Uber Technologies, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 2020

369 N.L.R.B. 102 (N.L.R.B. 2020)

369 NLRB No. 102
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.
Uber Technologies, Inc. and Lenza H. Mcelrath III.
Case 20–CA–181146
June 11, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On June 13, 2017, Administrative Law Judge Mara-
Louise Anzalone issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-ex-
ceptions with supporting argument, the Respondent filed
an answering brief, and the General Counsel filed a reply
brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
I. BACKGROUND
The Respondent engages in the operation of a
smartphone application and has places of business nation-
wide, including a facility located in San Francisco, Cali-
fornia. Since January 29, 2016, the Respondent has re-
quired its software engineers to execute a Dispute Resolu-
tion Agreement (Agreement) as a condition of their em-
ployment.
In relevant part, the Agreement provides as follows
(emphasis in original):
How this Agreement Applies: This Agreement is gov-
erned by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
This Agreement applies to any dispute arising out of or
related to Employee’s employment with Uber Technol-
ogies, Inc. or one of its affiliates, successor, subsidiaries
or parent companies (“Company”) or termination of em-
ployment and survives after the employment relation-
ship terminates. Except as it otherwise provides, this
Agreement is intended to apply to the resolution of dis-
putes that otherwise would be resolved in a court of law
or before a forum other than arbitration. This Agree-
ment requires all such disputes to be resolved only by an
arbitrator through final and binding arbitration and not
by way of court or jury trial. . . .
Except where this Agreement otherwise provides, this
Agreement also applies, without limitation, to disputes
regarding the employment relationship, trade secrets,
unfair competition, compensation, breaks and rest peri-
ods, termination, or harassment . . . .
Regardless of any other terms of this Agreement, claims
may be brought before and remedies awarded by an ad-
ministrative agency if applicable law permits access to
such an agency notwithstanding the existence of an
agreement to arbitrate. Such administrative claims in-
clude without limitation claims or charges brought be-
fore . . . the National Labor Relations Board
(www.nlrb.gov) . . . .
. . . .
Class Action Waiver: You and the Company agree to
bring any dispute in arbitration on an individual basis
only, and not on a class, collective, or private attorney
general representative basis. There will be no right or
authority for any dispute to be brought, heard or arbi-
trated as a class, collective, representative or private at-
torney general action, or as a member in any purported
class, collective, representative or private attorney gen-
eral proceeding, including without limitation pending
but not certified class actions (“Class Action Waiver”)
. . . .
Although an Employee will not be retaliated against, dis-
ciplined or threatened with discipline as a result of his or
her exercising his or her rights under Section 7 of the
National Labor Relations Act by the filing of or partici-
pation in a class, collective or representative action in
any forum, the Company may lawfully seek enforce-
ment of this Agreement and the Class Action Waiver,
Collective Action Waiver and Private Attorney General
Waiver under the Federal Arbitration Act and seek dis-
missal of such class, collective or representative actions
or claims. . . .
The judge found that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (NLRA or
Act) by maintaining its mandatory arbitration agreement
because, in her view, “the Agreement would lead a rea-
sonable employee to question his Section 7 rights and,
worse still, restrain him from exercising them out of fear
that doing so would run afoul of the Agreement.” In so
concluding, the judge relied on the “reasonably construe”
prong of Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004), which was extant law at the time the judge
issued her decision.
On December 12, 2019, the Board issued a Notice to
Show Cause why this case should not be remanded to the
judge for further proceedings in light of the Board’s deci-
sion in Boeing Co., 365 NLRB No. 154 (2017). In Boeing,
the Board overruled the “reasonably construe” prong of
Lutheran Heritage and announced a new standard, which
applies retroactively for evaluating the lawfulness of a
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
facially neutral policy. Id., slip op. at 3.1 The Respondent
and the General Counsel each filed a response to the No-
tice to Show Cause.2
II. DISCUSSION
We reverse the judge’s decision and find that the Re-
spondent did not violate Section 8(a)(1) of the Act by
maintaining its Agreement. The Agreement, when rea-
sonably interpreted, does not potentially interfere with
employees’ right to file Board charges and participate in
Board proceedings.
In Prime Healthcare Paradise Valley, LLC, the Board
held that “an arbitration agreement that explicitly prohib-
its the filing of claims with the Board or, more generally,
with administrative agencies must be found unlawful” be-
cause “[s]uch an agreement constitutes an explicit prohi-
bition on the exercise of employee rights under the
Act.” 368 NLRB No. 10, slip op. at 5 (2019). The deci-
sion further stated that where an arbitration agreement
does not contain such an explicit prohibition but rather is
facially neutral, the standard set forth in Boeing applies.
