Volkswagen Group of America, Inc., including VW Credit, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 2020

369 N.L.R.B. 42 (N.L.R.B. 2020)

369 NLRB No. 42
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.
VW Credit, Inc. and Kelley Hellman.
Volkswagen Group of America, Inc. and Kelley Hell-
man. Cases 13–CA–158715 and 13–CA–166961
March 12, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On August 25, 2015, Kelley Hellman filed a charge
against VW Credit, Inc. (Respondent VW Credit) in Case
13–CA–158715. The General Counsel issued a Com-
plaint and Notice of Hearing, and Respondent VW Credit
filed an answer. On January 4, 2016, Hellman filed a
charge against Volkswagen Group of America, Inc. (Re-
spondent VGoA) in Case 13–CA–166961, and the Gen-
eral Counsel issued an Order consolidating cases,
amended consolidated complaint, and notice of hearing in
Cases 13–CA–158715 and 13–CA–166961. On April 6,
2016, the General Counsel issued a Corrected Order con-
solidating cases, amended consolidated complaint, and
notice of hearing (complaint), in which he alleged that Re-
spondent VW Credit and Respondent VGoA (collectively,
Respondents) each violated Section 8(a)(1) of the Na-
tional Labor Relations Act (NLRA or Act) by maintaining
“a mandatory arbitration agreement for certain of its em-
ployees that employees reasonably would believe bars or

1 In Lutheran Heritage, the Board held that an employer violates Sec.
8(a)(1) of the Act “when it maintains a work rule that reasonably tends
to chill employees in the exercise of their Sec[.] 7 rights.” 343 NLRB at
646. The maintenance of a rule is unlawful if the rule explicitly restricts
activities protected by Sec. 7. Id. If a rule does not constitute such an
explicit restriction, its maintenance remained unlawful under Lutheran
Heritage if “(1) employees would reasonably construe the language to
prohibit Sec[.] 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the exercise of
Sec[.] 7 rights.” Id. at 647.
2 Under Boeing, the Board first determines whether a challenged rule
or policy, reasonably interpreted, would interfere with the exercise of
rights under Sec. 7 of the Act. If not, the rule or policy is lawful. If so,
the Board determines whether an employer violates Sec. 8(a)(1) of the
Act by maintaining the rule or policy by evaluating two things: “(i) the
nature and extent of the potential impact on NLRA rights, and (ii) legit-
imate justifications associated with the rule.” Id., slip op. at 3 (emphasis
in original). In conducting this evaluation, the Board will strike a proper
balance between the asserted 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. “As the result of this bal-
ancing . . . the 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
restricts their right to file charges with the Board.” The
Respondents filed a joint answer.
On September 2, 2016, the Respondents, the Charging
Party, and the General Counsel filed a joint motion to
waive a hearing and a decision by an administrative law
judge and to transfer this proceeding to the National Labor
Relations Board for a decision based on a stipulated rec-
ord. On December 2, 2016, the Board granted the parties’
joint motion. Thereafter, the Respondents (jointly) and
the General Counsel filed briefs, and the Respondents
(jointly) and the General Counsel filed answering briefs.
In support of the Complaint’s allegation that the Re-
spondents unlawfully maintained the disputed arbitration
agreement, the General Counsel relied on the “reasonably
construe” prong of the standard the Board set forth in Lu-
theran Heritage Village-Livonia, 343 NLRB 646 (2004)
(Lutheran Heritage).1 Subsequently, in Boeing Co., 365
NLRB No. 154 (2017), the Board overruled the “reasona-
bly construe” prong of Lutheran Heritage and replaced it
with a new standard, summarized below in footnote 2.2
The Board in Boeing also decided to apply the new stand-
ard retroactively to all pending cases. 365 NLRB No. 154,
slip op. at 16–17.
On October 29, 2018, the Board issued a Notice to
Show Cause why the Board should not revoke its approval
of the stipulation and remand this case to the Regional Di-
rector for Region 13 for further proceedings in light of
Boeing. The Respondents and the General Counsel each
filed a response to the Notice to Show Cause. The General
Counsel opposed remand. The Respondents sought re-
mand or, alternatively, permission to file a supplemental
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.
