Acuity Specialty Products, Inc., d/b/a Zep Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 21, 2014

32-CA-075221 (N.L.R.B. Jul. 21, 2014)

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Los Gatos, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ACUITY SPECIALTY PRODUCTS, INC. d/b/a
ZEP, INC.
and Cases 32-CA-075221
32-CA-102838
LYNN WOODFORD, an Individual
and
DOUG HEFFERNAN, an Individual
Amy L. Berbower, Esq.
for the General Counsel
Kurt A. Powell and Aja D. Moore, Esqs.
(Hunton & Williams, LLP, Atlanta GA)
for the Respondent
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. This is another case raising issues
related to D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. granted in part and denied in part
737 F.3d 433 (5th cir. 2013). It was tried based upon a joint motion and stipulation of facts dated
April 15, 2014, which I approved on April 17, 2014.
The initial charge in Case No. 32-CA-075221 was filed by Lynn Woodford (Woodford) on
February 23, 2012, and an amended charge on January 24, 2013. On January 31, 2013, the
Regional Director for Region 32 of the National Labor Relations Board (the Board) issued a
Complaint and Notice of Hearing in Case No. 32-CA-075221 alleging that Acuity Specialty
Products, Inc. d/b/a Zep inc. (Acuity or Respondent) violated the National Labor Relations Act
(the Act). Respondent filed an answer denying the material allegations of the complaint and
raising certain affirmative defenses.
On March 13, 2013, The Regional Director for Region 32 of the Board issued an
Amended Complaint and Notice of Hearing in case No. 32-CA-075221 and an answer to this
Amended Complaint was filed on March 26, 2013.
The initial charge in Case No. 32 CA-102838 was filed by Doug Heffernan (Heffernan)
against the Respondent on April 15, 2013. On July 30, 2013, the Woodford case (32-CA-
075221) was consolidated with the Heffernan case (32 CA-102838) pursuant to an Order
Consolidating Cases, Consolidated Complaint and Notice of Hearing (the consolidated
complaint). Respondent filed an answer to the consolidated complaint on August 13, 2013,
denying the material allegations of the consolidated complaint and raising certain affirmative
defenses.
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On the entire record and after considering the briefs filed by the General Counsel and
the Respondent, I make the following
FINDINGS OF FACT
Jurisdiction
Respondent is a Georgia corporation with a principal office and place of business in
Atlanta, Georgia and with various other office locations throughout the United States including
Los Gatos, California. Respondent is engaged in the non-retail sale and distribution of various
product lines, including chemical cleaning products and equipment, which it sells to customers
through its outside and inside sales representatives and other distribution channels.
During the calendar year ending December 31, 2012, Respondent, in conducting its
operations described above, sold and shipped goods from its Atlanta, Georgia facility valued in
excess of $50,000 to points in states outside the State of Georgia. 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.
ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges that Respondent violated Section 8(a)(1) of the Act
by promulgating, maintaining and enforcing an Alternative Dispute Resolution (ADR) Policy (the
ADR Policy or Policy) which: (1) interferes with employees’ Section 7 rights to engage in
collective legal activity by binding employees to an irrevocable waiver of their rights to
participate in collective and class litigation; (2) contains language which employees would
reasonably conclude prohibits or restricts their right to file charges with the National Labor
Relations Board; (3) conditions employees’ eligibility to participate in Respondent’s annual sales
bonus program on their execution of the ADR Policy and (4) by construing the ADR Policy to
deny annual sales bonuses to employees who executed the Policy but refused to waive their
participation in class action or collective legal activity.
Apart from denying the material allegations of the consolidated complaint, and
contesting the remedy sought by the General Counsel, Respondent further asserts that: (1) the
ADR Policy is not premised on unlawful considerations; (2) the claims of the Charging Parties
are preempted by the requirements of the Federal Arbitration Act (FAA) as it relates to the
Charging Parties’ agreement to arbitrate with Respondent; (3) the consolidated complaint is
based upon NLRB precedent which was decided by an unlawfully constituted Board; (4) that
Respondent has paid bonuses to the Charging Parties because they satisfied certain bonus
program eligibility requirements notwithstanding their execution of the ADR Policy and filing
individual claims in court after such execution and (5) even if the ADR Policy did not contain the
provisions alleged to be unlawful in the consolidated complaint, Respondent would have taken
the same actions regardless of such provisions.
I. Facts
A. Respondent’s ADR Policy
Since December 2011, Respondent has maintained the following policy applicable to its
sales representatives:
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Alternative Dispute Resolution Policy and Agreement for Disputes between a
Sales Rep and Acuity Specialty Products, Inc., doing business as Zep Sales and
Service
December 1, 2011
Acuity Specialty Products, Inc. (the "Company") is committed to resolving all disputes in
a fair, effective, and cost-efficient manner. In an effort to achieve this goal, the Company
has designed and is implementing the alternative dispute resolution ("ADR") policy set
forth below. The policy was adopted to prevent the occurrence of costly and damaging
lawsuits between the Company and its Sales Representatives. For the policy to be
effective, the Company must rigorously enforce it.
This policy and agreement does not have any effect on the Company's Ethics Hotline. A
Sales Representative who believes that Company personnel have committed violations
of the Company's Code of Conduct should continue to report the violations by means of
the Company's reporting system. The Company reserves the right to exercise discretion
in disciplining employees.
If you do not wish to accept this arbitration policy and agreement, you will not be eligible
to participate in the sales bonus program, but your employment will not be affected in
any other way.
I. COVERED CLAIMS
A. This policy covers the following types of claims which already exist or may arise
in the future ("Covered Claims"):
Commercial claims regarding the amount of money that one party owes the other
resulting from a transaction that has been completed, such as the following examples:
Disputes regarding a Sales Representative's entitlement to a commission on a specific
sale.
Disputes regarding a Sales Representative's obligation to share a commission with
another Sales Representative.
Disputes regarding the Company's deduction of amounts from a Sales Representative's
commission.
Disputes among Sales Representatives regarding customers.
Disputes regarding the definition of a Sales Representative's territory or right to service a
particular customer.
Disputes regarding the compensation paid, owed or promised to a Sales Representative.
Disputes regarding the Company's Sales Bonus Program.
Claims of discrimination or harassment on the basis of race, sex, religion, national origin,
age, disability or other unlawful basis.
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Claims of retaliation for complaining about discrimination or harassment.
Claims of violations of any common law or constitutional provision or federal, state,
county, municipal or other governmental statute, ordinance, regulation or public policy
relating to workplace health and safety, voting, state service letters, minimum wage and
overtime, pay days, holiday pay, vacation pay, severance/separation pay, whistleblowing
and payment at termination.
Claims of violations of any other common law or constitutional provision or federal, state,
county, municipal or other governmental statute, ordinance, regulation or public policy.
The following list reflects examples of some, but not all such laws. This list is not
intended to be all inclusive but simply representative: Consolidated Omnibus Budget
Reconciliation Act (COBRA), Davis Bacon Act, Drug Free Workplace Act of 1988,
Electronic Communications Privacy Act of 1986, Employee Polygraph Protection Act of
1988, Fair Credit Reporting Act, Fair Labor Standards Act, Family and Medical Leave
Act of 1993, Federal Omnibus Crime Control and Safe Streets Act of 1968, The Hate
Crimes Prevention Act of 1999, The Occupational Safety and Health Act, Omnibus
Transportation Employee Testing Act of 1991, Privacy Act of 1993, Portal to Portal Act,
The Taft-Hartley Act, Veterans Reemployment Rights Act, and Worker Adjustment and
Retraining Notification Act (WARN).
Claims for breach of fiduciary duty.
Claims of retaliation for filing a protected claim for benefits (such as workers'
compensation) or exercising your protected rights under any statute.
Claims of wrongful termination or constructive discharge.
Claims related to exceptions to the employment-at-will doctrine under applicable law.
Breach of any common law duty of loyalty, or its equivalent.
Claims to remedy a violation of contractual non-compete or non-solicitation agreements,
or the use or disclosure of trade secrets or confidential information. However, except as
provided in the following sentence, this policy and agreement does not prevent the
Company from seeking immediate and temporary injunctive relief in court in connection
with a violation of a contractual non-compete or non-solicitation agreement or the use or
disclosure of trade secrets or confidential information. The Company will not have the
right to seek injunctive relief with respect to a claim involving a Sales Representative
who is a resident of the State of California and who is subject to California law.
Any common law claim, including but not limited to defamation, tortious interference,
intentional infliction of emotional distress or whistleblowing.
B. SPECIAL NOTICE REGARDING BRITTO LAWSUIT
Britto, et al v. Zep, Inc., Case No. VG-10553718, Alameda Superior Court
This putative class action was filed by two sales representatives who allege violations of
California Labor Code §§ 221and 2802 and California Business and Professions Code §
17200. The plaintiffs allege that Zep failed to reimburse California sales representatives
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for out-of-pocket business expenses and also took unlawful commission deductions.
Zep's position is that it properly reimbursed its California sales representatives for all out-
of-pocket business expenses and did not take any unlawful commission deductions.
While this lawsuit was filed as a class action, no class has yet been certified.
