UNITEDHEALTHCARE SERVICES, INC. AND UNITEDHEALTH GROUP, INC., AS SINGLE OR JOINT EMPLOYERS

National Labor Relations Board - Administrative Judge Opinions

Aug 5, 2014

02-CA-118724 (N.L.R.B. Aug. 5, 2014)

JD(NY)–32–14
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
UNITEDHEALTH GROUP, INC. and
UNITEDHEALTH CARE SERVICES INC.
and Case No. 02-CA-118724
CARLOS AVILES, SEYNABOU BA,
CHERRIE BLACKMAN, SIRO BRENES,
ROBERT BURNETT, RUBEN DEJESUS,
DENNIS EDWARDS, VICTOR FELICIANO,
MARIA FONSECA, CLAUDIE FOUTIKA,
LISANDRO GALVAN, ROSA GARCIA,
MOHAMED HAQUE, DANIELLE HERARD,
MONIKA KRYNSKA, TAMIKA LEWIS,
FIORDALISA MARTE, SETOU MCCLENDON,
CARMELITA RATNA, VICTOR SERRANO,
CARMILO SUAREZ, JANIRA TORRES,
AND MIRRIAN ZELAYA
Julie Polakoski-Rennie, Esq., Counsel for the
the General Counsel
Peter A. Walker, Esq., Christopher H. Lowe, Esq.
and Lori M. Meyers, Esq., (Seyfarth Shaw LLP),
for the Respondent.
DECISION
Raymond P. Green, Administrative Law Judge. This case was presented to me by way
of a stipulated record.1 The charge was filed by Outten & Golden LLP, counsel for the Charging
Parties named above in the caption on December 10, 2013 and served on December 11, 2013.
The amended charge was filed on December 10, 2013 and served on April 16, 2014. The
Complaint was issued by the Regional Director on January 31, 2014.
Findings and Conclusions
I. Jurisdiction
The Respondents admit and I find that they are employers engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act. 2

1 By entering into the Stipulation, the parties agreed that the facts contained therein are true, albeit
the parties do not concede the relevance of each fact recited. Each party reserved the right to make
objections to the relevance of any fact stated.
2 The Respondents and the General Counsel reserved their respective positions as to whether the
Respondents and any subsidiaries applying the UnitedHealth Group Employment Arbitration Policy are or
are not joint employers. They agree that in light of the stipulated record, it is unnecessary to litigate this
issue or make any findings of fact or conclusions of law as to it.
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II. The Alleged Unfair Labor Practice
The stipulated facts are as follows:
Since at least September 2007, the Respondents have promulgated and maintained
individual arbitration agreements entitled “UnitedHealth Group Employment Arbitration Policy”
with its current and former employees and the current and former employees or its subsidiaries.
A copy of an exemplar agreement, at times referred to herein as the Arbitration Agreement, is
attached to the Stipulation as Exhibit G.
In pertinent part, the Arbitration policy as set forth in Exhibit G to the Stipulation; this
being the document signed by Carlos J Aviles on April 3, 2012, states:
Statement of Intent
UnitedHealth Group… acknowledges that disagreements may arise between an
individual employee and UnitedHealth Group or between employees in a
context that involves UnitedHealth Group. UnitedHealth Group believes that the
resolution of such disagreements is best accomplished through internal dispute
resolution (IDR) and where that fails by arbitration administered through the
American Arbitration Association (AAA)….
This policy is a binding contract between UnitedHealth Group and its
employees. Acceptance of employment or continuation of employment with
UnitedHealth Group is deemed to be acceptance of this Policy. However, this
Policy is not a promise that employee will continue for any specified period of
time or end only under certain condition. Employment at UnitedHealth Group is
a voluntary (at will) relationship existing for no definite period of time and this
Policy does not change that relationship
Scope of Policy
The agreement between each individual employee and UnitedHealth Group to
be bound by the Policy creates a contract requiring both parties to resolve most
employment-related disputes (excluding disputes are listed below) that are
based on a legal claim through final and binding arbitration. Arbitration is the
exclusive forum for the resolution of such disputes and the parties mutually
waive their rights to a trial before a judge or jury in federal or state court in favor
of arbitration under the Policy.
The disputes covered by this Policy include any dispute between an employer
and any other person where (1) the employee seeks to hold UnitedHealth
Group liable on account of the other person’s conduct, or (2) the other person is
also covered by this Policy and the dispute arises from or relates to
employment, including termination of employment with UnitedHealth Group.
The disputes covered under the Policy also include any dispute UnitedHealth
Group might have with a current or former employee which arises or relates to
employment.