Id. Under that standard, the Board determines whether the
arbitration agreement at issue, “when reasonably inter-
preted, would potentially interfere with the exercise of
NLRA rights.” Boeing, 365 NLRB No. 154, slip op. at 3.3
The “when reasonably interpreted” standard is an objec-
tive one and looks solely to the wording of the rule, policy,
or other provision at issue interpreted from the perspective
of an objectively reasonable employee, who does not view
every employer policy through the prism of the NLRA.
1 Under Boeing, the Board first determines whether a challenged rule
or policy, reasonably interpreted, would potentially interfere with the ex-
ercise of rights under Sec. 7 of the Act. If not, the rule or policy is lawful.
If so, the Board evaluates two things: “(i) the nature and extent of the
potential impact on NLRA rights, and (ii) legitimate justifications asso-
ciated with the rule.” Id. slip op. at 3 (emphasis omitted). In conducting
this evaluation, the Board will strike a proper balance between the as-
serted business justifications and the invasion of employee rights in light
of the Act and its policies, viewing the rule or policy from the employees’
perspective. Id. “[T]he Board will delineate three categories” of work
rules:
Category 1 will include rules that the Board designates as lawful to
maintain, either because (i) the rule, when reasonably interpreted, does
not prohibit or interfere with the exercise of NLRA rights; or (ii) the
potential adverse impact on protected rights is outweighed by justifica-
tions associated with the rule. . . .
Category 2 will include rules that warrant individualized scrutiny in
each case as to whether the rule would prohibit or interfere with NLRA
rights, and if so, whether any adverse impact on NLRA-protected con-
duct is outweighed by legitimate justifications.
Category 3 will include rules that the Board will designate as unlawful
to maintain because they would prohibit or limit NLRA-protected con-
duct, and the adverse impact on NLRA rights is not outweighed by jus-
tifications associated with the rule.
See LA Specialty Produce, 368 NLRB No. 93, slip op. at
2.
In Briad Wenco, 368 NLRB No. 72, the Board ad-
dressed the lawfulness of arbitration agreements that re-
quire employees to arbitrate federal statutory claims but
also include “savings” language that clearly and promi-
nently informs employees that they are free to file charges
with the Board. The first paragraph of the arbitration
agreements at issue in Briad Wenco, when reasonably in-
terpreted, included claims arising under the Act within the
scope of their arbitration mandate. Id., slip op. at 1. But
the agreements also contained a savings clause providing
that “[n]othing in this Agreement shall be construed to
prohibit any current or former employee from filing any
charge or complaint or participating in any investigation
or proceeding conducted by an administrative agency, in-
cluding . . . the National Labor Relations Board.” Id. The
Board found that the savings clause was sufficiently prom-
inent within the agreements, inasmuch as it was referenced
in the agreements’ second paragraph, listing claims cov-
ered, and contained in the eleventh paragraph, which was
separated from the first and second paragraphs by only
about a page of text. Id., slip op. at 2. Because the savings
clause explicitly informed employees that they retained
the right to file charges with the Board and access its pro-
cesses, the Board concluded that employees could not rea-
sonably interpret the agreements to prohibit them from fil-
ing Board charges or participating in Board proceedings.
Id.
Id., slip op. at 3–4 (emphasis in original). The subdivisions of Category 1
were subsequently redesignated 1(a) and 1(b). See LA Specialty Produce Co.,
368 NLRB No. 93, slip op. at 2 fn. 2 (2019). Placement of a rule or policy in
Category 1(a) does not result from balancing NLRA rights and legitimate jus-
tifications. See id., slip op. at 2 (for a Category 1(a) rule, “there is no need for
the Board to take the next step in Boeing of addressing any general or specific
legitimate interests justifying the rule”). Other aspects of Lutheran Herit-
age remain intact, including whether a challenged rule or policy explicitly re-
stricts activities protected by Sec. 7. See Anderson Enterprises, Inc. d/b/a
Royal Motor Sales, 369 NLRB No. 70, slip op. at 2 fn. 3 (2020).