YOU MAY BE A PUTATIVE CLASS MEMBER IN THIS CLASS ACTION. IF YOU SIGN
THIS ARBITRATION AGREEMENT AND IF THE LAWSUIT IS NOT CERTIFIED AS A
CLASS ACTION, YOU WILL BE PRECLUDED FROM FILING A LAWSUIT
INDIVIDUALLY AGAINST THE COMPANY WITH RESPECT TO THE MATTERS
ALLEGED IN THE LAWSUIT. YOU WOULD STILL BE ABLE TO PURSUE YOUR
POTENTIAL CLAIMS WITH RESPECT TO THE MATTERS ALLEGED IN THE BRITTO
ACTION BUT ONLY UNDER THE TERMS OF THIS ARBITRATION AGREEMENT.
IF YOU SIGN THIS ARBITRATION AGREEMENT AND IF THE LAWSUIT IS
CERTIFIED AS A CLASS ACTION, THIS ARBITRATION AGREEMENT WILL HAVE
NO EFFECT ON YOUR CONTINUED OR FUTURE PARTICIPATION IN THE CLASS
ACTION. PLEASE CONSULT AN ATTORNEY IF YOU HAVE ANY QUESTIONS
ABOUT THIS ARBITRATION AGREEMENT OR ITS EFFECT.
THE ROLE OF GOVERNMENT AGENCIES CONCERNING CERTAIN COVERED
CLAIMS
Some Covered Claims are claims that may be filed with a governmental agency, such as
the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency.
Such claims include those for discrimination or harassment. For these Covered Claims,
you may either file a complaint with these agencies or proceed to use the Company's
dispute resolution process set forth below. If you choose to proceed directly to the
Company's dispute resolution process, you will be asked to sign a voluntary waiver of
the right to file charges with an agency. If you file a charge with the EEOC or equivalent
state agency, you must file such a claim within the time period permitted by law after the
date the alleged event occurred. The agency that receives the claim then has the right
under applicable law to investigate the claim. Once this investigation has been
completed, the agency will make a determination. The agency may determine that there
is not cause to believe that a law was violated and will issue to you a document
generally known as a "Notice of Right-to-Sue" letter. If the agency believes that there is
cause to believe that a violation of law occurred, then the agency will proceed to see if
the charge may be settled. If the charge is not settled, the agency may either sue the
Company on your behalf or it will issue a "Notice of Right-to-Sue" letter. Under either
circumstance, if you choose to bring a lawsuit, you must resolve the dispute through
binding arbitration. If you are employed in California and file a wage claim with the
California Division of Labor Standards Enforcement (DLSE), you may proceed through
their process and any administrative hearing. Any appeal of a decision made by the
DLSE, however, must be resolved through binding arbitration. You must initiate the
arbitration process as described below within the applicable statute of limitations for the
claim at issue.
WHAT IS NOT A COVERED CLAIM?
Disputes regarding the interpretation of the Sales Representative Exclusive Account
Agreement or any similar document between the Company and you that describes the
terms of your employment and the basis of your compensation, other than those
claims specifically listed under "Covered Claims."
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Claims for workers' compensation benefits, except for claims of retaliation.
Claims for benefits under a written employee pension or welfare benefit plan, including
claims covered under ERISA.
Claims for unemployment compensation benefits.
Criminal charges.
Matters within the jurisdiction of the National Labor Relations Board.
II. INTERNAL DISPUTE RESOLUTION PROCEDURES
If a Sales Representative has a dispute concerning a Covered Claim with the Company,
the Sales Representative and the Company must follow the procedures described in this
Policy to resolve the dispute.
If a Sales Representative believes that he or she has a Covered Claim, the Sales
Representative should notify his or her Regional Sales Manager and Director of Sales
(Regional Sales Management). If a Sales Representative feels uncomfortable reporting
a Covered Claim to his or her supervisor, he or she should immediately report the matter
to the Vice President, General Counsel of the Company. The Company's Vice President,
General Counsel may use his or her discretion to refer the matter to the appropriate level
for handling.
If the Sales Representative and his or her Regional Sales Management cannot resolve
a dispute concerning a Covered Claim, and the dispute was not directly reported to the
Vice President, General Counsel of the Company, the Sales Representative will refer
the dispute to the Executive Vice President of the Eastern Region or the Western
Region, as the case may be for Zep Sales and Service, North America.
The Sales Representative will refer the dispute to the Executive Vice President by
sending him or her an e-mail, requesting that the dispute be resolved by the Executive
Vice President.
The Sales Representative will copy the Vice President, General Counsel of the
Company on the e-mail so that he or she can make sure that this procedure is followed.
The Sales Representative will send to the Executive Vice President any information,
such as documents, copies of e-mails or summaries of conversations that he or she
believes is relevant to the dispute.
The Executive Vice President will arrange a face-to-face meeting with the Sales
Representative at a time and place that is mutually convenient for both parties.
The Executive Vice President will attempt to conduct the face-to-face meeting within two
weeks of receipt of materials from the Sales Representative. However, for the purpose
of minimizing expense, the meeting may be delayed until the Executive Vice President's
next visit to the Sales Representative's vicinity, unless the delay would be
unreasonable. In any event, the Executive Vice President will conduct the face-to-face
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meeting with the Sales Representative within six weeks of receipt of material from the
Sales Representative.
The Executive Vice President may discuss the dispute with anyone who may, in his or
her opinion, have relevant information, including the Sales Representative's Regional
Sales Management. However, the Regional Sales Management will not participate in the
face-to-face meeting.
The Sales Representative may ask other Company personnel who have knowledge
relevant to the dispute to participate in the meeting.
The Executive Vice President will document his or her findings regarding the dispute in a
letter to the Sales Representative. The letter will state the Executive Vice President's
conclusions regarding the relevant facts, will include a discussion of the relevant
Company policies or practices and will explain the decision reached. He or she will
assemble a file of the material considered in case it becomes necessary for the dispute
to receive further consideration.
If the Sales Representative and the Executive Vice President are unable to resolve the
dispute, the dispute will be referred to a panel consisting of the Group President, Zep
Sales & Service - North America, the Chief Administrative Officer of the Company and
the Vice President, Human Resources of the Company.
The panel will review the file assembled by the Executive Vice President. It may ask the
Sales Representative or other Company personnel to supply additional information. It
may discuss the dispute with other Company personnel, including the Regional Sales
Management and the Executive Vice President.
The panel will conduct a face-to-face meeting with the Sales Representative at a
mutually convenient time, generally within two weeks of the referral of the matter to
them.
Neither the Executive Vice President nor the Regional Sales Management will
participate in the face-to-face meeting.
The panel will document its findings regarding the dispute in a letter to the Sales
Representative. Such letter shall be sent by a nationally recognized overnight courier
service, with delivery requiring the signature of an adult resident of the
household, to the Sales Representative's most current home address on file with
Human Resources. It is the responsibility of each Sales Representative to ensure
that Human Resources has his or her current home address. The letter will state the
panel's conclusions regarding the relevant facts, will include a discussion of the
relevant Company policies or practices and will explain the decision reached. The
panel will assemble a file of the material considered in case it becomes necessary for
the dispute to receive further consideration.
Ill. ARBITRATION AGREEMENT
If the Sales Representative and the Company are unable to resolve a dispute
concerning a Covered Claim through the procedure described above, the dispute
will be determined by binding arbitration in Atlanta, Georgia, before a single neutral
arbitrator. Any arbitration under this Agreement will take place on an individual basis;
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class arbitrations and class actions are not permitted and are waived under this
Agreement.
NO COVERED CLAIM MAY BE INITIATED OR MAINTAINED ON A CLASS,
COLLECTIVE OR REPRESENTATIVE ACTION BASIS EITHER IN COURT OR
UNDER THESE RULES, INCLUDING IN ARBITRATION. ANY COVERED CLAIM
PURPORTING TO BE BROUGHT AS A CLASS ACTION, COLLECTIVE ACTION OR
REPRESENTATIVE ACTION WILL BE DECIDED UNDER THESE RULES AS AN
INDIVIDUAL CLAIM. THE EXCLUSIVE PROCEDURE FOR THE RESOLUTION OF
ALL CLAIMS THAT MAY OTHERWISE BE BROUGHT ON A CLASS, COLLECTIVE OR
REPRESENTATIVE ACTION BASIS, WHETHER PARTICIPATION IS ON AN OPT-IN
OR OPT-OUT BASIS, IS THROUGH THESE RULES, INCLUDING FINAL AND
BINDING ARBITRATION, ON AN INDIVIDUAL BASIS. A PERSON COVERED BY
THESE RULES MAY NOT PARTICIPATE AS A CLASS OR COLLECTIVE ACTION
REPRESENTATIVE OF A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION
MEMBER OR BE ENTITLED TO A RECOVERY FROM A CLASS,COLLECTIVE OR
REPRESENTATIVE ACTION.
