RPM Pizza LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 11, 2014

15-CA-113753 (N.L.R.B. Jul. 11, 2014)

JD(ATL)–20–14
Gulfport, MS
Destrehan, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
RPM PIZZA, LLC
and CASE 15-CA-113753
DALE FIRMIN, an Individual
Beauford D. Pines, Esq., for the General Counsel.
Michael D. Carrouth, Esq., J. Hagood Tighe, Esq.,
and Reyburn W. Lominack, III, Esq.
(Fisher & Phillips, LLP), of Columbia, South Carolina,
for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. Based on a charge filed by Dale
Firmin (Charging Party or Firmin) on September 20, 2013, and an amended charge filed on
December 6, 2013, the Region Director of the National Labor Relations Board (NLRB) issued a
complaint and notice of hearing on December 31, 2013. An amended complaint (the complaint)
was issued on January 16, 2014. The complaint alleges that RPM Pizza, LLC (Respondent)
violated Section 8(a)(1) of the National Labor Relations Act (the Act) by maintaining and
enforcing an arbitration agreement that requires employees to waive any rights to resolution of
any employment-related disputes by class or collective actions in any forum, judicial or arbitral.
The complaint also alleges that Respondent violated Section 8(a)(1) in this manner by
demanding that Charging Party Dale Firmin (Firmin) relinquish his class or collective action
claim filed in federal court or face attorney’s fees, costs, and losses, and when it moved to have
Firmin’s class arbitration claim dismissed. The Respondent filed an answer (and amended
answer) denying that it engaged in the unfair labor practices alleged and asserting a variety of
affirmative defenses.
On April 4, 2014, I granted the parties’ joint motion to submit this case to me for a
decision on stipulated facts, thus waiving a hearing under Section 102.35 (a)(9) of the Board’s
Rules and Regulations. Thereafter, the parties filed briefs, which I have read and considered.
JD(ATL)–20–14
2
Based upon the entire stipulated record, and after thoroughly considering both parties’
briefs, I make the following
FINDINGS OF FACT
5
I. JURISDICTION
The parties stipulated to the following facts as to the nature of the Respondent’s business
and jurisdiction:
10
1. At all material times, Respondent, has been a limited liability company
incorporated in Mississippi, and with a principal place of business in Gulfport,
Mississippi. Respondent conducts business in several locations including
Destrehan, Louisiana, where it engages in the retail sale of pizza and related
products.1 15
2. During the 12 months prior to the submission of the stipulated record,
Respondent derived revenues in excess of $500,000, and has directly purchased
and received at its Destrehan, Louisiana store goods and products in excess of
$5000 from suppliers located outside the State of Louisiana. 20
3. The parties agree, and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES25
A. Stipulated Background Facts
1. Respondent’s arbitration agreement
30
In 2011, Respondent RPM introduced an arbitration procedure, including an arbitration
agreement (AA), that provided that Respondent and all of its employees must submit, with
certain exceptions set forth therein, all claims, disputes, and controversies that either party may
have against the other to binding arbitration. Specifically, this AA provides in pertinent part the
following: 2 35
* * * *
B. Claims Excluded from Binding Arbitration. Nothing herein shall prevent
Team Member from filing and pursuing administrative proceedings before the 40

1
Respondent operates stores in various locations in at least three states, Alabama, Louisiana, and
Mississippi. (See Joint Exhibit 1). As set forth below, Firmin applied to and was hired to work in the
Destrehan, Louisiana store.
2 Respondent also refers to all of its employees as “Team Members.” In Respondent’s AA, “Team Member”
includes all of Respondent’s employees in all offices and store locations, from top-level management
officials (e.g. vice presidents, managing directors, regional directors) to local store managers, and to all
non-management employees such as drivers. (See Joint Exhibit 1).
JD(ATL)–20–14
3
U.S. Equal Employment Opportunity Commission or an equivalent state or local
agency to the full extent as permitted by law notwithstanding the existence of an
agreement to arbitrate. Although, if Team Member chooses to pursue a claim
following the exhaustion of such administrative remedies, that claim would be
subject to arbitration. Likewise, nothing in this Agreement prevents a party from 5
participating in any investigation or proceeding conducted by any administrative
agency. Nothing herein shall prevent Team Member or Company from a
temporary restraining order or preliminary injunctive relief to preserve the status
quo or prevent any irreparable harm pending the arbitration of the underlying
claim, dispute and/or controversy. The only exceptions to the mandatory 10
arbitration provision, besides those listed in this paragraph, are as follows:
(1) Any claim, dispute, and/or controversy arising under the National Labor
Relations Act (“NLRA”) that are brought before the National Labor Relations
Board;15
(2) Any claim, dispute, and/or controversy for medical and disability benefits
under Workers’ Compensation or any claim for Unemployment Compensation
filed with the state that the Team Member resides in;
20
(3) Any claim, dispute, and/or controversy on an individual basis only which
are brought properly in, and only to the extent they remain in, small claims court;
(4) Any claim, dispute, and/or controversy arising out of any other written
contract(s) between Team Member and the Company where the contract 25
specifically provides for resolution through the courts; and
(5) Any claim, dispute, and/or controversy for benefits under a Company plan
in which the plan provides its own arbitration procedure (such as a claim
involving a Company health plan in which the health provider has its own 30
arbitration procedure agreed to by the Team Member).
