bit bold for [the Board] to hold that an employer who
followed the reasoning of our D. R. Horton decision had
no basis in fact or law or an ‘illegal objective’ in doing
so. The Board might want to strike a more respectful
balance between its views and those of circuit courts
reviewing its orders.”11 I also believe that any Board
finding of a violation based on the Respondent’s merito-
rious Federal court motion to compel arbitration would
improperly risk infringing on the Respondent’s rights
under the First Amendment’s Petition Clause. See Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983);
BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002);
see also my partial dissent in Murphy Oil, above, 361
NLRB No. 72, slip op. at 33–35. Finally, for similar
reasons, I believe the Board cannot properly require the
Respondent to reimburse the plaintiffs for their attor-
neys’ fees in the circumstances presented here. Murphy
Oil, above, 361 NLRB No. 72, slip op. at 35.
Accordingly, I respectfully dissent in part.
Dated, Washington, D.C. February 25, 2016
______________________________________
Philip A. Miscimarra, Member
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on

10 See, e.g., Murphy Oil, Inc., USA v. NLRB, above;
Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D.
R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., above;
Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
11 Murphy Oil, Inc., USA v. NLRB, 808 F.3d at 1021.
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
employment-related class or collective actions in all fo-
rums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our arbitration agreement in all of its
forms, or revise it in all of its forms to make it clear that
the agreement does not constitute a waiver of your right
to maintain employment-related class or collective ac-
tions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration agreement that the agreement has
been rescinded or revised and, if revised, WE WILL pro-
vide them with a copy of the revised agreement.
WE WILL reimburse the plaintiffs for any litigation ex-
penses they incurred in opposing the Respondent’s mo-
tion to dismiss and compel individual arbitration in Case
No. 2:11-CV-1832, United States District Court for the
District of Nevada.
AWG AMBASSADOR, LLC
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–118801 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Larry A. Smith, Esq., for the General Counsel.
Roger L. Grandgenett, Esq. and Ethan D. Thomas, Esq. (Littler,
Mendelson, P.C.), for the Respondent.
AWG AMBASSADOR, LLC 5
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This is another
case raising issues related to D. R. Horton, Inc., 357 NLRB
2277 (2012), enf. granted in part and denied in part 737 F.3d
433 (5th Cir. 2013). It was tried based on a joint motion and
stipulation of facts I approved on August 26, 2014.
Steven Stroh (the Charging Party or Stroh) filed the original
charge on December 12, 2013, the first amended charge on
March 31, 2014, and the second amended charge on April 29,
2014. The General Counsel issued the complaint on April 30,
2014, and the AWG Ambassador, LLC (the Respondent or
AWG) filed a timely answer on May 13, 2014, and an amended
answer on August 19, 2014.
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act), by main-
taining and enforcing an arbitration agreement that precludes
class or collective actions.
On the entire record and after considering the briefs filed by
the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a limited liability
company with an office and place of business in Las Vegas,
Nevada, has been engaged in providing limousine services,
private tours, corporate charters, airport shuttles, hotel transpor-
tation, and other car services. 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.
Since October 2011, the Respondent has maintained an arbi-
tration agreement (AA) for its employees as part of its employ-
ee handbook.
The first section of the AA states:
1. Agreement to Arbitrate All Disputes. This Agreement is
governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.,
and evidences a transaction involving interstate commerce.
This Agreement applies to any dispute arising out of or relat-
ed to your employment with AWG Ambassador, LLC, or one
of its affiliates, subsidiaries or parent companies (“Compa-
ny”) or termination of employment and obligates both you
and the Company to submit such matters to arbitration. Noth-
ing in this Agreement shall be construed to prevent or excuse
you from utilizing the Company's existing internal procedures
for resolution of complaints, and this Agreement is not in-
tended to be a substitute for the utilization of such procedures.
