E.A. Renfroe & Company, Inc

National Labor Relations Board - Board Decisions

Dec 16, 2019

368 N.L.R.B. 147 (N.L.R.B. 2019)

368 NLRB No. 147
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.
E. A. Renfroe & Company Inc. and Kimani Adams.
Case 10–CA–171072
December 16, 2019
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On August 17, 2016, Administrative Law Judge Kelt-
ner W. Locke issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
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
affirm the judge's rulings, findings, and conclusions to
the extent consistent with this supplemental decision and
to adopt the recommended Order as modified and set
forth in full below.1
The Respondent employs project employees, whom it
deploys to its client insurance companies during times of
disaster or claims overload. On February 17, 2016,2 the
Respondent electronically sent its project employees,
including Charging Party Kimani Adams, a “Mutual
Agreement to Arbitrate Employment-Related Disputes”
(MAA), relevant portions of which are set forth below.
Project employees, including Adams, were required to
sign the MAA as a condition of employment. On March
29, the Respondent issued its project employees a revised
arbitration agreement, which included language omitted
from the MAA providing that employees retained the
right to file complaints with the National Labor Relations
Board. There is no allegation that the revised arbitration
agreement unlawfully interfered with employees’ right to
access the Board or its processes.
The MAA contained numbered paragraphs that read,
in relevant part, as follows:
1. Intent. The Parties intend for this Agreement to
govern the resolution of all disputes, claims, and other
matters in question arising out of or relating to the Par-
ties’ employment relationship. The parties shall re-
solve all disputes, claims, and other matters in question

1 We have amended the remedy and modified the judge’s recom-
mended Order consistent with our findings herein. We shall substitute
a new notice to conform to the Order as modified.
2 All dates are 2016 unless otherwise indicated.
arising out of the employment relationship in accord-
ance with the provisions of this Agreement.
2. Mandatory Arbitration. The Parties agree that all
grievances, claims, complaints, disputes, or causes of
action (collectively, “Claims”) that relate in any way to
the Parties’ employment relationship or to the Employ-
ee’s performance of work for the Employer’s clients,
whether based in contract, tort, fraud, misrepresenta-
tion, state or federal statutory law, or any other legal
theory, shall be submitted to binding arbitration … .
3. Covered Claims. The Parties are mutually obligated
to arbitrate all claims arising out of or relating to their
employment relationship. This Agreement covers all
Claims in a federal, state, or local court or agency un-
der applicable federal, state, or local laws, arising out of
or relating to Employee’s employment with Employer,
performance of work for the Employer’s clients, or the
termination of Employee’s employment. … The
Claims covered by this Agreement include, but are not
limited to … claims for violation of any federal, state,
or other governmental law, statute, regulation or ordi-
nance … .
4. Claims Not Covered. This Agreement does not
cover claims for workers’ compensation, unemploy-
ment compensation benefits, or any other claims that,
as a matter of law, the parties cannot agree to arbitrate.
The MAA also contained language waiving class- and col-
lective-action procedures. On February 24, after the Re-
spondent and Adams exchanged emails about the MAA, the
Respondent released Adams from her work assignment in
Georgia for refusing to sign the MAA.3
Relying on Murphy Oil USA, Inc., 361 NLRB 774
(2014), enf. denied in relevant part 808 F.3d 1013 (5th
Cir. 2015), the judge found that the Respondent violated
Section 8(a)(1) by maintaining the MAA because it re-
quired employees to waive their right to pursue class or

3 Adams’ assignment was scheduled to end on or about June 24. On
April 5, the Respondent sent an email to Adams calling her attention to
the March 29 revised arbitration agreement and stating that she would
be eligible for deployment to future projects if she executed the revised
agreement. For the reasons explained in this decision, we find that the
Respondent violated Sec. 8(a)(1) when it released Adams from her
work assignment because she refused to sign the MAA, and we shall
order the Respondent, among other things, to make Adams whole for
losses caused by this violation. We leave to compliance the determina-
tion of the duration of the backpay period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
collective actions in all forums. The judge also found
that maintenance of the MAA was unlawful because,
under the “reasonably construe” prong of Lutheran Her-
itage Village-Livonia, 343 NLRB 646 (2004), employees
would reasonably read the MAA as barring or restricting
them from filing charges with the Board. The judge fur-
ther found that the Respondent violated Section 8(a)(1)
by discharging Adams for refusing to sign the MAA.
On October 4, 2018, the Board issued a Decision, Or-
der, and Notice to Show Cause in this case. The Board
dismissed the allegation that the MAA unlawfully re-
quired employees to waive their right to pursue class or
collective actions in light of the Supreme Court’s deci-
sion in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S.
Ct. 1612, 1632 (2018), in which the Court held that em-
ployer-employee agreements that contain class- and col-
lective-action waivers and require individualized arbitra-
tion do not violate Section 8(a)(1) of the Act and should
be enforced as written pursuant to the Federal Arbitration
Act (FAA). The Board also gave notice to the parties to
show cause why the remaining issues in the case—
concerning the Respondent’s alleged restriction on em-
ployee access to the Board and its discharge of Adams—
should not be remanded to the judge for further proceed-
ings in light of the Board’s decision in Boeing Co., 365
NLRB No. 154 (2017).4 The Respondent and the Gen-
eral Counsel each filed a response to the Notice to Show
Cause. Neither requested that this case be remanded to
the judge, and each provided further arguments on the
merits of the remaining allegations. In view of the par-
ties’ responses, and since the remaining allegations may
be decided based on the existing record, we find that a
remand is unnecessary.
For the reasons explained below, we adopt the judge’s
findings that the Respondent’s maintenance of the MAA
and its discharge of Adams for refusing to sign the MAA
violated Section 8(a)(1) of the Act.
Maintenance of the MAA
In Prime Healthcare Paradise Valley, LLC, 368 NLRB
No. 10 (2019), the Board held that, notwithstanding the

4 In Boeing, the Board overruled the “reasonably construe” prong of
Lutheran Heritage and announced a new standard, which applies retro-
actively, for evaluating the lawfulness of a facially neutral policy. 365
NLRB No. 154, slip op. at 3. Under Boeing, the Board first determines
whether a challenged rule or policy, when reasonably interpreted,
would potentially interfere with the exercise of rights under Sec. 7 of
the Act. If not, the rule or policy is lawful. If so, the Board evaluates
two things: “(i) the nature and extent of the potential impact on NLRA
rights, and (ii) legitimate justifications associated with the rule.” Id.,
slip op. at 3. The Boeing standard replaced the “reasonably construe”
prong of Lutheran Heritage. Other aspects of Lutheran Heritage re-
main intact, including whether a challenged rule or policy explicitly
restricts activities protected by Sec. 7. 343 NLRB at 646.
Supreme Court’s decision in Epic Systems, above, up-
holding individual arbitration agreements containing
class- and collective-action waivers, the FAA “does not
authorize the maintenance or enforcement of agreements
that interfere with an employee’s right to file charges
with the Board.” Id., slip op. at 5. This is so because the
FAA’s requirement that arbitration agreements be en-
forced as written “may be ‘overridden by a contrary con-
gressional command,’” which the Board found to be es-
tablished in Section 10 of the Act. Id. (quoting Shear-
son/American Express, Inc. v. McMahon, 482 U.S. 220,
226 (1987)). Indeed, “[u]nder Section 10(b) of the Act,
the Board has no power to issue complaint unless an un-
fair labor practice charge is filed, and Section 10(a) of
the Act relevantly provides that the Board’s power to
prevent unfair labor practices ‘shall not be affected by
any other means of adjustment or prevention that has
been or may be established by agreement, law, or other-
wise.’” Id.
Accordingly, the Board held that an arbitration agree-
ment that “explicitly prohibits the filing of claims with
the Board or, more generally, with administrative agen-
cies must be found unlawful.” Id. The Board further
held that where an arbitration agreement does not contain
such an express prohibition—i.e., where the arbitration
agreement in question is facially neutral—the Board
must apply the standard set forth in Boeing and initially
“determine whether that agreement, ‘when reasonably
interpreted, would potentially interfere with the exercise
of NLRA rights.’” Id. (quoting Boeing, 365 NLRB No.
154, slip op. at 3). The Board added that the “when rea-
sonably interpreted” standard is an objective one and
“looks solely to the wording of the rule, policy, or other
provision at issue[,] . . . interpreted from the employees’
perspective.” Id., slip op. at 6 fn. 14.
Applying this standard, the Board found that the arbi-
tration agreement in Prime Healthcare violated the Act
because, although it did not explicitly prohibit charge
filing (or the exercise of other Section 7 rights), it did,
when reasonably interpreted, interfere with employees’
right to file charges with the Board because its provi-
sions, “taken as a whole, [made] arbitration the exclusive
forum for the resolution of all claims, including federal
statutory claims under the National Labor Relations
Act.” Id., slip op. at 6 (emphasis in original). Turning to
the second, balancing step of the Boeing analysis, the
Board held that, “as a matter of law, there is not and can-
not be any legitimate justification for provisions, in an
arbitration agreement or otherwise, that restrict employ-
ees’ access to the Board or its processes.” Id. Finally,
the Board placed “provisions that make arbitration the
exclusive forum for the resolution of all claims” in Boe-
E. A. RENFROE & CO. 3
ing Category 3, which designates rules and policies that
are unlawful to maintain. Id., slip op. at 7.
Here, setting aside for the moment the “Claims Not
Covered” paragraph, the MAA plainly makes arbitration
the exclusive forum for the resolution of statutory claims
under the Act. It requires binding arbitration of all em-
ployment-related disputes, “whether based in . . . federal
statutory law, or any other legal theory.” Moreover, the
MAA does not reference claims arising under the Act in
the “Claims Not Covered” paragraph, and it does not
contain a savings clause preserving employees’ right to
file charges with the Board or, more generally, with ad-
ministrative agencies. It does, however, exclude from
the scope of the MAA’s otherwise exclusive arbitration
mandate claims the parties cannot agree to arbitrate “as a
matter of law.” The Respondent contends that this ex-
clusion renders the MAA lawful. For the following rea-
sons, we disagree.
In Cedars-Sinai Medical Center, 368 NLRB No. 83
(2019), we considered whether a mandatory arbitration
agreement that excluded from its scope claims “preempt-
ed by federal labor laws” unlawfully interfered with em-
ployees’ access to the Board. To decide that issue, we
applied a principle suggested by the General Counsel and
recited in Prime Healthcare—namely, that “[v]ague sav-
ings clauses that would require employees to ‘meticu-
lously determine the state of the law’ themselves are
likely to interfere with the exercise of NLRA rights.”
Id., slip op. at 2 (quoting Prime Healthcare, 368 NLRB
No. 10, slip op. at 3).5 Doing so, we found that an objec-
tively reasonable employee reading the language exclud-
ing claims “preempted by federal labor laws” “would not
divine an implicit intent to exclude claims arising under
the Act” because “[i]t is unlikely that such an employee
would be familiar with the legal doctrine of preemption,
let alone what actions and claims are preempted by fed-
eral labor laws.” Id., slip op. at 2–3. We accordingly
found that the arbitration agreement at issue in Cedars-
Sinai restricted employee access to the Board, that it was
a Category 3 policy under Boeing, and that maintenance
of the agreement violated Section 8(a)(1).6

5 This principle additionally explains that “[s]uch clauses include,
for example, those stating that ‘nothing in this agreement shall be con-
strued to require any claim to be arbitrated if an agreement to arbitrate
such claim is prohibited by law,’ or that exclusively require arbitration
but limit that requirement to circumstances where a claim ‘may lawful-
ly be resolved by arbitration.’”
We did not otherwise pass in Cedars-Sinai on the merits of the Gen-
eral Counsel’s suggested principles, and we do not do so here.
6 See also Everglades College, Inc. d/b/a Keiser University, 368
NLRB No. 123, slip op. at 3-4 (2019) (finding that a clause in the em-
ployee arbitration agreement excluding from arbitration claims or ac-
tions “where specifically prohibited by law” was legally insufficient to
We find the General Counsel’s suggested principle ap-
plicable here as well, although we note that the clause at
issue is an exclusion clause, not a savings clause.7 As in
Cedars-Sinai, the clause in the MAA excluding claims
the parties cannot agree to arbitrate “as a matter of law”
constitutes the type of vague, generalized language that
requires employees to meticulously determine the state
of the law themselves. See Cedars-Sinai, above, slip op.
at 2-3; see also Ingram Book Co., 315 NLRB 515, 516
fn. 2 (1994) (“Rank-and-file employees do not generally
carry lawbooks to work or apply legal analysis to com-
pany rules as do lawyers, and cannot be expected to have
the expertise to examine company rules from a legal
standpoint.”). Because the exclusion clause is legally
insufficient, and because the MAA does not contain a
valid savings clause preserving employees’ right of ac-
cess to the Board, the MAA unlawfully interferes with
employees’ right of access to the Board by making arbi-
tration the exclusive forum for resolving claims arising
under the Act, which is impermissible for the reasons
explained in Prime Healthcare.8
We find without merit the Respondent’s contention
that dismissal of this allegation is warranted because of a
lack of evidence that Adams (or other employees) either
declined to file charges with the Board or believed the
MAA precluded such activity. The “when reasonably
interpreted” standard is an objective one and looks solely
to the wording of the provisions at issue, not to the em-
ployer’s or employee’s conduct. Prime Healthcare, 368
NLRB No. 10, slip op. at 6 fn. 14. We also find the Re-
spondent’s asserted business justification for maintaining
the MAA (e.g., to promote efficient dispute resolution)
does not constitute a legitimate basis for restricting em-
ployees’ access to the Board or its processes. Id., slip op.

save the maintenance of the agreement and the discharge of an employ-
ee for refusing to sign it from violating Sec. 8(a)(1) of the Act).
7 An exclusion clause in an arbitration agreement carves out or ex-
cludes certain claims or types of claims from the scope of the agree-
ment. In contrast, a savings clause in an arbitration agreement provides
that employees retain the right to file charges with the Board, even if
the agreement otherwise includes claims arising under the Act within
its scope.
8 Our decision is limited to the MAA sent to project employees on
February 17. An arbitration agreement previously issued by the Re-
spondent to its home office employees on January 20 included the
following sentence: “Nothing in this Agreement shall be interpreted to
mean that employees are precluded from filing complaints with a feder-
al agency, such as the Department of Labor, the Equal Employment
Opportunity Commission, the National Labor Relations Board, or any
equivalent state agency.” This language was omitted from the February
17 MAA sent to the project employees, including Adams, but it was
added to the revised agreement the Respondent issued on March 29.
Again, there is no allegation that either the January 20 home office
agreement or the March 29 revised agreement unlawfully interfered
with employees’ right to access the Board and its processes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
at 6; see also Alorica, Inc., and its subsidiary/affiliate
Expert Global Solutions, Inc., 368 NLRB No. 25, slip op.
at 2 (2019) (rejecting contention that arbitration agree-
ment’s interference with Section 7 rights was minimal or
outweighed by the efficient resolution of workplace dis-
putes).
In sum, the language of the MAA, when reasonably in-
terpreted, made arbitration the exclusive forum for reso-
lution of claims arising under the Act. The MAA re-
stricted employee access to the Board, and such a re-
striction of Section 7 rights cannot be supported by any
legitimate business justification. Accordingly, we find
that the Respondent violated Section 8(a)(1) of the Act
by maintaining the MAA.9
Respondent’s Discharge of Adams
The judge found that the Respondent violated Section
8(a)(1) of the Act by releasing Adams from her work
assignment on February 24 because she refused to sign
the MAA. In addition to relying on its argument that the
MAA was lawful, the Respondent contends on exception
that the discharge did not violate Section 8(a)(1) because
Adams refused to agree to provisions in the MAA that
were not specifically alleged to be unlawful. We find no
merit in this contention. There is nothing in the stipulat-
ed record showing that the Respondent would have per-
mitted Adams to remain employed by consenting to cer-
tain other provisions not alleged to be unlawful. Instead,
the facts simply show that the Respondent released Ad-
ams from her assignment for refusing to sign the MAA.
Because the MAA was unlawfully maintained at that
time, the Respondent could not lawfully discharge Ad-
ams for refusing to sign it. See Alorica, Inc., above, slip
op. at 1 fn. 3 (employer violated Section 8(a)(1) by dis-
charging employees for refusing to sign its unlawful arbi-
tration agreement). We accordingly affirm the judge’s
finding that the discharge violated Section 8(a)(1) as al-
leged.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action necessary to
effectuate the policies of the Act. Specifically, having
found that the Respondent unlawfully maintained a man-

