IIG WIRELESS, INC. F/K/A UNLIMITED PCS, INC.; and UPCS CA RESOURCES, INC.

National Labor Relations Board - Board Decisions

Apr 30, 2020

369 N.L.R.B. 66 (N.L.R.B. 2020)

369 NLRB No. 66
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.
IIG Wireless, Inc. f/k/a Unlimited PCS, Inc.; and
UPCS CA Resources, Inc. and Joanna Rosales.
Case 21–CA–152170
April 30, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On April 14, 2016, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Respond-
ents filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondents
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 conclusions1 only to the extent consistent with
this Decision and Order.
Background
Since at least August 2012, Respondent IIG has main-
tained a Mutual Arbitration Agreement (the Agreement),
which employees are required to sign as a condition of em-
ployment. The relevant portion of the Agreement reads as
follows:
([T]he “Company”) and I mutually agree that any dis-
pute or controversy between us arising from or in any
way related to my employment with the Company, shall
be submitted to and determined by binding arbitration
under the California Arbitration Act (Cal. Code Civ.
Proc. § 1280 et seq.) . . . . This agreement governs all
disputes between the Company and me, including with-
out limitation disputes related to my seeking employ-
ment with the Company, the terms or conditions of my
employment, the termination of my employment, and
breaches of any duty owed by me to the Company. This
agreement governs all disputes whether based on tort,
contract, statute, common law or otherwise, including
but not limited to claims for misappropriation of trade
secrets, breach of any duty of loyalty, contractual obli-
gation or fiduciary duty, harassment and discrimination.
1 We have amended the judge’s conclusions of law consistent with
our findings herein.
2 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 2–3, 17. Under Boeing, the Board first deter-
mines whether a challenged rule or policy, when reasonably interpreted,
would potentially interfere with the exercise of rights under Sec. 7 of the
This agreement, however, does not govern disputes re-
garding entitlement to Worker’s Compensation or Un-
employment Insurance benefits . . . . I understand that by
agreeing to this binding arbitration provision, both I and
the Company give up our rights to trial by jury.
Relying on Murphy Oil USA, Inc., 361 NLRB 774
(2014), enf. den. in relevant part 808 F.3d 1013 (5th Cir.
2015), the judge found that the Respondents violated Sec-
tion 8(a)(1) of the National Labor Relations Act by main-
taining and enforcing the Agreement because it required
employees to waive their right to pursue class or collective
actions in all forums. Applying the Board’s decision in U-
Haul Co. of California, 347 NLRB 375, 377–378 (2006),
enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007), which relied
on the “reasonably construe” prong of Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004), the judge also
found that the maintenance of the Agreement violated the
Act because employees would reasonably read the Agree-
ment to prohibit or restrict the filing of unfair labor prac-
tice charges with the Board.
On October 24, 2018, the Board issued a Decision, Or-
der, and Notice to Show Cause in this case. The Board
dismissed the allegation that the maintenance and enforce-
ment of the Agreement unlawfully restricted employees’
rights to pursue class or collective actions in light of the
Supreme Court’s decision in Epic Systems Corp. v. Lewis,
584 U.S. ___, 138 S.Ct. 1612, 1632 (2018), in which the
Court held that employer-employee agreements that con-
tain class- and collective-action waivers and require indi-
vidualized arbitration do not violate Section 8(a)(1) of the
Act and should be enforced as written pursuant to the Fed-
eral Arbitration Act (FAA). The Board also gave notice
to the parties to show cause why the remaining issue in the
case—concerning the Respondents’ alleged restriction on
employee access to the Board—should not be remanded
to the judge for further proceedings in light of the Board’s
decision in Boeing Co., 365 NLRB No. 154 (2017).2 The
Respondents and the General Counsel each filed a re-
sponse to the Notice to Show Cause. Both parties opposed
remanding this case to the judge. In view of the parties’
responses, and since the remaining allegations may be de-
cided based on the existing record, we find that a remand
is unnecessary.
