RALPHS GROCERY COMPANY, THE KROGER CO.

National Labor Relations Board - Board Decisions

Feb 23, 2016

363 NLRB No. 128 (N.L.R.B. 2016)

363 NLRB No. 128
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.
Ralph’s Grocery Company and Terri Brown. Case
21–CA–073942
February 23, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On July 31, 2013, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent filed
exceptions1 and a supporting brief. The General Counsel
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, and
to adopt the recommended Order, as modified and set
forth in full below.2
1. Applying the Board’s decision in D. R. Horton, 357
NLRB No. 184 (2012), enf. denied in part, 737 F.3d 344
(5th Cir. 2013), the judge found that the Respondent vio-
lated Section 8(a)(1) of the Act by maintaining and en-
forcing a Mediation and Binding Arbitration Policy
(“MBAP”) that required employees, as a condition of
employment, to waive their rights to pursue class or col-
lective actions in employment-related claims in all fo-
rums, whether arbitral or judicial. In Murphy Oil USA,
Inc., 361 NLRB No. 72 (2014), enf. denied in relevant
part 808 F.3d 1013 (5th Cir. 2015), the Board reaffirmed
the relevant holdings of D. R. Horton, supra. Based on
the judge’s application of D. R. Horton, and on our sub-
sequent decision in Murphy Oil, we affirm the judge’s
findings.3 For the reasons discussed in Murphy Oil and

1 The Respondent argues that D. R. Horton is “void ab initio” be-
cause the three-member panel included Member Becker whose ap-
pointment was constitutionally invalid. For the reasons set forth in
Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 2 fn. 16 (2014),
we reject this argument. See also Mathew Enterprise v. NLRB, 771
F.3d 812, 813 (D.C. Cir. 2014) (“[T]he President’s recess appointment
of Member Becker . . . was constitutionally valid.”); Gestamp South
Carolina, LLC v. NLRB, 769 F.3d 254, 257–258 (4th Cir. 2014) (same).
By extension, we reject the Respondent’s related argument that Judge
Laws should have stayed these proceedings.
2 We have modified the judge’s recommended Order to conform to
her unfair labor practice findings. We shall substitute a new notice to
conform to the Order as modified.
3 We also observe that the MBAP has already been found uncon-
scionable and unenforceable by the United States Court of Appeals for
the Ninth Circuit because the policy grants the Respondent unfair con-
trol over the selection of arbitrators. Chavarria v. Ralph’s Grocery,
Bristol Farms, 363 NLRB No. 45 (2015), we disagree
with our dissenting colleague’s arguments on this issue.4
2. The judge also found that the MBAP violated Sec-
tion 8(a)(1) by interfering with employees’ right to file
charges with the Board. We agree with the judge’s find-
ing.
Pursuant to longstanding precedent, and applying the
test of Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004), the Board will find that a policy upon which
employment is conditioned violates Section 8(a)(1) if
employees would reasonably believe the policy interferes
with their ability to file a Board charge or otherwise ac-
cess the Board’s processes. See SolarCity, 363 NLRB
No. 83, slip op. at 4 (2015); Murphy Oil, supra, 361
NLRB No. 72, slip op. at 13, 19 fn. 98, 39 fn. 15; D. R.
Horton, supra, 357 NLRB No. 184, slip op. at 2 fn. 2, 4;
Bill’s Electric, 350 NLRB 292, 296 (2007); U-Haul Co.
of California, 347 NLRB 375, 377–378 (2006), enfd. 255
Fed.Appx. 527 (D.C. Cir. 2007). “Preserving and pro-
tecting access to the Board is a fundamental goal of the
Act,” and so the Board must carefully examine employer
rules that may interfere with this goal. SolarCity, 363
NLRB No. 83, slip op. at 4. In turn, the Board must rec-
ognize that “rank-and-file employees . . . cannot be ex-
pected to have the expertise to examine company rules
from a legal standpoint.” Id., slip op. at 5, quoting In-
gram Book Co., 315 NLRB 515, 516 fn. 2 (1994).
The Respondent argues that employees would not rea-
sonably conclude that the MBAP prevents them from
filing unfair labor charges with the Board because para-
graph 6 on page 3 of the policy informs employees that
they retain the right to file charges with the Board. 5 The

733 F.3d 916 (9th Cir. 2013). Thus, there cannot be any risk of conflict
between the Act and the Federal Arbitration Act in this case.
4 Our dissenting colleague observes that the Act “creates no sub-
stantive right for employees to insist on class-type treatment of non-
NLRA claims.” This is surely correct, as the Board has previously
explained in Murphy Oil, supra, slip op. at 2,16 and Bristol Farms, 363
NLRB No. 45, slip op. at 2 fn. 2 (2015). But what our colleague ig-
nores is that the Act does “create[] a right to pursue joint, class, or
collective claims if and as available without the interference of an em-
ployer-imposed restraint.” Murphy Oil, slip op. at 16–17. The Re-
spondent’s arbitration policy is just such an unlawful restraint. Like-
wise, for the reasons explained in Murphy Oil and Bristol Farms, there
is no merit to our colleague’s view that finding the arbitration policy
unlawful runs afoul of employees’ Sec. 7 right to “refrain from” engag-
ing in protected activity. See Murphy Oil, slip op. at 18; Bristol Farms,
slip op. at 3. Nor is he correct in insisting that Sec. 9(a) of the Act
requires the Board to permit individual employees to prospectively
waive their Sec. 7 right to engage in concerted legal activity. Murphy
Oil, slip op. at 17–18; Bristol Farms, slip op. at 2.
5 The full text of paragraph 6 states that:
This Arbitration Policy does not prevent or excuse any Em-
ployee or Ralphs (or any of them) from satisfying any appli-
cable statutory conditions precedent or jurisdictional prereq-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Respondent is correct that embedded in that paragraph is
a sentence informing employees that they can file charg-
es, but we disagree that this sentence saves the policy.
Paragraphs 2 and 4 of the policy emphasize that all
employment-related disputes must be resolved through
final and binding arbitration. Paragraph 6 reiterates this
requirement, declaring in the second sentence that final
and binding arbitration is the sole and exclusive remedy
for Covered Disputes (which, as defined elsewhere in the
document, would include disputes involving unfair labor
practices under the Act), and commanding, in the third
sentence, that “all parties must proceed directly to arbi-
tration under and pursuant to this Arbitration Policy”
after satisfying any statutory conditions or jurisdictional
prerequisites regarding covered disputes. Thus, while
the last sentence of paragraph 6 allows for charges to be
filed with the Board, employees would reasonably be
confused as to their possession of this statutory right
when the sentence is read together with the previous two
sentences that state explicitly that arbitration is the sole
forum for the resolution of employment disputes. Add-
ing to this confusion is the first sentence that suggests
that the filing of such charges would be permissible
when necessary to satisfy “any applicable statutory con-
ditions precedent or jurisdictional prerequisites.”
As this internal inconsistency in the MBAP illustrates,
the policy as a whole is not written in a manner reasona-
bly calculated to assure employees that their statutory
right of access to the Board’s processes remains unaf-
fected. Indeed, the statement that employees can file
charges appears halfway through six pages of fine print
in a paragraph written for attorneys, not lay people—as
reflected in phrases such as “statutory conditions prece-
dent.” This stands in stark contrast to the bolded, under-
lined, front page instruction that the MPAB applies to all
claims before any court or agency. Reviewing the doc-
ument as a whole, it is at best ambiguous whether em-

uisites to pursuing their Covered Disputes by, for example,
filing administrative charges with or obtaining right to sue
notices or letters from federal, state, or local agencies.
However, final and binding arbitration as described in this
Arbitration Policy is the sole and exclusive remedy or for-
mal method of resolving the Covered Disputes. If there is
no applicable statutory condition precedent or jurisdictional
prerequisite to pursuing a Covered Dispute, all parties must
proceed directly to arbitration under and pursuant to this
Arbitration Policy. Notwithstanding any other provision of
this Arbitration Policy, all Employees retain the right under
the National Labor Relations Act (“NLRA”) to file charges
with the National Labor Relations Board (“NLRB”), and to
file charges with the United States Equal Employment Op-
portunity Commission (“EEOC”) under federal equal em-
ployment opportunity laws within the EEOC’s administra-
tive jurisdiction.
ployees retain the right to file a charge or to access the
Board’s processes. “[A]ny ambiguity in the rule must be
construed against the Respondent as the promulgator of
the rule.” Lafayette Park Hotel, 326 NLRB 824, 828
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Accord
SolarCity, supra, slip op. at 6. Accordingly, the MPAB
violates Section 8(a)(1) because employees would rea-
sonably believe that it interferes with their right to file
charges or to access the Board’s processes.
The ambiguity surrounding the right to file Board
charges is further demonstrated by an employment appli-
cation that all employees were required to sign acknowl-
edging that they read, understood, and agreed to follow
the MBAP. The application contains a one-paragraph
summary of the MBAP, but any reference to employees’
right to file Board charges is conspicuously absent from
that summary. Instead, the summary focuses exclusively
on the requirement that employees waive the right to
resolve employment-related disputes before any Federal
court or agency. In these circumstances, we find that
employees would reasonably believe that the MBAP
interfered with their statutory right to have the Board
determine whether their Section 7 rights have been vio-
lated. See, e.g., Bill’s Electric, supra, 350 NLRB at 296
(finding unlawful policy that would “reasonably be read
by affected applicants and employees as substantially
restricting, if not totally prohibiting, their access to the
Board’s processes”).6
Finally, we note that the MBAP could be reasonably
read to suggest that the right to file charges with the
Board is entirely illusory. While there is language in
Paragraph 6 purporting to preserve the right to file
charges with the Board, language in the same paragraph
dictates that the dispute must nonetheless be resolved
through arbitration per the policy, and not through the
Board. Thus, despite representations that they “re-
tain[ed] the right to file charges with the [Board],” em-
ployees would reasonably conclude that, in the end, ex-
ercising this right would be futile because the final reso-
lution of the unfair labor practice dispute would lie with
the arbitrator—and not the Board. By creating the im-