* * *
A dispute is based on a legal claim and is subject to this Policy if it arises from
or involves a claim under any federal, state or local statute, ordinance,
regulation or common law doctrine regarding or relating to employment
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discrimination, terms and conditions of employment, or termination of
employment including, but not limited to the following: Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the Family and Medical
Leave Act, the Fair Labor Standards Act and all applicable amendments and
regulations, state human rights and non-discrimination laws; whistleblower or
retaliation claims, breach of contract, promissory estoppels, or any other
contract claim, and defamation, employment negligence, or any other tort claim
not specifically excluded from coverage. Claims excluded from arbitration under
the Policy are claims for severance benefits under the UnitedHealth Group
Severance Pay Plan, claims for benefits under UnitedHealth Group other
ERISA benefit plans and claims for benefits under UnitedHealth Group’s Short-
Term Disability Plan. A separate policy applies to certain of these benefit-
related claims…. 3
Any dispute covered by this policy will be arbitrated on an individual basis. No
dispute between an employee and UnitedHealth group may be consolidated or
joined with a dispute between any other employee and UnitedHealth group, nor
may an individual employee seek to bring his/her dispute on behalf of other
employees as a class or collective action. Any arbitration ruling by an arbitrator
consolidating the disputes of two or more employees or allowing class or
collective action arbitration would be contrary to the intent of this Policy and
would be subject to immediate judicial review.
This Policy does not preclude an employee from filing a claim or charge with a
governmental administrative agency, such as the National Labor Relations
Board, the Department of Labor, and the Equal Employment Opportunity
Commission, or from filing a workers’ compensation or unemployment
compensation claim in a statutorily specified forum In addition, this Policy does
not preclude either an employee or UnitedHealth Group from seeking
emergency or temporary injunctive relief in a court of law in accordance with
applicable law. However, after the court has issued a ruling concerning the
emergency or temporary injunctive relief, the employee and UnitedHealth
Group are required to submit the dispute to arbitration pursuant to this Policy.
The Policy goes on to describe the procedures relating to the arbitration process. For
example, it permits either side to compel pre-trial disclosure in the form of interrogatories,
requests for the production of documents, the taking of depositions, and the requirement for
submission to mental and physical examinations. It also provides for the filing of post hearing
briefs. Thus, in substantial respects, the procedure outlined in the Policy mimics that of a civil
trial held in a federal or state court. And unless we are exaggerating the knowledge or skill set
of lawyers, we can assume that having competent legal counsel would be advisable for any
individual who seeks to utilize this procedure.

3 Exhibit H to the Stipulation which is entitled “Employment Arbitration Policy” indicates that its
effective date is October 2, 1995. It differs in some respects from Exhibit G which was executed in 2013
by an employee. Among other things, it excludes from mandatory arbitration a number of claim types that
are not excluded in Exhibit G. For example it excludes from mandatory arbitration, inter alia, claims under
Title VII of the Civil Rights Act of 1964, or any tort related to or arising out of sexual assault or
harassment, false imprisonment claims, negligent hiring claims and claims arising pursuant to the Dodd-
Frank Wall Street Reform and Consumer Protection Act.
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As to costs, the Policy basically allows an individual who files with the AAA to pay only a
$25 filing fee. In the event that the arbitration is initiated by the Employer, the Policy states that
it will pay 100% of the administrative fees. 4 It further states (a) that expenses of witnesses for
either said shall be paid by the party requiring the presence of such witness; and (b) that each
side shall pay its own legal fees and expenses, except where such legal fees and expenses
may be awarded under applicable law. The Policy goes on to state that all other expenses
(except Postponement Fees or Additional Hearing Fees resulting from the actions or inactions
of the employee or employee’s representative), of the arbitration, such as required travel and
other expenses of the arbitrator (including any witness produced at the direction of the
arbitrator), and the expenses of a representative of AAA, if any, shall be paid completely by
UnitedHealth Group. It goes on to state that if the arbitrator finds that either party’s demand for
arbitration is frivolous, or vexations, or not filed in good faith, he may require the offending party
to reimburse the other party for the arbitrator’s expenses. Written in a manner perhaps
understandable by persons having a legal degree, I don’t think that this section of the Policy
actually states or describes who will be responsible for paying the arbitrator’s fee, typically at
about a $1000 per day. (Expenses are not the same thing as fees).
I don’t know the wage scales of the employees who are required to sign this document
as a condition of retaining their jobs, or the wage scales of those individuals who are the
Charging Parties in this case. But, it seems obvious to me that unless they are highly paid
individuals, such as high level or senior level managers, having annual earnings of at least six
figures, the cost structure of the Policy would clearly place employees at a substantial
disadvantage vis a vis the company, even assuming that such employee would even be able to
pay for legal representation. As such, it is probable that many employees if they were
compelled to arbitrate, on a non-class basis, their employment related claims, including wage
and hour claims under Federal or State statutes, they would find themselves effectively
precluded from vindicating statutory rights through non-governmentally initiated legal action.