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 Lu-
theran Heritage. Other aspects of Lutheran Heritage remain intact, in-
cluding whether a challenged rule or policy explicitly restricts activities
protected by Sec. 7. 343 NLRB at 646.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For the reasons explained below, we adopt the judge’s
finding that the Respondents’ maintenance of the Agree-
ment violated Section 8(a)(1) of the Act.
Discussion
In Prime Healthcare Paradise Valley, LLC, 368 NLRB
No. 10 (2019), the Board held that, notwithstanding the
Supreme Court’s decision in Epic Systems, above, 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 agree-
ments be enforced as written “may be ‘overridden by a
contrary congressional command,’” which the Board
found to be established in Section 10 of the Act. Id. (quot-
ing Shearson/American Express, Inc. v. McMahon, 482
U.S. 220, 226 (1987)).
Accordingly, the Board held that an arbitration agree-
ment that “explicitly prohibits the filing of claims with the
Board or, more generally, with administrative agencies
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 found that, under Boeing, arbitration
agreements violate the Act when, “taken as a whole, [they]
make arbitration the exclusive forum for the resolution of
all claims, including federal statutory claims under the Na-
tional Labor Relations Act.” Id., slip op. at 6. Further, the
Board found that, “as a matter of law, there is not and can-
not be any legitimate justification for provisions, in an ar-
bitration agreement or otherwise, that restrict employees’
access to the Board or its processes.” Id.
The Agreement here requires that “any dispute or con-
troversy . . . arising from or in any way related to my em-
ployment with the Company, shall be submitted to and de-
termined by binding arbitration.” As in Prime Healthcare,
we find that such language makes arbitration the exclusive
forum for resolving all disputes, including those brought
under the Act, and is therefore unlawful. See also Beena
Beauty Holding, Inc. d/b/a Planet Beauty, 368 NLRB No.
91, slip op. at 2–3 (2019) (finding that arbitration agree-
ment requiring employer and employees “to submit any
claims that either has against the other to final and binding
arbitration” made arbitration the exclusive forum for
3 Prime Healthcare also considered and rejected the contention that
an arbitration agreement is rendered lawful by language that limits its
scope to claims for which a court would be authorized to grant relief. Id.,
resolving all disputes and was unlawful under Prime
Healthcare). Accordingly, we find that the Agreement is
unlawful under Category 3 of Boeing. Id., slip op. at 6–
7.3
AMENDED CONCLUSION OF LAW
We find that the Respondents, as joint employers, have
violated Section 8(a)(1) of the Act by maintaining a Mu-
tual Arbitration Agreement that employees would reason-
ably believe bars or restricts them from filing unfair labor
practice charges with the National Labor Relations Board.
ORDER
The Respondents, IIG Wireless, Inc, f/k/a Unlimited
PCS, Inc., Garden Grove, California, and UPCS CA Re-
sources, Inc., Irvine, California, joint employers, their of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a Mutual Arbitration Agreement that
employees would reasonably believe bars or restricts their
right to file charges with the National Labor Relations
Board.
(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 Arbitration Agreement in all its
forms or revise it in all its forms to make clear to employ-
ees that the Mutual Arbitration Agreement 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 Mutual
Arbitration Agreement in any form that the Mutual Arbi-
tration Agreement has been rescinded or revised, and if
revised, provide them a copy of the revised agreement.
(c) Within 14 days after service by the Region, post at
its facilities in Garden Grove and Irvine, California, and at
all other facilities where the unlawful arbitration agree-
ment is or has been in effect, copies of the attached notice
marked “Appendix” in both English and Spanish. Copies
of the notice, on forms provided by the Regional Director
for Region 21, after being signed by the Respondents’ au-
thorized representative, shall be posted by the Respond-
ents and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting
of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an
slip op. at 6 & fn. 12. Accordingly, we reject the Respondents’ argument
on exception that its Agreement is lawful because it is “directed at civil
litigation, not administrative charges.”
