Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Bank of America Corporation (he

National Labor Relations Board - Board Decisions

Aug 14, 2015

362 NLRB No. 165 (N.L.R.B. 2015)

362 NLRB No. 165
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.
Countrywide Financial Corporation, Countrywide
Home Loans, Inc., and Bank of America Corpo-
ration and Joshua D. Buck and Mark Thierman,
Thierman Law Firm and Paul Cullen, The Cul-
len Law Firm. Cases 31–CA–072916 and 31–CA–
072918
August 14, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On February 13, 2013, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Re-
spondents filed exceptions, a supporting brief, and a brief
in support of the judge’s dismissal of a complaint allega-
tion. The General Counsel filed exceptions and a sup-
porting brief, which the Charging Parties joined. The
Respondents and General Counsel filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
adopt the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
At issue is whether Countrywide Financial Corpora-
tion (CFC), Countrywide Home Loans, Inc. (CHL), and
Bank of America (BAC), collectively the Respondents,
violated Section 8(a)(1) of the Act by: (1) maintaining a
mandatory arbitration agreement that employees would
reasonably believe restricted their right to file unfair la-
bor practice charges with the Board, and (2) filing mo-
tions in Federal court to compel individual arbitration of
employees’ collective wage claims. Although the judge
found that Respondent CHL unlawfully maintained the
arbitration agreement, he dismissed allegation (2), above,
and all allegations against CFC and BAC. For the fol-
lowing reasons, we adopt the judge as to the violation
found but reverse his dismissals.2

1 We have modified the judge’s recommended Order and substituted
new notices consistent with this decision, and to conform to the viola-
tions found.
2 Although the judge found that Respondent CHL unlawfully main-
tained the arbitration agreement, he dismissed similar allegations
against Respondents CFC and BAC. In the judge’s view, because the
two individuals involved in this proceeding were solely employed by
CHL, and CHL alone required them to sign the arbitration agreement,
he concluded that the complaint was “too attenuated to hold [CFC and
BAC] liable” for the alleged violations. We disagree. The Board and
courts have consistently held that “an employer under Section 2(2) of
the Act may violate Section 8(a) not only with respect to its own em-
I. THE 8(A)(1) MAINTENANCE ALLEGATION
Respondent CFC was a holding company which,
through its subsidiaries, provided banking, mortgage
lending, and other real estate finance-related services.
CHL was one of its subsidiaries. In June 2008, Re-
spondent BAC purchased CFC and became the parent of
CFC and CHL (CFC ultimately “merged out of exist-
ence”).
The parties stipulated that Dominique Whitaker and
John White applied for employment with Respondent
CHL in August 2007 and September 2008, respectively.
As part of the application process, both were required to
execute a document bearing the heading “Countrywide
Financial” and entitled “Mutual Agreement to Arbitrate
Claims” (Arbitration Agreement or Agreement). The
Agreement states that it is between the “Company and
the Employee” and defines the Company as “Country-
wide Financial Corporation and all of its subsidiary and
affiliated entities . . . and all successors and assigns and
any of them.”
The Agreement includes 16 numbered sections. Sec-
tion 1, titled, “Designated Claims,” lists those claims
subject to “resolution by arbitration.” The list includes
myriad claims relating to employment with the Compa-
ny.3 Section 3, entitled, “Claims Not Covered by This

ployees but also by actions affecting employees who do not stand in
such an immediate employer/employee relationship.” New York New
York & Casino, 356 NLRB No. 119, slip op. at 5 (2011), enfd. 676 F.3d
193 (D.C. Cir. 2012), quoting International Shipping Assn., 297 NLRB
1059, 1059 (1990). See, e.g., Hudgens v. NLRB, 424 U.S. 507, 510 fn.
3 (1976) (noting that the “Board has held that a statutory ‘employer’
may violate 8(a)(1) with respect to employees other than his own”).
Here, CFC and BAC are appropriately held liable under these princi-
ples. As discussed in sec. I below, CFC is identified as the author of
the arbitration agreement that the two CHL employees were required to
sign, with its name and logo prominently displayed on the heading;
further, CFC is defined as one of the “Compan[ies]” that maintains the
agreement. BAC, as the judge found, became the parent of CFC and its
subsidiaries, including CHL, and is clearly an “affiliated entit[y],”
within the agreement’s definition of “Company,” with CFC and CHL.
And as discussed in sec. II below, the three Respondents joined togeth-
er and were active participants in seeking to enforce the agreement in
Federal court litigation. Under these circumstances, we find that CFC
and BAC, like CHL, violated Sec. 8(a)(1) by maintaining the arbitra-
tion agreement in the manner set forth in sec. I.
3 Sec. 1 provides:
Except as otherwise provided in this Agreement, the Company and
the Employee hereby consent to the resolution by arbitration of all
claims or controversies arising out of, relating to or associated with
the Employee’s employment with the Company that the Employee
may have against the Company or that the Company may have
against the Employee, including any claims or controversies relating
to the Employee’s application for employment with the Company,
the Company’s actual or potential hiring of the Employee, the em-
ployment relationship itself, or its termination (hereinafter the “Cov-
ered Claims”). The Covered Claims subject to this Agreement in-
clude, but are not limited to, claims for wages or other compensation
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Agreement,” states that “[n]othing in this Agreement
shall be construed to require arbitration of any claim if an
agreement to arbitrate such claim is prohibited by law.”
There is no language in the Agreement addressing
whether arbitration may be conducted individually or
collectively as a class.
The Agreement requires applicants to select whether
they agree or disagree to be bound to its terms and condi-
tions. For those who select the “agree” option, the
Agreement states that they do so “voluntarily.” If the
“disagree” option is selected, the Agreement states that
the applicant “will not be able to move forward in the
application process at this time.” Whitaker and White
selected the “agree” option and were hired.4 The parties
stipulated that from about 2007 through approximately
March 2009, applicants for employment with CHL typi-
cally were presented with arbitration agreements substan-
tially similar to the ones presented to Whitaker and
White.
Applying D.R. Horton, Inc.,5 the judge found that Re-
spondent CHL violated Section 8(a)(1) by maintaining
the Arbitration Agreement because employees would
reasonably read it to prohibit their filing of unfair labor
practices with the Board. We agree.
In D.R. Horton, supra, 357 NLRB No. 184, slip op. at
4, the Board endorsed the Lutheran Heritage6 test for
determining whether employer work rules interfere with
employees’ Section 7 rights. When, as here, the rule
does not explicitly restrict Section 7 rights, an 8(a)(1)
violation may be found if there is a showing that: (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 Section 7 activity. 343 NLRB at 646–
647.

due; claims for breach of any contract or covenant, express or im-
plied; tort claims; claims for discrimination or harassment on bases
which include but are not limited to race, sex, sexual orientation, re-
ligion, national origin, age, marital status, disability or medical con-
dition; claims for benefits and claims for violation of any federal,
state or other governmental constitution, statute, ordinance, regula-
tion, or public policy. The purpose and effect of this Agreement is to
substitute arbitration, instead of a federal or state court, as the exclu-
sive forum for the resolution of Covered Claims. The parties’ re-
sponsibilities and legal remedies available under any substantive law
applicable to a Covered Claim shall be enforced in any arbitration
conducted pursuant to this Agreement.
4 We agree with the judge’s implicit finding that because an appli-
cant would not be employed if he or she selected the “ disagree” option,
acceptance of the Agreement was a condition of employment and not a
voluntary choice as the Respondents contend.
5 357 NLRB No. 184 (2012), enf. denied in part on other grounds
737 F.3d 344 (5th Cir. 2013).
6 Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
Similar to the arbitration policy found unlawful in D.R.
Horton, the Arbitration Agreement here violates Section
8(a)(1) under prong (1) of the Lutheran Heritage test
because employees would reasonably construe its lan-
guage to prohibit filing Board charges or otherwise ac-
cessing the Board’s processes–activities which are pro-
tected by Section 7. As set forth above, section 1 of the
Agreement specifies in broad terms that it applies to “all
claims or controversies,” including those related to the
employee’s application for employment, hiring, em-
ployment relationship, and termination. Section 1 further
states, by way of example, that “Covered Claims” in-
clude those for wages, contract breach, discrimination,
harassment, and “violation of any federal . . . statute, . . .
regulation, or public policy.” The Agreement states in
section 10 that “[a]rbitration is the parties’ exclusive
remedy for Covered Claims.” In U-Haul Co. of Califor-
nia, 347 NLRB 375, 377 (2006), enfd. 255 Fed. Appx.
527 (D.C. Cir. 2007), the Board found that a policy re-
quiring arbitration of “all disputes relating to or arising
out of an employee’s employment . . . [including] claims
. . . recognized by . . . federal law or regulations” violated
Section 8(a)(1) because employees reasonably would
construe it to prohibit the filing of Board charges, not-
withstanding that the policy did not explicitly prohibit
employees from resorting to the Board’s procedures. See
also D.R. Horton, slip op. at fn. 2. We reach the same
conclusion here based on the breadth of the policy lan-
guage encompassing claims under Federal statutes and
regulations. We accordingly affirm the judge’s finding
that Respondents’ maintenance of the Arbitration
Agreement violated Section 8(a)(1).
The Respondents7 argue, however, that employees
would understand that the Arbitration Agreement does
not prohibit them from filing Board charges, in light of
the explanatory sentence in section 1 that the “purpose
and effect of this Agreement is to substitute arbitration,
instead of a federal or state court, as the exclusive forum
for the resolution of Covered Claims.” The Respondents
argue that this language makes clear that the Arbitration
Agreement applies only to claims brought in Federal or
State court. We find no merit in this contention. As the
Board explained in rejecting a similar defense in U-Haul,
347 NLRB at 377–378, “[t]he reference to a ‘court of
law’ . . . does not by its terms specifically exclude an
action governed by an administrative proceeding such as
one conducted by the National Labor Relations Board
. . . [and thus] does nothing to clarify that the arbitration
policy does not extend to the filing of unfair labor prac-