2 In its response to the Notice to Show Cause, the Respondent urges
the Board to dismiss the allegation without remand, asserting that its
Agreement is comparable to that which the Board found lawful in Briad
Wenco, LLC d/b/a Wendy’s Restaurant, 368 NLRB No. 72 (2019). The
General Counsel does not oppose remand but agrees with the Respondent
that if the Board does not remand, it should find the Agreement to be a
lawful Boeing Category 1(a) rule under Briad Wenco and Private Na-
tional Mortgage Acceptance Co. LLC, 368 NLRB No. 126 (2019). Be-
cause the only issue in this case is the facial lawfulness of the arbitration
agreement—which is already a part of the record before us—we find that
a remand is unnecessary.
3 As Boeing itself makes clear, a challenged rule may not be found
unlawful merely because it could be interpreted, under some hypothetical
scenario, as potentially limiting some type of Sec. 7 activity or because
the employer failed to eliminate all ambiguities from the rule. See id.,
slip op. at 9.
UBER TECHNOLOGIES, INC. 3
Here, similar to the arbitration agreements in Briad
Wenco, the Agreement requires arbitration of all “disputes
regarding the employment relationship,” which would in-
clude claims arising under the Act. However, this cover-
age language is immediately followed by a savings clause
that explicitly permits employees to bring claims to the
Board:
Regardless of any other terms of this Agreement, claims
may be brought before and remedies awarded by an ad-
ministrative agency if applicable law permits access to
such an agency notwithstanding the existence of an
agreement to arbitrate. Such administrative claims in-
clude without limitation claims or charges brought be-
fore . . . the National Labor Relations Board
(www.nlrb.gov) . . . .
Consistent with Briad Wenco, we conclude that this savings
clause renders the Agreement lawful under Boeing. First, the
savings clause is sufficiently prominent. It follows shortly
after the sentence providing for arbitration of “all” disputes,
necessarily including claims arising under the Act, and there-
fore is even more prominent than the savings clause that ren-
dered the arbitration agreements lawful in Briad Wenco. See
368 NLRB No. 72, slip op. at 2. Second, the savings clause
here, like the one in Briad Wenco, specifically and affirma-
tively states that employees may bring claims and charges be-
fore the National Labor Relations Board.
Finally, we are unpersuaded that employees would not
understand that they retain the right to file unfair labor
practice charges with the Board because the Agreement
also provides that “claims may be brought before and rem-
edies awarded by an administrative agency if applicable
law permits access to such an agency notwithstanding the
existence of an agreement to arbitrate.” (Emphasis added.)
Certainly, it is unlikely that rank-and-file employees
would know whether the Board is an administrative
agency to which they are guaranteed access by “applicable
law . . . notwithstanding the existence of an agreement to
arbitrate.” However, the very next sentence of the Agree-
ment identifies claims brought to the National Labor Re-
lations Board as administrative claims that employees are
entitled to bring. Thus, any ambiguity created by the ital-
icized language above is immediately resolved. See An-
derson Enterprises, Inc., 369 NLRB No. 70, slip op. at 3–
4 The specific reference to the “National Labor Relations Board” in
the savings clause here distinguishes this case from Cedars-Sinai Medi-
cal Center, 368 NLRB No. 83 (2019), where the Board found that the
respondent violated Sec. 8(a)(1) by maintaining an arbitration agreement
that encompassed federal statutory claims while excluding claims that
were “preempted by federal labor laws.” Id., slip op. at 2–3. The Board
found it unlikely that an objectively reasonable employee would be fa-
miliar with the legal doctrine of preemption, let alone what actions and
claims were preempted by federal labor laws, and therefore concluded
that the clause was legally insufficient. Id., slip op. at 3. As a result, the
4 (finding substantially similar arbitration agreement to be
lawful).4
For these reasons, the Agreement cannot be reasonably
understood to potentially interfere with employees’ access
to the Board and its processes. Accordingly, we find that
the Agreement is lawful under Boeing Category 1(a).
Boeing, 365 NLRB No. 154, slip op. at 4 (holding that
Category 1(a) consists of “rules that are lawful because,
when reasonably interpreted, they would have no ten-
dency to interfere with Section 7 rights”) (footnote omit-
ted).
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 11, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Richard McPalmer, Esq., for the General Counsel.
Alan I. Model, Esq. (Littler Mendelson, PC), for the Respondent.
Lenza McElrath III, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. Upon
a charge and amended charge filed by Lenza McElrath III
(McElrath or Charging Party) on July 27, 2016, and November
30, 2016, respectively, the Regional Director for Region 20 of
the National Labor Relations Board (Board) issued a complaint
and notice of hearing on December 29, 2016, and an amended
complaint and notice of hearing on March 10, 2017 (the amended
complaint). The General Counsel alleges that Respondent Uber
Board found that the arbitration agreement restricted employee access to
the Board and that such a restriction could not be supported by any legit-
imate business justification as a matter of law. Id. Here, unlike in Ce-
dars-Sinai, the Agreement makes clear that employees may bring claims
before the National Labor Relations Board specifically.