IIG WIRELESS, INC. F/K/A UNLIMITED PCS, INC.; AND UPCS CA RESOURCES, INC. 3
internet site, and/or other electronic means, if the Re-
spondents customarily communicate with their employees
by such means. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ents have gone out of business or closed the facility in-
volved in these proceedings, the Respondents shall dupli-
cate and mail, at their own expense, a copy of the notice
to all current employees and former employees employed
by the Respondents at any time since November 14, 2014.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 21 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
Dated, Washington, D.C. April 30, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain a Mutual Arbitration Agreement
that our employees reasonably would believe bars or
restricts their right to file charges with the National Labor
Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Mutual Arbitration Agreement in
all its forms or revise it in all its forms to make clear that
the Mutual Arbitration Agreement 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 Arbitration Agreement in any form that the Mutual
Arbitration Agreement has been rescinded or revised and,
if revised, WE WILL provide them a copy of the revised
agreement.
IIG WIRELESS, INC. AND UPCS CA RESOURCES,
INC.
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-152170 or by using the QR
code below. Alternatively, you can obtain a copy of the de-
cision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273–1940.
Thomas Rimbach, Esq. and Lindsay R. Parker, Esq., for the Gen-
eral Counsel.
Christine D. Baran, Esq. and John A. Mavros, Esq. (Fisher &
Phillips, LLP), for the Respondent.
Matthew Righetti, Esq. (Righetti Glugoski, P.C.) for the Charg-
ing Party.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. This is
another case involving an alleged unlawful mandatory arbitra-
tion provision. The General Counsel alleges that, as in D. R.
Horton, 357 NLRB 2277 (2012), and Murphy Oil USA, Inc., 361
NLRB 774 (2014), the subject provision here violates the Na-
tional Labor Relations Act both because it would reasonably be
construed to prohibit employees from filing unfair labor practice
charges with the Board and because it has been applied to pre-
clude employees from pursuing other employment-related
claims on a class or representative basis either in arbitration or
in court.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On January 26, 2016, the General Counsel, the Charging Party
(Joanna Rosales), and the Respondents (IIG Wireless, Inc. and
UPCS CA Resources, Inc.) jointly filed a motion and stipulation
of facts requesting that the allegations be resolved without a
hearing based on the stipulated record. The motion was granted
the same day, and the General Counsel and the Respondent Com-
panies thereafter filed briefs on March 10 and 11, respectively.1
Based on those briefs and the entire stipulated record, for the rea-
sons set forth below I find that the Respondents unlawfully main-
tained and enforced the mandatory arbitration provision as al-
leged.2
I. THE FACTS
Respondent IIG is engaged in the retail sale of wireless and
telecommunications products and maintains its principal offices
and a facility in Garden Grove, California. Respondent UPCS
provides staffing for wireless-communications retail facilities
and maintains its principle offices and a facility in Irvine, Cali-
fornia.
Since about April 2013, Respondents have been joint employ-
ers of the employees of IIG, including Rosales. UPCS provided
staffing for the California retail facilities operated by IIG, admin-
istered a common labor relations policy with IIG for its employ-
ees, and exercised control over that policy.
Rosales was hired by IIG in August 2012. Pursuant thereto,
on August 8, 2012, she signed and agreed to be bound by a Mu-
tual Arbitration Agreement that IIG maintains and presents to its
employees for execution as part of the application process. In
relevant part, the Agreement states that “binding arbitration of
disputes, rather than litigation in courts,” is a “generally faster,
cheaper and less formal” means for resolving employment dis-
putes, and that the Company is committed to using it to resolve
“all legal disputes” as an “alternative to the court system.” Ac-
cordingly, it provides that, “as a condition of employment,” em-
ployees must agree to binding arbitration of “any dispute or con-
troversy between [the Company and the employee] arising from
or in any way related to . . . employment with the Company,”
except for disputes regarding worker’s compensation or unem-
ployment insurance benefits. The Agreement does not specifi-
cally state, however, whether disputes must be arbitrated indi-
vidually or may be arbitrated on a class or collective basis.
Rosales worked for IIG through January 2014, when she was
terminated from her employment by IIG and UPCS. About 9
months later, in October 2014, she filed a demand for arbitration
before the JAMS arbitration service, on behalf of herself and an
alleged class of “similarly situated and aggrieved employees,”
regarding Respondents’ alleged wage and hour and other viola-
tions under the California Labor Code.