9 Like the agreement at issue in Cedars-Sinai, the MAA is a “Cate-
gory 3” policy under Boeing, 365 NLRB No. 154, slip op. at 4, 15.
Member McFerran joins her colleagues in finding that the Respond-
ent violated Sec. 8(a)(1) by maintaining the MAA and by discharging
Adams for failing to sign it. In doing so, she acknowledges that Boeing
Co., 365 NLRB No. 154 (2017), is currently governing law, and she
applies it for institutional reasons only. Otherwise, she adheres to her
dissent in that case.
datory arbitration agreement that employees reasonably
would believe bars or restricts their right to file charges
with the Board, we shall order that the Respondent, to the
extent it has not already done so, to rescind the unlawful
agreement and to advise its employees in writing that it
has done so.
In addition, the Respondent shall make Kimani Adams
whole for any loss of earnings and other benefits in-
curred as a result of her unlawful discharge. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NRLB 6 (2010). The Respondent shall also
compensate Kimani Adams for any adverse tax conse-
quences of receiving a lump-sum backpay award, and
file with the Regional Director for Region 10, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year. AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016). In accord-
ance with King Soopers, Inc., 364 NLRB No. 93 (2016),
enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we
shall also order the Respondent to compensate Kimani
Adams for any reasonable search-for-work and interim
employment expenses regardless of whether those ex-
penses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated sepa-
rately from taxable net backpay, with interest at the rate
prescribed in New Horizons, above, compounded daily as
prescribed in Kentucky River Medical Center, above.
Because the record shows that the Respondent’s pro-
ject employees worked at various customer facilities, we
shall require that the Respondent post the notice at its
facility and also mail the notice to its employees who
received the “Mutual Agreement to Arbitrate Employ-
ment-Related Disputes” while deployed to customer sites
from February 17 to March 29, 2016. Such a remedy
will serve to inform all affected employees of the action
the Respondent is required to take to remedy the viola-
tions. See, e.g., Technology Service Solutions, 334
NLRB 116, 117–118 (2001) (notice ordered to be posted
at all facilities and mailed to home addresses of traveling
employees).
ORDER
The National Labor Relations Board orders that the
Respondent, E. A. Renfroe & Company, Inc., Birming-
ham, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement
that employees reasonably would believe bars or restricts
E. A. RENFROE & CO. 5
their right to file charges with the National Labor Rela-
tions Board.
(b) Discharging employees for failing or refusing to
sign a mandatory arbitration agreement that employees
reasonably would believe bars or restricts their right to
file charges with the National Labor Relations Board.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) To the extent it has not already done so, rescind
the “Mutual Agreement to Arbitrate Employment-
Related Disputes” issued to project employees from Feb-
ruary 17 to March 29, 2016, or revise it to make clear to
employees that it does not bar or restrict employees’
right to file charges with the National Labor Relations
Board.
(b) Notify all current and former employees who were
required to sign or otherwise became bound to the “Mu-
tual Agreement to Arbitrate Employment-Related Dis-
putes” issued to project employees from February 17 to
March 29, 2016, that it has been rescinded or revised
and, if revised, provide them a copy of the revised
agreement.
(c) Within 14 days from the date of this Order, offer
Kimani Adams full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(d) Make Kimani Adams whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her, plus reasonable search-for-work and
interim employment expenses.
(e) Compensate Kimani Adams for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 10,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Kimani Adams, and within 3 days thereafter, notify her
in writing that this has been done and that the discharge
will not be used against her in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Birmingham, Alabama facility copies of the attached
notice marked “Appendix,” and duplicate and mail, at its
own expense, a copy of the notice to all project employ-
ees who received the Respondent’s “Mutual Agreement
to Arbitrate Employment-Related Disputes” while de-
ployed to customer sites from February 17 to March 29,
2016.10 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since February 17, 2016.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 16, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted and Mailed by Order
of the National Labor Relations Board” shall read “Posted and Mailed
Pursuant to a Judgment of the United States Court of Appeals Enforc-
ing an Order of the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that you reasonably would believe bars or restricts
your right to file charges with the National Labor Rela-
tions Board.
WE WILL NOT discharge you for failing or refusing to
sign a mandatory arbitration agreement that you reasona-
bly would believe bars or restricts your right to file
charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory “Mutual Agreement to
Arbitrate Employment-Related Disputes” issued to pro-
ject employees from February 17 to March 29, 2016, or
revise it to make clear that it does not restrict your right
to file charges with the National Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise became bound to the
“Mutual Agreement to Arbitrate Employment-Related
Disputes” issued to project employees from February 17
to March 29, 2016, that it has been rescinded or revised
and, if revised, WE WILL provide them a copy of the re-
vised agreement.
WE WILL, within 14 days from the date of the Board’s
Order, offer Kimani Adams full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Kimani Adams whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest, and WE WILL
also make her whole for reasonable search-for-work and
interim employment expenses, plus interest.
WE WILL compensate Kimani Adams for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 10, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Kimani Adams, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
E.A. RENFROE & COMPANY, INC.
The Board’s decision can be found at
www.nlrb.gov/case/10-CA-171072 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Matthew J. Turner, Esq., for the General Counsel.
K. Bryance Metheny (Burr & Forman LLP), Esq., of Birming-
ham, Alabama, for the Respondent.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. The Re-
spondent instituted a program which, among other things, al-
lowed employees to bring their workplace grievances to an
arbitrator for resolution. However, it required all employees,
whether or not they used the program, to waive their right to
file a group grievance or claim. The Act protects the right of
employees to engage in concerted activities for their mutual aid
and protection, and Respondent’s requiring them to waive that
right violates Section 8(a)(1).
Procedural History
This case began on March 4, 2016 when Kimani Adams, an
individual, filed an unfair labor practice charge against the
Respondent, E. A. Renfroe & Company, Inc., with Region 10
of the National Labor Relations Board. The Region docketed
E. A. RENFROE & CO. 7
the charge as Case 10–CA–171072 and conducted an investiga-
tion.
On April 26, 2016, the Regional Director for Region 16 is-
sued a complaint and notice of hearing. The Respondent filed a
timely answer.
On June 13, 2016, a hearing opened before me by telephone
conference call. The parties waived their right to call and ex-
amine witnesses and submitted a stipulation of facts and related
joint exhibits. After setting a July 18, 2016 deadline for filing
briefs, I closed the hearing. The parties submitted timely briefs,
which I have considered.
Admitted Allegations
In its answer and by stipulation, the Respondent admitted a
number of allegations. Based on those admissions, I find that
the General Counsel has proven the allegations raised in com-
plaint paragraphs 1, 2(a), 2(b), 2(c), 3(a), 3(b), 4(c) and 4(d).
More specifically, I find that the unfair labor practice charge
was filed and served as alleged. Further, I find that at all mate-
rial times, the Respondent has been a Georgia corporation with
an office and place of business in Birmingham, Alabama and
has been engaged in the business of providing temporary sup-
port services to insurance companies. Moreover, I find that in
conducting its operations during the 12-month period before the
parties’ June 13, 2016 stipulation, the Respondent performed
services valued in excess of $50,000 in States other than the
State of Georgia. Therefore, I conclude that the Respondent
satisfies the statutory and discretionary standards for the exer-
cise of the Board’s jurisdiction. Further, I conclude that at all
material times, the Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6) and (7) of
the Act.
Respondent has admitted, and I find, that Human Resources
Director and General Counsel Ashley Hattaway and Manager
Teresa Gail Hitt are its supervisors and agents within the mean-
ing of Section 2(11) and Section 2(13) of the Act.
Complaint paragraph 4(a) alleges that since at least February
17, 2016, Respondent has maintained a mandatory arbitration
agreement, entitled “Mutual Agreement to Arbitrate Employ-
ment Related Disputes” (for brevity here called the arbitration
agreement), that all of Respondent’s employees are required to
execute as a condition of employment. Some background in-
formation is helpful in understanding the Respondent’s answer
to this allegation.
Respondent provides temporary support services to insur-
ance companies during times of disaster or claims overload. In
other words, it is a type of business often called a “temp agen-
cy” or “temp service.” When an insurance company is
swamped with work, the Respondent will provide this client
with temporary staffers to cope with the surge.
The Respondent’s answer admits that it will not send an em-
ployee out to work for a client until the employee has signed
the arbitration agreement but appears to deny that this require-
ment is a “condition of employment,” as complaint paragraph
4(a) alleges. The Respondent contends that when an employee
refuses to sign the arbitration agreement it does not result in the
person losing her status as employee but only results in the
person not receiving a work assignment.
However, the Respondent has not asserted, and the record
does not establish, that a person who refuses to sign the arbitra-
tion agreement receives any pay. To the contrary, the Re-
spondent stipulated that an employee who refused to sign the
arbitration agreement was “released” from her assignment, has
worked no further hours since that release, and has not received
any pay except for the hours she had worked before that “re-
lease”.
From this stipulation, I infer that employees only receive pay
for work actually performed. Therefore, I conclude that the
Respondent’s refusal to send a person out to work in a client’s
office results in the individual receiving no pay. Thus, alt-
hough the person retains the title of “employee” she is not em-
ployed—assigned gainful work—unless and until she signs the
arbitration agreement. Accordingly, I conclude that the Gen-
eral Counsel has proven that signing the arbitration agreement
is a condition of employment, as alleged in complaint para-
graph 4(a).
Complaint paragraph 4(b) quotes specific language in a
“mandatory arbitration” clause and alleges that, since at least
February 17, 2016, this language has been included in the arbi-
tration agreement. Because of an apparent typesetting anoma-
ly, it is somewhat difficult to discern where paragraph 4(b)
begins, which led the Respondent to conclude that the com-
plaint did not contain a paragraph 4(b). Its answer therefore did
not address the allegations in that paragraph.
However, the Respondent stipulated to the exact language of
the arbitration agreement, including the “mandatory arbitration”
clause. That language will be discussed below.
Complaint paragraph 4(c) alleges that the arbitration agree-
ment has included, since at least February 17, 2016, a clause
titled “Waiver of Class Action and Representative Action
Claims” and further alleges that the clause contains specific
quoted language. The Respondent has admitted this allegation
and has stipulated to the entire contents of the arbitration
agreement. Therefore, I conclude that the General Counsel has
proven the allegations raised in complaint paragraph 4(c).
Complaint paragraph 4(d) alleges that, since at least Febru-
ary 17, 2016, the Respondent’s arbitration agreement has in-
cluded a clause titled “Covered Claims” and sets forth the lan-
guage alleged to be in that clause. The Respondent’s answer
admits this allegation. Therefore, I find that the General Coun-
sel has proven the allegations raised in complaint paragraph
4(d).
Complaint paragraph 5(a) alleges that since about February
24, 2016, the Respondent has “required that employees sign the
Arbitration Agreement or, if they did not sign, employees
would be released from their project assignments.” The Re-
spondent’s answer admits that it “required project employees to
sign an arbitration agreement in order to be eligible for a tem-
porary assignment” but denies other allegations raised in this
complaint paragraph.
The Respondent’s answer thus admits that it would not send
an employer out to work in a client’s office unless that person
had signed an arbitration agreement. However, the Respondent
appears to deny that it would pull an employee off an assign-
ment where the employee already was working simply because
the employee refused to sign the arbitration agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
However, the Respondent stipulated to facts establishing that
it did retract a project assignment from an employee who re-
fused to sign the arbitration agreement. This instance involves
the Charging Party, Kimani Adams.
The Respondent hired Adams in 2012 and gave her assign-
ments as a project employee in Georgia and Texas. The Re-
spondent stipulated that in September 2014, it had deployed her
to work on a project assignment in Georgia that was expected
to last until June 24, 2016.
On February 17, 2016, the Respondent electronically sent to
its project employees, including Adams, copies of a “Mutual
Agreement to Arbitrate Employment Related Disputes.” It
required these employees to execute the arbitration agreement
to remain eligible to work project assignments.
The Respondent stipulated that between February 22 and 26,
2016, it exchanged emails with Adams regarding the arbitration
agreement and her employment status. On February 24, 2016,
it released Adams from her project assignment because of her
“failure and refusal to sign the Arbitration Agreement.”
The Respondent further stipulated that since February 24,
2016, it has not assigned Adams any work hours or paid her
any wages other than for hours she worked before that date.
The complaint alleges that the Respondent thereby caused the
termination of Adams’ employment. However, the Respondent
denies that it discharged her. According to the Respondent,
Adams remains an employee, albeit one who does not receive
work assignments or pay.
On March 29, 2016, the Respondent issued a revised arbitra-
tion agreement which now included language to make clear that
employees retained the right to make complaints to the Board.
On this same date, it issued a memo to employees who previ-
ously had signed arbitration agreements. This memo clarified
that nothing in those arbitration agreements should be interpret-
ed as preventing employees from filing complaints with the
Board.
On April 5, 2016, the Respondent sent an email to Adams in-
forming her of the revisions to the arbitration agreement and
that she would be eligible for deployment to future projects if
she decided to execute the revised arbitration agreement. The
parties stipulated that, as of June 13, 2016, Adams had not exe-
cuted the revised arbitration agreement and that Respondent
had not deployed her to any projects since February 24, 2016.
The Issues
Although the facts are not disputed, the parties disagree
about whether the Respondent acted lawfully. The complaint
presents the following issues which must be resolved:
1. Would employees reasonably conclude that the provisions
of the arbitration agreement precluded them from engaging in
conduct protected by Section 7 of the Act? (Complaint para-
graph 4(e).)
2. If so, did the Respondent thereby violate Section 8(a)(1) of
the Act? (Complaint paragraph 6.)
3. Would the language of the arbitration agreement, as it ex-
isted before the March 29, 2016 revision, reasonably lead em-
ployees to conclude that they could not file unfair labor prac-
tice charges with the Board? (Complaint paragraph 4(f).)
4. If so, did the Respondent thereby violate Section 8(a)(1) of
the Act? (Complaint paragraph 6.)
5. Did the Respondent’s February 24, 2016 release of Adams
from her project assignment, and its subsequent failure to give
her other assignments, cause the termination of her employ-
ment? (Complaint paragraph 5(b).)
6. Did the Respondent release Adams from her project as-
signment and refuse to give her other assignments because
she engaged in concerted activities protected by the Act, and
to discourage employees from engaging in such activities?
(Complaint paragraph 5(c).)
7. If so, did the Respondent thereby violate Section 8(a)(1) of
the Act? (Complaint paragraph 6.)
8. If the Respondent violated Section 8(a)(1) of the Act, did
such violation or violations affect commerce within the mean-
ing of Section 2(2), (6) and (7) of the Act? (Complaint para-
graph 7.)
The Arbitration Agreements (Complaint Paragraphs
4(a), 4(b), 4(c), and 4(d))
Agreement Sent to Home Office Employees
The parties stipulated that on January 20, 2016, the Re-
spondent “electronically disbursed” to its home office employ-
ees a “Mutual Agreement to Arbitrate Employment-Related
Disputes” and required those employees to execute this agree-
ment. The parties introduced a copy of this arbitration agree-
ment into the record. It states as follows:
MUTUAL AGREEMENT TO ARBITRATE
EMPLOYMENT RELATED DISPUTES
This Mutual Agreement to Arbitrate Employment Related
Disputes (the ‘Agreement’) is made and entered into as of
________________________ (the ‘Effective Date’) by and
between E. A. Renfroe & Company, a Georgia Corporation,
(the ‘Employer’) and _____________________, an individu-
al (the ‘Employee’) (the Employer and the Employee are col-
lectively referred to herein as the ‘Parties;).
1. Intent. The Parties intend for this Agreement to govern the
resolution of all disputes, claims, and other matters in question
arising out of or relating to the Parties’ employment relation-
ship. The Parties shall resolve all disputes, claims, and other
matters in question arising out of the employment relationship
in accordance with the provisions of this agreement.
2. Mandatory Arbitration. The Parties agree that all griev-
ances, claims, complaints, disputes, or causes of action (col-
lectively, ‘Claims’) that relate in any way to the Parties’ em-
ployment relationship or to the Employee’s performance of
work for the Employer’s clients, whether based in contract,
tort, fraud, misrepresentation state or federal statutory law, or
any other legal theory, shall be submitted to binding arbitra-
tion administered by the American Arbitration Association in
accordance with the National Rules for the Resolution of Em-
ployment Disputes. The Rules are available online at
www.adr.org. You can also call the American Arbitration
Association at (888) 774-6904, if you have questions about
E. A. RENFROE & CO. 9
the arbitration process. If the National Rules for the Resolu-
tion of Employment Disputes are inconsistent with the terms
of this Agreement, the terms of this Agreement shall govern.
3. Covered Claims. The Parties are mutually obligated to ar-
bitrate all Claims arising out of or relating to their employ-
ment relationship. This Agreement covers all Claims in a
federal, state, or local court or agency under applicable feder-
al, state or local laws, arising out of or relating to Employee’s
employment with Employer, performance of work for the
Employer’s clients, or the termination of Employee’s em-
ployment. This includes any Claims Employee may have
against Employer, Employer’s clients, or against Employer’s
or its clients’ officers, directors, supervisors, managers, em-
ployees, or agents in their capacity as such or otherwise. Em-
ployee acknowledges that Employee’s performance of work
for Employer’s clients is an integral component of Employ-
ee’s work for Employer and specifically agrees that Employ-
er’s clients, as well as the client’s officers, directors, supervi-
sors, managers, employees, and agents are third party benefi-
ciaries of this Agreement. This Agreement also includes any
Claims that Employer may have against Employee. The
Claims covered by this Agreement include, but are not limited
to: (1) claims for breach of any contract or covenant (express
or implied); (2) tort claims; (3) claims for wrongful termina-
tion (constructive or actual) in violation of public policy; (4)
claims for discrimination or harassment, including, but not
limited to, harassment or discrimination based on race, color,
sex, gender, religion, national origin, alienage or citizenship
status, creed, age, marital status, partnership status, military
status, predisposing genetic characteristics, medical condition,
psychological condition, mental condition, criminal accusa-
tions or convictions, disability, sexual orientation, or any other
trait or characteristic protected by federal, state or local law;
and (5) claims for violation of any federal, state, or other gov-
ernmental law, statute, regulation, or ordinance, including, but
not limited to, all claims arising under Title VII of the Civil
Rights Act, the Age Discrimination in Employment Act, the
Americans With Disabilities Act, the Fair Labor Standards
Act, the Consolidated Omnibus Budget Reconciliation Act of
1985, the Employee Retirement Income Security Act, the
Equal Pay Act, the Civil Rights Act of 1991, 42 U.S.C. ‘
1981, the Sarbanes-Oxley Act of 2002, the Worker Adjust-
ment and Retraining Notification Act, the Uniformed Services
Employment and Reemployment Rights Act, the Genetic In-
formation Nondiscrimination Act, and claims for wages or
other compensation due (‘Covered Claims’). The Parties also
specifically agree that the Covered Claims include all Claims
under the California Labor Code and the California Wage Or-
ders, including, but not limited to, claims for overtime, unpaid
wages, and claims involving meal and rest breaks.
4. Claims Not Covered. This Agreement does not cover
claims for workers’ compensation, unemployment compensa-
tion benefits, or any other claims that, as a matter of law, the
Parties cannot agree to arbitrate. The Parties agree that either
party shall be entitled to seek injunctive or other equitable re-
lief in a court of competent jurisdiction for any alleged breach
of the Parties’ Employment Agreement, enjoining any such
breach. Unless otherwise agreed by the Parties, however, any
claim for monetary damages associated with such alleged
breach must be pursued by the parties through binding arbitra-
tion. Nothing in this Agreement shall be interpreted to mean
that employees are precluded from filing complaints with a
federal agency, such as the Department of Labor, the Equal
Employment Opportunity Commission, the National Labor
Relations Board, or any equivalent state agency.
5. Waiver of Class Action and Representative Action Claims.
Except as otherwise required under applicable law, the Parties
agree that class action and collective action procedures are
waived, and shall not be asserted, nor will they apply, in any
arbitration (or dispute adjudicated in any other forum) pursu-
ant to this Agreement. Employee agrees that Employee will
not serve as a representative member of any class or collective
action, or participate in any class action or collective action
claim or procedure instigated by any other person. The Par-
ties also agree that, to the extent permitted by law, they will be
precluded from asserting in arbitration, or any other forum,
any representative claims. This Waiver of Class Action and
Representative Action Claims and the Waiver of Trial by Jury
in Section 6 of this Agreement shall also apply to all claims
by Employee against Employer’s clients as well as the clients’
officers, directors, supervisors, managers, employees and
agents.
6. Waiver of Trial by Jury. The Parties understand and fully
agree that, by entering into this Agreement, they are giving up
their constitutional right to have a trial by jury and are giving
up their normal rights of appeal except as governing law pro-
vides for judicial review of arbitration proceedings. The par-
ties anticipate that by entering into this Agreement, they will
gain the benefits of a faster and less expensive dispute resolu-
tion procedure.
7. Claims Procedure. Either party may initiate arbitration by
providing express written notice to the other party. The initi-
ating party must give written notice of any claim to the other
party. Written notice of an Employee’s claim shall be mailed
by certified or registered mail, return receipt requested, to the
Employer’s General Counsel at 1600 Corporate Drive, Bir-
mingham, AL 35242 (‘Notice Address’). Written notice of
the Employer’s claim will be mailed to the last known address
of Employee. The written notice shall identify and describe
the nature of all claims asserted and the facts upon which
those claims are based. Written notice of arbitration shall be
initiated within the greater of one year from the date of the in-
cident giving rise to the Claim or the statutory limitations pe-
riod that governing law applies to the Claim.
8. Arbitrator Selection. The Arbitrator shall be selected as
provided in the National Rules for the Resolution of Em-
ployment Disputes.
9. Arbitration Procedures. As stated, the National Rules for
the Resolution of Employment Disputes shall generally gov-
ern any arbitration under this Agreement. Those rules not-
withstanding, any arbitration under this Agreement shall take
place in the state and county where the Employee resides at
the time of the arbitration. For claims of less than ten thou-
sand dollars ($10,000.00), the Employee shall be entitled to
elect for arbitration in person, by telephone, or by submis-
sions. In addition, either party may sue in small claims court
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
in lieu of arbitration, provided the claim fits within the scope
of the jurisdictional rules of the applicable small claims court.
10. Discovery. The American Arbitration Association rules
regarding discovery shall apply to arbitration under this
Agreement. The Arbitrator selected according to this Agree-
ment shall decide all discovery disputes.
11. Substantive Law. Unless otherwise required by the law
of the state in which the wrongful conduct is alleged to have
occurred, the Arbitrator shall apply federal law and the sub-
stantive law of the State of Alabama (including the law of the
State of Alabama as to remedies) as applicable to the claim(s)
asserted. The Arbitrator shall conduct and preside over an ar-
bitration of reasonable length, to be determined by the Arbi-
trator. The Arbitrator shall provide the parties with a written
decision explaining his or her findings and conclusions. The
Arbitrator shall have authority to grant any form of relief, in-
cluding injunctive relief, that would have been available to the
Parties had the Claim been litigated in a court of competent
jurisdiction.
12. Motions. The Arbitrator shall have jurisdiction to hear
and rule on prehearing disputes and is authorized to hold pre-
hearing conferences by telephone or in person as the Arbitra-
tor deems necessary. The Arbitrator shall have the authority
to set deadlines for completion of discovery and for filing mo-
tions for summary judgment, and to set briefing schedules for
any motions. The Arbitrator shall have the authority to adju-
dicate any cause of action, or the entire claim, pursuant to a
motion for summary adjudication and/or summary judgment,
and, in deciding the motion, shall apply Alabama law.
13. Compelling Arbitration/Enforcing Award. Either party
may bring an action in court to compel arbitration under this
Agreement and to confirm, vacate, or enforce an arbitration
award. Each party shall bear its own attorney fees and costs
and other expenses of such an action.
14. Arbitration Fees and Costs. The Employer shall be re-
sponsible for the arbitrator’s fees and expenses. Each party
shall pay its own costs and attorney’s fees, if any. If, howev-
er, the Employee prevails on a statutory claim which afford
the prevailing party attorney’s fees and costs, or if there is a
written agreement providing for attorneys’ fees and costs, the
Arbitrator may award reasonable attorneys’ fees and costs to
the prevailing Employee. The Employer shall not be entitled
to recover its attorney’s fees and costs. Any dispute as to the
reasonableness of any fee or costs shall be resolved by the
Arbitrator.
15. Term of Agreement. This Agreement shall survive the
termination of Employee’s employment. It may not be
changed, modified, or discharged orally, but only by an in-
strument in writing, that is signed by the Parties, which specif-
ically states an intent to revoke or modify the terms of this
Agreement.
16. Severability. If any provision of this Agreement is held
to be void or otherwise unenforceable, in whole or in part, the
void or unenforceable provision shall be severed and the ad-
judication shall not affect the validity of the remainder of this
Agreement.
17. Voluntary Agreement. By signing this Agreement the
Parties represent that they have been given the opportunity to
consult with counsel and to fully review, comprehend, and
negotiate the terms of this Agreement. The Parties understand
the terms of this Agreement and freely and voluntarily sign
this Agreement. The Parties understand and agree that this
Agreement does not alter the at-will nature of their employ-
ment relationship and that either the Employer or the Em-
ployee may terminate the employment relationship at any
time, with or without cause or notice.
IN WITNESS WHEREOF, the Parties have executed this
Agreement as of the Effective Date above.
[Signature lines omitted.]
Agreement Sent to Project Employees
As noted above, Respondent required its home office em-
ployees to sign this agreement. However, Charging Party Ad-
ams was not a home office employee but one of Respondent’s
“project employees,” those sent out to work at various clients’
offices. On February 17, 2016, 4 weeks after it issued arbitra-
tion agreements to its home office employees, the Respondent
sent arbitration agreements to its project employees.1
The arbitration agreement given to project employees is not
identical in all respects with that given to home office employ-
ees, but the wording of the two documents is quite similar and I
discern no difference having legal significance. Although the
agreement given to home office employees has been set forth
above in its entirety, it suffices here to quote verbatim only
those portions of the project employees’ agreement specifically
quoted in the complaint.
As alleged in complaint paragraph 4(b), the arbitration
agreement which Respondent sent to its project employees on
February 17, 2016 included the following “Mandatory Arbitra-
tion” clause:
Mandatory Arbitration. The Parties agree that all grievanc-
es, claims, complaints, disputes, or causes of action (collec-
tively, “Claims”) that relate in any way to the Parties’ em-
ployment relationship or to the Employee’s performance of
work for the Employer’s clients, whether based in contract,
tort, fraud, misrepresentation, state or federal statutory law, or
any other legal theory, shall be submitted to binding arbitra-
tion administered by the American Arbitration Association in
accordance with the Employment Arbitration Rules and Me-
diation Procedures. The Rules are available online at
www.adr.org. You can also call the American Arbitration
Association at (888) 774-6904 if you have questions about the
arbitration process. If the Employment Arbitration Rules and
Mediation Procedures are inconsistent with the terms of this
Agreement, the terms of this Agreement shall govern.
The arbitration agreement which the Respondent sent to its
project employees on February 17, 2016 also includes language

