U.S. Xpress Enterprises, Inc. and U.S. Xpress, Inc., A Single Employer

National Labor Relations Board - Administrative Judge Opinions

Jul 16, 2015

10-CA-141407 (N.L.R.B. Jul. 16, 2015)

JD(ATL)–14–15
Chattanooga, TN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
U.S. XPRESS ENTERPRISES, INC.
AND U.S. XPRESS, INC.,
A SINGLE EMPLOYER
and Case 10–CA–141407
JUSTIN L. SWIDLER
Elaine Robinson-Fraction, Esq.,
for the General Counsel.
Tracy Stott Pyles and Brendan J. Fitzgerald, Esqs.
(Littler Mendelson, P.C.), for the Respondents.
Justin L. Swidler, Esq. (Swartz Swidler, LLC),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case is before me on a complaint and
notice of hearing issued on February 24, 2015 (the complaint), stemming from charges filed on
November 21, 2014. The General Counsel alleges that U.S. Xpress Enterprises, Inc. (Xpress
Enterprises) and U.S. Xpress, Inc. (Xpress Inc.) (the Respondents), as a single employer, have
violated Section 8(a)(1) of the National Labor Relations Act (the Act) in connection with a
mutual binding arbitration agreement (MAA).
On May 21, 2015, the parties filed a joint motion and stipulated record, requesting,
pursuant to Section 102.35(a)(9) of the Board’s Rules and Regulations, that the matter be
assigned directly to a judge for a decision in lieu of a hearing. On May 22, 2015, Associate
Chief Judge William N. Cates issued a corrected order accepting stipulated record; waiver of
hearing; cancelling of hearing date; assignment of judge and establishing briefing date. He
assigned the case to me for decision.
JD(ATL–14– 15
2
Issue
Does the Respondents’ maintenance and enforcement of an MAA with an opt-out
provision, as a condition of employment, violate employees’ Section 7 rights pursuant to D. R.
Horton, Inc. (D. R. Horton), 357 NLRB No. 184 (2012), denied in relevant part, 737 F.3d 3445
(5th Cir. 2013), and Murphy Oil USA, Inc (Murphy Oil), 361 NLRB No. 72 (2014)?
The Respondents dispute the contention of the General Counsel and the Charging Party
that they constitute a single employer with the meaning of the Act. However, for purposes of
the stipulation, Xpress Enterprises guarantees that should Xpress Inc. fail to effectuate any 10
remedy ultimately found appropriate in this matter, it will enforce any remedial order.
Accordingly, the parties have agreed that I need not address the issue of the Respondents’
single employer status. In light of this, and the concomitant absence of any evidence on the
issue, I will treat them together rather than attempt to distinguish which of the entities engaged
in the conduct alleged in the complaint. Further, I am unable to make a finding on whether 15
they are in fact a single employer.
Facts
In the argument section of the Respondents’ brief, certain alleged facts are averred that 20
pertain to (1) Xpress Inc. employees as of February 2013 being “grandfathered” and not
required to sign MAAs; and (2) Tennessee and Federal Arbitration Act (FAA) law relating to
transportation workers. These purported facts are not contained in the stipulated facts or
documents, and I therefore will not consider them. See Ohio Brass Co., 261 NLRB 137, 137
fn. 1 (1982). To do otherwise would defeat the purpose of having a stipulated record in lieu of 25
a hearing and deprive the General Counsel and the Charging Party of due process by not
allowing them the opportunity of rebuttal. Similarly, I will not consider any arguments that are
not based on stipulated facts or documents.
Based on the parties’ stipulated record and the thoughtful posttrial briefs that the 30
General Counsel and the Respondents filed, I find the following.
Pertinent stipulated facts
Both Respondents are Nevada corporations with offices and places of business in 35
Chattanooga, Tennessee. Xpress Enterprises is a holding company for Xpress, Inc., which is
engaged in hauling and delivering freight across the United States. The Respondents have
admitted Board jurisdiction as alleged in the complaint, and I so find.
Since about February 1, 2013, individuals, including, but not limited to, employees as 40
defined under Section 2(3) of the Act, (herein, collectively, referred to as the participants)
signed a document titled “Xpress Resolution Program and Rules for Arbitration” (herein
referred to as the MAA).1 The Respondents’ brief distinguishes between participants who are
“employees” and those who are not, but the General Counsel has never contended that any