On November 4, 2014, Respondents sent letters to both JAMS
and Rosales’s attorney formally objecting to the demand for
class arbitration. Respondents asserted that Rosales’s demand
“seeks a collective arbitration where none is authorized by the
underlying arbitration agreement.” IIG also specifically asserted
1 See Sec. 102.35(a)(9) of the Board’s Rules.
2 The initial charge was filed and served on May 13 and 14, 2015,
respectively, and the complaint issued a few months later on July 29.
that, because the Agreement is “silent” as to class or collective
arbitration, “it is resigned to individual arbitration.”
A few weeks later, on November 17, 2014, Rosales filed a
class or representative-action complaint against Respondents in
the Superior Court of California, County of Orange, asserting
wage and hour and other claims under the California Labor Code
(Rosales v. UPCS CA Resources, Inc. et al., Case No. 30-2014-
00756943-CU-OE-CXC). On November 19, she amended the
complaint to reflect a representative action under the California
Labor Code’s Private Attorneys General Act (PAGA).
On January 14, 2015, Respondents filed a cross-complaint for
declaratory and injunctive relief in the state court action seeking:
(1) a declaration that the Agreement prohibits class or repre-
sentative arbitration of disputes subject to the Agreement; (2) an
order enjoining Rosales from proceeding with collective arbitra-
tion against Respondents; (3) a declaration that the Agreement
reserves for the Superior Court jurisdiction over all questions
concerning whether the Agreement prevents class arbitration of
disputes subject thereto; and (4) an order enjoining Rosales from
seeking any determination or seeking to enforce any determina-
tion from the arbitrator that the Agreement provides the oppor-
tunity for collective resolution of any dispute subject thereto.
About 6 months later, on June 8, Respondents also filed a mo-
tion for stay of the action and all discovery in the state court case.
Thereafter, on June 16, Rosales filed a petition to compel ar-
bitration of the Respondents’ cross-complaint. The petition
sought: (1) an order referring the question of arbitrability of class
claims to the arbitrator for decision; (2) in the event the Superior
Court decided to make a determination whether class arbitration
is permissible under the terms of the Agreement, an order com-
pelling arbitration of the class claims challenged in the cross-
complaint; and (3) an order staying the cross-complaint pending
arbitration.
On June 23, Respondents filed a motion for judgment on the
pleadings in the state court action. A week later, on July 1, they
also filed an opposition to Rosales’s petition to compel arbitra-
tion of their cross-complaint.
On July 7, Rosales filed a reply in support of her petition to
compel arbitration of the cross-complaint. She also filed an op-
position to the Respondents’ motion for stay on July 10, and an
opposition to their motion for judgment on the pleadings on July
13.
On July 14, the Superior Court issued a minute order denying
Rosales’s petition to compel arbitration of the Respondents’
cross-complaint. In its order, the court held, among other things,
that the “subject arbitration agreement is silent on the availability
of class/representative arbitration—thus requiring [Rosales] to
arbitrate her individual claims, only, pursuant to [Stolt-Nielsen,
S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 684–685
(2010)].”
Thereafter, in late July, the Superior Court granted Respond-
ents’ motion for a stay of the PAGA action and formal discovery.
However, it stayed Respondents’ motion for judgment on the
pleadings pending the outcome of the appeal process.
The Board’s commerce jurisdiction is undisputed and well established
by the admitted allegations and/or stipulated facts.
IIG WIRELESS, INC. F/K/A UNLIMITED PCS, INC.; AND UPCS CA RESOURCES, INC. 5
In the meantime, on July 16, Rosales filed a notice of appeal
of the court’s order denying her petition to compel arbitration of
the cross-complaint. Approximately 3 months later, on October
31, she filed her opening brief in support of the appeal with the
California Court of Appeal, Fourth Appellate District, Division
3 (Case G052269). On December 17, Respondents filed a brief
in response.
