GC Services Limited Partnership, a limited partnership, and GC Financial Corp., general partner

National Labor Relations Board - Administrative Judge Opinions

Mar 19, 2019

28-CA-166389 (N.L.R.B. Mar. 19, 2019)

JD(SF)–09–19
Tucson, Arizona
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GC SERVICES LIMITED PARTNERSHIP,
a limited partnership, and
GC FINANCIAL CORP., general partner
and Case 28–CA–166389
BRADLEY NELSON, an Individual
Rodolfo Martinez, Esq.,
for the General Counsel.
Christopher J. Meister, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried based on a joint
motion and stipulation of facts Associate Chief Administrative Law Judge Gerald Etchingham
approved on January 11, 2019. The case was subsequently assigned to me.1
Bradley Nelson (Nelson or Charging Party) filed original and amended charges on
December 18 and 23, 2015, and March 23, 2016. The original complaint was issued on March
30, 2016, after which time certain complaint allegations were severed, and an amended
complaint was issued on June 17, 2016. The parties entered into a joint stipulation of facts, filed
with the National Labor Relations Board (the Board or NLRB) on September 26, 2016, which
the Board approved on January 9, 2017. On May 21, 2018, the Supreme Court issued its
decision in Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S.Ct. 1612 (2018), which held that
the National Labor Relations Act (the NLRA or Act) does not bar arbitration agreements
requiring employees to utilize individual arbitration to resolve disputes with their employers.2
Because the amended complaint contained allegations resolved by Epic Systems, the Board
rescinded its order approving the joint stipulation on October 31, 2018.

1 The case was initially assigned to a different administrative law judge.
2 Epic Systems did not consider the issue of whether employees can be forced to contract away their
right to file charges with the National Labor Relations Board as a condition of employment, and the
underlying claims in Epic Systems did not arise under the NLRA.
JD(SF)–09–19
2
On November 8, 2018, the General Counsel issued the present amended complaint. GC
Services Limited Partnership (the Respondent), filed a timely answer denying all material
allegations.
5
The complaint alleges the Respondent maintained, as part of its dispute resolution
program, a mutual agreement for dispute resolution (MADR) that interferes with, restrains, and
coerces employees in the exercise of the rights guaranteed under Section 7 of the Act, in
violation of Section 8(a)(1) of the NLRA.
10
On the entire record, and after considering the briefs filed by the General Counsel and the
Respondent,3 I make the following
FINDINGS OF FACT
15
I. JURISDICTION
The Respondent provides customer care and accounts receivable management services
for public and private sector organizations. At all material times, the Respondent has been a
limited partnership headquartered in Houston, Texas, and has maintained an office and place of 20
business in Tucson, Arizona. In conducting its operations during the 12–month period ending
December 18, 2015, the Respondent derived gross revenues in excess of $500,000, and
performed services valued in excess of $50,000 in States other than the State of Arizona. The
Respondent is admittedly an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. 25
II. ALLEGED UNFAIR LABOR PRACTICES
Since at least about December 15, 2015, at all of its nationwide offices and places of
business, the Respondent has maintained and required all of its employees, managers, and 30
executives to sign, as a condition of employment, the following Mutual Agreement for Dispute
Resolution (MADR):
MUTUAL AGREEMENT FOR DISPUTE RESOLUTION
35
This Mutual Agreement for Dispute Resolution (“Agreement”) is for the purpose of
resolving claims by single-party arbitration and is mutually binding upon both the
employee whose name appears on the signature block below (“Employee”) and GC
Services Limited Partnership and all GC-Related Entities for which Employee works or
has ever worked, which are defined as any entity owned, controlled, or managed in any 40
manner or to any extent by GC Services Limited Partnership (collectively, the