6 See also Amex Card Services Co., 363 NLRB No. 40, slip op. at
2–3 (2015) (finding language in one document permitting Board charg-
es but omission of such language from accompanying document creat-
ed unlawful ambiguity); The Rose Group d/b/a Applebee’s Restaurant,
363 NLRB No. 75, slip op. at 1 fn. 1, 9–10 (2015) (same). Our dissent-
ing colleague argues that the legality of the employment application
was not encompassed in the General Counsel’s complaint and therefore
is not properly before the Board. Our colleague misunderstands our
position. We do not find that the language of the application form
constitutes an independent violation of the Act. Rather, employees
would review the language in that form and be influenced in how they
viewed the MBAP in its totality.
RALPH’S GROCERY CO. 3
pression that it would be futile, the MBAP interferes with
employees’ right to file charges.
Our dissenting colleague argues that the MBAP would
be lawful even if it required employees to arbitrate their
unfair labor practice claims, insofar as it did not restrict
employees’ right to file charges with the Board. We dis-
agree. To be meaningful, the right to file charges with
the Board must entail the right to have the Board exercise
its statutory powers under Section 10 of the Act: i.e., to
investigate the charge, to determine its merits, and to
pursue appropriate relief through the Act’s procedures.
An employer may not lawfully require individual em-
ployees to arbitrate unfair labor practice claims that
would otherwise be resolved by the Board under the
Act’s procedures. To do so necessarily interferes with
employees’ statutory right of access to the Board.
Our colleague’s contrary argument rests on a funda-
mentally mistaken premise: that a condition of employ-
ment imposed by the employer on individual employees
is no different than an agreement reached between a la-
bor union and an employer through collective bargaining.
The Board has explained the distinction before—see
Murphy Oil, supra, 361 NLRB No. 72, slip op. at 14–
15—and we reaffirm it today. A union, as the exclusive
bargaining representative of employees, may exercise its
statutory authority to agree with an employer to arbitrate
unfair labor practice claims—although such an agree-
ment cannot limit the Board’s ultimate authority, as Sec-
tion 10(a) of the Act makes clear.7 There is no statutory
basis, in contrast, that would permit an employer to re-
quire individual, unrepresented employees to arbitrate
their unfair labor practice claims against the employer.
Indeed, such a requirement is completely contrary to the
policies of the Act. In the Supreme Court’s words, Con-
gress sought “complete freedom” for employees to file
charges with the Board, to participate in a Board investi-
gation, or to testify at a Board proceeding. NLRB v.
Scrivener, 405 U.S. 117, 121 (1972) (applying Section
8(a)(4) of the Act, which prohibits employers from dis-
charging or discriminating against employees for coming
to the Board). See also NLRB v. Industrial Union of Ma-
rine & Shipbuilding Workers, 391 U.S. 418 (1968) (un-
ion may not require member to exhaust internal union
remedies before filing unfair labor practice charge with
Board). Even if the Act’s policies in this respect were
not so clear, and the Board were somehow free to permit
employer restrictions like the one at issue here, there can
be no argument that the Board is statutorily required to

7 Sec. 10(a) of the Act provides unequivocally that the Board’s au-
thority to redress unfair labor practices “shall not be affected by any
other means of adjustment or prevention that has been or may be estab-
lished by agreement, law, or otherwise.” 29 U.S.C. §160(a).
do so. Even with respect to collectively-bargained arbi-
tration agreements between employers and unions, the
Board’s doctrine of deferral to arbitration is a matter of
discretion. See Babcock & Wilcox Construction Co., 361
NLRB No. 132, slip op. at 3–4 (2014). We see no sound
policy reason at all why an employer should be permitted
to impede an individual employee’s access to the Board,
which “performs [its] function in the public interest and
not in vindication of private rights.” Id. at 3.8
3. Finally, we agree with the judge that the confidenti-
ality provision of the MBAP independently violates Sec-
tion 8(a)(1). Any workplace rule that prohibits the dis-
cussion of terms and conditions of employment, as the
confidentiality provision does here, by prohibiting em-
ployees from discussing matters regarding an arbitral
proceeding, is unlawful. See, e.g., Professional Janitori-
al Service of Houston, 363 NLRB No. 35, slip op. at 1 fn.
3 (2015).9

8 We do not mean to imply that an agreement to arbitrate unfair la-
bor practice claims that was not imposed on employees as a condition
of employment would be lawful or that the Board would defer to the
results of arbitration in such a case. Cf. On Assignment Staffing Ser-
vices, Inc., 362 NLRB No. 189, slip op. at 5–8 (2015) (agreement be-
tween individual employee and employer that requires individual arbi-
tration of employment-related disputes is unlawful, even if not a condi-
tion of employment, in light of Supreme Court precedent and Norris-
LaGuardia Act).
9 Last, the judge found that the Respondent enforced the MBAP by
petitioning to compel arbitration in litigation before the California
Superior Court. The Respondent does not contest this finding, and it is
clear from the record that the Respondent petitioned the court to com-
pel arbitration based on the MBAP. The judge, though, did not order
the appropriate remedy for the enforcement violation. Consistent with
our opinion in Murphy Oil, we amend the judge’s remedy and shall
order the Respondent to reimburse Charging Party Terri Brown and any
other plaintiffs for all reasonable expenses and legal fees, with interest,
incurred in opposing the Respondent’s unlawful motion to compel
individual arbitration in the collective wage-and-hour litigation. Id. at
21; see Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 747 (1983)
(“If a violation is found, the Board may order the employer to reim-
burse the employees whom he had wrongfully sued for their attorneys’
fees and other expenses” as well as “any other proper relief that would
effectuate the policies of the Act.”). Interest shall be computed in the
manner prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). See Teamsters Local 776 (Rite Aid), 305 NLRB 832,
835 fn. 10 (1991) (“[I]n make-whole orders for suits maintained in
violation of the Act, it is appropriate and necessary to award interest on
litigation expenses.”), enfd. 973 F.2d 230 (3d Cir. 1992).
We reject the position of our dissenting colleague that the Respond-
ent’s motion to compel arbitration was protected by the First Amend-
ment’s Petition Clause. In Bill Johnson’s, the Court identified two
situations in which a lawsuit enjoys no such protection: where the ac-
tion is beyond a State court’s jurisdiction because of Federal preemp-
tion, and where “a suit . . . has an objective that is illegal under federal
law.” 461 U.S. at 737 fn. 5. Thus, the Board may properly restrain
litigation efforts such as the Respondent’s motion to compel arbitration
that have the illegal objective of limiting employees’ Sec. 7 rights and
enforcing an unlawful contractual provision, even if the litigation was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that the
Respondent, Ralph’s Grocery Company, Compton, Cali-
fornia, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that
employees reasonably would believe bars or restricts the
right to file charges with the National Labor Relations
Board.
(b) Maintaining and/or enforcing a mandatory arbitra-
tion policy that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(c) Maintaining a policy that requires employees to
maintain the confidentiality of the existence, content, and
outcome of all arbitration proceedings.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the mandatory arbitration policy in all of
its forms, or revise it in all of its forms to make clear to
employees that the arbitration program does not consti-
tute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums,
that it does not restrict employees’ right to file charges
with the National Labor Relations Board, and that it does
not require employees to maintain the confidentiality of
arbitration proceedings.
(b) Notify all current and former employees who were
required to sign acknowledgements regarding the manda-
tory arbitration policy in any form that it has been re-
scinded or revised and, if revised, provide them a copy of
the revised policy.
(c) Notify the Superior Court of the State of Califor-
nia, Los Angeles, in Case BC423782, that it has rescind-
ed or revised the mandatory arbitration policy upon
which it based its motion to dismiss Terri Brown’s col-
lective action and to compel individual arbitration of her
claim, and inform the court that it no longer opposes the
action on the basis of the arbitration policy.
(d) In the manner set forth in this decision, reimburse
Terri Brown and any other plaintiffs for any reasonable
attorneys’ fees and litigation expenses that they may
have incurred in opposing the Respondent’s motion to

otherwise meritorious or reasonable. See Murphy Oil, supra, slip op. at
20–21. Convergys Corp., 363 NLRB No. 51, slip op. at 2 fn. 5 (2015).
We shall also amend the judge’s remedy to order the Respondent to
notify the California Superior Court that it has rescinded or revised the
MBAP and to inform the court that it no longer opposes the plaintiff’s
claims on the basis of the arbitration agreement.
dismiss the wage claim and compel individual arbitra-
tion.
(e) Within 14 days after Service by the Region, post at
all facilities where the Mediation and Binding Arbitra-
tion Policy applied copies of the attached notice marked
“Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being
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 post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble 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 busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice marked “Appendix” to all
current employees and former employees employed by
the Respondent at any time since August 7, 2011.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C., February 23, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, my colleagues find that the Respondent’s
Mediation and Binding Arbitration Policy (“the Arbitra-
tion Policy” or “the Policy”) violates Section 8(a)(1) of
the National Labor Relations Act (the Act or NLRA)