II. ANALYSIS
As indicated above, the General Counsel alleges that the sub-
ject arbitration provision is clearly unlawful under D. R. Horton
and Murphy Oil for two reasons: first, because employees would
reasonably construe it to require arbitration of unfair labor prac-
tice allegations, thereby preventing them from filing such
charges before the Board; and, second, because Respondents ap-
plied the provision to prevent Rosales from pursuing her wage
and hour and other state law claims against them on a class or
representative basis either in arbitration or in court.
In response to the first, Respondents argue that employees
would not reasonably construe the provision in such a manner as
“the overall context of Agreement is directed at civil litigation,
not administrative charges.” However, the language of the pro-
vision is not significantly or substantially different from provi-
sions found unlawful in other D. R. Horton/Murphy Oil cases.
See, e.g., ISS Facility Services, Inc., 363 NLRB No. 160 (2016)
(provision stated that all disputes between the employer and the
employee would be decided in arbitration “and not by way of
court or jury trial”); and Cowabunga, Inc., 363 NLRB No. 133
(2016) (provision stated that all claims between the employer
and the employee would be resolved through binding arbitration
“rather than through court litigation”).3 See also U-Haul Com-
pany of California, 347 NLRB 375, 377–378 (2006), enfd. 255
Fed. Appx. 527 (D.C. Cir. 2007) (finding employer’s policy re-
quiring arbitration of all disputes unlawful notwithstanding that
the memo announcing the policy stated that the arbitration pro-
cess was limited to disputes “that a court of law would be author-
ized to entertain or would have jurisdiction over to grant relief”).
With respect to the second, Respondents argue that D. R. Hor-
ton and Murphy Oil were wrongly decided and have been re-
jected in relevant part, not only by the Fifth Circuit on appeal in
those cases,4 but by every other federal district and appellate
court that has considered them in determining whether to enforce
such mandatory individual arbitration provisions. However, Re-
spondents apparently missed Totten v. Kellogg Brown & Root,
LLC et al., — F.Supp.3d — 2016 WL 316019, 2016 U.S. Dist.
LEXIS 10424 (C.D. Cal. Jan. 22, 2016) (Dolly M. Gee, J.), like-
wise a California wage and hour case, where, following an ex-
haustive analysis, the district court expressly endorsed the
Board’s reasoning in declining to enforce the employer’s man-
datory individual arbitration agreement in that case.5
In any event, administrative law judges must follow Board
precedent unless and until it is overruled by the Supreme Court.
Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004). Under that
precedent, it is unlawful for an employer to maintain and/or
3 As here, the mandatory arbitration provision in Cowabunga ex-
pressly excluded claims for unemployment and worker’s compensation
benefits.
enforce a mandatory arbitration provision that, either on its face
or as applied, precludes employees from pursuing employment
related claims on a class or collective basis in any forum. See,
e.g., Haynes Bldg. Services, LLC, 363 NLRB No. 125 (2016);
Fuji Food Products, 363 NLRB No. 118 (2016); and Employer’s
Resource, 363 NLRB No. 59 (2015) (finding such violations un-
der the reasoning of D. R. Horton and Murphy Oil where, like
here, the arbitration agreement was silent regarding class or col-
lective claims but was applied by the employer to bar them in
any forum).
Respondents also make various other arguments why no vio-
lations should be found in this case. All of the arguments are
contrary to Board precedent as well.
(1) Timeliness of the underlying charges. Respondents argue
that the complaint allegations must be dismissed because
Rosales’s May 13, 2015 charge was filed and served more than
6 months after she was given clear and unequivocal notice of
both the maintenance and the enforcement of the arbitration pro-
vision. However, the Board has repeatedly rejected this argu-
ment in previous D. R. Horton/Murphy Oil cases, holding that a
violation may be found where, as here, an unlawful provision has
been maintained and/or enforced within 6 months of the charge,
regardless of when the provision became effective or was first
acknowledged by or enforced against the employee. See, e.g.,
Cowabunga, Inc., slip op. at 2; Fuji Food Products, slip op. at 1
fn. 1, 7; and CPS Security (USA), Inc., 363 NLRB No. 86, slip
op. at 1 fn. 2 (2015). Here, there is no dispute that Respondents
continued to maintain the subject arbitration provision within 6
months of Rosales’s initial unfair labor practice charge. Nor is
there any dispute that Respondents continued to seek enforce-
ment of the provision against Rosales within 6 months of the
charge; specifically, through their January 14, 2015 cross-com-
plaint and various subsequent motions and pleadings in
Rosales’s state court action.