1 Because the project employees were working away from the home
office at various clients’ places of business, the Respondent transmitted
the agreement to them electronically and allowed the employees to
“sign” them electronically.
E. A. RENFROE & CO. 11
purporting to waive the employee’s right to use “class action”
or “collective action” procedures. Complaint paragraph 4(c)
alleges, the Respondent has admitted, and I find, that this
agreement includes the following language:
Waiver of Class Action and Representative Action
Claims. Except as otherwise required under applicable law,
the Parties agree that class action and collective action proce-
dures are waived, and shall not be asserted, nor will they ap-
ply, in any arbitration (or dispute adjudicated in any other fo-
rum) pursuant to this Agreement. Employee agrees that Em-
ployee will not serve as a representative member of any class
or collective action, or participate in any class action or col-
lective action claim or procedure instigated by any other per-
son. The Parties also agree that, to the extent permitted by
law, they will be precluded from asserting in arbitration, or
any other forum, any representative claims. This Waiver of
Class Action and Representative Action Claims and the
Waiver of Trial by Jury in Section 6 of this Agreement shall
also apply to all claims by Employee against Employer’s cli-
ents as well as the clients’ officers, directors, supervisors,
managers, employees, and agents.
The arbitration agreement does not define what it means by
“collective action.” A labor lawyer might well understand the
term to refer to a lawsuit brought pursuant to Section 216(b) of
the Fair Labor Standards Act, which states, in part, “An action
to recover the liability prescribed in either of the preceding
sentences may be maintained against any employer … by any
one or more employees for and in behalf of himself or them-
selves and other employees similarly situated. No employee
shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is
filed in the court in which such action is brought.” 29 U.S.C. §
216(b). Such a “collective action” under the Fair Labor Stand-
ards Act therefore bears a resemblance to a class action under
Rule 23 of the Federal Rules of Civil Procedure.
Presumably, most of the Respondent’s employees are not la-
bor lawyers and therefore would not reflexively associate the
words “collective action” with the Fair Labor Standards Act.
At one point, the arbitration agreement does mention this stat-
ute, but does so in a list of laws which might be the source of
claims. However, the arbitration agreement does not specifical-
ly associate the words “collective action” with that statute.
Therefore, I conclude that employees reading the arbitration
agreement reasonably would believe that “collective action”
referred to any legal action brought by or seeking a remedy for
more than one employee.
In addition to the waiver language quoted above, this arbitra-
tion agreement created an obligation for the Respondent and the
employee to arbitrate “all Claims arising out of or relating to
their employment relationship” followed by a further descrip-
tion of some types of claims. This obligation to arbitrate ap-
pears in a clause titled “Covered Claims” which is quoted in the
complaint. Specifically, complaint paragraph 4(d) alleges, the
Respondent has admitted, and I find, that the agreement in-
cludes the following:
Covered Claims. The Parties are mutually obligated to arbi-
trate all Claims arising out of or relating to their employment
relationship. This Agreement covers all Claims in a federal,
state, or local court or agency under applicable federal, state,
or local laws, arising out of or relating to Employee’s em-
ployment with Employer, performance of work for the Em-
ployer’s clients, or the termination of Employee’s employ-
ment. This includes any Claims Employee may have against
Employer, Employer’s clients, or against Employer’s or its
clients’ officers,2 directors, supervisors, managers, employees,
or agents in their capacity as such or otherwise. Employee
acknowledges that Employee’s performance of work for Em-
ployer’s clients is an integral component of Employee’s work
for Employer and specifically agrees that Employer’s clients,
as well as the clients’ officers, directors, supervisors, manag-
ers, employees, and agents are third party beneficiaries of this
Agreement. This Agreement also includes any Claims that
Employer may have against Employee. The Claims covered
by this Agreement include, but are not limited to: (1) claims
for breach of any contract or covenant (express or implied);
(2) tort claims: (3) claims for wrongful termination (construc-
tive or actual) in violation of public policy; (4) claims for dis-
crimination or harassment, including, but not limited to, har-
assment or discrimination based on race, color, sex, gender,
religion, national origin, alienage or citizenship status, creed,
age, marital status, partnership status, military status, predis-
posing genetic characteristics, medical condition, psychologi-
cal condition, mental condition, criminal accusations or con-
victions, disability, sexual orientation, or any other trait or
characteristic protected by federal, state, or local law; and (5)
claims for violation of any federal, state, or other governmen-
tal law, statute, regulation, or ordinance, including, but not
limited to, all claims arising under Title VII of the Civil
Rights Act, the Age Discrimination in Employment Act, the
Americans With Disabilities Act, the Fair Labor Standards
Act, the Consolidated Omnibus Budget Reconciliation Act of
1985, the Employee Retirement Income Security Act, the
Equal Pay Act, the Civil Rights Act of 1991, 42 U.S.C. §
1981, the Sarbanes-Oxley Act of 2002, the Worker Adjust-
ment and Retraining Notification Act, the Uniformed Services
Employment and Reemployment Rights Act, the Genetic In-
formation Nondiscrimination Act, and claims for wages or
other compensation due (“Covered Claims”). The Parties also
specifically agree that the Covered Claims include all Claims
under the California Labor Code and the California Wage Or-
ders, including, but not limited to, claims for overtime, unpaid
wages, and claims involving meal and rest breaks.
The March 29, 2016 Clarification
Based on the parties’ stipulation, I find that on March 29,
2016, the Respondent sent a revised arbitration agreement to
employees, including the Charging Party, who had not signed
an arbitration agreement. This new agreement resembled the
previous agreements but also included new language to make

