Pfizer, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 21, 2019

10-CA-175850 (N.L.R.B. Mar. 21, 2019)

JD-30-19
Birmingham, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PFIZER, INC.
and Cases 10–CA–175850
07–CA–176035
REBECCA LYNN OLVEY MARTIN, an Individual
and
JEFFREY J. REBENSTORF, an Individual
Joseph Webb, Esq. and Katherine Chahrouri, Esq.,
for the General Counsel.
Jonathan Fritts, Esq., of Washington, D.C.,
for the Respondent.
Steven Stastny, Esq., of Birmingham, Alabama,
for Charging Party Martin.
SUPPLEMENTAL DECISION
KELTNER W. LOCKE, Administrative Law Judge. The Respondent lawfully required
employees, as a condition of continued employment, to waive their procedural right to sue it in
court and instead agree to submit such claims to arbitration. However, an employer cannot
lawfully require workers to waive substantive rights, which include their Section 7 rights to
discuss and publicly disclose their terms and conditions of employment. Therefore, the
Respondent violated Section 8(a)(1) of the Act when it imposed a clause requiring employees
to keep information about arbitration confidential.
Background
On about May 5, 2016, the Respondent announced to employees that if they continued
to work for Respondent, they would thereby have agreed to a "Mutual Arbitration and Class
Waiver Agreement" (the "Agreement") which, with certain exceptions, waived their rights to
sue the Respondent in court and also waived their right to file a class or collective action against
the Respondent in any forum. To be bound, an employee did not have to acknowledge or sign
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2
the Agreement but just continue to work rather than quit.1 In other words, the Respondent
imposed this Agreement as a condition of continued employment.
Two employees filed unfair labor practice charges which resulted in the issuance of a
complaint on August 15, 2016, and a hearing which opened before me on November 4, 2016. 5
On January 10, 2017, I issued a Bench Decision and Certification which found that the
Respondent's imposition of the Agreement violated Section 8(a)(1) of the Act. This conclusion
rested on the precedent established by the Board in Murphy Oil USA, Inc., 361 NLRB 774
(2014). See also D. R. Horton, Inc., 357 NLRB 2277 (2012).
10
After my decision issued, and while it remained pending before the Board on appeal,
the Supreme Court reviewed the Board's Murphy Oil precedent which I had followed in
reaching the conclusion that Respondent's imposition of the Agreement violated the Act.2 On
May 21, 2018, the Supreme Court issued a decision which rejected the Board's Murphy Oil
rationale. Epic Systems Corp. v. Lewis, 584 U.S. ____, 138 S.Ct. 1612 (2018). 15
Because the Supreme Court rejected the framework which guided my decision, it
likewise made untenable the conclusion which I had reached. Accordingly, on October 18,
2018, the Board issued a decision dismissing the allegations that Respondent had violated the
Act by imposing the Agreement on its employees. Pfizer, Inc., 367 NLRB No. 23 (2018). 20
However, the complaint in this case had raised one other allegation and my conclusion,
finding merit to the allegation, did not rest on the now-rejected Murphy Oil rationale. This
issue survived the dismissal of the remainder of the case and is the focus of this supplemental
decision on remand. It concerns a portion of the Agreement called the "confidentiality clause." 25
That clause states, in part, as follows:

1 The Agreement includes a clause stating: "You understand that your acknowledgement of this
Agreement is not required for the Agreement to be enforced. If you begin or continue working for the
Company sixty (60) days after receipt of this Agreement, even without acknowledging this Agreement,
this Agreement will be effective, and you will be deemed to have consented to, ratified and accepted
this Agreement through your acceptance of and/or continued employment with the Company."
The Agreement also specifies that, for current employees, "consideration for this Agreement
includes continuation of your employment. . ." For new hires, the Agreement states that "consideration
for this Agreement includes Pfizer's consideration of your application for employment and your offer of
employment. . ."
Additionally, the Respondent distributed to employees a sheet with answers to frequently asked
question. One of the questions was "Do I have to agree to this?" The answer stated: "The Arbitration
Agreement is a condition of continued employment with the Company. If you begin or continue working
for the Company sixty (60) days after receipt of this Agreement, it will be a contractual agreement that
binds both you and the Company."
Also, a May 6, 2016 letter to employees from Respondent's human resources department stated
"All covered colleagues will be bound by the agreement as part of their continued employment at Pfizer."
2 More specifically, the Supreme Court considered the Fifth Circuit's decision which rejected the
Board's rationale. Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). The Court
consolidated this case with two other appellate decisions presenting similar issues: Lewis v. Epic
Systems Corp., 823 F.3d 1147 (7th Cir. 2016) and Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir.
2016).
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3
The parties shall maintain the confidential nature of the arbitration proceeding and the
award, including all disclosures in discovery, submissions to the arbitrator, the hearing, and the
contents of the arbitrator's award, except as may be necessary in connection with a court
application for a temporary or preliminary injunction in aid of arbitration or for the maintenance
of the status quo pending arbitration, a judicial action to review the award on the grounds set 5
forth in the FAA, or unless otherwise required or protected by law or allowed by prior written
consent of both parties. This provision shall not prevent either party from communicating with
witnesses or seeking evidence to assist in arbitrating the proceeding. [Nothing in this
Confidentiality provision shall prohibit employees from engaging in protected discussion or
activity relating to the workplace, such as discussions of wages, hours, or other terms and 10
conditions of employment.] In all proceedings to confirm or vacate an award, the parties will
cooperate in preserving the confidentiality of the arbitration proceeding and the award to the
greatest extent allowed by applicable law.
My initial decision, finding that this provision violated Section 8(a)(1) of the Act, rested 15
on existing Board precedent concerning when a work rule unlawfully interfered with
employees' exercise of their Section 7 rights. However, after my decision issued, the Board
overruled this precedent and established a new standard for determining whether a particular
work rule violated the Act. See The Boeing Co., 365 NLRB No. 154 (2017), overruling the
"reasonably construe" test set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 20
(2004).
In its Boeing decision, the Board decided to apply the new standard retroactively to all
cases then pending, which include the present case. Therefore, it has become necessary to
perform a fresh analysis based on the new precedent. In its October 18, 2018 decision which 25
dismissed the other allegations, the Board ordered this remaining allegation remanded to me
"for further proceedings in light of Boeing, including, if necessary, the filing of statements,
reopening the record, and issuance of a supplemental decision." Pfizer, Inc., 367 NLRB No. 23
(2018).
30
After receiving the Board's remand order, I spoke with counsel by telephone conference
call on two occasions. The parties advised me that they did not wish to present further evidence
but they did wish to file briefs. Accordingly, on November 27, 2018, I issued an order setting
a deadline of December 21, 2018, for filing briefs. Because of uncertainty regarding the
position which the General Counsel ultimately would take concerning the lawfulness of the 35
confidentiality clause, the parties wished an opportunity to request permission to file reply
briefs. The November 27, 2018 order set a deadline of January 4, 2018, for filing a request to
file a reply brief.
The parties submitted timely briefs, which have been considered. However, no party 40
requested permission to file a reply brief, and no party has filed such a brief.
The Respondent's brief, as might be expected, argues that the confidentiality clause is
lawful. Somewhat less expectedly, the General Counsel now agrees with the Respondent that
JD-30-19
4
under the Boeing standard the confidentiality clause is lawful, at least on its face.3 However,
contrary to both the General Counsel and the Respondent, I conclude that the clause chills the
exercise of Section 7 rights and violates Section 8(a)(1) of the Act.
Preliminary Matters5
At the outset, some preliminary issues warrant discussion. First, does the Federal
Arbitration Act (FAA) preclude the Board from considering whether the confidentiality clause
is violative and, if so, ordering a remedy? The Respondent contends that the Supreme Court's
recent decision in Epic Systems, interpreting the FAA, precludes the Board from considering 10
the lawfulness of the confidentiality clause. This argument warrants careful and early
consideration because if the FAA, as interpreted in the Epic Systems decision, does in fact
preclude the Board from considering whether the language in the confidentiality clause violates
the Act, further examination of the clause itself becomes unnecessary.
15
The Respondent also bases another argument on the Epic Systems decision. The
Respondent contends that Epic Systems does not allow the lawfulness of the confidentiality
clause to be judged under any standard except the principles used to determine whether any
contract is valid and enforceable. If the Respondent is correct, then the issue of whether or not
the confidentiality clause violates Section 8(a)(1) of the Act cannot be decided by applying the 20
Board's precedents.
If the Epic Systems decision does not forbid the Board from applying labor law
precedents and principles, then a question arises as to how comfortably the Respondent's
confidentiality clause fits within the Boeing analytical framework. The Board established the 25
Boeing test to evaluate the lawfulness of work rules, employment policies and employee
handbook provisions. The confidentiality clause does not bear any of these labels, so it is
appropriate to consider whether the confidentiality clause constitutes a work rule, employment
policy or employee handbook provision subject to Boeing analysis.4
30
(a) Does the Federal Arbitration Act preclude the Board from evaluating the
lawfulness of the confidentiality clause?
The Respondent's brief characterizes the confidentiality clause as "part and parcel of the
arbitration process" and argues that the Federal Arbitration Act, as interpreted by the Supreme 35
Court in Epic Systems, requires that the Agreement must be enforced by its terms,
confidentiality clause and all.5 The Respondent's brief argues for an expansive interpretation
of the Epic Systems decision:

3 The government's brief did disagree with the Respondent concerning the Board's authority to
judge the lawfulness of the confidentiality clause and the standards to be used in doing so.
4 For reasons discussed below, I conclude that the confidentiality clause has a "dual identity,"
also serving as a work rule and employment policy which appropriately may be assessed using the
Boeing framework.
5 Although Respondent's brief did not elaborate on this point, the Respondent's argument implies
that any challenge to the confidentiality clause would have to be made in the proceeding before the
arbitrator and the issue would be decided, in the first instance, by the arbitrator. Thus, the brief quotes
JD-30-19
5
The Supreme Court's [Epic Systems] decision was not limited to class action waivers.
Rather, the Court analyzed the connection between arbitration agreements and the NLRA more
broadly and concluded that because the rules and procedures applied to workplace disputes in
arbitration typically do not implicate Section 7 rights, the Board may not supersede the FAA 5
by applying the NLRA to strike down the terms and procedures set forth in arbitration
agreements. [Citation to Epic Systems omitted; italics in original.]
Restating the Respondent's argument in slightly different order reveals some problems
with it. The Respondent's contention that "the Board may not supersede the FAA by applying 10
the NLRA to strike down the terms and procedures set forth in arbitration agreements" rests on
the premise that the "rules and procedures applied to workplace disputes in arbitration typically
do not implicate Section 7 rights." (Italics added.) However, this premise is wobbly.
Respondent's use of the word "rules" adds confusion because it fails to distinguish 15
between a rule concerning procedure and a rule affecting substance. The Epic Systems decision
concerned an assertion that Section 7 of the National Labor Relations Act prohibited an
employer from compelling employees to waive the right to class action procedures. However,
for reasons discussed below, a rule which specifies procedure differs significantly and
materially from a rule creating or affecting a substantive right. 20
Moreover, the Respondent generalizes that arbitration rules and procedures typically do
not implicate Section 7 rights but here we must consider not the typical but the specific.
Respondent's generalization - about what such rules "typically do not" do - fails to engage the
issues to be decided here, namely, whether the specific rule under consideration - the prohibition 25
expressed by the confidentiality clause - does interfere with Section 7 rights and, if so, whether
such interference rises to the level of a violation of Section 8(a)(1) of the Act.
Additionally, the Respondent's argument focuses on Epic Systems while ignoring other
relevant precedent. Epic Systems is just one of the stars in a constellation of Supreme Court 30
decisions interpreting the Federal Arbitration Act. These other decisions are important because
they express a principle which the Court did not need to mention, and therefore did not mention,
in Epic Systems, but which is of great relevance in the present case.
This principle involves a fundamental distinction between procedural rights and 35
substantive rights. The Epic Systems decision did not concern a substantive right. Rather, the
Court considered, and rejected, a claim that Section 7 of the NLRA entitled employees to use
class action procedures. Unlike Epic Systems, the present case concerns a substantive right.

Kilgore v. KeyBank National Association, 718 F.3d 1052, 1059 fn. 9 (9th Cir. 2013) as follows: "In any
event, the enforceability of the confidentiality clause is a matter distinct from the enforceability of the
arbitration clause in general. Plaintiffs are free to argue during arbitration that the confidentiality clause
is not enforceable." (Italics added.) The Respondent's argument, if accepted, would preclude any
consideration of how the prohibition in the confidentiality clause may restrict employees in the exercise
of rights granted by Section 7 of the NLRA. Prohibiting the use of labor law standards to judge whether
the clause infringes upon rights granted by Section 7 of the NLRA would effectively negate those rights.
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6
The substantive right/procedural right distinction
A brief review of the Federal Arbitration Act's changing role will help explain why the
Court has found it necessary to draw a distinction between substantive and procedural rights. 5
By the early 20th Century, some businesses had developed the practice of negotiating contracts
which required disputes about the meaning of the agreement to be referred to and decided by
an arbitrator rather than litigated in court. Arbitration often was quicker. Additionally, it gave
the contracting parties greater control over who would be interpreting the terms that they had
negotiated. By specifying in the contract that arbitrators would be obtained from a particular 10
source or selected through an agreed-upon procedure, the parties could assure that the person
interpreting their contract met their standards of competence and impartiality.
However, even though businesses were entering into contracts providing for such
alternative dispute resolution, courts often were hostile to the process and found ways to thwart 15
it. Therefore, in 1925, Congress passed the Federal Arbitration Act. This law required courts
to enforce arbitration provisions, but it also included a "saving clause" which allowed a court
to refuse enforcement under some limited circumstances.
For the first 60 years under the FAA, an arbitrator's duty simply involved interpreting 20
the terms in contracts. Although arbitrators routinely examined such private agreements to
decide what obligations the contractual language imposed, they generally didn't determine what
rights a party had been granted by a state or federal law. Stated another way, judges understood
the FAA to require the court to grant a motion to compel arbitration when the issue to be decided
by the arbitrator concerned contractual rights rather than a right created by federal or state law, 25
such as the right to be paid at least a specified minimum wage and the right not to be sexually
harassed.
However, starting in the mid-1980s, the Supreme Court began expanding the scope of
the FAA. In a number of cases, the court held that if two parties had entered into an agreement 30
with an arbitration clause, and the clause did not specifically exclude the arbitration of statutory
rights, the district courts should grant motions to compel arbitration, even if doing so resulted
in the arbitrator interpreting the text of a public law rather than merely the terms of a private
agreement.
35
Interpreting the FAA in this manner, to allow private arbitrators to enforce rights granted
by public law, would not be too controversial if both parties to an arbitration agreement had
voluntarily agreed that the arbitrator could decide an issue which otherwise would be decided
by a judge. Presumably, if the choice really were voluntary, a party would only agree to use an
arbitrator if he believed that the arbitrator would be as fair as a court. However, a problem 40
arises because many arbitration agreements are not fully, truly voluntary.
When competition is limited, a company may be able to require customers to sign a
contract which includes a clause waiving the right to go to court. If the company's competitors
also include similar clauses in their contracts, a customer has little choice but to go along. 45
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For example, in some places cellphone customers may face the choice of signing a
standard-form contract with an arbitration clause or else doing without a smartphone. An
employee faces an even more drastic choice if his employer tells him that he must agree to
waive his right to go to court and agree to arbitration or else will lose his job and have to find
work elsewhere. 5
However, Supreme Court decisions interpreting the FAA were giving employers
precisely this power and some employers, upon learning that they had the power, used it.
Concerns arose about where and how to draw the line. If a company can require employees to
waive the right to judge and jury, what other rights could employees be forced to waive? Could 10
an employer lawfully require employees to give up the right to be paid at least a minimum
wage? The right not to be discriminated against on the basis of sex?
For example, suppose an employer told a job applicant, "if you want to work here, you
have to agree to accept $3 an hour as full payment and waive your right, under federal law, to 15
be paid at least the minimum wage." Or suppose that an employer said the following to an
existing female employee: "If you continue to work here, you thereby agree that men who don't
have your qualifications or experience may, nonetheless, be selected for a promotion even
though you also applied." Or suppose an employer told the employee that "by continuing to
work here, you thereby agree that your supervisor may sexually harass you and create a hostile 20
work environment."
If employers could impose such conditions lawfully, if they were allowed to insist that
employees give up their statutory rights or else quit and seek work elsewhere, then companies
would possess the power to nullify any legal requirement they didn't like. Indeed, employers 25
would be able to pull the teeth out of all sorts of laws protecting workers by forcing them to
waive their rights under such laws. Should a private company have the power to slough off the
legal duties that Congress has imposed as easily as a snake sheds its skin?
A Supreme Court decision allowing someone to waive the right to a judge and jury 30
could establish a precedent easily misused, a precedent allowing the powerful to force the less
powerful to give up many other rights, such as the right to receive the minimum wage, the right
to a workplace which complies with federal safety regulations, and the right to be free of
invidious discrimination. How could a precedent allowing the compelled waiver of one right
be kept from opening a gate allowing the compelled waiver of other rights?35
The Court established such a limiting principle by making a distinction between
"procedural rights" and "substantive rights." An individual could waive a "procedural right,"
such as having the case decided by a court, but could not be forced to waive a "substantive
right," such as being paid at least the minimum wage. Although an employee could be 40
compelled to appear before an arbitrator rather than a judge, the arbitrator would apply the same
statutory standard which would have been used in court. By following the identical standard
that a judge would use, the arbitrator presumably would reach the same result a court would
reach. Therefore, when someone was required to agree that an arbitrator, not a judge, would
decide his claim, that person was not giving up the substantive protection of the law, such as 45
the right to be paid at least the minimum wage, but only was waiving the procedural right to
present his case in court.
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8
This substantive/procedural distinction could be applied not only in cases involving
rights created by employment laws, but also in fields where arbitrators decided other statutory
issues. In fact, the Supreme Court set forth the principle in a case involving rights under
antitrust law. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 5
(1985), the Court stressed that by agreeing "to arbitrate a statutory claim, a party does not forgo
the substantive rights afforded by the statute, it only submits to their resolution in an arbitral,
rather than a judicial, forum."6 The Supreme Court addressed a statute's lack of language about
arbitration by treating Congress' silence, in effect, as an absence of objection. Essentially, the Court
presumed that Congress had chosen to allow arbitration unless it found sufficient evidence, either in a 10
statute's text or in the legislative history, that Congress had intended that only courts interpret and apply
the law. See Note, "The Substantive Waiver Doctrine in Employment Arbitration Law," 130
Harv.L.Rev. 2205 (2017).
The Court later referred to this same distinction in a number of cases involving 15
employment-related laws. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20. 26
(1991); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001); and 14 Penn Plaza LLC
v. Pyett, 556 U.S. 247, 273 (2009) ("substantive waiver of federally protected civil rights will
not be upheld"). This principle - that the Court allows only the waiver of procedural rights and
will not permit the compelled waiver of a substantive civil right - certainly applies in the present 20
case.
It should be stressed that nothing in the Court's recent Epic Systems decision overruled
or modified the procedural right/substantive right distinction the Court had made in these
previous cases. In Epic Systems, the Court did not discuss this distinction because the need did 25
not arise; the case did not involve the assertion of any substantive right.
In Epic Systems, when the Court rejected the argument that Section 7 of the NLRA
prohibited employers from requiring employees to waive the right to bring class actions, it
consistently characterized the claimed right as procedural. Thus, the Court stated that "today's 30
decision merely declines to read into the NLRA a novel right to class action procedures. . ."
Epic Systems Corp. v. Lewis, 584 U.S. ___, slip op. at 22 (italics added).
In Epic Systems, the Court also stated: "Nothing in our cases indicates that the NLRA
guarantees class action procedures." Id., slip op. at 18 (italics added). The Court further stated 35
that "Section 7 doesn't speak to class and collective action procedures in the first place." Id.,
slip op. at 13 (italics added).