1
Jt. Exh. 8. Portions of the MAA that I will quote will omit the capitalization of certain words contained
therein.
JD(ATL–14– 15
3
remedy in this case would apply to participants who are not employees within the meaning of
the Act.
The MAA states, in part:
5
10. Class Actions. To the extent consistent with the National Labor Relations
Act, no legal dispute may be made the subject of a class action in arbitration or in
a court of law. Instead, a party must pursue a legal dispute only in arbitration and
only on behalf of that party. The arbitrator may not mandate or grant a request for
class action arbitration; nor may the arbitrator order the consolidation of multiple10
arbitration proceedings. Within thirty (30) days after becoming subject to this
program, a party may inform the program director in writing that the party is
electing to “opt out” of that portion of the program that would prohibit the party
from pursuing a legal dispute through a class action in a court of law by
delivering written notice to: U.S. Xpress, Inc., Attention Lisa Pate, 4080 Jenkins 15
Rd., Chattanooga, TN 37421. A Party exercising the “opt out” right may pursue a
legal dispute through a class action in a court of law, without waiver of the right
to a jury, on behalf of only those parties who also have exercised this “opt out”
right. If such court denies class certification, the party’s legal dispute must again
be pursued in arbitration. By not exercising the “opt out” right, a party 20
voluntarily agrees not to pursue a legal dispute through a class action in
arbitration or in a court of law.
The Respondents have conducted a reasonable review of their business records and
found no record of any participants having exercised their right to opt out of the MAA’s class-25
action waiver provisions.
Since at least November 20, 2014, the Respondents have asserted the MAA as an
affirmative defense in Keith Salinas, et al. v. US Xpress Enterprises, Inc. and US Xpress, Inc.,
No. 1:13-cv-00245 (E.D. Tenn.), a class-action lawsuit alleging that the Respondents violated 30
the Fair Labor Standards Act (FLSA) with regard to individuals, including Salinas, who
participated in Xpress, Inc.’s orientation and training program.
Other relevant provisions of the MAA
35
The MAA further provides the following:2
3. Application and Coverage. This program applies to and binds the company,
each participant, and the heirs, beneficiaries, and assigns of each participant.
The program does not restrict or expand substantive legal rights of the Company 40
or any participant. The program does not prohibit (i) a participant from filing a
charge with the Equal Employment Opportunity Commission, the National
Labor Relations Board, or a similar government agency; (ii) any such agency
from investigating any such charge; or (iii) any such agency from pursuing legal
action on behalf of a participant. . . . 45

2
Id. at 3–4.
JD(ATL–14– 15
4
11. National Labor Relations Act. The National Labor Relations Act (“NLRA”)
affords covered employees certain rights (.nlrb.gov/rights-we-protect!Participant-
rights). This program does not condition employment on a participant’s waiving
non-waivable rights under the NLRA. No participant will be retaliated against
for exercising rights under the NLRA. This program does not prohibit a 5
participant covered by the NLRA from filing a charge with the National Labor
Relations Board (“NLRB”) or from engaging in concerted activity for mutual aid
or protection protected by the NLRA. The arbitrator shall have no authority to
determine whether a party has committed an unfair labor practice as the NLRB
has exclusive jurisdiction over such charges.10
Finally, the MAA contains an acknowledgement provision for applicants, which
provides in part:3
I understand that consideration of my application, as well as any offer of 15
employment by U.S. Express is contingent on my agreement to be bound by the
terms and conditions of U.S. Express’s alternative dispute program [the MAA].
. . . .
[W]ithout limitation, I confirm my understanding and agreement that work 20
disputes in which I am involved that fall within the program’s definition of “legal
dispute” will be resolved exclusively through final and binding arbitration rather
than before a judge or jury in court or before an administrative adjudicative body.
Within thirty (30) days after becoming subject to the program, I may inform the
program director in writing that I am electing to “opt out” of that portion of the 25
program that would prohibit my pursuing a class action in a court of law. By not
exercising the “opt out” right, I would voluntarily agree not to pursue a class
action in arbitration or in a court of law.
Analysis and Conclusions30
The Respondents contend as a threshold issue that the charges are barred by Section
10(b) of the Act. That defense aside, the Board’s decisions in D. R. Horton and Murphy Oil are
at the heart of this matter. The Respondents argue that these cases should not control because:
35
(1) They were wrongly decided.4
(2) The MAA does not violate D. R. Horton and Murphy Oil because
employees are not “required” to enter into the MAA as a condition of
employment, and waive any Section 7 rights, by virtue of the opt-out 40
provision.