3 The Respondent attached an exhibit to its post-hearing brief. The General Counsel filed a motion to
strike the exhibit from the record. Paragraph 3 of the parties’ joint stipulation states, “The parties agree
this Stipulation of Facts, with attached exhibits described herein, constitutes the entire record in this case
and that no oral testimony is necessary or desired by the parties.” I therefore will not consider the
Respondent’s extra-record submission belatedly attached with a post-hearing brief. I note, however, that
consideration of it would not impact the outcome of this decision whatsoever.
JD–(SF)–09–19
3
“Company”). The following contains the terms and conditions of the mutually binding
Agreement:
1. All Disputes Must Be Arbitrated.
5
It is the intent of the parties hereto that all legally cognizable disputes between them that
cannot be resolved to the parties’ satisfaction through use of the Company’s personnel
policies, must be resolved by final and binding arbitration. Claims subject to arbitration
include all legally cognizable claims in the broadest context and include, but are not
limited to, any dispute about the interpretation, applicability, validity, existence, 10
enforcement, or extent of arbitrability of or under this Agreement, and any claim arising
under federal, state, or local statute, regulation, or ordinance, any alleged contract, or
under the common law. This includes, by way of non-exhaustive illustration only, any
claim of employment discrimination in any alleged form, any claim for wage and hour
relief, including under the Fair Labor Standards Act or state or local law, any claim under 15
the Family Medical Leave Act or state or local law or regulation, any claim under the
National Labor Relations Act or state or local law or regulation, or any other claim,
whether contractual, common-law, statutory, or regulatory arising out of, or in any way
related to, Employee’s application for employment with and/or employment with
Company, the termination thereof, this Agreement, or any other matter incident or in any 20
manner related thereto. It is the intent of the parties that this Agreement shall be
construed as broadly as legally possible and shall apply to any and all legally cognizable
disputes between them regardless of when the dispute has arisen or may arise and
includes any dispute that occurred before or after the parties execute this Agreement as
well as disputes that arise or are asserted after Employee leaves the Company’s employ, 25
regardless of the reason for separation. This Agreement will apply to all claims, no matter
when they accrue, excepting only claims which have already been filed in a court of
proper jurisdiction in which both parties are expressly identified by name in such pending
lawsuit filed before this Agreement is signed by both parties. The parties jointly agree
neither may file any lawsuit to resolve any dispute between them but Employee may file 30
a complaint with any federal, state, or other governmental administrative agency,
regarding any perceived infringement of any legally protected rights.
(Jt. Stip. ¶ 1(t); Jt. Exh. 2.) 4
35