(2) Rosales’s standing to file the underlying charges. Re-
spondents also assert that Rosales lacked “standing” to file the
unfair labor practice charges because Respondents’ alleged un-
lawful maintenance and enforcement of the arbitration provision
occurred well after her employment ended in January 2014. The
Board has repeatedly rejected such arguments in prior cases as
well, holding that former employees are protected by the Act and
may file unfair labor practice charges over their former em-
ployer’s post-termination maintenance and enforcement of an in-
dividual arbitration policy. See Cowabunga, slip op. at 2; Fuji
Food Products, slip op. at 1 fn. 1, 7; Employer’s Resource, slip
op. at 1 fn. 2, 6; and Cellular Sales of Missouri, 362 NLRB 241,
246–247 (2015).
(3) Rosales’s concerted activity. Finally, Respondents argue
that the allegations should be dismissed because Rosales did not
engage in any concerted activity within the meaning of the Act.
However, again, the Board in prior cases has repeatedly rejected
this argument, holding that the filing of an employment-related
class or collective action by an individual constitutes concerted
activity under the Act. See Cowabunga, slip op. at 2; Fuji Food
4 D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir 2013); and Mur-
phy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
5 Appeal filed with the Ninth Circuit Feb. 22, 2015 (No. 16–55260).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Products, slip op. at 1 fn. 1; and Employer’s Resource, slip op at
1 fn. 2, 7, and cases cited there.
CONCLUSIONS OF LAW
Respondents, as joint employers, have engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act by:
1. Maintaining a mutual arbitration agreement that employees
would reasonably believe bars or restricts them from filing unfair
labor practice charges with the National Labor Relations Board.
2. Maintaining a mutual arbitration agreement that, as ap-
plied, compels employees, as a condition of employment, to
waive the right to maintain class or collective actions in all fo-
rums, whether arbitral or judicial.
3. Seeking to enforce the foregoing mutual arbitration agree-
ment against Rosales in her state court action since January 14,
2015.
REMEDY
Consistent with D. R. Horton and Murphy Oil, Respondents
will be required to rescind or revise the mutual arbitration agree-
ment containing the unlawful mandatory arbitration provision,
and to notify Rosales and other current and former employees
who signed or were subject to the agreement that they have done
so.
Respondents will also be required to notify the state superior
and appeals courts in Rosales v. UPCS CA Resources, Inc. et al.,
Superior Court Case No. 30-2014-00756943-CU-OE-CXC) and
Court of Appeal, Fourth Appellate District, Division 3 Case No.
G052269, that they have revised or rescinded the mutual arbitra-
tion agreement, and that Respondents no longer oppose
Rosales’s class or representative claims on the basis that they are
barred by the agreement.
Respondents will also be required to reimburse Rosales for all
reasonable expenses and legal fees, with interest, incurred in op-
posing their cross-complaint and subsequent motions and plead-
ings in the state court action seeking to enforce the mutual arbi-
tration agreement to preclude class or representative claims. In-
terest shall be computed and compounded daily as set forth in
New Horizons, 283 NLRB 1173 (1987), and Kentucky River
Medical Center, 356 NLRB 6 (2010).
Finally, as requested by the General Counsel, Respondents
will be required to post a notice to employees, in both English
and Spanish, at all facilities where the mutual arbitration agree-
ment has been maintained. Respondents will also be required to
distribute the notice electronically, including by email, if they
customarily communicate with employees by such means. See
J. Picini Flooring, 356 NLRB 11, 14 (2010). And they will be
required to mail the notice in the event they have gone out of
business or have closed or ceased providing services at a partic-
ular facility. See, e.g., SBM Management Services, 362 NLRB
1207, 1207 at fn. 3 (2015).