Nevertheless, considerations of cost or equity may not be a relevant consideration and
in this respect, the Respondents cite American Express Co. v. Italian Colors Rest., U.S., No. 12-
133, 6/20/13, in which the Supreme Court held that a class action waiver in a commercial
arbitration agreement between American Express Co. and merchants accepting the company's
credit cards is enforceable under the Federal Arbitration Act even if individual arbitration claims
of alleged antitrust violations would be too expensive to pursue. The Court’s majority opinion
stated that the Federal Arbitration Act does not permit a court to invalidate a contractual waiver
of class arbitration because a plaintiff's costs in individually arbitrating a federal statutory claim
would exceed any potential recovery.
Since at least September 2007 and currently, the Respondents have required their
employees and the employees of their subsidiaries to enter into the Arbitration Agreements
described above.
The following employees are among those of Respondents employees who signed the
Arbitration Agreement.

4 If an employee or group of employees files a lawsuit and the employer seeks to have the lawsuit
dismissed and to compel arbitration under this Policy, does this mean that it is the employer which is
initiating the arbitration?
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Name Hire date Termination date Date Arbitration
Agreement signed.
Aviles, Carlos 04/02/12 02/07/13 04/03/12
Ba, Senynabou 01/31/11 06/22/11 02/23/11
Name Hire date Termination date Date Arbitration
Blackman, Cherrie 02/21/11 Active 02/21/11
Brenes, Siro 10/15/07 03/26/11 10/22/07
Burnett, Robert 09/27/10 07/25/13 10/07/10
Dejesus, Reuben 06/06/10 12/16/10 06/08/10
Edwards, Dennis 12/17/12 06/30/13 12/17/12
Feliciano, Victor 11/05/07 10/15/11 12/20/10
Foutika, Claudie 01/03/11 03/20/12 01/24/11
Galvan, Lisandro 10/17/11 08/09/12 11/11/11
Garcia, Rosa 02/11/13 07/12/13 03/04/13
Hague, Mohamed 01/02/08 05/13/08 01/02/08
Herard, Danielle 02/07/11 07/01/11 02/07/11
Krynska, Monika 04/08/13 11/18/13 04/08/13
Lewis, Tamika 12/17/12 05/19/13 12/17/12
Marte, Fiordalisa 09/24/07 12/17/08 10/02/07
(nee Martinez)
McCendon, Sekou 12/17/12 04/28/13 12/17/12
Ratna, Carmelita 05/21/12 02/02/13 05/31/12
Serrano, Victor 08/17/09 05/29/10 09/09/09
Suarenz, Camilo 11/06/12 06/22/13 11/14/12
Torres, Janira 08/03/09 10/27/11 08/22/09
Zelaya, Miriam 04/08/13 Active 04/08/13
There are more than 100,000 current and former employees of the Respondents and
their subsidiaries who have been covered by the Arbitration Agreement. Since 2011, there
have been approximately 2500 cases which have begun the individual dispute resolution and
been resolved both prior to and at arbitration, including cases involving supervisors and
managers who are not covered by the National Labor Relations Act.
On or about February 1, 2013, the Honorable Dennis R. Hurley issued a Memorandum
Decision & Order compelling arbitration in Torres v. United Health care Services, Inc., 920 F.
Supp. 2d 368 (E.D.N.Y. 2013).
On or about December 2, 2013, Maxim Litvinov filed a class action complaint in the
United States District Court for the Southern District of New York alleging violations of the Fair
Labor Standards Act (FLSA) This is captioned Maxim Litvinov, on behalf of himself and all
others similarly situated, against UnitedHealth Group Inc., Case 13-Civ.08541-KBF.
On January 3, 2014, Tamika Lewis, an employee, filed a written consent with the United
States District Court for the Southern District of New York, to join in the law suit filed by Litvinov,
described above.
On February 12, 2014, UnitedHealth Care Group filed a Motion with the United States
District Court for the Southern District of New York in the above described matter seeking to
dismiss the claim of Litvinov and the one opt-in plaintiff, Lewis, and to compel them to arbitrate
their claims individually pursuant to the terms of the Arbitration Agreement.
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On or about March 11, 2014, the Honorable Katherine B. Forrest issued a Memorandum
Decision & Order enforcing the Arbitration Agreement and compelling arbitration of the Litvinov
suit. 2014 WL 1054394 (S.D.N.Y. March 11, 2014).
III. Analysis
It should be kept in mind what is not being decided here. We are not being asked to
decide what would happen if a group of employees or a single employee on behalf of a group,
disavowed the arbitration agreement, asserting that because it has no finite duration, it is
terminable at will by either side. Nor are we being asked to decide what would happen if
employees who file a class action lawsuit, (or disavow the arbitration agreement before doing
so), are discharged on that account. Could the employer in such circumstance declare that by
filing, or expressing an intention to file a class action lawsuit, the employees involved had
breached their employment agreements and therefore could be discharged without violating
Section 8(a)(1) of the Act?