III. Arbitration Procedure.
* * * *35
A. Form of Arbitration and Waiver of Multi-Plaintiff Litigation. In
any arbitration, any claim shall be arbitrated only on an individual basis and not
on a class or private attorney general basis. Team Member and the Company
expressly waive any right to arbitrate as a class representative, as a class member, 40
in a collective action, or in or pursuant to a private attorney general capacity, and
there shall be no joinder or consolidation of parties. All arbitration shall be
brought on a separate and individual basis. This waiver does not prohibit a Team
Member’s right to act in concert with other applicants or Team Members under
the NLRA, and Team Members will not be subject to discipline or relation for 45
challenging this waiver of multi-plaintiff litigation through a class or collective
action.
JD(ATL)–20–14
4
* * * *
IV. Dismissal of Any Lawsuit. [T]he Company and Team Member agree that if
either pursues a covered claim against the other by any method under than the 5
arbitration provided herein, and an exception does not apply, the responding party
is entitled to a dismissal, stay and/or injunctive relief regarding such action, and
the recovery of all damages in responding, to include related attorney’s fees,
costs, and losses.
10
V. Waiver of Jury Trial. TEAM MEMBER AND THE COMPANY
UNDERSTAND THAT BY AGREEING TO THIS BINDING
ARBITRATION PROVISION, BOTH GIVE UP THEIR RIGHT TO
TRIAL BY JURY OF ANY INDIVIDUAL, CLASS, COLLECTIVE
ACTION, MULTIPLE-PARTY, PRIVATE ATTORNEY GENERAL, OR 15
OTHER CLAIM EITHER MAY HAVE AGAINST THE OTHER, EXCEPT
AS EXPRESSLY PROVIDED HEREIN.
VI. Exclusive Opt-Out Right. The Team Member has the right to opt out of
the obligation set forth herein to submit to binding arbitration. To opt out, 20
the Team Member must send via electronic mail or first-class mail, within
thirty (30) calendar days of signing this Arbitration Agreement, an
email/letter addressed to glennm@rpmpizza.com or mail to Glenn A.
Mueller, 15384 5th Street, Gulfport, MS 39503 stating that the Team
Member has elected to opt out of the Arbitration Agreement. The 25
email/letter must clearly state the Team Member’s name and must be signed
by the Team Member. Absent the proper and timely exercise of this opt-out
right, the Team Member will be required to arbitrate all disputes covered by
this Arbitration Agreement.
30
* * * *
MY SIGNATURE BELOW ATTESTS TO THE FACT THAT I HAVE
READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND TO ALL
OF THE ABOVE TERMS. I UNDERSTAND THAT, UNLESS I TIMELY 35
SEND THE OPT-OUT LETTER REFERENCED ABOVE TO THE PROPER
ADDRESSEE, I WILL BE REQUIRED TO ARBITRATE ALL DISPUTES
WITH THE COMPANY THAT ARE COVERED BY THIS ARBITRATION
AGREEMENT.
40
(Jt. Exh. 1.)3
In summary, and relevant to this matter, Respondent’s AA requires that all employment-
related disputes with its employees be resolved as individual claims exclusively through final

3 Abbreviations used in this decision are as follows: “Tr.” For transcript; “GC Exh.” for General Counsel’s
exhibit; “R. Exh.” for Respondent’s exhibit; “Jt. Exh.” for Joint exhibit; “GC Br.” for General Counsel’s
brief; and “R. Br.” for Respondent’s brief.
JD(ATL)–20–14
5
arbitration. In other words, parties to a dispute cannot pursue claims related to the dispute,
individually or collectively, or by class, in any judicial or court forum. If a party does file such
an action, the responding party can bring a dismissal, stay, and/or injunctive relief regarding such
action, and recover all damages in responding, to include related attorney’s fees, costs, and
losses. The AA specifically excludes “[a]ny claim, dispute, and/or controversy arising under the 5
National Labor Relations Act (NLRA) that are brought before the National Labor Relations
Board.” Finally, the AA includes an opt-out provision, provided the employee/team member
opts out in writing pursuant to the terms of the AA within 30 calendar days of signing the AA via
email or letter addressed to Respondent’s chief executive officer, Glenn A. Mueller (Mueller).4
10
2. Roll out of Respondent’s arbitration procedure and agreement
Respondent’s roll out of its new AA process included inviting employees to question and
answer sessions conducted by district managers, as well as other several face-to-face meetings
with employees from February through June 2011, in which Respondent explained the new 15
process and gave its employees copies of the AA and an applicant acknowledgement form.