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). In addition, placement of a rule
or policy in Category 1(a) does not result from balancing NLRA rights and
legitimate justifications. 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”). The Boe-
ing standard replaced only the “reasonably construe” prong of Lutheran Her-
itage. Other aspects of Lutheran Heritage remain intact, including whether a
challenged rule or policy explicitly restricts activities protected by Sec. 7. See
above, fn. 1.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
brief analyzing the arbitration agreement under Boeing.
Because this case solely concerns the lawfulness of an ar-
bitration agreement that is already in the record before us,
we find that a remand is unnecessary. And because the
analysis of that agreement is governed by well-settled
precedent, we also find supplemental briefing unneces-
sary. Accordingly, we will decide the case on the stipu-
lated record, informed by the parties’ briefs.
On the entire record and briefs, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent VW Credit, a subsid-
iary of Respondent VGoA and a corporation with offices
and places of business in Herndon, Virginia, and Liber-
tyville, Illinois, has been engaged in the business of
providing financing services to Volkswagen automobile
purchasers and lessors. During the calendar year preced-
ing issuance of the Complaint, a representative period, Re-
spondent VW Credit derived gross revenues in excess of
$500,000 and, during the same period, purchased and re-
ceived goods, products, and materials in excess of $5000
directly from points outside the State of Illinois.
At all material times, Respondent VGoA, a corporation
with an office and place of business in Herndon, Virginia,
and at various locations throughout the United States, has
been engaged in the business of manufacturing and dis-
tributing Volkswagen automobile products. During the
calendar year preceding issuance of the Complaint, a rep-
resentative period, Respondent VGoA derived gross reve-
nues in excess of $500,000 and, during the same period,
purchased and received goods, products, and materials in
excess of $5000 directly from points outside the Common-
wealth of Virginia.
We find that the Respondents are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.

3 The Agreement applies to all employees employed by Respondent
VW Credit and Respondent VGoA, including all employees of the fol-
lowing: VCI Service Center in Portland, Oregon; Electronic Research
Lab in Belmont, California; Test Center California in Oxnard, Califor-
nia; Design Center California in Santa Monica, California; Parts Distri-
bution Center in Ontario, California; Port in San Diego, California;
VWI/Audi/VCI Western Region in Woodland Hills, California; Proving
Grounds in Phoenix, Arizona; Proving Grounds in Alaska; Audi Testing
Lab in Golden, Colorado; VW/VCI South Central Region in Irving,
Texas; Parts Distribution Center in Fort Worth, Texas; Port in Houston,
Texas; Parts Distribution Center in Jacksonville, Florida; VW Group
Latin America in Miami, Florida; Port in Brunswick, Georgia;
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Since about February 26, 2015, Respondent VW Credit
and Respondent VGoA have maintained, on a corporate
nationwide basis, a mandatory “Agreement to Arbitrate”
(Agreement) for certain of their employees,3 who are re-
quired to sign and date a copy of the Agreement. The
Agreement contains the following provisions and is appli-
cable, by its terms, to VGoA and any of its affiliated enti-
ties, including VW Credit (collectively, VWGoA):
1.) Introduction. In any organization, disputes will arise
from time to time. Occasionally, these disputes need to
be resolved in a formal proceeding. Traditionally, this
has taken place in the courts after a lawsuit has been
filed. However, too often, our court system has proven
itself to be exceedingly costly and time-consuming. In
order to obtain a ruling on future disputes without the
costly expense and lengthy delays typically associated
with court actions, Employee and VWGoA agree to sub-
mit (with exceptions noted below) claims or controver-
sies relating to Employee’s employment (or the termina-
tion of that employment) to final and binding arbitration
before a neutral arbitrator and not to any court, as speci-
fied in greater detail below.
2.) Submission to Arbitration. Any and all disputes
which involve or relate in any way to Employee’s em-
ployment (or termination of employment) with
VWGoA, whether initiated by Employee or by
VWGoA, shall be submitted to and resolved by final and
binding arbitration. However, nothing in this Agree-
ment shall be construed to restrict or prevent either party
from pursuing injunctive relief in a court of competent
jurisdiction.
