The Pep Boys Manny Moe & Jack of California

National Labor Relations Board - Administrative Judge Opinions

Mar 7, 2014

31-CA-104178 (N.L.R.B. Mar. 7, 2014)

JD(SF)–06–14
Inglewood, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
THE PEP BOYS MANNY MOE & JACK
OF CALIFORNIA
and Case 31-CA-104178
ROBERT NASH, an Individual
Nikki Cheaney, Esq., Los Angeles,
CA for the General Counsel
Matthew Righetti, Esq., Righetti Glugoski,
P.C., San Francisco, CA for the Charging
Party
Ross H. Friedman, Esq., Morgan Lewis
& Bockius, LLP, Chicago, IL, for the
Respondent
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: This matter is based on a stipulated
record. The initial charge in this matter was filed on April, 30, 2013. Since the submission of this
matter to me on December 11, 2013, briefs have been received on January 28, 2014 from
Counsel for the General Counsel (General Counsel), and counsel for the Respondent. Upon
the stipulated record, and consideration of the briefs submitted, I make the following:
Findings of Fact
I. Jurisdiction
At all material times Respondent The Pep Boys Manny Moe & Jack of California has
been a corporation with an office and place of business located in Inglewood, California, and
has been engaged in operating retail auto parts stores. In the conduct of its business operations
the Respondent annually derives gross revenues in excess of $500,000 and purchases and
receives at its Inglewood, California facility products, goods and materials valued in excess of
$5,000 directly from points outside the State of California. It is admitted and I find that the
Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and
(7) of the National Labor Relations Act (Act).
JD(SF)–06–14
2
II. Alleged Unfair Labor Practices
A. Issues
The principal issue in this proceeding is whether the Respondent has violated and is 5
violating Section 8(a)(1) of the Act by maintaining a dispute resolution agreement , entitled
Mutual Agreement to Arbitrate Clams (Agreement), requiring individual mandatory arbitration
and precluding employees , including a former employee, the charging party herein, Robert
Nash, from engaging in concerted activity by filing and participating in collective class actions.
10
B. Facts
The facts are not in dispute. The stipulation of facts entered into by the parties to this
proceeding, together with the Agreement and other accompanying exhibits, in pertinent part, are
as follows: Robert Nash, the Charging Party, is a former employee of the Respondent. Nash 15
was required to sign the Agreement as a condition of employment with the Respondent. He did
so on July 19, 2012. The Agreement by its terms requires employees to resolve all current and
future employment-related disputes exclusively through individual arbitration proceedings. The
Agreement provides that it should not be interpreted to restrict the filing of charges or
complaints with the National Labor Relations Board or any other federal, state or local 20
administrative agency. The Agreement provides that “This Agreement will survive the
termination of Employee’s employment with the Company as well as the termination of or
expiration of any benefit of such employment.”
Analysis and Conclusions 25
D.R. Horton, Inc., 357 NLRB No, 184 (2012) is the controlling Board decision in this
matter. The Respondent maintains that D. R Horton was wrongly decided, and in its
comprehensive brief significantly relies upon the recent Fifth Circuit decision which considers
and discusses many of the arguments raised by the Respondent, which need not be 30
reexamined herein, and denies enforcement of D.R, Horton in material respects.1 However, I am
required to follow D.R. Horton unless reversed by the Supreme Court. Waco, Inc., 273 NLRB
746, 749 fn. 14 (1984); Los Angeles New Hosp., 244 NLRB 960, 962 fn. 4 (1979), enforced 640
F2d 1017 (9th Cir. 1981); Pathmark Stores, Inc., 342 NLRB 378, fn. 1(2004).
The Board determined in D. R. Horton that as a condition of employment “employers 35
may not compel employees to waive their NLRA right to collectively pursue litigation of
employment claims in all forums arbitral and judicial.” 357 NLRB No. 184, slip op. at p. 12
(2012). As the Agreement by its terms restricts employees, as a condition of their employment,
from acting concertedly by pursuing arbitral and judicial litigation of employment claims, I find
that it is facially unlawful. 40
The Respondent maintains the charge is time-barred by Section 10(b) of the Act, having been
filed on April 30, 2013 more than six months after July 19, 2012, the date Nash signed the
Agreement. Nash, as a former employee, nevertheless continues to be an employee within the
meaning of the Act. Little Rock Crate and Basket Company, 227 NLRB 1406 (1977); Waco, Inc.,
273 NLRB 746, 747 fn. 8 (1984). Because the Agreement is facially invalid and, as noted,45
currently remains in effect and governs Nash’s collective rights under the Act, it is clear that the
charge is not time-barred. Control Services, 305 NLRB 435, 435 fn. 2, 442 (1991), enfd. mem.