6 To establish through its precedents that arbitrators could take the place of judges and decide
statutory issues, the Court also had to deal with the fact that laws creating new rights often did not say
anything about arbitration. (A law's silence about arbitration, of course, is easy to understand. For the
Federal Arbitration Act's first 60 years, arbitrators just interpreted contracts. During that period,
lawmakers likely felt no need to include language either allowing or prohibiting the arbitration of
statutory claims.)
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9
The Court likewise distinguished its decision in Eastex, Inc. v. NLRB, 437 U.S. 556
(1978), stating that "not a single one of the lower court or Board decisions Eastex discussed
went so far as to hold that Section 7 guarantees a right to class or collective action procedures."
Id., slip op. at 19 (italics added).
5
Indeed, the Court rejected the argument that Section 7 accorded employees the right to
seek legal redress in class actions because such a right would be procedural in nature but
Section 7 instead protected employee activity. As the Court put it, Section 7 protects things
employees "just do" but no language in Section 7 "speaks to the procedures judges or arbitrators
must apply in disputes that leave the workplace and enter the courtroom or arbitral forum. . ." 10
Id., slip op. at 12 (italics added).
Unlike the claimed Section 7 right which the Court considered and rejected in Epic
Systems, the Section 7 right at issue here does not concern supposed entitlement to use a
procedure but rather the right to engage in activity. Specifically, employees have the right to 15
discuss with each other all their terms and conditions of employment, including arbitrations, to
disclose these terms and conditions to the public and to ask for the public's support in changing
them for the better.
This right clearly is substantive. It protects activity that, in the Court's words, employees 20
"just do." We know that because many times in the past, employees just did it. And when they
did it, they enjoyed the Act's protection. See, e. g., Ellison Media Company, 344 NLRB No.
136 (2005) (employee discussion of sexual harassment by supervisor is protected activity),
citing Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964), and Vought
Corp., 273 NLRB 1290, 1294 (1984), enfd. 788 F.2d 1378 (8th Cir. 1986); Phoenix Transit 25
System, 337 NLRB 510, 510 (2002) (Section 7 protects employees' right to discuss their sexual
harassment complaints among themselves), enfd. mem. 63 Fed. Appx. 524 (D. C. Cir. 2003);
Waco, Inc., 273 NLRB 746, 748 (1984)(rule prohibiting discussion of wages was a clear
restraint on employees' Section 7 right to engage in concerted activity for their mutual aid or
protection); All American Gourmet, 292 NLRB 1111, 1130 (1989); Leather Center, Inc., 312 30
NLRB 521, 528 (1993)(Section 7 rights include right to convey complaints to representatives
of the media); Hacienda de Salud-Espanola, 317 NLRB 962 (1995); Compuware Corp., 320
NLRB 101 (1995); St. Luke's Episcopal-Presbyterian Hospitals, Inc., 331 NLRB 761, 762
(2000); Case Farms of North Carolina, 353 NLRB 257, 260 fn. 12 (2008)(Section 7 protected
two employees who, speaking on behalf of other employees, complained about working 35
conditions to local newspaper reporters).
Because the Section 7 right affected by the Respondent's confidentiality clause is a
substantive right rather than a procedural right, the Epic Systems decision, which found that a
claimed procedural right did not exist, but which did not concern a well-established substantive 40
right, can be and should be distinguished.
Authority of the Board
The Respondent contends that, because the confidentiality clause is part of an arbitration 45
agreement, the Federal Arbitration Act governs its lawfulness and, therefore, the Board lacks
the authority to determine whether the confidentiality clause violates the NLRA. However, that
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10
argument fails to take into account the Board's function in the statutory scheme which Congress
enacted.
Congress granted employees the right to engage in concerted activity for their mutual
aid or protection, and other related rights, in Section 7 of a comprehensive statute addressing 5
problems resulting from an inequality of bargaining power. 29 U.S.C. § 157. In the same
statute, Congress made it an unfair labor practice to interfere with these rights, 29 U.S.C. § 158,
and established the Board to administer it. 29 U.S.C. § 153.
In Section 10 of the Act, 29 U.S.C. § 160, Congress gave the Board authority to prevent 10
and remedy violations. The Supreme Court has held that "Section 10(a) and (c) of the [National
Labor Relations] Act commits to the Board the exclusive power to decide whether unfair labor
practices have been committed and to determine the action the employer must take to remove
or avoid the consequences of his unfair labor practice." National Licorice Co. v. NLRB, 309
U.S. 350, 365 (1940). 15
May the confidentiality clause hide from the NLRA, and the Board's scrutiny, because
it is part of an arbitration agreement? In National Licorice Co., the Supreme Court also stated:
The Board asserts a public right vested in it as a public body, charged in the public 20
interest with the duty of preventing unfair labor practices. The public right and the duty
extend not only to the prevention of unfair labor practices by the employer in the future,
but to the prevention of his enjoyment of any advantage which he has gained by
violation of the Act, whether it be a company union or an unlawful contract with
employees, as the means of defeating the statutory policy and purpose. 25
Id., 309 U.S. at 364 (italics added). Considering that Congress gave the Board exclusive
authority to determine whether an action constituted an unfair labor practice, it seems highly
unlikely that it contemplated another body exercising that authority simply because the
language which potentially interfered with Section 7 rights appeared in a contract rather than 30
elsewhere. If Congress had intended such a result, it would have said so explicitly. Therefore,
I conclude that the Board possesses the authority to decide whether the confidentiality clause
violates the NLRA.
Epic Systems Further Distinguished35
Because of the substantive right/procedural right distinction discussed above, I reject
the Respondent's arguments that the Epic Systems decision controls here, and that it compels
the conclusion that the Federal Arbitration Act deprives the Board of authority to consider
whether the confidentiality clause conveys a message which violates Section 8(a)(1) of the 40
National Labor Relations Act. Additionally, another relevant factor may be discerned behind
the scenes in Epic Systems which is not present here.
In Epic Systems, the Court raised the possibility that the Board was straining to extend
its authority beyond what Congress intended by inventing a new right which the Board itself 45
had not recognized for its first 7 decades. Thus the Court stated that "In 2012, the Board - for
the first time in the 77 years after the NLRA's adoption - asserted that the NLRA effectively
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11
nullifies the Arbitration Act in cases like ours." Epic Systems Corp. v. Lewis, 584 U.S. ___,
slip op. at 4.
The Court was referring to the Board's conclusion, in D. R. Horton, Inc., above, that an
employer could not lawfully require employees to waive the right to take legal action against it 5
by filing a class action in any forum, whether in court or before an arbitrator. In that case, as
in Murphy Oil, above, the Board had held that filing a class action constituted "concerted
activities for the purpose of collective bargaining or other mutual aid or protection" within the
meaning of Section 7 of the NLRA.
10
Rejecting this theory, the Court even hinted that the Board's "discovery" of a new right
illustrated a government agency's tendency to expand its "turf" through creative and overly-
generous interpretations of the statute it administers.7Epic Systems Corp. v. Lewis, 584 U.S. ____,
slip op. at 20. Such a tendency certainly isn't present here. It should be stressed that the present
case does not involve an expansive interpretation of Section 7 to create a new right but, as the 15
cases cited above illustrate, concerns a long-recognized and firmly-established old right. From
the earliest days of the Act, Section 7 has protected employees' right to discuss and publicize
working conditions they consider unsatisfactory.
The right to discuss conditions of employment has such a venerable history because it 20
is the essential predicate to all other rights granted by Section 7. Any concerted activity
protected by Section 7 necessarily begins with employee discussion about a work-related
problem. Prohibiting employees from talking about a working condition effectively prevents
them from deciding to protest it in concert.
25
In one sense, the present case is the exact reverse of Epic Systems. There, the Supreme
Court held that the Board's interpretation of the NLRA unduly encroached upon the province
of the Federal Arbitration Act. Here, the Respondent advocates an interpretation of the Federal
Arbitration Act which would encroach upon the NLRA by reducing the rights granted by
Section 7 of the NLRA and restricting the Board's authority to enforce those rights. Epic 30
Systems concerned whether the NLRA should be interpreted in a way that impinged upon the
FAA, but the issue here concerns whether the FAA should be interpreted in a way that impinges
on the NLRA.
Interpreting the FAA in a way which curtails the NLRA is as undesirable as interpreting 35
the NLRA in a way which interferes with the FAA. The interpretation advocated by the
Respondent creates an unnecessary conflict between statutes of the very sort condemned by the
Court in Epic Systems. In that case, the Supreme Court decried construing a statute in a manner

7 Although the Court, in Epic Systems, did not use the word "turf" or the phrase "mission creep,"
it did imply that such a tendency might have affected the Board's D. R. Horton decision:
An agency eager to advance its statutory mission, but without any particular interest in or
expertise with a second statute, might (as here) seek to diminish the second statute’s scope in
favor of a more expansive interpretation of its own–effectively “bootstrap[ping] itself into an
area in which it has no jurisdiction.” Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990).
JD-30-19
12
which placed it in conflict with another law. Instead, the Court taught that, whenever possible,
statutes should be interpreted as a "harmonious whole." Epic Systems Corp. v. Lewis, 584 U.S.
____, slip op. at 2. Here, the Respondent would wield the FAA to clobber rights granted by the
NLRA. Such an interpretation is needless and must be avoided.
5
The issue in this case concerns whether the confidentiality clause interferes with the
exercise of rights granted by Section 7 of the National Labor Relations Act. It should be
stressed that when an employer unlawfully interferes with these statutory rights, this unfair
labor practice harms more than employer's own workers. The employer breaches a federal
statute which sets labor policy for the entire country, a policy which seeks to benefit all by 10
reducing the "strikes and other forms of industrial strife or unrest" which burden and obstruct
commerce. 29 U.S.C. § 151. The Board, when it considers the facts relevant to an allegation
and determines whether the law has been broken, is not merely vindicating the right of the
particular employer's workers but is enforcing a statute which protects the public as a whole.
Congress stated, in Section 10(a) of the Act:15
The Board is empowered, as hereinafter provided, to prevent any person from engaging
in any unfair labor practice (listed in section 8 [section 158 of this title]) affecting
commerce. This power shall not be affected by any other means of adjustment or
prevention that has been or may be established by agreement, law, or otherwise. . . 20
29 U.S.C. § 160(a) (Italics added). The Respondent here attempts to use the Federal Arbitration
Act as a shield to prevent the Board from performing the law enforcement duties which
Congress entrusted to it. Respondent asserts that, because of the FAA, only contract law
standards can be applied, but such standards, which largely evolved at common law, are blind 25
to the national labor policy which Congress established and likewise blind to the federal statute
which embodies that policy and which makes unlawful certain conduct which the common law
tolerated.
Congress certainly did not intend that one of the laws it enacted be used to thwart 30
another. Instead, it protected the Board's power to enforce the NLRA by including in Section
10(a) the language quoted above. It is entirely appropriate for the Board to use that authority
here.
To summarize, for all the reasons discussed above, I reject the Respondent's argument 35
that Epic Systems precludes the Board from considering the lawfulness of the confidentiality
clause and from ordering a remedy should the clause violate the Act.
The General Counsel's Argument
40
Only in unusual circumstances does the General Counsel agree with a respondent that,
although the complaint alleges that certain conduct violates the Act, the conduct in question
actually is lawful. The Supreme Court's Epic Systems decision created such an unusual
circumstance. The General Counsel believes that the Court's holding requires a conclusion that
the confidentiality clause does not violate Section 8(a)(1) and argues that this allegation should45
be dismissed.
JD-30-19
13
However, the General Counsel's reasoning rests on an incorrect assumption, namely,
that neither what happens during an arbitration nor the arbitrator's award is a condition of
employment. For example, the General Counsel's brief states:
Confidentiality provisions that confine themselves to information concerning matters 5
disclosed in the arbitration hearing and relating to the arbitration do not significantly
implicate Section 7 rights, and therefore, in conformity with Epic, such agreements
should be enforced as written. [Italics added. ]
The General Counsel thus assumes that no harm comes to Section 7 rights from a rule 10
which only prohibits employees from talking about arbitration, but which allows them to talk
about anything else. However, the cases cited above and other precedents clearly establish that
Section 7 does protect employee discussions about terms and conditions of employment.
Therefore, the General Counsel's assumption can be correct only if what happens during an
arbitration, and the arbitrator's award, do not pertain to terms and conditions of employment. 15
Another portion of the General Counsel's brief reveals this same implicit assumption, that
arbitration somehow is not a term or condition of employment. It states:
[A]s long as an arbitral confidentiality provision confines itself to arbitration-related
matters and does not touch the type of Section 7 activities that “employees just do” for 20
themselves it should not be interpreted to interfere with Section 7 rights.
The Supreme Court, in Epic Systems, had used the phrase "things that employees 'just
do' for themselves" to distinguish the activities protected by long-recognized Section 7 rights -
substantive rights - from the claimed right to use class action procedures, a right the Court 25
ultimately concluded did not exist. Clearly, as the cases cited above8 establish, employee
discussions about conditions of employment fall within the category of things that employees
"just do" and within the protection of Section 7.
Just as there is a difference between playing baseball and talking about a baseball game, 30
arbitration and an employee discussion about arbitration are two different things. Court
decisions allowing an employer to force employees to use arbitration do not serve as precedents
for the separate proposition that an employer can prohibit employees from talking about it.
If something is a condition of employment, Section 7 allows employees to talk about it 35
and does not place any working condition off limits. If it's a working condition, employees
have the legal right to discuss it.

