GC Services Limited Partnership, a limited partnership, and GC Financial Corp., general partner

National Labor Relations Board - Board Decisions

Jul 24, 2020

369 N.L.R.B. 133 (N.L.R.B. 2020)

369 NLRB No. 133
GC Services Limited Partnership, a limited partner-
ship, and GC Financial Corp., general partner
and Bradley Nelson. Case 28–CA–166389
July 24, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On March 19, 2019, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent filed
exceptions1 and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended Or-
der as modified and set forth in full below.2
The issue in this case is whether the Respondent vio-
lated Section 8(a)(1) of the Act by requiring employees,
as a condition of employment, to sign an agreement that
requires them to submit “all legally cognizable disputes,”
specifically including “any claim under the National La-
bor Relations Act,” to final and binding arbitration. The
judge found the violation as alleged, reasoning that the ar-
bitration agreement explicitly interferes with employees’
right to file charges with the Board or invoke the Board’s
processes. For the reasons stated below, we agree with the
judge’s conclusion.
I. BACKGROUND
The Respondent, which is headquartered in Houston,
Texas, provides customer care and accounts receivable
management services for organizations in the public and
private sectors. Since about December 15, 2015, the Re-
spondent, at all its offices nationwide, has maintained and
required its employees, managers, and executives to sign,
as a condition of employment, the following Mutual
Agreement for Dispute Resolution (MADR):
1 No party excepts to the judge’s failure to rule on the amended com-
plaint’s allegation that the Respondent violated Sec. 8(a)(1) of the Act
by maintaining and requiring employees to sign the “GC Services’ Dis-
pute Resolution Program.” Accordingly, we shall dismiss that complaint
allegation. See North Hills Office Services, 346 NLRB 1099, 1099 fn. 9
(2006).
2 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language, including the
temporary change to the Board’s standard notice-posting remedy to
adapt to the ongoing COVID-19 pandemic, see Danbury Ambulance Ser-
vice, Inc., 369 NLRB No. 68 (2020), and we shall substitute a new notice
to conform to the Order as modified. No party has excepted to the pro-
vision in the recommended Order requiring the Respondent to post the
This Mutual Agreement for Dispute Resolution
(“Agreement”) is for the purpose of resolving claims
by single-party arbitration and is mutually binding
upon both the employee whose name appears on the
signature block below (“Employee”) and GC Ser-
vices Limited Partnership . . . . The following contains
the terms and conditions of the mutually binding
Agreement:
1. All Disputes Must Be Arbitrated.
It is the intent of the parties hereto that all legally cog-
nizable disputes between them that cannot be re-
solved to the parties’ satisfaction through use of
the Company’s personnel policies, must be re-
solved by final and binding arbitration. Claims
subject to arbitration include all legally cognizable
claims in the broadest context and include, but are
not limited to, any dispute about the interpretation,
applicability, validity, existence, enforcement, or ex-
tent of arbitrability of or under this Agreement, and
any claim arising under federal, state, or local stat-
ute, regulation, or ordinance, any alleged contract, or
under the common law. This includes, by way of
non-exhaustive illustration only, any claim of em-
ployment discrimination in any alleged form, any
claim for wage and hour relief, including under the
Fair Labor Standards Act or state or local law, any
claim under the Family Medical Leave Act or state or
local law or regulation, any claim under the Na-
tional Labor Relations Act or state or local law or
regulation, or any other claim, whether contractual,
common-law, statutory, or regulatory arising out of,
or in any way related to, Employee’s application for
employment with and/or employment with Company,
the termination thereof, this Agreement, or any other
matter incident or in any manner related thereto. It is
the intent of the parties that this Agreement shall be
construed as broadly as legally possible and shall ap-
ply to any and all legally cognizable disputes between
them regardless of when the dispute has arisen or may
arise and includes any dispute that occurred before or
remedial notice in all locations where its Mutual Agreement for Dispute
Resolution (MADR) was maintained, not merely in its facility in Tucson,
Arizona, where the Charging Party was employed. In any event, we find
that a nationwide-posting remedy is appropriate because the parties stip-
ulated that the Respondent required all its employees nationwide to sign
the MADR, which we find unlawful for the reasons stated below.
We deny the Respondent’s exception to the judge’s failure to take “ju-
dicial notice” of an email exchange between Respondent’s counsel and
the Region that the Respondent attached to its posthearing brief to the
judge. The judge properly declined to consider this document because it
was not part of the stipulated record, and in any event, she correctly noted
that considering it would not impact the outcome of the decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
after the parties execute this Agreement as well as dis-
putes that arise or are asserted after Employee leaves
the Company’s employ, regardless of the reason for
separation. This Agreement will apply to all claims,
no matter when they accrue, excepting only claims
which have already been filed in a court of proper ju-
risdiction in which both parties are expressly identi-
fied by name in such pending lawsuit filed before this
Agreement is signed by both parties. The parties
jointly agree neither may file any lawsuit to resolve
any dispute between them but Employee may file a
complaint with any federal, state, or other govern-
mental administrative agency, regarding any per-
ceived infringement of any legally protected
rights.
(Jt. Exh. 2 (emphasis added).)
Since at least December 2015, the Respondent, at all its
offices nationwide, has also maintained and required its
employees to sign, as a condition of employment, a Code
of Business Ethics and Conduct containing the following
provision, which refers to the MADR:
GC Services’ Dispute Resolution Program
The Company maintains a mandatory mutual dispute
resolution program. As a condition and qualification for
employment or continued employment, [a]ll applicants
and employees are required to sign and agree to GC Ser-
vices’ Mutual Agreement for Dispute Resolution, which
is attached as Attachment D. Should an employee de-
cline to sign and agree to the Mutual Agreement for Dis-
pute Resolution, effective immediately, the Company
shall consider the employee to have voluntarily sepa-
rated his or her employment from GC Services.
(Jt. Exh. 3.) The Respondent’s employees were notified
of the MADR and the Dispute Resolution Program
through the Respondent’s intranet, and they were required
to sign electronic notices of receipt.