7 Although the judge found the violation only as to Respondent
CHL, the Respondents (CHL, CFC, and BCA) jointly filed exceptions
to this finding.
COUNTRYWIDE FINANCIAL CORP. 3
tice charges.” Here, as in U-Haul, the reference to arbi-
tration as a substitute for filing a claim in a “federal or
state court” does nothing to clarify that the Arbitration
Agreement does not prohibit the filing of Board charges.
Indeed, the last phrase in the sentence relied on by Re-
spondents, i.e., that arbitration is the “exclusive forum
for the resolution of Covered Claims,” actually reinforces
the notion that Board charges are forbidden.
We also reject the argument by the Respondents and
our dissenting colleague that the right to file Board
charges is made clear by the language of section 3 that
“[n]othing in this Agreement shall be construed to re-
quire arbitration of any claim if an agreement to arbitrate
such a claim is prohibited by law.” The Board rejected
this same argument in 2 Sisters Food Group, 357 NLRB
No. 168 (2011), where the arbitration agreement compa-
rably stated that it only covered claims “that may be law-
fully [ ] resolve[d] by arbitration.” The Board explained
that this language did not “specifically exclude NLRB
proceedings, and ‘most nonlawyer employees’ would not
be sufficiently familiar with the limitations the Act im-
poses on mandatory arbitration for the language to be
effective.” Slip op. at 2, citing U-Haul, 347 NLRB at
378. We reject the Respondents’ argument for the same
reasons.
In sum, we agree with the judge that employees would
reasonably construe the Arbitration Agreement to prohib-
it the filing of unfair labor practice charges or otherwise
accessing the Board’s processes. Accordingly, in this
respect we adopt his finding that maintenance of the
Agreement violates Section 8(a)(1).
II. THE 8(A)(1) ENFORCEMENT ALLEGATION
On June 16, 2009, Whitaker filed a class action lawsuit
against CFC and BAC in the Superior Court of Califor-
nia (Ventura County), alleging minimum wage and over-
time pay violations of the California Labor Code and the
Fair Labor Standards Act (FLSA). Thereafter, the case
was removed to the United States District Court for the
Central District of California, where CHL was added as a
defendant and White was added as a plaintiff.8 The Re-
spondents filed motions with the district court pursuant
to the Federal Arbitration Act (FAA) to stay the lawsuit
and compel Whitaker and White to arbitrate their wage
claims individually, and not on a class or collective basis.
Whitaker and White filed oppositions to the motions.
The district court granted the Respondents’ motions to
compel in part and stayed the lawsuit, but left to the arbi-
trator the question of whether the wage claims should be
arbitrated individually or collectively. The parties stipu-

8 By this time, Whitaker and White were no longer employed by
CHL.
lated that, as of the date of the hearing, this issue has yet
to be determined by an arbitrator or other authority.
The complaint alleges that by moving the district court
to stay the collective lawsuit and to compel Whitaker and
White to arbitrate their wage claims individually, the
Respondents have maintained and enforced the Agree-
ment in violation of Section 8(a)(1). The judge dis-
missed the allegation, finding that the Respondents did
nothing more than argue before the appropriate forum
that the claims be heard on an individual basis, and that
they did not argue that the employees had waived their
right to pursue classwide claims. Contrary to the judge,
we agree with the General Counsel that the Respondents
violated Section 8(a)(1) by enforcing the Agreement
through its district court motion to compel arbitration.
A workplace rule that does not explicitly restrict ac-
tivities protected by Section 7 will be found unlawful
under the third prong of the Lutheran Heritage test if the
“rule has been applied to restrict the exercise of Section 7
rights.” Lutheran Heritage, supra, 343 NLRB at 647.
See, e.g., Hitachi Capital America Corp., 361 NLRB No.
19, slip op. at 3 (2014); Albertson’s Inc., 351 NLRB 254,
259 (2007). Here we find that the Arbitration Agree-
ment, as applied by the Respondents, violated Section
8(a)(1) under Lutheran Heritage’s third prong.
In D.R. Horton, the Board held that class or collective
litigation by employees of claims relating to their terms
and conditions of employment is a “core substantive
right” protected by Section 7 (357 NLRB No. 184, slip
op. at 10), and an employer violates Section 8(a)(1) by
compelling employees, as a condition of their employ-
ment, to waive that right by prohibiting them from “filing
joint, class, or collective claims addressing their wages,
hours or other working conditions against the employer
in any forum, arbitral or judicial.” Id. at 1. The Board
explained that an employer may avoid a violation “so
long as [it] leaves open a judicial forum for class and
collective claims” and, if this is done, the employer is
“free to insist that arbitral proceedings be conducted on
an individual basis.” (Emphasis in original.) Id. at 12.
In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), the
Board reexamined and reaffirmed the holding and ra-
tionale of D. R. Horton. In both cases, the Board found
8(a)(1) violations based on language in arbitration
agreements that were unlawful on their face in compel-
ling employees to waive their right to proceed collective-
ly in all forums in pursuit of their employment claims.
As noted above, the Arbitration Agreement here is si-
lent on whether employees are prohibited from filing
class or collective employment claims. Therefore, the
Agreement is not facially unlawful as in D. R. Horton
and Murphy Oil, and the complaint does not so allege.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
But there is sufficient evidence, as demonstrated by the
Respondents’ conduct in Federal district court, to estab-
lish that they applied the Arbitration Agreement in viola-
tion of Section 8(a)(1). In defending against the collec-
tive lawsuit by Whitaker and White, the Respondents
argued in their motion that the employees were “com-
pelled to arbitrate [their] claims on an individual basis,
and [were] not permitted to arbitrate on a class or collec-
tive basis” because the Agreement did not so provide.
Noting that the Agreement did not expressly state wheth-
er or not the parties agreed to class or collective arbitra-
tion, the Respondents argued that the “only fair reading
of the Agreement is that the parties contemplated only
individual arbitration.”
By these arguments to the court, the Respondents
made clear their interpretation of the mandatory Arbitra-
tion Agreement: arbitration is the exclusive forum for
resolving employees’ employment claims, and it must be
conducted on an individual basis, not collectively. This
is precisely what the Board enjoined in D. R. Horton
(“[E]mployers may not compel employees to waive their
NLRA right to collectively pursue litigation of employ-
ment claims in all forums, arbitral and judicial.” 357
NLRB No. 184, slip op at 12. (Emphasis in original.)
This holding was reinforced in Murphy Oil, where the
Board found that the respondent’s motion in Federal dis-
trict court in response to a FLSA collective action by
employees, to compel the employees to arbitrate their
claims individually as required by a binding arbitration
agreement, violated Section 8(a)(1). 361 NLRB No. 72,
slip op. at 19 (“It is well settled that an employer violates
Section 8(a)(1) by enforcing a rule that unlawfully re-
stricts Section 7 rights.”).
We reach the same conclusion here. As in Murphy
Oil, the Respondents enforced an arbitration agreement
in violation of Section 8(a)(1) by filing their district court
motion to compel employees to arbitrate their employ-
ment claims individually, thereby barring them from any
other forum, arbitral or judicial, to litigate such claims on
a class or collective basis.
By finding this violation, we necessarily disagree with
the judge that the Respondents “did nothing more than
argue” in their court motion that the employees’ claims
be heard on an individual basis, and that they relied sole-
ly on case law under the FAA in support of this position
rather than on the basis that the employees had waived
their right to pursue class-wide claims. There was much
more to the Respondents’ motion than a simple demand
for individual arbitration. By arguing in court that the
employees’ claims must be resolved in binding individu-
al arbitration, the Respondents completely denied em-
ployees their Section 7 right of access to all other forums
where they could seek to litigate their employment
claims collectively. Contrary to the judge, this clearly
constituted an argument that employees had waived their
right to pursue class-wide claims—a waiver that the Re-
spondents unlawfully imposed on them—and the founda-
tion for that argument was the Arbitration Agreement
and not solely FAA case law.
We recognize, of course, the Board’s holding in D. R.
Horton that there is no Section 7 right to class certifica-
tion,9 and that the employees therefore have no right to
have their lawsuit claims heard on that basis. But that
was not the issue in D. R. Horton nor is it here.
The issue here is whether Respondent[s] may lawfully
condition employment on employees’ waiving their
right under the NLRA to take the collective action in-
herent in seeking class certification, whether or not they
are ultimately successful under [Federal Rule of Civil
Procedure 23]. Rule 23 may be a procedural rule, but
the Section 7 right to act concertedly by invoking Rule
23, Section 216(b) [of the collective action procedures
of the FLSA], or other legal procedures is not.
Id.
Thus, while the employees here have no Section 7
right to class certification, they do have a Section 7 right
to act concertedly to seek class certification in pursuit of
their employment claims “without employer coercion,
restraint or interference,” and to prove in district court
that they meet “the requirements for certification under
Rule 23” and Section 216 of the FLSA. Id. at fn. 24.
The Respondents, however, by filing their court motion
to compel individual arbitration, blocked the employees
from concertedly pursuing their employment claims.
Although, as the judge noted, the Respondents were priv-
ileged under D. R. Horton to thwart the judicial route
taken by employees by “assert[ing] any and all argu-
ments against certification” (other than the Arbitration
Agreement)10 they were not free to do what they did
here: acting to compel employees to follow a route that
foreclosed them from collectively pursuing their em-
ployment claims in all forums, arbitral and judicial. D.
R. Horton, slip op. at 12.
In sum, as the Board made clear in D. R. Horton (slip
op. at 12), the Respondents were “free to insist” that the
employees arbitrate their employment claims and to re-
quire that the “arbitral proceedings be conducted on an
individual basis,” but only “[s]o long as [they left] open a
judicial forum for class and collective claims . . . .”
(Emphasis in original.) The Respondents did not do so.