8 For example, Ellison Media Company, 344 NLRB No. 136 (2005) (employee discussion of
sexual harassment by supervisor is protected activity), citing Mushroom Transportation Co. v. NLRB,
330 F.2d 683, 685 (3d Cir. 1964), and Vought Corp., 273 NLRB 1290, 1294 (1984), enfd. 788 F.2d
1378 (8th Cir. 1986); Phoenix Transit System, 337 NLRB 510, 510 (2002) (Section 7 protects
employees' right to discuss their sexual harassment complaints among themselves), enfd. mem. 63 Fed.
Appx. 524 (D.C. Cir. 2003).
JD-30-19
14
The arbitration system which the Respondent imposed most certainly is a condition of
employment. See footnote 1, above. The Respondent even admitted that fact in the "FAQ
sheet" it distributed to employees, which stated that the “Arbitration Agreement is a condition
of continued employment with the Company."
5
After imposing this system on employees as a condition of employment, and after
informing employees in writing that it was a condition of employment, the Respondent would
be hard pressed to deny it now. The Respondent has not. The Respondent's brief does not raise
any defense based on an argument that its arbitration system is not a condition of employment.
10
Moreover, an arbitration of a work-related dispute not only is itself a condition of
employment, imposed by the Respondent, but any such arbitration affects working conditions
and for this reason, too, employees have a Section 7 right to discuss it. For example, an
arbitrator's decision concerning whether an employee should receive overtime pay typically
would set a standard applicable to others who worked similar hours. Thus, if the arbitrator 15
reached a decision which appeared to be contrary to wage and hour law, an employee discussion
about the award clearly would concern a term or condition of employment and therefore would
fall within Section 7's protection. Of course, the discussion would still be protected even if the
employees believed the arbitrator had decided the issue correctly.
20
Similarly, employee discussion about an arbitrator's decision concerning claims of
sexual harassment, or concerning any other employment condition, would be protected.
Because the Respondent established the arbitration system to decide legal claims arising out of
employment, every such case would relate to terms and conditions of employment.
25
Both because arbitration is a condition of employment and because the arbitration
affects conditions of employment, employees have the same right to discuss arbitrations and
disclose information about them as they do to discuss their wages. The employees' Section 7
right to discuss and disclose their conditions of employment is the long-established rule. No
party has cited any case which makes employee discussions and disclosures about arbitration 30
an exception to the rule and I have found none.
Therefore, I reject the General Counsel's implicit assumption that arbitration is not a
condition of employment and likewise reject the conclusion, based on that assumption. Because
the arbitration system which the Respondent imposed, as a condition of employment, is 35
precisely that, any rule that prohibits employees from discussing or disclosing information
about an arbitration necessarily infringes on their exercise of rights granted by Section 7 of the
NLRA.
Whether the prohibition's negative impact on Section 7 rights is great enough to violate 40
Section 8(a)(1) of the Act is another question. The Act gave the Board exclusive authority to
take evidence and decide this issue and the Supreme Court's Epic Systems decision does not
preclude the Board from doing its job. But what standards should the Board apply in making
that determination? That issue will be discussed next.
45
JD-30-19
15
(b) Is the Board precluded from using its own precedents to judge the
lawfulness of the confidentiality clause?
The Board's remand order directs me to judge the lawfulness of the confidentiality
clause by applying its Boeing standards. However, the Respondent contends that only general 5
contract law standards may be used. On this point, the General Counsel disagrees with the
Respondent and instead takes the position that the Boeing framework should be used.
The Respondent bases its argument, that only general contract law standards may be
used to judge the lawfulness of the confidentiality clause, on Section 2 of the Federal Arbitration 10
Act, which states:
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 15
agreement in writing to submit to arbitration an existing controversy arising out of such
a 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.
9 U.S.C. § 2 (italics added). The Respondent's argument, that this section of the FAA applies 20
to the confidentiality clause and controls the outcome here, necessarily rests on the assumption
that the clause's location within the arbitration agreement shields it from being scrutinized
separately. Thus, the Respondent's brief, characterizing the confidentiality clause as "part and
parcel" of the Arbitration Agreement, asserts:
25
The confidentiality provision in Pfizer's Arbitration Agreement is lawful and
enforceable based on this [Epic Systems] precedent. Similarly, a challenge to the
provision may not be based on a defense that would apply only to arbitration, would
derive its meaning from the fact that an agreement to arbitrate is at issue, or would
interfere with a fundamental attribute of arbitration. Interpreting the NLRA to dictate 30
whether arbitration proceedings may be confidential would do all three. [Italics in
original.]
Although the Respondent's brief bases this argument on the Supreme Court's Epic
Systems decision, for the reasons discussed above, I have concluded that this decision is 35
distinguishable on its facts and not controlling here. By prohibiting employee discussion and
disclosure of information about an arbitration or about an arbitrator's award, the confidentiality
clause prevents employees from exercising substantive rights granted by Section 7 of the
NLRA. In contrast, the prohibition at issue in Epic Systems - denying employees the right to
use class action procedures - did not have any impact on a Section 7 right because the Court 40
held that no such right to use class action procedures existed.
The Supreme Court has not yet addressed the situation considered here, where a
prohibition in an arbitration agreement does interfere with the exercise of indisputably real,
long-established Section 7 rights. The present facts would present to the Court a case of first 45
impression requiring an analysis beyond the scope of the Epic Systems decision.
JD-30-19
16
In addition to Epic Systems, the Respondent's brief also quotes the Supreme Court's
decision in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011), for the proposition
that the "saving clause" of the Federal Arbitration Act "offers no refuge for defenses that apply
only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at
issue." 5
However, there is a crucial difference between the facts in AT&T Mobility LLC v.
Concepcion and the facts here. Just as Epic Systems did not involve a conflict between language
in an arbitration agreement and a substantive statutory right, neither does AT&T Mobility LLC
v. Concepcion. The people affected by the arbitration agreement in this latter case were not 10
employees but rather customers, who were contesting a provision in a cellphone contract which
required the arbitration of claims on an individual basis, excluding class actions. In Epic
Systems, the employees had claimed that Section 7 gave them a right to class action procedures
- a claim that the Court rejected - but in AT&T Mobility LLC v. Concepcion, the customers did
not even claim that such a law, protecting them as customers, granted a similar right. 15
Rather AT&T Mobility LLC v. Concepcion concerned the effects of a state court
precedent which voided, as unconscionable, agreements which prohibited class actions. The
Supreme Court held that the Federal Arbitration Act did not allow the state court precedent to
have the effect of insert into a provision allowing class actions into an arbitration contract when 20
the parties had not themselves agreed to it. In reaching this conclusion, the Supreme Court
noted that introducing class procedures into arbitration would create problems.
The Supreme Court has expressed a continuing concern about how requiring class action
procedures in arbitration would change arbitration's character, making it more unwieldy and 25
less desirable. However, the present case, unlike AT&T Mobility LLC v. Concepcion and Epic
Systems, does not involve any attempt to require class action procedures in arbitrations.
Another distinction is equally important and perhaps moreso. The present case, unlike
either AT&T Mobility LLC v. Concepcion or Epic Systems concerns a substantive civil right 30
granted by a federal statute, the right of workers to act in concert for their mutual aid or
protection. Additionally, as will be discussed at greater length below, this right furthers a strong
federal policy which, among other things, protects workers from exploitation by reducing the
inequality of bargaining power between employers and employees.
35
It is well established that an employer cannot lawfully require an employee, as a
condition of hire or continued employment, to waive this civil right, granted by Section 7 of the
NLRA. Indeed, an employer's mere attempt to condition employment on willingness to waive
a Section 7 right constitutes unlawful interference with the exercise of those rights. See, e.g.,
Aroostook County Regional Ophthalmology Center, 317 NLRB 218 (1995), enfd. 81 F.3d 209 40
(D. C. Cir. 1996)(unlawful to condition reinstatement on discharged employees' waiver of right
to discuss working conditions); Bethany Medical Center, 328 NLRB 1094 (1999)(unlawful to
condition employment on employees waiving right to engage in a further lawful walkout); Bon
Harbor Nursing & Rehabilitation Center, 348 NLRB 1062 (2006)(unlawful to require, as
condition of further employment, that employees promise not to engage in concerted protests 45
of working conditions); Beverly Health & Rehabilitation Services, 346 NLRB 1319
(2006)(unlawful to condition hire on employee's willingness to cross picket line); Retlaw
JD-30-19
17
Broadcasting Co., 310 NLRB 984 (1993), enfd. 53 F.3d 1002 (9th Cir. 1995) (unlawful to
condition employment on employee's waiver of right to invoke the protections of collective-
bargaining agreement); Senior Citizens Coordinating Council, 330 NLRB 1100 (2000)
(unlawful to condition further employment on employees' willingness to sign a retraction of
their prior protected, concerted activity). 5
For the reasons discussed above, I conclude that the Supreme Court's decisions in AT&T
Mobility LLC v. Concepcion and in Epic Systems can and must be distinguished.9 Because the
Court, in AT&T Mobility LLC v. Concepcion, did not have to consider, and did not consider, the effect
of a statutory right to discuss and publicly protest either working conditions or any other matter, the 10
Court's passing reference to confidentiality in the context of "streamlined procedures" cannot be
considered a holding that confidentiality should, under all circumstances, be considered a procedural
issue. Neither involves a substantive federal civil right which Congress granted employees as
part of a comprehensive federal policy.
15
Another reason also compels the rejection of the Respondent's argument that the
confidentiality clause's lawfulness cannot be judged by applying labor law standards. That
argument does not take into account that the confidentiality clause has a dual status. In addition
to its identity as a clause in the Arbitration Agreement, the clause also is an expression of the
Respondent's employment policy and a work rule. 20
(c) The confidentiality clause's dual identity
The text of the confidentiality clause does more than function as a term in a contract. It
also communicates a message to employees concerning what conduct the Respondent has 25
prohibited. In fact, the clause's language began performing this function well before the clause
became part of a purportedly binding contract. This important chronology will be discussed
further below, but first, another matter should be addressed: Does the text of the confidentiality
clause constitute an "employment policy" or "work rule" as those terms are used in the Board's
Boeing decision? 30

9 The Court's opinion in AT&T Mobility LLC v. Concepcion includes another statement which, at
first glance, may appear to support the Respondent's argument. The Court noted that the FAA's principal
purpose was to ensure that private arbitration agreements are enforced according to their terms. Doing
so gave contracting parties the opportunity to customize the arbitration procedure to fit their needs. The
Court stated:
The point of affording parties discretion in designing arbitration processes is to allow for
efficient, streamlined procedures tailored to the type of dispute. It can be specified, for example,
that the decisionmaker be a specialist in the relevant field, or that proceedings be kept
confidential to protect trade secrets.
563 US 333, slip op. at 10. The fact that the Court referred to confidentiality as an example of
"streamlined procedures" suggests that, in that instance at least, it classified confidentiality as a
procedural matter. However, AT&T Mobility LLC v. Concepcion concerned an arbitration clause in a
contract for cellphone service and not an arbitration agreement imposed as a condition of employment.
Section 7 of the NLRA grants rights to employees, but the cellphone customer was not the employee of
AT&T Mobility LLC, so the Section 7 right to discuss and disclose working conditions did not apply.
Moreover, the case did not involve a claim that any other law granted cellphone customers a substantive
right analogous to those granted to employees by Section 7 of the NLRA.
JD-30-19
18
As used in Boeing, the terms "work rule," "employment policy" and "employee
handbook provision" all appear to describe messages communicated by an employer which
typically meet these criteria: (1) The message informs employees about what conduct is
required or prohibited or sets work standards10 and (2) a failure to comply with the message
can subject an employee to discharge or other disciplinary action. The latter requirement does 5
not have to be spelled out in the particular message if, under all the circumstances, employees
reasonably would believe that a failure to obey the instruction could result in such
consequences. The factors would militate against a conclusion that employees reasonably
would believe that they could be disciplined for failure to obey the instruction.
10
The confidentiality clause plainly satisfies the first criterion because it communicates to
employees what conduct is required ("The parties shall maintain the confidential nature of the
arbitration proceeding and the award. . ."). The second question requires more detailed analysis:
Would employees reasonably believe, under the totality of circumstances, that discharge or
other discipline could result from a failure to "maintain the confidential nature of the arbitration. 15
. ."
The confidentiality clause itself does not state that an employee would be subject to
discharge or discipline if he or she revealed something about the arbitration. The record in this
case also includes an explanatory sheet which the Respondent provided to employees to answer 20
their "frequently asked questions." The explanatory material likewise does not raise the
possibility of disciplinary action for failure to abide by the confidentiality clause. These
However, other factors reasonably would lead employees to reach the opposite
conclusion, that they could be disciplined for disobeying the confidentiality clause. The rather 25
formal legal style of the clause and of the entire Agreement conveys the sense that it is of
consequence and should not be disregarded. Similarly, the fact that the Respondent imposed
the Agreement on almost all its unrepresented employees, nationwide, underscores the
importance of the policy to high-level corporate officials.
30
Respondent also made it clear to employees that they could not change the Agreement
in any respect. An employee's only option was to stay employed and thereby waive certain
legal rights or else quit. An employee reasonably would conclude that if continued employment
is conditioned on agreeing to the terms of the Agreement, then disclaiming the Agreement -
informing management that the employee decided not to be bound by it - would lead to the 35
employee's discharge. If an employee's unwillingness to agree necessitated termination of
employment, the employee reasonably would conclude that disobeying the policy carried at
least some adverse consequences.
One additional factor should be considered: Would the fact that the confidentiality 40
clause appears in the Arbitration Agreement rather than, for example, in an employee manual,
lead employees reasonably to believe that it did not constitute a rule binding on them?

10 The Board observed in Boeing that "Most work rules, employment policies, and employee
handbook provisions exist for the purpose of permitting employees to understand what their employer
expects and requires." The Boeing Co., 365 NLRB No. 154, slip op. at 14.
JD-30-19
19
When evaluating the lawfulness of a statement made by an employer to its employees,
the Board considers what effect the message reasonably would have on employees' willingness
to exercise the rights guaranteed in Section 7 of the NLRA? How the employer characterizes
the message isn't determinative. Even a supposed "joke" will violate the Act if it reasonable 5
would chill employees' exercise of their Section 7 rights. Meisner Electric, Inc., 316 NLRB
597, 599 (1995); Ethyl Corporation, 231 NLRB 431, 434 (1977) ("It is well established that the
coercive and unlawful effect of a statement is not blunted merely because. . . accompanied by
laughter or made in an offhand humorous way.") Likewise, considering the totality of
circumstances, I conclude that the coercive effect of the confidentiality clause would not be 10
blunted by the fact that it appears as part of a document titled "Mutual Arbitration and Class
Waiver Agreement" and under the subtitle "Confidentiality."
Considering all the factors discussed above from the employees' point of view, and
applying an objective standard, I conclude that employees reasonably would view the 15
confidentiality clause, and its instruction to "maintain the confidential nature of the arbitration,"
as binding upon them. Further, I conclude that employees reasonably would believe that they
could be subject to disciplinary action for disclosing to the public how an arbitrator treated
grievants. Likewise, they reasonably would believe that they might be disciplined if they
disclosed to the public the contents of the arbitrator's award, even though the award clearly 20
would affect terms and conditions of employment.
In these circumstances, employees reasonably would understand the confidentiality
clause to state a "work rule," as that term is used in the Boeing decision. See Professional
Janitorial Service of Boston, Inc., 363 NLRB No. 35, slip op. at 2 (2015).1125
Likewise, the confidentiality clause aptly could be characterized as an "employment
policy." The record indicates that the Respondent alone made the decision to prohibit
employees from revealing to the public information about an arbitration. The fact that the
Respondent conveyed this policy to its employees as part of the Arbitration Agreement, rather 30
than posting it on a bulletin board or printing it in a handbook, does not change the message
communicated.
For these reasons, I conclude that the confidentiality clause constitutes a work rule and
employment policy as those terms are used in Boeing. Thus, the clause does not exist solely as 35
a part of the Arbitration Agreement but also serves a separate function, communicating to
employees that they are prohibited from disclosing information about arbitration to the public.
The clause has a dual identity.

11 In Professional Janitorial Service the Board held that "the Respondent's mandatory Arbitration
Policy is a work rule properly analyzed under the test set forth in Lutheran Heritage Village–Livonia,
343 NLRB 646 (2004)." Although the Board later, in Boeing, replaced the Lutheran Heritage Village–
Livonia analytical framework with a fresh one, the Boeing decision doesn't affect the Board's conclusion
in Professional Janitorial Service that the arbitration policy was, in fact, a work rule subject to
evaluation under the standards established for work rules.
JD-30-19
20
Moreover, the clause existed as a statement of employment policy and work rule well
before it existed as a contract clause. Paragraph 7(h) of the Respondent's Arbitration Agreement
states, in part:
If you begin or continue working for the Company sixty (60) days after receipt of this 5
Agreement, even without acknowledging this Agreement, this Agreement will be
effective, and you will be deemed to have consented to, ratified and accepted this
Agreement through your acceptance of and/or continued employment with the
Company.
10
Thus, no binding contract exists for the first 60 days after an employee receives the
Agreement. But even though the text of the confidentiality clause is not binding as a contract
during this time, it does exist as a statement of the Respondent's employment policy and as a
work rule. Employees clearly know about this work rule because each has received a copy of
it, and, for the reasons discussed above, they reasonably would believe that disobeying the rule 15
could result in discipline. Therefore, if the message reasonably communicated by the clause's
text violates Section 8(a)(1), the violation begins before the formation of any contract. It starts
when the employee receives the rule and learns that he may not discuss or disclose information
about an arbitration or an arbitrator's award.
20
The Respondent contends that the clause's status as "part and parcel" of the Arbitration
Agreement prevents the Board from judging its lawfulness under labor law standards, but
during the 2-month period after an employee receives and is aware of the clause's language, no
contract exists. Even assuming, for the sake of analysis, the correctness of the Respondent's
argument that the clause's status as part of an arbitration agreement insulates it from Board 25
scrutiny, that reasoning could not apply to the 60-day period during which no contract was in
effect.
Thus, nothing precludes the Board from exercising its authority during this 2-month
period.12 Likewise, during this period before the Arbitration Agreement, by its own terms, 30
becomes effective, no impediment exists which even arguably would preclude the Board from
applying labor law standards to judge the lawfulness of the prohibition expressed by the clause.
Should the Board determine that the message reasonably communicated by the language
of the confidentiality clause violates Section 8(a)(1), the Board certainly can order the 35
Respondent to undo the harm caused when the clause was promulgated by rescinding the clause
as a statement of employment policy and work rule. Similarly, nothing prevents the Board from
including in its remedial order the customary requirement that a respondent not commit "like
or related" violations in the future. Thus barred from re-promulgating the message, the
Respondent could not incorporate it into an arbitration agreement and require an employee to 40
be bound by it.