2 Although the complaint’s excerpt of the arbitration agreement uses
“officer” at this point, the actual arbitration agreement, in evidence as
Joint Exhibit 3, uses the plural, “officers.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
clear that it did not bar employees from filing complaints with
the Board or other government agencies:
Complaints to Federal Agencies Not Precluded. Nothing in
this Agreement shall be interpreted to mean that Employee is
precluded from filing complaints with a federal agency, such
as the Department of Labor, the Equal Employment Oppor-
tunity Commission, the National Labor Relations Board, or
any equivalent state agency.
Also on March 29, 2016, the Respondent issued a memo to
employees who had signed an earlier arbitration agreement.
This memo stated that nothing in the arbitration agreement
would be interpreted as preventing employees from filing com-
plaints with the National Labor Relations Board.
Based on the parties’ stipulation, I also find that, in addition
to sending the Charging Party a copy of the revised agreement,
it also informed her, by April 5, 2016 email, that if she signed
this revised agreement she would be “eligible for deployment to
future projects.” However, the Charging Party did not sign and,
as noted above, the Respondent has not given her a work as-
signment.
Legal Effects of Arbitration Agreement
Based on the plain language of the arbitration agreement,3
quoted above, I conclude that the arbitration agreement per-
formed two separate and distinct functions: (1) It established a
mechanism for grievance arbitration analogous to the grievance
procedures unions and employers commonly negotiate and
place in their collective-bargaining agreements. (2) It served as

3 The complaint uses the singular, “Arbitration Agreement” and I
follow that practice here. However, the Respondent issued one agree-
ment to its home office employees on January 20, 2016 and a separate
agreement to its project employees on February 17, 2016. Both agree-
ments are titled “Mutual Agreement to Arbitrate Employment Related
Disputes,” the only difference being that the agreement for project
employees includes a hyphen between “Employment” and “Related.”
Complaint paragraph 4(a) alleges that the Respondent “has main-
tained a mandatory arbitration agreement entitled ‘Mutual Agreement
to Arbitrate Employment Related Disputes’ since at least February 17,
2016.” The absence of a hyphen between “Employment” and “Relat-
ed” suggests that complaint paragraph 4(a) was referring to the agree-
ment for home office employees but the February 17, 2016 date sug-
gests that it was referring to the agreement for project employees.
However, the modifier “at least” makes it possible that complaint para-
graph 4(a) referred to both agreements.
Complaint paragraphs 4(b), 4(c) and 4(d) allege that the Respondent
maintained in the arbitration agreement specific quoted clauses since
“at least” February 17, 2016. Again, the February 17 date suggests that
the complaint is referring to the provisions of the agreement for project
employees but the words “at least” open the possibility that the com-
plaint language refers to both agreements.
The language in the two agreements is quite similar and I discern no
material differences. Because the complaint used the phrase “at least”
to modify February 17, 2016, I conclude that the complaint refers to
both the agreement for home office employees and the agreement for
project employees.
This decision will follow the complaint’s use of the singular form,
but with the express understanding that the term “arbitration agree-
ment” refers here to both the agreement for home office employees and
the agreement for project employees.
a legal means which the Respondent could use, if sued, to re-
move the lawsuit from the court and instead submit the issues
to an arbitrator for resolution.
As described above, the arbitration agreement required the
employee to waive the right to engage in concerted activity, but
the nature of the concerted activity associated with the agree-
ment’s first function differs from the concerted activity associ-
ated with the agreement’s second function. One type of con-
certed activity relates to employee participation in the griev-
ance arbitration procedure which the agreement established for
the workplace. The other type of concerted activity relates to
the agreement’s functioning not in the workplace but in the
judicial context.
In the workplace, typical concerted activity could involve
two or more employees filing and presenting a joint grievance
to an arbitrator. It also might involve one employee filing a
grievance not only on her own behalf but also seeking a remedy
for her coworkers.
In the judicial context, the concerted activity could involve
two or more employees jointly filing a lawsuit in which they
were named as plaintiffs. Concerted activity could also involve
an employee filing a lawsuit without any co-plaintiffs but seek-
ing a remedy on behalf of other employees as well as herself.
A related form of concerted activity would involve an employ-
ee filing a lawsuit and seeking to proceed on a class action
basis. (As discussed below, to say that such activity is “con-
certed” does not resolve whether it was also protected by the
Act, which the Respondent disputes.) The concerted activity
also could involve an employee participating as a class member
in a class or collective action lawsuit filed by another employ-
ee.
Here, the General Counsel must do more than show that the
Respondent required employees to waive the right to engage in
activity which was concerted because the Act does not protect
all forms of concerted activity. In this case, the government
must prove that such concerted activity also was protected ac-
tivity.
A finding that the Act protects a particular kind of concerted
activity leads to the conclusion that employees have a statutory
right to engage in such activity. And if the Act gives employ-
ees the right to engage in this activity, their employer cannot
require them to waive that right as a condition of employment.
For example, employees have the right to join a union. It is
unlawful for an employer to take a job applicant renounce that
right as a condition of being hired.4

4 See, e.g., Bon Harbor Nursing & Rehabilitation Center, 348
NLRB 1062 (November 3, 2006) (unlawful to require employees who
had engaged in a concerted protest to promise, as a condition of rein-
statement, that they would not do it again); McKesson Drug Co., 337
NLRB 935 (2002) (employee had been suspended for filing unfair labor
practice charge and it was unlawful to condition his reinstatement on a
promise not to file future charges); Senior Citizens Coordinating Coun-
cil of Riverbay Community Inc., 330 NLRB 1100 (2000) (unlawful to
require employees to retract their protected concerted activities or else
be discharged); Bethany Medical Center, 328 NLRB 1094 (1999) (un-
lawful to require employee to waive the right to engage in a lawful
walkout as a condition of rehire); Aroostook County Regional Oph-
thalmology Center, 317 NLRB 218 (1995) enf. sub nom Aroostook
E. A. RENFROE & CO. 13
In the present case, the General Counsel alleges that the Re-
spondent required employees to waive their right to engage in
protected activity as a condition of receiving work. The Re-
spondent does not deny that it required the waiver, but defends
by stating that the right waived was not one protected by the
Act. To analyze the allegation and the defense, I must first
determine what activity is at issue and whether the Act gave the
employee the right to engage in this activity.
As discussed above, the waiver in the arbitration agreement
applies to two different types of concerted activity and it is
possible that the Act protects one type but not the other. It is
also possible that the Act protects both or neither.
Because the two types of concerted activity are different,
I will examine them separately. First, I will consider
whether the Act protects the employees’ right to file joint
grievances or for one employee to file a grievance seek-
ing a remedy for other employees besides herself. Next,
I will examine concerted activity in the judicial context.
Do Employees Have A Right to File a Joint Grievance?
a. The Agreement Establishes a Grievance Arbitration
Procedure
Before discussing whether the Act gives employees the right
to file a joint grievance, I should first explain my conclusion
that the arbitration agreement establishes a grievance arbitration
procedure. Various terms of the arbitration agreement lead to
this conclusion.
At the outset of the agreement, the parties make clear that
they are establishing such a comprehensive grievance resolu-
tion procedure: “The Parties intend for this Agreement to gov-
ern the resolution of all disputes, claims, and other matters in
question arising out of or relating to the Parties’ employment
relationship.” Moreover, the “Covered Claims” clause states:
“The Parties are mutually obligated to arbitrate all Claims aris-
ing out of or relating to their employment relationship.” (Em-
phasis added.)
In drafting the arbitration agreement, Respondent defined its
scope to include all workplace matters. However, most work-
place disputes involve issues which, although important to
those involved, would never prompt a lawsuit or be considered
important enough to justify a lawsuit. If the Respondent had
intended the agreement only to be a device to remove lawsuits

County Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C.
Cir. 1996); Retlaw Broadcasting Co., A Subsidiary of Retlaw Enter-
prises, Inc., d/b/a KJEO-TV, Channel 47, 310 NLRB 984 (1993) enf.
sub nom Retlaw Broadcasting Co. v. NLRB, 53 F.3d 1002 (9th Cir.
1995) (unlawful to condition reinstatement on employee’s waiving
right to file grievances in the future); Beverly Health & Rehabilitation
Services, 346 NLRB 1319 (2006) (unlawful to condition hire on appli-
cant’s willingness to cross picket line); Penn Tank Lines, Inc., 336
NLRB 1066 (2001) (unlawful to condition reinstatement on refraining
from union activities); Pratt Towers, Inc., 338 NLRB 61 (2002) (condi-
tioning employment of former strikers on their renouncing or abandon-
ing union constituted unlawful “yellow dog” contract); Davey Roofing,
Inc., 341 NLRB 222 (2004) (unlawful to promise a discharged employ-
ee that if he removed his name from a union petition a company official
would help him get his job back).
from court, it could have used narrower language which re-
flected that intent. Instead, the agreement described the parties’
intent in broad terms.
The expansive scope of the arbitration agreement is also
manifest in the “Mandatory Arbitration” clause: “The Parties
agree [to resolve through arbitration] all grievances, claims,
complaints, disputes, or causes of action (collectively,
‘Claims’) that relate in any way to the Parties’ employment
relationship or to the Employee’s performance of work for the
Employer’s clients. . .” (Emphasis added.) In particular, those
words—“that relate in any way”—leave little doubt that the
parties intended the scope to be comprehensive and not limited
to matters which would warrant litigation in court.
The “Covered Claims” clause of the arbitration agreement
also includes language broader than that which would be neces-
sary if the intent were only to remove lawsuits from court. The
clause specifically covers “claims for discrimination or harass-
ment, including, but not limited to, harassment or discrimina-
tion based on. . .” followed by a long list of possible reasons for
such harassment or discrimination. If the sole purpose of the
arbitration agreement had been to divert lawsuits, the “Covered
Claims” language could have been tailored more narrowly to
apply only to those matters for which a cause of action existed.5
Most tellingly, the arbitration agreement specifically states
that it covers “all grievances.” The parties’ use of the word
“grievances” strongly suggests that they did not intend their
agreement to apply only to lawsuits or potential lawsuits in
State or Federal court.
In labor relations, the word “grievance” is a term of art
which refers to a work-related dispute to be resolved through a
contractual procedure, typically a process culminating in bind-
ing arbitration. Although terms such as “claim” and “com-
plaint” easily could include pleadings in a lawsuit, a labor law-
yer rarely if ever would speak of commencing a lawsuit by
filing a “grievance” with the court. Such usage would feel
uncomfortably strange on the tongue.
In labor relations, a “grievance” often concerns a workplace
issue which, by itself, would not warrant spending the money
and time required to file a lawsuit. Some grievances, such as
those pertaining to work schedules or assignments, may not
have direct monetary consequences at all.
Additionally, the arbitration agreement specifically lists what

5 For example, the Federal Americans With Disabilities Act defines
“disability” to mean, “with respect to an individual (A) a physical or
mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment … “ 42 U.S.C. § 12102.
By comparison, the Respondent’s arbitration agreement includes,
among covered claims, discrimination based on “medical condition,
psychological condition, mental condition . . . disability . . . .” Not
every medical, psychological or mental condition constitutes a “disabil-
ity.” If the Respondent had intended the terms “medical condition,”
“psychological condition” and “mental condition” to mean the same
thing as “disability,” it presumably would not have included the sepa-
rate term “disability” as well. Thus, the arbitration agreement’s broad
language indicates that it covers discrimination based on medical and
psychological conditions not severe enough to meet the law’s definition
of “disability.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
it does not cover, namely “claims for workers’ compensation,
unemployment compensation benefits, or any other claims that,
as a matter of law, the Parties cannot agree to arbitrate.” Pre-
sumably, if the parties had not wished to include workplace
grievances, they would have listed “grievances” among the
matters not covered. Instead, the agreement specifically stated
that grievances were covered.
Thus, it is not necessary to go beyond the four corners of the
agreement to conclude that it established a procedure for re-
solving workplace grievances as well as matters which other-
wise would result in a lawsuit.6 The parties therefore did more
than agree to sidetrack lawsuits. They established a grievance
arbitration mechanism equivalent to those common in labor
relations and typically found in collective-bargaining agree-
ments.
Moreover, because of the nature of the Respondent’s busi-
ness, the contractual grievance resolution procedure provides
unique benefits to both the Respondent and its employees. The
Respondent provides temporary workers to clients who need
additional staff for short periods of time. This unusual working
environment can complicate the resolution of workplace prob-
lems.
For example, the arbitration agreement specifically covers
allegations of harassment, including sexual harassment. Ad-
dressing and remedying such harassment can be particularly
difficult when the harassed employees are temporary employ-
ees.
Consider the following hypothetical situation: A “temp
agency” like the Respondent sends Employee A and Employee
B to a client’s business, where they work under the direction of
one of the client’s supervisors. The supervisor engages in sex-
ual harassment which creates a hostile working environment.7
The temporary employee reasonably would feel reluctant to
complain to the client’s management because the client easily
could tell the temp agency to send someone else. However, if
the temporary employee complains to her own employer, the
temp agency, it places the temp agency’s management in a
difficult position.
The temp agency’s management must decide whether to be-