This Agreement is intended to apply to the resolution of past,
present and future disputes that otherwise would be resolved
in a court of law and requires that all such disputes be re-
solved only by an arbitrator through final and binding arbitra-
tion and not by way of court or jury trial, except as otherwise
stated in this Agreement.
This Agreement applies, without limitation, to disputes re-
garding the employment relationship, trade secrets, unfair
competition, compensation, breaks and rest periods, termina-
tion, or harassment and claims arising under the Uniform
Trade Secrets Act, Civil Rights Act of 1964, Americans With
Disabilities Act, Age Discrimination in Employment Act,
Family Medical Leave Act, Fair Labor Standards Act, Em-
ployee Retirement Income Security Act, Genetic Information
Non-Discrimination Act, and state statutes, if any, addressing
the same or similar subject matters, and all other state statuto-
ry and common law claims. This Agreement does not apply
to disputes arising out of or relating to the enforceability, rev-
ocability, or validity of the Agreement or any portion of the
Agreement.
This Agreement does not prevent you from filing a charge
with and obtaining remedies from the National Labor Rela-
tions Board, the U.S. Department of Labor, or the Equal Em-
ployment Opportunity Commission. This Agreement also
does not prevent you from filing claims with similar state
agencies if applicable law allows you to do so notwithstand-
ing an agreement to arbitrate those claims. Nothing in this
Agreement shall be deemed to preclude or excuse you or the
Company from bringing an administrative claim before any
agency in order to fulfill your/its obligation to exhaust admin-
istrative remedies before making a claim in arbitration.
This Agreement does not cover disputes that may not be sub-
ject to predispute arbitration agreements as provided by the
Dodd-Frank Wall Street Reform and Consumer Protection
Act (Public Law 111–203). The Agreement also does not
cover: claims for workers compensation, state disability or
unemployment insurance benefits; any criminal complaint or
proceeding filed by a governmental agency; claims for restitu-
tion or civil penalties owed by an employee for an act for
which the Company sought criminal prosecution; and claims
for benefits under any employee benefit plan sponsored by the
Company and covered by the Employee Retirement Income
Security Act of 1974, where the plan documents provide for a
method of dispute resolution. Private attorney general repre-
sentative actions are not covered within the scope of this
Agreement and may be maintained in a court of law, but an
employee must seek in arbitration individual remedies for him
or herself under any applicable private attorney general repre-
sentative action statute, and the arbitrator shall decide whether
an employee is an aggrieved person under any private attor-
ney general statute.
(Jt. Exh. 2(a).) The second section discusses selection of the
arbitrator, and the third section covers how to make a demand
for arbitration. Section 4 states:
4. Arbitration Process and Procedures In arbitration, the
parties will have the right to conduct civil discovery, bring
motions, and present witnesses and evidence as needed
to present their cases and defenses. Any disputes regarding
discovery, motions, witnesses and evidence shall be resolved
by the arbitrator.
You and the Company agree there will be no right or
authority for any dispute to be brought, heard or arbi-
trated as a class or collective action, or as a class mem-
ber in any purported class or collective proceeding
(“Class Action Waiver”). Disputes regarding the validity
and enforceability of the Class Action Waiver may be re-
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
solved only by a civil court of competent jurisdiction and not
by an arbitrator.
The Class Action Waiver shall not be severable from this
Agreement in any case in which (1) the dispute is filed as a
class or collective and (2) there is an adjudication by
a civil court of competent jurisdiction (including appellate
courts) that the Class Action Waiver is unenforceable. In
such instances, the class or collective action must be litigated
in a civil court of competent jurisdiction.
The Class Action Waiver, and any other provision of this
Agreement, shall be severable in any case in which the dis-
pute is filed as an individual action and severance is neces-
sary to ensure that the individual action proceeds in arbitra-
tion.
Although an employee will not be retaliated against, disci-
plined or threatened with discipline as a result of his or her
exercising his or her rights under Section 7 of the National
Labor Relations Act by the filing of or participation in a class
or collective action in any forum, the Company may lawfully
seek enforcement of this Agreement and the Class Action
Waiver under the Federal Arbitration Act and seek dismissal
of such class or collective action or claim.