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RALPH’S GROCERY CO. 5
because the Policy waives the right to participate in class
or collective actions regarding non-NLRA employment
claims. Charging Party Terri Brown agreed to the Arbi-
tration Policy, and later she filed a class action and Pri-
vate Attorney General Act (“PAGA”) lawsuit against the
Respondent in California state court alleging various
violations of the California Labor Code.1 In reliance on
the Policy, the Respondent filed a motion to compel arbi-
tration of Brown’s claims.2 My colleagues find that the
Respondent thereby unlawfully enforced its policy. I
respectfully dissent from these findings for the reasons
explained in my partial dissenting opinion in Murphy Oil
USA, Inc.3 I also dissent from my colleagues’ finding
that the Arbitration Policy violates Section 8(a)(1) on the
basis that it interferes with the right of employees to file
charges with the Board. However, I agree with my col-
leagues that a confidentiality provision in the Policy,
which restricts employees from disclosing the existence,
content, or outcome of any arbitration proceeding under
the Policy without the prior written consent of all parties,
is unlawful, but I would reach that conclusion under a
different standard than my colleagues apply. According-
ly, I respectfully concur in part and dissent in part.
DISCUSSION
1. Legality of the class action waiver and Respondent’s
Motion to compel arbitration
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.4 How-
ever, Section 8(a)(1) of the Act does not vest authority in

1 Under California’s PAGA statute, an “aggrieved employee”—an
employee against whom one or more of the alleged violations was
committed—may bring a civil action against the alleged violator to
recover civil penalties for California Labor Code violations for himself
or herself and other current or former employees. Cal. Lab. Code §
2699(a).
2 The motion to compel arbitration of the class action claims was
granted, and the PAGA claims were stayed pending completion of that
arbitration. Brown filed a second amended complaint limited to the
PAGA claims; those claims are still being litigated.
3 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was recently denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
4 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, Section 9(a) protects the right of every em-
ployee as an “individual” to “present” and “adjust”
grievances “at any time.”5 This aspect of Section 9(a) is
reinforced by Section 7 of the Act, which protects each
employee’s right to “refrain from” exercising the collec-
tive rights enumerated in Section 7. Thus, I believe it is
clear that (i) the NLRA creates no substantive right for
employees to insist on class-type treatment of non-
NLRA claims;6 (ii) a class-waiver agreement pertaining
to non-NLRA claims does not infringe on any NLRA
rights or obligations, which has prompted the over-
whelming majority of courts to reject the Board’s posi-
tion regarding class-waiver agreements;7 and (iii) en-

5 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
6 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
7 The Fifth Circuit has twice denied enforcement of Board orders
invalidating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil USA, Inc. v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v.
Adecco USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to
certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal.
June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12–cv–
00062–BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
forcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).8 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
Because I believe the class-waiver provisions of the
Respondent’s Arbitration Policy are lawful under the
NLRA, I would find it was similarly lawful for the Re-
spondent to file a motion in state court to compel the
Charging Party to arbitrate her claims. It is relevant that
the state court that had jurisdiction over the non-NLRA
claims granted the Respondent’s motion to compel arbi-
tration of Brown’s class-action claims. That the Re-
spondent’s motion was reasonably based is also support-
ed by court decisions that have enforced similar agree-
ments.9 As the Fifth Circuit recently observed after re-
jecting (for the second time) the Board’s position regard-
ing the legality of class waiver agreements: “[I]t is a bit
bold for [the Board] to hold that an employer who fol-
lowed the reasoning of our D.R. Horton decision had no
basis in fact or law or an ‘illegal objective’ in doing so.
The Board might want to strike a more respectful balance
between its views and those of circuit courts reviewing
its orders.”10 I also believe that any Board finding of a
violation based on the Respondent’s meritorious state
court motion to compel arbitration would improperly risk
infringing on the Respondent’s rights under the First
Amendment’s Petition Clause. See Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983); BE & K Con-
struction Co. v. NLRB, 536 U.S. 516 (2002); see also my
partial dissent in Murphy Oil, above, 361 NLRB No. 72,
slip op. at 33–35. Finally, for similar reasons, I believe
the Board cannot properly require the Respondent to re-
imburse the Charging Party or any other plaintiffs for
their attorneys’ fees in the circumstances presented here.
Murphy Oil, above, 361 NLRB No. 72, slip op. at 35.

agreement violated NLRA); but see Totten v. Kellogg Brown & Root,
LLC, No. ED CV 14–1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal.
Jan. 22, 2016).
8 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
9 See, e.g., Murphy Oil, Inc., USA v. NLRB, above;
Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D.
R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d
1050 (8th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290
(2d Cir. 2013).
10 Murphy Oil USA, Inc. v. NLRB, 808 F.3d at 1021.
2. Alleged interference with NLRB charge filing
The judge also found that the Respondent violated
Section 8(a)(1) by maintaining the Arbitration Policy
because, in her view, “a reasonable employee would read
it as prohibiting him or her from filing unfair labor prac-
tice charges with the Board” (emphasis added). See, e.g.,
U-Haul Co. of California, 347 NLRB 375, 377–378
(2006) (finding that employer violated the Act by main-
taining an arbitration policy that employees would rea-
sonably read as prohibiting them from filing unfair labor
practice charges with the Board), enfd. mem. 255 Fed.
Appx. 527 (D.C. Cir. 2007). My colleagues affirm the
judge’s finding that the Policy interferes with employees’
right to file charges with the Board. I disagree, and I
would reverse the judge’s finding.
The Arbitration Policy is set forth in a four-page doc-
ument. It broadly requires arbitration of all employment-
related claims, which would encompass claims arising
under the NLRA.11 However, the scope of this arbitra-
tion provision does not render it unlawful. As I ex-
plained in The Rose Group d/b/a Applebee’s,12 the Su-
preme Court has broadly held that parties may lawfully
agree to arbitrate statutory claims,13 and the Board for

11 The Arbitration Policy defines “Covered Disputes” to include all
“employment-related disputes” other than those arising out of the terms
and conditions of a collective-bargaining agreement for employees
represented by a union. The Policy further states that it “is the sole and
exclusive remedy for any and all Covered Disputes that exist or may
arise.” It is undisputed that Brown’s claims constituted Covered Dis-
putes.
12 363 NLRB No. 75, slip op. at 3–4 (2015) (Member Miscimarra,
dissenting in part).
13 In 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258 (2009), the Su-
preme Court held that a collective-bargaining agreement could lawfully
provide for the arbitration of statutory claims, and the Court stated that
“[n]othing in the law suggests a distinction between the status of arbi-
tration agreements signed by an individual employee and those agreed
to by a union representative.” See also Babcock & Wilcox Construction
Co., 361 NLRB No. 132, slip op. at 33 (2014) (Member Miscimarra,
dissenting in part). Thus, I disagree with my colleagues’ assertion that
a labor union may bind employees it represents to an agreement to
arbitrate their unfair labor practice claims, but an individual employee
may not lawfully enter into such an agreement. Contrary to my col-
leagues’ claim that there is “no statutory basis” upon which employees
may agree to arbitrate unfair labor practice claims with their employer,
Sec. 9(a) and 10(a) furnish that statutory basis. In Murphy Oil, I ex-
plained that Sec. 9(a) guarantees the right of individual employees to
adjust their non-NLRA disputes with their employer individually, 361
NLRB No. 72, slip op. at 30–34 (Member Miscimarra, dissenting in
part), and nothing in that statutory provision excludes the adjustment of
unfair labor practice disputes from that same guarantee. To the contra-
ry, as explained below, by providing that the Board’s power to prevent
unfair labor practices “shall not be affected by any other means of
adjustment or prevention that has been or may be established by
agreement, law, or otherwise” (emphasis added), Sec. 10(a) of the Act
confirms that Congress contemplated parties might enter into private
agreements to resolve unfair labor practice disputes—and nothing in
Sec. 10(a) suggests that such “agreements” are limited to agreements
RALPH’S GROCERY CO. 7
decades has held that NLRA claims may lawfully be
resolved in arbitration (although the Board, applying a
deferential standard, may evaluate whether a resulting
award is inconsistent with the Act).14 Indeed, the
Board’s decision in Babcock & Wilcox Construction
leaves no doubt that NLRA claims can be made subject
to a mandatory arbitration agreement. The Board majori-
ty in Babcock stated that, as a prerequisite to affording
deference to any resulting arbitration award, the Board
would require the parties to have “explicitly authorized”
the arbitrator “to decide the unfair labor practice issue.”
361 NLRB No. 132, slip op. at 5 (emphasis added). If
the Board defers to arbitration awards in part because
parties have “explicitly” agreed to have statutory claims
resolved in arbitration, this precludes a Board finding
that it violates the NLRA when parties enter into such an
arbitration agreement.
NLRA Section 10(a) also reveals that Congress con-
templated parties might enter into agreements to adjust or
resolve statutory issues by some means other than the
Board. Section 10(a) states that the Board’s power to
prevent unfair labor practices “shall not be affected by
any other means of adjustment or prevention that has
been or may be established by agreement, law, or other-
wise” (emphasis added). Therefore, arbitration agree-
ments may lawfully encompass NLRA claims, and such
agreements are not prohibited under the Act.15 However,