The Respondents contend that the Complaint is barred by the Statute of Limitations set
forth in Section 10(b) of the Act. In this regard, it is noted that the Policy was initiated more than
six months before the charge was filed. Also, all of the individual employees cited in the charge
executed arbitration agreements more than six months prior to the filing of the charge.
Nevertheless, the Complaint alleges and the Respondents concede that the arbitration
policy is currently in force and effect. Indeed, the evidence here shows that after the filing of the
charge, and before the issuance of the Complaint, the Respondents have successfully sought to
enforce the policy by filing Motions in the Federal District Courts to compel arbitrations on an
individual basis.
The Complaint essentially alleges a “continuing” violation of the Act and the Board has
consistently held that an agreement entered into outside the 10(b) period may be found to be
unlawful if the provisions are unlawful and are being enforced within the 10(b) period. Control
Services, 305 NLRB 435, fn. 2 (1991) enfd. 961 F.2d 1569 (3d Cir. 1992); Teamsters Local 293
(R.L. Lipton Distributing), 311 NLRB 538, 539 (1993; and Whiting Milk Corp., 145 NLRB 1035,
1037-1038 (1964).
Indeed, the Board has held that even where an employer’s published rules restricting
union or concerted activity, were enacted and not enforced within the 10(b) period, it will violate
the Act merely by maintaining such rules in existence. Carney Hospital, 350 NLRB 627, 640
(2007).
The Respondents assert that the provisions of the Policy are not illegal because among
other things, various Circuit Courts have ruled that substantially similar provisions are not
violative of the NLRA. This presents a chicken and egg problem because it is the General
Counsel’s position that the provisions of the Policy are facially illegal and the Respondents’
position is that they are not. Thus, the two questions are inextricably linked and if the General
Counsel is correct, then the Respondents’ 10(b) defense cannot prevail. But if the Respondents
are correct on the merits, then it need not rely on Section 10(b).
The Respondents argue that because two Federal District Judges have already
concluded that the arbitration agreements are valid under the Federal Arbitration Act, the Board
is collaterally estopped from challenging that conclusion in this case. I don’t agree.
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For one thing, the Board was not a party in those cases and therefore it is not bound by
the legal conclusions of those cases. In Field Bridge Associates, 306 NLRB 322, (1992), the
Board stated:
The Board adheres to the general rule that if the Government was not a
party to the prior private litigation, it is not barred from litigating an issue
involving enforcement of Federal law which the private plaintiff has litigated
unsuccessfully. Allbritton Communications, 271 NLRB 201, 202 fn. 4….
Underlying this rule is the long-recognized principle that “Congress has
entrusted to the Board exclusively the prosecution of the proceeding by its
own complaint, the conduct of the hearing, the adjudication and the granting
of appropriate relief. The Board as a public agency acting in the public
interest, not any private person or group, not any employee or group of
employees, is chosen as the instrument to assure protection from the
described unfair conduct in order to remove obstructions to interstate
commerce.” Amalgamated Utility Workers v. Consolidated Edison Co., 309
U.S. 261, 265 (1940). See also National Licorice Co., v. NLRB, 309 U.S.
362-3364 (1940)…. Thus the Board, as a public agency asserting public
rights should not be collaterally estopped by the resolution of private claims
asserted by private parties…. In this case, the Board was not a party to the
New York State Court proceedings. Accordingly, we decline to give them a
preclusive effect.
The Respondents assert that Board could have been a party to the private actions filed
by Litvinov and Torres and therefore should be estopped. It is legally possible for the Board,
through its General Counsel, to intervene in a lawsuit having been filed in a state or federal
court of first impression. But that has occurred in exceptionally few instances and only in the
most compelling of circumstances. There is nothing in the Statute which would require the
Board to intervene in any private law suit which could impact on issues covered by the NLRA.
The Respondents contend that by trying to prevent them from seeking judicial
enforcement of the arbitration and non-class action agreements, the Board is violating the
Respondents’ First Amendment rights to petition to the government. In this regard, the
Respondents cite Bill Johnson’s Rests v. NLRB, 461 U.S. 731-743 (1983) and BE & K
Construction Co. v. NLRB, 536 U.S. 516 (2002). 5
The immediate question before the Supreme Court in BE & K was whether an
unsuccessfully completed lawsuit could be the basis for the Board to find that an employer
violated 8(a)(1) of the Act. In BE & K, the employer responded to a union’s campaign and
lawsuits against it by filing a lawsuit of its own. Ultimately, all of the counts in the employer’s
lawsuit were dismissed or withdrawn. After the BE & K's suit was concluded, two of the union-
defendants filed charges with the NLRB contending that by filing and maintaining the lawsuit,
BE & K had violated Section 8(a)(1). The Board found that the employer had violated the Act
and ordered it to reimburse the unions for their attorney fees.