ANY ISSUE CONCERNING THE VALIDITY OF THIS CLASS ACTION, COLLECTIVE
ACTION AND REPRESENTATIVE ACTION WAIVER MUST BE DECIDED BY A
COURT, AND AN ARBITRATOR DOES NOT HAVE AUTHORITY TO CONSIDER THE
ISSUE OF THE VALIDITY OF THIS WAIVER. IF FOR ANY REASON THIS CLASS,
COLLECTIVE AND REPRESENTATIVE ACTION WAIVER IS FOUND TO BE
UNENFORCEABLE, THE CLASS, COLLECTIVE OR REPRESENTATIVE CLAIM MAY
ONLY BE HEARD IN COURT AND MAY NOT BE ARBITRATED UNDER THESE
RULES. AN ARBITRATOR APPOINTED UNDER THESE RULES SHALL NOT
CONDUCT A CLASS, OR COLLECTIVE OR REPRESENTATIVE ACTION
ARBITRATION AND SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE
OF OTHERS IN AN ARBITRATION CONDUCTED UNDER THESE RULES.
This Agreement evidences a transaction in interstate commerce, and thus the
Federal Arbitration Act governs the interpretation and enforcement of this Agreement or
if that Act is held to be inapplicable for any reason, the arbitration law in the State of
Georgia will apply.
A. Notice of Intent to Arbitrate
A Sales Representative who intends to seek arbitration must first send to the Company,
by certified mail, a written Notice of Intent to Arbitrate ("Notice"). The Notice to the
Company should be addressed to: Vice President, General Counsel, Acuity
Specialty Products, Inc., 1310 Seaboard Industrial Dr., Atlanta, GA 30318 ("Notice
Address"). The Notice must (a) describe the nature and basis of the claim or dispute;
and (b) set forth the specific relief sought. If the Company intends to seek arbitration, it
must first send to the Sales Representative, by certified mail, a written Notice of Intent to
Arbitrate ("Notice"). The Notice to the Sales Representative should be addressed to the
current address on file for the Sales Representative. ("Notice Address for Sales
Representative"). The Notice must (a) describe the nature and basis of the claim or
dispute; and (b) set forth the specific relief sought. If the Company and the Sales
Representative do not reach an agreement to resolve the claim within 30 days after the
Notice is received, the Sales Representative or the Company may commence an
arbitration proceeding. During the arbitration, the amount of any settlement offer made
by the Company or the Sales Representative, if any, shall not be disclosed to the
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arbitrator.
B. Deadline for Filing Notice of Intent to Arbitrate
Any claim brought under this Agreement must be submitted within the applicable statute
of limitations for the claim at issue
C. Arbitration Venue and Rules
The arbitration will be administered by JAMS pursuant to JAMS' Streamlined Arbitration
Rules and Procedures. JAMS is a private, for-profit provider of alternative dispute
resolution services. The Company does not have any agreement with JAMS related to
any subject.
A copy of the JAMS Streamlined Arbitration Rules and Procedures have been attached
to this Agreement and are available online at http://www.jamsadr.com/rules¬
streamlined-arbitration/. It is the responsibility of each Sales Representative to review
and abide by JAMS' arbitration rules. Sales Representatives agree that they have been
advised that they may have counsel of their choosing review and explain the arbitration
rules to them at their expense. Sales Representatives may retain a lawyer to assist him
or her in the arbitration at their own expense.
JAMS will charge the Company a fee for arbitrating the dispute between the Company
and the Sales Representative. The Company will pay the fee unless the arbitrator
decides that the Sales Representative was not entitled to any recovery or any aspect of
the non-monetary relief sought, in which case, the Sales Representative will pay the fee.
In the event that the Sales Representative is required to pay the fee, the amount the
Sales Representative will be required to pay will be capped at or below the equivalent
state or federal court filing fee, whichever is lower. If state law does not allow for
payment of a fee to access arbitration, the requirement for the Sales Representative to
pay the fee will be waived or, if the Sales Representative mistakenly sends a fee
payment when it is not required, it will be refunded.
Any offers, promises or statements, whether oral or written, made in the course of the
negotiation by the Company and the Sales Representative prior to the referral of the
dispute for resolution by JAMS are confidential, privileged and inadmissible for any
purpose, including impeachment, in the arbitration.
Other than the issues expressly excluded by this Agreement, all issues are for the
arbitrator to decide, including the scope of this arbitration provision, but the arbitrator is
bound by the terms of this Agreement.
Remedies, including statutory awards of attorneys' fees and costs but excluding class
remedies, are available through the arbitration process, if permitted by the applicable
state or federal law.
Initiation of, participation in, or removal of a court proceeding does not constitute waiver
of the right or obligation to arbitrate under these Rules.
D. Severability
If any one or more of the terms or provisions of this Agreement shall be determined by a
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court of competent jurisdiction to be unconscionable, invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions shall remain in full force
and effect, and the invalid, void or unenforceable provisions shall be deemed severable.
Moreover, any term or provision found to be unconscionable, invalid, void or
unenforceable shall be reformed by limiting and reducing it to the minimum extent
necessary, so as to be enforceable to the extent compatible with the applicable law.
E. Entire Agreement
This Agreement sets forth the entire agreement between the parties hereto and fully
supersedes any and all prior agreements or understandings, written or oral, between
the parties hereto pertaining to the subject matter hereof.
F. Amendment
This Agreement may be amended only in writing signed by you and by a duly authorized
representative of the Company (other than you).
YOU SHOULD READ THE PROVISIONS OF THIS ARBITRATION POLICY AND
AGREEMENT CAREFULLY, AS IT PROVIDES THAT ANY EXISTING AND FUTURE
DISPUTES RELATED TO YOUR EMPLOYMENT RELATIONSHIP, INCLUDING YOUR
INDIVIDUAL CLAIM, IF ANY, WITH RESPECT TO THE MATTERS ALLEGED IN THE
BRITTO v. ZEP LITIGATION (IF SUCH LAWSUIT IS NOT CERTIFIED AS A CLASS
ACTION), MUST BE RESOLVED ONLY THROUGH BINDING ARBITRATION. IF YOU
DO NOT WISH TO ACCEPT THIS ARBITRATION AGREEMENT. YOU WILL NOT BE
ELIGIBLE TO PARTICIPATE IN THE SALES BONUS PROGRAM. BUT YOUR
EMPLOYMENT WILL NOT BE AFFECTED IN ANY OTHER WAY. THIS AGREEMENT
TO ARBITRATE DISPUTES WILL SURVIVE THE SALES BONUS PROGRAM AND IS
IRREVOCABLE.
By signing and dating below, I am choosing to arbitrate both existing and future claims in
accordance with this arbitration policy and agreement. I understand that my decision to
sign or not sign this form will not be used as a basis for the Company to take any
adverse employment action against me.
B. Stipulations of the Parties and Supporting Evidence
The stipulations of the parties and the documents in support thereof reflect the following:
At all material times, Tom Moffett has held the position of President and has been a
supervisor of Respondent within the meaning of Section 2(11) of the Act and an agent of
Respondent within the meaning of Section 2(13) of the Act.
Woodford has been employed by Respondent as an outside sales representative in
Northern California since 1990 and Heffernan was employed by Respondent as an outside
sales representative in Northern California from 1983 until June 30, 2013.
Respondent pays its sales representatives, including Woodford and Heffernan (while he
was employed), compensation based upon a commission of their sales. For purposes of this
litigation only, the Employer admits that all of its sales representatives working in the United
States, including Woodford and Heffernan (during his period of employment with Respondent),
are employees within the meaning of Section 2(3) of the Act.
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During the time period for 2007 to the present, Respondent has offered its sales
representatives various bonus programs. The bonus programs have been offered at the
discretion of Respondent and at no time have been guaranteed.
During the time period for 2007 to the present, and for each year during that period,
Respondent has offered annual sales bonus programs under which sales representatives
nationwide have been eligible to earn an annual sales bonus. Under these annual sales bonus
programs, sales representatives have been required to satisfy certain performance standards
which have changed over time. The basic structure of the program has generally required sales
representative to meet baseline sales goals for each year and has provided incentives for
increases in sales and commission rates, attaining certain sales targets and managing the past
due status of accounts receivable.1
On December 30, 2010, two of Respondent’s employees filed a putative class action in
the Superior Court of the State of California, Alameda County, Keith Britto et al. v. Zep, Inc, et
al., Case No. VG 10553718 (the Britto Action), alleging violations of California’s Labor Code
with respect to the sales representatives’ expense reimbursements and pay structure. The Britto
Action involved a putative class of approximately 175 current and former California sales
representatives of Respondent, including Woodford and Heffernan.
In November 2011, Respondent presented its sales representatives in the United States
with an opportunity to participate in an alternative dispute resolution program that was
implemented on a national basis. Sales representatives had the opportunity to participate in the
alternative dispute resolution program by executing the “Alternative Dispute Resolution Policy
and Agreement for Disputes between a Sales Rep and Acuity Specialty Products, Inc., doing
business as Zep Sales and Service” (the ADR Policy, as set forth above).
Respondent communicated the opportunity to participate in the ADR Policy program to
its sales representatives in November of 2011. The ADR Policy was explained to its sales
representatives, including Woodford and Heffernan in writing via a letter dated November 18,
2011.2 The letter also enclosed the ADR Policy.3 Respondent’s sales representatives were not
required to sign the ADR policy as a condition of continued employment with Respondent.