between employers and unions. More generally, it is established Fed-
eral policy to provide for the final and binding resolution of grievances
in arbitration as the agreed-upon method for resolving workplace dis-
putes, see Labor Management Relations Act Sec. 203(c); the Supreme
Court has celebrated arbitration in the context of collective-bargaining
agreements, see Steelworkers v. American Mfg. Co., 363 U.S. 564
(1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574
(1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593
(1960); and again, the Supreme Court has stated that “[n]othing in the
law suggests a distinction between the status of arbitration agreements
signed by an individual employee and those agreed to by a union repre-
sentative,” 14 Penn Plaza LLC v. Pyett, 556 U.S. at 258.
14 In Babcock & Wilcox Construction Co., supra, a divided Board
articulated new standards governing deferral to arbitration awards. As I
noted in my Babcock partial dissent, id., slip op. at 14–24, I would
continue to apply the deferral standards previously articulated by the
Board in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp.,
268 NLRB 573 (1984).
15 Sec. 10(a) preserves the Board’s authority to adjudicate unfair la-
bor practice claims, notwithstanding any “alternative means of adjust-
ment or prevention that has been or may be established by agreement.”
However, Sec. 10(a) does not indicate that such an agreement violates
the Act. Rather, the unfair labor practice provisions of the Act are set
forth in Sec. 8(a) and 8(b), neither of which invalidates agreements that
provide for the arbitration of NLRA issues. Although Sec. 8(a)(1) and
8(b)(1)(A) make it unlawful for employers and unions, respectively, to
restrain or coerce employees in the exercise of NLRA-protected rights,
the Board’s longstanding deference to arbitration awards dealing with
NLRA issues precludes a finding that it constitutes unlawful restraint or
coercion to provide for the arbitration of those issues.
this is different from an agreement that interferes with
the right to file a Board charge. The protection afforded
to Board charge-filing is important because the filing of a
charge is prerequisite to Board review of unfair labor
practice issues.16 Consequently, an agreement that pro-
hibits Board charge-filing violates Section 8(a)(1) if en-
tered into by an employer, and Section 8(b)(1)(A) if en-
tered into by a union.17 In short, the relevant principles
make clear that (i) an agreement may lawfully provide
for the arbitration of NLRA claims; (ii) such an agree-
ment does not unlawfully interfere with Board charge-
filing, at least where, as here, the agreement expressly
preserves the right to file Board charges; and (iii) any
agreement to arbitrate NLRA claims does not divest the
Board of authority to evaluate the same claims if they are
encompassed by a Board charge. See The Rose Group
d/b/a Applebee’s.18 Again, regarding this last point, Sec-
tion 10(a) of the Act guarantees that the Board always
has authority to address and resolve unfair labor practice
charges, even though a private agreement may provide
for the adjustment or resolution of these claims in arbi-

Significantly, unlike the version of the NLRA that was adopted by
Congress, the original Wagner Act legislation contained language that
would have expressly invalidated private agreements that were incon-
sistent with the legislation. Thus, Sec. 304(b) in the Senate and House
versions would have provided that “[a]ny term of a contract or agree-
ment of any kind which conflicts with the provisions of this Act is
hereby abrogated.” S. 2926, 73d Cong. § 304(b), reprinted in 1 NLRB,
LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT,
1935, at 14 (hereinafter referred to as __ NLRA Hist. __); H.R. 8434,
73d Cong. § 304(b), reprinted in 1 NLRA Hist. 1140. During Senate
hearings, a “unanimous” consensus emerged among the legislation’s
proponents, including Senator Wagner, that the “agreement” abrogation
provision should be “eliminated from the bill.” 1 NLRA Hist. 394–395
(exchange among Senator Wagner, Chairman Walsh and witness James
Emery). Thus, the agreement-abrogation provision was omitted from
all subsequent versions of the legislation. See S. 2926, 73d Cong.
(1934), 1 NLRA Hist. 1070 (reported May 26, 1934); S. 1958, 74th
Cong. (1935), 1 NLRA Hist. 1295; H.R. 6187, 74th Cong. (1935), 2
NLRA Hist. 2445; H.R. 6288, 74th Cong. (1935), 2 NLRA Hist. 2459;
H.R. 7978, 74th Cong. (1935), 2 NLRA Hist. 2857; S. 1958, 74th
Cong. (1935), 2 NLRA Hist. 2944; S. 1958, 74th Cong. (1935), 2
NLRA Hist. 3032; S. 1958, 74th Cong. (1935), 2 NLRA Hist. 2416; S.
1958, 74th Cong (1935), 2 NLRA Hist. 3238; H.R. Rep. 74–1371
(1935), 2 NLRA Hist. 3252; S. 1958, 74th Cong. (1935), 2 NLRA Hist.
3270.
16 Chamber of Commerce of the United States v. NLRB, 721 F.3d
152, 162, 163 (4th Cir. 2013) (“The NLRB serves expressly reactive
roles: conducting representation elections and resolving ULP charg-
es. . . . [The Board’s] processes . . . are not set in motion until a party
files a representation petition or a ULP charge.”).
17 Sec. 8(a)(1) makes it an unfair labor practice for any employer “to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7.” Sec. 8(b)(1)(A) makes it an unfair labor
practice for any union “to restrain or coerce . . . employees in the exer-
cise of the rights guaranteed in section 7.”
18 363 NLRB No. 75, slip op. at 2–3 (Member Miscimarra, dissent-
ing in part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
tration. And if a charge is filed that alleges violations
that have been resolved in arbitration, the Board will
apply a limited standard of review as described in Bab-
cock, supra, to determine whether or not to defer to the
arbitral decision.
In the instant case, it is clear that the Arbitration Policy
does not prohibit NLRB charge-filing. To the contrary,
the Policy makes crystal clear that employees retain the
right to file charges with the Board. The Policy states:
“Notwithstanding any other provision of this Arbitration
Policy, all Employees retain the right under the National
Labor Relations Act (‘NLRA’) to file charges with the
National Labor Relations Board (‘NLRB’) . . . .”19 My
colleagues dismiss this clear language as “illusory” be-
cause, they say, even though an employee may file a
charge, “language in the same paragraph dictates that the
dispute must nonetheless be resolved through arbitra-
tion.” I respectfully disagree with this analysis because,
as explained in some detail above, there is no conflict
between (i) an agreement that expressly preserves the
right to file NLRB charges, and (ii) having NLRA dis-
putes resolved in arbitration. To put it simply, the right
to file NLRB charges is not rendered “illusory” by
providing for the submission of NLRA claims to arbitra-
tion. If this were true, the Board would need to overrule
decades of cases—and the Board majority’s recent hold-
ing in Babcock—providing for Board deferral to the arbi-
tration of NLRA claims, with the understanding that the
Board, applying a narrow standard of review, may inde-
pendently evaluate any unfair labor practice issues that
are the subject of a Board charge, and the Board’s au-
thority to conduct such an evaluation is spelled out in
Section 10(a).20

19 Indeed, the Policy requires employees to file “administrative
charges” where doing so is necessary to satisfy “any applicable statuto-
ry conditions precedent or jurisdictional prerequisites to pursuing their
Covered Disputes.”
20 In further support of their conclusion, my colleagues also rely on
a signed and initialed “summary.” This refers to the Respondent’s
standard application for employment, which summarizes the Arbitra-
tion Policy and incorporates it by reference without specifically men-
tioning that employees retain the right to file charges with the Board.
The General Counsel does not allege that the Respondent violated Sec.
8(a)(1) by maintaining that summary on its employment applications.
In fact, the parties stipulated that the issue presented is limited to
“[w]hether Respondent’s maintenance of the MBAP [i.e., the Arbitra-
tion Policy] violates § 8(a)(1) of the Act because employees would
reasonably conclude that the provisions of the MBAP . . . preclude them
from filing unfair labor practice charges with the Board, as well as from
engaging in conduct protected by Section 7 of the Act.” Stipulation of
Facts and Motion to Submit Case on Stipulation ¶ 10(b) (emphasis
added). Consequently, the legality of Respondent’s application for
employment is not presently before the Board, and I do not pass on it. I
disagree with the majority’s suggestion that the employment applica-
tion would cause employees to reasonably interpret the Arbitration
Policy as prohibiting them from filing unfair labor practice charges. As
3. Confidentiality clause
Finally, I concur in the majority’s finding that the Ar-
bitration Policy violates Section 8(a)(1) of the Act be-
cause it contains an overbroad confidentiality restriction.
The confidentiality provision states, “Except and only to
the extent it may be required by applicable law, the par-
ties and the Qualified Arbitrator shall maintain the exist-
ence, content and outcome of any arbitration proceedings
held pursuant to this Arbitration Policy in the strictest
confidence and shall not disclose the same without the
prior written consent of all the parties.” I agree that the
Policy’s confidentiality provision violates Section 8(a)(1)
because it would preclude discussion of employment-
related matters in the course of concerted protected activ-
ities involving two or more employees, and the record
reveals no countervailing interest that justifies the impact
on NLRA-protected rights. Cf. Banner Estrella Medical
Center, 362 NLRB No. 137, slip op. at 13–19 (2015)
(Member Miscimarra, dissenting in part) (describing
requirement that Board strike a proper balance between
asserted business justifications and potential impact on
NLRA rights).21
Accordingly, for the reasons stated above, I respectful-
ly concur in part with and dissent in part from the majori-
ty’s decision.
Dated, Washington, D.C. February 23, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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