12 The Respondent promulgated the confidentiality clause on or about May 5, 2016. The Charging
Parties filed their respective unfair labor practice charges on May 9, 2016, and May 11, 2016, well
within the 6–month limitation period set forth in Section 10(b) of the Act.
JD-30-19
21
In sum, when acting upon a suitably timely charge, which is the case here, the Board
possesses and exercises authority to remedy an unfair labor practice from its inception and to
order a respondent to restore the conditions which would have existed had the unfair labor
practice not occurred. Therefore, even assuming for the sake of analysis the correctness of the
Respondent's argument - that the Board may not apply labor law standards to judge a clause 5
clothed in an arbitration agreement - that premise does not prevent the Board from examining
the clause when it stands naked, before the formation of such an agreement.
(d) No Waiver
10
The Respondent may argue that when the Arbitration Agreement takes effect as a
binding contract, it renders irrelevant the fact that for the previous 60 days, the confidentiality
clause had served as a statement of employment policy which communicated to employees the
message that the Respondent did not permit them to discuss or disclose information about an
arbitration of a work-related dispute. This argument rests on an assumption that the Arbitration 15
Agreement effects a waiver of employees' Section 7 right to engage in such activity. Absent a
waiver, the Section 7 right continues to protect the employee's right to discuss and disclose
information about an arbitration and/or arbitral award. However, for the following reasons, the
Arbitration Agreement did not effect a waiver.
20
The principle articulated by the Supreme Court in Mitsubishi Motors Corp v. Syler
Chrysler-Plymouth, Inc., above, that, by agreeing to arbitrate a statutory claim, a person does
not forgo the substantive rights afforded by a statute, does not rule out the possibility that a
waiver might truly be voluntary. However, as noted above, it is well established that an
employer cannot force an employee to give up a Section 7 right and even an attempt to compel 25
such a waiver constitutes unlawful interference or whether the employer has placed some other
form of unlawful pressure on the employee to achieve that end, there is more at stake than just
the harm to that one employee. The Board is enforcing a public right granted by Congress in a
statute which sets federal labor policy for the entire country.
30
Indeed, to be voluntary, the decision to give up a Section 7 right must be made not only
in an environment free of coercion and duress. However, the Respondent placed its employees
under considerable coercion and duress by telling them, in effect, that they could not continue
to work without thereby agreeing to the terms of the Arbitration Agreement. This implied threat
of job loss created an environment in which an employee could not make a truly voluntary 35
choice.
Additionally, the record does not establish that employees ever knowingly chose to
waive this right. To make such a deliberate choice, employees first would have to know that
they possessed the right to discuss and disclose working conditions, including those pertaining 40
to arbitration, and then decide to give it up. Although a labor lawyer would understand that
Section 7 necessarily included the right to discuss and disclose information about working
conditions, because without such discussion employees could not concertedly engage in other
protected activities, such an understanding cannot be imputed to employees who do not have
this legal training. 45
JD-30-19
22
The record does not establish that employees even were aware they possessed the
Section 7 right to discuss and disclose their conditions of employment, including information
about work-related arbitrations. Neither the Arbitration Agreement itself nor the explanatory
material which Respondent provided informed employees about this Section 7 right. Likewise,
neither the Arbitration Agreement nor the explanatory material informed employees that they 5
were free to discuss and disclose information about an arbitration and arbitral award and that
they would not be disciplined for doing so. The record does not indicate that the Respondent
otherwise communicated to employees that they would not be subjected to discharge or
discipline for discussing or disclosing information about work-related arbitrations and I
conclude that the Respondent did not do so. 10
In sum, the record does not establish either that employees knew about their Section 7
right to discuss and disclose information about this condition of employment or knowingly
made a choice to give up that right. Therefore, I conclude that they did not.
15
Congress entrusted to the Board the responsibility of administering the NLRA and, over
many years, the Board has created a body of precedent concerning when a purported waiver of
a Section 7 right is effective. It is appropriate to follow the Board's precedent here and I do
so.13 However, the Executive is not speaking with two voices here. Moreover, when the Board
decides whether a right granted by the NLRA has been waived, it acts exclusively within its own area 20
of expertise.
The Arbitration Agreement did not specifically inform employees that they would be
waiving a right and it did not require employees to sign the document or take any other
affirmative action to indicate that they agreed with it. They only had to continue doing what 25

13 It might be argued that the Supreme Court's decision in Epic Systems called into question the
principle that the Board's experience enforcing the NLRA gives its interpretation of that Act more weight
or makes Board precedents more authoritative. More specifically, in Epic Systems, the Court considered
and rejected the argument that the Board's conclusion – that Section 7 granted employees certain
procedural rights – warranted deference under Chevron U. S. A. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).
In Chevron, the Court had held that when Congress, in writing a particular statute, did not
directly address a particular issue, and the administrative agency administering this statute had made a
decision about how the law applied to this issue, then the Court will defer to this interpretation if it is
"permissible." However, in Epic Systems, the Court cited a number of reasons for declining to apply
Chevron.
Although a government agency develops expertise interpreting the statute it administers, there
is less reason to respect an agency's interpretation of some other statute outside its sphere of experience.
In Epic Systems, the Court concluded that the Board was trying to interpret not only the NLRA but also
the Federal Arbitration Act, a statute it did not administer, and about which it had no special expertise.
The Court also observed that the Board and the Solicitor General were advancing two conflicting
interpretations of the law and, therefore, "the Executive seems of two minds." An argument for deferral
"on grounds of political accountability," the Court stated, surely "becomes a garble when the Executive
speaks from both sides of its mouth, articulating no single position on which it might be held
accountable." Epic Systems Corp. v. Lewis, 584 U.S. ___, slip op. at 20.
JD-30-19
23
they had done before, namely, come to work rather than quit. However, to be effective, the
waiver of a Section 7 right must be clear and unequivocal.
This principle applies generally to all purported waivers of rights created by the Act,
and is not limited to situations involving arbitration. For example, it applies to a purported 5
waiver by an employee of a grievance claim for lost earnings. International Total Services, 280
NLRB 576, 580 (1987). It applies to an employee's statutory right to refrain from financially
supporting a union. Automotive and Allied Industries Local 618 (Sears, Roebuck & Co.), 324
NLRB 865, 867 (1997). It applies to the purported waiver of an employee's statutory right to
wear union emblems. Albertsons, Inc., 300 NLRB 1013, 1017 (1990). It also applies to a 10
purported waiver by a union of the right to bargain over terms and conditions of employment.
Rockwell International Corporation, 260 NLRB 1346 (1982); TCI of New York, 301 NLRB
822, 824 (1991). Likewise, it applies to a claim that a union waived its right to received
information relevant to and necessary for it to perform its duties as exclusive bargaining
representative. Quality Building Contractors, 342 NLRB 429, 432 (2004). Similarly, it applies 15
to a purported waiver of the right to honor a picket line or engage in a sympathy strike. Keller-
Crescent Company, 217 NLRB 685, 687 (1975).
In the present case, the record does not even suggest, let alone establish, that any
employee said to the Respondent "I am waiving this right" or communicated that message to 20
the Respondent in any manner. Merely continuing to work is such an ordinary, everyday
experience that it does not signal any intent to waive such a right. There is no assurance that
an employee who received the Respondent's Arbitration Agreement even read its paragraph
7(h), which provided that continuing to work for 60 days resulted in the Agreement taking
effect. 25
In these circumstances, merely continuing to work does not evince any intention to
waive the Section 7 right. It certainly does not constitute the clear and unequivocal
manifestation of intent which is necessary, under the Board's precedents, to effect a waiver.
30
The record does not include any other evidence suggesting that any employee waived a
Section 7 right. Therefore, I find that no employee did so.
Because no employee waived the right to engage in activity protected by Section 7 of
the Act, all employees retained the right to discuss and disclose information about arbitrations 35
and arbitral awards. Yet employees reasonably would understand the language in the
confidentiality clause to mean that they did not possess this right. Thus, the confidentiality
clause would lead employees to believe something that was untrue. The extent to which this
incorrect belief interferes with the exercise of Section 7 rights and whether such interference
violates Section 8(a)(1), will be addressed later in this decision. 40
(e) Contractual Form Does Not Shield Language
The argument that otherwise violative language becomes immune when imposed on
employees in a contract rests on the improbable assumption that Congress intended to allow its 45
laws to be circumvented so conveniently. The Supreme Court rejected that notion in 1940 in
National Licorice Co v. NLRB, above, in which the Court stated:
JD-30-19
24
Obviously employers cannot set at naught the National Labor Relations Act by inducing
their workmen to agree not to demand performance of the duties which it imposes. . .
National Licorice Co v. NLRB, 309 U.S. at 364. In J. I. Case Co v. NLRB, 321 U.S. 5
332, 337 (1944) the Court similarly observed: "Wherever private contracts conflict with its
functions, they obviously must yield or the Act would be reduced to a futility." Moreover, in
Kaiser Steel Corp v. Mullins, 455 U.S. 72, 77 (1982) the Supreme Court stated: "There is no
statutory code of federal contract law, but our cases leave no doubt that illegal promises will
not be enforced in cases controlled by the federal law."10
Additionally, in Kaiser Steel Corp v. Mullins, the Court noted that it was well
established "that a federal court has a duty to determine whether a contract violates federal law
before enforcing it" and then, quoting Hurd v. Hodge, 334 U.S. 24, 34–35 (1948), stated:
15
The power of the federal courts to enforce the terms of private agreements is at all times
exercised subject to the restrictions and limitations of the public policy of the United
States as manifested in . . . federal statutes. . . . Where the enforcement of private
agreements would be violative of that policy, it is the obligation of courts to refrain from
such exertions of judicial power. 20
Kaiser Steel Corp v. Mullins, 455 U.S. at 83–84 (italics added; internal quotation marks
omitted).
A public policy of the United States, manifested in a federal statute, clearly condemns 25
an employer's use of its superior power to force employees, as a condition of employment, to
sign away their right to engage in concerted activities for their mutual aid or protection.
Congress expressed this public policy in the Norris-LaGuardia Act, which it enacted 3 years
before the NLRA. Section 103 of the Norris-LaGuardia Act states, in part:
30
Any undertaking or promise, such as is described in this section, or any other
undertaking or promise in conflict with the public policy declared in section 102 of this
title, is declared to be contrary to the public policy of the United States, shall not be
enforceable in any court of the United States and shall not afford any basis for the
granting of legal or equitable relief by any such court. . . 35
29 U.S.C. § 103 (italics added). Section 102 of that Act states, in part:
Whereas. . .the individual unorganized worker is commonly helpless to exercise actual
liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable 40
terms and conditions of employment. . . it is necessary that he. . . shall be free from the
interference, restraint, or coercion of employers of labor, or their agents, in the
designation of such representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection;
therefore, the following definitions of, and limitations upon, the jurisdiction and 45
authority of the courts of the United States are enacted.
JD-30-19
25
29 U.S.C. § 103 (italics added). In other words, Congress declared it to be the public policy of
the United States that employees have the right, among others, to engage in concerted activities
for their mutual aid or protection. Moreover, in an employer required employees to agree to
give up such rights, Section 102 of the Norris-LaGuardia Act made such a contract
unenforceable. 5
Three years later, Congress went even further when it enacted the NLRA. In the law's
preamble, Congress again referred to the inequality of bargaining power, in Section 7 it granted
employees rights which included engaging in concerted activity for their mutual aid or
protection, and in Section 8(1)14 it made interference with those rights unlawful. The public 10
policy which animates the NLRA thus is quite similar to, and consistent with, that manifested
by the Norris-LaGuardia Act.
When the Court, in Epic Systems, held that Section 7 of the NLRA did not grant
employees an entitlement to use class action procedures, it stated that the Norris-LaGuardia Act 15
did not mandate a different result:
[T]he Norris-LaGuardia Act adds nothing here. It declares “[un]enforceable” contracts
that conflict with its policy of protecting workers' “concerted activities for the purpose
of collective bargaining or other mutual aid or protection. ” 29 U.S.C. §§102, 103. That 20
is the same policy the NLRA advances and, as we've seen, it does not conflict with
Congress's statutory directions favoring arbitration. See also Boys Markets, Inc v. Retail
Clerks, 398 U.S. 235 (1970) (holding that the Norris-LaGuardia Act's anti-injunction
provisions do not bar enforcement of arbitration agreements).
25
Epic Systems v. Lewis, 584 U.S. ____, slip op. at 15-16. However, in Epic Systems, the Court
held that Section 7 of the NLRA did not grant employees a right to use class action procedures.
In other words, filing a class action was not a "concerted activity for mutual aid or protection"
within the meaning of Section 7 of the Act.
30
Requiring an employee to agree to waive the right to file a class action did not interfere
with the employee's statutory right to engage in protected concerted activities for the simple
reason that filing a class action was no more a protected concerted activity than would be, for
example, eating broccoli. If an employer made an employee agree, as a condition of
employment, not to eat broccoli, it would not transgress the Norris-LaGuardia Act. For the 35
same reason, it would not implicate that statute to require an employee to waive another "right"
not found in Section 7, a claimed-but-illusory right to use class action procedures.
As the Court observed, the Norris-LaGuardia Act "adds nothing" to its analysis in Epic
Systems. Certainly, a statute which makes unenforceable a contract which interferes with 40
protected, concerted activity has no relevance in a case where there is no protected, concerted
activity. However, the present case, unlike Epic Systems, does involve protected, concerted
activity and, indeed, long-recognized protected, concerted activity of fundamental importance.