Member Emanuel did not participate in Cedars-Sinai and expresses
no opinion on whether the arbitration agreement in that case was lawful.
Nevertheless, he agrees with his colleagues that the present case is dis-
tinguishable from Cedars-Sinai.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Technologies, Inc. (Uber or Respondent) has been violating Sec-
tion 8(a)(1) of the National Labor Relations Act, as amended, 29
U.S.C. sec. 151, et. seq. (the Act), by maintaining and enforcing
an arbitration policy labeled as its “Dispute Resolution Agree-
ment.”
As discussed infra, following the issuance of the original com-
plaint, certain portions of this case were stayed by the General
Counsel pending an expected ruling from the United States Su-
preme Court. The parties also agreed to submit the non-stayed
portion of the case to me based on a stipulated record, thereby
waiving a hearing pursuant to Section 102.35(a)(9) of the
Board’s Rules and Regulations. Accordingly, based upon the
entire record herein, including the stipulated facts and exhibits,
and after considering post-hearing briefs filed by the General
Counsel and Respondent, I make the following
FINDINGS OF FACT
JURISDICTION
At all times material herein, Respondent, a Delaware corpora-
tion with places of business nationwide, including a facility lo-
cated in San Francisco, California, has been engaged in the op-
eration of a smartphone application. During the 12-month period
immediately preceding the issuance of the complaint, Respond-
ent, in the normal course and conduct of its above-described
business operations, purchased and received at its San Francisco
facility products, goods, and materials in excess of $50,000 di-
rectly from points outside the State of California. The parties
have stipulated and I find that at all material times, Respondent
has been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
PROCEDURAL BACKGROUND1
The original complaint alleged that Respondent’s mainte-
nance and enforcement of its Dispute Resolution Agreement
(Agreement) violates Section 8(a)(1) of the Act based on two
theories. First, it is alleged that the Agreement is facially unlaw-
ful because it requires employees to waive their right to pursue
employment-related claims through class or collective action.
Second, it is alleged that the Agreement violates the Act because
employees would reasonably understand it to prohibit them from
filing unfair labor practice charges and/or otherwise access the
Board.
On March 10, 2017, the General Counsel stayed proceeding
to hearing the facial challenge allegations, pending an expected
ruling from the United States Supreme Court in Murphy Oil
USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), cert. granted
137 S.Ct. 809 (2017). The parties then stipulated that the sole
1 Abbreviations used in this decision are as follows: “Stip. ¶ __” for
the parties’ stipulation of facts; “Jt. Exh. __” for Joint Exhibit; “GC Br.
at __” for the General Counsel’s post-hearing brief; and “R. Br. at __”
for Respondent’s posthearing brief.
2 Based on the pleadings, it appears that the General Counsel has
withdrawn the non-stayed portion of its allegation that Respondent vio-
lated the Act by filing a motion to compel arbitration. See Jt. Exh. H at
issue before me is whether the Agreement violates Section
8(a)(1) because employees would reasonably believe that it
would prohibit them from filing Board charges.2 On April 6,
2017, Respondent, Charging Party and the General Counsel filed
a joint motion to waive a hearing on this issue and submit it to
me for a recommended decision based on a stipulated record. On
April 7, 2017, I granted the parties’ joint motion and approved a
stipulated record limited to: the parties’ joint motion, stipulation
of issues presented, stipulation of facts and stipulated joint ex-
hibits.
ALLEGED UNFAIR LABOR PRACTICES
As noted, the sole issue before me is whether the DRA violates
Section 8(a)(1) of the Act, because employees would reasonably
believe that it interferes with their ability to file a Board charge.
A. Stipulated Facts
Since January 29, 2016, Respondent has required its software
engineers3 to execute the Agreement as a condition of their em-
ployment. The Agreement provides, in relevant part:
How This Agreement Applies: This Agreement is governed
by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. This Agree-
ment applies to any dispute arising out of or related to Em-
ployee’s employment with Uber Technologies, Inc. or one of
its affiliates, successor, subsidiaries or parent companies
(“Company”) or termination of employment and survives after
the employment relationship terminates. Except as it otherwise
provides, this Agreement is intended to apply to the resolution
of disputes that otherwise would be resolved in a court of law
or before a forum other than arbitration. This Agreement re-
quires all such disputes to be resolved only by an arbitrator
through final and binding arbitration and not by way of court
or jury trial. Such disputes include without limitation disputes
arising out of or relating to interpretation or application of this
Agreement, but not as to the enforceability, revocability or va-
lidity of the Agreement or any portion of the Agreement, in-
cluding the Class Action Waiver described below.