4 “Jt. Exh.” stands for “joint exhibit” and “Jt. Stip. stands for “joint stipulation of facts.” Although I
have included some citations to the record , I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited, but rather are based my review and consideration of the entire
record.
JD–(SF)–09–19
4
Since at least December 15, 2015, at all its nationwide offices and places of business,
Respondent has maintained and required all of its employees, managers, and executives to sign,
as a condition of employment, a Code of Business Ethics and Conduct, which includes the
following provision:
5
GC Services’ Dispute Resolution Program
The Company maintains a mandatory mutual dispute resolution program. As a condition
and qualification for employment or continued employment, All applicants and
employees are required to sign and agree to GC Services’ Mutual Agreement for Dispute 10
Resolution, which is attached as Attachment D. Should an employee decline to sign and
agree to the Mutual Agreement for Dispute Resolution, effective immediately, the
Company shall consider the employee to have voluntarily separated his or her
employment from GC Services.
15
(Jt. Stip. ¶1(u); Jt. Exh. 3.)
The employees were notified of the MADR and the dispute resolution program
electronically through the Respondent’s intranet, and were required to sign electronic notices of
receipt. From January 1, 2015 through December 15, 2015, the Respondent’s employees filed 13 20
charges or complaints with various Federal, State, and local administrative agencies. From
December 15, 2015 through the filing of the joint motion, the Respondent’s employees filed 41
charges or complaints with various Federal, State, and local administrative agencies including
the National Labor Relations Board, Equal Employment Opportunity Commission, and
Department of Labor. The Respondent has not disciplined or terminated an employee for filing 25
an administrative charge or complaint with, or participating in an investigation by any Federal,
State, or local administrative agency. (Jt. Sip. ¶¶ 1(v)–(y).)
III. DECISION AND ANALYSIS
30
Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7.
The rights Section 7 guarantees 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 . . 35
.”
Employees have a Section 7 right to utilize the Board’s processes “without fear of
restraint, coercion, discrimination, or interference from their employer.” Bill Johnson’s
Restaurants, Inc., 461 U.S. 731, 740 (1983). Complete freedom of employees to exercise their 40
rights to file Board charges is necessary “to prevent the Board’s channels of information from
being dried up by employer intimidation of prospective complainants and witnesses.” NLRB v.
Scrivener, 405 U.S. 117, 122 (1972), quoting John Hancock Mutual Life Insurance Co. v. NLRB,
89 U.S.App.D.C. 261, 263 (1951); See also Nash v. Florida Industrial Comm’n, 389 U.S. 235
(1967). Interfering with employees’ rights to file charges with the Board in furtherance of 45
concerted employee activities concerning wages or other working conditions violates Section
JD–(SF)–09–19
5
8(a)(1). See, e.g., Bill’s Electric, 350 NLRB 292, 296 (2007); Murphy Oil USA Inc. v. NLRB,
808 F.3d 1013, 1019 (5th Cir. 2015).
Arbitration agreements such as the MADR have been evaluated under the same legal
standards as other work rules. The Board’s decision in Boeing Co., 365 NLRB No. 154 (2017), 5
reversed part of the Board’s longstanding paradigm, set forth in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), for evaluating workplace rules that potentially infringe on
Section 7 rights.5 Under Lutheran Heritage, the first inquiry is whether the rule explicitly
restricts activities protected by Section 7. If it does, the rule is unlawful. For facially neutral
rules, a violation was previously “dependent upon a showing of one of the following: (1) 10
employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Lutheran Heritage at 647. Boeing overruled Lutheran Heritage
only with respect to the first prong of the facially-neutral paradigm. As such, the Board no
longer will find certain work rules unlawful merely upon a showing that employees would 15
reasonably construe the rule’s language to prohibit or interfere with Section 7 activity.
The “reasonably construe” standard only applied to rules that do not explicitly restrict
activity protected by Section 7. In Lutheran Heritage, the Board analyzed whether a rule about
using abusive or profane language in the workplace was unlawful on its face as follows: “The 20
rules do not expressly cover Section 7 activity. Nor are verbal abuse and profane language an
inherent part of Section 7 activity.” Lutheran Heritage, supra at 647. Only after making this
determination did the Board move on to the criteria for facially neutral rules. The first step then
is to determine whether the MADR expressly covers Section 7 activity or whether the conduct it
seeks to regulate is an inherent part of Section 7 activity.6 For the reasons discussed below, I 25
find the MADR’s plain language explicitly restricts Section 7 activity.
The MADR expressly states, “Claims subject to arbitration include . . . any claim under
the National Labor Relations Act. . . .” It is hard to think of a more explicit and direct restriction
on employees’ rights to invoke the Board’s proceedings. The Respondent argues that the clause 30
at the end of the same section of the MADR, stating the “Employee may file a complaint with
any federal, state, or other governmental administrative agency, regarding any perceived
infringement of any legally protected rights,” cures the initial restriction. I disagree for the
following reasons.
35