[Id., emphasis in original.] Sections 5, 6, and 7 respectively
address payment of fees, remedies, and the arbitrator’s written
decision. Section 8 is an anti-retaliation provision, stating:
8. No Retaliation Against Employees For Exercising Rights.
It is against Company policy for any employee to be subject
to retaliation if he or she exercises his or her right to assert
claims under this Agreement. If any employee believes that
he or she has been retaliated against by anyone at the Compa-
ny, the employee should immediately report this to the Hu-
man Resources Department.
The AA concludes with a provision stating that it is a full and
complete agreement, and specifically stating, “If the Class Ac-
tion Waiver is deemed to be unenforceable, you and the Com-
pany agree that this Agreement is otherwise silent as to any
party’s ability to bring a class or collective action in arbitra-
tion.” (Id.)
Upon receipt of AWG’s employee handbook, employees
sign the following acknowledgement and agreement, which
states in pertinent part:
I have read and understand the foregoing mandatory and bind-
ing Arbitration Agreement. I understand that the Arbitration
Agreement will continue to apply even after my separation
from the Company. I also understand that the Arbitration
Agreement cannot be modified by any oral agreement or rep-
resentation but can be modified only in writing. I understand
and agree that nothing in this Arbitration Agreement alters my
at-will employment relationship with the Company. Lastly, I
understand the Arbitration Agreement is a condition of em-
ployment with the Company and that by accepting employ-
ment or continuing employment with the Company, the
Company and I will be bound by the Arbitration Agreement.
(Jt. Exh. 4.) Charging Party Stroh agreed to be bound by the
arbitration agreement on November 21, 2011. (Jt. Exh. 12,
Exh. 30(cc).)
On October 26, 2011, Frank Cohn filed a class action lawsuit
in the Eighth Judicial District for the State of Nevada, alleging
State and Federal overtime violations under the Fair Labor
Standards Act (FLSA), breach of contract and related tort
claims arising from employment with the Respondent and other
named defendants (“the defendants”). The case was removed
to the United States District Court for the District of Nevada on
November 15, and assigned Case No. 2:11-CV-1832. Cohn
filed a motion to circulate notice of the FLSA class action,
which was granted in February 2012. Approximately 66 indi-
viduals, 33 of whom had signed the AA, subsequently filed opt-
in consents to join the lawsuit. Cohn filed a motion to include a
retaliation claim on March 9, 2012, and this motion was grant-
ed on April 19, 2012.
The defendants filed an answer to the complaint on May 3,
2012, and asserted, inter alia, that Cohn’s claims were barred
by the AAs. The defendants filed a motion to dismiss the class
claims of the 33 named plaintiffs who had signed the AAs,
along with a motion to compel individual arbitration of their
claims. This District Court granted this request on April 17,
2014, upon the recommendation of United States Magistrate
Judge Nancy J. Koppe, who was fully briefed on the issues.
III. DECISION AND ANALYSIS
The complaint asserts the Respondent violated Section
8(a)(1) of the Act by maintaining and enforcing the AA. Under
Section 8(a)(1), it is an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the Act. The rights
guaranteed in Section 7 include the right “to form, join or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection . . .”
In D. R. Horton, supra, the Board explained that an employer
violates Section 8(a)(1) of the Act by imposing, as a condition
of employment, a mandatory arbitration agreement that pre-
cludes employees from “filing joint, class, or collective claims
addressing their wages, hours, or other working conditions
against the employer in any forum, arbitral or judicial.” Citing
to Spandsco Oil & Royalty Co., 42 NLRB 942, 948–949
(1942), Salt River Valley Water Users Assn., 99 NLRB 849,
853–854 (1952), enfd. 206 F.2d 325 (9th Cir. 1953), and a
string of other cases, the Board noted that concerted legal ac-
tion addressing wages, hours, and working conditions has con-
sistently fallen within Section 7’s protections.