Except where this Agreement otherwise provides, this Agree-
ment also applies, without limitation, to disputes regarding the
employment relationship, trade secrets, unfair competition,
compensation, breaks and rest periods, termination, or harass-
ment and claims arising under the Uniform Trade Secrets Act,
Civil Rights Act of 1964, Americans With Disabilities Act,
Age Discrimination in Employment Act, Family Medical
Leave Act, Fair Labor Standards Act, Employee Retirement
Income Security Act (except for claims for employee benefits
under any benefit plan sponsored by the Company and covered
by the Employee Retirement Income Security Act of 1974 or
funded by Insurance), and state statutes, if any, addressing the
¶ 5 (alleging violation based on maintenance, but not enforcement of, the
Agreement).
3 While the amended complaint alleges a violation based on Respond-
ent’s maintenance of its arbitration policy with respect to its “employ-
ees,” the stipulated record establishes only that the Agreement binds in-
dividuals, such as Charging Party, employed by Respondent as software
engineers. As such, any complaint allegation regarding application of
the Agreement to non-software engineers fails for lack of proof.
UBER TECHNOLOGIES, INC. 5
same or similar subject matters, and all other federal and state
statutory and common law claims to the extent permitted by
law.
Regardless of any other terms of this Agreement, claims may
be brought before and remedies awarded by an administrative
agency if applicable law permits access to such an agency not-
withstanding the existence of an agreement to arbitrate. Such
administrative claims include without limitation claims or
charges brought before the Equal Employment Opportunity
Commission (www.eeoc.gov), the U.S. Department of Labor
(www.dol.gov), the National Labor Relations Board
(www.nlrb.gov), or the Office of Federal Contract Compliance
Programs (www.dol.gov/esa/ofccp).
* * *
3. Class Action Waiver: You and the Company agreed to
bring any dispute in arbitration on an individual basis only, and
not on a class, collective, or private attorney general representa-
tive basis. There will be no right or authority for any dispute to
be brought, heard or arbitrated as a class, collective, representa-
tive or private attorney general action, or as a member in any
purported class, collective, representative or private attorney
general proceeding, including without limitation pending but
not certified class actions (“Class Action Waiver”).
* * *
Although an Employee will not be retaliated against, disci-
plined or threatened with discipline as a result of his or her ex-
ercising his or her rights under Section 7 of the National Labor
Relations Act by the filing of or participation in a class, collec-
tive or representative action in any forum, the Company may
lawfully seek enforcement of this Agreement and the Class Ac-
tion Waiver, Collective Action Waiver and Private Attorney
General Waiver under the Federal Arbitration Act and seek dis-
missal of such class, collective or representative actions or
claims.
(Stip. ¶ 10; Jt. Exh. M). The Agreement does not contain a pro-
cedure whereby employees may opt out of arbitration.
B. The Legal Standard
“[A]n employer violates Section 8(a)(1) when it maintains a
work rule that reasonably tends to chill employees in the exercise
of their Section 7 rights.” Lutheran Heritage Village-Livonia,
343 NLRB 646, 646–647 (2004) (citing Lafayette Park Hotel,
326 NLRB 824, 825–827 (1998), enfd. mem. 203 F.3d 52 (D.C.
Cir. 1999)).4 “Where the rules are likely to have a chilling effect
on Section 7 rights, the Board may conclude that their mainte-
nance is an unfair labor practice, even absent evidence of en-
forcement.” Lafayette Park Hotel, 326 NLRB at 825 (footnote
omitted).
The test for 8(a)(1) violations is not subjective, but objective:
whether the policy or rule in question “would reasonably have a
4 Section 7 of the Act states that employees have the right to engage
in certain rights, or refrain from them. Those rights include the right:
. . . to self-organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
tendency to interfere with, restrain or coerce employees in the
exercise of their Section 7 rights . . . .” See generally Multi-Ad
Services, Inc., 331 NLRB 1226, 1227–1228 (2000), enfd. 255
F.3d 363 (7th Cir. 2001); see also Whole Foods Market, 363
NLRB No. 87, slip op. at 2 (2015) (citation omitted), affd. -- Fed.