5 I have considered the parties’ arguments under Boeing, but for reasons detailed herein, particularly
the fact that Boeing only comes into play for facially neutral documents, I do not believe it applies to the
MADR.
6 In Lutheran Heritage, the Board analyzed rules about abusive/profane language. Its extension to
arbitration contracts appears to be somewhat of a misfit. In any event, a document that explicitly restricts
employees’ core Section 7 rights on its face, whether a handbook rule about workplace conduct or an
arbitration contract, doesn’t survive under any paradigm.
JD–(SF)–09–19
6
First, the catchall statement that employees may file administrative complaints does not make
the MADR neutral. There is a difference between neutrality and contradiction. A contract can
expressly restrict something yet contain contradictory terms, as this one does. Consider a
simplistic example, by way of illustration, of an employment contract requiring adherence to a
dress code as a condition of continued employment and then stating, in separate clauses, first, 5
“Employees may wear blue headbands only on Tuesdays” and later, “Employees may wear any
color attire they wish.” Can it be said with any integrity that this contract does not include a
restriction on the wearing of blue headbands? Putting aside for the moment legal interpretation,
common sense dictates that the contract is not neutral regarding whether or when employees can
wear blue headbands. Contradictory and perhaps confusing and ambiguous? Yes. Neutral? No.710
Next, to decide whether the Respondent’s argument has merit, it is necessary to examine
the essence of the MADR. Like most other arbitration agreements, the MADR does not purport
to regulate workplace conduct. Instead, it regulates the legal forum in the event of a work-
related dispute, such as, for example, a dispute over discipline for violating a rule in the15
employer’s employee handbook. The MADR is a contract about how employees and the
employer can litigate, pure and simple. See Epic Systems, supra at 6 (“The parties before us
contracted for arbitration.”); AT&T Mobility LLC v. Concepcion, 563 U. S. 333 (2011) (Primary
provision of the FAA reflects the “’fundamental principle that arbitration is a matter of contract”’
and “courts must place arbitration agreements on equal footing with other contracts.” (quoting 20
Rent–A–Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010))); See also Prima Paint, 388 U. S.
395, at 404, fn. 12 (1967); (Through the Arbitration Act, Congress sought “to make arbitration
agreements as enforceable as other contracts, but not more so.”).
Because the MADR is a contract, determining what it says requires interpreting its terms 25
under contract law.8 One of the primary canons of contract law is that a contract’s terms should
be harmonized if possible. To say that employees must arbitrate any claim under the National
Labor Relations Act, while at the same time saying employees may file a complaint with any
governmental administrative agency is a complete contradiction, and I see no way to harmonize
these provisions without nullifying one of them.9 30
Given that the provisions cannot be harmonized, the next step is to determine if one
carries more weight than the other. It is a generally accepted principle of contract interpretation
that “specific terms and exact terms are given greater weight than general language.” Rest.

7 Section 2 of the MADR provides that disputes over the MADR’s applicability must be resolved by
final and binding arbitration. (Jt. Exh. 2.)
8 It is undisputed that the Board has the authority to interpret the terms of a collective-bargaining
agreement to determine whether an unfair labor practice has been committed. NLRB v. C & C Plywood
Corp. 385 U.S. 421, 428 (1967). Moreover, the Board, particularly in the last few years, has interpreted
countless individual arbitration contracts to determine whether they violate the NLRB.
9 The contradiction is particularly stark given that there is no private cause of action to prevent and
remedy unfair labor practice. Enforcement rests exclusively with the Board, triggered necessarily by the
filing of a charge, as the General Counsel is precluded from looking for violations on his own initiative.
As discussed more fully below, the Respondent’s argument that arbitration provisions are contained
in many collective-bargaining agreements and that the Board may in its discretion defer to arbitral awards
under certain circumstances, is inapposite; This case involves employer-imposed individual agreements as
a condition of employment.
JD–(SF)–09–19
7
Second) of Contracts § 203 (1981).10 The MADR’s specific requirement to individually arbitrate
any claim under the NRLA thus prevails over the language that employees may file a complaint
with any federal, state, or other governmental administrative agency, regarding any perceived
infringement of any legally protected rights.
5
Even assuming the specific clause does not prevail over the general, and therefore
uncertainty remains, the result is the same. In cases of uncertainty, the language of a contract
should be interpreted most strongly against the party who caused the uncertainty to exist, i.e. the
drafting party. See, e.g., Restatement (Second) of Contracts § 206; United States v. Seckinger,
397 U.S. 203, 210 (1970). As the Court stated in Mastrobuono v. Shearson Lehman Hutton, Inc., 10
514 U.S. 52, 63, (1995), “Respondents drafted an ambiguous document, and they cannot now
claim the benefit of the doubt.” 11
The Respondent asserts that the fact that employees filed charges with administrative
agencies means they understood the MADR permits them to do so.12 The problem is that this 15
doesn’t change the fact that the MADR, by its own terms, explicitly and specifically requires
arbitration of any claim under the NLRA.13
The next question is whether the MADR, an arbitration agreement that on its face
imposes a restriction on employees’ rights to utilize the Board’s procedures, is nonetheless valid 20
pursuant to the Federal Arbitration Act, 9 U.S.C.§1 et seq. (FAA). It is not, as the clear language