These communications also included a memorandum issued by its controller, Jeanne
Quesenberry (Quesenberry), to store employees during this same period, and to office staff who
do not work in the stores in August 2011, that generally explained the arbitration procedure, and
its opt-out process, along with various benefits of “final and binding” arbitration (i.e., 20
elimination of the costs and delay associated with long trials and provision of “a fair and
reasonable judgment by an outside legal party”). The memorandum also notified then employed
employees that the AA was voluntary for all employees hired prior to January 1, 2011. (R. Exhs.
1–3; Jt. Exh. 1.) Of note, between September 8, 2011, and November 14, 2011, nine employees
submitted email messages or letters expressing their desire to opt out of the AA. 25
Regarding applicants for employment on January 1, 2011, and thereafter, Respondent has
required them to review information about its arbitration procedure and AA as part of its on line
application process. Although applicants may view the AA from an outside computer, in
completing the on line application process, they must meet with the store manager and, using 30
Respondent’s computer in the store manager’s office, complete the application process. In
completing the application or on boarding process, applicants must click on the screen to indicate
that they have read and agree with the AA before the computer will proceed to the next screen.
Applicants confirm their understanding and acceptance of and agreement with the AA with an
electronic signature and date on an applicant acknowledgment form. (R. Exh. 4–5.) Mueller 35
authorizes Respondent’s on line process.
3. Charging Party Firmin
Firmin worked for Respondent as a pizza delivery driver on five different occasions 40
between January 2001 and January 1, 2013. His most recent employment period began in
November 2012. On November 21, 2012, Firmin met with Store Manager Scott Green (Green)
at Respondent’s Destrehan, Louisiana store.5 At Green’s direction, but not in his presence,

4
At all material times, Glenn A. Mueller (Mueller), chief executive offer/managing member, has been
Respondent’s supervisor and agent within the meaning of Sec. 2(11) and 2(13) of the Act.
5
At all material times, Scott Green (Green), store manager, has also been one of Respondent’s supervisors
and agents within the meaning of Sec. 2(11) and 2(13) of the Act.
JD(ATL)–20–14
6
Firmin completed his on line application using the computer in Green’s office. As a part of this
application process, Firmin electronically signed the AA, acknowledging that he read and agreed
with it as required for employment. His signature also acknowledged that he understood the opt-
out procedures offered in the AA. (Jt. Exh. 1.) He did not ask Green if he could be hired
without electronically signing the AA, nor did he ask any other questions about the AA. Green 5
in turn did not inform Firmin that he could be hired if he did not electronically sign the AA.
Firmin was hired, and began working for Respondent as a pizza delivery driver at Respondent’s
Destrehan, Louisiana store. Firmin did not subsequently inform Respondent that he wished to
opt out of the AA.
10
On January 1, 2013, Firmin voluntarily resigned from his employment with Respondent.
On July 23, Firmin filed a complaint against Respondent in the Unites States District
Court, Southern District of Mississippi Southern Division, alleging violations of the Fair Labor
Standard Act’s (FLSA) minimum wage provisions. (Jt. Exh. 2.) He filed this complaint both 15
individually and on behalf of a class of similarly situated delivery drivers. On August 15,
Respondent’s counsel sent a letter to Firmin’s counsel, notifying him of the AA.6 (Jt. Exh. 3.)
This letter explained that the claims in Firmin’s federal court complaint were specifically
covered by the AA signed by Firmin, including a waiver of the right to arbitrate as a class
representative or class member in a collective action, or otherwise. Respondent’s counsel also 20
requested that that Firmin dismiss the federal court claim on behalf of Firmin and other similarly
situated employees, and if Firmin desired, pursue his individual claim pursuant to the terms of
the AA. He explained that if Firmin did not dismiss his federal court complaint, that Respondent
would be entitled to the recovery of all damages in responding to the lawsuit, to include
attorney’s fees, costs, and losses. Subsequently, on August 29, Firmin voluntarily dismissed the 25
federal court complaint, without prejudice. (Jt. Exh. 4.)
On September 17, Firmin filed an Arbitration Demand and Statement of Claim
individually and on behalf of a purported class of similarly situated individuals with the
American Arbitration Association (AAA). (Jt. Exh. 5.) On October 22, Respondent filed an 30
answer to Claimant’s statement of claim and a motion to dismiss regarding Firmin’s class action
allegations filed with the AAA. (Jt. Exh. 6.) The motion to dismiss was never decided; rather,
on December 26, the presiding arbitrator issued an order granting the parties’ joint motion to
approve settlement that included a settlement of all claims by Firmin. (Jt. Exh. 7.)
35
On December 26 (and thereafter), Firmin’s underlying unfair labor practice charge in the
instant case was still pending before the NLRB’s Regional Office.7
III. PARTIES’ STIPULATED ISSUES
40
Whether Respondent has been interfering with, restraining, and coercing employees in
the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act

6
At all times material, Respondent’s counsel has been its agent within the meaning of Sec. 2(13) of the Act.