The judge found that the Respondent violated Section
8(a)(1) of the Act by maintaining and requiring employees
to sign the MADR on the basis that the MADR explicitly
restricts employees’ right to file charges with the Board or
invoke the Board’s processes. Applying Lutheran Herit-
age Village-Livonia, 343 NLRB 646, 646 (2004), the
judge stated that the “inquiry into whether the mainte-
nance of a challenged rule is unlawful begins with the is-
sue of whether the rule explicitly restricts activities pro-
tected by Section 7,” and “[i]f it does, [the Board] will find
the rule unlawful.”3 She then determined that based on its
plain text, the MADR explicitly restricts employees’ right
3 The Board’s decision in Boeing Co., 365 NLRB No. 154 (2017),
did not affect the holding of Lutheran Heritage that a rule is unlawful if
to access the Board by expressly and specifically identify-
ing NLRA claims as among those subject to final and
binding arbitration.
The judge rejected the Respondent’s argument that the
MADR avoids an explicit restriction by providing that
“[e]mployee[s] may file a complaint with any federal,
state, or other governmental administrative agency[] re-
garding any perceived infringement of legally protected
rights.” She observed that this savings-clause language is
contradicted by the coverage language that specifically
identifies claims arising under the NLRA as covered dis-
putes. Applying principles of contract interpretation, the
judge reasoned that the coverage provision prevails over
the savings clause because it is the more specific of the
two and because any ambiguity should be construed
against the Respondent as the drafter. Having found an
explicit restriction of NLRA rights, the judge found inap-
plicable Boeing’s balancing analysis for evaluating fa-
cially neutral employer policies, which replaced the “rea-
sonably construe” prong of the Lutheran Heritage stand-
ard.
Excepting, the Respondent argues that the MADR does
not explicitly restrict employees’ right to file charges with
the Board because it specifically acknowledges employ-
ees’ right to file “a complaint with any federal . . . admin-
istrative agency, regarding any perceived infringement of
any legally protected rights.” The Respondent contends
that an arbitration agreement can both subject NLRA
claims to arbitration and preserve employees’ right to file
charges with the Board. The Respondent further contends
that because the MADR does not explicitly restrict that
right, the MADR should be analyzed under Boeing. Ap-
plying Boeing, the Respondent argues that the MADR has
no tendency to restrict charge filing or, alternatively, that
any tendency to restrict charge filing would be outweighed
by legitimate interests in maintaining an arbitration policy.
The General Counsel contends that the Respondent has
provided no valid reason for disturbing the judge’s analy-
sis, and he further contends that even under Boeing, the
MADR is unlawful and belongs in Boeing Category 3.
II. DISCUSSION
We affirm the judge’s conclusion that the Respondent
violated Section 8(a)(1) of the Act by maintaining and re-
quiring employees to sign the MADR as a condition of
employment.
In Prime Healthcare Paradise Valley, LLC, we held, in
relevant part, that “an arbitration agreement that explicitly
prohibits the filing of claims with the Board or, more gen-
erally, with administrative agencies must be found
it explicitly restricts Sec. 7 activity. Prime Healthcare Paradise Valley,
LLC, 368 NLRB No. 10, slip op. at 5 fn. 10 (2019).
GC SERVICES LIMITED PARTNERSHIP 3
unlawful” because “[s]uch an agreement constitutes an ex-
plicit prohibition on the exercise of employee rights under
the Act.” 368 NLRB No. 10, slip op. at 5. We also held
that the Federal Arbitration Act (FAA) does not authorize
the maintenance or enforcement of arbitration agreements
that interfere with employees’ right to file charges with the
Board, consistent with the clear congressional command
in Section 10(a) of the Act that the Board’s power to pre-
vent 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 otherwise.” Id.
Applying Prime Healthcare here, we find that the
MADR must be found unlawful because it explicitly im-
pedes access to the Board and its processes by specifically
subjecting to final and binding arbitration “any claim un-
der the National Labor Relations Act.” In so finding, we
do not disagree with the Respondent’s observation that an
arbitration agreement can both subject NLRA claims to
arbitration and preserve employees’ right to file charges
with the Board. Indeed, we have so found. See Anderson
Enterprises, Inc. d/b/a Royal Motor Sales, 369 NLRB No.
70 (2020); Briad Wenco, LLC d/b/a Wendy’s Restaurant,
368 NLRB No. 72 (2019). But the agreements in Ander-
son Enterprises and Briad Wenco were fundamentally dif-
ferent from the MADR at issue here. In those cases, the
arbitration agreement featured general coverage language
implicitly encompassing but not expressly specifying
claims arising under the Act, and specific savings-clause
language expressly preserving the right to bring claims or
charges before the National Labor Relations Board. Here,
the MADR includes specific coverage language expressly
requiring arbitration of claims under the National Labor
Relations Act, and general savings-clause language stat-
ing that employees may file complaints with federal
4 We do not decide here whether an agreement that expressly covers
claims arising under the NLRA but also specifically preserves the right
to file charges with the NLRB would be lawful.
5 Boeing replaced the “reasonably construe” standard in Lutheran
Heritage with a balancing analysis for facially neutral employer policies.
As we stated in Prime Healthcare, 368 NLRB No. 10, slip op. at 5, when
an arbitration agreement does not contain an explicit prohibition but ra-
ther is facially neutral, the standard set forth in Boeing applies. Under
the Boeing standard, the Board begins by determining whether an em-
ployer’s policy, “when reasonably interpreted, would potentially inter-
fere with the exercise of NLRA rights.” Boeing, 365 NLRB No. 154,
slip op. at 3.
6 See Haynes Building Services, LLC, 369 NLRB No. 2, slip op. at 3
(2019) (agreement at issue “did not contain a savings clause preserving
employees’ right to file charges with the Board or with administrative
agencies generally”); E. A. Renfroe & Co., 368 NLRB No. 147, slip op.
at 3 (2019) (agreement at issue “[did] not contain a savings clause pre-
serving employees’ right to file charges with the Board or, more gener-
ally, with administrative agencies”); Beena Beauty Holding, Inc. d/b/a
Planet Beauty, 368 NLRB No. 91, slip op. at 2 (2019) (arbitration
administrative agencies. Thus, the MADR explicitly rules
out any possibility that claims arising under the NLRA
may be resolved in any way other than through final and
binding arbitration even if employees can file complaints
with administrative agencies, implicitly including the
Board.4 By expressly informing employees that arbitra-
tion is the final and binding forum for the resolution of any
claim under the Act, the MADR explicitly restricts em-
ployees in the exercise of their Section 7 right to file
charges with the Board or otherwise access its processes.