9 357 NLRB No. 184 slip op. at 10.
10 Id., fn. 24.
COUNTRYWIDE FINANCIAL CORP. 5
They applied the Arbitration Agreement in a manner that
required employees to resolve all employment claims
through individual arbitration, thereby compelling them
to waive their Section 7 right to collectively pursue liti-
gation of their employment claims in all forums. By
taking steps to enforce the Agreement in Federal district
court when the employees filed their collective claims
against the Respondents under the FLSA, the Respond-
ents maintained and enforced the Agreement in violation
of Section 8(a)(1).
Contrary to the judge and our dissenting colleague, our
finding does not interfere with the Respondents’ First
Amendment right under Bill Johnson’s Restaurants v.
NLRB, 461 U.S. 731 (1983), to petition the government
for redress of grievances. As the Board explained in
Murphy Oil, 361 NLRB No. 72, slip op. at 20–21, the
Supreme Court held in footnote 5 of Bill Johnson’s that
court proceedings having an objective that is illegal un-
der Federal law enjoy no First Amendment protection
and may be condemned by the Board as an unfair labor
practice.11
The Board so found in Murphy Oil, holding that be-
cause employees cannot lawfully be compelled to waive
their Section 7 right to collectively pursue litigation of
their employment claims in all forums, the respondent’s
motion filed with the district court to enforce such a
waiver had an illegal objective under Bill Johnson’s. As
such, the motion was both unprotected by the First
Amendment and violated Section 8(a)(1). Because, in
the present case, the Respondents’ motions filed with the
district court had the illegal objective of enforcing the
same unlawful waiver as in Murphy Oil, we can, and do,
condemn that objective as an 8(a)(1) violation without
running afoul of the First Amendment.
Our dissenting colleague contends that because the in-
stant Arbitration Agreement, unlike in Murphy Oil, does
not contain an unlawful waiver, and because the Board
has not “previously ruled” that the enforcement of such
an arbitration agreement is unlawful, the illegal objective
exception of Bill Johnson’s does not apply and the
8(a)(1) enforcement violation cannot be found. We disa-
gree. Application of the illegal objective exception is not
confined to cases where the Board has previously found
a violation based on the same conduct. As the Board
held in Teamsters Local 776 (Rite Aid Corp.), if a lawsuit
“is aimed at achieving a result that is incompatible with
the Board’s [prior] ruling, the lawsuit falls within the
‘illegal objective’ exception to Bill Johnson’s.” 305

11 See, e.g., Manno Electric, 321 NLRB 278, 297 (1996), affd. mem.
127 F.3d 34 (5th Cir. 1997) (a lawsuit has an illegal objective “if it is
aimed at achieving a result incompatible with the objectives of the
Act.”
NLRB 832, 835 (1991), enfd. 973 F.2d 230 (3d Cir.
1992), cert. denied 507 U.S. 959 (1993); see id. at 835
fn. 7; see, e.g., Regional Construction Corp., 333 NLRB
313, 318–319 (2001) (discussing several different cate-
gories of cases in which the exception has been ap-
plied).12 In fact, the Board has previously applied the
illegal objective exception in an analogous case, Elevator
Constructors (Long Elevator), 289 NLRB 1095, 1095
(1988), enfd. 902 F.2d 1297 (8th Cir. 1990). There, the
respondent union filed a grievance on behalf of an em-
ployee, relying on a clause in a collective-bargaining
agreement that the “General Counsel [did] not contend
. . . [was] unlawful on its face . . . .” Id. at fn. 2. How-
ever, the union sought a “construction of the clause” that,
if successful, would have resulted in a de facto hot cargo
clause. The Board concluded that because the “contract
clause as construed by the Respondent would violate
Section 8 (e),” the union sought an illegal objective in
violation of Section 8(b)(4)(ii)(A) by attempting to en-
force the unlawful construction of the clause through the
grievance procedure.
The same reasoning applies here. Notwithstanding the
facial validity of the arbitration agreement, the Respond-
ents sought a construction of the agreement that was
plainly unlawful under the Board’s decisions in D.R.
Horton and Murphy Oil. Accordingly, their court actions
to enforce their construction of the agreement constituted
an illegal objective under Bill Johnson’s and violated
Section 8(a)(1).13