7
Although not included in the stipulated facts, I note that Firmin, through his counsel, served a written,
formal request to withdraw his initial and amended charges filed with the Region. This request was denied.
(R. Exh. 6.)
JD(ATL)–20–14
7
by generally maintaining and enforcing the terms of the AA that precludes class or collective
actions, and by:
1. Enforcing the terms of the AA by requiring Charging Party Firmin to
relinquish his class claim in the United States District Court, Southern District of 5
Mississippi Southern Division (federal court) and threatening the payment of
attorney’s fees, costs, and losses if the lawsuit was not dismissed.
2. Filing a motion to dismiss Charging Party Firmin’s class arbitration claim
and requesting that the AAA dismiss the claim based on the class and collective 10
action waiver in Respondent’s AA.
IV. DISCUSSION AND ANALYSIS
As indicated above, the General Counsel alleges that Respondent violated Section 8(a)(1) 15
of the Act by maintaining its AA, which precludes employees from filing class or collective
arbitrations or lawsuits, by requiring Firmin to relinquish his federal class action complaint filed
on his and other employees’ behalf and by filing a motion to dismiss class allegations with the
AAA. I agree and find the violations alleged.
20
A. The Positions of the Parties
The General Counsel argues, and I agree, that this matter is controlled by the Board’s
holding in D.R. Horton, Inc., 357 NLRB No. 184 (2012), which was denied enforcement in
relevant part, 737 F.3d 344 (5th Cir. 2013). In that case, the Board held that an employer 25
violates Section 8(a)(1) of the Act by maintaining a mandatory arbitration agreement “requiring
employees to waive their right to collectively pursue employment-related claims in all forums,
arbitral and judicial,” because “the right to engage in collective action—including collective
legal action—is the core substantive right protected by the NLRA and is the foundation on which
the Act and Federal labor policy rest.” 357 NLRB No. 184, slip op. at 12. The Board also 30
concluded that its finding was “consistent with the well-established interpretation of the NLRA
and with core principles of Federal labor policy,” and did not “conflict with the letter or interfere
with the policies underlying the Federal Arbitration Act (FAA).” Id. at 10. Thus, the General
Counsel contends that such a ban on employees’ rights to pursue class and/or collective actions,
as contained in Respondent’s AA, unlawfully interferes with employees’ Section 7 rights. The 35
General Counsel also argues that although Respondent’s AA excepts claims filed with the NLRB
and includes an opt-out provision, such exceptions do not insulate Respondent from prohibitions
established in D.R. Horton.
Respondent disputes the controlling effects of the Board’s decision in D.R. Horton, 40
arguing that it is not viable based on current Supreme Court precedent, the United States Court
of Appeals for the Fifth Circuit’s partial overruling of D.R. Horton; and numerous state and
federal courts’ rejection of the Board’s reasoning and findings set forth in D.R. Horton and their
refusal to invalidate arbitration agreements containing class action waivers. Respondent also
asserts that the terms of its AA in this case are distinguishable from the mutual arbitration 45
agreement analyzed in D.R. Horton because its AA expressly excludes claims that are brought
before the NLRB, includes an opt-out provision which renders the AA and class and collective
JD(ATL)–20–14
8
action waiver voluntary, and allows its employees to act in concert with other applicants or
employees under the NLRA. Respondent further argues that Section 7 of the Act does not
provide Firmin or any other of its employees the right to pursue class or collective action
litigation in any forum, and further, that Firmin did not engage in any protected, concerted
activity by filing a class action complaint and demand for class arbitration. Finally, Respondent 5
contends that its efforts to enforce its AA’s class action waiver were constitutionally protected
conduct under the First Amendment.
B. D.R. Horton is Controlling
10
Although the Fifth Circuit, as well as several other courts as set forth in Respondent’s
brief, disagreed with the Board’s finding that a class or collective action waiver was illegal, and
that such finding conflicted with the FAA, I am bound by the findings in D.R. Horton until either
the Board or the Supreme Court specifically overturns them. Pathmark Stores, 342 NLRB 378
fn. 1 (2004); Herbert Industrial Insulation Corp., 312 NLRB 602, 608 (1993); Waco, Inc., 273 15
NLRB 746, 749 fn. 14 (1984) (“it is a judge’s duty to apply established Board precedent which
the Supreme Court has not reversed,” and “for the Board, not the judge, to determine whether
precedent should be varied.”) (citation omitted). Los Angeles New Hospital, 244 NLRB 960, 962
fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981).8
20
Similarly, I reject Respondent’s insistence that I should deviate from the Board’s findings
in D.R. Horton because they are contrary to subsequent Supreme Court’s decisions in
CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 668–669 (2012) and American Express Co. v.
Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013). (R. Br. at 12–13). Respondent asserts that
the Supreme Court in these cases has stated that the FAA mandates enforcement of arbitration 25
agreements unless justification to override them is established by a “contrary Congressional
command.” Respondent also contends that the Supreme Court has applied this principle to
employment related arbitration agreements (citing Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20 (1991) and Granite Rock Co. v. Int’l. Brotherhood of Teamsters, 130 S.Ct. 2847, 2858
(2010). Although the Supreme Court has upheld the enforcement of individual mutual 30
arbitration agreements in these and other cases, the Court has not addressed or resolved the issue
of exclusive arbitration over class and/or collective actions under the Act.

8
I reject Respondent’s argument, which appears for the first time in its brief, that the Board’s decision in
D.R. Horton, issued on January 3, 2012, is invalid since on the date of its issuance the Board lacked a
quorum and was unconstitutionally constituted (R. Br. at 11–12, fn. 2, citing New Process Steel v. NLRB,
1380 S. Ct. 2635, 2640 (2010) and Noel Canning, 705 F.3d 490 (D.C. Cir. 2013), cert. granted 133 S. Ct.
2861 (2013)). The Fifth Circuit rejected a similar argument made in the D.R. Horton case itself, albeit for
technical reasons. 737 F.3d at 350–352. Further, the Board has rejected this same contention when raised
in other cases. See Belgrove Post Acute Care, 359 NLRB No. 77, slip op. 1, fn. 1 (2013); Bloomingdale’s
Inc., 359 NLRB No. 113 (2013). On June 26, 2014, the Supreme Court did issue a narrow ruling that the
President’s recess appointments made on January 4, 2012, were invalid because he did not have the
authority to make them. NLRB v. Noel Canning, 573 U.S. ___ (2014). However, the Supreme Court in
Noel Canning addressed the recess appointments made by the President on January 4, 2012, the day after
D. R. Horton decision issued. Moreover, I am bound by and agree with the substantive holdings and
principles in D.R. Horton, and find, as discussed below, that they are not contrary to Supreme Court
precedent, and further, are well reasoned and predicated on well established, valid Board law.
8
JD(ATL)–20–14
9
Therefore, I disagree with Respondent’s view that these subsequent cases lead to a
decision contrary to that of the Board’s in D.R. Horton. I understand, as the Board pointed out,
that the FAA establishes a liberal policy favoring arbitration agreements. 357 NLRB No. 184,
slip op. at 8. However, in D.R. Horton, the Board found that “the Supreme Court’s jurisprudence
under the FAA, permitting enforcement of agreements to arbitrate federal statutory claims, 5
including employment claims, makes clear that the agreement may not require a party to ‘forgo
the substantive rights afforded by the statute.”’ Id. at 9–10, citing Gilmer, supra at 26.9 I find in
this case, the NLRA is neither preempted by, nor in conflict with, the FAA, because Respondent
effectively precluded Firmin and other of its employees from exercising their substantive rights
under Section 7 of the Act. 10
In American Express Co., supra, the Supreme Court dismissed a claim brought by a
group of merchants, that their agreement to arbitrate individual claims as the sole method of
resolving disputes was invalid, and concluded that when federal statutory claims are involved,
the FAA’s directive can only be “overridden by a contrary congressional command.” However, 15
American Express Co. is distinguishable from the instant case because it did not involve the
substantive Section 7 right of employees to collectively file class action lawsuits or arbitrations,
which was the basis of the Board’s D.R. Horton decision. Nor did it involve, as in this case, an
employer who compels its employees to waive those rights. For the same reasons, the Supreme
Court’s decision in CompuCredit, supra, is distinguishable.10 Moreover, these general consumer 20
litigation and commercial cases do not address the central question of how and to what extent the
FAA may be used to interfere with, by way of private agreements, the fundamental substantive
right of workers to engage in concerted activity established and protected by the NLRA—the
gravamen of the violation here and in D.R. Horton.11
25
Likewise, I reject Respondent’s reliance on the Supreme Court’s recognition in these
cases that the texts of the federal statutes involved (such as the antitrust statutes in
CompuCredit), do not “mention” class actions, and the Court’s reference to its earlier decision in
Gilmer, in which it upheld a class action waiver even though the Age Discrimination in
Employment Act (ADEA) permitted collective actions. 136 S.Ct. at 673 and 133 S.Ct. at 2311. 30
In further contrast, the ADEA, addressed in Gilmore, has as its central purpose the protection of
older workers from discrimination in the workplace, whereas here, the NLRA expressly
mandates as its core purpose the “right to engage in collective action—including collective legal
action.” of disputes challenging employment related rights of employees. See D.R. Horton, 357
NLRB No. 184, slip op. at 12.35

9
The Board distinguished Gilmer, in that it “addresses neither Section 7 nor the validity of a class action
waiver,” and involved an individual claim and an arbitration agreement without any language specifically
waiving class or collective actions. 357 NLRB No. 184, slip op. at 10, fn. 22.
10
The Supreme Court in CompuCredit invalidated an arbitration agreement waiving the ability of consumers
to sue a credit card marketer and the card’s issuing bank in court for alleged violations of the Credit
Organization Act (CROA).