The Supreme Court unanimously invalidated the Board's standard for imposing unfair
labor practice liability on employers who file lawsuits against unions. It concluded that even if a
lawsuit was motivated by retaliatory reasons and even if it was ultimately unsuccessful, a

5 Somewhat ironically, the Respondent’s main point is that through private agreements, it should be
allowed to require employees to forego their right to petition the courts.
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lawsuit could not be grounds for an unfair labor practice if it had some reasonable basis. That is,
the Court indicated that in order to have a reasonable basis, the plaintiff in such a lawsuit needs
to only show that he is trying to stop conduct he reasonably believes is illegal. The standard set
out by the Court was that the plaintiff’s belief be “genuine both objectively and subjectively.”
The only possible exception is a lawsuit that is shown to constitute “sham litigation.”
6
Notwithstanding the above, the Supreme Court at footnote 5 in Bill Johnson, made what
it described as an exception to the above described rule. 7 The Court stated;
It should be kept in mind that what is involved here is an employer’s lawsuit
that the federal law would not bar except for its allegedly retaliatory
motivation. We are not dealing with a suit that is claimed to be beyond the
jurisdiction of the state courts because of federal-law preemption, or a suit
that has an objective that is illegal under federal law. Petitioner concedes
that the Board may enjoin these latter types of suits…. Nor could it be
successfully argued otherwise for we have upheld Board orders enjoining
unions from prosecuting court suits for enforcement of fines that could not
lawfully be imposed under the Act, Granite State Joint Board, Textile
Workers Union, 187 NLRB 636, 637, enforcement denied, 446 F.2d 369,
revd. 409 U.S. 213; Booster Lodge No. 405 185 NLRB 380, 385, enforced
459 F.2d 1143, aff’d 412 U.S. 84, , and this Court has concluded that, at the
Board’s request, a District Court may enjoin enforcement of a state-court
injunction “where [the Board’s] federal power pre-empts the field.“ NLRB v
Nash-Finch Co., 404 U.S. 138, 144. 8
So how should we read footnote 5?
There is a category of cases where an employer, by means of a lawsuit, has directly
sought to prevent employees from having access to the Board’s processes. In such cases, it is
typically alleged that a person or persons have maliciously filed charges with the NLRB or have
furnished false statements or affidavits to the agency. Such lawsuits are almost always without
merit and should be preempted by the supremacy clause of the Constitution. While such suits
would typically be baseless and motivated by retaliatory considerations, their mere filing would
reasonably be expected to have a chilling effect on the right of people to have access to the
Board’s processes.
9
In other words, such a lawsuit is a direct attempt to prevent the Board
from carrying out its statutory mandate and can be viewed as an attempt by a private party to

6 This concise description of the Court’s decision may be a bit abrupt inasmuch as there were three
separate opinions by the Court. Justice O'Connor wrote the opinion of the Court. Justice Breyer wrote a
concurrence on behalf of himself and Justices Souter, Ginsberg, and Stevens. Justice Scalia wrote a
concurrence on behalf of himself and Justice Thomas.
7 There is no indication in BE & K that the Court intended to overrule or eliminate the Bill Johnson
footnote 5
8 In NLRB v Nash-Finch, 78 LRRM 2967, the Supreme Court held that the NLRB has implied
authority to obtain a federal court injunction to enjoin enforcement of a state court injunction regulating
peaceful picketing by a union on preemption grounds.
9 Consider the time, expense and anxiety of defending even a frivolous lawsuit that is ultimately
dismissed by a judge before a trial. One must file an Answer; file and respond to pre-trial motions;
answer interrogatories; produce documents; and give testimony under oath in pre-trial depositions. When
one considers the scope of the pre-trial questions that may be posed in a civil suit, one can see that being
a defendant in a civil action is no small matter.
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nullify the Board’s jurisdiction insofar as it affects that party. See for example, LP Enterprises
314 NLRB 580 (1994) and Manno Electric, Inc. 321 NLRB 278 (1996).
There is another category of cases which, in my opinion, would fit within the footnote 5
exception. These involve cases where the underlying acts constitute unfair labor practices and
the lawsuit is simply an attempt to enforce the underlying act. The cases cited by the Supreme
Court in footnote 5, involved situations where a union was alleged to have violated Section
8(b)(1)(A) of the Act by fining employee/members and the lawsuits were simply the mechanism
to enforce and collect the fines. Along equivalent lines there are cases where a union is
charged with violating Section 8(b)(4) and 8(e) of the Act when it seeks to enforce a contract
provision that is itself illegal under the hot cargo provisions of the Act. In such cases, as the
underlying contract is either facially illegal or would be illegal as enforced, a lawsuit or grievance
seeking to enforce such an illegal contract provision would itself be illegal under the footnote 5
exception of Bill Johnson’s. Thus, in Elevator Constructors (Long Elevator), 289 NLRB 1095,
(1988), the Board held that a Union violated Section 8(b)(4)(ii)(A) by filing a grievance that was
predicated upon a reading of the collective bargaining agreement that, if successful, would have
resulted in a de facto hot cargo clause. That is, had the grievance been successful and had it
been enforced by a Court, the order issued would have been one that was a violation of Section
8(e). The Board stated:
Because we have concluded that the contract clause as construed by the
Respondent would violate Section 8(e), we may properly find the pursuit of the
grievance coercive, notwithstanding the Supreme Court’s decision in Bill
Johnson’s Restaurant v. NLRB, 461 U.S. 731 (1983). Although holding that
the Board could not enjoin, as an unfair labor practice, the lawsuit at issue in
that case, the Court expressly noted that it was not dealing with a “suit that
has an objective that is illegal under federal law.” 461 U.S. at 737 fn. 5. See
also Teamsters Local 705 v. NLRB (Emery Air Freight), 820 F.2d 448 (D.C.