Accordingly, by maintaining the MADR, the Respondent
violated Section 8(a)(1) of the Act. Prime Healthcare, su-
pra.
The Respondent argues that language in the MADR per-
mitting employees to file complaints with federal admin-
istrative agencies renders the MADR “neutral,” thus re-
quiring that it be analyzed under the Boeing “reasonably
interpret” standard for neutral rules.5 The Board has indi-
cated that a savings clause may be legally sufficient, even
if it does not expressly refer to “the National Labor Rela-
tions Board,” “the NLRB” or “the Board,” if it informs
employees of their right to file claims or charges with ad-
ministrative agencies generally.6 In no case, however, has
the Board found such a generally worded savings clause
legally sufficient where the agreement at issue specifically
requires claims arising under the National Labor Relations
Act be resolved exclusively through final and binding ar-
bitration.7 As the judge explained, under principles of
contract interpretation the MADR’s coverage provision
prevails over the savings clause because it is the more spe-
cific of the two. Contrary to the Respondent, then, we find
that the savings clause does not render the MADR “neu-
tral.”8
agreement at issue “contained no exception for filing charges with the
Board or other administrative agencies”).
7 Hobby Lobby Stores, Inc., 369 NLRB No. 129 (2020), cited by our
concurring colleague, is not to the contrary.
8 Even assuming, as our colleague believes, that the Boeing frame-
work applies to the MADR, we would find the MADR unlawful and
place it in Boeing Category 3.
Chairman Ring agrees with his colleagues that the MADR is unlaw-
ful, but he would find the violation under the Boeing framework, not on
the basis that the MADR explicitly restricts Board charge filing. Like
his colleagues, the Chairman would find that the MADR specifically re-
quires employees to resolve all claims arising under the NLRA through
final and binding arbitration. If there were nothing more than this cov-
erage language, the MADR would explicitly restrict access to the Board.
But the MADR also contains a savings clause, and the Board has made
clear that it examines savings-clause language in the context of the arbi-
tration agreement as a whole. 20/20 Communications, Inc., 369 NLRB
No. 119, slip op. at 3 (2020). Moreover, we have recognized that a sav-
ings clause may be sufficient to protect employees’ rights without ex-
pressly referring to “the National Labor Relations Board,” “the NLRB”
or “the Board,” and recently, we found such a savings clause legally
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The Respondent advances several other arguments.
First, the Respondent argues that we cannot or should not
find that the MADR unlawfully interferes with access to
the Board because, in recent years, its employees have
filed more than 40 charges with administrative agencies
(including an unspecified number of charges with the
Board) without repercussions, and because the General
Counsel failed to prove that the MADR in fact restrained
any employee from filing charges with the Board.9 This
argument is without merit because an arbitration agree-
ment that explicitly restricts employees from exercising
their Section 7 rights is unlawful on its face. See Prime
Healthcare, 368 NLRB No 10, slip op. at 5.10
Second, the Respondent argues that the FAA requires
arbitration agreements to be enforced as written and there-
fore precludes the Board from finding that the MADR vi-
olates the NLRA. For the reasons explained in Prime
Healthcare, however, “the FAA does not authorize the
maintenance or enforcement of agreements that interfere
with an employee’s right to file charges with the Board.”
368 NLRB No. 10, slip op. at 5.
Finally, the Respondent argues that there is an irrecon-
cilable tension between our finding that the MADR is un-
lawful and longstanding Board precedent under which the
Board will defer, under certain circumstances, to an arbi-
trator’s resolution of an NLRA claim. See, e.g., United
Parcel Service, Inc., 369 NLRB No. 1 (2019). There is no
merit to this contention. The standards set forth in United
Parcel Service govern whether a charge filed with the
Board may be deferred when the charge involves issues
that are also cognizable under a collectively bargained
grievance arbitration provision. Those standards presup-
pose that a charge has been filed. The question presented
here is whether the MADR interferes with charge filing in
the first place. Far from conflicting with the Board’s de-
ferral precedent, our decision safeguards it by protecting
access to charge filing, without which the Board cannot
sufficient. See Hobby Lobby Stores, Inc., 369 NLRB No. 129, slip op.
at 3 (2020). While the Chairman, viewing the MADR as a whole from
the point of view of a reasonable employee, finds that the savings clause
is too general to overcome the specificity of the MADR’s coverage lan-
guage, he disagrees that the MADR explicitly restricts employees’ right
of access to the Board. Accordingly, he would analyze the MADR under
the Boeing framework. Boeing, 365 NLRB No. 154, slip op at 3. Under
that framework, the Chairman finds that the MADR, when reasonably
interpreted from the perspective of the Respondent’s employees, makes
arbitration the exclusive forum for resolution of claims arising under the
Act. On this basis, he finds the MADR unlawful and would place it in
Boeing Category 3. See Prime Healthcare, 368 NLRB No. 10, slip op.
at 6.
9 From January 1, 2015, to December 15, 2015, the Respondent’s
employees filed 13 charges or complaints with various federal, state, and
local administrative agencies. From December 15, 2015, through the
apply that precedent to decide whether deferral is war-
ranted in specific cases.
In sum, we find that the Respondent violated Section
8(a)(1) by maintaining an arbitration agreement that ex-
pressly interferes with employees’ Section 7 right to file
charges with the Board and otherwise access its processes.
ORDER
The National Labor Relations Board orders that the Re-
spondent, GC Services Limited Partnership and GC Fi-
nancial Corp., Houston, Texas, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining a Mutual Agreement for Dispute Res-
olution that states that claims under the National Labor
Relations Act must be resolved through final and binding
arbitration and thereby interferes with the right of employ-
ees to file charges with the National Labor Relations
Board or invoke the Board’s processes.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Mutual Agreement for Dispute Resolu-
tion in all its forms, or revise it in all its forms to make
clear to employees that it does not interfere with employ-
ees’ right to file charges with the National Labor Relations
Board or invoke the Board’s processes.