3
Id. at 6.
4
The Respondents also cite (R. Br. at 19 n. 5) Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013),
petition for cert. granted (U.S. June 20, 2013) (No.12-1281), for the proposition that D. R. Horton “may
not be enforceable. . . .”
JD(ATL–14– 15
5
Finally, the Respondents contend that their assertion of the MAA as an affirmative
defense in Salinas v. US Xpress Enterprises and US Express, Inc., supra, a class-action
lawsuit, did not constitute an attempt to compel arbitration and therefore did not amount to
enforcement.
5
The Respondents’ 10(b) defense
Section 10(b) of the Act provides that “no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge. . . .”
10
The Respondents assert that Section 10(b) bars the General Counsel from pursuing a
complaint inasmuch as the MAA program has been in effect since about February 1, 2013, and
the charge was not filed until November 21, 2014.5
This argument ignores the fact that since at least November 20, 2014, the Respondents 15
have asserted the MAA as an affirmative defense in Salinas. v. US Xpress Enterprises, Inc. and
US Xpress, Inc., supra. Thus, the charge was filed almost immediately after the Respondent
took action to invoke the MAA.
In any event, the Board has long recognized that Section 10(b) does not bar an 20
allegation of unlawful conduct that began more than 6 months before a charge was filed but has
continued within the 6-month period. More specifically, Section 10(b) does not preclude a
complaint allegation based on the maintenance of a facially invalid rule or policy within the
10(b) period, even if the rule or policy was promulgated earlier and has not been enforced,
since “[t]he maintenance during the 10(b) period of a rule that transgresses employee rights is 25
itself a violation of Sec. 8(a)(1).” Register-Guard, 351 NLRB 1110, 1110 fn. 2 (2007), enfd. in
part 571 F.3d 53 (D.C. Cir. 2009),6 citing Eagle-Picher Industries, Inc., 331 NLRB 169, 174 fn.
7 (2000); Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999)
(“Where the rules are likely to have a chilling effect on Section 7 rights, the Board may
conclude that their maintenance is an unfair labor practice, even absent evidence of 30
enforcement”). See also Cellular Sales of Missouri, LLC, 362 NLRB No. 27, slip op. at 1
(2015) (“[M]aintenance of an unlawful rule is a continuing violation, regardless of when the
rule was first promulgated.” (fn. omitted)). The Respondent has cited no contrary precedent.
Therefore, I conclude that Section 10(b) does not bar the instant complaint.35
The application of D. R. Horton and Murphy Oil
In D. R. Horton, the Board analyzed an MAA in the context of how the Board decides
whether other unilaterally-implemented workplace rules violate Section 8(a)(1), under the test 40
set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). The Board found that
the MAA explicitly restricted the exercise of Section 7 rights and was therefore unlawful under
the first inquiry set out in Lutheran Heritage Village. The Board held that an employer violates

5
I will not consider the Respondents’ assertion that the Charging Party was notified of the MAA on
November 21, 2013 (R. Br. 30) inasmuch as this was not stipulated.
6
The decision was reversed on other grounds in Purple Communications, Inc., 361 NLRB No. 126 (2014).
JD(ATL–14– 15
6
Section 8(a)(1) of the Act by “requiring employees to waive their right to collectively pursue
employment-related claims in all forums, arbitral and judicial,” because “[t]he 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.” D. R.
Horton, supra, slip op. at 12 (emphasis in original).5
The Board further concluded that finding such MAA unlawful 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) [9 U.S.C., § 1 et seq.]. . . .” Id., slip op. at 10. 10
The Respondent argues that the Fifth Circuit Court of Appeals and other Federal
appellate courts have rejected D. R. Horton to the extent that it found it to be afoul of the Act
an MAA prohibiting class action. Thus, the Fifth Circuit concluded that neither the Act’s
statutory text nor its legislative history contained a congressional command against application 15
of the FAA and that, in the absence of an inherent conflict between the FAA and the Act’s
purpose, an MAA should be enforced according to its terms. 737 F.3d at 361–363.
Accordingly, the court denied enforcement of the Board’s order invalidating the MAA.7
In Murphy Oil, the Board acknowledged the Fifth Circuit’s rejection of the Board’s 20
D. R. Horton decision on appeal, by a divided panel, as well as decisions of the Second and
Eighth Circuits also indicating disagreement with D. R. Horton, but it cited the well-established
rule that “[t]he Board is not required to acquiesce in adverse decisions of the Federal courts in
subsequent proceedings not involving the same parties.” Murphy Oil, supra, slip op at 2 fn. 17,
citing Enloe Medical Center v. NLRB, 433 F.3d 834, 838 (D.C. Cir. 2005), and Nielsen 25
Lithographing Co. v. NLRB, 854 F.2d 1063, 1066–1067 (7th Cir. 1988). Thus, the Board has
explained that it is not required, on either legal or pragmatic grounds, to automatically follow
an adverse court decision but will instead respectfully regard such ruling solely as the law of
that particular case. See Manor West, Inc., 311 NLRB 655, 667 fn. 43 (1993), revd. 60 F.3d
1195 (6th Cir. 1995). See also D. L. Baker, Inc., 351 NLRB 515, 529 at fn. 42 (2007); Arvin 30
Industries, 285 NLRB 753, 757 (1987).
The Board in Murphy Oil expressly reaffirmed D. R. Horton, stating that “[t]he
rationale of D. R. Horton was straightforward, clearly articulated, and well supported at every
step.” Murphy Oil, supra, slip op. at 6, and that “[w]ith due respect to the courts that have35
rejected D. R. Horton, and to our dissenting colleagues, we adhere to its essential rationale for
protecting workers’ core substantive rights under the National Labor Relations Act.” Id., slip
op. at 7.
Even assuming arguendo that I agree with the rationales of the circuit courts that have 40
rejected D. R. Horton, I am constrained to follow Board precedent that has not been reversed
by the Supreme Court or by the Board itself, rather than contrary courts of appeals precedent.
See Pathmark Stores, 342 NLRB 378, 378 fn. 1 (2004), citing Iowa Beef Packers, Inc.,