14 The Taft–Hartley Act in 1947 changed the name of Section 8(1) to Section 8(a)(1).
JD-30-19
26
Forbidding employees from talking about working conditions prevents them from deciding to
act in concert.15
Accordingly, in the present case, unlike Epic Systems, the Norris-LaGuardia Act adds a
great deal. It makes unenforceable a contract term which directly interferes with the employees' 5
ability to engage in well-established protected concerted activity which resides at the core of
the rights protected by Section 7 of the NLRA.
Enforcement of the confidentiality clause's prohibition on discussing and disclosing
information about a working condition would demean and diminish a strong public policy 10
which Congress manifested in both the Norris-LaGuardia Act and the National Labor Relations
Act. In both statutes, Congress addressed the great difference in bargaining power between
employer and employee. Vastly disproportionate power allowed an employer to compel
employees to sign away their rights or else lose their jobs.
15
Thus, in the Norris-LaGuardia Act, Congress observed that "the individual unorganized
worker is commonly helpless to exercise actual liberty of contract and to protect his freedom
of labor. . ." 29 U.S.C. § 103. Likewise, in the preamble to the National Labor Relations Act,
Congress refers to the "inequality of bargaining power between employees who do not possess
full freedom of association or actual liberty of contract and employers who are organized in the 20
corporate or other forms of ownership association. . ." 29 U.S.C. § 151.
When the Supreme Court upheld the constitutionality of the National Labor Relations
Act, it also noted the inequality of power:
25
Long ago we stated the reason for labor organizations. We said that they were organized
out of the necessities of the situation; that a single employee was helpless in dealing
with an employer; that he was dependent ordinarily on his daily wage for the
maintenance of himself and family; that, if the employer refused to pay him the wages
that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary 30
and unfair treatment; that union was essential to give laborers opportunity to deal on an
equality with their employer.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937). Thus, a strong public policy to
remedy the individual employee's inability "to leave the employ and resist arbitrary and unfair 35
treatment" has been manifested in two statutes and recognized by the Supreme Court. Yet such
an inequality of power can be discerned, alive and well, in the present facts. This

15 In Epic Systems, the Court found no manifestation of Congressional intent to grant employees
the right to class action procedures. Such an intent would have been highly unlikely when Congress
enacted the NLRA in 1935, when class action procedures did not even exist. Indeed, the Court noted
that Federal Rule of Civil Procedure 23 did not create the modern class action until 1966. Epic Systems
Corp. v. Lewis, 584 U.S. ____, slip op. at 11. In contrast, 3 years before the NLRA, Congress had
manifested its intent to protect the employees' right to engage in concerted activities for their mutual aid
or protection in the Norris–LaGuardia Act. The employees' right to engage in such concerted activities
has a long pedigree which the claimed right to class action procedures does not.
JD-30-19
27
disproportionate power is being wielded to destroy some of the very rights which Congress
created to corral it.
The Respondent doesn't try to disguise that it is exercising its power to grab employee
rights. It does not even require workers to sign any document memorializing that they are 5
giving up the right to engage in well-established protected activity. The Respondent just
communicates to employees, in rather formal and legalistic language, a message which boils
down to "if you keep working here those rights are gone."
Certainly, the Respondent did not force employees to make a choice as extreme as "your 10
money or your life." But telling them "your rights or your job" is sufficiently coercive to offend
public policy and to negate any argument that the waiver was voluntary.
It is not necessary here to decide whether the offense to public policy is so great that it
would invalidate the entire agreement under contract law principles. Rather, the issue before 15
me at this juncture concerns whether the employees have voluntarily waived any Section 7
right. For the reasons discussed above, I conclude that they have not.
This conclusion leads to the further conclusion that, notwithstanding the message that
the Respondent communicated to employees, they still possess those rights as well as all other 20
rights granted by Section 7 of the NLRA. Whether the message which the Respondent
communicated to employees interfered with the exercise of those rights enough to violate
Section 8(a)(1) of the Act will be discussed later in this decision.
(f) Respondent's "Fundamental Attribute" Theory25
The Respondent's brief also advances another theory, which it bases on the Supreme
Court's holding that the FAA's "saving clause" will not invalidate an agreement to arbitrate for
reasons "that target arbitration either by name or by more subtle methods, such as by
'interfere[ing] with fundamental attributes of arbitration. '" Epic Systems, 584 U.S. ___, slip op. 30
at 7. To make this argument, the Respondent first asserts that confidentiality is one of these
"fundamental attributes of arbitration." The Respondent then further contends that a Board
order requiring it to retract or rescind its confidentiality clause "would interfere with a
fundamental attribute of arbitration" and therefore run afoul of the Supreme Court's prohibition
against interfering with such attributes. 35
The Respondent's argument necessarily assumes that only contract law standards may
be used to judge whether the confidentiality clause violates Section 8(a)(1) of the NLRA.
However, for a number of reasons discussed in this decision, I reject that premise and conclude,
to the contrary, that the Board's Boeing framework should be followed. Additionally, the 40
Respondent's argument assumes a fact not in evidence, namely, that confidentiality is indeed, a
"fundamental attribute" of arbitration. The record simply lacks evidence to support such a
conclusion.
Of course, some facts are so generally and universally recognized that taking judicial or 45
administrative notice of them is appropriate. To qualify, such a fact either (1) must be generally
known within the trial court's territorial jurisdiction or (2) can be accurately and readily
JD-30-19
28
determined from sources whose accuracy cannot reasonably be questioned. See Rule 201(b),
Federal Rules of Evidence. The asserted fact in question does not meet either standard.
The rule allowing judicial notice to be taken of certain facts applies to noncontroversial
matters. However, the extent to which confidentiality is a fundamental attribute of arbitration 5
is not settled. See, e. g., Drahozal, "Confidentiality in Consumer Arbitration," 7 Y. B. Arb &
Mediation 28 (2015), addressing this controversy and discussing empirical data concerning the
frequency of confidentiality provisions in arbitration agreements.16
Additionally, since its establishment in 1935, the Board has acquired extensive 10
experience pertaining to grievance-arbitration clauses in collective-bargaining agreements, but
this experience teaches that not all collective-bargaining agreements include arbitration
provisions and that in those contracts which do, the specific language varies from agreement to
agreement. Therefore, making any generalization about confidentiality requirements would be
difficult and any such generalization, to be credible, must be based on evidence. 15
To support its argument that confidentiality is a "fundamental attribute" of arbitration,
the Respondent quotes a remark in Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379
F.3d 159, 175 (5th Cir. 2004) that "the plaintiffs' attack on the confidentiality provision is, in
part, an attack on the character of arbitration itself." The 5th Circuit made this comment in the 20
course of discussing whether a confidentiality provision made the arbitration agreement so
unconscionable as to be unenforceable, and the appellate court particularly was focusing on the
lower court's concern that the confidentiality provision prevented the development of precedent.
The 5th Circuit dismissed that concern, reasoning that if every arbitration were required to
produce a publicly available "precedential" decision on par with a judicial decision, then parties 25
contemplating arbitration would come to expect greater discovery, formal rules of evidence,
more extensive appellate review and other procedural features found in a judicial proceeding.
This context indicates that the appellate court, when it commented that an attack on
confidentiality amounts to "an attack on the character of arbitration itself," likely regarded 30
confidentiality as being an attribute of arbitration similar to informality and limited discovery,
common characteristics of arbitration which distinguish the process from litigation in court.
However, the question of whether confidentiality really is a fundamental attribute of arbitration
did not have to be decided to resolve the issues before the court, and the court's opinion does
not indicate either that it had received and considered evidence on this particular question or 35

16 The information in the cited article has not been relied upon to support any finding or conclusion
about confidentiality in arbitration other than that taking judicial or administrative notice is unwarranted
and, therefore, sufficient proof must be offered. Similarly, this decision relies on the Board's
institutional experience, discussed below, for no purpose except to note that the arbitration provisions
in collective bargaining agreements vary and, accordingly, any such generalization should be supported
by credible evidence.
JD-30-19
29
that it was deciding such an issue as a point of law. Therefore, the comment should be treated
as dicta rather than precedent.17
In arguing that confidentiality is a fundamental attribute of arbitration, the Respondent's
brief also analogizes confidentiality to Rule 408 of the Federal Rules of Evidence, which, the 5
Respondent contends, "protects from disclosure '[e]vidence of conduct or statements made in
compromise negotiations. '" However, it is not quite accurate to say that Rule 408 protects
statements made during settlement negotiations from disclosure. Rather, the rule makes such
evidence inadmissible. See, e.g., St. George Warehouse, Inc., 349 NLRB 870, 872–874 (2007).
The relevant Section 7 right here is not a supposed right to introduce an arbitration award into 10
evidence or to elicit testimony about what happened during an arbitration hearing but rather the
employees' right to discuss these matters and their right to make such information public as part
of a concerted attempt to gather support for changing such working conditions. Rule 408
applies only to testimony.
15
To buttress its argument that confidentiality is a fundamental attribute of arbitration,
the Respondent also points to restrictions on the disclosure of information about what transpires
during a mediation. The Respondent even cites language from the online description of the
Board's alternative dispute resolution program. The Respondent's brief quotes this description
as stating that an experienced mediator would be provided "to facilitate confidential settlement 20
discussions. . ." However, by conflating arbitration with mediation, the Respondent's argument
misses the mark. Although both can be categorized as means of alternative dispute resolution,
arbitration differs materially from mediation both in goals and methods.
A mediator tries to get conflicting parties to agree to a compromise resolving the 25
conflict. To achieve that goal, the mediator seeks frank information about what each party must
obtain to reach agreement and what each party is willing to give up. However, negotiators, like
poker players, shy away from revealing too much. To encourage candor, a mediator tries to
create an environment in which each side can speak to the mediator privately, trusting that the
mediator will keep what is said secret. Thus, confidentiality is conducive to confiding and in 30
some cases is essential to the mediator's efforts to settle a dispute.
However, if the parties fail to reach a settlement, a mediator cannot decide disputed facts
or fashion and impose an outcome. An arbitrator has such authority but a mediator does not.
35
Unlike a mediator, an arbitrator typically does not meet alone with one party or the other
to elicit confidential information. An arbitrator performs essentially a judicial function, hearing
testimony when both sides are present to examine the witness. The same ethical strictures
which discourage a judge from having an ex parte conversation with one side apply with equal
force to an arbitrator. 40

17 Additionally, Iberia Credit Bureau, Inc v. Cingular Wireless LLC concerned a commercial
arbitration. As discussed below, there is a greater need for confidentiality in commercial arbitration
than in employment arbitration.
JD-30-19
30
Because an arbitrator functions as a substitute for a judge and acts in the judge's place,
the amount of confidentiality necessary to perform this function is the same whether the case is
being presented to an arbitrator or a judge. However, court proceedings almost always are open
to the public and the sealing of records is an uncommon exception to the rule.18
5
Additionally, a claim that confidentiality is a "fundamental attribute of arbitration"
ignores the important distinction between employment arbitration and commercial arbitration.
Both employment and commercial arbitration are in the same genus but they are distinct and
different species which should not be conflated. The reasons why the parties to commercial
arbitration may need confidentiality do not exist in employment arbitration. 10
The parties in a commercial arbitration typically are businesses disputing the meaning
of some provision in a contract they had entered. Such contracts may reveal trade secrets or
contain other sensitive proprietary information of interest to competitors.
15
By comparison, issues in an employment arbitration typically involve questions such as
whether an employee violated an attendance or other work rule, whether the employee's job
performance met production standards, whether the employee received agreed-upon
compensation for working overtime, whether an employee was laid off in accordance with the
negotiated seniority system, or whether an employee was discharged for good cause. The 20
arbitration of such issues rarely requires the disclosure of trade secrets or proprietary business
information.
In the present case, the types of information which might be revealed in an arbitration
can be inferred, to a considerable extent, from the Respondent's Arbitration Agreement itself. 25
This Agreement requires that claims arising under the following statutes, among others, be
arbitrated rather than tried in court: The Fair Labor Standards Act, Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Worker Adjustment and
Relocation Notification Act, the Equal Pay Act, the Americans With Disabilities Act, and the
Family and Medical Leave Act. 30
It would appear unlikely that arbitration of disputes arising under any of these statutes
would often require the disclosure of a trade secret or other proprietary information useful to
competitors. Similarly, with the exception of claims arising under the Americans With
Disabilities Act, such arbitrations ordinarily would not be expected to involve particularly 35
sensitive information.
Evidence relevant to a dispute arising under the Americans With Disabilities Act
typically would include sensitive medical records. However, both judges and arbitrators
possess authority to seal records and to order that documents be redacted before introduction 40

18 The Sixth Amendment to the United States Constitution provides that in all criminal
proceedings, "the accused shall enjoy the right to a speedy and public trial." Although the Seventh
Amendment does not afford civil litigants an analogous specific right to a public trial, the public's
traditional access to courtrooms is so longstanding, and so important to democratic processes, that
openness, not secrecy, might fairly be called a "fundamental attribute" of civil litigation.
JD-30-19
31
into the record. Likewise, both judges and arbitrators can narrowly tailor such orders to meet
the specific needs of the parties.
Significantly, disputes arising under all of the listed statutes would, in the absence of an
arbitration agreement, be tried in court, which is open to the public except under uncommon 5
circumstances. As noted above, proceedings in open court are the rule and exhibits introduced
into evidence typically are public.
The fact that courts ordinarily resolve employment-related cases in open trials, using
protective orders sparingly but when necessary, strongly suggests that a broad confidentiality 10
provision blanketing the entire arbitration process is not essential to the arbitration of
employment-related disputes. Accordingly, the accuracy of the assertion that blanket
confidentiality is a "fundamental attribute" of employment arbitration is hardly self-evident.
Rather, it requires proof, which the present record lacks.
15
Because the Respondent's argument depends on a premise which is both unproven here
and open to serious question, the argument must be rejected.
(g) Other Considerations
20
The prohibition of discussion and disclosure which the confidentiality clause
communicates to employees directly affects their willingness to exercise the rights granted by
Section 7. It would appear quite reasonable to conclude that an analytical framework designed
specifically to assess such impact would identify and rely upon the most relevant and accurate
information for determining whether the detrimental effect rises to the level of a Section 8(a)(1) 25
violation. Nonetheless, the Respondent argues that the Board may not use such a standard but
instead, must base any decision about the prohibition's lawfulness on general principles of
contract law.
Both logic and common sense balk. Contending that only contract law standards may 30
be applied in determining whether a statement violates labor law seems too much like saying
that the safety of a watch with a radioactive radium dial must be judged by determining whether
the watch keeps good time.
A common law standard used to determine whether or not an enforceable contract exists 35
fits poorly, if at all, the task of determining whether certain conduct impinges unlawfully on the
exercise of statutory rights. The issue here does concern conduct, not contract. The conduct
involves wielding words rather than a physical object but nonetheless it is an action:
Promulgating and continuing to communicate a message to employees which reasonably would
chill the exercise of the substantive rights granted by Section 7 of the NLRA.1940