explained above, the Arbitration Policy very clearly states that employ-
ees retain the right to file unfair labor practices. The employment ap-
plication, which incorporates the Policy by reference, does not create
any ambiguity on that issue.
21 In their analysis of the lawfulness of the confidentiality provision,
my colleagues do not consider whether the Respondent demonstrated
an interest that potentially justifies the impact of the provision on pro-
tected rights under the NLRA. In my view, the Board must do so, for
the reasons I explained at length in my partial dissent in Banner
Estrella, supra.
RALPH’S GROCERY CO. 9
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration policy
that our employees reasonably would believe bars or
restricts their right to file charges with the National La-
bor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration policy that requires our employees, as a condi-
tion of employment, to waive the right to maintain class
or collective actions in all forums, whether arbitral or
judicial.
WE WILL NOT maintain a policy that requires employ-
ees to maintain the confidentiality of the existence, con-
tent, and outcome of all arbitration proceedings
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 Mediation and Binding Arbitra-
tion Policy (“MBAP”) in all of its forms, or revise it in
all of its forms to make clear that the arbitration policy
does not constitute a waiver of your right to maintain
employment-related joint, class, or collective actions in
all forums, and that it does not restrict your right to file
charges with the National Labor Relations Board and
does not require you to keep confidential the existence,
content, and outcome of all arbitration proceedings.
WE WILL notify all current and former employees who
were required to sign acknowledgements regarding the
mandatory arbitration policy in all of its forms that the
arbitration policy has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pol-
icy.
WE WILL notify the court in which Terri Brown filed
her collective wage claim that we have rescinded or re-
vised the mandatory arbitration program upon which we
based our motion to dismiss her collective wage claim
and compel individual arbitration, and WE WILL inform
the court that we no longer oppose Terri Brown’s collec-
tive claim on the basis of that policy.
WE WILL reimburse Terri Brown and any other plain-
tiffs for any reasonable attorneys’ fees and litigation ex-
penses that they may have incurred in opposing our mo-
tion to dismiss the collective wage claim and compel
individual arbitration.
RALPH’S GROCERY COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-073942 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.
Alice J. Garfield, for the Acting General Counsel.
Timothy F. Ryan and Aurora Kaiser, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This is another
case raising issues related to D. R. Horton, Inc., 357 NLRB No.
184 (Jan. 3, 2012), petition for review filed No. 12-60031 (5th
Cir. Jan. 13, 2012). It was tried based on a joint motion and
stipulation of facts I approved on May 13, 2013. Terri Brown
(Brown or the Charging Party) filed the original charge on Feb-
ruary 6, 2012, and the first amended charge on April 20, 2012.
The Acting General Counsel issued the complaint on January
28, 2013 and Ralph’s Grocery Company (Ralph’s or the Re-
spondent) filed a timely answer on February 11, 2013, denying
all material allegations and setting forth its affirmative defens-
es.
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by main-
taining and enforcing an unlawful arbitration policy precluding
employees from acting collectively or as a class or otherwise
exercising their § 7 rights and requiring employees to keep
confidential the existence, content and outcome of all arbitra-
tion proceedings. The Respondent denies these allegations and
further contends that the National Labor Relations Board (the
Board) lacked a quorum when it decided D. R. Horton. As
such, the Respondent argues D. R. Horton is void and not bind-
ing on me. The Respondent requests that, to the extent I follow
D. R. Horton, I stay in resolution of this decision pending the
Supreme Court’s resolution of Noel Canning v. NLRB, 705
F.3d 490 (D.C. Cir. 2013), cert. granted 81 U.S.L.W. 3695
(U.S. June 24, 2013) (No. 12-1281), where the Court will de-
cide whether the Board members who decided D. R. Horton
(and numerous other cases) were validly appointed. For the
reasons the Board articulated in Bloomingdale’s, Inc., 359
NLRB No. 113 (2013), this request is denied.
On the entire record and after considering the briefs filed by
the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Ralph’s Grocery Company, a corporation engaged in the op-
eration of retail grocery markets, has offices and places of busi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ness throughout California, including a warehouse in Compton,
California. Ralph’s annually derives gross revenues in excess
of $500,000 and purchases and receives at its Compton ware-
house, goods valued in excess of $50,000, directly from points
outside the State of California. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Mediation and Binding Arbitration Policy
At all material times, the Respondent has maintained a Me-
diation and Binding Arbitration Policy (MBAP). The MBAP,
which is four pages long and contains an introduction and 14
separate untitled paragraphs, is deemed accepted by an appli-
cant upon submitting an application and by an employee upon
acceptance or continuation of employment. The MBAP is
binding on the employee and the Company. The introductory
paragraph states, in relevant part:1
This Arbitration Policy applies to all Employees’ employment
(or application for employment) and is aimed at resolving
employment-related disputes quickly and fairly, to the benefit
of everyone involved. This Arbitration Policy is not meant to
supplant the purpose, role and effect of managers, supervisors,
administrators, any applicable grievance and arbitration pro-
cedure contained in a collective bargaining agreement
(“CBA”) and applicable internal grievance and com-
plaint/dispute resolution procedures available to Employees
for resolving workplace issues, including, for example, com-
plaints of unlawful harassment, discrimination or retaliation.
Employees should continue to seek resolution of employ-
ment-related disputes through such channels to the extent they
are applicable to their disputes. However, this Arbitration
Policy is the exclusive mechanism for formal resolution of
disputes and awards of relief that otherwise would be availa-
ble to Employees or the Company in a court of law or equity
or in an administrative agency.
The current MBAP, version 090304, expressly supersedes all
previous versions.
The first paragraph sets forth the entities the Respondent
considers to be part of the Company. Paragraph 2 partially
defines the term “Covered Disputes” and states in full:
For Employees whose terms and conditions of employment
are determined by a CBA, this Arbitration Policy does not
apply to claims or disputes arising out of the terms and condi-
tions of the CBA (referred to in this Arbitration Policy as
“Excluded Disputes”), but does apply to and require final and
binding arbitration of such Employees’ (and all other Em-
ployees’) individual statutory claims or disputes. Except for
Excluded Disputes, this Arbitration Policy applies to any and
all other employment-related disputes that exist or arise be-
tween Employees and Ralphs (or any of them) that would
constitute cognizable claims or causes of action in a federal,
state or local court or agency under applicable federal, state