1 D.R. Horton, Inc. v NLRB, 737 F.3d 344 (5th Cir. 2013).
JD(SF)–06–14
3
961 F2d 1568 (3rd Cir. 1992); The Guard Publishing Co., 351 NLRB 1110, 1110 fn.2 (2007). Cf.
Local Lodge No. 1424 v. NLRB, 362 U.S. 411 (1960).
The Respondent maintains the Agreement is not unlawful because it specifically permits
employees to file charges or complaints with other administrative agencies, specifically
including the NLRB. The gravamen of the violation herein is the restriction of employee’s rights, 5
as a condition of employment, to engage in concerted activity by collectively pursuing litigation
of employment claims in all forums arbitral and judicial. Here, the Respondent is attempting to
circumscribe and limit those rights by permitting only individual arbitration of all claims and
charges or complaints before administrative agencies. As the Board makes clear in D.R.
Horton, the forums for collective action by employees may not be limited to the NLRB or other 10
administrative agencies. I find the Respondent’s argument to be without merit.
The Respondent maintains the Board did not have the authority to decide D. R. Horton
due to the recess appointment issue regarding the composition of the Board. See Noel
Canning V. NLRB, 705 F.3d 490, 2013 WL 276024 (D.C. Cir. Jan. 25, 2013). Moreover, the
Respondent contends that the complaint is invalid as a result of the interim appointment of the 15
Regional Director who issued the instant complaint. These matters are currently being
considered in other forums. The Board has noted that until such matters are ultimately decided
it shall continue to fulfill its responsibilities under the Act. Belgrove Post Acute Care Center,
359 NLRB No. 77, slip op. 1, fn. 1(March 13, 2013): Universal Lubricants, LLC, 359 NLRB No.
157, slip op. 1, fn. 1(July 16, 2013). 20
On the basis of the foregoing, I find the Respondent has violated and is violating Section
8(a)(1) of the Act as alleged.
Conclusions of Law and Recommendations
25
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Respondent has violated Section 8(a) (1) of the Act as alleged.
30
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that it be required to cease and desist therefrom and from in any other like or
related manner interfering with, restraining, or coercing employees in the exercise of their rights 35
under Section 7 of the Act. I shall also recommend the posting of an appropriate notice,
attached hereto as “Appendix,” at the locations where the Agreement has been in effect.
ORDER2
40
The Respondent, The Pep Boys Manny Moe and Jack of California, its officers, agents,
successors, and assigns, shall:

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations,
the 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(SF)–06–14
4
1. Cease and desist from:
(a) Maintaining the Mutual Agreement to Arbitrate Claims that requires
employees to waive their right to maintain class or collective action in all 5
forums, whether arbitral or judicial.
(c) 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.10
2. Take the following affirmative action, which is necessary to effectuate the purposes of
the Act:
(a) Rescind or revise the Mutual Agreement to Arbitrate Claims that requires 15
employees to waive their right to maintain class or collective action in all
forums, whether arbitral or judicial.
(b) Advise all employees, by all means that employees are customarily advised
of matters pertaining to their terms and conditions of employment, that the 20
Agreement has been rescinded or revised and that employees are no longer
prohibited from bringing and participating in class action lawsuits against
the Respondents.
(c) Within 14 days after service by the Region, post at all locations where 25
notices to employees are customarily posted, and transmit to employees by
all means that employees are customarily advised of matters pertaining to
their terms and conditions of employment, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided by the Regional
Director for Region 31, after being duly signed by Respondent’s 30
representative, shall be posted and electronically transmitted to employees
immediately upon receipt thereof, and shall remain posted for 60
consecutive days thereafter. Reasonable steps shall be taken by
Respondent to ensure that the posted notices are not altered, defaced, or
covered by any other material.35
(d) Within 21 days after service by the Regional Office, file with the Regional
Director for Region 31 sworn certifications of responsible officials on forms
provided by the Region attesting to the steps that Respondent has taken to
comply.40
Dated, Washington, D.C. March 7, 2014
45
_______________________
Gerald A. Wacknov
Administrative Law Judge
50
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
WE WILL NOT maintain a mandatory arbitration agreement, known as the Mutual Agreement to
Arbitrate Claims, that requires employees, including former employees, as a condition of
employment, to waive their right to maintain class or collective actions in all forums, whether
arbitral or judicial regarding employment-related matters.
WE WILL rescind or revise the aforementioned arbitration agreement to make it clear to
employees that the agreement does not constitute a waiver of their right in all forums to
maintain class or collective actions.
WE WILL notify employees of the rescinded or revised agreement, and provide them with a
copy of the revised agreement or specific notification that the agreement has been rescinded.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.
THE PEP BOYS MANNY MOE
& JACK OF CALIFORNIA
___________________________
(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.
11500 West Olympic Boulevard, Suite 600, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
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, (310) 235-7424