7 The court did enforce the Board’s order that Sec. 8(a)(1) had been violated because an employee would
reasonably interpret the MAA as prohibiting the filing of a claim with the Board. The General Counsel
does not allege such a violation here.
JD(ATL–14– 15
7
144 NLRB 615 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964); Waco, Inc., 273 NLRB 746,
749 fn. 14 (1984).
The Supreme Court, in upholding the enforcement of individual MAAs in various
contexts, has enunciated the general principal that the FAA was designed to promote 5
arbitration. See, e.g., AT & T Mobility LLC v. Conception, 131 S.Ct. 1740, 1749 (2011).
Moreover, the Court in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), held that
a MAA signed by an employee waived his right to bring a Federal court action under the Age
Discrimination in Employment Act. However, as the Board noted in D. R. Horton, Gilmer
dealt with an individual claim, and the MAA contained no language specifically waiving class 10
or collective claims; ergo, the Court in Gilmer addressed neither Section 7 nor the validity of a
class-action waiver. D. R. Horton, supra, slip op. at 12. Inasmuch as the Supreme Court has
not specifically addressed the issue of mandatory arbitration provisions that cover class and/or
collective actions vis-à-vis the Act, it follows that the Court has not overruled the Board’s D. R.
Horton decision, which I therefore must apply to determine whether the Respondents’ MAA 15
violates Section 8(a)(1) of the Act.
The MAA requires that prospective employees sign it as a condition of employment,
and it expressly precludes employees from seeking redress on a class-action basis in either
courts of law or in arbitration. Accordingly, on its face, the MAA clearly contravenes the 20
Board’s holdings in D. R. Horton and Murphy Oil.
The fact that the MAA specifically provides that employees may file charges with
administrative agencies, including the NLRB, does not rectify this defect. Rather, this obviates
the finding of a separate violation that employees could reasonable believe that the MAA bars 25
or restricts their right to file NLRB charges.
The effect of the MAA’s opt-out provision
The Board has not addressed whether an opt-out provision in an MAA removes it from 30
being a required condition of employment, as the Respondents argue, thereby curing its
otherwise coercive nature under D. R. Horton and Murphy Oil.
The Respondents’ brief cites decisions of the Ninth Circuit Court of Appeals, two
administrative law judges, and several district courts that answer this in the affirmative. On the 35
other hand, the General Counsel’s brief cites four administrative law judges who held to the
contrary. As I stated earlier, the Board is not required to adopt interpretations of the Act by
courts other than the Supreme Court, and decisions of administrative law judges are not
precedent. See, e.g., Trump Marina Associates, LLC, 354 NLRB 1027, 1027 fn. 2 (2009).
40
The opt-out provision needs to be analyzed in the context of the purpose of the Act: To
balance the inequality of bargaining between employers and individual employees by fostering
collective action by employees. See 29 USC § 102. This provision, which the Respondents
presumably have formulated with the assistance of expert legal counsel, places the burden on
employees to understand the legal complexities of the MAA and the ramifications of opting 45
out, within the time frame of only 30 days. This strikes me as patently skewed in favor of the
employer and to make illusory any free choice on the part of employees to opt-out of the MAA.
JD(ATL–14– 15
8
The employee must either accept the MAA or incur the burden of obtaining legal advice on
short notice and running the risk that he or she might later be caught up in a dispute between
legal experts over interpretation of the MAA and the opt-out provision.
Such a lopsided imbalance in the positions of the Respondents vis-à-vis employees5
undermines the Respondents’ assertion that employees who agree to the MAA by failing to
exercise the opt-out option do so “voluntarily” and not because the Respondents impose the
MAA as a requirement for employment. In this regard, the Respondents’ records do not
establish that any employees have availed themselves of the opt-out provision. In sum, the
MAA is essentially a fait accompli when employees are obliged to sign it as a condition of 10
employment.
Accordingly, for all of the reasons stated above, I conclude that the Respondents
violated Section 8(a)(1) by maintaining, as a condition of employment and continued