11
Both CompuCredit and American Express Co., were decided subsequent to D.R. Horton, but did not
mention it.
JD(ATL)–20–14
10
C. Respondent Violated Section 8(a)(1) of the Act by Maintaining and Enforcing
the Terms Of Its AA that Preclude Class or Collective actions, Notwithstanding,
Exceptions Regarding NLRB Claims or Opt-out Provisions
5
An employer violates Section 8(a)(1) by maintaining work rules that tend to chill
employee Section 7 activities. Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Rules
explicitly restricting Section 7 activities violate Section 8(a)(1). Lutheran Heritage Village -
Livonia, 343 NLRB 646 (2004). But where a workplace rule does not explicitly restrict Section
7 activity, the General Counsel must establish by a preponderance of the evidence that: (1) 10
employees would reasonably construe the rule to prohibit Section 7 activity; (2) the employer
adopted the rule in response to union activity; or (3) the employer applied a rule to restrict
employee Section 7 activity. Id. at 647. If a rule explicitly infringes on the Section 7 rights of
employees, the mere maintenance of the rule violates the Act without regard for whether the
employer ever applied the rule for that purpose. Guardsmark v. NLRB, 475 F.3d 369, 375–376 15
(DC Cir. 2007).
Indeed, the Board in D.R. Horton relied on these principles in finding that the mandatory
arbitration agreement violated Section 8(a)(1) because it expressly restricted protected activity
by requiring employees to “refrain from bringing collective or class claims in any forum.” 357 20
NLRB No. 184, slip op. at 5. This conclusion is based on the determination that “employees who
join together to bring employment-related claims on a classwide or collective basis in court or
before an arbitrator are exercising rights protected by Section 7 of the NLRA.” Id. at 3. In other
words, the Board in its reasoning provides that an employer may require arbitration on an
individual basis if it does not preclude employees from all class or collective judicial options. 25
Further, the Court and Board have long held that concerted legal action addressing
wages, hours, and working conditions constitute concerted protected activity under Section 7 of
the Act. D.R. Horton, 357 NLRB No. 184, slip op. at 2–3, citing Eastex, Inc. v. NLRB, 437 U.S.
556, 565–566 (1978); Le Madri Restaurant, 331 NLRB 269, 275 (2000) (filing of a civil suit by 30
employees is protected activity). Again, the Board has repeatedly made clear that the right to
engage in collective action, including legal action, around these types of issues is a fundamental
right specifically protected by the NLRA and is “the foundation on which the Act and Federal
labor policy rest.” 357 NLRB No. 18, slip op. at 10. In this case, Respondent has not only
prohibited collective concerted activity, but did the opposite of what the Board in D.R. Horton35
specifically forbid, expressly limiting its employees to individual arbitration as the sole venue for
disputes, and requiring all employees, including those drivers referenced in Firmin’s class claim,
to forgo their substantive right to collectively pursue legal action. Respondent expressly required
this in its AA, and enforced it through its efforts, including threat of attorneys’ fees and costs, to
get Firmin to dismiss his federal complaint and its motion to dismiss Firmin’s class arbitration 40
claim.
Although the AA here does not restrict access to the Board, it unlawfully precludes all
other substantive collective legal action in a court or arbitral forum as addressed above. In D.R.
Horton, the mutual arbitration agreement was unlawful, not just because it restricted access to 45
the Board, but also because it prohibited other collective legal action. Thus, I find that
Respondent’s AA and its class or collective action waiver in this case violates Section 8(a)(1) not
JD(ATL)–20–14
11
because it does or does not allow its employees to file charges with the Board, but because it
interferes with and restricts its employees from engaging concerted activity, i.e., bringing class
or collective action regarding employment disputes in any forum at all. The fact that
Respondent’s AA provides that employees may file charges with the Board does not cure this
defect or rather, make its actions lawful. 5
Likewise, I disagree with Respondent’s argument that because its AA expressly allows its
employees to act in concert with others, without fear of discipline (even for actually brining class
and collective claims), their Section 7 rights have been sufficiently preserved. Respondent also
maintains that its AA therefore allows other non-legal action among its employees such as 10
allowing them, for example, to discuss their individual claims, to serve as witnesses in each
others’ individual actions or to assist in those actions, and to pool their resources towards those
efforts. Those employees, however, would obviously be precluded, for example, from joining
with employees who had opted out, consciously or by failing to meet the unreasonable 30-day
deadline, to pursue resolution of employment-related disputes through litigation or arbitration. 15
They would certainly, and reasonably, be hesitant to engage, or even chilled from engaging with,
those employees who opted out, or not, to strategize regarding such matters given the otherwise
prohibitive language in Respondent’s AA. Nevertheless, Respondent does not escape liability
from expressly restricting its employees from filing a class or concerted action in any and all
forums. 20
Respondent’s attempt to insulate itself from liability by way of its AA’s opt-out provision
also fails. Respondent claims its AA differs from the one at issue in D.R. Horton, in that its one-
time opt-out opportunity makes the AA voluntary, thereby rendering it lawful under the Act, and
creating a balance between its goals associated with its AA and the Act. However, the purpose 25
of the Act, to balance to the inequality of bargaining power between employees, who are not on
the same standing, and employers “who are organized in the corporate or other forms of
ownership association” simply cannot be ignored here. 29 USC § 102. Indeed, the very act of
requiring employees, especially new employees, to affirmatively make a decision to permanently
waive their future rights protected under the Act, within a short time period (30 days of 30
employment or of signing the AA), creates a smokescreen and serves to restore the inequity the
Act intends to restore. Such a requirement is also an unreasonable burden which presumes that
employees will have considered, without representation, complex legal rights and consequences,
many of which cannot reasonably be foreseen. It matters not, as Respondent suggests, that the
Board in D.R. Horton did not address this issue, and in fact, referenced such an issue as 35
presenting a “more difficult question.” 357 NLRB No. 184, slip op. at 13, fn. 28. It is clear here
that the AA with its class action waiver and opt-out provision not only chills Firmin’s (and other
employees’) Section 7 concerted activity, but imposes an unlawful burden on him and other
employees to irrevocably relinquish certain fundamental employment rights. This is true
whether employees decide to opt out or not. Further, the Board has consistently established that 40
employees may not be required to prospectively waive their statutory rights. Ishikawa Gasket
American, Inc., 337 NLRB 175, 176 (2001).