The ADR Policy was further explained in writing to its sales representatives including
Woodford and Heffernan, via a letter dated December 5, 2011.4
Beginning in Fiscal Year (FY) 2012, Respondent included participation in the ADR Policy
program as an eligibility requirement for the sales bonus program. The requirement of
participation is in addition to the performance standards. Prior to FY 2012, Respondent did not
require sales representatives to sign an ADR Policy or any other agreement to arbitrate disputes
in order to be eligible to participate in its annual sales bonus program.
Respondent’s fiscal year runs from September 1 through August 31 of the following

1 Copies of the Fiscal Year (FY) 2008, 2009, 2010 and 2011 bonus plans are reflected in
Joint Exhibits N through Q respectively.
2 A copy of the letter sent to sales representatives, including Woodford and Heffernan is in
the record as Joint Exhibit R.
3 Joint Exhibit S
4 Joint Exhibit T.
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year. Sales representatives who qualify for an annual sales bonus are generally paid the bonus
in October following the end of the fiscal year in which it was earned.
Bonus payments under the sales bonus programs from FY 2012 to FY 2013 ranged from
approximately $1,300 to approximately $97,500. The lowest bonus reflected approximately 4%
of the annual compensation of the sales representative receiving it, and the largest bonus
reflected approximately 15% of the annual compensation of the sales representative receiving it.
For FY 2012, Respondent offered the ADR Policy to its 651 sales representatives
nationwide. Four-hundred fifty-four (454) representatives accepted and executed the ADR
Policy. One-hundred ninety-seven (197) representatives declined to participate in the ADR
Policy program. Approximately 24 of the 197 sales representatives who did not sign the ADR
Policy would have qualified for the annual sales bonus based upon the performance criteria
established for the FY 2012 annual sales bonus program, but were not eligible to participate in
the FY 2012 annual sales bonus program because they did not sign the ADR Policy. Sales
representatives who elected not to sign the ADR Policy were not eligible to participate in the
annual bonus program. The General Counsel is unaware of, and does not contend that, any
other adverse action was taken by Respondent as a result of a sales representative not signing
the ADR Policy. Aside from implementing the ADR Policy, the General Counsel is unaware of,
and does not contend that, any adverse action was taken by Respondent as a result of any
sales representative bringing any matter before the NLRB.
On or about February 3, 2012, Respondent sent a follow-up letter to sales
representatives regarding the ADR Policy.5
Woodford signed the ADR Policy on or about February 14, 2012 and Heffernan signed it
on February 16, 2012.6
The ADR Policy given to Respondent’s California sales representatives included a
provision permitting participation in the Britto Action. The Britto Action involved a putative class
of approximately 175 current and former California sales representatives of Respondent,
including Woodford and Heffernan, until the Superior Court denied class certification on May 7,
2012.
On June 4, 2012, following the denial of class certification in the Britto Action,
approximately 55 California sales representatives, including Woodford and Heffernan, filed a
motion to intervene in the Britto Action. While the Superior Court initially granted the motion to
intervene, on December 20, 2012, the California Court of Appeal reversed the decision to grant
intervention in the Britto Action.
On August 30, 2012, Respondent , by Moffett, sent letters to Woodford and Heffernan
regarding their eligibility for annual sales bonuses in FY 2012 advising each of them, in pertinent
part, as follows:7
On August 1, 2012, you filed a complaint as a named plaintiff in the Superior Court of the
State of California against the Company and its parent, Zep, Inc. The Company
considers your suit to be a material breach of your ADR Agreement. This letter is your

5 Joint Exhibit U.
6 Joint Exhibits Exhibits V and W.
7 Joint Exhibits X and Y, respectively.
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notice that, because of your material breach of the ADR Agreement, you are no longer
eligible to participate in the Company’s bonus plan for California sales reps. Therefore,
you will not receive a bonus for fiscal year 2012.
In the event you notify us by September 7 that you will withdraw the complaint you filed
in court and proceed to arbitration, the Company will reconsider its position as to your
bonus eligibility
At all material times, sales representatives were not automatically entitled to receive a
bonus upon the execution of the ADR Policy. Upon execution of the ADR Policy, sales
representatives became eligible to participate in the annual sales bonus program. To earn a
bonus under the program, eligible sales representatives must satisfy the performance standards
and requirements set forth in the bonus plan for that year.8
On or about November 21, 2012, Respondent sent a letter to sales representatives
giving them another opportunity to sign the ADR Policy in order to become eligible for the FY
2013 sales bonus plan.9
For FY 2013, 428 sales representatives had ADR Policies in place and were eligible to
participate in the sales bonus plan. For FY 2013, 169 sales representatives did not sign the
ADR Policy. Approximately six (6) of the 169 sales representatives who did not sign the ADR
Policy would have qualified for the annual sales bonus based upon the performance criteria
established for the FY 2013 annual sales bonus program, but were not eligible to participate in
the FY 2013 annual sales bonus program because they did not sign the ADR Policy. Sales
representatives who elected not to sign the ADR Policy were not eligible to participate in the
annual bonus program. The General Counsel is unaware of, and does not contend that, any
other adverse action was taken by Respondent as a result of a sales representative not signing
the ADR Policy.
On December 24, 2012, following the denial of class certification and motion to intervene
in the Britto Action, 54 former putative class members, including Heffernan and Woodford, filed
another lawsuit alleging the same or similar claims as in Britto. This pending lawsuit is styled
Aguilar et al. v. Zep Inc., et al., U.S. District Court for the Northern District of California, Case
No. 3:13-CV-0563-RS (the Aguilar Action).10
After the Aguilar Action was filed, Respondent moved to compel arbitration as to
Heffernan, Woodford and six (6) other plaintiffs who signed the ADR Policy. The United States
District court for the Northern District of California granted Respondent’s motion to compel
arbitration.11

8 Copies of the FY 2012, 2013 and 2014 bonus plans are set forth in Joint Exhibits Z
through BB, respectively.
9 Joint Exhibit CC
10 The complaint and answer in the Aguilar Action are Joint Exhibits DD and EE
respectively.
11 Joint Exhibits FF through MM reflect those documents filed in the Aguilar Action relating
to Respondent’s motion to compel arbitration. These are, respectively: Defendants’ Notice of
Motion and Motion to Compel Arbitration filed on 02/11/13; Declaration of Y. Anna Suh in
Support of Defendants’ Motion to Compel Arbitration filed on 02/11/13; Declaration of Thomas
Moffett in Support of Defendants’ Motioin to Compel Arbitration filed on 02/11/13; Plaintiffs’
Opposition to Motion to Compel Arbitration; Memorandum of Points and Authorities in Support
Continued
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After proceeding to arbitration pursuant to the ADR policy and Court Order compelling
arbitration, Respondent paid Heffernan his bonus payment under the sales bonus program for
2012. He received a gross bonus of $27,894.51 for FY 2012.12 A final award has been issued in
Heffernan’s arbitration.
After proceeding to arbitration pursuant to the ADR Policy and the Court’s Order
compelling arbitration, Respondent paid Woodford her bonus payment under the sales bonus
program for FY 2012. She received a gross bonus of $17,319.19 for FY 2012.13 A final award
has been issued in Woodford’s arbitration.
The ADR Policy was not promulgated in response to union activity. Respondent’s sales
representatives are not represented by a labor organization.
II. Analysis and Conclusions
A. Positions of the Parties
The General Counsel contends that Respondent has violated Section 8(a)(1) of the Act
by soliciting employees to sign, and by maintaining and/or by enforcing the ADR Policy as the
Policy interferes with employees’ Section 7 rights to engage in collective legal activity, It is also
contended that the Policy violates the Act insofar as it interferes with employees’ access to the
Board and its processes. The complaint further alleges that Respondent unlawfully conditioned
employees’ eligibility for and receipt of annual sales bonuses upon their execution of and
adherence to this policy. In support of the foregoing contentions, the General Counsel relies
primarily upon the Board’s decision in D.R. Horton, Inc., 357 NLRB No. 184 (2012).
The General Counsel urges that, notwithstanding the voluntary nature of the Policy,
once signed it becomes a condition of employment which precludes participation in Section 7
conduct and that employees may reasonably expect that they may be disciplined or face legal
action if they breach the Policy. It is further contended that the Policy interferes with the
statutory rights of all employees because even those employees who decline to sign, are
precluded from acting concertedly with those who do.
Respondent argues that the ADR policy is lawful and enforceable under applicable
Supreme Court precedent. It is further contended that D.R. Horton is invalid and even if it was
valid such authority it would not be applicable to the instant matter. Respondent further
maintains that the Policy does not violate the Act as it is voluntary and not a condition of
continued employment; that it unambiguously exempts matters arising under the Act from
coverage and does not restrict employees’ rights to file charges and seek redress before the
Board. Respondent further contends that conditioning employees’ eligibility to participate in the
annual sales bonus program upon execution of the Policy does not violate the Act.