Appx. --, 2017 WL 2374843 (2d Cir. 2017). The Board gives
rules a “reasonable reading”; it does not presume interference
with Section 7 rights or read phrases in isolation. Lutheran Her-
itage, 343 NLRB at 646; U-Haul Co. of California, 347 NLRB
375, 377 (2006), enfd. 255 Fed. Appx. 517 (D.C. Cir. 2007).
That said, the Board will construe ambiguous language
against the employer as the promulgator of the rule. Hyundai
America Shipping Agency, 357 NLRB 860, 862 (2011) (employ-
ees “should not have to decide at their own peril what infor-
mation is not lawfully subject to such a prohibition”); see also
Whole Foods Market, Inc., 363 NLRB No. 87, slip op. at 3 fn.
11 (ambiguous rule can chill employees’ Section 7 protected ac-
tivities by creating “a cautious approach” to protected conduct
based on fear of retaliation). Furthermore, “the Board must rec-
ognize that ‘rank-and-file employees . . . cannot be expected to
have the same expertise to examine company rules from a legal
standpoint.’” Ralph’s Grocery Co., 363 NLRB No. 128, slip op.
at 1 (2016) (quoting SolarCity Corp., 363 NLRB No. 83, slip op.
at 5 (2015)).
By its D.R. Horton5 and Murphy Oil USA, Inc.6 decisions, the
Board has applied these principles to policies requiring em-
ployee arbitration of disputes arising out of their employment.
Specifically, where an employer maintains a broadly worded
policy requiring employees to arbitrate all disputes arising out of
their employment, the Board has found a violation Section
8(a)(1), “because employees would reasonably construe it to pro-
hibit filing Board charges or otherwise accessing the Board’s
processes.” Dish Network, LLC, 365 NLRB No. 47, slip op. at
2–3 (2017) (finding violation based on arbitration policy appli-
cable to “any claim, controversy and/or dispute between them,
arising out of and/or in any way related to [e]mployee’s applica-
tion for employment, employment and/or termination of employ-
ment, whenever and wherever brought”) (citing U-Haul Co. of
California, 347 NLRB 375, supra at 377–378) (finding violation
based on policy requiring arbitration of “all disputes relating to
or arising out of an employee’s employment. . . [including]
claims. . . recognized by . . . federal law or regulations”)).
Filing unfair labor practice charges with the Board “is a vital
employee right designed to safeguard the procedure for protect-
ing all other employee rights guaranteed by Section 7.” Mesker
Door, Inc., 357 NLRB 591, 596 (2011). Moreover, because the
Board does not initiate its own proceedings, implementation of
the Act is critically dependent on individuals filing charges on
their own (and their coworkers’) behalf. As such, employees’
“complete freedom” to access to the Board’s processes is a fun-
damental purpose of the Act and must be vigorously safe-
guarded. NLRB v. Scrivener, 405 U.S. 117, 122 (1972) (citations
bargaining or other mutual aid and protection.
5 357 NLRB 2277, 2280 (2012), enf. denied in relevant part 737 F.3d
344 (5th Cir. 2013).
6 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013
(5th Cir. 2015), cert. granted 137 S.Ct. 809 U.S. (2017).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
omitted); see also ISS Facility Services, Inc., 363 NLRB No. 160,
slip op. at 4 (2016); SolarCity, 363 NLRB No. 83, slip op. at 4.
C. Respondent’s Arbitration Policy Violates the Act
Applying the above principles to the instant case, I find that
employees would reasonably understand the Agreement to inter-
fere with their ability to file a Board charge. Specifically, I find
that the Agreement is ambiguous when read as a whole from the
perspective of an employee attempting to discern whether, by
signing it, he is waiving that right. Essentially, the Agreement
plays “cat-and-mouse” with the reasonable employee-reader by
referencing filing Board charges and accessing the Board with-
out asserting, in plain and understandable language, that the
Agreement does not impede on these critical Section 7 rights.
SolarCity Corp., 363 NLRB No. 83, supra at 5 (rejecting arbitra-
tion policy where, “absent language more clearly informing em-
ployees about the precise nature of the rights supposedly pre-
served, the rule remains vague and likely to leave employees un-
willing to risk violating the rule by exercising Section 7 rights”).