Respondent also seeks to disavow administrative law judge decisions in which the judges
rejected the argument that an opt-out provision rendered an arbitration agreement voluntary, and 45
therefore, legal under the Act. (See R. Br. citing, e.g. 24 Hour Fitness USA, Inc. (Case 20–CA–
035419, Nov. 6, 2012). Although I understand that administrative law judge decisions are not
JD(ATL)–20–14
12
precedent I agree with the reasoning in those decisions that such opt-out provisions do not
preclude a finding of violation of the Act. (R. Br.) I do not agree with Respondent’s reliance on
contrary administrative law judge decision, Bloomingdale, Inc., Case 31–CA–071281, June 25,
2013), for the reasons set forth above.
5
Next, Respondent argues that Firmin did not engage in protected, concerted activity by
filing a class action complaint and demand for class arbitration. Respondent asserts that there is
no evidence that Firmin engaged in any activity “with or on authority of others,” or sought
support of others before filing his complaint, and that the mere filing of a class complaint is not
enough to engage protection of the Act. (R. Br.) Respondent also claims, and cites cases in 10
support thereof, that it is necessary to present evidence that the employer had knowledge that
there existed legitimate and actual evidence of concerted activity. (See R. Br. at 6.) These
arguments also fail. The Board in D.R. Horton recognized that an individual who files a class or
collective action, whether in court or through arbitration, clearly seeks to induce or initiate group
action and is engaged in collective activity protected by Section 7. 357 NLRB No. 184, slip op. 15
at 3. Moreover, the Board has long held that concerted activity can include actions of a single
person who “seek[s] to initiate or to induce or to prepare for group action.” Meyers Industries,
281 NLRB 882, 885–887 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988). I agree with the Board’s recognition in D.R. Horton
20
I also reject Respondent’s argument that its interference with Firmin’s efforts to pursue
his FLSA claims in federal court (by sending its August 15, 2013 letter to Firmin’s counsel)
and to dismiss Firmin’s request for class arbitration are protected by the First Amendment.
Respondent’s reliance on the Supreme Court’s decision in Bill Johnson’s Restaurants, Inc. v.
NLRB, 461 U.S. 731, 737 (1983), is misplaced. In Bill Johnson’s, 461 U.S. at 737, fn. 5, the 25
Supreme Court, in its formulation of an accommodation between Section 7 rights and the First
Amendment, clearly stated that the Board could in fact enjoin a lawsuit that seeks relief that is
unlawful under the NLRA, and also cited several authorities where that had been done and
approved by the courts.12 Thus, this explicit exclusion from the Court’s analysis of lawsuits with
“an objective that is illegal under federal law,” applies to the instant case where I have already 30
found that Respondent violated the Act by maintaining its AA’s class action waiver and
enforcing it by using threats to influence Firmin to withdraw his federal complaint and filing a
motion to dismiss his class arbitration claim. Id.
Finally, I reject Respondent’s assertion that this case should be dismissed because Firmin 35
attempted to withdraw the underlying charge. The Regional Director obviously did not grant this
request, and caused the complaint in this case to be issued.
For the foregoing reasons, I find that Respondent has been interfering with, restraining,
and coercing employees in the exercise of rights of Firmin and its other employees, guaranteed 40
under Section 7, in violation of Section 8(a)(1) of the Act by maintaining and enforcing the terms
of its AA that preclude class or collective action in any forum; requiring Firmin to relinquish his
class or collective claims in federal court and threatening imposition of attorney’s fees and other

12 Citing e.g., Granite State Joint Board, Textile Workers Union, 187 NLRB.636, 637 (1970), enforcement
denied, 446 F.2d 369 (CA1 1971), revd., 409 U.S. 213 (1972); Booster Lodge No. 405, Machinists &
Aerospace Workers, 185 NLRB 380, 383 (1970), enfd. in relevant part, 148 U.S. App. D.C. 119, 459 F.2d
1143 (1972), affd., 412 U.S. 84 (1973).