19 The complaint in this case alleges that the Respondent both promulgated and maintained the
confidentiality rule. Maintaining an unlawful rule constitutes continuing conduct, regardless of whether
the communication continues because a copy of the rule remains posted on a bulletin board, or because
the text remains printed in the employee handbook, or because the rule appears as a clause in a document
labeled "contract" or "agreement" which remains in force.
JD-30-19
32
The Respondent contends, in effect, that the words communicating the prohibition enjoy
a special, privileged status because they appear in a document called an "arbitration agreement"
rather than in some other place. However, this document is merely the means of communicating
the message. Just as radium remains radioactive, and harmful, regardless of how it comes into 5
contact with a person, a message which unlawfully interferes with the exercise of Section 7
rights causes the same harm no matter how communicated. If such a message causes harm
when posted on a bulletin board or printed in a handbook, it will have the same deleterious
effect when conveyed to employees in a document labeled "agreement."
10
It is true that radium would be less dangerous if wrapped in lead which prevented the
radioactivity from coming into contact with anyone. However, the Respondent has not
established that placing the prohibition in an "arbitration agreement" somehow shields
employees from the harmful effect on Section 7 rights which the prohibition causes. If
anything, placing the prohibition in a formal legal document arguably dignifies it and increases 15
its potence rather than the opposite.
The amount of danger posed by a particular radium sample must be assessed with an
instrument designed for that purpose, such as a geiger counter. A tape measure won't do.
Likewise, only precedents under the National Labor Relations Act provide a proper framework 20
for assessing the extent of harm caused to the substantive rights which that law grants.
Test must consider the total circumstances
The impact of the prohibition on employees' willingness to exercise their Section 7 25
rights depends on all the circumstances, and the Board's analytical framework considers them
all. The contract law analysis urged by the Respondent does not.
At the time courts developed the common law standards for judging contract validity,
Congress had not yet enacted the NLRA. Those common law standards hardly could address 30
an issue that did not then exist. Moreover, even after Section 7 rights came into existence,
courts did not possess original jurisdiction to enforce the rights it granted, and therefore had
little reason to broaden the contract validity standards to include an analysis of the contract's
impact on those rights.
35
Therefore, it should surprise no one that the common law standards for contract
enforceability, which deal with the legal status of a document, do not take into account the fact
that the very act of informing an employee that he must waive Section 7 rights or else lose his
job, causes injury to those rights. Common law courts have no reason to consider this effect.
Their decisions about the validity of private agreements do not address the enforcement of a 40
public law or the purposes which Congress intended the law to serve.
Moreover, the harm does not begin at some later date when the agreement goes into
effect or when the validity of the agreement, as a contract, becomes an issue. The harm, and
therefore the violation, starts at the moment an employer informs the employee that he must 45
waive the Section 7 right to remain employed. This harm does not depend on whether or not
JD-30-19
33
the arbitration agreement is ever enforced or even on whether it ever becomes enforceable as a
contract.
The Supreme Court's decision in Epic Systems illustrates the stark truth that common
law contract standards, which crystallized well before Congress articulated policies protecting 5
workers, are indifferent to the values which Congress infused into the NLRA. In Epic Systems,
the Court assumed that the arbitration agreements were valid as contracts even though they
were "contracts of adhesion," forced on employees as a condition of continued employment.
For contract law purposes, it did not matter that one party to the "agreement" wielded
overwhelmingly disproportionate power. But when Congress saw such a power inequality 10
between employer and employee it did matter. It troubled the lawmakers so much that, very
deliberately, they rejected the common law model and replaced it with the system embodied in
the NLRA. See 29 U.S.C. § 151.
Congress sought to remedy the effects of this imbalance by granting employees a new 15
right. This right, to act collectively for the purpose of collective bargaining or other mutual aid
or protection, did not exist at common law.
Here, the Respondent argues that common law standards intended for another purpose
provide the only appropriate way to determine whether there is a violation of a statute which 20
Congress enacted to address a problem ignored by the common law. Such an argument lacks
neither irony nor disrespect for Congressional intent.
To support its argument, the Respondent cites the Supreme Court's decision in Epic
Systems, contending that the Court rejected the policies implicit in the NLRA in favor of the 25
cold calculus of the common law. In Epic Systems, the Court did not have to make such a
choice and did not. The Court did not hold that the contract law principles, applied to judge the
enforceability of an arbitration agreement, won out over a substantive right granted by Section
7 of the NLRA. Rather, the Court held that Section 7 did not create the supposed right in
question. The claimed right did not exist. 30
Were Epic Systems a boxing match, the bout would not end with a victorious FAA
standing over a fallen Section 7 right. No bonafide Section 7 right ever showed up in the ring.
Here, the Respondent's argument mistakenly assumes that, in Epic Systems, the FAA 35
did kayo Section 7. However, the Epic Systems decision set no such precedent. In fact,
considering how strongly the decision stressed that federal statutes should be construed to work
harmoniously, the Court clearly would have considered unsatisfactory an outcome in which one
law emerged victorious over the other. The Epic Systems decision teaches that, whenever
possible, two federal laws should be construed so that they never have to face each other in the 40
ring.
Accordingly, the Epic Systems decision does not signal that the Court was rejecting the
Congressional intent which resulted in enactment of the NLRA. To the contrary, in Epic
Systems the Court stressed that instead "of overriding Congress' policy judgments, today's 45
decision seeks to honor them." Epic Systems Corp v. Lewis, 584 U.S. ____, slip op. at 22.
JD-30-19
34
Here, the Congressional policy embodied in the NLRA should be honored rather than
ignored. This policy recognizes, and seeks to ameliorate, the imbalance of power between
employer and employee. This Congressional intent makes it altogether proper to take into
account what the common law ignored, namely, that the Respondent used its greater power to
impose on employees a prohibition which affected their exercise of Section 7 rights. Even if 5
an exploitation of superior power weighs little in a common law analysis of whether the
arbitration agreement is an enforceable contract, it matters when applying the statute which
Congress enacted to address this inequality.
The issue to be decided here does not depend on whether the words in the Arbitration 10
Agreement constitute an enforceable contract any more than it depends on whether those words
rhyme. The alleged unfair labor practice does not arise from the formation of a contract but
from an earlier event, the Respondent's communication of a message to employees which
affected their willingness to exercise the rights granted them by Section 7 of the NLRA. The
Respondent communicated this message by delivering it to each employee as a clause in the 15
Arbitration Agreement, but conveying the message in this manner does not make it any less
potent than it would have been had the employees received it in some other form, such as in an
employee handbook.
As already noted, Section 7 grants substantive rights which an employee cannot be 20
compelled to waive. Such rights would be hollow and ineffectual, nothing but words on paper,
if employers could abrogate them by fiat, by telling employees, in effect, that if they didn't agree
to the abrogation they had to quit. See National Licorice Co v. NLRB, above. Labeling a policy
a "clause" in a contract neither changes nor escapes the reality that the clause's text
communicates to employees a message discouraging them from exercising their Section 7 25
rights. Reality matters.
In reality, the Respondent both composed and imposed the language in the
confidentiality clause unilaterally, and the Respondent retains authority to rescind or modify
that language, and the policy it reflects, at any time. It alone bears responsibility for whatever 30
effects the language produces on the exercise of Section 7 rights. If the Respondent's
employment policy interferes with the exercise of rights granted by Section 7, it makes no
difference whether the Respondent expresses this policy as a clause in an arbitration agreement
or publishes it to employees some other way.
35
The allegedly unlawful action consisted of interfering with employees' Section 7 rights
and the "arbitration agreement" was merely the tool wielded to accomplish the interference.
Asserting this document as a defense is a bit like a burglar saying, "Don't blame me, it was the
crowbar."
40
Mandate to harmonize statutes
Accepting the Respondent's argument would require me to disregard a principle already
noted above, a tenet which the Supreme Court stressed more than once in its Epic Systems
decision: Laws should be interpreted in a way which harmonizes them rather than in a way 45
which pits one against another.
JD-30-19
35
In the second paragraph of its Epic Systems decision, the Court stated that it "is this
Court's duty to interpret Congress's statutes as a harmonious whole rather than at war with one
another." Epic Systems Corp v. Lewis, 584 U.S. ____, slip op. at 2. Likewise, in the concluding
paragraph of the majority opinion, the Court observed: "Because we can easily read Congress's
statutes to work in harmony, that is where our duty lies." Id., slip op. at 25. 5
The Court's articulation of this tenet at both the start and conclusion of its analysis
underscores the principle's alpha-to-omega importance when interpreting how two different
federal laws should interact. Contrary to this principle, the Respondent's argument puts both
the Federal Arbitration Act and the National Labor Relations Act in the ring and orders them to 10
come out fighting.
The Respondent argues for an interpretation allowing arbitration agreements to be used
as safe havens for the expression of employment policies and work rules which, if
communicated in some other manner, would be subject to labor law. If the Respondent can 15
poke such a hole in the coverage of Section 7, it likely will get larger over time as lawyers
become increasingly creative in drafting arbitration agreements. However, just as the NLRA
should not be interpreted in a manner which interferes with the FAA, that law should not be
interpreted in a way that reduces the existing scope of the NLRA and its protection.
20
Summary of Conclusions Regarding Preliminary Matters
In sum, for the reasons discussed above, I conclude that rights arising under Section 7
are substantive rather than procedural, thereby distinguishing the present case from Epic
Systems. Because Section 7 rights are substantive, the Respondent cannot require employees 25
to waive them as a condition of keeping their jobs.
Additionally, for the reasons discussed above, I reject the Respondent's arguments that
the FAA deprives the Board of authority to assess the lawfulness of the confidentiality clause
under the NLRA and also Respondent's related argument that the lawfulness of the 30
confidentiality clause may only be judged by applying the principles used at common law to
determine the enforceability of a contract. To the contrary, I conclude that the Board may,
consistent with Epic Systems and other Supreme Court precedent, judge whether the
confidentiality clause interferes with, restrains or coerces employees in the exercise of their
Section 7 rights. Further, I conclude that in doing so, it is appropriate to apply the standards 35
promulgated by the Board in The Boeing Company, above, and now turn to that task.
Lawfulness of the Confidentiality Clause
For the reasons discussed above, I have concluded that employees reasonably would 40
consider the confidentiality clause in the Respondent's Agreement to be a statement of
Respondent's employment policy and a work rule. Reading this text, employees also reasonably
would believe that they could be disciplined if they disclosed information about an arbitration
or the contents of the arbitrator's award. Because the confidentiality clause constitutes an
expression of employment policy and work rule, the Board's Boeing decision will guide this 45
analysis.
JD-30-19
36
It would appear likely that, under the standards in effect before the Board established
the new analytical framework in Boeing, the confidentiality clause in the Agreement would
have been found to violate Section 8(a)(1) of the Act. See, e. g., Professional Janitorial
Service, above,20 citing Rio All-Suites Hotel & Casino, 362 NLRB 1690 (2015) and Double
Eagle Hotel & Casino, 341 NLRB 112, 115 (2004), enfd. 414 F. 3d 1249 (10th Cir. 2005), cert,5
denied 546 U.S. 1170 (2006).
However, because the Board decided the cited cases before Boeing, a new analysis,
using the Boeing framework, is needed. That analysis appears below.
10
The Boeing Framework
Under the Board's previous, pre-Boeing standard, even when an employer's facially-
neutral employment policy did not expressly restrict Section 7 activity, and even when such a
policy had not been adopted in response to protected activity or applied to restrict protected 15
activity, it still might violate the Act if employees "would reasonably construe the language to
prohibit Section 7 activity." Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
In The Boeing Company, above, the Board determined that this "reasonably construe" standard
failed to give sufficient consideration to an employer's legitimate business reasons for
promulgating the allegedly violative rule or policy. 20
In the Boeing decision, the Board listed a number of other shortcomings of the precedent
then in effect, including that Lutheran Heritage Village-Livonia did not provide a framework
clear enough to predict whether a rule or policy would be found lawful or violative. After
extensive discussion of the problems inherent in the analytical process prescribed by Lutheran 25
Heritage Village-Livonia, the Board overruled that case's "reasonably construe" test and
promulgated a new standard for use in determining whether a facially-neutral rule or
employment policy violated the Act. The Board stated that, in making such a determination, it
would evaluate (i) the nature and extent of the potential impact the rule or policy had on NLRA
rights and (ii) the employer's legitimate justifications for the rule or policy. 30
The Board noted that it had a duty to strike the proper balance between asserted business
justifications and the infringement on employee rights. In formulating the new standard, the
Board placed particular emphasis on the need for clarity, so that employers and others applying
the test could reliably predict whether a rule or policy was lawful or unlawful. 35
To promote such clarity, the Board explained that application of the Boeing standard,
when analyzing the lawfulness of a particular rule or policy, will result in a determination that

20 A difference between Professional Janitorial Service and the facts in the present case should be
noted. In Professional Janitorial Service, the Board found the confidentiality policy to be unlawful
because it prohibited employee discussion of any "statements or information revealed during
arbitration." The confidentiality clause in the present case includes a sentence which states: "Nothing
in this Confidentiality provision shall prohibit employees from engaging in protected discussion or
activity relating to the workplace, such as discussions of wages, hours, or other terms and conditions of
employment." This sentence and its effect will be discussed below.
JD-30-19
37
the rule or policy falls into one of three categories. However, the Board stressed that these
categories are not themselves part of the test itself but exist to classify the results of the test.
Category 1 includes rules that the Board designates as lawful to maintain, either because
the rule,21 when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA 5
rights or because the potential adverse impact on protected rights is outweighed by justifications
associated with the rule. Clearly, a rule can wind up in this second "subcategory" only as the
result of balancing how severely the rule impinges on Section 7 rights with the importance of
the rule in furthering the employer's legitimate business interests.
10
Category 2 includes rules and policies that warrant individualized scrutiny in each case
to determine whether the rule or policy, when reasonably interpreted, would prohibit or interfere
with the exercise of NLRA rights and, if so, whether any adverse impact on NLRA-protected
conduct is outweighed by legitimate justifications.
15
Category 3 includes "rules that the Board will designate as unlawful to maintain because
they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights
is not outweighed by justifications associated with the rule. An example would by a rule that
prohibits employees from discussing wages or benefits with one another." The Boeing
Company, 365 NLRB No. 154, slip op. at 15. 20
As already noted, the categories are not part of the test itself but provide a kind of sorting
bin to classify the results. Therefore, it would be inappropriate to begin the analytical process
by looking at a rule or policy and making a snap judgment that it belongs in a particular
category. In some instances, such an improper shortcut would allow the judge to skip the 25
important step of considering a respondent's justifications for the rule and weighing those
justifications against the rule's impact on the employees' exercise of Section 7 rights.
Instead, I will take care to weigh both the nature and extent of the rule's potential impact
on NLRA rights and the legitimate justifications for such a rule. Moreover, during the analysis 30
I will keep in mind not only the need for clarity but the other considerations which the Board
deems especially important. The Boeing decision specifically recognizes that various activities
protected by Section 7 differ in importance. Some protected activities are central to the Act but
others are more peripheral. The Boeing framework also contemplates consideration of special
factors relating to the particular industry and work setting. Additionally, events which shed 35
light on the rule's impact on Section 7 rights, or on the employer's legitimate need for the rule,
may be taken into account.
In accordance with Boeing, I will evaluate the rule's impact on employee rights from the
employees' perspective. Additionally, I will be mindful of the guidance, in Boeing, concerning 40

21 For brevity, I use only the word "rule" but intend it also to refer to employment policies.
JD-30-19
38
when a rule having some impact on the exercise of Section 7 rights nonetheless lawfully may
be maintained.22
Lawfulness of Confidentiality Clause
5
(a) Consideration of the clause without the "limiting sentence"
The text of the confidentiality clause appears in full earlier in this decision. The clause
includes a "limiting sentence" which purports to make an exception allowing employees to
engage in certain protected activities. Here, I will begin by examining the clause's text except 10
for the sentence about protected activities. If the clause is lawful without inclusion of the
limiting sentence, it is appropriate to end the analysis at that point. However, if the clause is
unlawful without the limiting language, then it will be necessary to consider whether this
additional sentence has a saving effect.
15
The clause begins with the prohibition on disclosure which is central to its purpose, but
it does not use words such as "prohibit" or "forbid." Rather, it states: "The parties shall maintain
the confidential nature of the arbitration proceeding and the award, including all disclosures in
discovery, submissions to the arbitrator, the hearing, and the contents of the arbitrator's award.
. ."2320
Notwithstanding that the clause appears to impose a duty to keep secret rather than a
prohibition on disclosing, I conclude that employees reasonably would understand the message
to be that they are not allowed to discuss or disclose the arbitral award or other information
about the arbitration, such as what happened during the hearing. For reasons discussed above, 25
I further conclude that employees reasonably would believe that they could be disciplined for
disobeying this prohibition.
The arbitration process itself clearly is a condition of employment. Without repeating
the detailed discussion earlier in this decision, it may be noted that the Respondent specifically 30
made arbitration a condition of employment by informing employees that if they continued to
work, they would thereby have agreed to arbitrate (with a few exceptions) "all disputes, claims,
complaints, or controversies ('Claims') that you have now or at any time in the future may have
against Pfizer. . ."
35
It is well established and long recognized that employees have a Section 7 right to
discuss their terms and conditions of employment. See, e. g., Double Eagle Hotel & Casino,
341 NLRB 112 (2004)(rule prohibiting employees from discussing grievance/complaint
information, disciplinary information and other work-related matters unlawful); Aroostook