As noted, supra, the Board has cautioned against the use of
vague and unexplained language in agreements purporting to
govern employees’ access to the Board. This case presents a
classic example of legal jargon that is too clever by half; I find
that, as drafted, the Agreement would lead a reasonable em-
ployee to question his Section 7 rights and, worse still, restrain
him from exercising them out of fear that doing so would run
afoul of the Agreement. In particular, I find that a reasonable
employee, having read the Agreement, would likely conclude as
follows:
I am required to arbitrate any employment-related dispute I
have with Uber on an individual—not collective—basis, ex-
cept where the Agreement “otherwise provides,” but the docu-
ment is far from clear from what, exactly it otherwise provides.
one sentence in the Agreement (¶ 2, second sentence) suggests
that “applicable law” might permit my “access” to the Board,
but another (¶ 2, first sentence) seems to say that Uber might
be “permitted by law” to use the Agreement to bar me from
filing “claims” with federal agencies such as the Board.
if Uber wanted me to understand how the Agreement affected
my rights, it would have simply said something like, “nothing
in this Agreement prohibits you from filing Board charges,”
period.
while Uber says it won’t retaliate against me for exercising my
Section 7 right to file a “class, collective or representative ac-
tion,” doing so would appear to violate the Agreement itself,
which I signed as a condition of my employment.
even if it doesn’t result in retaliation, filing a Board charge
would very likely be a waste of my time, because Uber can
lawfully seek dismissal of my claims.
There is no question that an enforcement regime wholly depend-
ent on the initiative of individual employees to file charges can-
not be sustained under these conditions. See ISS Facility Ser-
vices, Inc., 363 NLRB No. 160, supra; Ralph’s Grocery Co., 363
NLRB No. 128, supra; SolarCity, 363 NLRB No. 83, supra;
Murphy Oil, 361 NLRB 774, supra; D. R. Horton, 357 NLRB at
2278, supra; U-Haul Co. of California, 347 NLRB 375, supra.
In its defense, Respondent argues that the Agreement effec-
tively carves out through “clear and unambigious language,” em-
ployees’ “right to file a charge with and seek remedies from” the
Board. But, as noted above, the language Respondent relies
upon is anything but clear:
Regardless of any other terms of this Agreement, claims may
be brought before and remedies awarded by an administrative
agency if applicable law permits access to such an agency not-
withstanding the existence of an agreement to arbitrate. Such
administrative claims include without limitation claims or
charges brought before. . .the National Labor Relations Board
(www.nlrb.gov). . .
(emphasis added). This language echoes similar “savings
clause” language the Board has in recent years found insufficient
to clarify, for a reasonable employee, that the agreement in ques-
tion did not prohibit the filing of Board charges. See ISS Facility
Services, Inc., 363 NLRB No. 160 (2016), and SolarCity, 363
NLRB No. 83 (2015). I find no meaningful distinction between
the language in those cases and the instant one; the fatal flaw in
each policy is the attempt to “save” a layman’s rights by condi-
tioning them upon his ability to interpret “applicable law.” As
the Board stated in the ISS Facility Services case:
“[r]ank-and-file employees do not generally carry lawbooks to
work or apply legal analysis to company rules as do lawyers,
and cannot be expected to have the expertise to examine com-
pany rules from a legal standpoint.” Ingram Book Co., 315
NLRB 515, 516 fn. 2 (1994). As a result, the Board routinely
has found insufficient language in workplace rules purporting
to except, or “save,” employees’ legal rights from restrictions
on their conduct. See SolarCity Corp., 363 NLRB No. 83, slip
op. at 5 and fn. 18 (and cases cited therein) (2015). This is so
even where such exceptions referred to the “NLRA” or “the
National Labor Relations Act.” See id. at 5 and fn. 19 (and
cases cited therein). “The rationale underlying these decisions
is that, absent language more clearly informing employees
about the precise nature of the rights supposedly preserved, the
rule remains vague and likely to leave employees unwilling to
risk violating the rule by exercising Section 7 rights.” Id. at 5.
363 NLRB No. 160, slip op. at 3 (2016).
Respondent by its posthearing brief makes no mention of the
SolarCity or ISS Facility Services cases, but nonetheless suggests
that certain aspects of its policy (present in neither of those cases)
cure any chill caused by its vague and confusing language. First,
Respondent argues, its Agreement specifically “guides employ-
ees to the NLRB’s website (www.nlrb.gov) should they wish to
file charges.” I disagree. Merely referencing the agency’s web-
site does nothing to resolve the Agreement’s ambiguity on the
critical issue of employee access to the Board’s processes. Con-
sidering the placement of the web address within the Agreement,
I believe a reasonable employee would understand the reference
to be, at best, a suggestion that visiting the site might help him
figure out what Respondent was refusing to tell him outright:
whether, despite signing the Agreement, he could access the
Board to protect his Section 7 rights.