6 The agreement’s language is unambiguous. However, assuming
for the sake of analysis that its provisions reasonably could be inter-
preted in more than one way, common law principles of contract inter-
pretation should apply. The Respondent drafted the arbitration agree-
ment. Moreover, as documented by its email correspondence with
Charging Party Adams, the Respondent refused to alter the document
even though Adams proposed and requested specific changes. In such
circumstances, any ambiguity should be construed against the interest
of the drafting party. Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 62 (1995).
7 This hypothetical is not unrealistic because, during a relatively
short time period, a temporary employee will work at many different
businesses and under the direction of many more different supervisors
than someone employed permanently at one location. The temporary
worker therefore stands a greater chance of encountering the one rotten
apple. That would be true statistically even apart from an aggravating
factor: The harassing supervisor can create an environment so hostile it
drives away permanent employees, creating a recurring need for tempo-
rary staff.
lieve the agency’s own employee or to believe the client’s su-
pervisor, who denies engaging in harassment. Regardless of
the truth of the allegations, the temp agency will not wish to
anger the client, and risk losing the client’s business, by making
accusations against the supervisor. To protect the employee,
the temp agency would have to take a stand which might cost it
the client’s business.
With an arbitration agreement, the temp agency no longer
has the unpleasant duty of deciding whether its own employee
or its client’s supervisor is telling the truth. Indeed, the temp
agency does not have to take a position regarding how the cli-
ent’s supervisor acted. If there is any criticism of that supervi-
sor’s conduct, such criticism will come from the arbitrator, not
the temp agency.
Thus, the establishment of a grievance arbitration procedure
benefits the Respondent. The fact that Respondent would de-
rive a benefit from establishing a grievance arbitration proce-
dure lends further support to the finding that the agreement it
drafted established such a procedure.
For all these reasons, and particularly based on the plain lan-
guage of the arbitration agreement, I find that the arbitration
agreement creates a mechanism for the routine resolution of
workplace issues similar to the grievance arbitration procedures
in collective-bargaining agreements.
b. Does the Act protect employees when they file joint griev-
ances or when one employee files a grievance seeking a remedy
for other employees?
Section 7 of the Act protects the right of employees to en-
gage in or refrain from engaging in union activities, and also
protects their right to “engage in other concerted activities for .
. . their mutual aid or protection.” 29 U.S.C. § 157. In consid-
ering employees’ Section 7 rights in the arbitration context, it is
appropriate to draw on the Board’s experience, which Congress
intended the Board to develop and apply in administering the
Act. Determining whether activity is concerted and protected
within the meaning of Section 7 is a task that “implicates [the
Board’s] expertise in labor relations.” NLRB v. City Disposal
Systems, Inc., 465 U.S. 822, 829 (1984).
Over 8 decades, the Board has observed the labor arbitration
process extensively, and from several different viewpoints. It
often must decide whether unfair labor practice proceedings
should be deferred to arbitration.8 Similarly, it often reviews
the awards of arbitrators to determine whether it should defer to
an award which an arbitrator already has issued, which involves
evaluating to what extent an arbitral award is consistent with or
repugnant to the Act.9 The Board also must consider what
weight to accord an arbitral award during an unfair labor prac-
tice proceeding. Additionally, the Board examines arbitral
awards in cases involving an allegation that a union did not
represent a grievant fairly during the arbitral process.10

8 See, e.g., Collyer Insulated Wire, 192 NLRB 837, 841 (1971).
9 See, e.g., Babcock & Wilcox Construction Co., 361 NLRB No.
132 (2014); Spielberg Manufacturing Co., 112 NLRB 1080, 1082
(1955).
10 See, e.g., Union de Obreros de Cemento Mezclado (Betteroads
Asphalt Corp.), 336 NLRB 972 (2001).
E. A. RENFROE & CO. 15
This experience provides the Board insight into the distinc-
tive nature of arbitration in the workplace and how it relates to
federal labor policy and the problems which Congress intended
the Act to address. Those objectives include the reduction of
industrial strife which burdens and obstructs commerce. Con-
gress described the Act’s purposes in Section 1, which includes
the following:
Experience has proved that protection by law of the right of
employees to organize and bargain collectively safeguards
commerce from injury, impairment, or interruption by en-
couraging practices fundamental to the friendly adjustment of
industrial disputes arising out of differences as to wages,
hours, or other working conditions, and by restoring equality
of bargaining power between employers and employees.
29 U.S.C. § 151.
Grievance arbitration is not merely one of the “practices fun-
damental to the friendly adjustment of industrial disputes” but
one of the most important. This orderly process takes the place
of more disruptive means of dispute resolution. Typically, a
collective-bargaining agreement which includes a no-strike
clause will also provide for binding arbitration, which takes the
place of striking to resolve disputes during the contract’s term.
Workplace arbitration also reduces divisive differences in
wages, hours or working conditions by assuring that all em-
ployees receive fair, equal and impartial treatment untainted by
bias or favoritism. An important means for reducing such ine-
qualities is the grievance which seeks relief for a number of
employees affected by the same work situation. Such a griev-
ance, seeking a remedy for more than one employee, is a key
means of making arbitration both efficient and fair.
In workplace arbitration, many grievances typically involve
claims by a class of employees rather than by individual em-
ployees. For example, if an employer fails to provide its paint
shop employees with respirators, it affects all employees in the
paint shop, not just one employee whose name appears on the
grievance. If a union filed a grievance only on behalf of one
complaining employee and sought a respirator for that one
worker alone, it would increase rather than reduce inequality.
If only the grieving employee received a respirator, leaving the
other employees without lung protection, it would heighten
workplace tensions which Congress intended to disperse.
The union could, of course, file an individual grievance on
behalf of each paint shop employee, but that would multiply the
time and expense consumed by arbitration. Additionally, if the
individual grievances went before different arbitrators, they
potentially might reach conflicting decisions. Thus, instead of
being a quick and economical means of dispute resolution,
arbitration would become slower and more expensive, and
might even increase inequality in the workplace.
In the present case, the Respondent requires employees to
“agree that class action and collective action procedures are
waived, and shall not be asserted, nor will they apply, in any
arbitration ….” This prohibition on “collective action” would
bar a grievance being filed on behalf of all similarly situated
employees and instead would require each employee to file her
own grievance.
The Respondent’s arbitration agreement goes even further.
It states:
Employee agrees that Employee will not serve
as a representative member of any class or col-
lective action, or participate in any class action
or collective action claim or procedure instigat-
ed by any other person. The Parties also agree
that, to the extent permitted by law, they will be
precluded from asserting in arbitration, or any
other forum, any representative claims. [Em-
phasis added.]
These prohibitions would preclude the type of grievance de-
scribed above in which a representative grievant seeks a reme-
dy not just for herself but also for fellow workers who are simi-
larly situated. It thus would change workplace arbitration from
being an economical and effective means of problem solving
into a cumbersome, expensive and ineffectual method.
Consider again the hypothetical situation described earlier:
The Respondent sends two of its employees—Employee A and
Employee B—to a client’s office, where they work under the
direction of the client’s supervisor. The supervisor engages in
sexual harassment which creates a hostile work environment
for both employees.
Employee A can file a grievance on her own behalf but, be-
cause of the arbitration agreement language quoted above, she
cannot seek a remedy for Employee B, who works right beside
her in the same hostile environment and is subject to the same
abuse. Because of this language, Employee B cannot even
participate in the arbitration of Employee A’s grievance if Em-
ployee A seeks a remedy for Employee B. These restrictions
gut workplace arbitration and leave only an impotent shell.
The arbitration agreement prohibits Employee A from help-
ing Employee B by seeking a remedy for Employee B in her
grievance. That restriction offends because the Act contem-
plates that employees will look out for each other, and it as-
sures their right to do so.
In legal terms, when employees look out for each other,
when they take steps not only for themselves but for their fel-
low workers as well, they are acting in concert for their “mutual
aid or protection.” The right to engage in such concerted ac-
tivity resides at the very heart of Federal labor policy.
The public may not always appreciate the centrality of this
principle—that employees have the right to act together for
their mutual aid or protection—because the law also protects
the employees’ right to form, join or assist labor organizations.
Union activities often involve appeals to the public, such as by
picketing, and therefore attract more attention. However, these
union activities are simply a subset within the broader category
of concerted activities which the law protects.
In Section 1 of the Act, Congress set forth its findings and
policies. In part, Congress attributed industrial strife to the
“inequality of bargaining power between employees who do
not possess full freedom of association or actual liberty of con-
tract” and large employers. 29 U.S.C. § 151. Congress de-
clared it to be the policy of the United States to eliminate the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
causes of “certain substantial obstructions to the free flow of
commerce . . . by encouraging the practice and procedure of
collective bargaining and by protecting the exercise by workers
of full freedom of association, self-organization, and designa-
tion of representatives of their own choosing, for the purpose of
negotiating the terms and conditions of their employment or
other mutual aid or protection.” 29 U.S.C. § 151 (italics added).
In Section 7 of the Act, Congress specifically stated that em-
ployees have the right to engage in “concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion . . . .” 29 U.S.C. § 157.
Thus, Congress expressly recognized and stated that an ine-
quality of bargaining power caused the industrial strife which
obstructed commerce. Congress found that the employees
could remedy this destructive inequality in power by acting
together in their mutual interest. Accordingly, the right of em-
ployees to act together provides the very foundation of our
national labor policy. In the workplace, an important locus of
this concerted activity is the grievance arbitration process. The
Congressional concern about inequality of bargaining power is
just as pertinent to arbitration as to negotiation.
Notwithstanding that arbitration is a means for the “friendly
adjustment” of workplace disputes, it is an adversarial process.
As such, it renders justice only when both parties have suffi-
cient resources to prepare and present their cases.
Although an employer typically has more money than any
particular employee, an employee grievant depends on the help
of other employees who make common cause with him and act
together. David does not face Goliath alone when other em-
ployees are standing with him.
Forcing employees to waive their right to assist the grievant
creates the inequality of power which Congress sought to elim-
inate. To prevent fellow workers from helping the grievant, or
to preclude them from joining in a common grievance for their
mutual aid and protection, makes David face Goliath all by
himself in a small, dark room.
In determining whether Section 7 gives employees the right
to act in concert during the grievance arbitration process, it is
helpful to examine how Section 7 protects concerted activities
in other contexts. For example, if two or more employees dis-
cuss their complaints about working conditions with one of
their employer’s customers, the Act protects them. Compuware
Corp. v. NLRB, 134 F.3d 1285 (6th Cir. 1998).
If two or more employees, seeking a change in working con-
ditions, seek the assistance of more influential members of their
organization, the Act protects them. Robert F. Kennedy Medi-
cal Center, 332 NLRB 1536 (2000) (nurses seeking the assis-
tance of staff physicians).
If two or more employees take their work-related complaint
to a supervisor, the Act protects them. Crowne Plaza Laguar-
dia, 357 NLRB 1097 (2011).
If two or more employees skip their immediate supervisor
and take their complaint about working conditions to officials
higher in the chain of command, the Act protects them. Gabri-
el Security Corporation, JD(SF)–104–99 (2000).
If two or more employees take their complaint about work-
ing conditions to their employer’s board of directors, the Act
protects them. Rhode Island Disability Law Center, JD–17–02
(2002).
If two or more employees protest working conditions by
picketing the employer’s stockholders’ meeting, the Act pro-
tects them. Engelhard Corp., 342 NLRB 46 (2004).
If two or more employees discuss working conditions on Fa-
cebook, the Act protects them. Bettie Page Clothing, 361
NLRB No. 79 (2014); Hispanics United of Buffalo, Inc., 359
NLRB 368 (2012).
If two or more employees testify on behalf of another em-
ployee at a state unemployment compensation hearing, the Act
protects them. Loyalhanna Care Center, 332 NLRB 933
(2000).
If two or more employees file a complaint alleging wage dis-
crimination with a state’s civil rights agency, the Act protects
them. Franklin Iron & Metal Corp., 315 NLRB 819 (1994),
enf. 83 F.3d 156 (6th Cir. 1996).
If the Act protects employees who seek the support of other
employees, if the Act protects employees who present work-
related complaints to their supervisor, if the Act protects em-
ployees who present such complaints to managers higher in the
chain of command, if the Act protects employees who present
complaints about working conditions to the employer’s board
of directors, if the Act protects employees who protest working
conditions to the employer’s shareholders, if the Act protects
employees who discuss their work-related complaints on Face-
book, and if the Act protects employees who testify on behalf
of another employee at an unemployment compensation hear-
ing, why wouldn’t the Act also protect two or more employees
who, together, take their work-related complaint to an arbitra-
tor? The Respondent has not offered any persuasive reason
why the Act would make an exception for concerted activity
related to grievance arbitration, and I can think of none.
The Board’s caselaw has revealed, over a period of 8 dec-
ades, that at least a few employers do not want their employees
to be empowered by acting in concert. These cases show that
such employers have resorted to various divide-and-conquer
tactics to make each employee an island. One such tactic in-
volves forcing employees to sign, as a condition of employ-
ment, individual agreements purporting to waive their right to
act together in the manner Congress contemplated.
Here, the Respondent has forced its employees to sign an
agreement which ostensibly provides for arbitration but does so
in a way which isolates employees from each other. Rather
than allowing arbitration to perform its customary function in
the workplace—providing a forum where employees and em-
ployer stand on an equal basis before the neutral decision-
maker—the arbitration agreement makes the employee go it
alone.
Requiring employees to waive the right to engage in concert-
ed activity through the grievance arbitration process resurrects
the inequality of power which existed before the Act’s passage.
In other words, the agreement targets a right which has been
protected by law for more than 8 decades. The elaborate legal
language hides this purpose no better than lipstick can disguise
a yellow dog.
In sum I conclude that Section 7 of the Act protects employ-
ees’ right to file and pursue a joint grievance through the griev-
ance arbitration process. Likewise, I conclude that Section 7
E. A. RENFROE & CO. 17
protects an employee’s right to file a grievance which seeks a
remedy for other employees, and an employee’s right to assist
another employee in the preparation and presentation of a
grievance, to testify on the other employee’s behalf, to repre-
sent the other employee at the arbitration, and otherwise to
participate in the arbitration.
It may be noted that in reaching these conclusions, I need not
and do not rely on the D. R. Horton line of precedent discussed
below. Instead, I base that conclusion on the Board’s decisions
cited above.
Section 7 and Lawsuits
The arbitration agreement which the Respondent required
employees to sign does more than establish a workplace arbitra-
tion process. It provides a legal tool which the Respondent can
use if sued by an employee. In that event, the Respondent can
invoke the arbitration agreement and seek a court order divert-
ing the matter to arbitration, thereby denying the plaintiff a trial
before judge and jury. In seeking such a court order, the Re-
spondent would cite and rely upon the Federal Arbitration
Act.11
For clarity, it is important to stress that the Respondent’s ar-
bitration agreement includes two different lawsuit waivers but
only one of them is at issue here. The arbitration agreement
requires an employee to give up the right to file any kind of
lawsuit solely on her own behalf, and it also requires her to
waive the right to file or participate in a class action or collec-
tive action lawsuit.
Requiring the first kind of waiver—of the employee’s right
to file a lawsuit only on her own behalf—is lawful. No one
here disputes that an employer can condition employment on a
worker’s signing a waiver of the right to file a lawsuit on her
own behalf. Accordingly, the government does not allege this
individual waiver to be a violation.
One employee filing such a lawsuit by herself and seeking
relief for herself alone is engaging only in individual activity
which the Act does not protect. However, according to the
General Counsel, when two or more employees file a lawsuit
together, they are engaged in concerted activity for their mutual
aid or protection and therefore enjoy the Act’s protection.
Likewise, the government argues, an employee who files a
class action on behalf of other employees is engaged in protect-
ed concerted activity.
The General Counsel contends that the Respondent violated
the Act by denying employees any forum in which they could
act in concert in bringing their work-related claims before a
decision-maker. The Respondent forces grieving employees to