22 In Boeing, the Board also cautions that a rule which is lawful to maintain may still may be
invoked unlawfully in response to employees' protected activity. However, the present case does not
include any allegation concerning the unlawful application of an otherwise lawful rule.
23 The confidentiality clause continues by listing exceptions allowing disclosure when necessary
during litigation related to an arbitration. These exceptions do not relate to the employees' right to
discuss the details of the arbitration with each other or to disclose them to the public as part of a
concerted protest relating to working conditions. A sentence later in the clause, purporting to allow
employees to engage in protected activity, will be discussed below.
JD-30-19
39
County Regional Ophthalmology Center, above (restriction on discussion of grievances
unlawful); Hyundai American Shipping Agency, 357 NLRB 860 (2011)(finding unlawful a
blanket oral rule forbidding employee discussion of "any matter under investigation" by the
human resources department). See also Radisson Plaza Minneapolis, 307 NLRB 94 (1992),
citing Heck's, Inc., 293 NLRB 1111, 1119 (1989); Waco, Inc., 273 NLRB 746 (1984); Phoenix 5
Transit System, 337 NLRB 510 (2002). Because the Respondent has made arbitration a
condition of employment, and because the confidentiality clause prohibits employees from
discussing what happened during an arbitration, the clause clearly interferes with employees'
Section 7 rights. Unless the "limiting sentence" somehow saves it, the clause's prohibition on
discussion would violate Section 8(a)(1). 10
Section 7 not only grants employees the right to discuss working conditions among
themselves, but also the right to disclose those working conditions to the public as part of
concerted activity protesting those conditions. See Valley Hospital Medical Center, Inc., 351
NLRB 1250, 1252 (2007) (Section 7 protects employee communications to the public that are 15
part of and related to an ongoing labor dispute, including communications about labor disputes
to newspaper reporters), citing Allied Aviation Service Co. of New Jersey, Inc., 248 NLRB 229,
231 (1980), enfd. mem. 636 F.2d 1210 (3d Cir. 1980); Allstate Insurance Co., 332 NLRB 759,
765 (2000); Leather Center, Inc., above; Hacienda de Salud-Espanola, above; Compuware
Corp., above; St. Luke's Episcopal-Presbyterian Hospitals, Inc., above, and Case Farms of 20
North Carolina, above. Taking away this right reduces the effectiveness of other concerted
activity protected by Section 7. For example, if picketing employees could only put the words
"unfair wages" on their signs, but not inform the public of the actual wage rates, the bare claim
of unfairness would lose credibility. Moreover, the unsatisfactory nature of a working condition
often can be communicated to the public only by describing that condition and its effects. 25
Prohibiting employees from speaking publicly about working conditions cuts to the quick of
Section 7 and therefore, absent a legitimate and sufficient business justification, violates Section
8(a)(1) of the Act.
Accordingly, I conclude that, at least in the absence of the "limiting sentence," the 30
confidentiality clause restricts activity clearly protected by Section 7 and interferes with the
exercise of the substantive rights granted by that provision. The likelihood is great that such a
prohibition would violate Section 8(a)(1) of the Act, which makes it necessary to determine
whether the "limiting sentence" sufficiently removes the sting.
35
(b) Effect of “limiting sentence” on the clause's legality
Because I have concluded that the confidentiality clause would violate Section 8(a)(1)
in the absence of modifying language, I now must weigh the possibly redemptive effect of the
"limiting sentence." The Respondent's brief states, in part:40
The confidentiality clause only restricts the dissemination of "the arbitration proceeding
and the award, including all disclosures in discovery, submissions to the arbitrator, the
hearing, and the contents of the arbitrator's award. . . ." [Stipulation of Facts 7. ] Thus,
the confidentiality provision is limited to the arbitral proceeding and the information 45
and documents disclosed during the proceeding. The confidentiality provision also
JD-30-19
40
specifically disclaims any interpretation that would prohibit employees from exercising
their Section 7 right [to] discuss their terms and conditions of employment:
[Nothing in this Confidentiality provision shall prohibit employees from engaging in
protected discussions or activity relating to the workplace, such as discussions of wages, 5
hours, or other terms and conditions of employment.]
However, the Respondent's argument falls short in two respects. First, employees
reasonably would not understand the "limiting sentence" quoted above to allow them to discuss
an arbitration proceeding or an arbitral award but, to the contrary, reasonably would conclude, 10
after reading the confidentiality clause including the "limiting sentence," that the Respondent
did not allow them to discuss these subjects. Second, employees reasonably would not
understand the "limiting sentence" to allow them to present information about an arbitration to
the public as part of a concerted protest of that condition of employment.
15
(1) Employees would not reasonably understand the "limiting sentence" to
allow discussions about an arbitration proceeding or award
To determine what effect an employer's communication to employees has on the
exercise of Section 7 rights, the Board does not examine the text in the abstract but rather 20
considers what message employees reasonably would receive when they read or heard it. In
reaching a conclusion regarding the message which a text reasonably conveys, the Board
applies an objective standard, examines the text from the employees' viewpoint, and takes into
account the totality of circumstances. Children's Center for Behavioral Development, 347
NLRB 35 (2006); Consolidated Biscuit Co., 346 NLRB 1175 (2006). 25
The "limiting sentence" states that nothing in the confidentiality clause "shall prohibit
employees from engaging in protected discussions or activity relating to the workplace. . ." In
considering the message which employees reasonably would receive, I do not assume that they
would have a labor lawyer's knowledge of the Act. Therefore, I do not assume that they 30
necessarily would know what constitutes a "protected discussion or activity." Reasonably, they
would depend on the remainder of the "limiting sentence" to explain what is meant by a
"protected discussion or activity."
This remaining part of the "limiting sentence" gives examples of protected activity: 35
"such as discussions of wages, hours, or other terms and conditions of employment."
Significantly, these examples do not include matters related to the arbitration.
The confidentiality clause begins by stating the general rule, that the "parties shall
maintain the confidential nature of the arbitration proceeding and the award. . ." (Italics added.) 40
The "limiting sentence" then gives examples of exceptions to the general rule, that is, examples
of permitted activities. However, as noted, these examples - identifying what subjects could be
discussed without violating the confidentiality clause - do not include arbitration or the arbitral
award.
45
Since the confidentiality clause has explicit language requiring that the arbitration and
award be kept confidential, someone reading it would look for similarly explicit language in
JD-30-19
41
the "limiting sentence." That is, an employee reasonably would conclude that vague, general
language would not be enough to create an exception to an explicit prohibition. Considering
that the Respondent had forbidden a range of activities, if the Respondent had intended to allow
any activity within that category, it would have said so specifically.
5
For example, the clause specifically lists the "contents of the arbitrator's award" among
the matters which must be kept confidential. On its face, this language even would forbid one
employee telling another whether the arbitrator had ruled for or against the grievant. The
"limiting language" does not include any specific exception allowing an employee to reveal
how the arbitrator ruled, so the employee reasonably would conclude that doing so was 10
prohibited.
In fact, the limiting language makes no exception for any part of the arbitration process,
not even to allow employees to discuss the outcome. Therefore, I conclude that an employee
who read the confidentiality clause, including the "limiting sentence," reasonably would believe 15
that he was not permitted to discuss any aspect of the arbitration.
(2) The "limiting sentence" fails to inform employees that they can disclose
information about the arbitration, and the arbitrator's award, to the public
20
Board caselaw has long established that Section 7 protects employees when they
publicize their dissatisfaction with working conditions and seek public support for their efforts
to change those conditions. See, e. g., Greyhound Lines, 251 NLRB 1638 (1980); Country
Club of Little Rock, 260 NLRB 1112 (1982); Bon Harbor Nursing and Rehabilitation Center,
348 NLRB 1062 (2006); Valley Hospital Medical Center, Inc., above. This right necessarily 25
extends to informing the public about the details of the working conditions the employees seek
to change. Indeed, if the Act merely allowed employees to announce that they had a dispute
with their employer about working conditions, but did not permit them to explain why they
believed a working condition was unsatisfactory, the right would be illusory. Without doubt,
employees may explain to the public why they consider their working conditions to be 30
unsatisfactory and therefore have the right to provide information about those working
conditions.
However, the Respondent's confidentiality clause clearly communicates the message
that employees may not disclose information either about how the arbitrator conducted the 35
hearing or about the arbitrator's award. The "limiting sentence" does not make an exception
which would allow employees to publicize their dissatisfaction with this condition of
employment.
(3) The Respondent's arguments concerning the effects of the "limiting 40
sentence" and another potentially limiting provision
The "Limiting Sentence" in Confidentiality Clause
In its brief, the Respondent contends that the "limiting sentence" (which it refers to as a 45
"disclaimer") assures that the confidentiality clause does not impose an unlawful restriction on
JD-30-19
42
the exercise of Section rights. After quoting this limiting language, the Respondent's brief
states:
Given this explicit disclaimer, the confidentiality provision cannot be reasonably
interpreted to interfere with employees' Section 7 rights. It does not prohibit employees from 5
discussing the facts and circumstances that led to the arbitration proceeding or from marshalling
evidence in support of their claims. Indeed, the confidentiality provision makes clear that it
does not prohibit employees from seeking out witnesses and evidence in support of their claims.
SOF 724 ("This provision shall not prevent either party from communicating with witnesses or
seeking evidence to assist in arbitrating the proceeding.") [Italics in original.]10
The Respondent's argument is telling for what it does not assert. The brief stresses that
the confidentiality provision "does not prohibit employees from discussing the facts and
circumstances that led to the arbitration proceeding" (underlining added) but the Respondent
stops short of claiming that the confidentiality clause allows discussion or disclosure of 15
information about the arbitration proceeding itself. The brief's omission of any claim that
employees were permitted to discuss and disclose what happened during an arbitration leads to
the same conclusion that an employee reasonably would reach after reading the clause itself:
Employees are not permitted to talk about the arbitration itself or its outcome. Certainly, if the
confidentiality clause did, in fact, allow discussion and disclosure of information about the 20
arbitration and award, the Respondent's brief would have said so.
Moreover, apart from the confidentiality clause, another portion of the Arbitration
Agreement assures employees that nothing "in this Agreement shall prohibit you from making
truthful disclosures to appropriate governmental agencies including but not limited to your right 25
to contact, communicate with, or report matters (whether as a whistleblower or otherwise) to
any government entity or agency. . ." The fact that the Agreement makes an explicit exception
allowing employees to make "truthful disclosures" to a government agency, but nowhere
mentions an exception allowing employees to disclose information about the arbitration to the
public, further communicates that the clause did not permit employees to disclose information 30
about an arbitration to the public.25
Another Potentially Limiting Provision
The Respondent's brief also asserts that the "Arbitration Agreement explicitly 35
recognizes employees' right to challenge the Agreement and dispels any fear that employees
may be disciplined if they choose to do so." The brief does not cite any language in the
confidentiality clause to support this argument, but instead points to language elsewhere in the
Agreement which states:
40

24 "SOF 7" refers to the seventh paragraph of the Stipulations of Fact.
25 The Respondent's use of the modifier "truthful" before the word "disclosures" may further
contribute to the impression that Respondent expected employees to follow the prohibition
punctiliously. Of course, persons complaining to government agencies are expected to tell the truth and
may face criminal penalties if they do not. See, e.g., 18 U.S.C. § 1001.
JD-30-19
43
You have the right to challenge the validity of the terms and conditions of this Agreement on
any grounds that may exist in law and equity, and the Company shall not discipline, discharge,
or engage in any retaliatory actions against you in the event you choose to do so. The Company,
however, reserves the right to enforce the terms and conditions of this Agreement.
5
The fact that the Agreement assures employees that they have the right to make a legal
challenge, and also to make "truthful disclosures" to a government agency, but says nothing
about speaking to the public, creates the strong impression that public disclosure of information
about the arbitration or the arbitrator's award is forbidden. Accordingly, an employee reading
this language reasonably would believe that it referred to making a legal challenge in court or 10
before an arbitrator, but would not interpret the language to permit other disclosures, such as to
the public.
It may also be noted that language promising not to take any action against an employee
for challenging the confidentiality clause does not constitute an assurance that no retaliatory 15
action would be taken for disobeying the prohibition communicated by the clause. An
employee reading the quoted language reasonably would not believe that it allowed the
confidentiality clause to be disregarded.
Indeed, it is not surprising that nothing in the Arbitration Agreement reasonably would 20
be understood to allow employees to discuss or disclose what happened during an arbitration
or the award. The whole point of the confidentiality clause appears to be to prohibit such
employee discussion and disclosure.
Not only does the Respondent's brief stop short of making any claim that employees are 25
free to speak about these matters, a sentence in the brief makes clear that the confidentiality
clause does prohibit discussion and disclosure of information about an arbitration and award.
This sentence states: "Thus, the confidentiality provision is limited to the arbitral proceeding
and the information and documents disclosed during the proceeding."
30
In sum, under the totality of circumstances, employees reasonably would understand the
confidentiality clause to prohibit them from discussing arbitrations and arbitrators' awards
among themselves, and they also reasonably would understand the clause to forbid disclosing
such information to the public. However, Section 7 grants employees the right both to discuss
these terms and conditions of employment and to disclose them to the public. Therefore, I 35
conclude that the confidentiality clause, and the employment policy it communicates, interferes
with the exercise of rights guaranteed by Section 7 of the Act. Determining whether such
interference violates Section 8(a)(1) requires consideration of the Respondent's asserted reasons
and justifications for the rule as well as an assessment of the rule's impact on the exercise of
Section 7 rights40
(4) Balancing the Section 7 right against the Respondent's interests in
maintaining the prohibition
As noted above, a conclusion that the Respondent's rule adversely affects the exercise 45
of Section 7 rights does not end the Boeing analysis but rather moves it along to the next step,
which involves weighing the importance of the affected Section 7 right - its centrality - against
JD-30-19
44
the importance of the work rule to the Respondent's legitimate business interests. In the Boeing
case itself, the work rule in question prohibited taking photographs in the plant without first
obtaining special permission. Arguably, there might be occasions where taking photographs
might be a protected activity, but it was far from obvious that such occasions would arise very
frequently. Even assuming that employees typically would have a Section 7 right to take 5
pictures in a plant, such a right hardly would be central to the Act's purposes, and restricting
this activity would leave a wide range of other protected activity unaffected.
Although the affected Section 7 right in Boeing weighed relatively little, the employer,
a defense contractor, had strong business reasons for the restriction. Photographs in the plant 10
could reveal proprietary secrets about how the high-tech aircraft were built. Even more
important, the design and construction of these military aircraft involved classified information.
Failure to keep it secure could result in the employer losing the security clearances necessary
to perform the contract. Besides those reasons, the employer had an even more compelling
interest, protecting the country's safety. In such circumstances, the employer's legitimate 15
business interests far outweighed the marginal Section 7 right, so the Board concluded that the
rule was lawful.
In the present case, unlike Boeing, the affected right is not on the margins of Section 7
but close to the center, because it prohibits employees from discussing a condition of 20
employment. Essentially all concerted activity begins with employees talking about working
conditions. Unless employees are aware of a work-related problem, they cannot decide to take
concerted activity to address it, and they certainly cannot even be aware of the problem unless
employees can discuss it. An order forbidding employees from talking thus nips protected
activity not just in the bud but even before the bud. Protected activity cannot be conceived, let 25
alone germinated, if employees are prohibited from talking about working conditions.
Likewise, the employees' Section 7 right to ask the public to support their efforts to
obtain better conditions of employment plays a vital role in correcting the "inequality of
bargaining power" which Congress intended the NLRA to address. 29 U.S.C. § 151. Picket 30
signs provide the most iconic example of such protected activity, but Section 7 protects the
right of employees to take their cause to the public in many different ways. The right clearly
includes informing the public not only that a dispute exists but also explaining to the public the
reasons why employees consider their conditions of employment to be unsatisfactory. When
that condition of employment involves Respondent's arbitration procedure, any explanation of 35
employee dissatisfaction would entail informing the public about what happened during an
arbitration or why an arbitral award was unfair.
Respondent's Reasons
40
The centrality of the Section 7 right must be weighed against the Respondent's reasons
for the rule that restricts it. The Respondent's brief states that "the confidentiality provision is
lawful based on the legitimate interest in fostering trust and confidence in the arbitration process
as an alternative dispute resolution procedure."
45
It is far from obvious how the work rule would lead to the claimed result and the
Respondent doesn't explain it. In the sentence quoted above, the Respondent appears to be
JD-30-19
45
stating that keeping details of the arbitration secret will cause employees to trust the process
more than they would trust it if they knew what was happening. However, I hesitate to conclude
that the Respondent would argue that its arbitration procedure, like sausage making, might be
disillusioning to watch.
5
Because such an interpretation of the Respondent's argument does not appear to help its
case, fairness requires a second look to ascertain whether the Respondent might intend another
meaning. Yet, no other interpretation is readily apparent. It is difficult to understand how
prohibiting employees from discussing or disclosing information about an arbitration could
foster "trust and confidence" in the process unless knowing what actually happened would have 10
the opposite effect.
Rather than attempting an explanation of how enforced ignorance could foster trust, the
Respondent's brief offers another argument, that confidentiality is a "fundamental attribute" of
arbitration. As discussed above, controversy about such a claim makes it inappropriate to take 15
judicial or administrative notice and the record does provide evidentiary support.
However, the greatest problem with the Respondent's arguments is that they don't
answer the key question: Why does the Respondent need to prohibit employees from discussing
or disclosing information about what happens during an arbitration? Stated another way, what 20
benefit does the Respondent derive from prohibiting discussion and disclosure, and why is the
benefit to the Respondent important enough to justify the harm caused to employees' statutory
rights?
The Boeing decision illustrates the importance of this inquiry. In Boeing, there was a 25
compelling business justification for the rule: If the employer permitted photography in the
plant, it could result in the disclosure of military secrets, which in turn would lead to the
revocation of security clearances. Without security clearances, the employer would lose
valuable government contracts. The no-photography rule reduced a very serious risk of
monetary loss. 30
Thus, in assessing the weight to be accorded an asserted business justification for a rule
which impinges upon Section 7 rights, it is highly relevant to ask "What does the employer
stand to gain by having the rule and what would the employer stand to lose without the rule?"
Boeing's risk of financial loss would increase if the no-photography rule were not in effect. 35
In the present case, the Respondent seeks to justify the confidentiality rule by claiming
that it fosters trust in the arbitration process. For the sake of analysis, at this juncture I will set
aside skepticism and instead, for the moment, will assume that a rule prohibiting discussion and
disclosure of information about an arbitration or an arbitrator's award somehow would, in fact, 40
increase employee trust in the arbitration process. Taking that as a given, what does the
Respondent stand to gain if employees trust that arbitration is a good way to resolve disputes?
What does the Respondent stand to lose if employees don't trust arbitration?
It is not obvious that the Respondent would gain or lose any material benefit. Regardless 45
of whether employees trust arbitration or do not, they remain legally bound to use it. Moreover,
the Respondent has not explained how the extent to which employees trust or distrust arbitration
JD-30-19
46
as a process affects the company's risk, efficiency or profit. The Respondent's brief does not
identity any concrete way, or any way at all, whereby the amount of trust its employees place
in arbitration has an effect on its "bottom line." Therefore, Respondent's argument that the
confidentiality rule increases employee trust in arbitration, whether correct or not, falls short of
demonstrating that any serious business interest will be furthered by that rule. 5
The Respondent's asserted justifications for the work rule must be weighed against the
importance of the right in effectuating the purposes of the Act. As discussed above, the right
to discuss working conditions resides at the core of Section 7 rights because the decision to
engage in other concerted activities protected by Section 7 results from discussion, and absent 10
such discussion, those other concerted activities will not take place.
The importance of the employees' Section 7 right to disclose their conditions of
employment to the public, as part of a concerted appeal to the public, also has been noted above,
but it merits further discussion here. The role of this right in the statutory scheme will determine 15
how much it will weigh when balanced against the Respondent's justifications for the
confidentiality rule. At first glance, the significance of this right may be underestimated, but a
closer examination reveals the essential role it plays in the system established by Congress.
As the Supreme Court has observed, the object of the NLRA "was not to allow 20
governmental regulation of the terms and conditions of employment, but rather to ensure that
employers and their employees could work together to establish mutually satisfactory
conditions. The basic theme of the Act was that through collective bargaining the passions,
arguments, and struggles of prior years would be channeled into constructive, open discussions
leading, it was hoped, to mutual agreement." H. K. Porter Co v. NLRB, 397 U.S. 99, 103 (1970). 25
Thus, Congress created a system in which an employer and the representative of its
employees would negotiate an agreement. If an employer did not agree to the union's proposals,
the union could exert economic pressure by urging the public not to patronize the employer and
by going on strike. Obviously, a union's strength would depend on how effectively it could 30
persuade the public to support the employees' cause. Success depended to a considerable extent
on enlisting the public's support.
Employees legitimately seek to improve their working conditions in ways other than
striking, and these concerted activities also fall within the system established by Congress. For 35
example, employees may send representatives to a shareholder's meeting, either to picket or
otherwise persuade corporate-level officials that their working conditions need to be improved.
Section 7 protects such concerted activity. See, e. g. Engelhard Corp., 342 NLRB 46 (2004).
Such activity also calls public attention to the employees' complaint.
40
The success or failure of any concerted activity, whether a strike or appeals to
shareholders, depends to a considerable extent on the employees' ability to muster public
support, which in turn depends on the ability of the employees to explain why their conditions
of employment should be improved. As noted above, a picket sign stating only that an
employer's wage rates are "unfair" does not make the case. To convince the public, employees 45
must also reveal what wages they are actually receiving.
JD-30-19
47
Employees' have an even greater need to inform the public when the working condition
is not so clearcut or familiar as wage rates. When the working condition concerns arbitration,
many members of the public will have little familiarity with the subject. Employees must
disclose information about the particular arbitration procedure and its effects to explain to these
members of the public why they want changes in this working condition. 5
The importance of the employees' rights - both their right to discuss their working
conditions with each other and their right to inform the public about their conditions of
employment, and thereby awaken public opinion to their cause - can be illustrated by the
following hypothetical. Suppose a supervisor is sexually harassing women employees, creating 10
a hostile work environment.26
Further suppose that the arbitrator hearing an employee's sexual harassment case treats
the employee in a manner which the employee reasonably believes to be patronizing, hostile or
dismissive. Or suppose this arbitrator, who happens to be of the same age and gender as the 15
harassing supervisor, systematically credits the supervisor's testimony and discredits the
grievant's, without providing any adequate explanation for this choice. If other employees knew
how the employee had been treated, they, too, would be concerned, because they, too, might
have to appear before the arbitrator if they wished to file a sexual harassment complaint.
20
However, by prohibiting the affected employee from discussing the arbitration or its
unsatisfactory outcome, the Respondent prevents her from mustering the support of other
workers, including those who also might have suffered sexual harassment. The prohibition
precludes employees from discussing the extent and seriousness of the problem and deciding
what steps to take for their mutual aid or protection. As noted above, Section 7 protects 25
concerted activities, and acting in concert requires employees to communicate with each other.
By forbidding discussion about the treatment an employee received during an arbitration, by
prohibiting them from talking about whether the arbitrator was sympathetic or hostile, fair or
unbiased, and by denying the affected employee even the right to tell fellow workers about the
outcome announced in the arbitrator's award, the Respondent effectively has squelched any 30
concerted activity about this condition of employment.
Even in the absence of any irregularity in the way the arbitration hearing was conducted,
the Arbitration Agreement which the Respondent imposed on employees may itself raise such
concerns about fairness that employees will wish to exercise their right to discuss each 35
arbitration as it occurs. The Respondent alone designed the arbitration procedure it imposed
on employees, and this sole authorship, by one of the parties appearing before the arbitrator,
reasonably could generate suspicions that the Respondent had tilted the system in its favor.