B. The Board’s decision in D.R. Horton
_________________________
of same filed on 02/22/13; Evidence in Support of Plaintiffs’ Opposition to Motion to Compel
Arbitration, filed on 02/22/13; Supplemental Evidence in Support of Plaintiffs’ Opposition to
Motion to Compel Arbitration filed on 02/25/13; Order Denying Motion to Enforce Settlement,
Granting Motion to Compel Arbitration issued on 05/09/13
12 A copy of the bonus check paid to Heffernan is Joint Exhibit NN
13 A copy of the bonus check paid to Woodford is Joint Exhibit OO
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Respondent has raised a number of arguments concerning what it contends is the
invalidity of the Board’s Decision and Order in D.R. Horton, supra.
Respondent has argued that the Board's decision in D.R. Horton is invalid, because the
Board lacked a valid quorum at the time the decision issued. In particular, it challenged the
validity of Member Becker’s appointment to the Board. In National Labor Relations Board v.
Noel Canning, --- S.Ct. --- 2014, WL 2882090 U.C. Dist Col. 2014 (June 26, 2014), the Court
found that appointments made during a three day period beginning on January 4, 2012 were
unconstitutional. That decision does not affect the composition of the Board at the time D.R.
Horton was issued, on January 3, 2012.14 Additionally, as was noted by the Fifth Circuit upon
review of D.R. Horton, Horton did not challenge the constitutionality of Member Becker’s
appointment, but argued instead that Member Becker’s appointment expired before the decision
issued, a contention echoed by the Respondent here in its post hearing brief. The Fifth Circuit
asked the parties to submit briefing on the issue of the validity of Member Becker’s appointment
for jurisdictional reasons and concluded review was warranted. In addition, the court found that
the issue of whether the Board’s decision was entered prior to the expiration of Member
Becker’s appointment was “unclear from the record” noting an “absence of proof” on that issue.
Noel Canning v. NLRB, 737 F.3d 344, 350-51 (D.C. Cir. 2013). Moreover, I note that despite
continuing challenges to the composition of the Board at any particular time, it has repeatedly
held that it “is charged to fulfill its responsibilities under the Act.” See, e.g., Universal Lubricants,
LLC, 359 NLRB No. 157 at n. 1 (2013); Belgrove Post Acute Care Center, 369 NLRB No. 77,
slip op. at 1 (2013). I conclude therefore, that unless and until reversed by the Board or the
Supreme Court, D.R. Horton remains extant Board law which, as an administrative law judge, I
am bound to follow. In addition, for the reasons set forth below, I further adopt the reasoning
and conclusions reached by the Board in D.R. Horton, a result which is supported by decades of
well-established Board law and doctrine.15
Respondent further relies upon the refusal of the Fifth Circuit to enforce, in relevant part,
that portion of the Board's Decision and Order finding that an arbitration agreement which
eliminated the right to initiate and pursue class or collective claims violated Section 8(a)(1). D.R.

14 Although the D.C. Circuit held that then-Members Griffin and Block were not validly
appointed because they were appointed during an intrasession recess, the Supreme Court
decided the matter on different grounds. In particular, when the Supreme Court granted
certiorari it instructed the parties to brief and argue a question not initially presented in the writ
for certiorari: “Whether the President’s recess-appointment power may be exercised when the
Senate is convening every three days in pro forma sessions.” Order Granting Certiorari, NLRB
v. Noel Canning, ---U.S. ---, 133 S. ct. 2861 (2013); see also D.R. Horton v. NLRB, 737 F. 3d at
350, fn. 3.
15 To the extent Respondent may contest the authority of the General Counsel to issue
complaint in this matter, I note that the Board has found that the General Counsel has
independent authority to issue and prosecute the complaint in this matter. Bloomingdale’s Inc.,
359 NLRB No. 113, slip op. at 1 (2013): “[u]nder the NLRA, the General Counsel is an
independent officer appointed by the President and confirmed by the Senate, and staff engaged
in the investigation and prosecution of unfair labor practices are directly accountable to the
General Counsel.” (citing 29 U.S.C. Section 153(d); NLRB v. United food & Commercial
Workers Union, Local 23, 484 U.S. 112, 127-128 (1987); NLRB v. FLRA, 613 F. 3d 275, 278
(D.C. Cir. 2010)). Thus, “[t]he authority of the General counsel to investigate unfair labor
practices and prosecute complaints derives not from any ‘power delegated’ by the Board, but
rather directly from the language of the NLRA.” Id.
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Horton, Inc. v. NLRB, 737 F.3d at 362. Respondent notes that other circuits addressing the
issue have held that arbitration agreements requiring the waiver of class or collective actions do
not violate Section 8(a)(1). Richards v. Ernst & Young, LLP, 734 F.3d 871 (9th Cir. 2013);
Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir. 2013); Owen v. Bistol Care, Inc., 702
F.3d 1050 (8th Cir. 2013).
With regard to these cited decisions, is well-settled that the Board generally applies a
“non-acquiescence policy” with respect to contrary views of the federal Courts of Appeal. See
D.L. Baker, Inc., 351 NLRB 515, 529, fn. 42 (2007); Pathmark Stores, Inc., 342 NLRB 378, n. 1
(2004). Thus, an administrative law judge is required to “apply established Board precedent
which the Supreme Court has not reversed.” Pathmark Stores, Inc., 342 NLRB at 378, n. 1; see
also Gas Spring Co., 296 NLRB 84, 97-98 (1989), enf. 908 F.2d 966 (4th Cir. 1990).
Respondent further argues that the Supreme Court has repeatedly recognized a long
standing “liberal federal policy favoring arbitration agreements” as embodied in the Federal
Arbitration Act (“FAA”) CompuCredit Corp. v. Greenwood, --- U.S. ---, 132 S.Ct. 665, 668-669
(2012); see also American Express Co. v. Italian Colors Restaurant, --- U.S. ---, 133 S.Ct. 2304,
2309 (2013). As the Court has stated, “[t] he principal purpose of the FAA is to ensure that
private arbitration agreements are enforced according to their terms. This purpose is readily
apparent from the FAA’s text.” AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1748 (2011).
Respondent argues that this holds true for claims that allege a violation of a federal statute,
unless the FAA’s mandate has been overridden by a “contrary Congressional command.”
American Express Co., supra at 2309. Respondent has concluded therefore that the ADR Policy
lawfully precludes class or collective legal actions because no such “contrary Congressional
command” exists and there is decisional law in other employment-related contexts which
supports the enforceability of arbitration agreements. See Gilmer v. Interstate/Johnson Lane
Corp. 500 U.S. 20, 24 (1991) (holding that that a claim under the Age Discrimination in
Employment Act (ADEA) could be subjected to compulsory arbitration pursuant to an agreement
in a securities registration application). Respondent further argues that the right to bring or
participate in a class action is a procedural device which is subject to waiver. See Deposit Guar.
Nat’l Bank v. Roper, 445 U.S. 326, 332 (1980).
I note that, in D.R. Horton, the Board considered these arguments and related precedent
and reached a different conclusion to which I am bound.16 Moreover, I find, contrary to
Respondent, that the above cited precedent is not dispositive in the context of the instant
matter. In particular, the above-discussed cases generally involve commercial transactions of a
nature not at issue here.17 The one case relied upon to demonstrate an employment-related

16 Although the Act does not reference class or collective actions, the Board in D.R. Horton
distinguished it from other statutes the Court has considered by finding that Section 7 provides
substantive guarantees of the right to engage in collective action, including collective legal
action, for mutual aid and protection. As the Board stated, “the intent of the FAA was to leave
substantive rights undisturbed.” 357 NLRB, slip op. at 11.
17 AT&T Mobility involved the claim that a class action waiver in an arbitration clause of any
contract of adhesion in the State of California was unconscionable; CompuCredit Corp.,
involved actions brought by consumers against the marketer of credit cards and application of
the Federal Credit Repair Organization Act (CROA). The Court held that CROA provisions
requiring credit repair organizations disclose to consumers the right to sue over violations of
CROA and prohibiting waiver of that right nonetheless did not preclude enforcement of an
arbitration agreement the parties had also executed. American Express Co., decided after D.R.
Horton, involved merchants who contracted with American Express to accept American Express
Continued
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context, Gilmer, addresses neither the substantive rights guaranteed under Section 7 nor the
issue of a class action waiver. The claim asserted in there was an individual one, and the
arbitration agreement at issue contained no language specifically waiving class or collective
claims.18
In short, I conclude that the authority relied upon by Respondent fails to address those
fundamental substantive federal labor rights of the nature, established by congressional
legislation, as are involved here.
In this regard, I note, as did the Board in D.R. Horton, that Section 2 of the FAA provides
that arbitration agreements may be invalidated in whole or in part upon any “grounds that exist
at law and in equity for the revocation of any contract.” 9 U.S.C. Section 2.
Here, the General Counsel does not contend, and it is not subject to question that
employees may enter into individual agreements with their employers; the question is whether
they may do so at the expense of substantive rights conferred by the Act. As the Supreme Court
has found:
Individual contracts no matter what their circumstances that justify their execution or
what the terms, may not be availed to defeat or delay procedures prescribed by the
National Labor Relations Act . . . Wherever private contracts conflict with [the Board’s]
functions, they must obviously yield or the Act would be reduced to a futility.