JD(ATL)–20–14
13
costs if the suit was not dismissed; and moving to dismiss Firmin’s class arbitration claim before
the AAA. This is true despite the NLRB claim exception and opt-out provision contained in the
AA in question.
CONCLUSIONS OF LAW5
1. Respondent RPM Pizza, LLC, is an employer engaged in commerce or an
industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. By maintaining and enforcing the terms of its arbitration agreement that waives 10
the right of its employees/team members to file and maintain class and collective actions in all
forums, judicial and arbitral, Respondent violated Section 8(a)(1) of the Act.
3. By enforcing an arbitration agreement, with its class action waiver, by threatening
Firmin with attorney’s fees and costs if his federal lawsuit was not dismissed, Respondent 15
violated Section 8(a)(1) of the Act.
4. By enforcing an arbitration agreement and class action waiver by asserting the
provisions thereof and filing a motion with the AAA to have Firmin’s class arbitration claim
dismissed, Respondent violated Section 8(a)(1) of the Act. 20
5. The above violations are unfair labor practices within the meaning of the Act.
6. Respondent’s conduct found above affects commerce within the meaning of
Section 2(6) and (7) of the Act.25
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices set forth
above, I shall order it to cease and desist from such conduct and to take certain affirmative action 30
designed to effectuate the policies of the Act.
Having found that Respondent’s arbitration agreement is unlawful, Respondent shall be
ordered to rescind or revise such arbitration agreement to make clear to all of its employees/team
members, as defined in the arbitration agreement, that the agreement does not constitute or 35
require a waiver in all forums of their right to maintain collective or class actions, and shall
notify such employees and team members of the rescinded or revised policy by providing them a
copy of the revised policy or specific written notification that the policy has been rescinded.
On these findings of fact and conclusions of law and on the entire record, I issue the 40
following recommended13

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.
JD(ATL)–20–14
14
ORDER
Respondent RPM Pizza, LLC, Gulfport, Mississippi, its officers, agents, successors, and
assigns, shall
5
1. Cease and desist from
(a) Maintaining, enforcing, or seeking to enforce any arbitration agreement
and/or policy that waives the right of employees/team members to file and maintain class or
collective actions in all forums, arbitral and judicial, and which applies irrevocably to those 10
employees/team members who fail to opt out.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
15
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Rescind or revise the arbitration policy to make it clear to all of its
employees/team members, as defined in the arbitration agreement, that the agreement does not 20
constitute or require a waiver in all forums of their right to maintain collective or class actions.
(b) Notify the employees/team members of the rescinded or revised policy by
providing them a copy of the revised policy or specific written notification that the policy has
been rescinded. 25
(c) Within 14 days after service by the Region, post at its Gulfport,
Mississippi, Destrehan, Louisiana, and all other of its facilities where the AA at issue has been in
effect copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 15, after being signed by the Respondent’s 30
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, inasmuch as Respondent customarily communicates with its employees by such means. 35
Reasonable steps shall be taken by the Respondent to ensure that the posted hard copy notices
are not altered, defaced, or covered by any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time 40
since January 26, 2011.

14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(ATL)–20–14
15
(d) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
5
Dated, Washington, D.C. July 11, 2014
10
_________________________
Donna N. Dawson
Administrative Law Judge
JD(ATL)–20–14
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain or enforce a binding arbitration agreement (AA) that waives the right
of employees/team members to file or maintain class or collective action in all forums, arbitral or
judicial.
WE WILL NOT enforce or seek to enforce arbitration agreements by threatening
employees/team members with attorney’s fees or costs if they do not dismiss class or collective
claims.
WE WILL NOT enforce or seek to enforce arbitration agreements by filing motions to dismiss
class or collective action lawsuits or arbitrations and to compel individual arbitration pursuant to
terms of the AA.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees/team
members in the exercise of their rights guaranteed them by Section 7 of the Act.
WE WILL NOT require our employees/team members to sign binding arbitration agreements
that prohibit class and collective litigation in all forums, judicial and arbitral.
WE WILL rescind or revise the arbitration policy to make it clear to all of its employees/team
members, as defined in the arbitration agreement, that the agreement does not constitute or
require a waiver in all forums of their right to maintain collective or class actions.
WE WILL notify the employees/team members of the rescinded or revised policy by providing
them a copy of the revised policy or specific written notification that the policy has been
rescinded.
JD(ATL)–20–14
RPM PIZZA, LLC
(Employer)
Dated ___________________ By ______________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3408
(504) 589-6361 Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/15-CA-113753 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (504) 589-6389