26 It should be stressed that no one has alleged, and nothing in the record indicates, that any of the
Respondent's managers or supervisors has engaged in sexual harassment. This hypothetical fact pattern
was chosen because of the prevalence of the problem in general. The Equal Employment Opportunity
Commission reported that during Fiscal Year 2018, it received 13,055 charges alleging sexual
harassment. See "Charges Alleging Sex–Based Harassment," EEOC Enforcement and Litigation
Statistics, https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm.
JD-30-19
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Under the Respondent's arbitration scheme, employees have considerably less power to
assure the fairness of the proceeding than they would enjoy either in court or in an arbitration
pursuant to a negotiated procedure in a collective-bargaining agreement. In a jury trial, jurors'
names would be drawn from a large pool and, during voir dire, the employee's lawyer would
exercise the right to challenge individuals believed to be biased. That procedure certainly 5
provides some assurance that the decision-maker will be fair. So does an arbitration procedure
which an employer negotiates with a union representing the employees.
A negotiated arbitration procedure in a collective-bargaining agreement typically
specifies an organization or government agency which will provide, on request, a list of 10
potential arbitrators, and the parties then select an arbitrator from this list, or from a subsequent
list furnished by the same source.
In negotiations to establish an arbitration system, the employees' representative
participates in selecting this source and a source must be acceptable to the union or there will 15
be no agreement. The competence and impartiality of arbitrators from a particular source are
important considerations in choosing a source and, before agreeing to use a particular
organization, the union can check out the source's published standards, its reputation, and other
users' past experiences. Thus, the employees, through their union, have some assurance that
the arbitrator will be chosen from a list meeting acceptable standards of competence, fairness 20
and diversity.
In contrast, in the arbitration procedure which the Respondent imposed on employees,
the Respondent alone chose the source of arbitrators. The employees had no say in selecting
the source of arbitrators and therefore have no power to assure that the arbitrators on a list will 25
meet their expectations of competence and fairness. Likewise have no control over whether the
list will reflect the diversity of the work force.
When one side has complete control over what organization will provide the arbitrators,
there well may be a temptation either to select a source whose arbitrators lean in one direction. 30
Even in the absence of a palpable temptation, the lopsided nature of the selection process creates
a reasonable concern.
The Respondent's Arbitration Agreement also provides that, except for a filing fee, the
Respondent pays the entire cost of the arbitration. There is no 50/50 cost sharing of the kind 35
specified in many collective-bargaining agreements. The fact that the Respondent will be
writing the check to the arbitrator would raise in employees' minds a he-who-pays-the-piper
concern. Such a concern is particularly reasonable because the Respondent is the one repeat
customer who will be writing similar checks to arbitrators in the future, and who has the sole
power to choose another source of arbitrators at any time. 40
The fact that the Respondent writes the checks and also chooses the source of arbitrators
also raises another concern. Because the Respondent will be paying the bill, there may well be
a temptation to choose the source which provides the least expensive arbitrators, regardless of
their quality. For this reason, too, employees very reasonably will want to discuss with each 45
other what actually happens at the arbitration and how the arbitrator ruled.
JD-30-19
49
Moreover, regardless of the quality of the arbitrators provided by the source, the
employees' lack of a voice, their inability to insist that potential arbitrators be provided by a
source they trust, may prompt them to want to discuss this condition of employment and decide
what to do about it. Only by discussing their experiences can the employees decide whether
the system is fair and, if not, whether or not to push for changes by engaging in further concerted 5
activities, including explaining to the public why they believe the system is unfair and
awakening public opinion to their cause.
It hardly can escape notice how much the employees' powerlessness vis-à-vis their
employer resembles the "inequality of bargaining power" which Congress described in the 10
preamble of the National Labor Relations Act, 29 U.S.C. § 151, and then addressed in Section
7 by granting employees new rights not found in the common law. 29 U.S.C. § 157. The
Respondent might find it difficult to deny the importance of these rights to employees in their
present situation, even though it seeks to deny the opportunity to exercise them.
15
The Respondent's desire to prevent employees from talking publicly about what happens
during arbitrations is understandable. As the "#MeToo" movement recently has demonstrated,
public opinion can be a potent force bringing about change in the workplace. However, the fact
that the employees' concerted appeal to the public can be effective does not justify an employer's
attempt to forbid it. 20
Although the power of public opinion seems particularly strong today, when the
employees' concerted appeal to the public can be made through both the mass media and social
media, their right to communicate with the public about working conditions goes back to the
enactment of the NLRA in 1935. It is no new innovation but firmly established. 25
The discussion above has focused on employees' Section 7 right to engage in concerted
activity for their mutual aid or protection, but it should be noted that the Respondent's
confidentiality requirement also interferes with employees' exercise of the Section 7 right to
join or assist labor organizations. Should some of the Respondent's employees contact a union 30
to discuss whether such representation could improve working conditions, they likely would
wish to compare the Respondent's arbitration scheme with the arbitration provisions in
collective bargaining agreements which the union had negotiated. However, the Respondent's
confidentiality clause forbids them from disclosing to the union officials what really has
happened during arbitrations. 35
Unlike the prohibition of photography in Boeing, which potentially interfered with a
right on the periphery of Section 7, the Respondent's prohibition on discussion and disclosure
interferes with Section 7 rights essential to the purposes of the Act. The ban on photography
in Boeing did little, if anything, to prevent employees from exercising their Section 7 rights to 40
discuss working conditions and, if they believed the conditions unfair, to make a concerted
appeal to the public. In contrast, the prohibition in the present case directly interferes with those
rights at the core of Section 7.
This harm must be weighed against the reasons and justifications which the Respondent 45
has asserted for the rule. As discussed above, the Respondent has not demonstrated that the
rule is necessary for any legitimate business purpose. Therefore, I conclude that the
JD-30-19
50
Respondent's reasons for the prohibition do not outweigh the harm inflicted upon the
employees' Section 7 rights. Further, I conclude that the prohibition violates Section 8(a)(1) of
the Act.
Having concluded that the prohibition violates Section 8(a)(1), I will now consider how 5
it should be classified. Because the rule is unlawful, it would not fit into Category 1.
The Board stated that "Category 2 will include rules that warrant individual scrutiny" to
determine "whether the rule would prohibit or interfere with NLRA rights." The Board
described Category 3 as follows:10
Category 3 will include rules that the Board will designate as unlawful to maintain
because they would prohibit or limit NLRA-protected conduct, and the adverse impact
on NLRA rights is not outweighed by justifications associated with the rule. An
example of a Category 3 rule would be a rule that prohibits employees from discussing 15
wages or benefits with one another.
The Boeing Company, 365 NLRB No. 154, slip op. at 4 (italics in original). The rule in
the present case exactly fits Category 3 because it prohibits employees from discussing
a condition of employment and its adverse impact on NLRA rights is not outweighed 20
by the Respondent's claimed justifications for it. Accordingly, I conclude that the
Respondent's prohibition on discussion or disclosure of matters related to arbitration,
including the arbitral award, constitutes a Category 3 violation.
Remedy25
Because the Respondent violated Section 8(a)(1) of the Act, it must take all action
necessary to remedy the harm caused by the unfair labor practice. Such action includes the
posting of a notice at all facilities where employees affected by the Arbitration Agreement
work. Additionally, if the Respondent customarily communicates with its employees by 30
electronic means, notices must be distributed by these means as well.
From the record, it appears that some employees work out of their homes, and therefore
might not see a notice posted in the Respondent's offices. The record also indicates that the
Respondent provided each employee individually with a copy of the Arbitration Agreement. 35
The Agreement provided that it would become effective 60 days after receipt, so it appears
likely that the Respondent delivered the Agreement to each employee in a manner which
assured that the employee received and read it.
To assure that each employee who received the Agreement receives notice that it is 40
permissible to discuss and disclose information about an arbitration and an arbitral award, and
that the Respondent will not take any disciplinary or other adverse action against an employee
who does so, the Respondent should be required to deliver the notice to each employee in the
same manner that it delivered the Agreement to that employee, or in a substantially equivalent
JD-30-19
51
manner providing similar assurance of receipt.27 In the present case, there is also a possibility
of confusion which requires particular care in drafting the notice. Although the recommended
order, below, invalidates the confidentiality clause in the Arbitration Agreement, the order
makes clear that it does not invalidate the rest of the Agreement. Additionally, the
recommended order specifically states that it does not deprive an arbitrator of authority to order 5
that certain testimony or evidence be kept confidential where essential to protect proprietary or
trade secrets or personal privacy. The notice to employees similarly includes these
qualifications.
Further, if the Respondent has taken disciplinary or other adverse action against any 10
employee because that employee discussed or disclosed information about an arbitration or the
award, the Respondent must take all steps necessary to undo that disciplinary action and purge
any reference to it from the employee's personnel file and other records.
CONCLUSIONS OF LAW15
1. The Respondent, Pfizer, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by prohibiting its employees 20
from discussing or disclosing information about an arbitration conducted pursuant to the
Arbitration Agreement which the Respondent imposed and by prohibiting them from discussing
or disclosing information about the arbitrator's award.
3. The Respondent did not engage in any unfair labor practices alleged in the 25
complaint not specifically found herein.
On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended28
30
ORDER
The Respondent, Pfizer, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from:35

27 In National Licorice Co. v. NLRB, above, the Supreme Court modified the Board's order that
the employer post a notice so that the notice might "more accurately represent the affirmative action of
the Board and that misinterpretation of its action may be avoided." 309 U.S. at 367. To thwart a union's
attempts to represent the employees, the employer in that case had picked a committee of employees
and then negotiated a contract with that committee. A large number of employees signed copies of this
agreement, which supposedly was an individual contract even though each copy was the same.
Although these contracts violated the Act, they did grant employees some improvements in wages and
benefits, and the Court revised the notice language to make clear that the employees did not have to give
up those improvements.
28 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations,
these findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules,
be adopted by the Board, and all objections to them shall be deemed waived for all purposes.
JD-30-19
52
(a) Promulgating and/or maintaining a work rule and employment policy
prohibiting employees from discussing or disclosing information pertaining to an arbitration
conducted pursuant to the Arbitration Agreement which Respondent imposed on its employees,
including any award resulting from such arbitration. 5
(b) 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 necessary to effectuate the policies of the 10
Act.
(a) Rescind the work rule and employment policy prohibiting employees
from discussing or disclosing information about an arbitration or arbitral award and modify any
document which expresses such a prohibition, including the Arbitration Agreement which the 15
Respondent required its employees to accept, to state that employees are free to discuss and
disclose information relating to an arbitration or arbitral award and will not be discharged,
disciplined, or subjected to any other adverse employment action for doing so. This
requirement does not invalidate any other portion of the Arbitration Agreement and does not
limit an arbitrator's authority to order that specific testimony or evidence be kept confidential 20
when essential to protect proprietary or trade secrets or personal privacy.
(b) In addition to the remedial actions described above in paragraph 2(a),
deliver to each employee who received a copy of the Arbitration Agreement which included
this prohibition, a modified copy with the prohibition removed, together with a copy of the 25
notice described below in paragraph (d). Delivery of these documents shall be effected by the
same means used to deliver the Arbitration Agreement to each employee, or in a substantially
equivalent manner.
(c) If the Respondent has disciplined, discharged or subjected any employee 30
to an adverse employment action because that employee failed to comply with the prohibition
on discussing or disclosing information about an arbitration or arbitral award, rescind such
discipline or adverse action, make the employee whole, with interest, for all losses suffered
because of it, and remove from the employee's personnel file and other records all references
to such disciplinary or adverse action. 35
(d) Post at all of its facilities in the United States where any employee
affected by the prohibition described above in paragraph 1(a) works, and within each such
facility at all places where notices customarily are posted, and at all locations where job
applicants seek or are interviewed for employment, copies of the attached notice marked 40
"Appendix A."29 Copies of the notice, on forms provided by the Regional Director for Region

29 If this Order is enforced by a Judgment of the 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-30-19
53
10, after being signed by the Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees customarily are posted. 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 to physical posting of paper notices, notices shall be 5
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. J. Picini Flooring, 356 NLRB 11 (2010). In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed a facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice 10
to all current employees and former employees employed by the Respondent at such closed
facility or facilities at any time since May 5, 2016. Excel Container, Inc., 325 NLRB 17 (1997).
(e) Notify the Regional Director in writing within 20 days from the date of
this Order what steps the Respondent has taken to comply. 15
Dated Washington, D. C. March 21, 2019
20
Keltner W. Locke
Administrative Law Judge
25
1(.,_-___ o z....is,___
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations
Act and has ordered us to post and abide by 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 interfere with, restrain or coerce our employees in the exercise of these
rights, guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT prohibit employees from discussing or from disclosing information about
any arbitration, or about the award resulting from any arbitration, which was, is now or will be
conducted pursuant to the Arbitration Agreement which we required employees to accept as a
condition of employment.
WE WILL NOT discharge, discipline or take any adverse employment action against any
employee for failing to comply with this unlawful prohibition.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind our work rule and employment policy which prohibits employees from
discussing arbitration and arbitral awards and modify any document expressing that policy to
make clear that this prohibition has been rescinded, that all employees are free to discuss and
disclose information about arbitrations and arbitral awards, and that no employee will be
discharged, disciplined, or subjected to any adverse employment action for doing so, and WE
WILL provide a copy of such modified document, together with a copy of this notice, to each
employee who received the Arbitration Agreement. Apart from the prohibitions on discussion
and disclosure of information concerning arbitration or an arbitrator's award, the Arbitration
Agreement remains in effect and binding according to its terms. The order of the National
Labor Relations Board does not preclude an arbitrator from ordering that specific testimony or
evidence be kept confidential when deemed essential to protect proprietary or trade secrets or
personal privacy.
WE WILL, if any employee has been discharged, disciplined or subjected to adverse action
for failing to comply with the unlawful prohibition on discussion and disclosure of information
about arbitration or an arbitral award, rescind the discharge, discipline or other adverse action,
restore the employee to the same status as before the discharge, discipline or adverse
employment action, make the employee whole, with interest, for any losses suffered thereby,
and remove any reference to the discharge, discipline or adverse employment action from the
employee's personnel file and other files.
PFIZER INC.
(Employer)
Dated __________________ By _____________________________________________
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
Harris Tower, 233 Peachtree Street, N.E., Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/10-CA-175850 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, (470) 343-7498.