(b) Notify all current and former employees who were
required to sign or otherwise became bound to the Mutual
Agreement for Dispute Resolution in any form that the
Mutual Agreement for Dispute Resolution has been re-
scinded or revised and, if revised, provide them a copy of
the revised agreement.
(c) Post at its Tucson, Arizona facility and all other fa-
cilities where the Mutual Agreement for Dispute Resolu-
tion has been maintained copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms
parties’ filing of the joint motion and stipulation of facts, the Respond-
ent’s employees filed 41 charges or complaints with various federal,
state, and local administrative agencies, including the Board. The Re-
spondent has not disciplined or terminated any employee for filing an
administrative charge or complaint with, or participating in an investiga-
tion by, any federal, state, or local administrative agency.
10 Even under the Boeing framework, the Respondent’s assertion fails
because the Board looks solely to the wording of the arbitration agree-
ment interpreted from the employees’ perspective, not at whether em-
ployees actually filed charges or whether the employer has actually in-
voked the agreement to restrict charge filing. Prime Healthcare, 368
NLRB No. 10, slip op. at 6 fn. 14.
11 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
GC SERVICES LIMITED PARTNERSHIP 5
provided by the Regional Director for Region 28, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
In 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 Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since December 15,
2015.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 28 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the amended complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
Dated, Washington, D.C. July 24, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain a Mutual Agreement for Dispute
Resolution that states that claims under the National Labor
Relations Act must be resolved through final and binding
arbitration and thereby interferes with the right of employ-
ees to file charges with the National Labor Relations
Board or invoke the Board’s processes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Mutual Agreement for Dispute
Resolution in all its forms, or revise it in all its forms to
make clear to employees that it does not interfere with em-
ployees’ right to file charges with the National Labor Re-
lations Board or invoke the Board’s processes.
WE WILL notify all current or former employees who
were required to sign or otherwise became bound to the
Mutual Agreement for Dispute Resolution in any form
that the Mutual Agreement for Dispute Resolution has
been rescinded or revised and, if revised, WE WILL provide
them a copy of the revised agreement.
GC SERVICES LIMITED PARTNERSHIP AND GC FINANCIAL
CORP.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-166389 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.
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Rodolfo Martinez, Esq., for the General Counsel.
Christopher J. Meister, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, ADMINISTRATIVE LAW JUDGE. This case was
tried based on a joint motion and stipulation of facts Associate
Chief Administrative Law Judge Gerald Etchingham approved
on January 11, 2019. The case was subsequently assigned to
me.1
Bradley Nelson (Nelson or Charging Party) filed original and
amended charges on December 18 and 23, 2015, and March 23,
2016. The original complaint was issued on March 30, 2016,
after which time certain complaint allegations were severed, and
an amended complaint was issued on June 17, 2016. The parties
entered into a joint stipulation of facts, filed with the National
Labor Relations Board (the Board or NLRB) on September 26,
2016, which the Board approved on January 9, 2017. On May
21, 2018, the Supreme Court issued its decision in Epic Systems
Corp. v. Lewis, 584 U.S. ___, 138 S.Ct. 1612 (2018), which held
that the National Labor Relations Act (the NLRA or Act) does
not bar arbitration agreements requiring employees to utilize in-
dividual arbitration to resolve disputes with their employers.2
Because the amended complaint contained allegations resolved
by Epic Systems, the Board rescinded its order approving the
joint stipulation on October 31, 2018.
On November 8, 2018, the General Counsel issued the present
amended complaint. GC Services Limited Partnership (the Re-
spondent), filed a timely answer denying all material allegations.
The complaint alleges the Respondent maintained, as part of
its dispute resolution program, a mutual agreement for dispute
resolution (MADR) that interferes with, restrains, and coerces
employees in the exercise of the rights guaranteed under Section
7 of the Act, in violation of Section 8(a)(1) of the NLRA.
On the entire record, and after considering the briefs filed by
the General Counsel and the Respondent,3 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent provides customer care and accounts
1 The case was initially assigned to a different administrative law
judge.
2 Epic Systems did not consider the issue of whether employees can
be forced to contract away their right to file charges with the National
Labor Relations Board as a condition of employment, and the underlying
claims in Epic Systems did not arise under the NLRA.
3 The Respondent attached an exhibit to its post-hearing brief. The
General Counsel filed a motion to strike the exhibit from the record.
receivable management services for public and private sector or-
ganizations. At all material times, the Respondent has been a
limited partnership headquartered in Houston, Texas, and has
maintained an office and place of business in Tucson, Arizona.
In conducting its operations during the 12–month period ending
December 18, 2015, the Respondent derived gross revenues in
excess of $500,000, and performed services valued in excess of
$50,000 in States other than the State of Arizona. The Respond-
ent is admittedly an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since at least about December 15, 2015, at all of its nation-
wide offices and places of business, the Respondent has main-
tained and required all of its employees, managers, and execu-
tives to sign, as a condition of employment, the following Mutual
Agreement for Dispute Resolution (MADR):
MUTUAL AGREEMENT FOR DISPUTE RESOLUTION
This Mutual Agreement for Dispute Resolution (“Agree-
ment”) is for the purpose of resolving claims by single-party
arbitration and is mutually binding upon both the employee
whose name appears on the signature block below (“Em-
ployee”) and GC Services Limited Partnership and all GC-
Related Entities for which Employee works or has ever
worked, which are defined as any entity owned, controlled,
or managed in any manner or to any extent by GC Services
Limited Partnership (collectively, the “Company”). The
following contains the terms and conditions of the mutually
binding Agreement:
1. All Disputes Must Be Arbitrated.
It is the intent of the parties hereto that all legally cognizable
disputes between them that cannot be resolved to the par-
ties’ satisfaction through use of the Company’s personnel
policies, must be resolved by final and binding arbitration.