3.) Waiver of Right to Jury Trial. I understand that by
entering into this Agreement, I am waiving any right I
may have to file a lawsuit or other civil proceeding re-
lating to my employment with VWGoA, and that I am
VW/Audi/VCI in Alpharetta, Georgia; Parts Distribution Center in
Knoxville, Tennessee; Corporate Headquarters in Herndon, Virginia;
Parts/Region Distribution Center in Cranbury, New Jersey; Port in Wil-
mington, Delaware; Product Liaison Group in Ridgefield, Edgewater,
and Allendale, New Jersey; EEO, Audi Test Fleet in Allendale, New Jer-
sey; VW/Audi/VCI Eastern Region in Woodcliff Lake, New Jersey; Cus-
tomer Relations & After Sales Support Center, EEO in Auburn Hills,
Michigan; Parts Distribution Center in Pleasant Prairie, Wisconsin; VCI
Service Center in Libertyville, Illinois; and VW/Audi/VCI Central Re-
gion in Chicago, Illinois. The Agreement also applies to some employ-
ees at U.S. Manufacturing CVS in Chattanooga, Tennessee.
VW CREDIT, INC. 3
waiving any right I may have to resolve employment
disputes through a jury trial.
4.) Covered Claims. This Agreement is intended to
cover all civil claims which relate in any way to my em-
ployment (or termination of employment) with VWGoA
including, but not limited to, arbitrable claims of em-
ployment discrimination or harassment on the basis of
race, sex, age, religion, color, national origin, sexual ori-
entation, disability and veteran status (including any lo-
cal, state or federal law concerning employment or em-
ployment discrimination), claims based on violation of
public policy or statute, and claims against individuals
or entities employed by, acting on behalf of, or affiliated
with VWGoA (“Claims”). However, claims for work-
ers’ compensation or for unemployment compensation
benefits are not covered by this Agreement. Nor are
claims for injunctive or equitable relief to enforce non-
competition or non-solicitation covenants, or to prohibit
unfair competition or the unauthorized disclosure of
trade secrets or other proprietary information covered by
this Agreement. Finally, union related matters or dis-
putes governed by a collective bargaining agreement
and ERISA matters which are covered by an ERISA
plan with a dispute resolution provision are not covered
by this Agreement. The statutes of limitations otherwise
applicable under law shall apply to all Claims made in
the arbitration.
10.) Arbitrator’s Authority. The arbitrator shall have no
authority to hear or decide any matter that was not pro-
cessed in accordance with this Agreement. The arbitra-
tor shall have exclusive authority to resolve any Claims,
including, but not limited to, a dispute relating to the in-
terpretation, applicability, enforceability or formation of
this Agreement. The arbitrator shall have the authority
to award any form of remedy or damages available in a
court.
22.) Modifications to Agreement. This Agreement may
be modified or amended only by a writing signed by me
and by an officer of VWGoA[,] which specifically ref-
erences this Agreement. No employee or agent of
VWGoA is authorized to make any agreement, under-
standing or arrangements to the contrary.
On about October 30, 2015, Respondent VW Credit
sent a notice to employees, titled “CHANGE TO VW
CREDIT, INC. EMPLOYEE AGREEMENT TO
ARBITRATE,” which stated in relevant part as follows
(emphasis in original):
If you joined VCI (or VWGoA) in or after 1999, you
likely signed a document entitled “Agreement to Arbi-
trate,” along with a number of other new-hire forms.
This Agreement provided, among other things, that you
and the Company agreed to have certain employment
disputes resolved through arbitration, rather than litiga-
tion and trial. Recently the National Labor Relations
Board (“NLRB”) looked at the form of our Agreement
to Arbitrate. The Board thought that we could be clearer
that the arbitration agreement does not restrict your
rights to file charges with the NLRB. We agreed to
make this clarification.
Accordingly, because it is your legal right to join a union
and file charges with the NLRB, we are revising your
Agreement to Arbitrate to include the following:
“This Agreement does not restrict your rights to
file charges with the NLRB.”
We will send you a copy of this notice by email. Since
we don’t plan to issue new Agreements, please keep a
copy of this notice along with your copy of your Agree-
ment to Arbitrate.
On about January 27, 2016, Respondent VGoA sent a
notice to employees (dated January 26, 2016), titled
“CHANGE TO VOLKSWAGEN GROUP OF
AMERICA’S ARBITRATION AGREEMENT,” which
stated in relevant part as follows (emphasis in original):
Recently the National Labor Relations Board (“NLRB”)
looked at our form of Arbitration Agreement. The
Board thought that we could be clearer that the Arbitra-
tion Agreement does not restrict your rights to file
charges with the NLRB. We agree.
Because you are always free to join a union and file
charges with the NLRB, we will read your Arbitration
Agreement to include the following:
“This Agreement does not restrict your rights to file
charges with the NLRB.”