12 See also Booster Lodge 405 (Boeing Co.), 185 NLRB 380 (1970)
(interpreting the Act in light of recent Supreme Court decisions, the
Board deemed illegal the respondent union’s imposition of fines on
individuals who resigned from the union, and thus found unlawful the
union’s lawsuits seeking to enforce the fines), enfd. in relevant part 459
F.2d 1143 (D.C. Cir. 1972), affd. 412 U.S. 84 (1973). In Bill John-
son’s, the Court cited with approval Booster Lodge 405 in setting forth
the illegal objective exception. 461 U.S. at 737 fn. 5.
13 Accordingly, consistent with Murphy Oil and Cellular Sales of
Missouri, LLC, 362 NLRB No. 27, slip op. at 2 fn. 6 (2015), we amend
the judge’s remedy and shall order the Respondents to reimburse Whit-
aker and White for all reasonable expenses and legal fees, with interest,
incurred in opposing the Respondents’ unlawful motion to compel
individual arbitration in the collective FLSA action. See Bill Johnson’s
Restaurants, 461 U.S. at 747 (“If a violation is found, the Board may
order the employer to reimburse the employees whom he had wrongful-
ly sued for their attorneys’ fees and other expenses” as well as “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 No. 8 (2010). See Teamsters Local
776 (Rite Aid), 305 NLRB at 835 fn. 10 (“[I]n make-whole orders for
suits maintained in violation of the Act, it is appropriate and necessary
to award interest on litigation expenses.”).
We shall also amend the judge’s remedy to order the Respondents to
notify the district court that they have rescinded or revised the manda-
tory Arbitration Agreement and to inform the court that they no longer
oppose the plaintiffs’ claims on the basis of the Arbitration Agreement.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
A. The National Labor Relations Board orders that the
Respondent, Countrywide Home Loans, Calabasas, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that
employees would reasonably believe bars or restricts
employees’ rights to file charges with the National Labor
Relations Board or to access the Board’s processes.
(b) Maintaining or enforcing/applying a mandatory ar-
bitration agreement in a manner that requires employees,
as a condition of employment, to waive the right to main-
tain class or collective actions in all forums, whether
arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind or revise the mandatory arbitration agree-
ment to make clear to employees that it does not restrict
employees’ right to file charges with the National Labor
Relations Board or to access the Board’s processes, and
that the agreement does not constitute a waiver of em-
ployees’ right to maintain employment-related joint,
class or collective actions in all forums.
(b) Notify all applicants and current and former em-
ployees who were required to sign the arbitration agree-
ment that it has been rescinded or revised as set forth in
paragraph 2 (a) and, if revised, provide them a copy of
the revised agreement, and further notify them that the
agreement will not be enforced in a manner that compels
them to waive their right to maintain employment-related
joint, class or collective actions in all forums.
(c) Notify the United States District Court for the Cen-
tral District of California that it will no longer enforce
the arbitration agreement upon which it based its motion
to stay the collective FLSA lawsuit of Dominique Whit-
aker and John White and to compel individual arbitration
of their employment claims, and inform the court that it
no longer opposes their lawsuit on the basis of the arbi-
tration agreement.
(d) In the manner set forth in this decision, reimburse
Dominique Whitaker and John White for any reasonable
attorneys’ fees and litigation expenses that they may
have incurred in opposing the Respondents’ motion to
stay their collective lawsuit and compel individual arbi-
tration.
(e) Within 14 days after service by the Region, post at
its Calabasas, California facility copies of the attached
notice marked “Appendix A.”14 Copies of the notice, on
forms provided by the Regional Director for Region 31,
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
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice marked “Appendix
A” to all current employees and former employees em-
ployed by the Respondent at any time since July 19,
2011, and any employees against whom the Respondent
has enforced its mandatory arbitration agreement since
August 22, 2011.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 31, a sworn certi-
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
B. The National Labor Relations Board orders that the
Respondent, Countrywide Financial Corporation, Cala-
basas, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that
employees reasonably would believe bars or restricts
employees’ rights to file charges with the National Labor
Relations Board or to access the Board’s processes.
(b) Maintaining or enforcing/applying a mandatory ar-
bitration agreement in a manner that requires employees,
as a condition of employment, to waive the right to main-
tain class or collective actions in all forums, whether
arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
COUNTRYWIDE FINANCIAL CORP. 7
(a) Rescind or revise the mandatory arbitration agree-
ment to make clear to employees that it does not restrict
employees’ right to file charges with the National Labor
Relations Board or to access the Board’s processes, and
that the agreement does not constitute a waiver of em-
ployees’ right to maintain employment-related joint,
class or collective actions in all forums, whether arbitral
or judicial.
(b) Notify all applicants and current and former em-
ployees who were required to sign the arbitration agree-
ment that it has been rescinded or revised as set forth in
paragraph 2 (a) and, if revised, provide them a copy of
the revised agreement, and further notify them that the
agreement will not be enforced in a manner that compels
them to waive their right to maintain employment-related
joint, class or collective actions in all forums.
(c) Notify the United States District Court for the Cen-
tral District of California that it will no longer enforce
the arbitration agreement upon which it based its motion
to stay the collective FLSA lawsuit of Dominique Whit-
aker and John White and to compel individual arbitration
of their employment claims, and inform the court that it
no longer opposes their lawsuit on the basis of the arbi-
tration agreement.
(d) In the manner set forth in this decision, reimburse
Dominique Whitaker and John White for any reasonable
attorneys’ fees and litigation expenses that they may
have incurred in opposing the Respondents’ motion to
stay their collective lawsuit and compel individual arbi-
tration.
(e) Within 14 days after service by the Region, post at
its Calabasas, California facility copies of the attached
notice marked “Appendix B.”15 Copies of the notice, on
forms provided by the Regional Director for Region 31,
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
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice marked “Appendix
B” to all current employees and former employees em-

15 See fn. 14.
ployed by the Respondent at any time since July 19,
2011, and any employees against whom the Respondent
has enforced its mandatory arbitration agreement since
August 22, 2011.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 31, a sworn certi-
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
C. The National Labor Relations Board orders that the
Respondent, Bank of America Corporation, Lancaster,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that
employees reasonably would believe bars or restricts
employees’ rights to file charges with the National Labor
Relations Board or to access the Board’s processes.
(b) Maintaining or enforcing/applying a mandatory ar-
bitration agreement in a manner that requires employees,
as a condition of employment, to waive the right to main-
tain class or collective actions in all forums, whether
arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind or revise the mandatory and binding arbi-
tration agreement to make clear to employees that it does
not restrict employees’ right to file charges with the Na-
tional Labor Relations Board or to access the Board’s
processes, and that the agreement does not constitute a
waiver of employees’ right to maintain employment-
related joint, class or collective actions in all forums,
whether arbitral or judicial.
(b) Notify all applicants and current and former em-
ployees who were required to sign the arbitration agree-
ment that it has been rescinded or revised as set forth in
paragraph 2 (a) and, if revised, provide them a copy of
the revised agreement, and further notify them that the
agreement will not be enforced in a manner that compels
them to waive their right to maintain employment-related
joint, class or collective actions in all forums.
(c) Notify the United States District Court for the Cen-
tral District of California that it will no longer enforce
the arbitration agreement upon which it based its motion
to stay the collective FLSA lawsuit of Dominique Whit-
aker and John White and to compel individual arbitration
of their employment claims, and inform the court that it
no longer opposes their lawsuit on the basis of the arbi-
tration agreement.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) In the manner set forth in this decision, reimburse
Dominique Whitaker and John White for any reasonable
attorneys’ fees and litigation expenses that they may
have incurred in opposing the Respondents’ motion to
stay their collective lawsuit and compel individual arbi-
tration.
(e) Within 14 days after service by the Region, post at
its Lancaster, California facility copies of the attached
notice marked “Appendix C.”16 Copies of the notice, on
forms provided by the Regional Director for Region 31,
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
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice marked “Appendix
C” to all current employees and former employees em-
ployed by the Respondent at any time since July 19,
2011 and any employees against whom the Respondent
has enforced its mandatory arbitration agreement since
August 22, 2011.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 31, a sworn certi-
fication 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. August 14, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting.

16 See fn. 14.
Today the Board takes one more step down the prim-
rose path of administrative hostility toward valid arbitra-
tion agreements. The Board previously (and wrongly)
found separate violations of Section 8(a)(1) where an
employer both maintained a mandatory arbitration
agreement expressly foreclosing class or collective
claims and attempted to enforce that agreement in court.
See Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at
19 (2014) (“It is well settled that an employer violates
Section 8(a)(1) by enforcing a rule that unlawfully re-
stricts Section 7 rights.”). Now, for the first time, the
Board finds a violation based on the Respondents’ mere
enforcement of an arbitration agreement that is silent on
the arbitrability of class and collective claims, and there-
fore not restrictive of Section 7 rights on its face. Rather
than turn from this legally problematic path, the majority
places the Board in even greater conflict with the Federal
Arbitration Act (FAA)1 and Supreme Court precedent
construing it. For these reasons and those that follow, I
respectfully dissent.2
Initially, for the reasons set forth in detail in my dis-
sent in Murphy Oil, supra, slip op. at 35-58, I fundamen-
tally disagree with the Board’s central holding in that
case and in D. R. Horton, Inc.,3 which together effective-
ly invalidate class arbitration waivers in most mandatory
arbitration agreements.4 The courts resoundingly disa-
gree as well.5 Moreover, the Supreme Court has made