J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944).
Thus, as the Supreme Court has held, Respondent may enter into various agreements
with individual employees; however, it is not privileged to reach those agreements with
individuals which conflict with rights protected by the Act. See also National Licorice Co., v.
NLRB, 309 U.S. 350,360 (1940) (upholding Board’s finding that individual employment contracts
that included a clause discouraging, if not forbidding, a discharged employee from presenting
his grievance to the employer “through a labor organization or his chosen representatives, or
any way except personally” was unlawful and unenforceable.)
Moreover, even if one were to find a conflict between the FAA and the NLRA, the
Supreme Court has further held that when two federal statutes conflict, the later enacted statute,
here the NLRA,19 must be understood to have impliedly repealed inconsistent provisions in the
_________________________
cards at their businesses, and were unhappy with the rates charged for use of their cards at
their respective businesses. Their agreements with American Express provided for arbitration of
disputes arising between the merchant and American Express and further precluded any claims
from being arbitrated as a class action. The statutes evaluated there were the Sherman and
Clayton Acts, which fail to reference class or collective actions. The Court concluded that the
“antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.”
133 S.Ct at 2309.
18 I further note that in Gilmer, supra, the Court found that there would be a basis for
invalidating an arbitration agreement where there is an “inherent conflict between that arbitration
and the underlying purposes of another Federal statute, 500 U.S. at 26.
19 The FAA was enacted in 1925, the Norris-LaGuardia Act was enacted in 1932 and the
NLRA was enacted in 1935. While the FAA was pro forma reenacted in 1947 it was done
without substantive amendment. See Bulova Watch Co. v. United States, 365 U.S. 753, 758
(1961); see also H.R Rep. No 80-251 (1947), reprinted in 1947 U.S.C.C.A.N. 1511 (expressly
Continued
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earlier enacted statute. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976);
Chicago & N.W. Ry Co., v. United Trans. Union, 402 U.S. 570, 582 fn. 18 (1971); Posadas v.
Nat’l City Bank, 296 U.S. 497, 503 (1936).
C. Respondent’s ADR Policy as Applied to its Employees Violates Section 8(a)(1) of
the Act.
Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer to interfere
with, restrain or coerce employees in the exercise of rights guaranteed in Section 7. These
rights include the right “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 bargaining or other mutual aid or protection.”
In D.R. Horton, supra, slip op. at 1, the Board held that an employer violates Section
8(a)(1) of the Act, when it “requires employees covered by the Act, as a condition of
employment, to sign an agreement that precludes them from filing joint, class or collective
claims addressing their wages, hours or other working conditions against the employer in any
forum, arbitral or judicial.” 20 The Board, relying upon cases dating back through its tenure as a
decisional body, found that concerted legal action addressing wages, hours and working
conditions has consistently fallen within the protections of Section 7 of the Act.
For example, in Trinity Trucking & Materials Corp., 221 NLRB 364, 365 (1975), enfd.
mem. 567 F.2d 391 (7th Cir. 1977), cert. denied 438 U.S. 914 (1978), the Board held that the
filing of a lawsuit by a group of employees alleging that their employer had failed to pay them
contract scale was protected activity. (“It is settled that the filing of a civil action by employees is
protected activity unless done with malice or is in bad faith . . .[B]y joining together to file the
lawsuit [the employees] engaged in concerted activity”). In Le Madri Restaurant, 331 NLRB 269,
275-76 (2000), the Board found that an employer unlawfully discharged two employees for
engaging in protected concerted activity, which included filing a lawsuit in federal court on behalf
of 17 other employees. The lawsuit alleged violations of federal and state labor laws. In Novotel
New York, 321 NLRB 624, 633-636 (1996), the Board found that an “opt-in” class action lawsuit
alleging employer violations of the Fair Labor Standards Act (FSLA) was protected concerted
activity. In United Parcel Service, Inc., 252 NLRB 1015, 1018, 1022 and fn. 26 (1989), enfd. 677
F.2d 421 (6th Cir. 1982), the Board found that an employer unlawfully discharged an employee
for bringing a class action lawsuit regarding employee rest breaks. In Saigon Gourmet
Restaurant, 353 NLRB 1063, 1064 (2009), the Board concluded that the employer violated the
Act when it promised to raise delivery workers’ wages if they abandoned their plan to file a wage
and hour lawsuit and by discharging employees because they engaged in protected concerted
activities. See also D.R. Horton, slip op. at 2, fn. 4 (and additional authority cited therein).
_________________________
stating that the 1947 bill made “no attempt” to amend the existing FAA); H.R. rep. No. 80-225
(1947), reprinted in 1947 U.S.C.C.A.N 1515 (same).
20 In D. R. Horton, the Board also found that the arbitration policy at issue violated the Act
by requiring all employees to submit all employment-related disputes to arbitration. The Board
found that this violated Section 8(a)(1) of the act because it would employees to reasonably
believe that they were prohibited from filing unfair labor practices with the Board. Here, the
Respondent’s ADR Policy excludes from its coverage matters within the jurisdiction of the
Board, but the General Counsel has contended that an employee would reasonably believe that
such charges were prohibited under the Policy. This contention is discussed below.
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Respondent contends, in the first instance, that the decision as to whether to agree to
the ADR Policy is entirely voluntary, rendering it lawful under the Act. As is evident, the Policy is
lengthy and contains numerous references to matters more properly within the purview of a
legal professional. Thus, there are questions as to whether employees are fully apprised, in a
manner they may appreciate, of the consequences of any such decision and whether the
burden of having to decide as to whether one should irrevocably relinquish rights afforded to
employees under the Act is an unreasonable one. As discussed in further detail below (see
Section II.D), the Board has long recognized that employees may fail to recognize the full scope
of rights they are entitled to under the Act, and therefore, what they may be relinquishing.
Leaving aside, for the moment, the issue of whether conditioning employees’ eligibility
for the annual sales bonus program is an unlawful inducement to enter into a waiver of statutory
rights, I find that, as a more general matter, the purported voluntariness of the ADR Policy does
not obviate its unlawful nature.
The question is not whether an employee may choose to forego participation in the
program. The issue, rather, is whether an employer and an individual employee may enter into
an agreement to waive, irrevocably, future rights protected by the Act. Such rights include a
substantive right to engage in collective redress of grievances, which the Board and the
Supreme Court have long recognized as being at the core of Section 7 and central to the Act’s
purposes. J.I Case, supra; National Licorice Co., supra.
Here, there seems to be little dispute that participation in the Policy has been deemed to
be voluntary. However, once an employee decides to enter into this agreement, certain core
features of that employee’s Section 7 rights are irrevocably waived prospectively and
Respondent may seek to enforce such a waiver, as happened in the instant case.
While the Board, in D.R. Horton, did not have to consider the issue of voluntary
individual agreements, in other contexts, the Board has had the occasion to consider such
waivers and, has found that an individual’s waiver of core Section 7 rights, central to the
purposes of the Act to be unlawful. For example, in Ishikawa Gasket America, Inc., 337 NLRB
175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), the Board found unlawful a separation
agreement between an employee and the employer that restricted for a one-year period the
employee from attempting “to hire, influence, or otherwise direct any employee of the Company
to leave employment of the Company or to engage in any dispute or work disruption with the
Company, or to engage in any conduct which is contrary to the Company’s interests in
remaining union-free.” As the Board found:
In our view, this separation agreement is overly broad in that it forces [the employee] to
prospectively waive her lawful Section 7 rights. “Future rights of employees as well as
the rights of the public may not be traded away in such a manner.” Mandel Security
Bureau, Inc., 202 NLRB 117, 119 (1973)(release used by employer was overly broad
and unlawfully prohibited filing of unfair labor charges concerning future incidents. See
generally Metro Networks, Inc. 336 NLRB 63 (2001).
From its earliest days, the Board has adhered to this fundamental construction of the
Act. In J.H. Stone & Sons, 33 NLRB 1014 (1941), enfd. in relevant part, 125 F.2d 752 (7th Cir.
1942), the Board found individual employment contracts that required employees to attempt to
resolve employment disputes individually with the employer and then provided for arbitration to
be unlawful: “The effect of this restriction, is that, at the earliest and most crucial stages of
adjustment of any dispute, the employee is denied the right to act through a representative and
is compelled to pit his individual bargaining strength against the superior bargaining power of
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the employer.” In affirming the Board’s holding, the Seventh Circuit found that the contract
clause in question was a per se violation of the act even if “entered into without coercion,”
because “it obligated [the employee] to bargain individually and was a “restraint upon collective
action.” NLRB v. Stone, 125 F.2d 752, 756 (7th Cir. 1942).
The foregoing precedent, construed in light of the overarching purpose of the Act,
warrants the conclusion that the ADR Policy violates the Act, notwithstanding the fact that
employees may choose not to enter into such an agreement with their employer.
D. The ADR Policy is Reasonably Interpreted to Restrict Access to the Board, its
Processes and Procedures.