Paragraphs 4 and 5 of the complaint allege that the Respond-
ent violated Section 8(a)(1) by maintaining the AA since Octo-
ber 2011, and enforcing it by its actions in U.S. District Court
for the District of Nevada aimed at requiring the Charging Par-
ty to resolve his dispute through individual arbitration since
September 18, 2013.
There is no dispute the AAs have been a condition of em-
ployment for the Respondent’s employees since implantation of
the employee handbook in October 2011. Both the AA and the
acknowledgment expressly state this, and the Respondent does
AWG AMBASSADOR, LLC 7
not argue otherwise. As a mandatory condition of employment
for these employees, the AA is evaluated in the same manner as
any other workplace rule. D. R. Horton, supra at 2280.
When evaluating whether a rule, including a mandatory arbi-
tration agreement, violates Section 8(a)(1), the Board applies
the test set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004). See U-Haul Co. of California, 347 NLRB
375, 377 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D.
R. Horton, supra. Under Lutheran Heritage, the first inquiry is
whether the rule explicitly restricts activities protected by Sec-
tion 7. If it does, the rule is unlawful. If it does not, “the viola-
tion is 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
[Section 7] activity; or (3) the rule has been applied to restrict
the exercise of Section 7 rights.” Lutheran Heritage, supra at
647.
In the instant case, the rule explicitly restricts activities pro-
tected by Section 7, stating, in bold print:
You and the Company agree there will be no right or
authority for any dispute to be brought, heard or arbi-
trated as a class or collective action, or as a class mem-
ber in any purported class or collective proceeding
(“Class Action Waiver”).
Accordingly, I find it violates the Act because it expressly pre-
cludes any class or collective actions. Moreover, it is undisput-
ed that the Respondent has enforced the agreement to preclude
the Charging Party from pursuing his class action lawsuit,
thereby restricting the exercise of his Section 7 rights.
The Respondent argues that the Board’s ruling in D. R. Hor-
ton interferes with the Federal Arbitration Act (FAA), 9 U.S.C.
§§ 1 et. seq., based on the Supreme Court precedent favoring
enforcement of arbitration agreements. The Board, however,
considered this argument in D. R. Horton to support a different
conclusion by which I am bound. The Respondent points to
Ninth Circuit decisions handed down after D. R. Horton to
support its argument. However, Davis v. Nordstrom, 755 F.3d
1089 (9th Cir. 2014), did not address protected concerted ac-
tivity under the Act, and Johnmohammadi v. Bloomingdale's,
Inc., 755 F.3d 1072 (9th Cir. 2014), concerned an optional
agreement to arbitrate individual claims, unlike the AA.1 In
any event, under Board law, I am required to follow Board
precedent, not court of appeals precedent, unless and until it is
overruled by the United States Supreme Court. See Gas Spring
Co., 296 NLRB 84, 97 (1989) (citing, inter alia, Insurance
Agents (Prudential Insurance), 119 NLRB 768 (1957), revd.
260 F.2d 736 (D.C. Cir. 1958), affd. 361 U.S. 477 (1960)),
enfd. 908 F.2d 966 (4th Cir. 1990), cert. denied 498 U.S. 1084
(1991).
Next, the Respondent asserts that courts have found claims
under the Fair Labor Standards Act are arbitrable. Notwith-
standing the fact that I am required to follow Board precedent, I
will address the post-D. R. Horton case cited to support this
argument. The Ninth Circuit in Richards v. Ernst & Young,

1 The Respondent also cites to a California State court opinion,
which does not serve as binding precedent in this forum.
LLP, 744 F.3d 1072 (2013), cert. denied 82 USLW 3661 (U.S.
Oct 14, 2014), expressly declined to address whether the arbi-
tration agreement at issue was unenforceable under the Act,
because it was argued for the first time on appeal. It is there-
fore unpersuasive.