Please keep a copy of this notice with your copy of your
Arbitration Agreement.
B. The Parties’ Contentions
The parties’ joint stipulation includes the following
statement of issues:
1. Whether Respondents’ mandatory arbitration agree-
ment interferes with, restrains, or coerces employees in
the exercise of the rights guaranteed under Section 7 of
the Act in violation of Section 8(a)(1) of the Act.
2. Whether Respondents’ Notices to Employees met the
Act’s full remedial purposes.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondents contend that the Agreement is lawful
because it does not seek to compel arbitration of claims
arising under the NLRA. Noting that the Agreement’s
first paragraph, headed “Introduction,” focuses on dis-
putes that have “[t]raditionally” been resolved “in the
courts after a lawsuit has been filed,” they contend that the
Agreement makes clear that its purpose is to avoid the
“costly” and “time-consuming” court system. They then
argue that because NLRA charges must be filed with the
Board and are not “[t]raditionally” resolved “in the courts
after a lawsuit has been filed,” reasonable employees
would understand that the Agreement does not apply to
claims arising under the Act.
In addition, the Respondents contend that no violation
should be found because the notices to employees repudi-
ated any alleged unlawfulness in the Agreement under
Passavant Memorial Area Hospital, 237 NLRB 138
(1978).4 The Respondents claim that the notices were is-
sued shortly after they became aware of the General Coun-
sel’s position that the Agreement was unlawful and ade-
quately explained to employees that the Agreement was
being amended to make it clear that employees retained
the right to file charges with the Board. The Respondents
further claim that the Agreement, as amended by the no-
tices, lawfully informed employees that the Agreement
does not restrict their right to file charges with the Board.
Citing U-Haul Co. of California, 347 NLRB 375
(2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007),
the General Counsel contends that the Agreement is un-
lawful because reasonable employees would read it to re-
strict their right to file charges with the Board and to ac-
cess its processes. Disputing the Respondents’ claim that
the scope of the Agreement is limited to actions that start
out in court, the General Counsel emphasizes that the
Agreement expressly applies to “all civil claims which re-
late in any way to [employee’s] employment (or termina-
tion of employment) . . . [and] claims based on violation
of . . . statute,” which includes claims arising under the
Act. The General Counsel observes that although the
Agreement excludes “union related matters or disputes
governed by a collective bargaining agreement,” it does
not exclude from the scope of the Agreement many other
types of NLRA claims, including those involving pro-
tected concerted activity in a nonunion workplace.
The General Counsel also contends that the notices did
not render the Agreement lawful. He argues that the no-
tices do not satisfy all the requirements for repudiation un-
der Passavant, and he further argues that the “savings

4 For a repudiation to serve as a defense to an unfair labor practice
allegation under Passavant, the repudiation must be timely, unambigu-
ous, specific, and untainted by other unlawful conduct. Id. at 138. In
addition, there must be adequate publication of the repudiation to the
clause” language in the notices, when read together with
the rest of the Agreement, does not clearly inform employ-
ees that the Agreement permits them to file a charge with
the Board. Finally, the General Counsel maintains that
simply sending the notices to employees was inadequate
to remedy the Respondents’ unlawful maintenance of the
Agreement.
C. Discussion
1. The Agreement to Arbitrate is Unlawful
a. The Agreement does not include the “savings clause”
language contained in the notices.
Each of the Respondents sent a notice to employees
covered by the Agreement. The title of the notices an-
nounced a “Change” to the Agreement. The notice sent
by Respondent VW Credit stated that VW Credit was re-
vising the Agreement to include the following sentence:
“This Agreement does not restrict your rights to file
charges with the NLRB.” The notice sent by Respondent
VGoA stated that Respondent VGoA “will read your Ar-
bitration Agreement to include” the same sentence.
Despite appearances, the notices did not change the
Agreement. The Agreement expressly provides that it
“may be modified or amended only by a writing signed by
[the employee] and by an officer of VWGoA” (emphasis
added). The notices were not such a writing. Moreover,
the stipulated record contains no evidence that the Re-
spondents, or either of them, have ever modified the
Agreement in the manner specified therein as to any em-
ployee, much less that they have done so for all employees
who signed the Agreement.
b. The Agreement unlawfully interferes with employee
access to the Board.
Having found that the notices to employees did not
modify or amend the Agreement to add “savings clause”
language, we next consider whether the Agreement un-
lawfully interferes with the right of employees to access
the Board and its processes. For the following reasons, we
find that it does.