Claims subject to arbitration include all legally cognizable
claims in the broadest context and include, but are not lim-
ited to, any dispute about the interpretation, applicability,
validity, existence, enforcement, or extent of arbitrability of
or under this Agreement, and any claim arising under fed-
eral, state, or local statute, regulation, or ordinance, any al-
leged contract, or under the common law. This includes, by
way of non-exhaustive illustration only, any claim of em-
ployment discrimination in any alleged form, any claim for
wage and hour relief, including under the Fair Labor Stand-
ards Act or state or local law, any claim under the Family
Medical Leave Act or state or local law or regulation, any
claim under the National Labor Relations Act or state or lo-
cal law or regulation, or any other claim, whether
Para. 3 of the parties’ joint stipulation states, “The parties agree this Stip-
ulation of Facts, with attached exhibits described herein, constitutes the
entire record in this case and that no oral testimony is necessary or de-
sired by the parties.” I therefore will not consider the Respondent’s ex-
tra-record submission belatedly attached with a posthearing brief. I note,
however, that consideration of it would not impact the outcome of this
decision whatsoever.
GC SERVICES LIMITED PARTNERSHIP 7
contractual, common-law, statutory, or regulatory arising
out of, or in any way related to, Employee’s application for
employment with and/or employment with Company, the
termination thereof, this Agreement, or any other matter in-
cident or in any manner related thereto. It is the intent of the
parties that this Agreement shall be construed as broadly as
legally possible and shall apply to any and all legally cog-
nizable disputes between them regardless of when the dis-
pute has arisen or may arise and includes any dispute that
occurred before or after the parties execute this Agreement
as well as disputes that arise or are asserted after Employee
leaves the Company’s employ, regardless of the reason for
separation. This Agreement will apply to all claims, no mat-
ter when they accrue, excepting only claims which have al-
ready been filed in a court of proper jurisdiction in which
both parties are expressly identified by name in such pend-
ing lawsuit filed before this Agreement is signed by both
parties. The parties jointly agree neither may file any law-
suit to resolve any dispute between them but Employee may
file a complaint with any federal, state, or other governmen-
tal administrative agency, regarding any perceived infringe-
ment of any legally protected rights.
(Jt. Stip. ¶ 1(t); Jt. Exh. 2.) 4
Since at least December 15, 2015, at all its nationwide offices
and places of business, Respondent has maintained and required
all of its employees, managers, and executives to sign, as a con-
dition of employment, a Code of Business Ethics and Conduct,
which includes the following provision:
GC Services’ Dispute Resolution Program
The Company maintains a mandatory mutual dispute reso-
lution program. As a condition and qualification for em-
ployment or continued employment, All applicants and em-
ployees are required to sign and agree to GC Services’ Mu-
tual Agreement for Dispute Resolution, which is attached
as Attachment D. Should an employee decline to sign and
agree to the Mutual Agreement for Dispute Resolution, ef-
fective immediately, the Company shall consider the em-
ployee to have voluntarily separated his or her employment
from GC Services.
(Jt. Stip. ¶1(u); Jt. Exh. 3.)
The employees were notified of the MADR and the dispute
resolution program electronically through the Respondent’s in-
tranet and were required to sign electronic notices of receipt.
From January 1, 2015, through December 15, 2015, the Re-
spondent’s employees filed 13 charges or complaints with vari-
ous Federal, State, and local administrative agencies. From De-
cember 15, 2015 through the filing of the joint motion, the Re-
spondent’s employees filed 41 charges or complaints with vari-
ous Federal, State, and local administrative agencies including
the National Labor Relations Board, Equal Employment Oppor-
tunity Commission, and Department of Labor. The Respondent
4 “Jt. Exh.” stands for “joint exhibit” and “Jt. Stip. stands for “joint
stipulation of facts.” Although I have included some citations to the rec-
ord, I emphasize that my findings and conclusions are based not solely
on the evidence specifically cited, but rather are based my review and
consideration of the entire record.
has not disciplined or terminated an employee for filing an ad-
ministrative charge or complaint with, or participating in an in-
vestigation by any Federal, State, or local administrative agency.
(Jt. Stip. ¶¶ 1(v)–(y).)
III. DECISION AND ANALYSIS
Under Section 8(a)(1) of the NLRA, it is an unfair labor prac-
tice for an employer to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed by Section 7. The
rights Section 7 guarantees include the right “to form, join or as-
sist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection . . .”
Employees have a Section 7 right to utilize the Board’s pro-
cesses “without fear of restraint, coercion, discrimination, or in-
terference from their employer.” Bill Johnson’s Restaurants,
Inc., 461 U.S. 731, 740 (1983). Complete freedom of employees
to exercise their rights to file Board charges is necessary “to pre-
vent the Board’s channels of information from being dried up by
employer intimidation of prospective complainants and wit-
nesses.” NLRB v. Scrivener, 405 U.S. 117, 122 (1972), quoting
John Hancock Mutual Life Insurance Co. v. NLRB, 191 F.2d
483, 485 (D.C. Cir. 1951); See also Nash v. Florida Industrial
Comm’n, 389 U.S. 235 (1967). Interfering with employees’
rights to file charges with the Board in furtherance of concerted
employee activities concerning wages or other working condi-
tions violates Section 8(a)(1). See, e.g., Bill’s Electric, 350
NLRB 292, 296 (2007); Murphy Oil USA Inc. v. NLRB, 808 F.3d
1013, 1019 (5th Cir. 2015).
Arbitration agreements such as the MADR have been evalu-
ated under the same legal standards as other work rules. The
Board’s decision in Boeing Co., 365 NLRB No. 154 (2017), re-
versed part of the Board’s longstanding paradigm, set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), for
evaluating workplace rules that potentially infringe on Section 7
rights.5 Under Lutheran Heritage, the first inquiry is whether the
rule explicitly restricts activities protected by Section 7. If it
does, the rule is unlawful. For facially neutral rules, a violation
was previously “dependent upon a showing of one of the follow-
ing: (1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in re-
sponse to union activity; or (3) the rule has been applied to re-
strict the exercise of Section 7 rights.” Lutheran Heritage at 647.
Boeing overruled Lutheran Heritage only with respect to the first
prong of the facially-neutral paradigm. As such, the Board no
longer will find certain work rules unlawful merely upon a show-
ing that employees would reasonably construe the rule’s lan-
guage to prohibit or interfere with Section 7 activity.
The “reasonably construe” standard only applied to rules that
do not explicitly restrict activity protected by Section 7. In Lu-
theran Heritage, the Board analyzed whether a rule about using
abusive or profane language in the workplace was unlawful on
5 I have considered the parties’ arguments under Boeing, but for rea-
sons detailed herein, particularly the fact that Boeing only comes into
play for facially neutral documents, I do not believe it applies to the
MADR.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
its face as follows: “The rules do not expressly cover Section 7
activity. Nor are verbal abuse and profane language an inherent
part of Section 7 activity.” Lutheran Heritage, supra at 647.