1 The portions of the MBAP most relevant to my decision are repro-
duced for ease of reference, particularly taking into account the small
print on the copy reproduced as Exh. 5 of the Stipulated Record.
or local laws (referred to in this Arbitration Policy as “Cov-
ered Disputes”). Covered Disputes are employment-related
disputes that are not Excluded Disputes which involve the in-
terpretation or application of this Arbitration Policy, the em-
ployer/employee relationship, an Employee’s actual or al-
leged employment with Ralphs (or any of them), the termina-
tion of such employment, or applying for or seeking such em-
ployment. A person who has sought or applied for employ-
ment with Ralphs (or any of them), is employed by Ralphs (or
any of them) or whose employment with Ralphs (or any of
them) has terminated, and who wishes to initiate or participate
in formal dispute resolution proceedings to resolve his or her
Covered Disputes, is an Employee under this Arbitration Pol-
icy. If any Employee or Ralphs (or any of them) wishes to ini-
tiate or participate in formal proceedings to resolve any Cov-
ered Disputes, the Employee or Ralphs (or any of them) must
submit those Covered Disputes to final and binding arbitration
as described in this Arbitration Policy. The Company there-
fore agrees to arbitrate any Covered Disputes, whether initiat-
ed by an Employee or by the Company. Only Covered Dis-
putes can be arbitrated under this Arbitration Policy. [Em-
phasis in original.]
The third paragraph begins by stating: “There are no Judge
or Jury trials permitted under this Arbitration Policy.” (Em-
phasis in original.) The paragraph then elaborates that this
prohibition applies to Covered Disputes, and contains an option
for claims under the jurisdiction of a small claims court to be
decided by either the court or an arbitrator.
Paragraph 4 begins by stating that arbitration is the sole and
exclusive remedy for present and future “Covered Disputes”
and instructing that the MBAP requires “to the fullest extent
permitted by law” resolution of all “Covered Disputes” by final
and binding arbitration. It then further defines, by way of non-
exclusive example, the term “Covered Dispute”:
Such Covered Disputes include, for example and without lim-
itation, disputes having anything to do with the interpretation
or application of this Arbitration Policy (including, without
limitation, whether a dispute is a “Covered Dispute or “Ex-
cluded Dispute”), and disputes, claims or causes of action for
unfair competition, unfair business practices, misappropria-
tion of trade secrets, conversion, replevin, trespass, restitution,
indemnity, contribution, disgorgement civil penalties, fraud,
breach of contract, injunctive relief, unlawful harassment, un-
lawful discrimination, unlawful retaliation, failure to provide
reasonable accommodation(s) for a disability or to engage in
an interactive process about such accommodation(s), unpaid
wages or failure to pay overtime or other compensation (or
the computation thereof), failure to provide family or medical
(or other required) leave, failure to consider for hiring, failure
to hire for employment and actual or constructive termination
of the employment relationship. Covered Disputes subject to
this Arbitration Policy include all Employees’ individual stat-
utory claims or disputes under federal, state and local laws in-
cluding, for example and without limitation, any claims or
disputes arising under the California Fair Employment and
Housing Act; the Illinois Human Rights Act; the Cook Coun-
ty Human Rights Ordinance; the Chicago Human Rights Or-
RALPH’S GROCERY CO. 11
dinance; the Indiana Civil Rights Law; the Nevada Fair Em-
ployment Practices Act; the Civil Rights Act of 1964; the
Americans With Disabilities Act; the Age Discrimination in
Employment Act; the Family Medical Leave Act; the Cali-
fornia Family Rights Act; the California Labor Code, Illinois
Compiled Statutes, Indiana Code, or Nevada Revised Statutes
(excluding workers’ compensation and unemployment Insur-
ance benefits claims); the Fair Labor Standards Act; the Em-
ployee Retirement Income Security Act; the California Unfair
Competition Law; the Uniform Trade Secrets Act; the Cali-
fornia Business & Professions Code; the California Civil
Code; the California Government Code; and the United States
Code, as enacted and amended. Both Ralphs and Employees
must submit any and all such Covered Disputes to final and
binding arbitration before a neutral Qualified Arbitrator (as
defined herein) under and pursuant to this Arbitration Policy.
Paragraph 5 permits informal resolution of Covered Disputes
under certain specified conditions, and describes the procedures
for and parameters of informal resolution.
Paragraph 6 discusses the MBAP’s effect on employees’ ac-
cess to administrative processes, and states in full:
This Arbitration Policy does not prevent or excuse any Em-
ployee or Ralphs (or any of them) from satisfying any appli-
cable statutory conditions precedent or jurisdictional prerequi-
sites to pursuing their Covered Disputes by, for example, fil-
ing administrative charges with or obtaining right to sue no-
tices or letters from federal, state, or local agencies. However,
final and binding arbitration as described in this Arbitration
Policy is the sole and exclusive remedy or formal method of
resolving the Covered Disputes. If there is no applicable statu-
tory condition precedent or jurisdictional prerequisite to pur-
suing a Covered Dispute, all parties must proceed directly to
arbitration under and pursuant to this Arbitration Policy. Not-
withstanding any other provision of this Arbitration Policy all
Employees retain the right under the National Labor Relations
Act (“NLRA”) to file charges with the National Labor Rela-
tions Board (“NLRB”), and to file charges with the United
States Equal Employment Opportunity Commission
(“EEOC”) under federal equal employment opportunity laws
within the EEOC’s administrative jurisdiction.
Paragraph 7 states that the MBAP is governed by the Federal
Arbitration Act, and sets forth how the parties will appoint a
qualified arbitrator. In turn, paragraph 8 states that the Federal
Rules of Civil Procedure, as implemented by the applicable
local federal district court, will govern any arbitration proceed-
ings. It further states:
[T]here is no right or authority for Covered Disputes to be
heard or arbitrated on a class action basis, as a private attorney
general, or on bases involving claims or disputes brought in a
representative capacity on behalf of the general public, of oth-
er Ralph’s employees (or any of them), or of other persons al-
leged to be similarly situated.
The paragraph then defines “Representative Action” as:
Any action or proceeding brought against Ralphs (or any of
them) by any person (whether an Employee bound by this
Arbitration Policy or not) or entity in a representative capacity
on behalf of or for the benefit of (in whole or in part) any Em-
ployee bound by this Arbitration Policy.” Paragraph 8 con-
cludes by stating that, while the Federal Rules of Civil Proce-
dure apply, “there are no Judge or Jury trials and there are
no class actions or Representative Actions permitted under
this Arbitration Policy. [Emphasis in original.]
Next, paragraph 9 sets forth the procedures for initiating ar-
bitration under the MBAP, including the applicable statute of
limitations. Paragraph 10 covers attorneys’ fees.
Paragraph 11 starts out by stating that the Federal Rules of
Evidence apply to arbitrations conducted pursuant to the
MBAP. It then discusses the arbitrators’ authority to award
remedies that would otherwise be available to the employee if
litigated in court or an administrative forum, with the following
qualification:
However, the Qualified Arbitrator will have no power, author-
ity or jurisdiction to hear or decide any Covered Dispute(s) as
any type of Representative Action, to award any type of rem-
edy or relief for any Covered Dispute(s) in connection with
any type of Representative Action or to interpret, apply or
modify this Arbitration Policy in any manner that would em-
power or authorize the Qualified Arbitrator to do so.
Next, it sets forth the requirements of the arbitrator to issue a
written award, and sets some parameters for what the award
needs to contain. Paragraph 11 goes on to state:
Except and only to the extent it may be required by applicable
law, the parties and the Qualified Arbitrator shall maintain the
existence, content and outcome of any arbitration proceedings
held pursuant to this Arbitration Policy in the strictest confi-
dence and shall not disclose the same without the prior written
consent of all the parties.
It concludes by permitting entry of judgment by a court of
competent jurisdiction following the arbitrator’s award, and
noting that the arbitrator cannot issue an award contrary to the
law at issue.
Stepping backwards in the process, paragraph 12 permits the
parties to submit briefs to the arbitrator following the eviden-
tiary hearing and prior to the arbitrator’s decision. Paragraph
13 contains a zipper clause stating the MBAP is the complete
and full agreement for “Covered Disputes” and notes that the
employee accepts the agreement upon submitting an application
for employment, accepting employment, and/or continuing
employment. The MBAP concludes with paragraph 15, which
states that noting in the agreement changes the status of at-will
employees.
B. Enforcement of the MBAP
Terri Brown is a security guard for Ralph’s and is covered by
the MBAP. On November 30, 2009, Brown filed a class action
and Private Attorney General Act (PAGA) lawsuit against
Ralph’s in California Superior Court alleging various California
Labor Code violations, including failure to pay wages for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
missed lunch and rest breaks. (Exh. 6.)2 On February 11,
2011, Ralph’s filed a petition to compel arbitration and motion
to dismiss or stay the proceedings based on the MBAP. (Exh.
7.) The motion was litigated in the California state courts, re-
sulting in a remand from the appeals court to determine wheth-
er the MBAP provision waiving the right to pursue a repre-
sentative action under PAGA, which was unlawful, could be
severed or whether it rendered the entire MBAP unenforcea-
ble.3 (Exhs. 8–13.)
On October 16, 2013, Brown filed a second amended com-
plaint in California Superior Court limiting her claims to those
available under PAGA. (Exh. 17.) Ralph’s renewed its petition
to compel arbitration and motion to dismiss on January 8, 2013,
which the Superior Court denied the following day. (Exhs. 18–
20.) At the time of this decision, Ralph’s appeal of the Superi-
or Court’s ruling, and Brown’s motion to dismiss the appeal
were pending.
III. DECISION AND ANALYSIS
Under Section 8(a)(1), it is an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act. The
rights guaranteed in Section 7 include the right “to form, join or
assist labor organizations, to bargain collectively through 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 . . .”
A. Mandatory Waiver of Class Action Claims
The first issue, set forth in paragraphs 3(a), 4 and 5 of the
complaint, is whether in view of the Board’s decision in D.R.
Horton, the Respondent’s maintenance of, and efforts to en-
force the terms of, the MBAP, which contains provisions re-
quiring certain employees to resolve employment-related dis-
putes exclusively through individual arbitration proceedings
and to relinquish any right to resolve such disputes through
collective or class action, violates Section 8(a)(1) of the Act by
precluding employees from acting collectively or as a class or
otherwise exercising their § 7 rights.
The Respondent first argues that D.R. Horton, discussed be-
low, is void because the Board lacked a quorum when it issued
the decision. This argument derives from the D.C. Circuit’s
decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir.
2013), which the Board has rejected and so must I. See, e.g.,
Bloomingdale’s Inc., 359 NLRB No. 113 (2013); Belgrove Post
Acute Care Center, 359 NLRB No. 77, slip op. at fn. 1 (2013).
Though the Fourth Circuit recently agreed with Noel Canning
when it decided NLRB v. Enterprise Leasing Co. Southeast,
LLC, Nos. 12–1514, 12–2000, 12–2065, 2013 WL 3722388
(4th Cir. 2013), the Board has noted that at least three courts of
appeals have reached a different conclusion on similar facts.
Bloomingdales, supra, (citing Evans v. Stephens, 387 F.3d 1220

2 The abbreviation “Exh.” is used to identify exhibits attached to the
stipulated facts. Though I have cited to certain exhibits I emphasize
that my decision is based on the full record.
3 The Supreme Court of California subsequently denied review and
the U.S. Supreme Court denied Respondent’s petition for certiorari.
(Exhs. 14–16.)
(11th Cir. 2004), cert. denied 544 U.S. 942 (2005); U.S. v.
Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305
F.2d 704 (2d Cir. 1962)). Consistent with Board precedent, the
Respondent’s defense based on Noel Canning and a lack of
quorum fails.
In D.R. Horton, slip op. at 1, the Board explained that an
employer violates Section 8(a)(1) of the Act by imposing, as a
condition of employment, a mandatory arbitration agreement
that precludes employees from “filing joint, class, or collective
claims addressing their wages, hours, or other working condi-
tions against the employer in any forum, arbitral or judicial.”
Citing to Spandsco Oil & Royalty Co., 42 NLRB 942, 948–949
(1942), Salt River Valley Water Users Assn., 99 NLRB 849,
853–854 (1952), enfd. 206 F.2d 325 (9th Cir. 1953), and a
string of other cases, the Board noted that concerted legal ac-
tion addressing wages, hours, and working conditions has con-
sistently fallen within Section 7’s protections. D.R. Horton at
fn. 4. The Board stopped short of requiring employers to per-
mit both classwide arbitration and classwide suits in a court or
administrative forum, finding that “[s]o long as the employer
leaves open a judicial forum for class and collective claims,
employees’ NLRA rights are preserved without requiring the
availability of classwide arbitration.” Id. at 16.
In the instant case, there is no dispute that the MBAP is a
condition of employment. It is self-executing upon submitting
an application, accepting employment, and/or continuing em-
ployment. It is likewise clear that the MBAP prohibits class
actions entirely. With regard to classwide or representative
arbitration, paragraph 8 states:
[T]here is no right or authority for Covered Disputes to be
heard or arbitrated on a class action basis, as a private attorney
general, or on bases involving claims or disputes brought in a
representative capacity on behalf of the general public, of oth-
er Ralph’s employees (or any of them), or of other persons al-
leged to be similarly situated.
Here, as in D.R. Horton, the arbitration agreement precludes an
arbitrator from awarding any collective remedy. With regard to
judicial or any other class or representative actions, paragraph 8
concludes, with underlined emphasis, “there are no Judge or
Jury trials and there are no class actions or Representative
Actions permitted under this Arbitration Policy.” Because the
MBAP conditions employment on employees’ “waiving their
right under the NLRA to take the collective action inherent in
seeking class certification” or pursuing other representative
actions, I find D.R. Horton is directly applicable. Id. at 12.
The Respondent argues that the Board’s ruling in D.R. Hor-
ton interferes with the Federal Arbitration Act (FAA), 9 U.S.C.
§§ 1 et. seq., based on the Supreme Court’s reasoning both in
AT&T Mobility v. Concepcion, 131 S.Ct. 1740, 1746 (2011),
and Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 130 S.Ct.
1758, 1775–1776 (2010). The Board, however, considered
these arguments and precedents in D.R. Horton to support a
different conclusion, by which I am bound.
The Respondent further argues that, absent a congressional
command to excuse enforcement of the FAA, it must be en-
forced. Relying on CompuCredit Corp. v. Greenwood, 132
S.Ct. 665, 672 n. 4 (2012), decided a week after D.R. Horton,
RALPH’S GROCERY CO. 13
the Respondent argues that the Board ignored the requirement
of a “congressional command” to override the FAA. The crux
of the Respondent’s argument is that nothing in Section 7
(which was enacted prior to the FAA) excuses application of
the FAA. Specifically, the Respondent argues that Section 7
provides no substantive right to initiate a class action. Though
the Board could not have applied CompuCredit when it issued
D.R. Horton, it nonetheless addressed this argument, stating:
Any contention that the Section 7 right to bring a class or col-
lective action is merely “procedural” must fail. The right to
engage in collective action—including collective legal ac-
tion—is the core substantive right protected by the NLRA and
is the foundation on which the Act and Federal labor policy
rest. [Emphasis in original.]
D.R. Horton, supra.4
The Respondent argues that the recent Supreme Court deci-
sion, American Exp. Co. v. Italian Colors Restaurant, 133 S.Ct.
2304 (2013), makes clear that it is improper to find a congres-
sional command where none exists. American Exp. Co. in-
volved a group of merchants who were unhappy with the rates
American Express charged them to use their cards at their re-
spective businesses.5 At issue before the Court was whether the
merchants were bound by agreements mandating individual
arbitration of these disputes and precluding a class action suit
for violation of antitrust law. The merchants argued that with-
out the ability to proceed collectively, it was not cost-effective
to challenge American Express’s rates. The Court noted that
the laws at issue, the Sherman and Clayton Acts, fail to refer-
ence class actions, and found that the “antitrust laws do not
guarantee an affordable procedural path to the vindication of
every claim.” Id. at 2309. The Board in D.R. Horton distin-
guished the NLRA, however, and found that Section 7 substan-
tively guarantees employees the right to engage in collective
action, including collective legal action, for mutual aid and
protection concerning wages, hours, and working conditions.
As such, I find this argument fails.
The Respondent’s reliance on NLRB v. City Disposal Sys-
tems Inc., 465 U.S. 822, 830 (1984), for the proposition that the
term “concerted activities” is not defined in the Act, is unavail-
ing. The Court in City Disposal went on to hold that the term
“clearly enough embraces the activities of employees who have
joined together in order to achieve common goals,” and focused
its analysis on the issue at hand, i.e., whether an individual’s