General Counsel further contends that the ADR Policy violates Section 8(a)(1) in that it
may reasonably be interpreted to preclude or restrict access to the Board and its processes,
and would therefore tend to chill employees' exercise of their rights under Section 7. It is well
settled that an employer's maintenance of a work rule which reasonably tends to chill
employees' exercise of their Section 7 rights violates Section 8(a)(1) of the Act. Lafayette Park
Hotel, 326 NLRB 824, 825 (1998). A particular work rule which does not explicitly restrict
Section 7 activity will be found unlawful where the evidence establishes one of the following: (i)
employees would “reasonably construe the rule's language” to prohibit Section 7 activity; (ii) the
rule was “promulgated in response” to union or protected concerted activity; or (iii) “the rule has
been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004). The Board has cautioned that rules must be afforded a “reasonable”
interpretation, without “reading particular phrases in isolation” or assuming “improper
interference with employee rights.” Lutheran Heritage Village-Livonia, 343 NLRB at 646.
Ambiguities in work rules are construed against the party which promulgated them. See Supply
Technologies, LLC, 359 NLRB No. 38, slip op at 3 (2012); Lafayette Park Hotel, supra at 828. 21
Under the circumstances here, I find that employees would reasonably interpret
Respondent's ADR Policy as restricting their right to file unfair labor practice charges, and that
Respondent's promulgation, maintenance and enforcement of the Policy therefore violates
Section 8(a)(1) on this basis as well.
The ADR policy contains broad language regarding the scope of its applicability.
Although the ADR Policy exempts “matters within the jurisdiction of the National Labor Relations
Board” this exception comes after the recitation of a litany of “covered claims” which are defined
to include claims of “discrimination or harassment on [an] unlawful basis,” “retaliation for
complaining about discrimination or harassment,” retaliation for . . . “exercising your protected
rights under any statute, “wrongful termination or constructive discharge,” and “violations of any
. . . federal. . .statute,” specifically including the Taft Hartley Act as such a law. As the General
Counsel notes, all of these categories of claims include matters which could be the subject of
unfair labor practice charges. To the extent that the provisions of the Policy are unclear,
Respondent, as the proponent of the policy, must bear the burden of such ambiguity. Supply
Technologies, supra; Lafayette Park Hotel, supra; Aroostook County Regional Ophthalmology
Center, 317 NLRB 218 (1995).22

21 In this regard, the Board has repeatedly held that mandatory arbitration policies that
interfere with employees’ rights to file unfair labor practice charges are unlawful. See Bill’s
Electric, Inc., 350 NLRB 292, 296 (2007); Dish Network Corp.,358 NLRB No. 29, slip op. at 7-8;
U-haul Co. of California, 347 NLRB 375, 377-78, enf’d mem. 255 F. Appx. 527 (D. C. Cir. 2007).
22 Respondent has argued that the Charging Parties were not dissuaded from filing charges
Continued
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Furthermore, in the context of the reasonable interpretation analysis the Board generally
has rejected any assumption that employees have specialized legal knowledge or experience
which they would bring to bear on an arbitration agreement's language. For example, in 2
Sisters Food Group, Inc., 357 NLRB No. 168, slip op. at 1-2, 22 (2011), the Board found that
language limiting the employer's policy to claims “that may be lawfully resolve[d] by arbitration”
was not susceptible to the interpretation by “most nonlawyer employees,” who would be
unfamiliar with the Act's limitations on compulsory arbitration, that unfair labor practice charges
were thereby excluded. Similarly, in U-Haul Co. of California, supra at 377-378, the Board
concluded that employees without legal training could not be reasonably expected to
understand that language limiting arbitration to disputes or claims “that a court of law would be
authorized to entertain or would have jurisdiction over” consequently excluded unfair labor
practice charges from the scope of the agreement. In Allied Mechanical, 349 NLRB 1077 at fn. 1
(2007), the Board concluded that the respondent violated the Act by conditioning the settlement
of wage claims where the release was “ambiguous and self-contradictory.” As the judge there
found, the first part of the release waives the signing employees’ section 7 right to assist other
employees with their wage claims, and the second part of the release purports to cancel that
waiver by excluding conduct “permitted by . . . the National Labor Relations Act.” The problem,
as the judge observed, is that assumes employees “are knowledgeable enough to understand
that the Act permits the very thing prohibited in the first portion” of the release. The Board
concluded that the release contained language “calculated to restrain its employees from
engaging in specific protected activity while simultaneously shielding itself from liability through
a generally worded ‘savings clause’ it had to know would not negate the Sec. 7 restraint.” Id.
Similarly, here, there is no basis to assume that a reasonable employee, unversed in labor and
employment law, would necessarily glean from the competing terms of the Policy that he or she
retained the right to invoke the Board’s processes and procedures. This is particularly the case
in light of the Policy’s otherwise sweeping language relegating virtually all employment-related
disputes into the category of “covered claims.”
Accordingly, because I conclude that a reasonable employee would be unable to discern
the difference between any number of “covered claims” and those which fall within the
jurisdiction of the National Labor Relations Board, and that the Policy is otherwise “ambiguous
and self-contradictory” I find that the ADR Policy would reasonably tend to interfere with and
otherwise chill employees in the exercise of their Section 7 rights, in particular their right to seek
redress before the Board, and is therefore unlawful. Lutheran Heritage-Village Livonia, supra;
D.R. Horton, supra, slip op. at 13.
E. Respondent Unlawfully Conditioned Participation in its Employee Bonus Program
upon Execution of and Adherence to its ADR Policy
The General Counsel has argued that Respondent further violated Section 8(a)(1) by
conditioning employees’ annual sales bonuses under its long-standing bonus program on
employees’ executing the unlawful ADR Policy. It is further urged that an employer violates the
Act by threatening or acting to adversely affect employees’ terms and conditions of employment
in reprisal for their engaging in union or other protected conduct, or by promising employees
benefits if they refrain from engaging in protected activity, as Respondent did here.
_________________________
in the instant matter and there is no evidence that any other employee construed the ADR
Policy as prohibiting them from doing so. This argument overlooks the fact that when evaluating
work rules and policies, the Board applies an objective test and does not require actual
evidence of interference, coercion or restraint.
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Respondent argues that the General Counsel’s contentions are dependent upon a
finding that the ADR Policy was unlawful and that, as has been argued above, the Policy is
lawful and enforceable under binding Supreme Court precedent. It is further contended that the
ADR policy did not interfere with the exercise of Section 7 rights because the class action is a
procedural device and not a substantive right guaranteed by the Act. In support of this
contention , Respondent relies upon Deposit Guar. Nat’l Bank v. Roper, 445 U.S. at 332
(1980)(“the right of a litigant to employ Rule 23 is a procedural right only, ancillary to the
litigation of substantive claims); D.R. Horton, v. NLRB, 737 F.3d at 357 (5th Cir. 2013) (The use
of class action procedures . . . is not a substantive right”); see also Gilmer v. Interstate/Johnson
Lane Corp., 111 S.Ct. at 1655 (1991). The sum and substance of Respondent’s argument as a
point of law is that conditioning employees’ eligibility to participate in the bonus program does
not interfere with, restrain or coerce employees in the exercise of their Section 7 rights because
the ability to bring or participate in a class action is not a right guaranteed by Section 7.
In disagreement with Respondent, I conclude that conditioning employee eligibility for its
ongoing sales bonus program upon the execution and continuing adherence to its ADR Policy is
violative of Section 8(a)(1) of the Act.
As has been noted above, but bears repetition in this context, the Act provides that
employees shall have the right to “engage in . . . concerted activities for the purpose of
collective bargaining or other mutual aid and protection. . .” As has been well noted, Section 7
of the Act protects a broad range of concerted activities, because, “[Congress] knew well
enough that labor’s cause often is advanced on fronts other than collective bargaining and
grievance settlement within the immediate employment context.” Eastex, Inc., v. NLRB, 437
U.S. 556, 566 (1978)”[Congress] recognized this fact by choosing as the language of [Section] 7
makes clear, to protect concerted activities for the somewhat broader purpose of ‘mutual aid
and protection’ as well as for the narrower purposes of ‘self-organization’ and ‘collective
bargaining.’” Id.
As discussed above, the Board historically has found protected, concerted activity to
include the filing of collective and class action lawsuits involving employment matters. In other
words, the Board found that the right to engage in collective legal action is a core substantive
right conferred by the Act. Thus, class action lawsuits that can be characterized as having been
filed for mutual aid and protection implicate fundamental rights under the Act. Unlike other
statutory contexts – where a class action lawsuit might well be viewed as merely a procedural
mechanism for enforcing a separate underlying right – the Act’s cornerstone principle is that
employees are empowered to band together to advance their work-related interests on a
collective basis.
Here, the ADR Policy requires that employees forego not a merely procedural device, as
Respondent suggests, but a substantive right conferred by the Act, as has been defined by
decades of decisional law. Further I agree with the General Counsel that employees’ eligibility
for the annual sales bonus program, a program which had been in existence since 2007, had
become a term and condition of employment upon which employees had come to rely. And as
the stipulations of the parties reflect, employees were thereby offered the opportunity to
significantly increase their wages. Accordingly, I find that by conditioning employees’ eligibility to
participate in this program, and increase their compensation, upon their waiver of core,
substantive rights conferred by the Act, Respondent has violated Section 8(a)(1) of the Act.