1 9 U.S.C. § 1 et seq.
2 Additionally, I disagree with my colleagues’ determination that
employees would reasonably construe the Respondents’ “Mutual
Agreement To Arbitrate Claims” to prohibit the filing of unfair labor
practice charges or otherwise accessing the Board’s processes. See U-
Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255 Fed.
Appx. 527 (D.C. Cir. 2007). The language of Section 3 of the Agree-
ment operates as a “savings clause,” excluding from mandatory arbitra-
tion any claim “if an agreement to arbitrate such a claim is prohibited
by law.” Given this language, employees would not reasonably con-
clude that the Agreement restricts their access to the Board’s processes.
Indeed, no individual arbitration agreement purporting to impose such a
restriction would be lawful under the Act in any event. And, inasmuch
as extant precedent might suggest a contrary result, I agree with the
dissenting position of former Member Hayes in 2 Sisters Food Group,
357 NLRB No. 168, slip op. at 14–15 (2011). Accordingly, I would
reverse the judge and dismiss this allegation.
3 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d
344 (5th Cir. 2013).
4 For these reasons alone, I would not find that the Respondents’
maintenance or enforcement of its arbitration agreement violates the
Act insofar as it has been applied to prevent employees from pursuing
class and other collective actions. Because I do not find these viola-
tions, I find it unnecessary to consider here whether or under what
circumstances the remedies related to the maintenance or enforcement
violations would be appropriate. See Murphy Oil, slip op. at 39 fn. 15
(Member Johnson, dissenting); see generally BE & K Construction Co.
v. NLRB, 536 U.S. 516 (2002).
5 See Murphy Oil, slip op. at 36 fn. 5 (Member Johnson, dissenting)
and cases cited. See also Patterson v. Raymours Furniture Co., No. 14-
COUNTRYWIDE FINANCIAL CORP. 9
clear that “a party may not be compelled under the FAA
to submit to class arbitration unless there is a contractual
basis for concluding that the party agreed to do so.”
Stolt-Nielsen S.A. v. Animal Feeds International Corp.,
559 U.S. 662, 684 (2010) (emphasis in original).6 Thus,
“[a]n implicit agreement to authorize class-action arbitra-
tion … is not a term that the arbitrator may infer solely
from the fact of the parties’ agreement to arbitrate.”
Stolt-Nielsen, supra at 685. Here, the Respondents’ mo-
tions to compel individual arbitration of employees’ col-
lective wage claims are firmly grounded in the Supreme
Court’s FAA jurisprudence. The “Mutual Agreement To
Arbitrate Claims” at issue is silent on the matter of class
arbitration, providing no “contractual basis” to conclude
that the Respondents “agreed” to it. Although the district
court referred the class arbitrability question to the arbi-
trator, it appears unlikely that an arbitrator could con-
clude, consistent with Stolt-Nielsen, that class arbitration
should be required here. Inasmuch as my colleagues
seek to punish the Respondents for pursuing their well-
founded motions to compel, they bring the Board’s juris-
prudence into further conflict with the FAA.
The Board compounds its error by rejecting the
judge’s concern that finding the violation here would
interfere with the Respondents’ First Amendment right to
petition the government for a redress of grievances. In
Bill Johnson’s Restaurants v. NLRB,7 the Supreme Court
held that “the Board may not halt the prosecution of a
state-court lawsuit, regardless of the plaintiff’s motive,
unless the suit lacks a reasonable basis in fact or law.”
However, the Court clarified that a lawsuit is entitled to
no First Amendment protection where the action is either
preempted by Federal law or where “a suit . . . has an
objective that is illegal under federal law.” Where “the
Board has previously ruled on a given matter, and where
the lawsuit is aimed at achieving a result that is incom-
patible with the Board’s ruling, the lawsuit falls within

CV-5882-VEC, –––F.Supp.3d ––––, ––––, 2015 WL 1433219, at *7
and fn. 7 (S.D.N.Y. Mar. 27, 2015) (declining to apply Murphy Oil,
instead following binding Second Circuit precedent rejecting D. R.
Horton to enforce a class action waiver, and observing that “the NLRB
stands alone in holding that the NLRA overrides the FAA relative to
class action waivers”); Nanavati v. Adecco USA, Inc., No. 14-CV-
04145-BLF, 2015 WL 4035072, at *2 (N.D. Cal. Jun. 30, 2015) (ob-
serving that “every court to have considered Horton I and Murphy Oil
has rejected the reasoning in those opinions…”); Hobson v. Murphy Oil
USA, Inc., No. CV-10-S-1486-S, 2015 WL 4111661, at *2 (N.D. Ala.
Jul. 8, 2015) (citing D. R. Horton and observing that “the NLRB’s
decisions are not entitled to deference when they concern the interpreta-
tion of the Federal Arbitration Act, or any statutory provision other than
the NLRA”).
6 See also AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740
(2011) (holding that class action waivers are enforceable under the
FAA).
7 461 U.S. 731, 748 (1983).
the ‘illegal objective’ exception to Bill Johnson’s.”
Sheet Metal Workers Local 27 (E. P. Donnelly, Inc.), 357
NLRB No. 131, slip op. at 2 (2011) (emphasis added)
(quoting Teamsters Local 776 (Rite Aid), 305 NLRB
832, 835 (1991), enfd. 973 F.2d 230 (3d Cir. 1992), cert.
denied 507 U.S. 959 (1993)).
Consistent with the Board’s approach in Murphy Oil,
supra, slip op. at 20, the majority here relies on the “ille-
gal objective” theory to conclude that its cease-and-desist
order pertaining to the Respondents’ motions to compel
would not impinge on the First Amendment.8 Undoubt-
edly, the Respondents’ motions have a reasonable basis
in fact and law in light of Stolt-Nielsen, supra. The First
Amendment should therefore protect these motions un-
less the Bill Johnson’s “illegal objective” exception ap-
plies. However, the Board has not, in this case or any
other, “previously ruled” on the question of whether an
employer violates the Act by moving to enforce a facial-
ly valid arbitration agreement as requiring individual
arbitration where the agreement is silent on the matter of
class arbitration. Indeed, in Murphy Oil, supra, slip op.
at 19–21, the Board found that an employer violated Sec-
tion 8(a)(1)—and acted with an illegal objective under
Bill Johnson’s—by enforcing an arbitration agreement
expressly waiving class arbitration “that [was] itself an
unfair labor practice.”9 Even assuming, without decid-
ing, that the Respondents’ motions were “aimed at
achieving a result that is incompatible with the Board’s
ruling” in Murphy Oil, the Board has not “previously
ruled” on the enforcement of a facially lawful arbitration
agreement like that at issue here. See Sheet Metal Work-
ers Local 27 (E. P. Donnelly, Inc.), supra, slip op. at 2.
Meanwhile, setting aside the Board’s definition of “ille-
gal objective” under Bill Johnson’s, it seems inconceiva-
ble that the Supreme Court would find an illegal objec-
tive under Federal law where, as here, an employer has
sought to enforce an arbitration agreement consistent
with the Court’s own precedent (Stolt-Nielsen) constru-
ing the FAA. Accordingly, the Respondents could not
have filed their motions to compel with the requisite ille-
gal objective to forfeit the First Amendment’s protec-
tion.10

8 The Board has previously accepted the view that First Amendment
protection extends to defendants as well as plaintiffs. See Murphy Oil,
supra, slip op. at 20 and fn. 101.
9 Similarly, in Cellular Sales of Missouri, LLC, 362 NLRB No. 27,
slip op. at 2 and fn. 8 (2015), the Board found an 8(a)(1) violation
where an employer enforced a mandatory arbitration policy expressly
waiving class arbitration, relying “solely on the principle that the en-
forcement of an unlawful provision is, in itself, an independent viola-
tion of Sec. 8(a)(1).”
10 My colleagues’ reliance on Elevator Constructors (Long Eleva-
tor), 289 NLRB 1095, 1095 (1988), enfd. 902 F.2d 1297 (8th Cir.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, even assuming that my colleagues’ conclusion
that the Respondents acted with an illegal objective un-
der Bill Johnson’s is reasonable, the Board should, in my
view, avoid ruling on matters outside of its core exper-
tise. The Board’s foray into the Bill Johnson’s analysis
necessarily involves evaluating the merits of lawsuits
under other Federal (and State) statutes. This evaluation
is the proper province of courts and the administrative
agencies authorized to implement and enforce particular
statutes. Thus, the Board should principally concern
itself with enforcing the Act and leave the enforcement
of other statutes to those whom Congress has appointed
for that purpose.
Dated, Washington, D.C. August 14, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