10 The MADR’s construction, whether inadvertent or artful, begs the question: What could possibly
be the purpose of specifically saying that any claims under the National Labor Relations Act must be
individually arbitrated if this specific statement is only nullified by general language permitting
administrative complaints?
I note that in addition to the specific language referencing claims under the NLRA, the MADR also
states, in more general all-inclusive terms, that it applies to “any claim arising under federal, state, or
local statute . . .” Therefore the general language providing for filing administrative charges is
contradicted elsewhere in the contract by both broadly-worded general language as well as specific
language.
11 This is particularly true with adhesion contracts, such as the MADR. See Batory v. Sears, Roebuck
& Co., 124 Fed.Appx. 530, 531–532 (9th Cir.2005).
12 I am not looking at how the MADR was reasonably interpreted under Boeing. As noted in
Lutheran Heritage, “Work rules are necessarily general in nature and are typically drafted by and for
laymen . . . ” 343 NLRB at 648; see also Boeing, supra. at fn. 41. Arbitration contracts, by contrast, are
legal documents that are inherently more difficult to interpret, rendering objective lay employee analysis
misplaced.
13 The Respondent urges reliance on the dissent in GameStop Corp., 363 NLRB No. 89, slip op. at 4
(2015), and arguing the dissent reasoned that language in an arbitration agreement that expressly
preserves the right to file administrative complaints precludes a finding that it unlawfully interfered with
Board charge-filing. This is an unwarranted extension of what the dissent actually said, and it is
misplaced in the present context. GameStop involved the inverse: The prohibition did not specifically
include NLRA claims, but the agreement at issue specifically excluded from the term “Covered Claim”
“[m]atters within the jurisdiction of the National Labor Relations Board.” Id. In none of the other cases
where the Respondent encourages reliance on the dissent’s reasoning does the arbitration agreement at
issue say explicitly and with specific statutory reference that employees must arbitrate all of their NLRA
claims.
JD–(SF)–09–19
8
of the NLRA, and the uniformity with which this issue has been interpreted by both the Board
and the various courts to have addressed it, show.
The NLRA, at Section 10(a), explicitly and exclusively gives the Board power “to
prevent any person from engaging in any unfair labor practice” and states that this power “shall 5
not be affected by any other means of adjustment or prevention that has been or may be
established by agreement, law, or otherwise.” (Emphasis supplied.) Section 10(b) provides:
Whenever it is charged that any person has engaged in or is engaging in any such unfair
labor practice, the Board, or any agent or agency designated by the Board for such 10
purposes, shall have power to issue and cause to be served upon such person a complaint
stating the charges in that respect, and containing a notice of hearing before the Board or
a member thereof, or before a designated agent or agency.
The FAA, at 9 U.S.C. § 2 provides:15
A written provision in any maritime transaction or a contract evidencing a transaction
involving commerce to settle by arbitration a controversy thereafter arising out of such
contract or transaction, or the refusal to perform the whole or any part thereof, or an
agreement in writing to submit to arbitration an existing controversy arising out of such a 20
contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract.
If possible, the FAA and the NLRA must be read to give both effect. “The courts are not
at liberty to pick and choose among congressional enactments, and when two statutes are capable 25
of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to
the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535 (1974).
The FAA reflects an “emphatic federal policy in favor of arbitral dispute resolution.”
AT&T Mobility supra, at 344 ; KPMG LLP v. Cocchi, 565 U.S. 18, 21 (2011). This “emphatic” 30
policy is not limitless, however. ‘“The Board asserts a public right vested in it as a public body,
charged in the public interest with the duty of preventing unfair labor practices’. . . Wherever
private contracts conflict with its functions, they obviously must yield or the Act would be
reduced to a futility.” J. I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944), quoting National
Licorice Co. v. National Labor Relations Board, 309 U.S. 350 (1940). As noted, arbitration 35
agreements under the FAA are on equal footing with other contracts. AT&T Mobility, supra;
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006.)
There is “no doubt that illegal promises will not be enforced in cases controlled by the
federal law.” Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77 (1982).14 The FAA incorporates this 40
through its saving clause, providing that arbitration agreements “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. One such ground is illegality. See Buckeye Check Cashing, supra.