4 The Respondent notes that the Board’s refusal to permit a class ac-
tion waiver is contrary to the Supreme Court’s decision in 14 Penn
Plaza LLC v. Pyett, 556 U.S. 247 (2009). The Board considered this
argument, however, and distinguished 14 Penn Plaza. D.R. Horton,
supra at 12.
5 It is a matter of common sense that the merchants could continue
to operate their businesses without offering customers the ability to pay
with an American Express card. Other forms of currency are available
and using American Express was their choice. Likewise, it was the
Charging Party’s choice to work for Ralph’s. Taken to its logical ex-
treme, however, if waivers such as the MBAP are judicially sanctioned
and become the norm for employers, employees will increasingly be
faced with the option of foregoing class litigation for mutual aid and
protection or not working.
invocation of a right rooted in collective bargaining is concert-
ed activity. Id.
Accordingly, I find the Acting General Counsel has proved
that the MBAP violates Section 8(a)(1) as alleged.
B. Effect on Employees’ Ability to file Board Charges or
Engage in Protected Conduct
Paragraph 3(b) of the complaint alleges that at all material
times, employees would reasonably conclude that the MBAP
precludes them from filing unfair labor practice charges with
the Board as well as from engaging in conduct protected by
Section 7 of the Act.
The MBAP was imposed on all employees as a condition of
hiring or continued employment by Ralph’s, and it is therefore
treated in the same manner as other unilaterally implemented
workplace rules. When evaluating whether a rule, including a
mandatory arbitration policy, violates Section 8(a)(1), the
Board applies the test set forth in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004). See U-Haul Co. of California,
347 NLRB 375, 377 (2006), enfd. 255 Fed.Appx. 527 (D.C.
Cir. 2007); D.R. Horton, supra. Under Lutheran Heritage, the
first inquiry is whether the rule explicitly restricts activities
protected by Section 7. If it does, the rule is unlawful. If it does
not, “the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.” Lutheran
Heritage at 647.
In the instant case, the MBAP explicitly restricts and has
been applied to restrict the exercise of rights the Board has
found are protected by Section 7, i.e. the pursuit of classwide
litigation regarding wages and hours. As such, it violates Sec-
tion 8(a)(1) both because it restricts on its face and has been
applied to restrict statutorily protected conduct.
The Acting General Counsel also asserts that the MBAP pre-
cludes employees from filing unfair labor practice charges with
the Board. The Respondent argues that the MBAP does not
and could not reasonably be read to prohibit employees from
filing charges with the Board. Though I have already found the
policy violates Section 8(a)(1) as discussed above, in the event
a reviewing authority disagrees that the policy explicitly re-
stricts Section 7 rights or has been applied to restrict those
rights, I will address this argument.
In evaluating the impact of a rule on employees, the appro-
priate inquiry is whether the rule would reasonably tend to chill
employees in the exercise of their Section 7 rights. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52
(D.C. Cir. 1999). A rule does not violate the Act if a reasona-
ble employee merely could conceivably read it as barring Sec-
tion 7 activity. Rather, the inquiry is whether a reasonable em-
ployee would read the rule as prohibiting Section 7 activity.
Lutheran Heritage, supra. The Board must give the rule under
consideration a reasonable reading and ambiguities are con-
strued against its promulgator. Lafayette Lutheran Heritage,
supra at 647; Lafayette Park Hotel, 326 NLRB at 828; and
Cintas Corp. v. NLRB, 482 F.3d 463, 467–470 (D.C. Cir.
2007). Moreover, the Board must “refrain from reading partic-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
ular phrases in isolation, and it must not presume improper
interference with employee rights.” Lutheran Heritage supra at
646.
Looking at the MBAP as a whole, I find a reasonable em-
ployee would read it as prohibiting him or her from filing unfair
labor practice charges with the Board. The first section defin-
ing what types of disputes the policy covers is paragraph 2,
which defines “Excluded Disputes” as “claims or disputes aris-
ing out of the terms and conditions of the CBA.” The same
section goes on to say, with underlined emphasis:
Except for Excluded Disputes, this Arbitration Policy applies
to any and all other employment-related disputes that exist or
arise between Employees and Ralphs (or any of them) that
would constitute cognizable claims or causes of action in a
federal, state or local court or agency under applicable fed-
eral, state or local laws (referred to in this Arbitration Policy
as “Covered Disputes”). Covered Disputes are employment-
related disputes that are not Excluded Disputes which involve
the interpretation or application of this Arbitration Policy, the
employer-employee relationship, an Employee’s actual or al-
leged employment with Ralphs (or any of them), the termina-
tion of such employment, or applying for or seeking such em-
ployment.
An employee who has read this far would certainly not think
filing a charge with the NLRB falls within the definition of an
“Excluded Dispute”. Paragraph 2 clearly says otherwise, and in
fact brings Board charges within the ambit of “Covered Dis-
putes”. But, as the Board warns, the MBAP’s terms must not
be read in isolation. Moving to paragraph 3, it starts out with
the underlined sentence: There are no judge or jury trials per-
mitted under this Arbitration Policy. That phrase is simple
enough, and nothing else in paragraph 3 alters the term “Cov-
ered Disputes” as defined thus far.
Paragraph 4 begins by declaring that arbitration as defined in
the policy is the sole and exclusive remedy for “Covered Dis-
putes.” Examples of “Covered Disputes” follow, including:
[U]npaid wages or failure to pay overtime or other compensa-
tion (or the computation thereof), failure to provide family or
medical (or other required) leave, failure to consider for hir-
ing, failure to hire for employment and actual or constructive
termination of the employment relationship.
Certainly many of these could also be examples of unfair labor
practice claims. Other examples of “Covered Disputes” include
“unlawful harassment, unlawful discrimination, unlawful retali-
ation, failure to provide reasonable accommodation(s) for a
disability or to engage in an interactive process about such
accommodation(s) . . .” These are all patently clear examples
of claims that arise under the civil rights statutes the Equal
Employment Opportunity Commission (EEOC) enforces, i.e.,
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, and the Age Discrimination in Employment
Act.6 Unlawful discrimination and retaliation based on activity
protected by Section 7 of the Act likewise could be considered