Cir. 1987) (distinguishing between having an unlawful motive in bringing a
lawsuit and seeking to enforce an unlawful contract provision).
Finally, there are cases involving an attempt by an employer, via a lawsuit, to prohibit
peaceful picketing or solicitation. Three cases discussing this type of situation are Loehmann’s
Plaza, 305 NLRB 663, (1991), Riesbeck Food Markets, 315 NLRB 940, (1994) enf’d denied 153
LRRM 2320 (4th Cir. 1996), and Be-Lo Stores, 318 NLRB 1, 12 (1995) enf’d denied, 156 LRRM
2261, 2274 (4th Cir. 1997).
In Loehmann’s Plaza, the Board dealt with two related issues. The first was whether the
Respondent’s demands that union representatives cease engaging in area standards picketing
and handbilling on private property in front of entrances of the target employer at a shopping
mall, was a violation of Section 8(a)(1). In finding a violation, the Board applied the balancing
test of Jean Country, 291 NLRB 11 (1988) and concluded that although the area standards
picketing and handbilling was not at the strong end of Section 7 rights, it was worthy of
accommodation. In that case, the Board found that the Union’s alternative means of
communicating its message was not reasonable.
The second issue in Loehmann’s Plaza, was whether the Respondent violated Section
8(a)(1) by filing a state court lawsuit seeking injunctive relief. The General Counsel contended
that the filing of the lawsuit was an unfair labor practice because under footnote 5 of Bill
Johnson’s, the lawsuit was a preempted case and therefore excluded from the general
principles of Bill Johnson’s. After discussing the Supreme Court’s decisions in Sears, Roebuck
& Co., v. Carpenters, 436 U.S. 180 (1978) and Longshoremen ILA v. Davis, 476 U.S. 380
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(1986), (both dealing with the issue of preemption and peaceful picketing), the Board concluded
that unless and until the NLRB’s General Counsel issues a complaint alleging as an unfair labor
practice, the filing of a lawsuit seeking a remedy against peaceful picketing, that lawsuit cannot
be considered to be preempted within the meaning of footnote 5 and therefore the complaint
should be dismissed unless the General Counsel can show that the lawsuit was baseless and
motivated by retaliatory reasons. (That is, the complaint must be evaluated under the general
Bill Johnson’s standards and not the footnote 5 exceptions). On the other hand, the Board also
concluded that once the General Counsel issues a Complaint alleging that the lawsuit is an
unfair labor practice, the Respondent will violate the Act by continuing to prosecute the lawsuit,
because it is now on notice that the subject matter of the lawsuit is preempted. The Board
stated:
A different analysis is warranted with respect to the Respondent’s post-
complaint pursuit of the state court lawsuit. The Respondent’s prosecution of
the suit during that time period need not be evaluated under Bill Johnson’s
because the suit was preempted and thus fell within the footnote 5 exception
to the Court’s decision. For the reasons stated below, we find that there is a
sound basis for applying a different rule to a preempted lawsuit alleged to
violate Section 8(a)(1) of the Act.
As illustrated by that case, a respondent pursuing a state court action seeking to enjoin
alleged trespassatory union picketing has a right, without being initially preempted, to seek
adjudication of its property rights. However, once the General Counsel decides to initiate a
formal adjudicatory proceeding, the Board’s jurisdiction is invoked and it becomes the exclusive
forum for an adjudication of a respondent’s property rights. Because at that point the state court
tribunal “has no power to adjudicate the [preempted] subject matter,” any attempt to continue
the litigation necessarily amounts to pure harassment, i.e., an effort to subject the defendant or
defendants in the lawsuit to litigation costs and burdens before a tribunal that indisputably lacks
jurisdiction over the matter at that time. (footnotes omitted).
In Riesbeck Food Markets, 315 NLRB 940, (1994) enf’d denied 153 LRRM 2320 (4th
Cir. 1996), the Board dealt with a situation similar to that in Loehmann’s Plaza and which
involved, inter alia, allegations that the Respondent violated 8(a)(1) by (1) denying access to
private property by union pickets and handbillers and (2) prosecuting a state lawsuit seeking to
limit peaceful picketing and handbilling activity to public property. In that case, a Board majority
concluded that where a lawsuit involves a matter which is preempted, the Respondent “has an
affirmative duty to take action to stay the state court proceedings following issuance of the
Board complaint.”