11 Section 3 of the Federal Arbitration Act states:
If any suit or proceeding be brought in any of the courts of the United
States upon any issue referable to arbitration under an agreement in
writing for such arbitration, the court in which such suit is pending,
upon being satisfied that the issue involved in such suit or proceeding
is referable to arbitration under such an agreement, shall on applica-
tion of one of the parties stay the trial of the action until such arbitra-
tion has been had in accordance with the terms of the agreement,
providing the applicant for the stay is not in default in proceeding with
such arbitration.
9 U.S.C. § 3.
go it alone and that, the General Counsel asserts, violates the
Act.
The government grounds this argument in a line of Board
decisions which begins with D. R. Horton, Inc., 357 NLRB
2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir.
2013). The General Counsel’s brief states:
In D.R. Horton, 357 NLRB at 2277, the Board found that an
employer violates Section 8(a)(1) of the Act by imposing, as a
condition of employment, a mandatory arbitration agreement
that precludes employees from “filing joint, class, or collec-
tive claims addressing their wages, hours, or other working
conditions against the employer in any forum, arbitral or judi-
cial.” 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 many other cases, the Board noted that such con-
certed legal action addressing wages, hours, and working
conditions has consistently fallen within Section 7’s protec-
tions. Most recently, in Murphy Oil USA, Inc., 361 NLRB
No. 72, slip op. at 1–2 (2014), enf. denied in relevant part, 808
F.3d 1013 (5th Cir. 2015), the Board adopted and reaffirmed
the rationale and decision in D.R. Horton. The Murphy Oil
Board found that the respondent violated Section 8(a)(1) of
the Act by requiring its employees to sign mandatory arbitra-
tion agreements obligating them to resolve all employ-
ment-related disputes through individual arbitration.
The Respondent’s brief, in contrast, noting that the United
States Court of Appeals for Fifth Circuit denied enforcement in
both the D. R. Horton and Murphy Oil cases, argues that the
Board should rethink and reject the reasoning in those cases:
Section 7 does not import procedures from other statutes or
rules and convert them into substantive rights. Furthermore,
the Federal Arbitration Act requires that arbitration agree-
ments like the Project Employee Agreement be enforced ac-
cording to their terms. Based on this overwhelming rejection,
it is time to repudiate D.R. Horton I and to recognize that em-
ployers may include class and collective-action waivers in
mandatory arbitration agreements without violating the Act.
However, the Respondent’s argument essentially creates a
“straw man” and then knocks it over. It rests on the assumption
that the General Counsel is claiming that Section 7 creates a
right for employees to avail themselves of the class action pro-
visions in the Federal Rules of Civil Procedure (or similar rules
in other courts) or of the collective-action procedures provided
in the Fair Labor Standards Act. However, I do not understand
the General Counsel to be making such an argument.
Although the General Counsel’s brief does allude to “class
action” lawsuits, the underlying principle does not involve an
employee’s “right” to invoke the court rules allowing class
actions. The cases cited by the General Counsel leave no doubt
that the government rests its argument on a bedrock principle
established in the earliest days of the Act: Two or more em-
ployees have the right, when acting together, to file a lawsuit
against their employer over an issue concerning terms and con-
ditions of employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
The General Counsel thus cites Spandsco Oil & Royalty Co.,
42 NLRB 942 (1942). In that case, three employees had en-
gaged in union activity but also had acted together to file a
wage lawsuit against their employer. The Board found that the
employer unlawfully had discharged the three because of their
union activities. However, the employer argued that it really
had fired them not because of union activity but because they
had filed the lawsuit. The Board replied that even if “the dis-
charges were, as claimed by the respondent, the immediate
result of this [legal] action by the employees, we are of the
opinion and find that the joining of the three union members in
the suit constituted concerted activity protected by the Act and
that their discharge, for this reason, was violative of the Act.”
42 NLRB at 949.
More recent cases follow this principle. In Leviton Manufac-
turing Co., 203 NLRB 309 (1973), an employer discharged
employees who had filed a lawsuit against it. The employees
had been candidates for union office and the lawsuit alleged
that the employer unlawfully had interfered in this internal
union election and also alleged that the employer had interfered
with employee rights under the contractual grievance proce-
dure. The Board, reversing the administrative law judge, found
that the employer violated the Act by discharging them. “We
must conclude,” the Board wrote, “that the Respondent dis-
charged the four employees for filing the above-described civil
suit. This activity is protected under the Act unless this activity
was done with malice or in bad faith. In our view, the evidence
clearly failed to establish any malicious or bad-faith intent.
Accordingly, such discharges constituted interference, restraint
and coercion with respect to Section 7 rights and thus violated
Section 8(a)(1).” Leviton Manufacturing Co., 203 NLRB at 311
(citations omitted).
The Board reached a similar conclusion in Trinity Trucking
& Materials Corp., 227 NLRB 792 (1977), a case of particular
relevance here. Employees had sued their employer, and their
employer’s client, over wages. The employees’ lawsuit includ-
ed a claim for punitive damages and some rather strong nega-
tive language describing the employer’s alleged conduct. In a
letter, the employer gave them 48 hours to withdraw the allega-
tions that the defendants had acted “with intentional, malicious,
oppressive, and heedless disregard of the rights of the plaintiff”
and the prayer for punitive damages.
The Board, adopting the judge’s decision, found that the
lawsuit constituted protected concerted activity under the Act
and that the employer had not met its burden of showing that
the employees had acted with malice or in bad faith when they
filed the lawsuit. Accordingly, the Board found that the em-
ployer had violated Section 8(a)(1) of the Act both by threaten-
ing to discharge the employees if they did not withdraw parts of
the lawsuit, and by discharging them when they refused.
The Trinity Trucking case has particular relevance here. Un-
der the Respondent’s arbitration agreement, employees must
waive both the right to sue the Respondent and the right to sue
the Respondent’s clients. However, in Trinity Trucking, the
Board found that the employees’ lawsuit against both their
employer and the employer’s client constituted concerted activ-
ity protected by Section 7.
In Host International, 290 NLRB 442 (1988), the Board
found that the employer unlawfully had “refused to hire [appli-
cants] Rizzo and Sarubbi in 1985, not because they had previ-
ously been terminated for cause, but rather because of Rizzo’s
protected concerted activity in filing a lawsuit against the Re-
spondent in 1981 with other employees and because Rizzo and
Sarubbi had filed charges with the Board. . .” 290 NLRB at
442–443. See also Mohave Electric Cooperative, Inc. v. NLRB,
206 F.3d 1183 (D.C. Cir. 2000); Le Madri Restaurant, 331
NLRB 269 (2000).
Thus, over decades, the Board consistently has held that Sec-
tion 7 grants employees the right, acting in concert, to file a
lawsuit concerning their terms and conditions of employment.
This principle is not some novel innovation but well-
established law.
The crucial ingredient here is that employees are acting in
concert for their mutual aid or protection. A solitary employee,
filing a lawsuit only for her own personal benefit, does not
engage in such protected activity. But when two or more em-
ployees act together in filing a lawsuit concerning terms or
conditions of employment, that action enjoys the protection of
the Act unless done in malice or bad faith.
Moreover, when a solitary employee takes some action
which is not just for herself but on behalf of other employees as
well, that action does constitute protected concerted activity. It
is just as much protected concerted activity as when two em-
ployees act ensemble. Moreover, Section 7 protects the right of
one employee to act on behalf of other employees even if they
have not given her prior permission to do so. See, e.g., Salis-
bury Hotel, 283 NLRB 685 (1987). See also Citizens Invest-
ment Service Corp. v. NLRB, 430 F.3d 1195 (D.C. Cir. 2005),
citing Meyers Industries, Inc., 281 NLRB 882 (1986), aff’d sub
nom Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
In the present case, the parties’ briefs largely focus on this
second form of protected concerted activity, in which one em-
ployee takes action on behalf of other employees. The exten-
sive line of cases cited above clearly establishes that Section 7
gives two or more employees, acting together, the right to sue
their employer over a work-related matter. They have the right
to walk into the court clerk’s office, file a pleading listing their
names as plaintiffs, and proceed with the lawsuit. Because
Section 7 grants them this right to act in concert, an employer
cannot lawfully require them to waive it. But the question be-
ing debated in the briefs is whether the law protects one em-
ployee when she files a lawsuit on behalf of other employees as
well as herself.
Section 7 certainly protects her right to take many other
types of action on behalf of coworkers, actions such as filing a
grievance, or speaking out in public about working conditions,
or protesting to management about working conditions. So
long as she is doing so on behalf of other employees and not
just herself, the Act protects her. Then, why wouldn’t the law
protect her right to file a lawsuit seeking relief for other work-
ers as well as herself?
As I understand Respondent’s argument, it answers by say-
ing, “that would be a ‘class action,’ and Section 7 does not give
employees the right to file a class action.” However, such an
argument is wildly off the mark.
A plaintiff can seek a remedy for someone other than herself
E. A. RENFROE & CO. 19
without having to invoke Rule 23 of the Federal Rules of Civil
Procedure or some analogous class action rule under state law.
A plaintiff certainly can ask for and pursue a remedy for other
employees without seeking to certify a class. Indeed, in most
instances, an employer will not have enough employees to meet
the numerosity requirements of Rule 23.
Significantly, the Respondent’s arbitration agreement does
not merely force an employee to waive the right to file a class
action (under Rule 23 or otherwise) but much more broadly
requires the employee to relinquish the right to file any “repre-
sentative claim” for other workers. The Respondent’s attempt
to prevent one employee from representing another goes to the
very core of the rights protected by Section 7 of the Act, the
right of employees to look out for each other, to act in concert
for their mutual aid or protection.
The Respondent’s arbitration agreement forces employees to
give up much more than a right to use Rule 23 procedures.
Rather, it cuts to the quick. Nonetheless, the Respondent tries
to make a tangential, irrelevant matter central by claiming that
the issue concerns a supposed “right” to invoke a court’s class
action procedures. Thus, the Respondent’s brief states:
When the Board decided that § 7 protects the right to bring or
participate in class or collective actions, it analogized those
“rights” to the right to bring good faith, non-malicious law-
suits or administrative complaints. See D.R. Horton I, 357
N.L.R.B. at 2278 & n.4. The appropriate analysis, however,
is whether the Act protects the ability to access class-action
and collective-action procedures. Those procedures are gov-
erned by specific statutory provisions or procedural rules that
exist outside the Act. See 29 U.S.C. § 216(b) (FLSA); 29
U.S.C. § 626(b); Fed. R. Civ. P. 23 (class actions). Federal
courts, including the Supreme Court, have made clear that
there is no substantive right to access those procedures; any
such right is procedural only. See Deposit Guar. Nat’l Bank v.
Roper, 445 U.S. 326, 332 (1980).
The Respondent blows a smokescreen of confusion across
the field of analysis. Framing the issue as “whether the Act
protects the [employees’] ability to access class-action and
collective-action procedures” totally misapprehends the nature
of Section 7 of the Act.12 Section 7 does not create or “protect”

12 It both puzzles and concerns me that the Respondent, having read
the Board's D. R. Horton decision, would then argue that the "appropri-
ate analysis … is whether the Act protects the ability to access
class-action and collective-action procedures." In the D. R. Horton
decision itself, the Board clearly and unequivocally stated that the Act
did not confer an ability or entitlement to use such procedures.
Here, I do not wish to suggest either that the Respondent failed to
understand the plain meaning of the Board's words or that it deliberate-
ly ignored that meaning. Excluding those two possibilities, I must
assume that the Respondent wished somehow to challenge the Board's
description of its own holding.
A party certainly may argue that one of the Board's precedents does
not say what it really means or that it doesn't really mean what it says.
In the interest of clarity, however, a party embarking on such an argu-
ment should proceed very methodically, explaining all premises and
a right of access to class action or collective-action procedures.
Whether any employee is entitled to bring a collective-action
lawsuit is for the court to decide in accordance with its rules
and applicable law.
It should be stressed that in deciding whether or not a lawsuit
may proceed under the class action rules, the court examines
the specific facts of the individual case before it, and considers
whether these facts satisfy the requirements of the court rule.
As the facts differ, case by case, the court will reach different
conclusions. In some cases it will decide that the case does not
qualify for class action status, and in other cases it will decide
that the case does qualify. However, in making such decisions,
the court will not be looking at Section 7 of the Act because it
is irrelevant.
An employee’s Section 7 rights do not provide a rubber
stamp to mark “Approved for Class Action” on the pleadings.
However, since Section 7 does protect the right of two or more
employees to sue their employer concerning working condi-
tions, and likewise protects the right of one employee to sue if
seeking a remedy for other employees besides herself, it cer-
tainly would protect the right to take any of the ordinary steps
involved in a lawsuit, such as engaging in discovery or seeking
class certification. A court certainly may reply, “sorry, but you
don’t meet the standards,” but nonetheless, if the employees’
complaint relates to terms and conditions of employment, Sec-
tion 7 protects their right to ask.13
Also, consider this hypothetical situation. As the cases cited
above clearly establish, two or more employees most assuredly
have the Section 7 right to sue their employer concerning con-
ditions of employment, provided they are not acting with mal-
ice or in bad faith. Their employer lawfully cannot force them
to waive this right. Therefore, in this hypothetical, they are
present in the courtroom and enjoying the full protection of the
Act. In concert, they decide to amend their lawsuit and seek