6 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules, the findings, conclusions, and recommended Order shall,
as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
Accordingly, based on the foregoing and the record as a
whole, I issue the following order.6
ORDER
The National Labor Relations Board (NLRB) orders that Re-
spondents, IIG Wireless, Inc., Garden Grove, California, and
UPCS CA Resources, Inc., Irvine, California, joint employers,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mutual arbitration agreement that employ-
ees would reasonably believe bars or restricts them from filing
unfair labor practice charges with the NLRB.
(b) Maintaining and/or enforcing a mutual arbitration agree-
ment in a manner that requires employees, as a condition of em-
ployment, to waive the right to maintain class or collective ac-
tions in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the mutual arbitration agreement 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 or waive their right to maintain employment-related joint,
class, or collective actions in all forums.
(b) Notify all current and former employees who were re-
quired to sign or otherwise become bound to the mutual arbitra-
tion agreement in any form that it has been rescinded or revised
and, if revised, provide them a copy of the revised agreement.
(c) Notify the state superior and appeals courts in Rosales v.
UPCS CA Resources, Inc. et al., Superior Court Case No. 30-
2014-00756943-CU-OE-CXC), and Court of Appeal, Fourth
Appellate District, Division 3 Case No. G052269, that they have
rescinded or revised the mutual arbitration agreement upon
which they based their January 14, 2015 cross-complaint and
subsequent motions and pleadings seeking to preclude Rosales’s
class or representative claims, and inform the courts that they no
longer oppose the claims on the basis of the agreement.
(d) Reimburse Rosales for any reasonable attorneys’ fees and
litigation expenses that she may have incurred in the above state
court action in opposing the Respondents’ cross-complaint and
subsequent motions and pleadings seeking to preclude her class
or representative claims on the basis of the agreement, with in-
terest.
(e) Within 14 days after service by the Region, post copies of
the attached notice marked “Appendix” in both English and
Spanish at all of their facilities where the arbitration provision
has been maintained.7 Copies of the notice, on forms provided
by the Region, after being signed by the Respondents’ authorized
representative(s), shall be posted and maintained for 60 consec-
utive days in conspicuous places including all places where no-
tices to employees are customarily posted. In addition to
7 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
IIG WIRELESS, INC. F/K/A UNLIMITED PCS, INC.; AND UPCS CA RESOURCES, INC. 7
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respondents cus-
tomarily communicate with their employees by such means.
Reasonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceed-
ings, the Respondents have gone out of business or have closed
or ceased doing business at a facility covered by this order, the
Respondents shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondents at those facilities at any time since
November 14, 2014.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 21 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondents have taken to comply.
Dated, Washington, D.C. April 14, 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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain a mutual arbitration agreement that
employees would reasonably believe bars or restricts them from
filing unfair labor practice charges with the National Labor Re-
lations Board (NLRB).
WE WILL NOT maintain and/or enforce a mutual arbitration
agreement in a manner that requires employees, as a condition of
employment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
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 mutual arbitration agreement 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 or waive their right to maintain employment-related joint,
class, or collective actions in all forums.
WE WILL notify all current and former employees who were
required to sign or otherwise become bound to the mutual arbi-
tration agreement in any form that it has been rescinded or re-
vised and, if revised, provide them a copy of the revised agree-
ment.
WE WILL notify the state superior and appeals courts in
Rosales v. UPCS CA Resources, Inc. et al., Superior Court Case
No. 30-2014-00756943-CU-OE-CXC), and Court of Appeal,
Fourth Appellate District, Division 3 Case No. G052269, that we
have rescinded or revised the mutual arbitration agreement upon
which we based our January 14, 2015 cross-complaint and sub-
sequent motions and pleadings seeking to preclude Rosales’s
class or representative claims, and WE WILL inform the courts that
we no longer oppose the claims on the basis of the agreement.
WE WILL reimburse Rosales for any reasonable attorneys’ fees
and litigation expenses that she may have incurred in the above
state court action in opposing our cross-complaint and subse-
quent motions and pleadings seeking to preclude her class or rep-
resentative claims on the basis of the agreement, with interest.
IIGWIRELESS, INC. AND UPCS CARESOURCES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-152170 or by using the QR code be-
low. 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.