In Be-Lo Stores, 318 NLRB 1, 12 (1995), the Board found, among other things, that the
Respondent violated the Act by denying union non-employee picketers access to private
property in order to engage in solicitation and also violated the Act by maintaining a state
trespass lawsuit after the General Counsel issued a complaint alleging that the denial of access
was unlawful. Citing Loehmann’s Plaza, the Board found that the continuation of the lawsuit,
after the complaint was issued violated Section 8(a)(1) and ordered the Respondent to
reimburse the Union for litigation expenses incurred in the State Court proceeding. On appeal,
the Court refused to enforce this aspect of the Board’s Order. Be-Lo Stores v. NLRB, 156 LRRM
2261, 2274 (4th Cir. 1997). In this regard, the Court held that the Respondent did not violate
Section 8(a)(1) by denying access for solicitation and picketing and therefore the lawsuit
seeking an injunction could not violate the Act.
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It seems to me that the bottom line in all of this is that if the arbitration agreements that
the Respondents have required employees to execute are illegal on their face, then an attempt
to enforce those agreements through legal proceedings, would be a violation of Section 8(a)(1)
of the Act and would fit into the footnote 5 exception in Bill Johnson. And like the discussion of
Section 10(b), we have the same chicken and egg problem. If the agreements are lawful, then
a lawsuit to enforce them would be lawful. But if the agreements are ultimately construed to be
unlawful, then a lawsuit to enforce them would not be protected by the Supreme Court decisions
in Bill Johnson and BE &K.
The General Counsel argues that the present case is controlled by the Board’s decision
in D.R. Horton Inc., 357 NLRB No. 184, enf. denied, 737 F.3d 344 (5th Cir. 2013). And if it was
decided at a time when there was a proper quorum, then the General Counsel would be correct
because notwithstanding contrary Circuit Court decisions, I am bound to follow the Board’s view
of the law until such time as it either changes its collective mind or is compelled to alter its view
in light of a contrary decision by the Supreme Court. Pathmark Stores, 342 NLRB 378 fn. 1
(2004); Waco Inc. 273 NLRB 746, 749 fn. 14 (1984).
With respect to D.R. Horton, the Respondents assert that the decision in that case was
issued on January 3, 2012 and that pursuant to the rationale in the Supreme Court’s decision in
NLRB v. Noel Canning, 134 S. Ct. 2550, (June 26, 2014), there were only two validly appointed
members of the Board and therefore there was no quorum as required in New Process Steel,
L.P. v. NLRB, 130 S. Ct. 2635 (2010). Specifically, it is argued that Member Becker’s
appointment to the Board had expired by that date.
In Noel Canning, the Court’s actual finding was that appointments made during a three
day period beginning on January 4, 2012 were unconstitutional. That decision did not purport to
decide the validity of the Board’s composition at any time prior to that date and therefore it did
not directly affect the composition of the Board at the time that the decision in D.R. Horton was
issue; January 3, 2012.
It seems that the Respondents are not seriously challenging the initial appointment of
Member Becker which was made on March 27, 2010 during an intracession recess during the
Second Session of the 111th Congress, occurring from March 26 to April 12, 2010. What they
are asserting is that this appointment would have expired at the end of the First Session of the
112th Congress on December 30, 2011. They argue that on December 30, the Senate
adjourned until the Second Session of the 112th Congress was to reconvene at noon on January
3, 2012. In this regard, the Respondents cite Article II, Section 2 of the Constitution to the affect
that, “the President shall have the power to fill up all vacancies that may happen during the
recess of the Senate, by granting commissions which shall expire at the end of their next
session.” The question, as I see it, is how we define the words, “next session.”
It seems to me that this is an issue that the Board and any reviewing Courts will have to
deal with, irrespective of my opinion as to the merits of this argument. Read literally, as a term
of art, the constitutional provision could mean that Becker’s term should have expired at the end
of December 2011 and before the Board issued its decision in D.R. Horton. But read in more
colloquial terms, it could be interpreted that the Senate’s action by convening “pro forma
sessions” during a hiatus, was in reality, extending the existing session so that Becker’s term
never actually expired.
However, interpreted, I think that even if not construed as binding precedent, the Board,
with its current composition is likely to reaffirm the D.R. Horton decision. I therefore think that I
should give it substantial if not controlling deference.
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This brings us finally to the decision in D.R. Horton and the respective arguments as to
whether the provisions of the Federal Arbitration Act trump the provisions of the NLRA insofar
as allowing enforceable agreements whereby employees as a condition of continued
employment, are required to waive certain rights to take collective actions. In this case, to file
class action lawsuits relating to their wages and hours pursuant to yet another statute; the Fair
Labor Standards Act.