Only after making this determination did the Board move on to
the criteria for facially-neutral rules. The first step then is to de-
termine whether the MADR expressly covers Section 7 activity
or whether the conduct it seeks to regulate is an inherent part of
Section 7 activity.6 For the reasons discussed below, I find the
MADR’s plain language explicitly restricts Section 7 activity.
The MADR expressly states, “Claims subject to arbitration in-
clude . . . any claim under the National Labor Relations Act
. . . .” It is hard to think of a more explicit and direct restriction
on employees’ rights to invoke the Board’s proceedings. The
Respondent argues that the clause at the end of the same section
of the MADR, stating the “Employee may file a complaint with
any federal, state, or other governmental administrative agency,
regarding any perceived infringement of any legally protected
rights,” cures the initial restriction. I disagree for the following
reasons.
First, the catchall statement that employees may file adminis-
trative complaints does not make the MADR neutral. There is a
difference between neutrality and contradiction. A contract can
expressly restrict something yet contain contradictory terms, as
this one does. Consider a simplistic example, by way of illustra-
tion, of an employment contract requiring adherence to a dress
code as a condition of continued employment and then stating,
in separate clauses, first, “Employees may wear blue headbands
only on Tuesdays” and later, “Employees may wear any color
attire they wish.” Can it be said with any integrity that this con-
tract does not include a restriction on the wearing of blue head-
bands? Putting aside for the moment legal interpretation, com-
mon sense dictates that the contract is not neutral regarding
whether or when employees can wear blue headbands. Contra-
dictory and perhaps confusing and ambiguous? Yes. Neutral?
No.7
Next, to decide whether the Respondent’s argument has merit,
it is necessary to examine the essence of the MADR. Like most
other arbitration agreements, the MADR does not purport to reg-
ulate workplace conduct. Instead, it regulates the legal forum in
the event of a work-related dispute, such as, for example, a dis-
pute over discipline for violating a rule in the employer’s
6 In Lutheran Heritage, the Board analyzed rules about abusive/pro-
fane language. Its extension to arbitration contracts appears to be some-
what of a misfit. In any event, a document that explicitly restricts em-
ployees’ core Sec. 7 rights on its face, whether a handbook rule about
workplace conduct or an arbitration contract, doesn’t survive under any
paradigm.
7 Sec. 2 of the MADR provides that disputes over the MADR’s ap-
plicability must be resolved by final and binding arbitration. (Jt. Exh. 2.)
8 It is undisputed that the Board has the authority to interpret the terms
of a collective-bargaining agreement to determine whether an unfair la-
bor practice has been committed. NLRB v. C&C Plywood Corp. 385
U.S. 421, 428 (1967). Moreover, the Board, particularly in the last few
years, has interpreted countless individual arbitration contracts to deter-
mine whether they violate the NLRB.
9 The contradiction is particularly stark given that there is no private
cause of action to prevent and remedy unfair labor practice. Enforcement
rests exclusively with the Board, triggered necessarily by the filing of a
employee handbook. The MADR is a contract about how em-
ployees and the employer can litigate, pure and simple. See Epic
Systems, supra at 6 (“The parties before us contracted for arbi-
tration.”); AT&T Mobility LLC v. Concepcion, 563 U.S. 333
(2011) (Primary provision of the FAA reflects the “’fundamental
principle that arbitration is a matter of contract”’ and “courts
must place arbitration agreements on equal footing with other
contracts.” (quoting Rent-A-Center, West, Inc. v. Jackson, 561
U.S. 63, 67 (2010))); See also Prima Paint, 388 U.S. 395, at
404, fn. 12 (1967); (Through the Arbitration Act, Congress
sought “to make arbitration agreements as enforceable as other
contracts, but not more so.”).
Because the MADR is a contract, determining what it says re-
quires interpreting its terms under contract law.8 One of the pri-
mary canons of contract law is that a contract’s terms should be
harmonized if possible. To say that employees must arbitrate
any claim under the National Labor Relations Act, while at the
same time saying employees may file a complaint with any gov-
ernmental administrative agency is a complete contradiction, and
I see no way to harmonize these provisions without nullifying
one of them.9
Given that the provisions cannot be harmonized, the next step
is to determine if one carries more weight than the other. It is a
generally accepted principle of contract interpretation that “spe-
cific terms and exact terms are given greater weight than general
language.” Restatement (Second) of Contracts § 203 (1981).10
The MADR’s specific requirement to individually arbitrate any
claim under the NRLA thus prevails over the language that em-
ployees may file a complaint with any federal, state, or other
governmental administrative agency, regarding any perceived
infringement of any legally protected rights.
Even assuming the specific clause does not prevail over the
general, and therefore uncertainty remains, the result is the same.
In cases of uncertainty, the language of a contract should be in-
terpreted most strongly against the party who caused the uncer-
tainty to exist, i.e. the drafting party. See, e.g., Restatement (Sec-
ond) of Contracts § 206; United States v. Seckinger, 397 U.S.
203, 210 (1970). As the Court stated in Mastrobuono v. Shear-
son Lehman Hutton, Inc., 514 U.S. 52, 63, (1995), “Respondents
drafted an ambiguous document, and they cannot now claim the
charge, as the General Counsel is precluded from looking for violations
on his own initiative.
As discussed more fully below, the Respondent’s argument that arbi-
tration provisions are contained in many collective-bargaining agree-
ments and that the Board may in its discretion defer to arbitral awards
under certain circumstances, is inapposite; This case involves employer-
imposed individual agreements as a condition of employment.
10 The MADR’s construction, whether inadvertent or artful, begs the
question: What could possibly be the purpose of specifically saying that
any claims under the National Labor Relations Act must be individually
arbitrated if this specific statement is only nullified by general language
permitting administrative complaints?
I note that in addition to the specific language referencing claims un-
der the NLRA, the MADR also states, in more general all-inclusive
terms, that it applies to “any claim arising under federal, state, or local
statute . . .” Therefore, the general language providing for filing admin-
istrative charges is contradicted elsewhere in the contract by both
broadly-worded general language as well as specific language.