14 “It is a bedrock principle of federal labor law and policy that agreements in which individual
employees purport to give up the statutory right to act concertedly for their mutual aid or protection are
void.” Bristol Farms, 363 NRLB No. 45, slip op. at 3 (2015).
JD–(SF)–09–19
9
Because the provision requiring individual arbitration of claims under the NLRA unlawfully
restricts employees’ right to invoke the Board’s procedures, it meets the criteria of the FAA's
saving clause for non-enforcement of an illegal contract. As such, the two statutes can be
effectively read together.
5
Notably, the Court in Epic Systems recognized that Congress can require specific
enforcement mechanisms, stating, “Telling, too, is the fact that when Congress wants to mandate
particular dispute resolution procedures it knows exactly how to do so. Congress has spoken
often and clearly to the procedures for resolving ‘actions,’ ‘claims,’ ‘charges,’ and ‘cases’ in
statute after statute.” 138 S.Ct. at 1626. The Court then provided examples of statutory dispute 10
resolution schemes administered by the Department of Labor and the Equal Employment
Opportunity Commission (EEOC), which are not in any material way different than the Board’s
dispute resolution mechanism for violations of the NLRA, governed by Section 10 of that
statute.15
15
The Respondent argues that there is no congressional command prohibiting arbitration of
NLRA claims, citing to cases where the Board has deferred unfair labor practices to arbitration.16
The deferral cases are fundamentally and crucially different from what the MADR contemplates,
because they involve agreements to arbitrate embodied in collective-bargaining agreements
negotiated mutually between the employees’ bargaining representative and the employer.17. A 20
crucial aspect of the Board’s deferral decisions in this context is that deferral is exclusively a
matter of Board discretion in line with Section 10(a) of the NLRA. Exercise of that discretion
comes with safeguards to ensure the parties’ statutory rights are adequately considered before the
parties will be forever bound by an arbitrator’s decision.18 The situation here is radically
different, as it provides for final and binding arbitration of NLRA claims pursuant to individual 25
contracts of adhesion. As the Board has held in the context of alleged violations of Section
8(a)(4) of the NLRA:
The prohibition expressed in Section 8(a)(4) against discharging or otherwise
discriminating against an employee because he has filed charges or given testimony 30
under the Act is a fundamental guarantee to employees that they may invoke or