logical steps. Otherwise, the argument is more likely to confuse than
persuade.
That may be the case here. The Respondent certainly seems to as-
sume a premise contrary to fact, namely, that the Board's D. R. Horton
decision rests on some conclusion that Section 7 creates an entitlement
to use class action procedures, but that is a conclusion which the deci-
sion expressly denies.
Such an argument necessarily would imply that the Board did not, in
D. R. Horton, mean what it said, but such an unusual premise needs to
be disclosed and justified, and cannot simply be assumed. Indeed, the
law must assume the opposite, that precedents ordinarily mean what
they state, because otherwise they provide no guidance.
Therefore, if the Respondent wishes to characterize the D. R. Horton
line of precedents as creating some Section 7 right to file a class action
lawsuit, it should address the following language which is directly to
the contrary: "Nothing in our holding guarantees class certification; it
guarantees only employees' opportunity to pursue without employer
coercion, restraint or interference such claims of a class or collective
nature as may be available to them under Federal, State or local law."
D. R. Horton, Inc., 357 NLRB 2277, 2286 fn. 24 (2012).
13 See California Commerce Club, 364 NLRB No. 31, slip op. at 1,
fn. 2 (June 16, 2016) ("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"), citing Murphy Oil USA, Inc., 361 NLRB
No. 72 (October 28, 2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
class certification. Is this concerted action, seeking class certi-
fication, somehow less protected by Section 7 than the concert-
ed activity of filing the lawsuit in the first place?
It would be absurd to hold that, although an employer law-
fully cannot force employees to give up their concerted right to
file a lawsuit about working conditions, it could indeed lawful-
ly require them to give up the right to engage in discovery, or to
subpoena witnesses, or to move for sanctions or to take any
other actions permitted under the applicable rules of procedure.
If an employer could require employees to waive the right to do
the customary and necessary things required in a lawsuit, then
their right concertedly to file a lawsuit becomes illusory, a hol-
low shell.
Respondent’s brief characterizes the “right” to bring class
actions as “procedural” rather than “substantive” but this very
characterization undercuts its argument. The substantive right,
the one which Section 7 protects, is the right of employees,
acting in concert, to sue their employer about terms and condi-
tions of employment. That right also includes the right of one
employee to bring such a lawsuit on behalf of other employees
because that, too, constitutes protected, concerted activity. The
Respondent cannot lawfully require their waiver.
Section 7 doesn’t give such plaintiffs an entitlement to use
class action procedures, but it does protect their right to take the
actions allowed under the court’s rules because the court’s rules
are available to and binding on every party to a lawsuit. An
employer lawfully cannot gut the employees’ concerted right to
file a lawsuit by making them give up the right to use the
court’s procedures. An employer who required such a waiver
not only would geld the employees’ Section 7 right to sue but
also would interfere with the court’s authority to manage its
own cases.
Moreover, and notwithstanding the arguments in the Re-
spondent’s brief, the real issue here does not concern class ac-
tion procedures but the fundamental Section 7 rights of em-
ployees to assert a work-related claim on behalf of other em-
ployees, the right of one worker to seek a remedy for other
employees besides herself. Although the Respondent’s argu-
ments focus on class actions, particularly under Rule 23 of the
Federal Rules of Civil Procedure, the Respondent’s arbitration
agreement forces employees to waive their rights in other con-
texts as well.
Significantly, the Respondent’s arbitration agreement pro-
vides an alternative to arbitration. The arbitration agreement
expressly provides that an employee may bring a claim for less
than $10,000 in small claims court.
Potentially, many claims will be decided by the small claims
court rather than an arbitrator. However, the arbitration agree-
ment still prohibits two or more employees from filing suit
together or for one employee to file a suit on behalf of any em-
ployer besides herself. It states that “the Parties agree that class
action and collective action procedures are waived, and shall
not be asserted, nor will they apply, in any arbitration (or dis-
pute adjudicated in any other forum) pursuant to this Agree-
ment.” (Emphasis added.)
For the reasons stated above, I have concluded that an em-
ployee reasonably would understand the term “collective ac-
tion” to apply not merely to lawsuits under the Fair Labor
Standards Act but to any lawsuit brought by more than one
employee or by one employee on behalf of other employees.
Therefore, an employee reasonably would understand the arbi-
tration agreement to prohibit two or more employees filing a
lawsuit together in small claims court. Similarly, an employee
reasonably would understand the prohibition to include one
employee filing a lawsuit on behalf of other employees. That
conclusion becomes inescapable because the arbitration agree-
ment also precludes “representative claims.” Thus, the arbitra-
tion agreement unlawfully requires employees to waive the
right to engage in concerted activities protected by Section 7 of
the Act.
The Respondent’s arguments about Federal law hardly are
convincing when the litigation is in a State small claims court.
However, I return to them now because they have the potential
for misdirection but the prestidigitation is not always obvious.
The Respondent’s brief cites Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 32 (1991) for the proposition that there is
“no right to class procedures” under the Age Discrimination in
Employment Act “despite the statute explicitly providing for
class procedures.” Additionally, the Respondent cites Ameri-
can Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304,
2309 (2013) for the proposition that Rule 23 of the Federal
Rules of Civil Procedure does not “establish an entitlement to
class proceedings for the vindication of statutory rights.”
However, as stated above, this case does not present the
question of whether Respondent’s employees are entitled or are
not entitled to file a class action lawsuit. Rather, the question is
whether the Respondent lawfully can force them14 to waive
their right to file any lawsuit at all, even one in which two or
more employees act in concert to file the lawsuit, and even one
in which one employee files a lawsuit seeking a remedy for
other workers. I conclude that the Respondent lawfully may
not require either waiver.
Additionally, it is important to stress the nature of the harm
caused. Requiring an employee to give up a Section 7 right
does not merely inflict a harm “down the road” at some future
date when the employee may have a need to exercise the right.
Rather, the harm occurs immediately, and it occurs whether or
not the employee ever actually would exercise that right. In-
deed, forcing an employee to waive even a reasonably possible
Section 7 right violates the Act.
In that regard, this case bears some resemblance to the situa-
tion in which an individual applies for a job as a delivery truck
driver and the employer states that the applicant will not be
hired unless he first agrees that, in making deliveries, he will
cross a picket line. Section 7 gives an employee the right to
honor a picket line which a union has established at another

14 The complaint alleges unlawful interference, restraint and coer-
cion, in other words "arm twisting" by the Respondent to force employ-
ees to give up rights the Act protects. If the Respondent had sent mus-
cular, raw-boned "negotiators" to secure an employee's signature
through the manual application of torque to her extremities, that coer-
cion clearly would violate Section 8(a)(1). Figurative arm-twisting - by
making it clear to the employee that she would not work unless she
signed the waiver - constitutes coercion every bit as unlawful, even if
lacking in chiropractic drama.
E. A. RENFROE & CO. 21
business, so the employer here is asking the applicant to waive
that right as a condition of being hired.
The employer does not know whether this driver will ever
encounter such a picket line and has no way to foresee the fu-
ture, but he doesn’t want to take any chances. However, even
though it is unlikely that the driver will ever have occasion to
assert the right to honor a picket line, the employer nonetheless
violates the Act when it requires him to waive that right as a
condition of being hired. Beverly Health & Rehabilitation
Services, 346 NLRB 1319, 1320 fn. 8.
Likewise, in the present case it is speculative, and highly de-
pendent upon facts not yet knowable, whether a court would
ever allow the employees to file or participate in a class action
lawsuit. However, if a court someday should permit them to do
so, that activity would be concerted and for the employees’
mutual aid or protection, and therefore protected by Section 7.
Just as an employer cannot require an employee to waive the
right to honor a picket line (on the off chance that the employee
might someday encounter such a picket line), an employer can-
not require employees to waive the right to participate in a law-
suit, even a lawsuit proceeding under the court’s class action
rules (on the off chance that someday a court would allow them
to do so).
The Act makes it unlawful for an employer to require an em-
ployee to waive a statutory right even if the employer doesn’t
know whether the employee ever will have occasion to exercise
that right. A casual observer might believe it odd, even silly,
for the Board to find that the employer had “interfered with,
restrained or coerced” an employee in the exercise of Section 7
rights when the employee might never have an opportunity to
exercise it. However, this misconceives the nature of the harm.
The harm does not occur at some distant point in the future
when the employee wishes to exercise the right but finds he
cannot. Rather, the harm occurs at the moment the employer
makes the unlawful demand that the employee waive the right
as a condition of working. The offense is to the inviolate nature
of the right itself. The offense is to the employee’s right to
have rights. The offense is to the employee’s freedom to make
an uncoerced choice about waiving or refusing to waive a Sec-
tion 7 right.
The Board has responsibility for protecting employees’ Sec-
tion 7 rights, including their right to make free and uncoerced
choices about the exercise of those rights. To do so, it must
prevent an employer from demanding that an employee waive a
right even if its exercise is an unlikely possibility far in the
future. The reason for this strictness is simple: If an employer
is free to require the relinquishment of a statutory right, and
free to punish the employee’s refusal with discharge or other
penalty, then no Section 7 right is ever safe.
Additionally, the harm caused by this coercion is not limited
to the employee coerced but extends to other employees as
well. Allowing an employer to disable a statutory right, even
one which very likely will never be used, devalues all rights
because it makes them appear to exist only at the pleasure of
the employer. Creating the impression among employees that
Section 7 rights are ephemeral and may be extinguished by the
employer unilaterally itself chills employees’ willingness to
exercise them.
It may be noted that complaint paragraph 4(e), discussed be-
low, describes the violation as forcing employees to sign an
agreement which they “would reasonably conclude” precludes
them from engaging in activity protected by the Act. Part of
the alleged harm is the chilling effect on employees’ exercise of
Section 7 rights. That harm occurs the instant the employer
presents an employee with the Hobson’s choice of refusing to
waive a right which the employee reasonably would believe she
possesses or else continue to work.
Stated another way, even if there is some legal uncertainty
about whether the right exists or under what circumstances it
could be exercised, if there is an objectively reasonable belief
that the right exists, then the employer’s demand for a waiver
puts the employee under significant coercive pressure. This
pressure has an effect on the composition of the employer’s
workforce. It weeds out those employees who value their Sec-
tion 7 rights enough to stand up for them, and thereby subject
themselves to possible discharge, while keeping more docile
employees. Forcing employees to sign the waiver or else leave
results in an employee complement less willing to engage in
concerted activities such as form a union.
Forcing an employee to sign a document which reasonably
may be understood to waive Section 7 rights can be compared
to requiring the employee to play Russian roulette—just pull
the trigger this once—as a condition of continued employment,
and discharging the assertive employee who refuses. It doesn’t
matter if doing so actually results in the employee losing a right
which he someday will need to use. Even if the chamber is
empty, making him pull the trigger causes the harm.
A very present and immediate harm, not a future and specu-
lative harm, lies in the employer’s threat to take adverse action
against the employee if she refuses to yield that which she is
entitled to keep, her rights under Section 7 of the Act. Refusing
to give up a Section 7 right—or even refusing to give up what
the employee reasonably would believe to be a Section 7
right—is itself a Section 7 right.
In sum, I find that the Respondent’s arbitration agreement
required the waiver of rights protected by Section 7 of the Act
and thereby violated Section 8(a)(1) of the Act.15 It is not nec-

15 The Supreme Court has recognized that the employees' Section 7
right to act together for their mutual aid or protection extends to con-
certed activity in judicial and administrative forums. Eastex, Inc. v.
NLRB, 437 U.S. 556 (1978). Because employees may not always be
aware of the distinction between individual and concerted activities,
and to assure that employees do not reasonably but mistakenly believe
that they must waive their right to engage in concerted activity in a
judicial forum, I recommend that the Board consider adopting a bright
line rule.
Absent a specific statement about concerted activity, language pur-
porting to waive an employee's right to file a lawsuit almost certainly
would lead the employee to believe that she thereby was waiving not
merely individual but concerted rights, including the right to be named
as a co-plaintiff in a lawsuit filed by two or more employees for their
mutual aid or protection. Likewise, absent a specific statement, lan-
guage waiving an employee's right to sue on her own behalf alone also
reasonably would create the impression that the employee was waiving
her right to bring a lawsuit on behalf of other employees as well as
herself. Therefore, I recommend that the Board adopt a bright line
principle that an employer will violate Section 8(a)(1) if it requires an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
essary to rely on the D. R. Horton precedents to reach this con-
clusion and I do so based on the other cases cited above. How-
ever, the conclusion is fully consistent with D. R. Horton and
its progeny.
Complaint Paragraph 4(e)
Complaint paragraph 4(e) alleges that at all material times,
employees would reasonably conclude that the provisions of
the Arbitration Agreement quoted in the complaint would pre-
clude employees from engaging in conduct protected by Sec-
tion 7 of the Act. Respondent has denied this allegation.
The “Waiver of Class Action and Representative Action
Claims” clause, set forth in complaint paragraph 4(c), requires
an employee to agree “that class action and collective action
procedures are waived, and shall not be asserted, nor will they
apply, in any arbitration (or dispute adjudicated in any other
forum) pursuant to this Agreement.”
It might be argued that an employee who was not a labor
lawyer would not see the connection between class and collec-
tive actions and protected concerted activity. However, those
quoted words do not exist in isolation. This immediately fol-
lows:
Employee agrees that Employee will not serve as a repre-
sentative member of any class or collective action, or partici-
pate in any class action or collective action claim or procedure
instigated by any other person. The Parties also agree that, to
the extent permitted by law, they will be precluded from as-
serting in arbitration, or any other forum, any representative
claims.
An employee reading this text would reasonably, and almost
certainly, believe that the words meant she could not file a
grievance on behalf of anyone but herself. She also would
reasonably understand that she could not participate in a griev-
ance filed by any other employee.
Reading the last sentence, the employee reasonably would
conclude that she could not assert “in arbitration, or any other
forum, any representative claims.” Those words plainly would
preclude her from filing a grievance on behalf of anyone other
than herself.
These restrictions, forbidding any “representative claim,”
render the agreement’s grievance arbitration procedure cumber-
some and inefficient because, in the workplace, a condition
which affects one employee likely affects others as well.16

employee to waive her individual right to bring a lawsuit about terms
and conditions of employment, unless the waiver language specifically
informs the employee that she is not giving up the right to act in concert
with other employees filing a lawsuit for their mutual aid or protection,
and that she is not giving up the right to file a lawsuit which seeks a
remedy for other employees as well as herself.
16 Indeed, the great harm which these limitations inflict on work-
place arbitration demonstrates the vast difference between labor arbitra-
tion and commercial arbitration. The Respondent’s brief did not recog-
nize this difference when it cited the Supreme Court’s decision in
AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) for the propo-
sition that class actions were not appropriate in arbitration. The Re-
spondent’s brief quoted the Supreme Court’s statement that “[r]equiring
the availability of classwide arbitration interferes with fundamental
Clearly, an employee would reasonably understand these provi-
sions as depriving her of the rights which employees commonly
enjoy and exercise during the grievance process, rights protect-
ed by Section 7 of the Act.
The words clearly effect a waiver of the employee’s right to
act in concert with other employees for their mutual aid or pro-
tection and, I conclude, an employee reasonably would under-
stand them to constitute a waiver of Section 7 rights.
Complaint Paragraph 4(f)
Complaint paragraph 4(f), which Respondent denies, alleges
that from February 17, 2016, until March 29, 2016, employees
reasonably would have concluded that the provisions of the
Arbitration Agreement, as described above in paragraphs 4(a)
and 4(d), preclude employees from filing unfair labor practice
charges with the Board.
The General Counsel’s brief concedes that the arbitration
agreement “did not explicitly restrict employees’ right to file
unfair labor practice charges with the Board” but argues that
“the Agreement contains broad language regarding its scope
and applicability such that employees would reasonably con-
strue it to prohibit the filing of charges with the Board.” There-
fore, I will begin this analysis by examining the provisions in
the arbitration agreement. The agreement’s first clause, “In-
tent,” provides in part:
The Parties shall resolve all disputes, claims, and other mat-
ters in question arising out of the employment relationship in
accordance with the provisions of this agreement.
The arbitration agreement’s next clause, “Mandatory Arbi-
tration,” includes the following:
The Parties agree that all grievances, claims, complaints,
disputes, or causes of action (collectively, ‘Claims’) that relate
in any way to the Parties’ employment relationship or to the
Employee’s performance of work for the Employer’s clients,
whether based in contract, tort, fraud, misrepresentation state
or federal statutory law, or any other legal theory, shall be
submitted to binding arbitration administered by the Ameri-
can Arbitration Association….
The “Covered Claims” clause of the arbitration agreement