The Respondent further argues that D. R. Horton was wrong-
ly decided and has been widely rejected. Essentially, the Re-
spondent argues it should be overruled. Any arguments regard-
ing the legal integrity of Board precedent, however, are proper-
ly addressed to the Board. Relying on the Supreme Court’s
decision in American Express Co. v. Italian Colors Restaurant,
133 S.Ct. 2034 (2013), the Respondent argues that the Court
has, since D. R Horton, provided further instruction on regard-
ing the breadth of the FAA. American Express Co. involved a
group of merchants who were unhappy with the rates American
Express charged them to use their cards at their respective
businesses.2 At issue before the Court was whether the mer-
chants were bound by agreements mandating individual arbitra-
tion of these disputes and precluding a class action lawsuit for
violation of antitrust law. The merchants argued that without
the ability to proceed collectively, it was not cost-effective to
challenge American Express’ rates. The Court noted that the
laws at issue, the Sherman and Clayton Acts, fail to reference
class actions, and found that the “antitrust laws do not guaran-
tee an affordable procedural path to the vindication of every
claim.” Id. at 2039. The Board in D. R. Horton distinguished
the NLRA, however, and found that Section 7 substantively
guarantees employees the right to engage in collective action,
including collective legal action, for mutual aid and protection
concerning wages, hours, and working conditions. As the
Board stated, “the intent of the FAA was to leave substantive
rights undisturbed.” D. R. Horton, 357 NLRB at 2286. No such
substantive statutory provision was asserted in American Ex-
press Co., and therefore the decision is not sufficiently on point
to warrant straying from Board precedent. See Waco, Inc., 273
NLRB 746, 749 fn. 14 (1984); Los Angeles New Hospital, 244
NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir.
1981).
The next argument the Respondent asserts is that the AA is
different from the agreement in D. R. Horton because it ex-
pressly permits employees to file charges with the Board and
other administrative agencies. Because the General Counsel
does not assert in the complaint nor argue in his brief that the
AA interferes with employees’ right to file Board charges, this
issue is not before me in the instant case.
Finally, the Respondent argues that the instant claim is un-
timely under Section 10(b) of the Act, which states in pertinent
part:
[N]o complaint shall issue based upon any unfair labor prac-

2 It is a matter of common sense that the merchants could continue to
operate their businesses without offering customers the ability to pay
with an American Express card. Other forms of currency are available
and using American Express was their choice. Likewise, it was the
Charging Party’s choice to work for AWG. Taken to its logical ex-
treme, however, if waivers such as the AA are judicially sanctioned and
become the norm for employers, employees will increasingly be faced
with the option of foregoing class litigation for mutual aid and protec-
tion or not working.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon
the person against whom such charge is made[.]
29 U.S.C. § 160(b). Because Stroh executed the agreement on
November 21, 2011, but did not file a charge until December
12, 2013, the Respondent argues it was untimely. This argu-
ment is without merit under controlling case law holding that a
continuing violation exists as long as the rule is still being en-
forced at the time of the charge. See American Cast Iron Pipe
Co., 234 NLRB 1126 fn. 1 (1978); Alamo Cement Co., 277
NLRB 1031, 1036−1037 (1985) (no time bar where enforce-
ment allegation could not have been litigated sooner); Guard
Publishing Co., 351 NLRB 1110, 1110 fn. 2 (2007) (“mainte-
nance during the 10(b) period of a rule that transgresses em-
ployee rights is itself a violation of Sec. 8(a)(1).”) In this case,
the agreement mandated that Stroh arbitrate employment-
related claims pursuant to the AA even after employment end-
ed, so it was obviously in effect at the time of the charge.
Moreover, the Respondent was clearly enforcing the AA
against Stroh while the charge was pending.
CONCLUSIONS OF LAW
1. The Respondent, AWG Ambassador, Inc., is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing a mandatory arbitration agreement
and enforcing that agreement by moving to compel individual
arbitration of the Charging Party’s class action lawsuit pertain-
ing to wages.
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.