See e.g. Pittsburg & Midway Coal Mining Co., 355 NLRB No. 197, slip op at 5 (2010)(employer
violated Act by modifying employees’ bonus plan in response to their protected activity); Saigon
Grill Restaurant, supra at 1064 (employer violated Section 8(a)(1) by promising benefits
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conditioned upon cessation of protected, concerted activity).
Conclusions of Law
1. The Respondent, Acuity Specialty Products, Inc., d/b/a/ Zep, Inc., is an employer
within the meaning of Section 2(2), 2(6) and 2(7) of the Act.
2. By promulgating, maintaining and enforcing an Alternative Dispute Resolution Policy
(ADR Policy) which (a) interferes with employees’ Section 7 rights to engage in collective legal
activity by binding employees to an irrevocable waiver of their rights to participate in class or
collective litigation; (b) contains language that employees would reasonably conclude prohibits
or restricts their right to file charges with the National Labor Relations Board; (c) conditions
employees’ eligibility to participate in Respondent’s annual sales bonus program on their
execution of the ADR Policy and (d) by denying eligibility for participation in its annual sales
bonus program to employees to employees who executed the ADR Policy but refused to waive
their participation in class action or collective legal activity, Respondent has violated Section
8(a)(1) of the Act.
3. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent’s ADR Policy is unlawful, the Respondent shall be
ordered to rescind or revise it to make clear to employees in all of its facilities in which the ADR
Policy has been implemented that it does not require a waiver in all forums of their right to
maintain class or collective action, and shall notify employees of the rescinded or revised policy
by providing them with a copy of the revised policy or specific notification that the ADR Policy
has been rescinded. Employees shall also be advised that any revised ADR Policy does not
require arbitration of claims or unfair labor practice charges falling under the jurisdiction of the
National Labor Relations Act, as amended.
Respondent shall also be required to withdraw any motions for individual arbitration, if
pending, or move the appropriate court to vacate its order for individual arbitration, if
Respondent’s motion has already been granted and a motion to vacate can be timely filed. Any
such motion to vacate should be made jointly with the affected employees, if they so request.
This remedy should not be construed so as to preclude Respondent from amending its motion
to seek lawful class or collective arbitration rather than a class or collective lawsuit.
Respondent also shall be required to make employees whole by restoring their eligibility
for participation in the annual sales bonus programs to which they would have been entitled but
for the unlawful ADR Policy, paying to employees any bonus that they qualified for under the
performance standards of that year’s annual sales bonus plan but which was withheld because
they did not execute the ADR Policy or otherwise participated in class or collective legal action
and reimbursing employees for any litigation expenses, including attorney’s fees that they
incurred that are directly related to Respondent’s motion to compel individual arbitration. Interest
on all monies owed to employees will be determined at the applicable rate of interest as outlined
in New Horizons for the Retarded, 283 NLRB 1173 (1987), and shall be computed on a daily
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basis as prescribed in Kentucky River Medical Center, 356 NLRM 8(2010), enf. denied on other
grounds sub. nom Jackson Hospital Corp. v. NLRB 647 F.3d 1137 (D.C. Cir. 2011).
Respondent shall post an appropriate informational notice, as set forth in the attached
appendix. This notice shall be posted in all of Respondent’s facilities where the ADR Policy has
been in effect, wherever notices to employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In additional to the physical posting of paper notices,
notices shall be distributed electronically, such as by email, posting on an intranet or internet
site and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed a facility at which the ADR Policy has been in
effect, the Respondent shall duplicate and mail at its own expense a copy of the notice to all
affected employees and former employees employed by Respondent since December 1, 2011.
The Respondent shall also disseminate, on the first day of notice posting as required herein, a
copy of this notice on the same basis and to the same group or class of employees as the ADR
Policy was made available to them.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
ORDER
The Respondent, Acuity Specialty Products, Inc, d/b/a Zep, Inc., Los Gatos, California,
(Respondent) its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining and enforcing its Alternative Dispute Resolution Policy
(ADR Policy) which requires employees to waive their right to maintain employment-related
class and collective claims in all forums, whether arbitral or judicial;
(b) Promulgating, maintaining and enforcing its ADR Policy that restricts access to the
Board and its processes;
(c) Conditioning eligibility to participate in an annual sales bonus program on
employees’ execution of the ADR Policy;
(d) Withholding bonuses from employees because: (1) they did not execute the ADR
Policy; or (2) because they executed the ADR Policy but filed or participated in employment-
related class or collective claims against Respondent; and
(e) In any like or related manner interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the purposes of the
Act.

23 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 purposes.
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(a) Rescind or revise the ADR Policy that requires employees to waive their right to
maintain employment related class and collective claims in all forums, whether arbitral or
judicial;
(b) Rescind or revise the ADR Policy so as to ensure that employees are aware that
claims arising under the National Labor Relations Act, as amended, are not required to be
submitted to arbitration and they are free to seek the processes and procedures of the National
Labor Relations Board (the Board), including its administrative procedures and that employees
are not prohibited from filing unfair labor practice charges before the Board.
(c) Advise all employees to whom the ADR Policy was promulgated, by all means that
employees are customarily advised of matters pertaining to their terms and conditions of
employment, including the manner in which they were initially informed of the ADR Policy, that
the Policy has been rescinded or revised and that employees are not prohibited from filing
charges and participating in matters before the Board;
(d) Restore eligibility for participation in Respondent’s annual sales bonus program to
employees who qualified for bonuses under the performance standards of that year’s annual
sales bonus plan at any time since the promulgation and implementation of the ADR Policy, for
whom eligibility or participation or actual compensation was withheld either because they did not
execute the ADR Policy or because, notwithstanding their execution of the ADR Policy they filed
or participated in employment-related class or collective claims against Respondent;
(e) Make employees whole for any losses they may have suffered as a result of
Respondent’s unfair labor practices, with interest as set forth in the Remedy section of this
Decision;
(f) Withdraw any pending motions for individual arbitration in which Respondent seeks
enforcement of the ADR Policy’s unlawful restriction on class or collective claims; or if such a
motion has already been granted, move the appropriate court to vacate any orders for individual
arbitration, if agreed to by the affected employee and if such a motion can timely be made; and
reimburse employees for any litigation expenses including attorney’s fees, directly related to
opposing Respondent’s motions to compel individual arbitration;
(g) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of reimbursement or other sums due under
the terms of this Order;
(h) Within 14 days after service by the Region, post at its locations nationwide where
the ADR Policy has been promulgated, maintained or enforced copies of the attached notice
marked “Appendix.”24 Copies of the notice, on forms provided by the Regional Director for
Region 32 after being signed by the Respondent’s authorized representative, shall be posted by

24 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.”
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the Respondent and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In addition to the physical posting of
paper notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or internet site, and /or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In addition, a copy of this notice will be made available to employees on the same
basis and to the same group or class of employees as the ADR Policy was made available to
them. In the event that, during 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 December 1, 2011.
(i) 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 21, 2014
____________________
Mindy E. Landow
Administrative Law Judge
JD(NY)–30–13
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT promulgate, maintain or enforce an alternative dispute resolution policy that
interferes with your Section 7 rights to engage in collective legal activity by precluding your
rights to participate in class and collective claims against us.
WE WILL NOT promulgate, maintain or enforce an alternative dispute resolution policy that
contains ambiguous language regarding filing unfair labor practice charges at the National
Labor Relations Board suggesting that you are prohibited or restricted from filing unfair labor
practice charges or otherwise interfering with your access to the Board and its processes.
WE WILL NOT condition your eligibility to participate in our annual sales bonus program on your
execution of an alternative dispute resolution policy or withhold eligibility for bonuses from you if
you signed such a policy but filed or participated in employment-related class and collective
claims against us.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE WILL rescind or revise our alternative dispute resolution policy to make it clear to you that
any such policy does not waive your rights to participate in employment-related class and
collective litigation, does not interfere with your access to the Board to file unfair labor practice
charges and participate in proceedings before the Board, and does not condition your eligibility
to participate in our annual sales bonus program on execution of the alternative dispute
resolution policy.
WE WILL notify you of the rescinded or revised policy, including by providing you with a copy of
the revised policy or specific notification that the policy has been rescinded.
WE WILL make whole those employees who were denied a bonus because they failed or
refused to sign the alternative dispute resolution policy as well as those employees who signed
the alternative dispute resolution policy but were denied a bonus because they still filed or
participated in employment-related collective or class claims against us.
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WE WILL withdraw any pending motions for individual arbitration in which we seek to enforce
our alternative dispute resolution policy; and if such a motion has already been granted, WE
WILL move the appropriate court to vacate any orders for individual arbitration, if it is possible
and agreed to by the affected employee, and reimburse those employees for any litigation
expenses, including attorney’s fees, they incurred that were directly related to opposing our
motions to compel individual arbitration.
ACUITY SPECIALTY PRODUCTS, INC. d/b/a
ZEP, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N
Oakland, California 94612-5211
Hours: 8:30 a.m. to 5 p.m.
510-637-3300.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/32-CA-075221 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 510-637-3270.