GC SERVICES LIMITED PARTNERSHIP 9
benefit of the doubt.” 11
The Respondent asserts that the fact that employees filed
charges with administrative agencies means they understood the
MADR permits them to do so.12 The problem is that this doesn’t
change the fact that the MADR, by its own terms, explicitly and
specifically requires arbitration of any claim under the NLRA.13
The next question is whether the MADR, an arbitration agree-
ment that on its face imposes a restriction on employees’ rights
to utilize the Board’s procedures, is nonetheless valid pursuant
to the Federal Arbitration Act, 9 U.S.C.§1 et seq. (FAA). It is
not, as the clear language of the NLRA, and the uniformity with
which this issue has been interpreted by both the Board and the
various courts to have addressed it, show.
The NLRA, at Section 10(a), explicitly and exclusively gives
the Board power “to prevent any person from engaging in any
unfair labor practice” and states that this power “shall not be af-
fected by any other means of adjustment or prevention that has
been or may be established by agreement, law, or otherwise.”
(Emphasis supplied.) Section 10(b) provides:
Whenever it is charged that any person has engaged in or is
engaging in any such unfair labor practice, the Board, or any
agent or agency designated by the Board for such purposes,
shall have power to issue and cause to be served upon such per-
son a complaint stating the charges in that respect, and contain-
ing a notice of hearing before the Board or a member thereof,
or before a designated agent or agency.
The FAA, at 9 U.S.C. § 2 provides:
A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by arbi-
tration a controversy thereafter arising out of such contract or
transaction, or the refusal to perform the whole or any part
thereof, or an agreement in writing to submit to arbitration an
existing controversy arising out of such a contract, transaction,
or refusal, shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation
of any contract.
If possible, the FAA and the NLRA must be read to give both
effect. “The courts are not at liberty to pick and choose among
congressional enactments, and when two statutes are capable of
co-existence, it is the duty of the courts, absent a clearly
11 This is particularly true with adhesion contracts, such as the
MADR. See Batory v. Sears, Roebuck & Co., 124 Fed.Appx. 530, 531–
532 (9th Cir.2005).
12 I am not looking at how the MADR was reasonably interpreted
under Boeing. As noted in Lutheran Heritage, “Work rules are neces-
sarily general in nature and are typically drafted by and for laymen . . .”
343 NLRB at 648; see also Boeing, supra. at fn. 41. Arbitration con-
tracts, by contrast, are legal documents that are inherently more difficult
to interpret, rendering objective lay employee analysis misplaced.
13 The Respondent urges reliance on the dissent in GameStop Corp.,
363 NLRB No. 89, slip op. at 4 (2015), and arguing the dissent reasoned
that language in an arbitration agreement that expressly preserves the
right to file administrative complaints precludes a finding that it unlaw-
fully interfered with Board charge-filing. This is an unwarranted exten-
sion of what the dissent actually said, and it is misplaced in the present
context. GameStop involved the inverse: The prohibition did not specif-
ically include NLRA claims, but the agreement at issue specifically ex-
cluded from the term “Covered Claim” “[m]atters within the jurisdiction
expressed congressional intention to the contrary, to regard each
as effective.” Morton v. Mancari, 417 U.S. 535 (1974).
The FAA reflects an “emphatic federal policy in favor of ar-
bitral dispute resolution.” AT&T Mobility supra, at 344; KPMG
LLP v. Cocchi, 565 U.S. 18, 21 (2011). This “emphatic” policy
is not limitless, however. ‘“The Board asserts a public right
vested in it as a public body, charged in the public interest with
the duty of preventing unfair labor practices’. . . Wherever pri-
vate contracts conflict with its functions, they obviously must
yield or the Act would be reduced to a futility.” J. I. Case Co. v.
NLRB, 321 U.S. 332, 337 (1944), quoting National Licorice Co.
v. National Labor Relations Board, 309 U.S. 350 (1940). As
noted, arbitration agreements under the FAA are on equal foot-
ing with other contracts. AT&T Mobility, supra; Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006.)
There is “no doubt that illegal promises will not be enforced
in cases controlled by the federal law.” Kaiser Steel Corp. v.
Mullins, 455 U.S. 72, 77 (1982).14 The FAA incorporates this
through its saving clause, providing that arbitration agreements
“shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any con-
tract.” 9 U.S.C. § 2. One such ground is illegality. See Buckeye
Check Cashing, supra. Because the provision requiring individ-
ual arbitration of claims under the NLRA unlawfully restricts
employees’ right to invoke the Board’s procedures, it meets the
criteria of the FAA's saving clause for non-enforcement of an
illegal contract. As such, the two statutes can be effectively read
together.
Notably, the Court in Epic Systems recognized that Congress
can require specific enforcement mechanisms, stating, “Telling,
too, is the fact that when Congress wants to mandate particular
dispute resolution procedures it knows exactly how to do so.
Congress has spoken often and clearly to the procedures for re-
solving ‘actions,’ ‘claims,’ ‘charges,’ and ‘cases’ in statute after
statute.” 138 S.Ct. at 1626. The Court then provided examples
of statutory dispute resolution schemes administered by the De-
partment of Labor and the Equal Employment Opportunity Com-
mission (EEOC), which are not in any material way different
than the Board’s dispute resolution mechanism for violations of
the NLRA, governed by Section 10 of that statute.15
The Respondent argues that there is no congressional
of the National Labor Relations Board.” Id. In none of the other cases
where the Respondent encourages reliance on the dissent’s reasoning
does the arbitration agreement at issue say explicitly and with specific
statutory reference that employees must arbitrate all of their NLRA
claims.
14 “It is a bedrock principle of federal labor law and policy that agree-
ments in which individual employees purport to give up the statutory
right to act concertedly for their mutual aid or protection are void.” Bris-
tol Farms, 363 NRLB No. 45, slip op. at 3 (2015).