6 These statutes are respectively codified at 42 U.S.C. 2000e et seq.;
42 U.S.C. 121-1 et seq; and 20 U.S.C. 633a.
a “Covered Dispute” by some of these examples. In addition,
“Covered Disputes” include dispute arising under “the United
States Code” which of course encompasses the Act. Halfway
through the MBAP, any possible reading, much less a reasona-
ble one, leads to the conclusion that arbitration would be the
employee’s sole and exclusive remedy for an unfair labor prac-
tice dispute.
At the start of the third page, in paragraph 6, the MBAP
states:
This Arbitration Policy does not prevent or excuse any Em-
ployee or Ralphs (or any of them) from satisfying any appli-
cable statutory conditions precedent or jurisdictional prerequi-
sites to pursuing their Covered Disputes by, for example, fil-
ing administrative charges with or obtaining right to sue no-
tices or letters from federal, state, or local agencies. However,
final and binding arbitration as described in this Arbitration
Policy is the sole and exclusive remedy or formal method of
resolving the Covered Disputes. If there is no applicable statu-
tory condition precedent or jurisdictional prerequisite to pur-
suing a Covered Dispute, all parties must proceed directly to
arbitration under and pursuant to this Arbitration Policy
It is difficult to grasp what this part of paragraph 6 means. It
clearly recognizes that some “Covered Disputes,” which by this
point anyone who has read the MBAP thus far knows must be
heard, determined and resolved by an arbitrator, may fall within
the jurisdiction of federal, state, or local agencies. It seems to
allow employees to meet jurisdictional prerequisites for pursu-
ing such “Covered Disputes” in an administrative forum, yet in
the end requires that those disputes be resolved only through
final and binding arbitration under the policy rather than
through whatever fruits filing a charge or other similar effort
may bear.
The reader gets the first possible notion that there may be
exclusions beyond the definition of “Excluded Disputes” set
forth on the first page by way of paragraph 6’s final sentence,
which states:
Notwithstanding any other provision of this Arbitration Policy
all Employees retain the right under the National Labor Rela-
tions Act (“NLRA”) to file charges with the National Labor
Relations Board (“NLRB”), and to file charges with the Unit-
ed States Equal Employment Opportunity Commission
(“EEOC”) under federal equal employment opportunity laws
within the EEOC’s administrative jurisdiction.
The Respondent places strong reliance on this single sentence
more than halfway through the MBAP to argue that it is clearly
one of the explicit exceptions to the MBAP’s rule requiring
arbitration of employment disputes is employees’ right to file
charges with the Board. As just discussed, however, this sen-
tence is illusory, because even though an employee may file a
charge, language in the same paragraph dictates that the dispute
must nonetheless be resolved through arbitration per the policy.
This begs the question: Why would any employee bother to file
a charge? In addition, when paragraph 6 is read in conjunction
with paragraph 4, which exemplifies “Covered Disputes”
through numerous examples of the types of claims that fall
within the EEOC and NLRB’s jurisdiction, and includes dis-
RALPH’S GROCERY CO. 15
putes brought under the U.S. Code, the picture is confusing at
best. This is particularly true since nowhere in the policy are
disputes forming the basis for an NLRB charge defined, either
by plain terms or by way of example, as “Excluded Disputes.”7
The Respondent also relies on the following statement in
paragraph 4:
This Arbitration Policy requires, to the fullest extent permitted
by law, the resolution of all Covered Disputes concerning the
interpretation or application of the Arbitration Policy and/or
any of the terms, conditions or benefits of employment (other
than Excluded Disputes) by final and binding arbitration.
A reasonable employee reading this in the context of the rest of
the document is not going to know that the phrase “to the full-
est extent permitted by law” excuses disputes resulting in
NLRB charges from mandatory binding arbitration. See 2 Sis-
ters Food Group, Inc. 357 NLRB No. 168, slip op. at 7 (2011).
Considering that ambiguities must be construed against the
employer, I find the MBAP violates section 8(a)(1) because it
explicitly interferes with rights protected by Section 7, it has
been enforced to interfere with rights protected by Section 7,
and it would cause employees to reasonably believe that filing
charges with the Board would be futile. See Aroostook County
Regional Opthamology Center, 317 NLRB 218 (1995),
C. Confidentiality Provision
The final issue, set forth in paragraph 3(a) of the complaint,
is whether Respondent’s maintenance of and efforts to enforce
the MBAP violate Section 8(a)(1) of the Act inasmuch as the
MBAP, by its terms, requires each employee to keep confiden-
tial the existence, content and outcome of all arbitration pro-
ceedings.
The Board has consistently held that a confidentiality provi-
sion which expressly prohibits employees from discussing
among themselves, or sharing with others, information relating
to wages, hours, or working conditions, or other terms and con-
ditions of employment violates Section 8(a)(1) even if it was
never enforced and was not unlawfully motivated. See, e.g.,
Hyundai America Shipping Agency, 357 NLRB No. 80 (2011);
Double Eagle Hotel & Casino, 341 NLRB 112, 115 (2004).
The relevant MBAP provision states:
Except and only to the extent it may be required by applicable
law, the parties and the Qualified Arbitrator shall maintain the
existence, content and outcome of any arbitration proceedings
held pursuant to this Arbitration Policy in the strictest confi-
dence and shall not disclose the same without the prior written
consent of all the parties.
I find this provision would reasonably restrict employees
from disclosing to other employees information about any em-
ployment disputes subject to the MBAP. Employees would
reasonably construe this provision as barring them from dis-
cussing the existence or substance of an arbitration regarding

7 Confusingly, the MBAP lists “Covered Disputes” as including
“statutory claims or disputes” under “the Civil Rights Act of 1964; the
Americans With Disabilities Act; the Age Discrimination in Employ-
ment Act” while simultaneously stating employees retain the right to
file charges with the EEOC.
their terms or conditions of employment, and it is therefore
overly-broad. Moreover, the effect of this prohibition as ap-
plied to arbitrations concerning wages, hours, and working
conditions would be to create unlawful barrier to group action.
Under the MBAP, employees are not only precluded from pro-
ceeding together in arbitration, they are precluded by the confi-
dentiality provision from even telling each other they have
initiated individual arbitration proceedings.
The Respondent argues that the phrase “Except and only to
the extent it may be required by law” as a qualifier to the confi-
dentiality provision saves it from being read as a restriction on
Section 7 rights. I note there is no affirmative statement that
the rule will not be used to restrict Section 7 activity. Without
such a statement, employees would not reasonably know that
the law, and particularly Section 7 of the Act, would render
discussions of working conditions, even in the context of an
arbitration, lawful.
The Respondent further asserts that because the rule is only
triggered once the parties have engaged in arbitration, employ-
ees would likely have legal counsel or the aid of an arbitrator to
understand their rights. First, the MBAP as a whole must be
viewed from the employee’s standpoint when it is effectuated,
not when particular provisions are triggered. Moreover, the
mere existence of an arbitration proceeding may not be dis-
closed. Employees cannot be deemed to have the benefit of
counsel’s explanation about what they may lawfully discuss
with fellow employees when they first initiate an arbitration
proceeding. In any event, it cannot be presumed employees
will have the benefit of counsel, much less counsel who can
with confidence sort out what the confidentiality clause does
and does not prohibit, at any point in the process. The continu-
ing litigation over the lawfulness of confidentiality rules drives
home this point.
Finally, the Respondent asserts that no Board case has con-
sidered a confidentiality policy in the context of an arbitration
agreement, but rather its jurisprudence is limited to broadly-
defined confidentiality rules. This is unavailing. In Double
Eagle Hotel, supra at 115, which the Respondent cites, confi-
dential information was specifically defined to include “wages
and working conditions such as disciplinary information, griev-
ance/complaint information, performance evaluations, [and]
salary information”. Here, the confidentiality policy clearly
includes information about employee complaints covered by
the MBAP that have started the arbitration process.
Accordingly, because a reasonable employee would interpret
the MBAP’s confidentiality provision as an unlawful instruc-
tion not to talk about their working conditions, I find it violates
Section 8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW
(1) The Respondent, Ralph’s Grocery Company, is an em-
ployer within the meaning of Section 2(6) and (7) of the Act.
(2) The Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing a mandatory and binding arbitration
policy which required employees to resolve employment-
related disputes exclusively through individual arbitration pro-
ceedings and to relinquish any right they have to resolve such
disputes through collective or class action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
(3) The Respondent violated Section 8(a)(1) of the Act by
maintaining a mandatory and binding arbitration policy that
restricts employees’ protected activity or that employees rea-
sonably would believe bars or restricts their right to engage in
protected activity and/or file charges with the National Labor
Relations Board.
(4) The Respondent violated Section 8(a)(1) of the Act by
requiring employees to maintain the confidentiality of the ex-
istence, content, and outcome of all arbitration proceedings.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
As I have concluded that the Mediation and Binding Arbitra-
tion Policy is unlawful, the recommended order requires that
the Respondent revise or rescind it, and advise its employees in
writing that said rule has been so revised or rescinded. Because
the Respondent utilized the Mediation and Binding Arbitration
Policy on a corporate-wide basis, the Respondent shall post a
notice at all locations where the Mediation and Binding Arbi-
tration Policy was in effect. See, e.g., U-Haul Co. of California,
supra, fn. 2 (2006); D.R. Horton, supra, slip op. at 17.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Ralph’s Grocery Company, Compton, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a mandatory and binding ar-
bitration policy that waives the right to maintain class or collec-
tive actions in all forums, whether arbitral or judicial.
(b) Maintaining a mandatory and binding arbitration policy
that restricts employees’ protected activity or that employees
reasonably would believe bars or restricts their right to engage
in protected activity and/or file charges with the National Labor
Relations Board.
(c) Maintaining a policy requiring employees to maintain
the confidentiality of the existence, content, and outcome of all
arbitration proceedings.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise the Mediation and Binding Arbitration
Policy to make it clear to employees that the agreement does
not constitute a waiver in all forums of their right to maintain
employment-related class or collective actions, does not restrict
employees’ right to file charges with the National Labor Rela-
tions Board or engage in protected activity, and does not re-

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
quire employees to keep information regarding their Section 7
activity confidential.
(b) Notify the employees of the rescinded or revised agree-
ment to include providing them a copy of the revised agreement
or specific notification that the agreement has been rescinded.
(c) Within 14 days after service by the Region, post at all
facilities where the Mediation and Binding Arbitration Policy
applied copies of the attached notice marked “Appendix.”9
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 21, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 7, 2011.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. July 31, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce a mandatory and binding
arbitration policy that waives the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RALPH’S GROCERY CO. 17
WE WILL NOT maintain a mandatory and binding arbitration
policy that restricts employees’ protected activity or that em-
ployees reasonably would believe bars or restricts their right to
engage in protected activity and/or file charges with the Na-
tional Labor Relations Board.
WE WILL NOT maintain a policy requiring employees to main-
tain the confidentiality of the existence, content, and outcome
of all arbitration proceedings
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL rescind or revise the Mediation and Binding Arbi-
tration Policy to make it clear to employees that the agreement
does not constitute a waiver of their right in all forums to main-
tain class or collective actions, does not restrict employees’
right to file charges with the National Labor Relations Board or
engage in other protected activity, and does not require em-
ployees to keep information regarding their Section 7 activity
confidential.
WE WILL notify employees of the rescinded or revised
agreement, including providing them with a copy of the revised
agreement or specific notification that the agreement has been
rescinded.
RALPH’S GROCERY COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-073942 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.