“Under Section 10(b) of the Act, the Board has no
power to issue complaint unless an unfair labor practice
charge is filed.” Prime Healthcare Paradise Valley, LLC,
368 NLRB No. 10, slip op. at 5 (2019). But while limiting
the Board’s power in this way, Congress also protected it
by providing, in Section 10(a) of the Act, that the Board’s
power to prevent unfair labor practices “shall not be af-
fected by any other means of adjustment or prevention that
employees involved, and the repudiation must assure employees that, go-
ing forward, the employer will not interfere with the exercise of their
Sec. 7 rights. Id. at 138–139.
VW CREDIT, INC. 5
has been or may be established by agreement, law, or oth-
erwise.” Since the Board’s ability to prevent unfair labor
practices depends entirely on the filing of unfair labor
practice charges, we held in Prime Healthcare that Sec-
tion 10(a) is a clear congressional command that arbitra-
tion agreements that interfere with an employee’s right to
file charges with the Board cannot be lawfully maintained
or enforced, notwithstanding the Federal Arbitration
Act. 368 NLRB No. 10, slip op. at 5.
Thus, we held in Prime Healthcare that an arbitration
agreement that explicitly prohibits the filing of claims
with the Board or, more generally, with administrative
agencies must be found unlawful because such an agree-
ment constitutes an explicit prohibition on the exercise of
employee rights under the Act. Id. Where an arbitration
agreement does not contain such an explicit prohibition
but rather is facially neutral, the standard set forth in Boe-
ing applies. Id. Under that standard, the Board determines
whether the arbitration agreement at issue, “when reason-
ably interpreted, would potentially interfere with the exer-
cise of NLRA rights.” Boeing, 365 NLRB No. 154, slip
op. at 3.5 If it does, Boeing’s balancing test applies. 365
NLRB No. 154, slip op. at 3. However, as we explained
in Prime Healthcare, an arbitration agreement that makes
arbitration the exclusive forum for resolving all employ-
ment-related claims—and therefore, the exclusive forum
for resolving claims arising under the NLRA—”impair[s]
employee rights, the free exercise of which is vital to the
implementation of the statutory scheme established by
Congress in the National Labor Relations Act.” 368
NLRB No. 10, slip op. at 7. Accordingly, we concluded
that “[n]o legitimate justification outweighs, or could out-
weigh, the adverse impact of such provisions on employee
rights and the administration of the Act.” Id. Therefore,
such a provision in an arbitration agreement falls within
Boeing Category 3 and cannot be lawfully maintained. Id.
Applying these principles, we find that the Agreement
at issue here interferes with employee rights under the Act
and falls within Boeing Category 3. Although the Agree-
ment does not explicitly prohibit charge filing, and alt-
hough it excludes some NLRA claims from coverage, it
makes arbitration the exclusive forum for resolving many
claims arising under the Act. Accordingly, when

5 The “when reasonably interpreted” standard is an objective one and
“looks solely to the wording of the rule, policy, or other provision at is-
sue[,] . . . interpreted from the employees’ perspective.” Prime
Healthcare, 368 NLRB No. 10, slip op. at 6 fn. 14.
6 We are unpersuaded by the Respondents’ contention that employees
would understand the Agreement to apply only to claims first brought in
court—and therefore not to claims for violation of the Act—based on the
reference, in the Agreement’s first paragraph, to arbitration as an alter-
native to “costly and time-consuming” formal proceedings that “[t]radi-
tionally” take place in the courts. Boeing requires that we interpret the
reasonably interpreted, it impermissibly interferes with
the right to file charges with the Board.
To begin, the Agreement states that “[a]ny and all dis-
putes which involve or relate in any way to Employee’s
employment (or termination of employment) with
VWGoA . . . shall be submitted to and resolved by final
and binding arbitration.” The Agreement further provides
that “[t]he arbitrator shall have exclusive authority to re-
solve any Claims,” and it relevantly defines the term
“Claims” to include “all civil claims which relate in any
way to [Employee’s] employment (or termination of em-
ployment) with VWGoA including . . . claims based on
violation of . . . statute.” Obviously, claims “based on vi-
olation of . . . statute” that “relate” to “employment (or
termination of employment)” include claims for violation
of the NLRA. Thus, without more, the foregoing language
makes arbitration the exclusive forum for resolving claims
for violation of the NLRA, which employees would rea-
sonably interpret to restrict the filing of charges with the
Board. See Prime Healthcare, 368 NLRB No. 10, slip op.