1990), is misplaced. There, the Board found an illegal objective under
Bill Johnson’s where a union filed a grievance seeking to construe a
facially lawful contract clause in a manner that would have created a de
facto hot cargo agreement in violation of Sec. 8(e). Id. That hot cargo
agreements violate the Act was not in dispute. However, in this case,
the underlying legal predicate for finding a violation of the Act is vig-
orously disputed. Indeed, as noted above, the courts have categorically
rejected the Board’s legal theory in Murphy Oil and D. R. Horton that
mandatory arbitration agreements expressly foreclosing class or collec-
tive claims in all forums violate Sec. 8(a)(1). Further, in Stolt-Nielsen,
559 U.S. at 684–685, the Supreme Court made clear that a party cannot
be forced into class arbitration absent its contractual agreement to do
so, and no such class arbitration agreement may be inferred from the
mere existence of a general arbitration agreement. Thus, even assum-
ing, arguendo, that the Board’s decisions in Murphy Oil and D. R.
Horton were valid, and that the arbitration agreement at issue here
could not preclude class arbitration under Board law, the Respondents
could not be compelled to engage in class arbitration under Supreme
Court precedent in any event. The Respondents therefore cannot be
charged with having an illegal objective under Federal law in attempt-
ing to enforce their arbitration agreement consistent with Stolt-Nielsen.
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board or to access the Board’s process-
es.
WE WILL NOT maintain or enforce/apply the mandatory
arbitration agreement in a manner that requires our em-
ployees, as a condition of employment, to waive their
right to maintain employment-related joint, class or col-
lective actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind or revise the mandatory arbitration
agreement to make clear that it does not restrict your
right to file charges with the National Labor Relations
Board or to access the Board’s processes, and that the
arbitration agreement does not constitute a waiver of
your right to maintain employment-related joint, class, or
collective actions in all forums, whether arbitral or judi-
cial.
WE WILL notify all applicants and current and former
employees who were required to sign the mandatory ar-
bitration agreement that it has been rescinded or revised
and, if revised, provide them a copy of the revised
agreement, and WE WILL further notify them that the
agreement will not be enforced in a manner that compels
them to waive their right to maintain employment-related
joint, class or collective actions in all forums.
WE WILL notify the court in which Dominique Whita-
ker and John White filed their collective lawsuit that we
will no longer enforce/apply the mandatory arbitration
agreement upon which we based our motion to stay their
collective lawsuit and compel individual arbitration of
their employment claims, and WE WILL inform the court
that we no longer oppose their collective lawsuit on the
basis of that agreement.
WE WILL reimburse Dominique Whitaker and John
White for any reasonable attorneys’ fees and litigation
expenses that they may have incurred in opposing our
motion to stay their collective lawsuit and compel indi-
vidual arbitration.
COUNTRYWIDE HOME LOANS
The Board’s decision can be found at
www.nlrb.gov/case/31–CA–072916 or by using the QR
code below. Alternatively, you can obtain a copy of the
COUNTRYWIDE FINANCIAL CORP. 11
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.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board or to access the Board’s processes
WE WILL NOT maintain or enforce/apply the mandatory
arbitration agreement in a manner that requires our em-
ployees, as a condition of employment, to waive the right
to maintain employment-related joint, class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind or revise the mandatory arbitration
agreement to make clear that it does not restrict your
right to file charges with the National Labor Relations
Board or to access the Board’s processes, and that the
arbitration agreement does not constitute a waiver of
your right to maintain employment-related joint, class, or
collective actions in all forums, whether arbitral or judi-
cial.
WE WILL notify all applicants and current and former
employees who were required to sign the mandatory ar-
bitration agreement that it has been rescinded or revised
and, if revised, provide them a copy of the revised
agreement, and WE WILL further notify them that the
agreement will not be enforced in a manner that compels
them to waive their right to maintain employment-related
joint, class or collective actions in all forums.
WE WILL notify the court in which Dominique Whita-
ker and John White filed their collective lawsuit that will
no longer enforce/apply the mandatory arbitration
agreement upon which we based our motion to stay their
collective lawsuit and compel individual arbitration of
their employment claims, and WE WILL inform the court
that we no longer oppose their collective lawsuit on that
basis.
WE WILL reimburse Dominique Whitaker and John
White for any reasonable attorneys’ fees and litigation
expenses that they may have incurred in opposing our
motion to stay their collective lawsuit and compel indi-
vidual arbitration.
COUNTRYWIDE FINANCIAL CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/31–CA–072916 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.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board or to access the Board’s process-
es.
WE WILL NOT maintain or enforce/apply the mandatory
arbitration agreement in a manner that requires our em-
ployees, as a condition of employment, to waive the right
to maintain employment-related joint, class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind or revise the mandatory and binding
arbitration agreement to make clear that it does not re-
strict your right to file charges with the National Labor
Relations Board or to access the Board’s processes, and
that the arbitration agreement does not constitute a waiv-
er of your right to maintain employment-related joint,
class, or collective actions in all forums, whether arbitral
or judicial.
WE WILL notify all applicants and current and former
employees who were required to sign the mandatory ar-
bitration agreement that it has been rescinded or revised
and, if revised, provide them a copy of the revised
agreement, and WE WILL further notify them that the
agreement will not be enforced in a manner that compels
them to waive their right to maintain employment-related
joint, class or collective actions in all forums.
WE WILL notify the court in which Dominique Whita-
ker and John White filed their collective lawsuit that we
will no longer enforce/apply the mandatory arbitration
agreement upon which we based our motion to stay their
collective lawsuit and compel individual arbitration of
their employment claims, and WE WILL inform the court
that we no longer oppose their collective lawsuit on the
basis of that agreement.
WE WILL reimburse Dominique Whitaker and John
White for any reasonable attorneys’ fees and litigation
expenses that they may have incurred in opposing our
motion to stay their collective lawsuit and compel indi-
vidual arbitration.
BANK OF AMERICA CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/31–CA–072916 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.
Katherine Mankin, Esq., for the General Counsel.
Paul Berkowitz, Gregg A. Fisch, and Richard W. Kopenhefer,
Esqs. (Sheppard Mullin Richter & Hampton LLP), of Los
Angeles, California, for the Respondent.
Joshua D. Buck, Esq. (Thierman Law Firm P.C.), of Reno,
Nevada, for Charging Party Theirman.
Paul T. Cullen, Esq. (The Cullen Law Firm), of Agoura Hills,
California, for John White.
Shaun Setareh, Esq. (The Law Offices of Shaun Setareh), of
Los Angeles, California, for Dominique Whitaker.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This trial in
this case opened in Los Angeles, California, on December 10,
2012. At that time I postponed the case indefinitely to allow
the parties time to complete a stipulated record. On December
18, 2012, all parties filed a joint motion to accept parties’ joint
stipulation of facts and to close the record. Upon consideration,
that motion is granted, Joint Exhibits 1–20 are received into
evidence, and the record is closed.
Joshua D. Buck and Mark Thierman, Thierman Law Firm
filed the charge in Case 31–CA–072918 on January 19, 2012,
and Paul Cullen, The Cullen Law Firm filed the charge in Case
31–CA–072918 against Countrywide Financial Corporation
(CFC), Countrywide Home Loans, Inc. (CHL) and Bank of
America Corporation (BAC), collectively called Respondents
and the General Counsel issued the order consolidating cases,
consolidated complaint, and notice of hearing on October 23,
2012. The complaint as amended at trial, alleges that Respond-
ents violated Section 8(a)(1) by maintaining and enforcing an
arbitration agreement that requires employees to arbitrate all
employment-related claims, including any claims arising under
a Federal statute or regulation, and by asserting it against em-
ployees Dominique Whitaker (Whitaker) and John White
(White) in a lawsuit brought by those employees against the
Respondent.
Respondents filed a timely answer that denied “each and
every” allegation in the complaint except that it admitted the
Board’s jurisdiction over BAC and that “on or about September
19, 2011, the United States District Court for the Central Dis-
trict of California, Honorable Christine A. Snyder presiding, in
COUNTRYWIDE FINANCIAL CORP. 13
Whitaker, et al, v. Countrywide Financial Corp., et al, Case No.
VC 09–5898 (PJWx), granted, in part, Respondents’ motion to
compel arbitration and also stayed litigation. Respondents
further admit that, in the Order, the District Court specifically
found that the ‘question of whether plaintiffs are subject to
individual or class arbitration depends on the parties’ intent and
is a question for the arbitrator to decide.’” Respondent asserted
a number of affirmative defenses.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Parties, and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Effective July 1, 2008, through a complex and involved
transaction, BAC became the ultimate parent company of the
entity that was previously named “Countrywide Financial Cor-
poration” but has since merged out of existence (the Merged
CFC) and its subsidiaries (the Merged CFC’s Subsidiaries),
including CHL. Prior to the July 1, 2008 transaction, the
Merged CFC was a holding company, incorporated under the
laws of the State of Delaware, with its corporate headquarters
in Calabasas, California. At that same time, CHL was a sepa-
rate company and a wholly-owned subsidiary of the Merged
CFC. CHL was, and continues to be, incorporated in New
York, with its corporate headquarters in Calabasas, California.
At all materialtimes, BAC has been a separate company from
CFC (and the Merged CFC as well) and CHL, and is incorpo-
rated under the laws of the State of Delaware, and its corporate
headquartersare in Charlotte,North Carolina, with an office and
place of business in Lancaster, California, and has been engaged
in the operation of a financial institution providing financial
services. In conducting its operations during the 12-month pe-
riod ending March 23, 2012, BAC, on its own or through its
subsidiaries, in the course and conduct of its business opera-
tions described above had gross revenue valued at in excess of
$500,000. During the same 12-month period, BAC, on its
own or through its subsidiaries, in the course and conduct of
its business operations, purchased and caused to be trans-
ferred and delivered to its facilities within the State of Cali-
fornia, goods and materials valued at in excess of $50,000
directly from sources outside of the State of California, or
from suppliers within the state which, in turn, obtained such
goods and materials directly from sources outside the state.
At all material times through at least March 31, 2009, CFC
was a corporation with an office and place of business in
Calabasas, California, and a holding company which,
through its subsidiaries, engaged in mortgage lending and
other real estate finance-related businesses, including mort-
gage banking, banking and mortgage warehouse lending,
a n d dealing in securities and insurance underwriting. In
conducting its operations during the 12-month period ending
March 31, 2009, CFC, on its own or through its subsidiaries,
in the course and conduct of its business operations de-
scribed above, had gross revenue valued at in excess of
$500,000. During the same 12-month period, CFC, on its
own or through its subsidiaries, in the course and conduct of
its business operations, purchased and caused to be trans-
ferred and delivered to its facilities within the State of Cali-
fornia, goods and materials valued at in excess of $50,000
directly from sources outside of the State of California, or
from suppliers within the state which, in turn, obtained such
goods and materials directly from sources outside the state.
At all material times through at least March 31, 2009, CHL
was a corporation with an office and place of business in
Calabasas, California, and engaged in mortgage lending and
other real estate finance-related businesses, including mort-
gage banking, banking and mortgage warehouse lending,
a n d dealing in securities and insurance underwriting. In
conducting its operations during the 12-month period ending
March 31, 2009, CHL, in the course and conduct of its busi-
ness operations described above had gross revenue from its
operations valued at in excess of $500,000. During the same
12-month period, CHL, in the course and conduct of its busi-
ness operations, purchased and caused to be transferred and
delivered to its facilities within the State of California, goods
and materials valued at in excess of $50,000 directly from
sources outside of the State of California, or from suppliers
within the state which, in turn, obtained such goods and materi-
als directly from sources outside the State of California. At all
material times, CHL, BAC, and CFC, each has been an employ-
er engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. The foregoing facts are taken from the
parties’ joint stipulation.
However, Respondents do not admit or stipulate that either
BAC or CFC was an employer of Whitaker or White. And it
is important to note that the complaint does not allege any rela-
tionship between the Respondents such as a single- integrated
enterprise, joint employer, successorship, or agency.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Arbitration Agreement
On or about August 30, 2007, Whitaker applied for employ-
ment at CHL. On or about August 30, 2007, as part of the ap-
plication process, CHL presented Whitaker with a mutual
agreement to arbitrate claims (the arbitration agreement) and
Whitaker electronically checked “I agree.” Whitaker began
working for CHL on or about November 19, 2007, as a custom-
er service telephone representative. She went out on a leave of
absence on or about May 5, 2008, and did not return to work at
CHL after that date. Her last day of employment at CHL was
on or about August 20, 2008. On or about September 26, 2008,
White applied for employment at CHL. On or about Septem-
ber 26, 2008, CHL, as part of the application process, presented
White with the arbitration agreement, and White electronically
checked “I Agree.” White worked for CHL as an account man-
ager from in or about November 2008 until approximately
November 2009. Neither Whitaker nor White is still employed
by CHL and neither ever worked for BAC or CFC.
The arbitration agreement bears the heading “Countrywide
Financial” and explains that reference in that agreement to the
“Company” means “Countrywide Financial Corporation and
all of its subsidiary and affiliated entities, . . . and all succes-
sors and assigns from any of them.” The arbitration agree-
ment contains the following provision:
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Except as otherwise provided in this agreement, the Compa-
ny and the Employee hereby consent to the resolution by ar-
bitration of all claims or controversies arising out of, relating
to or associated with the Employee’s employment with the
Company that the Employee may have against the Company
or that the Company may have against the Employee, in-
cluding any claims or controversies relating to the Employ-
ee’s application for employment with the Company, the
Company’s actual or potential hiring of the Employee, the
employment relationship itself, or its termination (hereinafter
the “Covered Claims”). The Covered Claims subject to this
Agreement include, but are not limited to, claims for wages
or other compensation due . . . and claims for violation of
any federal, state or other governmental constitution, statute,
ordinance, regulation, or public policy. The purpose and ef-
fect of this Agreement is to substitute arbitration, instead of a
federal or state court, as the exclusive forum for the resolu-
tion of Covered Claims. The parties’ responsibilities and le-
gal remedies available under any substantive law applicable
to a Covered Claim shall be enforced in any arbitration con-
ducted pursuant to this agreement.
The arbitration agreement also provides that “Nothing in
this Agreement shall be construed to require any claim if an
agreement to arbitrate such a claim is prohibited by law.” The
arbitration agreement indicates that each party entered the
agreement “voluntarily”; however, if the employee did not
agree to the arbitration agreement, then the employee “will not
be able to move forward in the application process at this
time.” The arbitration agreement is silent concerning whether
arbitration may be compelled on an individual or collective
basis.
During the period of in or about 2007 through approximately
March 31, 2009, applicants for employment at CHL typically
were presented with an arbitration agreement, similar to those
described above, or with language substantially similar to the
arbitration agreement.
B. Lawsuit
On or about June 16, 2009, Whitaker filed lawsuit against
CFC and BAC in Ventura County Superior Court. On or about
August 12, 2009, the case was removed to the United States
District Court for the Central District of California. As amend-
ed, the lawsuit, a putative class action, alleges seven claims of
failure to pay overtime and other wages in violation of Califor-
nia and Federal law. The putative class of employees includes
employees of “Countrywide” and not any employees of BAC.
Rather, the claims against BAC were brought as a “successor in
liability.” On June 27, 2011, White was added to the lawsuit.
On or about August 22, 2011, CFC, BAC, and CHL filed mo-
tions to compel individual arbitration for Whitaker’s and
White’s claims.
Whitaker and White filed an opposition to the motions to
compel, and CFC, BAC, and CHL then filed a reply. In
both the motion to compel and the reply, Respondents une-
quivocally expressed its intent to compel individual, and
not class, arbitration. Respondents’ arguments, however,
were not based on any purported waiver of class-based arbitra-
tion contained within the arbitration agreement. Rather, Re-
spondents argued that case law, as described below, compelled
individual arbitration. On September 19, 2011, United States
District Court Judge Christine A. Snyder granted, in part, the
motions to compel, and also stayed the litigation of the lawsuit.
In doing so Judge Snyder rejected the assertion that Section 7
rendered the arbitration agreement unenforceable; the court
pointed to case authority that described that argument as “non-
sensical.” Judge Snyder held that “the question of whether
plaintiffs are subject to individual or class arbitration depends
on the parties’ intent and is a question for the arbitrator to de-
cide.”
On or about June 11, 2012, CFC, BAC, and CHL filed a
motion for partial reconsideration of Judge Snyder’s order.
On or about June 25, 2011, Whitaker and White filed an oppo-
sition to the motion for partial reconsideration and on or about
July 16, 2012, CFC, BAC, and CHL filed a reply. On or about
August 20, 2012, Judge Snyder denied the motion for partial
reconsideration. To date, the parties have not selected an arbi-
trator. There has been no determination by an arbitrator (or any
other authority) as to whether Whitaker and White can assert
their employment-related claims on a class-wide or collective
basis in arbitration. On or about October 19, 2011, Whitaker
and White filed with the Ninth Circuit a petition for writ of
mandamus; on or about October 30, 2012, CFC, BAC, and
CHL also filed a petition for writ of mandamus with the Ninth
Circuit.
To summarize, Respondents have sought to compel litigation
of Whitaker’s and White’s claims made in the lawsuit on an
individual basis before an arbitrator and White and Whitaker
have collectively resisted Respondents’ efforts. Importantly,
Respondents’ have not contended that White and Whitaker
have waived their right under the arbitration agreement to act
collectively in seeking class-wide arbitration; rather, Respond-
ents’ have only argued that case law favors their position and
they did not otherwise agree to class-wide arbitration.
III. ANALYSIS
A. Arbitration Agreement
The complaint alleges that Respondents have maintained and
enforced the arbitration agreement that includes provisions that
require employees to arbitrate all employment-related claims,
including any claims arising under Federal statute or regulation.
I have described above how that arbitration agreement does so.
Respondents argue that BAC and CFC should be dismissed as
parties in the complaint. I have noted above that Whitaker and
White were employed by CHL and not BAC or CFC. I have
also described how CHL but not BAC or CFC required em-
ployees to sign the arbitration agreement. In his brief the Gen-
eral Counsel correctly points White and Whitaker are statutory
employees in a general sense and the facts show that BAC and
CFC are employers engaged in commerce. But so is General
Motors. Importantly, the General Counsel has not pled in com-
plaint or even explained at the hearing any legal theory under
which BAC and CFC should be held liable for the conduct of
CHL. This lack of due process has caused Respondents to
guess that the General Counsel is proceeding under a
“successorship” theory, given that this was the theory used by
COUNTRYWIDE FINANCIAL CORP. 15
the charging parties to join BAC in the lawsuit at issue in this
case. But the facts do not support such a theory. Under these
circumstances I conclude that relationship of BAC and CFC to
this allegation of the complaint is too attenuated to hold them
liable. I dismiss BAC and CFC from this allegation.
Although the arbitration agreement was signed well outside
the 10(b) period, CHL sought to maintain it within that period.
The arbitration agreement, as reasonably read by employees,
prohibits employees from filing charges with the Board, an
activity protected by Section 7 and Section 8(a)(4). An em-
ployer cannot condition employment on a waiver of employees’
right to file charges with the Board and thereby lose the ad-
vantages provided to them by the Act. Supply Technologies,
LLC, 359 NLRB No. 38 (2013); D. R. Horton, 357 NLRB No.
184, slip op. at 2 (2012); U-Haul Co. of California, 347 NLRB
375, 377 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
For example, by compelling arbitration as a substitute for
Board proceedings, the employee must forego having a Board
agent conduct an investigation of the charge, thereby acquiring
evidence and then making a legal analysis of that evidence.
The employee gives up the benefit of an NLRB-prepared com-
plaint as well as having an NLRB attorney prosecute the com-
plaint. Nor will the employee have the resources of the General
Counsel to prepare any meritorious case against the Respond-
ents. Indeed, the Supreme Court has indicated that Congress
intended to ensure that employees be “completely free from
coercion” with respect to access to the Board. NLRB v. Scrive-
ner, 405 U.S. 117, 123 (1972). In its brief Respondents do not
address the merits of this allegation of the complaint. I con-
clude that by maintaining an arbitration agreement that inter-
feres with employees’ right to file charges with the Board, CHL
violated Section 8(a)(1). Nothing in this conclusion should
properly be understood to touch upon Respondents’ First
Amendment right to petition the government for a redress of
grievances, described more fully in the following section of this
decision. Respondents’ remain free to assert their claims con-
cerning the meaning of the arbitration agreement in the lawsuit.
Rather, it is only the maintenance of an unlawfully broad policy
that I find unlawful; this finding does not require Respondents
to alter their litigation position.
B. Lawsuit
The complaint alleges that Respondents violated Section
8(a)(1) “by moving the district court to compel plaintiffs Whit-
aker and White to individually arbitrate their class-wide wage
and hour claims against Respondent.” I have described above
how, in its motion to compel, Respondents unequivocally ex-
pressed its intent to compel individual, and not class, arbitra-
tion. I have also described above how the arbitration agreement
is silent concerning this matter and at no time have Respond-
ents argued that the arbitration agreement, by its terms, com-
pelled only individual arbitrations. I have also described above
how Whitaker and White have continued to maintain that their
claims should be heard collectively and there is no evidence
that Respondents have sought to interfere with, as opposed to
disagree with, that contention. The General Counsel argues
that D. R. Horton, supra, requires the conclusion that Respond-
ents here violated the Act. I disagree. First, I identify the Sec-
tion 7 rights implicated in D. R. Horton. In that case the em-
ployer required, as a condition of employment, that employees
sign an agreement that precluded them filing joint collective, or
class action claims concerning their working conditions. The
Board held that “Collective pursuit of a workplace grievance in
arbitration is . . . protected by the NLRA.” Id., slip op. at 2
(emphasis added). The Board concluded:
We need not and do not mandate class arbitration in order to
protect employees’ rights under the NLRA. Rather, we hold
only that employers may not compel employees to waive their
NLRA right to collectively pursue litigation of employment
claims in all forums, arbitral and judicial. So long as the em-
ployer leaves open a judicial forum for class and collective
claims, employees’ rights are preserved without requiring the
availability of classwide arbitration. Employers remain free
to insist that arbitral proceedings be conducted on an individ-
ual basis.
Id., slip op. at 12 (emphasis added). The Board gave, as an
example, Rule 23 of the Federal Rules of Civil Procedure. The
Board stated that there is no Section 7 right to class certifica-
tion. It continued:
Nothing in our holding guarantees class certification; it guar-
antees only employees’ opportunity to pursue without em-
ployer coercion, restraint or interference such claims of a class
or collective nature as may be available to them under Feder-
al, State or local law. . [T]heir employer remains free to as-
sert any and all arguments against certification (other than
the MAA).
Id., slip op. 10 fn. 24 (emphasis added). So the Section 7
that could not be waived in D. R. Horton was the right of em-
ployees to collectively pursue class or collective work-related
complaints against their employer. This is different from any
right that the claims be heard and decided on a class-wide basis;
that issue is for the appropriate forum, and not the Board, to
decide. Here, Respondent did nothing more than argue before
the appropriate forum that the claims be heard on an individual
basis, and it did so not on the basis that the employees had
waived their right to pursue class-wide claims. Rather, it relied
solely on case law that it felt support that position.
The General Counsel argues:
This is a hollow sanctuary. While employees may be able to
argue to an arbitrator that they are entitled to bring their
claims as a class, Stolt-Nielsen1 and AT&T Mobility v. Con-
cepcion2 make clear that the arbitrator has no authority to
grant such status in the absence of some authorization for
class arbitration in the arbitration agreements themselves or
where, as here, the agreements are silent as to whether the
mandatory arbitration may be heard on a collective or class
basis. See Stolt-Nielsen, 130 S. Ct. at 1775(“a party may not
be compelled under the FAA to submit to class arbitration un-
less there is a basis for concluding that the party agreed to do