Second, Respondent argues that the Agreement should be con-
sidered lawful because it explicitly contemplates that, should
UBER TECHNOLOGIES, INC. 7
“applicable law” allow, employees will be allowed to pursue
both Board charges and any accompanying remedies. This is
truly a distinction without a difference; as set forth above, the
Agreement fails based on its flawed savings clause. Explicating
that employees may seek administrative remedies, conditioned
upon the same unlawful clause, adds nothing to the equation.
Finally, Respondent claims that its anti-retaliation language
reforms the Agreement. I disagree. As a preliminary matter, this
language on its face extends protection from retaliation only to
those who file group or collective charges, leaving the reader to
ponder what repercussions might befall an individual charge
filer. Secondly, immediately after reading this language, the em-
ployee is informed in no uncertain terms that filing charges
would be futile in any event, because Respondent may “law-
fully” enforce the Agreement to seek dismissal of any claim he
files. This effectively nullifies whatever limited comfort the
anti-retaliation might provide. See Ralph’s Grocery Co., supra,
slip op. at 2–3 (arbitration policy could be reasonably read to
suggest that the right to file charges with Board is futile; although
the policy contains an NLRB exclusion, language in same para-
graph dictates that disputes must nonetheless be resolved
through arbitration per the policy).
As set forth above, considering the Agreement as a whole, I
find that it is not written in a manner reasonably calculated to
assure employees that their right, central to the Act’s enforce-
ment scheme, to file Board charges remains unaffected. Accord-
ingly, I find that the Agreement violates Section 8(a)(1) because
employees would reasonably believe that it interferes with this
right.
CONCLUSIONS OF LAW
1. Respondent Uber Technologies, Inc. (Respondent) has at
all material times been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has engaged in an unfair labor practice affect-
ing commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act by maintaining a mutual arbitration agree-
ment that employees would reasonably believe bars or restricts
them from filing unfair labor practice charges with the National
Labor Relations Board.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices in violation of Section 8(a)(1) of the Act, I find
that it should be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
Specifically, Respondent should be ordered to rescind or revise
its dispute resolution agreement as it applies to its employee-
software engineers and to notify such employees that it has done
so.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
ORDER
The Respondent, Uber Technologies, Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a dispute resolution agreement that employ-
ees would reasonably believe bars or restricts them from filing
unfair labor practice charges with the NLRB.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the dispute resolution agreement in all of its
forms, or revise it in all of its forms to make clear to employees
that it does not bar or restrict them from filing charges with the
NLRB.
(b) Notify all current and former employee-software engi-
neers who were required to sign or otherwise become bound to
the dispute resolution agreement in any form that it has been re-
scinded or revised and, if revised, provide them a copy of the
revised agreement.
(c) Within 14 days after service by the Region, post copies of
the attached notice marked “Appendix” at all of its facilities
where the dispute resolution agreement has been maintained
with respect to Respondent’s employee-software engineers, in-
cluding, but not limited to, its San Francisco, California, Seattle,
Washington and New York, New York locations.8 Copies of the
notice, on forms provided by the Regional Director for Region
20, after being signed by Respondent’s authorized representa-
tive, shall be posted by Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to phys-
ical posting of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondents custom-
arily communicate with their employees by such means. Rea-
sonable steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, Re-
spondent has gone out of business or has closed or ceased doing
business at a facility covered by this order, Respondent shall du-
plicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Respond-
ent at those facilities at any time since January 29, 2016.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 20 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
It is further ordered that the Complaint is dismissed insofar as
it alleges violations of the Act not specifically found.
Dated, Washington, D.C. June 13, 2017
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT maintain a mandatory arbitration policy cover-
ing our employee-software engineers that they would reasonably
believe bars or restricts their right to file charges with the Na-
tional Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the Dispute Resolution Agreement in all of
its forms, or revise it in all of its forms, to make clear that it does
not bar or restrict our employee-software engineers’ right to file
charges with the National Labor Relations Board.
WE WILL notify all current and former employee-software en-
gineers who were required to sign or otherwise become bound to
the Dispute Resolution Agreement in any form that it has been
rescinded or revised and, if revised, WE WILL provide them a copy
of the revised agreement.
UBER TECHNOLOGIES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20-CA-181146 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.