15 In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991), in determining lawsuits under
the Age Discrimination in Employment Act (ADEA) could be subject to individual arbitration pursuant to
an arbitration agreement, the Court stated, “An individual ADEA claimant subject to an arbitration
agreement will still be free to file a charge with the EEOC, even though the claimant is not able to
institute a private judicial action.” The agreement in Gilmer did not specifically mention ADEA claims.
16 See R. Br. p. 7.
17 These cases implicate Section 203(d) of the Labor-Management Relations Act, which states,
“[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for
settlement of grievance disputes arising over the application or interpretation of an existing collective-
bargaining agreement.” 29 U.S.C. §173(d).
In Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974), the Court, when discussing statutorily
protected rights related to collective activity, stated, “These rights are conferred on employees
collectively to foster the processes of bargaining and properly may be exercised or relinquished by the
union as collective-bargaining agent to obtain economic benefits for union members.”
18 See Spielberg Mfg. Co., 112 NLRB 1080 (1955); Babcock & Wilcox Construction Co., 361 NLRB
1127 (2014); Collyer Insulated Wire, 192 NLRB 837 (1971).
JD–(SF)–09–19
10
participate in the investigative procedures of this Board without fear of reprisal and is
clearly required in order to safeguard the integrity of the Board's processes.
Filmation Associates, 227 NLRB 1721 (1977) (Emphasis supplied). The Board in Filmation
Associates determined that its function of ensuring the integrity of Board processes rests solely 5
with the Board and cannot be delegated to the parties or to an arbitrator. See also Operating
Engineers Local 138, 148 NLRB 679 (1964); McKinley Transport, 219 NLRB 1148 (1975).
The same reasoning appears here, because interference is interference, whether at the front end
or the back end of the Board’s processes.
10
Finally, interpreting an arbitration agreement to permit waiver of an employee’s right to
file Board charges encourages an absurd result. This is because “[a]ny person may file a charge
alleging that any person has engaged in or is engaging in any unfair labor practice affecting
commerce.” 29 CFR § 102.9. An employee with an unfair labor practice allegation subjected to
mandatory arbitration can ask: “Mom, can you go down to the NLRB on your lunch break 15
tomorrow and file a charge about my employer committing an unfair labor practice?; I had to
sign an agreement agreeing to arbitrate all my NLRA claims if I wanted to keep my job so I can’t
do it myself.” Employees who are not coerced against this workaround will set the course for
dual litigation of the same unfair labor practice claims in arbitration and at the Board. And
really, more fundamentally, it makes no sense that aggrieved employees’ rights to file Board 20
charges can be stripped by an employer, given that a person with less of an interest or no interest
in the outcome of the Board’s proceedings may invoke such a right.
Based on the foregoing, because the MADR states, on its face, that any claims under the
National Labor Relations Act must be arbitrated, I find it interferes with employees’ Section 7 25
right to access to Board procedures and violates Section 8(a)(1) of the NLRA.
CONCLUSIONS OF LAW
1. By maintaining the Mutual Agreement for Dispute Resolution that interferes with 30
employees’ fundamental Section 7 right to file charges with the Board, the Respondent has
violated Section 8(a)(1) of the Act.
2. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and 2(7) of the Act.35
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 40
the policies of the Act.
Having found the Respondent maintains a Mutual Agreement for Dispute Resolution that
explicitly states claims under the NLRA are subject to individual arbitration, the Respondent
shall notify all current and former employees who were required to sign the Mutual Agreement 45
for Dispute Resolution that it has been rescinded or revised and provide them a copy of the
revised agreement. I will recommend that the Respondent post a notice in all locations where the
JD–(SF)–09–19
11
Mutual Agreement for Dispute Resolution was utilized. Guardsmark, LLC, 344 NLRB 809, 812
(2005), enfd. in relevant part 475 F.3d 369 (DC Cir. 2007).
I will order the Respondent to cease and desist from interfering with, restraining, or
coercing employees in the exercise of right to file charges with the Board in any like or related 5
manner.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended19
10
ORDER
The Respondent, GCS Services Limited Partnership and GC Financial Corp., Houston,
Texas, its officers, agents, and representatives, shall
15
1. Cease and desist from maintaining a Mutual Agreement for Dispute Resolution that
explicitly states claims under the NLRA are subject to individual arbitration, and thereby
interferes with employees’ fundamental Section 7 right to file charges with the Board.
2. Notify all applicants and current and former employees who signed the Mutual 20
Agreement for Dispute Resolution, that it been rescinded or revised and provide them a copy of
the revised agreement.
2. Within 14 days after service by the Region, post at its Tucson, Arizona facility and all
other facilities where the Mutual Agreement for Dispute Resolution has been maintained, copies 25
of the attached notice marked “Appendix.”20 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such 30
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. 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 35
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 15, 2015.

19 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.
20 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.”
JD–(SF)–09–19
12
Dated, Washington, D.C. March 19, 2019
Eleanor Laws5
Administrative Law Judge
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 do anything to prevent you from exercising the above rights.
WE WILL NOT maintain a Mutual Agreement for Dispute Resolution (MADR) that bars or restricts
your right to file charges with the National Labor Relations Board (NLRB).
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of
the rights guaranteed to you by Section 7 of the Act.
WE WILL rescind the MADR in all of its forms or revise it in all of its forms to make clear to
employees that it does not bar or restrict them from filing charges with the NLRB.
WE WILL notify all current and former employees who were required to sign or otherwise become
bound to the MADR in any form that it has been rescinded or revised and, if revised, provide them a
copy of the revised agreement.
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.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/28-CA-
166389 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.
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, (602) 640-2146.