1 Stolt-Nielsen SA v. Animal Feeds International Corp., 130 S.Ct.
1758 (2010).
2 131 S.Ct. 1740 (2011).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
so”) (emphasis in original); AT&T Mobility v. Concepcion,
131 S. Ct. at 1750 (“the agreement at issue, which was silent
on the question of class procedures, could not be interpreted
to allow them”).
But by making this argument the General Counsel conflates
the Section 7 right to collectively seek class wise arbitration
with the non Section 7 right to actually have their claims ad-
dressed in a class wide fashion; as described above this was
something the Board was careful to differentiate in D. R. Hor-
ton.
What the General Counsel is seeking in this case is to have
the Respondents stop presenting their legal arguments to the
court concerning why class-wide arbitration is not appropriate.
If the Board were to do so, it would likely trench upon Re-
spondents’ rights under the First Amendment “to petition the
Government for a redress of grievances.” Bill Johnson’s Res-
taurants, Inc. v. NLRB, 461 U.S. 731 (1983)3; BE & K Con-
struction v. NLRB, 536 U.S. 516 (2002). The General Counsel
cites Elevator Constructors (Long Elevator), 289 NLRB 1095
(1988), enfd. 902 F.2d 1297 (8th Cir. 1990). In that case the
Board concluded that a grievance filed by a union concerning
the meaning of a contract clause, if successful, would result in
the clause being read in a manner that violated Section 8(e); the
grievance thereby violated Section 8(b)(4)(ii)(A). The Board
concluded that Bill Johnson’s did not preclude it from reaching
that result. But that case is clearly inapposite here. Respond-
ents have not sought to have the court interpret the arbitration
agreement in a manner that would violate the Act. And while,
as the Charging Parties point out in their brief, Respondents
have argued that the arbitration agreement does not provide for
class-wide arbitration but only individual arbitration, these
assertions must be seen in context. That context shows that
Respondents are arguing that under existing law, class-wide
arbitrations can arise only by agreement of the parties and the
arbitration agreement does not so provide. In other words,
Respondents are not arguing that under the terms of the arbitra-
tion Agreement the employees waived whatever right they may
have to make class-wide claims. I dismiss this allegation of the
complaint.4
CONCLUSION OF LAW
By maintaining an arbitration agreement that interferes with
employees’ right to file charges with the Board, CHL has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.