attributes of arbitration and thus creates a scheme inconsistent with the
[Federal Arbitration Act].” [563 U.S.] at 344.”
The Respondent then quoted the Court’s observation that “[C]lass
arbitration sacrifices the principal advantage of arbitration—its infor-
mality—and makes the process slower, more costly, and more likely to
generate procedural morass than final judgment.”
Clearly, the Court was describing commercial arbitration rather than
workplace arbitration, which does not serve an immense group of peo-
ple who don’t know each other but employees who work together and
typically share a community of interest. As an institution of this com-
munity, workplace arbitration performs not only a dispute resolution
function but also a conflict reducing function. It provides a means to
assure that all employees are treated fairly and equally.
Thus, a grievance filed on behalf of all affected employees not only
resolves the issue efficiently but also assures that all such employees
receive the same remedy.
E. A. RENFROE & CO. 23
specifies which types of work-related complaints must be ad-
dressed through arbitration. The following language is particu-
larly relevant:
Covered Claims. The Parties are mutually obligated to arbi-
trate all Claims arising out of or relating to their employment
relationship. This Agreement covers all Claims in a federal,
state, or local court or agency under applicable federal, state,
or local laws, arising out of or relating to Employee’s em-
ployment with Employer, performance of work for the Em-
ployer’s clients, or the termination of Employee’s employ-
ment….The Claims covered by this Agreement include, but
are not limited to … (3) claims for wrongful termination (con-
structive or actual) in violation of public policy; (4) claims for
discrimination or harassment … (5) claims for violation of
any federal, state, or other governmental law, statute, regula-
tion, or ordinance…. [Emphasis added.]
On their face, these provisions clearly encompass filing an
unfair labor practice charge with the Board. Such a charge
alleges a violation of Federal law and the Board is a Federal
agency. An unfair labor practice charge also concerns matters
“arising out of or relating to” the charging party’s employment.
It is difficult to imagine an interpretation of this language that
somehow would exclude filing a charge with the Board. There-
fore, I conclude that an employee reasonably would believe that
the agreement covered unfair labor practice charges.
Further, I conclude that an employee reasonably would be-
lieve that arbitration was the exclusive means of resolving
claims. The agreement’s use of phrases such as “shall resolve,”
“shall be submitted” and “mutually obligated to arbitrate all
Claims” clearly convey that the employee must use the arbitral
forum. So does the heading “Mandatory Arbitration.”
Additionally, I conclude that an employee reading the
agreement would believe not only that if he wished to complain
about conditions of employment he had to use arbitration, but
also that he could only use arbitration. The requirement that
the employee “shall resolve” the claim through arbitration
clearly implies that he may not resolve it through another
means, such as by filing an unfair labor practice charge with the
Board.
The prohibition appears in an arbitration agreement rather
than in the form of a work rule. However, the employee must
sign and be bound by the agreement as a condition of working.
Therefore, the restriction resembles a work rule because it is
imposed rather than assumed voluntarily. Accordingly, I will
follow the Board’s framework for determining the lawfulness
of a work rule, set forth in Lutheran Heritage Village-Livonia,
343 NLRB 646 (2004).
Under Lutheran Heritage, the inquiry begins with whether
the rule explicitly restricts activities protected by Section 7. If
so, the rule is unlawful. If the rule does not explicitly restrict
protected activity, the finding of a violation is dependent upon a
showing of one of the following: (1) employees would reasona-
bly construe the rule to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7 rights.
The provisions in question do not explicitly prohibit recourse
to the Board. However, for the reasons stated above, I have
concluded that they do prohibit an activity which the Act pro-
tects, filing charges with the Board. Therefore, I further con-
clude that requiring employees to sign the agreement interferes
with their exercise of protected rights and thereby violates Sec-
tion 8(a)(1) of the Act. Supply Technologies, LLC, 359 NLRB
No. 38 (2012).
On March 29, 2016, the Respondent notified employees that
the arbitration agreement had been revised and that the follow-
ing language had been added:
Nothing in this Agreement shall be interpreted to mean that
Employee is precluded from filing complaints with a federal
agency, such as the Department of Labor, the Equal Employ-
ment Opportunity Commission, the National Labor Relations
Board, or any equivalent state agency.
Complaint paragraph 4(f) does not allege that this violation
continued beyond March 26, 2016 and I conclude that it did
not. However, I do conclude that the Respondent violated Sec-
tion 8(a)(1) of the Act during the time period February 17, 2016
through March 29, 2016, as alleged in complaint paragraph 6
and that this unfair labor practice affected commerce, within
the meaning of Section 2(6) and (7) of the Act, as alleged in
complaint paragraph 7.
Complaint Paragraphs 5(a), 5(b) and 5(c)
Complaint paragraph 5(a) alleges that on about February 26,
2016, the Respondent required that employees sign the Arbitra-
tion Agreement or, if they did not sign, employees would be
released from their project assignments. Based on the parties’
stipulation,17 I so find.
Complaint paragraph 5(b) alleges that by this conduct, the
Respondent caused the termination of employee Kimani Ad-
ams. The parties stipulated that between February 22 and Feb-
ruary 26, 2016, Charging Party Adams exchanged email mes-
sages with Respondent regarding the arbitration agreement and
her employment status. The parties further stipulated that on
February 24, 2016 Respondent released Adams from her pro-
ject assignment as a result of her failure and refusal to sign the
arbitration agreement, and that since that date the Respondent
has not assigned her to a new project, has not assigned her any
work hours, or paid her any wages other than those she earned
prior to February 24.
Additionally, the parties stipulated that, as of June 13, 2016,
Adams had not executed the arbitration agreement and that the
Respondent had not deployed her to any projects since Febru-
ary 24, 2016.
The parties have stipulated, as set forth above, both that the
Respondent removed Adams from her work assigned on Febru-

17 The parties stipulated as follows: On February 17, 2016, Re-
spondent electronically disbursed a copy of a Mutual Agreement to
Arbitrate Employment-Related Disputes (Arbitration Agreement) to its
project employees, which included the Charging Party. Respondent
required its project employees, including the Charging Party, to execute
the Arbitration Agreement in order to remain eligible to work project
assignments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
ary 24, 2016 and that it has not assigned her any more work
since that date. From the stipulation, I also find that the Re-
spondent took these actions because Adams refused to sign the
arbitration agreement.
Additionally, for the reasons stated above, I have concluded
that the arbitration agreement effected a waiver of the signer’s
right to engage in concerted activities protected by Section 7 of
the Act. Therefore, I conclude that Adams was engaging in
protected concerted activity when she refused to sign the doc-
ument.
Further, based on the stipulation, I find that the Respondent
removed Adams from her work assignment and refused to as-
sign her further work because she engaged in the protected
activity of refusing to sign the waiver.
The Board has held that a significant reduction in income for
an indefinite period of time, causing an employee to quit and
seek alternative employment, when a motive for such treatment
was protected activity, will establish constructive discharge.
Alpine Log Homes, Inc., 335 NLRB 885 (2001), citing Consec
Security, 325 NLRB 453 (1998), and cases cited therein, enfd.
mem. 185 F.3d 862 (3d Cir. 1999).
Accordingly, I conclude that the Respondent caused Adams’
employment to be terminated as of February 24, 2016, as al-
leged in complaint paragraph 5(b). Further, I find that the Re-
spondent took this action because Adams had engaged in pro-
tected concerted activities, and to discourage other employees
from engaging in such activities, as alleged in complaint para-
graph 5(c).
Additionally, I conclude that this action violated Section
8(a)(1) of the Act, as alleged in complaint paragraph 6, and that
this unfair labor practice affected commerce within the mean-
ing of Section 2(6) and (7) of the Act, as alleged in complaint
paragraph 7.
REMEDY
Having found that the Respondent violated the Act, I turn
now to the appropriate remedy. The Respondent must post the
notice to employees which is attached to this decision as At-
tachment A, and comply with the other posting requirements
set forth in the order below.
The Respondent’s project employees work at the offices of
the Respondent’s clients and therefore might not see the notice
to employees posted at the Respondent’s place of business.
However, the complaint does not allege that these clients are
joint employers and they are not parties to this proceeding.
Therefore, it would not be appropriate to order them also to
post the notice.
Instead, I recommend that the Board order the Respondent to
send signed copies of the notice to each client at which the
Respondent’s employees perform work and request that the
client post the notice. In making this recommendation, I note
that the arbitration agreement itself stated that it “shall also
apply to all claims by Employee against Employer’s clients as
well as the clients’ officers, directors, supervisors, managers,
employees, and agents.”
The arbitration agreement also stated that the employee
“acknowledges that Employee’s performance of work for Em-
ployer’s clients is an integral component of Employee’s work
for Employer and specifically agrees that Employer’s clients, as
well as the client’s officers, directors, supervisors, managers,
employees, and agents are third party beneficiaries of this
Agreement.”
In view of this close relationship between the Respondent
and its clients, and the fact that the waivers in the arbitration
agreement extended to the clients, the clients’ managers and
employees, it is appropriate that the Respondent’s clients
should be given the opportunity to post the notice at locations
where the Respondent’s employees are working.
The Respondent, having constructively discharged the
Charging Party, Kimani Adams, must reinstate her and make
her whole, with interest, for all losses she suffered because of
the Respondent’s unfair labor practices.
The General Counsel seeks, as part of the remedy, an order
requiring the Respondent to reimburse Adams for all search-
for-work and work-related expenses regardless of whether she
received interim earnings in excess of these expenses, or at all,
during any given quarter or during the overall backpay period.
To the extent that the General Counsel seeks a change in Board
policy, the request should be directed to the Board.
The Respondent must revise its arbitration agreement to ex-
clude all language whereby the signer waived the right to en-
gage in protected, concerted activities and notify all employees
who signed such agreements that those waivers have been re-
scinded and will not be enforced.
The arbitration agreements themselves include severability
clauses stating, “If any provision of this Agreement is held to
be void or otherwise unenforceable, in whole or in part, the
void or unenforceable provision shall be severed and the adju-
dication shall not affect the validity of the remainder of this
Agreement.” Accordingly, the Respondent must maintain in
effect the grievance arbitration procedure which it established
and to which it agreed, but with the unlawful terms excised.
CONCLUSIONS OF LAW
1. The Respondent, E. A. Renfroe & Company, Inc., is an
employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by re-
quiring its employees to sign, as a condition of receiving work
assignments, an agreement whereby they waived the right,
guaranteed to them by Section 7 of the Act, to engage in con-
certed activity for their mutual aid or protection.
3. The Respondent violated Section 8(a)(1) of the Act, dur-
ing the time period February 17, 2016 through March 29, 2016,
by maintaining provisions in its arbitration agreement which
employees would reasonably conclude precluded them from
filing unfair labor practice charges with the Board.
4. The Respondent violated Section 8(a)(1) of the Act by
causing the constructive discharge of its employee Kimani
Adams because she refused to waive rights protected by Sec-
tion 7 of the Act, and to discourage other employees from re-
fusing to waive such rights.
5. The Respondent did not violate the Act in any other man-
ner alleged in the complaint.
On these findings of fact and conclusions of law and on the
E. A. RENFROE & CO. 25
entire record in this case, I issue the following recommended18
ORDER
The Respondent, E. A. Renfroe & Company, Inc., its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Requiring its employees to waive their rights guaranteed
by Section 7 of the Act, including the rights described herein, to
engage in protected concerted activities for their mutual aid or
protection, as a condition of continued employment.
(b) Terminating the employment of employees who refuse
to waive their Section 7 rights, including the rights described
herein, to engage in protected concerted activities for their mu-
tual aid or protection, as a condition of continued employment.
(c) Creating the impression that employees cannot file
charges with the National Labor Relations Board.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Revise the arbitration agreements which it requires em-
ployees to sign as a condition of employment to remove all
requirements that employees, as a condition of employment,
waive rights guaranteed by Section 7 of the Act (including
those rights described in the notice to employees attached here-
to, which include the rights of employees to act concertedly for
their mutual aid or protection by filing lawsuits and/or griev-
ances together and/or on behalf of other employees and the
right to invoke procedures provided by the rules of court, in-
cluding class action procedures deemed appropriate by the
court) and notify all employees that such provisions have been
removed, while otherwise maintaining in effect the grievance
arbitration procedure established by these agreements.
(b) Offer immediate and full reinstatement to employee Ki-
mani Adams and make her whole for any loss of earnings and
other benefits suffered as a result of the unlawful action against
her. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), plus daily compound
interest as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Kimani Ad-
ams and, within 3 days thereafter, notify her in writing that this
has been done and that the discharge will not be used against
her in any way.
(d) Within 14 days after service by the Region, post at its
facilities in Birmingham, Alabama, copies of the attached no-

18 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
tice marked “Appendix A.”19 Copies of the notice, on forms
provided by the Regional Director for Region 10, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email, post-
ing on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. J. Picini Flooring, 356 NLRB 11
(2010). In the event that, during the pendency of these pro-
ceedings, 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 February 17, 2016. Excel Con-
tainer, Inc., 325 NLRB 17 (1997).
(e) Furnish signed copies of the notice to employees to each
of its clients at which its employees are performing work, and
request that each client post the notice in all locations where
notices to employees customarily are posted.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. August 17, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this 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 interfere with, restrain, or coerce our employ-
ees in the exercise of these rights, guaranteed to them by Sec-
tion 7 of the National Labor Relations Act.

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
WE WILL NOT require employees, as a condition of their em-
ployment, to waive any of their rights under the National Labor
Relations Act, including the right of employees, acting in con-
cert, to file lawsuits concerning terms and conditions of em-
ployment, including the right of one employee to file a lawsuit
on behalf of and/or seeking a remedy for other employees, the
right of employees, acting in concert or on behalf of other em-
ployees, to use procedures, including class action procedures,
found appropriate by the court, the right of two or more em-
ployees to file joint grievances and of one employee to file
grievances on behalf of other employees, to participate in the
arbitration of other employees’ grievances, to assist them in
grievance arbitrations, and to act together with other employees
for their mutual aid or protection.
WE WILL NOT maintain any provision in an arbitration
agreement which reasonably would be understood by employ-
ees to prevent them from engaging in any concerted activities
for their mutual aid or protection, including those described
above, or which reasonably would be understood to prevent
them from filing charges with the National Labor Relations
Board.
WE WILL NOT cause the discharge of any employee for refus-
ing to sign an agreement which reasonably would be under-
stood to waive any of the employee’s rights guaranteed by the
National Labor Relations Act.
WE WILL offer immediate and full reinstatement to employee
Kimani Adams and make her whole, with interest, for all losses
of earnings and benefits which she suffered because of our
unfair labor practices.
WE WILL remove from the arbitration agreements we require
employees to sign, and from the grievance arbitration procedure
established by those agreements, all restrictions on the right of
two or more employees acting in concert to file a lawsuit
against us or our clients, all restrictions on the right of one
employee acting on behalf of other employees to file such a
lawsuit, all restriction on the right of employees, acting together
or on behalf of other employees, to use class action and other
procedures deemed appropriate by the court, the right of em-
ployees to file or pursue joint grievances, the right of an em-
ployee to file grievances on behalf of other employees or seek a
remedy for them, and the right of employees to participate in
grievance arbitration proceedings, but will continue our griev-
ance arbitration procedure, so modified, in effect.
WE WILL notify, in writing, all employees who have signed
or who have been requested to sign an arbitration agreement,
that we have rescinded the provisions which require them to
waive their right to act jointly or collectively in the grievance
arbitration procedure, including those rights described above, or
which otherwise require them to waive a right guaranteed by
the National Labor Relations Act.
E. A. RENFROE &COMPANY INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/10-CA-171072 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.