at 6 (reasonably interpreted, provisions that make arbitra-
tion the exclusive forum for the resolution of all employ-
ment-related claims restrict the filing of charges with the
Board); Alorica, Inc., and its subsidiary/affiliate Expert
Global Solutions, Inc., 368 NLRB No. 25, slip op. at 1–2
(2019) (finding that an employer unlawfully maintained
an arbitration agreement requiring all employment-related
disputes, claims, or controversies to be resolved exclu-
sively by final and binding arbitration).6
The Agreement does, however, exclude some claims
arising under the Act from its scope—specifically, “union
related matters or disputes governed by a collective bar-
gaining agreement.” But the Act’s scope is not limited to
such matters and disputes; it also encompasses, for exam-
ple, employees’ protected concerted activities unrelated to
union matters or collective-bargaining agreements. At a
minimum, then, employees would reasonably interpret the
Agreement to restrict the filing of charges with the Board
alleging interference with the right to engage in such ac-
tivities. Thus, the agreement at issue here differs from ar-
bitration agreements we have found lawful on the basis
Agreement from “the perspective of employees,” 365 NLRB No. 154,
slip op. at 3, and it is unlikely that employees would be sufficiently fa-
miliar with different types of legal proceedings to distinguish NLRB pro-
ceedings from proceedings before a court. See Prime Healthcare, 368
NLRB No. 10, slip op. at 6 & fn. 12; U-Haul Co. of California, 347
NLRB at 377–378. Moreover, the broad language quoted above—in-
cluding language that makes arbitration the sole means for resolving em-
ployment-related claims “based on violation of . . . statute,” including,
necessarily, the NLRA—contradicts the Respondents’ argument con-
cerning the limited scope of the Agreement.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that they altogether exclude from their scope claims aris-
ing under the Act.7
In sum, the language of the Agreement, reasonably in-
terpreted, makes arbitration the exclusive forum for reso-
lution of many types of claims arising under the Act. Ac-
cordingly, the Agreement restricts employee access to the
Board, and such a restriction cannot be outweighed by any
legitimate justification. Prime Healthcare, 368 NLRB
No. 10, slip op. at 7. Therefore, the Agreement falls
within Boeing Category 3, and we find that the Respond-
ents violated Section 8(a)(1) of the Act by maintaining it.
2. The Respondents’ Notices Did Not Cure
the Violations
The Respondents continue to insist that the Agreement
is lawful even without the “savings clause” language in the
notices to employees. As just explained, we disagree and
find to the contrary. In addition, we have also explained
that because the notices to employees did not comply with
the procedure specified in the Agreement for its modifica-
tion or amendment, those notices failed to modify or
amend the Agreement.8 Finally, we reject the Respond-
ents’ contention that, even assuming the Agreement un-
lawfully restricted Board charge filing, the Respondents
effectively repudiated the violation under Passavant,
above. The contention is that by virtue of the notices, the
Respondents adequately explained to employees that the
Agreement was being revised to make clear that employ-
ees retained the right to file charges with the Board. But
the explanation was ineffective unless the Agreement was,
in fact, revised, and as we have explained, the notices did
not revise the Agreement. Accordingly, the Respondents’
Passavant defense necessarily fails.9
CONCLUSIONS OF LAW
1. The Respondents are employers within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By maintaining a mandatory arbitration agreement
that employees reasonably would believe bars or restricts
their right to file charges with the National Labor Rela-
tions Board, the Respondents have engaged in an unfair
labor practice affecting commerce within the meaning of

7 Compare Bloomingdale’s, Inc., 369 NLRB No. 8, slip op. at 1, 2–3
(2020) (finding that an arbitration agreement excluding “[c]laims . . . un-
der the National Labor Relations Act” did not interfere with right to file
charges with the Board); Private National Mortgage Acceptance Com-
pany LLC, 368 NLRB No. 126, slip op. at 3 (2019) (finding that an arbi-
tration agreement excluding “any claims that could be made to the Na-
tional Labor Relations Board” did not interfere with right to file charges
with the Board).