Without weighing in on the arguments for or against the Board’s decision in D.R. Horton,
I nevertheless think that the Board’s rationale is reasonable and likely to be reaffirmed. (What
the Circuit Courts do is another matter). Therefore, I am going to conclude that by maintaining
its arbitration policy and by enforcing arbitration agreements through Court proceedings, the
Respondents have interfered with the rights of employees to engage in collective actions for
their mutual aid and protection and that the Respondents have therefore violated Section 8(a)(1)
of the Act.
The Remedy
As it concluded that the Respondents have unlawfully maintained an Arbitration Policy
that precludes class or collective actions by employees, I shall recommend that they be ordered
to rescind or revise that policy to make it clear to employees that the Policy and agreements
made pursuant to the Policy do not constitute a waiver in all forums of their rights to maintain
class or collective actions relating to their wages, hours or other terms and conditions of
employment. I shall also recommend that the Respondents be required to notify its employees
of the rescinded or revised Policy.
Because the Arbitration Policy has been and continues to be maintained throughout the
United States, it recommended that the Respondents be ordered to post the attached Notice at
all locations where the Policy has been or is still in effect.
To the extent that the Charging Parties have incurred litigation expenses relating to the
Respondents’ Motions to dismiss the class actions and to compel arbitration under those
agreements made in conformance with the Arbitration Policy, it is recommended that the
Respondents reimburse the Charging Parties for such expenses with interest as determined in
Kentucky River Medical Center, 356 NLRB8 (2010, enf. Denied on other grounds, sub. Nom.
Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (DC Cir. 2011).
Additionally, it is recommended that the Respondents be required to file Motions with the
United States District Court in Litvinov v. UnitedHealth Care Group Inc., and Torres v. United
Healthcare Services Inc., requesting the withdrawal of their motions to dismiss those actions
and to compel arbitration of the claims made in those lawsuits.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 10

10 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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ORDER
The Respondents, UnitedHealth Group and UnitedHealth Care Services Inc., their
officers, agents, successor, and assigns, shall
1. Cease and Desist from
(a) Maintaining or enforcing the “UnitedHealth Group Employment Arbitration Policy” and
any agreements made with employees pursuant to that Policy that waives the right to maintain
class or collective action.
(b) Enforcing such agreements by filing Motions in Court to dismiss or stay collective
action lawsuits and to compel individual arbitration, pursuant to the terms of such agreements.
(c) Requiring employees to sign binding arbitration agreements that prohibit collective or
class litigation.
(d) In any like or related manner, interfering with, restraining or coercing employees in
the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind or revise the Arbitration Policy that requires employees to waive their right
to maintain employment related class and collective claims in all forums, whether arbitral or
judicial;
(b) Withdraw any pending motions for individual arbitration in which Respondents seek
enforcement of the Arbitration Policy’s unlawful restriction on class or collective claims; or if
such motions have already been granted, move the appropriate court to vacate any orders for
individual arbitration and reimburse employees for any litigation expenses including attorney’s
fees, directly related to opposing Respondents’ motions to compel individual arbitration.
(c) Within 14 days after service by the Region, post at its locations nationwide where the
Arbitration Policy has been promulgated, maintained or enforced copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for
Region 2 after being signed by the Respondents’ authorized representative, shall be posted by
the Respondents and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In addition to the physical posting of
paper notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or internet site, and /or other electronic means, if the Respondents customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered, defaced, or covered by any other
material. In addition, a copy of this notice will be made available to employees on the same
basis and to the same group or class of employees as the Arbitration Policy was made available
to them. In the event that, during the pendency of these proceedings, the Respondents have
gone out of business or closed the facility involved in these proceedings, the Respondents shall

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondents at any time since July 10, 2012.
(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.
Dated, Washington, D.C. August 5, 2014
________________________
Raymond P. Green
Administrative Law Judge
JD(NY)–32–14
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT maintain or enforce the “UnitedHealth Group Employment Arbitration Policy”
and any agreements made with employees pursuant to that Policy that waives the right to
maintain class or collective action.
WE WILL NOT pursuant to the terms of such agreements enforce them by filing Motions in
Court to dismiss or stay collective action lawsuits and to compel individual arbitration.
WE WILL NOT require employees to sign binding arbitration agreements that prohibit collective
and class litigation.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL withdraw any pending motions for individual arbitration in which the Respondents
seek to enforce the Arbitration Policy’s unlawful restriction on class or collective claims; or if
such motions have already been granted, move the appropriate court to vacate any orders for
individual arbitration.
WE WILL reimburse employees for any litigation expenses including attorney’s fees, directly
related to opposing Respondents’ motions to compel individual arbitration.
UnitedHealth Group and
UnitedHealth Care Services Inc
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
JD(NY)–32–14
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.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-118724 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, 212-264-0346.