As I have concluded that the arbitration agreement is unlaw-
ful, the recommended Order requires that the Respondent revise
or rescind it, and advise its employees in writing that said rule
has been so revised or rescinded. The Respondent shall post a
notice at all locations where the arbitration agreement, or any
portion of it requiring all employment-related disputes to be
submitted to individual binding arbitration, was in effect. See,
e.g., U-Haul Co. of California, 347 NLRB 375 fn. 2 (2006),
enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); D. R. Horton, supra,
at 2290.
I recommend the Company be required to reimburse Charg-
ing Party Stroh for any litigation and related expenses, with
interest, to date and in the future, directly related to the Compa-
ny’s filing its motion to compel arbitration in Case No.
BC491186 in the Superior Court of California. Determining the
applicable rate of interest on the reimbursement will be as out-
lined in New Horizons, 283 NLRB 1173 (1987) (adopting the
Internal Revenue Service rate for underpayment of Federal
taxes). Interest on all amounts due to Stroh shall be computed
on a daily basis as prescribed in Kentucky River Medical Cen-
ter, 356 NLRB 8 (2010).
The General Counsel requests an order requiring the Re-
spondent to move the United States District Court of the Dis-
trict of Nevada to vacate its order compelling individual arbitra-
tion or striking class or collective claims pursuant to the unlaw-
ful agreements, making such motions jointly with Stroh if he so
requests and if a motion to vacate can still be timely filed. The
law does not require the employer to permit both class action
lawsuits and arbitrations. Instead, D. R. Horton states that a
forum for class or collective claims must be available. It is
therefore beyond my authority to require the Respondent to
take steps to permit the class claims in any specific forum.
Instead, the Respondent is take to whatever steps are necessary
to ensure employees are permitted to proceed with class action
claims regarding wages, hours and/or working conditions in
some forum, whether arbitral or judicial.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, AWG Ambassador, LLC, Las Vegas, Ne-
vada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an arbitration agreement precluding employ-
ees from maintaining class or collective actions.
(b) Enforcing the arbitration agreement to prohibit class ac-
tions.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise the arbitration agreement to make it
clear to employees that the agreement does not constitute a
waiver in all forums of their right to maintain class or collective
actions related to wages, hours, or other working conditions.
(b) Notify the employees of the rescinded or revised agree-
ments to include providing them copies of the revised agree-
ments or specific notification that the agreements have been
rescinded.
(c) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, and in all facilities where it has
maintained and/or enforced the arbitration agreement, copies of
the attached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized representa-
tive, 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 distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
AWG AMBASSADOR, LLC 9
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 Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent 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 October 1, 2011.
(d) 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. October 17, 2014
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 No-
tice.
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 an arbitration agreement
that requires disputes related to wages, hours, or other working
conditions to be submitted to individual binding arbitration.
WE WILL NOT enforce an arbitration agreement by condition-
ing employees’ employment on signing the arbitration agree-
ment.
WE WILL NOT enforce a mandatory arbitration program by as-
serting it in class-action litigation regarding wages the Charg-
ing Party Steven Stroh brought against us.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL rescind or revise the arbitration agreement to make
it clear to employees that the agreement does not constitute a
waiver of their right in all forums to maintain class or collective
actions about wages, hours, or other working conditions.
WE WILL notify employees of the rescinded or revised arbi-
tration agreement, including providing them with a copy of any
revised agreements, acknowledgement forms or other related
documents, or specific notification that the agreement has been
rescinded.
WE WILL reimburse Charging Party Steven Stroh for any liti-
gation expenses: (i) directly related to opposing the Respond-
ent’s motion to compel arbitration; and/or (ii) resulting from
any other legal action taken in response to Respondent’s efforts
to enforce the arbitration agreement to require individual arbi-
tration of his claims regarding wages, hours, or other working
conditions.
WE WILL ensure the Charging Party Steven Stroh has a forum
to litigate his class complaint.
AMG AMBASSADOR , LLC