3 Fn. 5 of that decision offers no way out for the General Counsel
because the motions to compel individual arbitration at issue in this
case do not have an objective that is illegal under Federal law. To the
contrary, those motions simply assert existing Federal case law as
viewed by Respondents.
4 The complaint also alleges that Respondent independently violated
Sec. 8(a)(1) by “About August 30, 2007, Respondent required employ-
ee Dominique Whitaker to agree to the arbitration agreement” and
“About September 26, 2008, Respondent required employee John
White to agree to the arbitration agreement.” Of course, those allega-
tions are facially invalid under Sec. 10(b) and I dismiss them.
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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Countrywide Home Loans, Calabasas, Cal-
ifornia, its officers, agents, successors, and assigns, shall
1. Cease and desist
(a) Maintaining an arbitration agreement that interferes with
employees’ right to file charges with the Board.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Calabasas, California, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
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 Respondent to ensure that the notices are not al-
tered, 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 current employees and
former employees employed by the Respondent at any time
since August 22, 2011.
(b) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. February 13, 2013

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
6 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.”
COUNTRYWIDE FINANCIAL CORP. 17
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 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 an arbitration agreement that inter-
feres with employees’ right to file charges with the Board.
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 Section 7 of the Act.
COUNTRYWIDE HOME LOANS