8 Aware, perhaps, of this difficulty, Respondent VGoA worded its
notice in a way that suggested the Agreement already contained “savings
clause” language—i.e., “we will read your Arbitration Agreement to
Section 2(6) and (7) of the Act, and have violated Section
8(a)(1) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Specifically, having
found that the Respondents unlawfully maintained a man-
datory arbitration agreement that employees reasonably
would believe bars or restricts their right to file charges
with the Board, we shall order the Respondents to rescind
or revise the unlawful agreement and to advise employees
in writing that they have done so. Because the Respond-
ents maintained the arbitration agreement on a nationwide
basis, we shall also order that the Respondents post a no-
tice at all of their facilities where the Agreement has been
or is in effect. See Guardsmark, LLC, 344 NLRB 809,
812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007).
ORDER
A. The National Labor Relations Board orders that the
Respondent, VW Credit, Inc., Herndon, Virginia, and Lib-
ertyville, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that
employees reasonably would believe bars or restricts their
right to file charges with the National Labor Relations
Board.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Agreement to Arbitrate in all its forms,
or revise it in all its forms to make clear to employees that
the Agreement to Arbitrate does not bar or restrict employ-
ees’ right to file charges with the National Labor Relations
Board.
(b) Notify all current and former employees who were
required to sign or otherwise became bound to the
include” the statement, “[t]his Agreement does not restrict your rights to
file charges with the NLRB.” But the Agreement does not include that
statement, and the notices did not amend the Agreement to add that state-
ment.
9 Having found that the Respondents cannot mount a cognizable
Passavant defense, we do not pass on whether the specific requirements
set forth in Passavant constitute the proper standard for effective repudi-
ation of an unfair labor practice. We also do not decide here whether the
Agreement would have been lawful under Prime Healthcare and related
precedent had it been revised to include the “savings clause” language
contained in the notices to employees.
VW CREDIT, INC. 7
Agreement to Arbitrate in any form that the Agreement to
Arbitrate has been rescinded or revised and, if revised,
provide them a copy of the revised agreement.
(c) Within 14 days after service by the Region, post at
its facilities in Herndon, Virginia, and Libertyville, Illi-
nois, and at all other VW Credit facilities where the un-
lawful arbitration agreement is or has been in effect, cop-
ies of the attached notice marked “Appendix A.”10 Copies
of the notice, on forms provided by the Regional Director
for Region 13, 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, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice marked “Appendix A” to all
current employees and former employees employed by the
Respondent at any time since February 26, 2015.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 13 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
B. The National Labor Relations Board orders that the
Respondent, Volkswagen Group of America, Inc., Hern-
don, Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that
employees reasonably would believe bars or restricts their
right to file charges with the National Labor Relations
Board.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Agreement to Arbitrate in all its forms,
or revise it in all its forms to make clear to employees that

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 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.”
the Agreement to Arbitrate does not bar or restrict employ-
ees’ right to file charges with the National Labor Relations
Board.
(b) Notify all current and former employees who were
required to sign or otherwise became bound to the Agree-
ment to Arbitrate in any form that the Agreement to Arbi-
trate has been rescinded or revised and, if revised, provide
them a copy of the revised agreement.
(c) Within 14 days after service by the Region, post at
its facility in Herndon, Virginia, and at all other
Volkswagen Group of America facilities where the unlaw-
ful arbitration agreement is or has been in effect, copies of
the attached notice marked “Appendix B.”11 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 13, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, 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. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix B” to all current em-
ployees and former employees employed by the Respond-
ent at any time since February 26, 2015.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 13 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. March 12, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
11 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
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars or
restricts their right to file charges with the National Labor
Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Agreement to Arbitrate in all its
forms, or revise it in all its forms to make clear that the
Agreement to Arbitrate does not restrict your right to file
charges with the National Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise became bound to the
Agreement to Arbitrate in any form that the Agreement to
Arbitrate has been rescinded or revised and, if revised, WE
WILL provide them a copy of the revised agreement.
VW CREDIT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-158715 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.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars or
restricts their right to file charges with the National Labor
Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Agreement to Arbitrate in all its
forms, or revise it in all its forms to make clear that the
Agreement to Arbitrate does not restrict your right to file
charges with the National Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise became bound to the
Agreement to Arbitrate in any form that the Agreement to
Arbitrate has been rescinded or revised and, if revised, WE
WILL provide them a copy of the revised agreement.
VOLKSWAGEN GROUP OF AMERICA, INC.
VW CREDIT, INC. 9
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-158715 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.