15 In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28
(1991), in determining lawsuits under the Age Discrimination in Em-
ployment Act (ADEA) could be subject to individual arbitration pursuant
to an arbitration agreement, the Court stated, “An individual ADEA
claimant subject to an arbitration agreement will still be free to file a
charge with the EEOC, even though the claimant is not able to institute
a private judicial action.” The agreement in Gilmer did not specifically
mention ADEA claims.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
command prohibiting arbitration of NLRA claims, citing to cases
where the Board has deferred unfair labor practices to arbitra-
tion.16 The deferral cases are fundamentally and crucially differ-
ent from what the MADR contemplates, because they involve
agreements to arbitrate embodied in collective-bargaining agree-
ments negotiated mutually between the employees’ bargaining
representative and the employer.17. A crucial aspect of the
Board’s deferral decisions in this context is that deferral is ex-
clusively a matter of Board discretion in line with Section 10(a)
of the NLRA. Exercise of that discretion comes with safeguards
to ensure the parties’ statutory rights are adequately considered
before the parties will be forever bound by an arbitrator’s deci-
sion.18 The situation here is radically different, as it provides for
final and binding arbitration of NLRA claims pursuant to indi-
vidual contracts of adhesion. As the Board has held in the con-
text of alleged violations of Section 8(a)(4) of the NLRA:
The prohibition expressed in Section 8(a)(4) against dis-
charging or otherwise discriminating against an employee
because he has filed charges or given testimony under the
Act is a fundamental guarantee to employees that they may
invoke or participate in the investigative procedures of this
Board without fear of reprisal and is clearly required in or-
der to safeguard the integrity of the Board's processes.
Filmation Associates, 227 NLRB 1721 (1977) (Emphasis sup-
plied). The Board in Filmation Associates determined that its
function of ensuring the integrity of Board processes rests solely
with the Board and cannot be delegated to the parties or to an
arbitrator. See also Operating Engineers Local 138, 148 NLRB
679 (1964); McKinley Transport, 219 NLRB 1148 (1975). The
same reasoning appears here, because interference is interfer-
ence, whether at the front end or the back end of the Board’s
processes.
Finally, interpreting an arbitration agreement to permit waiver
of an employee’s right to file Board charges encourages an ab-
surd result. This is because “[a]ny person may file a charge al-
leging that any person has engaged in or is engaging in any unfair
labor practice affecting commerce.” 29 CFR § 102.9. An em-
ployee with an unfair labor practice allegation subjected to man-
datory arbitration can ask: “Mom, can you go down to the NLRB
on your lunch break tomorrow and file a charge about my em-
ployer committing an unfair labor practice?; I had to sign an
agreement agreeing to arbitrate all my NLRA claims if I wanted
to keep my job so I can’t do it myself.” Employees who are not
coerced against this workaround will set the course for dual liti-
gation of the same unfair labor practice claims in arbitration and
at the Board. And really, more fundamentally, it makes no sense
that aggrieved employees’ rights to file Board charges can be
16 See R. Br. p. 7.
17 These cases implicate Sec. 203(d) of the Labor-Management Rela-
tions Act, which states, “[f]inal adjustment by a method agreed upon by
the parties is declared to be the desirable method for settlement of griev-
ance disputes arising over the application or interpretation of an existing
collective-bargaining agreement.” 29 U.S.C. §173(d).
In Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974), the
Court, when discussing statutorily protected rights related to collective
activity, stated, “These rights are conferred on employees collectively to
foster the processes of bargaining and properly may be exercised or
stripped by an employer, given that a person with less of an in-
terest or no interest in the outcome of the Board’s proceedings
may invoke such a right.
Based on the foregoing, because the MADR states, on its face,
that any claims under the National Labor Relations Act must be
arbitrated, I find it interferes with employees’ Section 7 right to
access to Board procedures and violates Section 8(a)(1) of the
NLRA.
CONCLUSIONS OF LAW
1. By maintaining the Mutual Agreement for Dispute Reso-
lution that interferes with employees’ fundamental Section 7
right to file charges with the Board, the Respondent has violated
Section 8(a)(1) of the Act.
2. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and 2(7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having found the Respondent maintains a Mutual Agreement
for Dispute Resolution that explicitly states claims under the
NLRA are subject to individual arbitration, the Respondent shall
notify all current and former employees who were required to
sign the Mutual Agreement for Dispute Resolution that it has
been rescinded or revised and provide them a copy of the revised
agreement. I will recommend that the Respondent post a notice
in all locations where the Mutual Agreement for Dispute Reso-
lution was utilized. Guardsmark, LLC, 344 NLRB 809, 812
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007).
I will order the Respondent to cease and desist from interfer-
ing with, restraining, or coercing employees in the exercise of
right to file charges with the Board in any like or related manner.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The Respondent, GCS Services Limited Partnership and GC
Financial Corp., Houston, Texas, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from maintaining a Mutual Agreement for
Dispute Resolution that explicitly states claims under the NLRA
are subject to individual arbitration, and thereby interferes with
employees’ fundamental Section 7 right to file charges with the
Board.
2. Notify all applicants and current and former employees
relinquished by the union as collective-bargaining agent to obtain eco-
nomic benefits for union members.”
18 See Spielberg Mfg. Co., 112 NLRB 1080 (1955); Babcock & Wil-
cox Construction Co., 361 NLRB 1127 (2014); Collyer Insulated Wire,
192 NLRB 837 (1971).
19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
GC SERVICES LIMITED PARTNERSHIP 11
who signed the Mutual Agreement for Dispute Resolution, that
it been rescinded or revised and provide them a copy of the re-
vised agreement.
3. Within 14 days after service by the Region, post at its Tuc-
son, Arizona facility and all other facilities where the Mutual
Agreement for Dispute Resolution has been maintained, copies
of the attached notice marked “Appendix.”20 Copies of the no-
tice, on forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other ma-
terial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the fa-
cility involved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondent at any time since December 15, 2015.
Dated, Washington, D.C. March 19, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey this
notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT maintain a Mutual Agreement for Dispute Res-
olution (MADR) that bars or restricts your right to file charges
with the National Labor Relations Board (NLRB).
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed to
you by Section 7 of the Act.
WE WILL rescind the MADR in all of its forms or revise it in
all of its forms to make clear to employees that it does not bar or
restrict them from filing charges with the NLRB.
WE WILL notify all current and former employees who were
required to sign or otherwise become bound to the MADR in any
form that it has been rescinded or revised and, if revised, provide
them a copy of the revised agreement.
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/28-CA-166389 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.
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”