employment, an MAA that requires employees to waive their right to pursue collective or 15
class-action lawsuits and arbitrations.
Whether the Respondents’ assertion of the MAA as
an affirmative defense constituted enforcement
20
As the Board stated in Murphy Oil, supra at slip op. at 26–27, “It is well settled that an
employer violates Section 8(a)(1) by enforcing a rule that unlawfully restricts Section 7 rights
. . . .,” citing NLRB v. Washington Aluminum Co., 370 U.S. 9, 16–17 (1962), and Republic
Aviation Corp., 324 U.S. 793 (1945).
25
In Murphy Oil, the employer, in response to a class-action lawsuit filed by employees
claiming violations of the FLSA, relied on an unlawful MAA in filing a motion to dismiss and
to compel the plaintiffs to arbitrate their claims on an individual basis. The Board found that
filing this motion violated Section 8(a)(1) as enforcement of the unlawful MAA. Id. at 27.
30
Here, the Respondents asserted the MAA as an affirmative defense in a class-action
lawsuit filed by employees claiming violations of the FLSA. I fail to see any meaningful
distinction between the action of the Respondents and that of the employer in Murphy Oil.
Regardless of using different procedural means, the Respondents and that employer similarly
invoked an unlawful MAA as the basis for arguing that a court should reject an employees’35
class-action lawsuit, thereby forcing them to arbitrate on an individual basis.
Accordingly, I conclude that the Respondents enforced the unlawful MAA by raising it
as an affirmative defense in litigation and so violated Section 8(a)(1).
40
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
45
JD(ATL–14– 15
9
2. By the following conduct, the Respondents have engaged in unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)((1) of the Act.
5
(a) Maintained, as a condition of employment and continued employment, a
mandatory arbitration agreement (MAA) prohibiting employees from pursuing collective or
class lawsuits and arbitrations.
(b) Enforced the MAA by invoking it against employees who filed a class-10
action lawsuit against the Respondents concerning their wages under the Fair Labor Standards
Act.
REMEDY
Because I have found that the Respondents have engaged in certain unfair labor 15
practices, I find that they must be ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended820
ORDER
The Respondents, U.S. Xpress Enterprises, Inc. and U.S. Xpress, Inc., Chattanooga,
Tennessee, their officers, agents, successors, and assigns, shall
25
1. Cease and desist from
(a) Maintaining, as a condition of employment and continued employment, a
mandatory arbitration agreement (MAA) that prohibits employees from pursuing collective or
class lawsuits and arbitrations.30
(b) Asserting an MAA as an affirmative defense, or otherwise enforcing an
MAA, to preclude employees from pursuing, on a collective or class basis, employment-related
disputes with the Respondents.
35
(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.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.40
(a) Withdraw the MAA currently in effect (the MAA) as an affirmative
defense in Keith Salinas, et al. v. US Xpress Enterprises, Inc. and US Xpress, Inc.,

8 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–14– 15
10
No. 1:13-cv-00245 (E.D. Tenn.).
(b) Rescind the requirement that employees enter into or sign the MAA, or
sign acknowledgements relating to it, as a condition of employment.
5
(c) Rescind the MAA or revise it to make it clear that the agreement does
not constitute a waiver of the employees’ right to initiate or maintain employment-related
collective or class actions in arbitrations and in the courts.
(d) Notify all applicants and current and former employees who were 10
required to agree to the MAA that the MAA has been rescinded or revised to comport with
subparagraph (c), and provide them with any revised agreement.
(e) Within 14 days after service by the Region, post at their facilities in
Chattanooga, Tennessee, and any other facilities where the MAA has been maintained as a 15
condition of employment, copies of the attached notice marked “Appendix.”9 Copies of the
notice, on forms provided by the Regional Director for Region 10, after being signed by the
Respondent’s 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 physical posting of paper notices, notices shall be distributed 20
electronically, such as by email, posting on an intranet or an internet set, and/or other electronic
means, if the Respondents customarily communicate 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 the event that, during the pendency of these
proceedings, the Respondents have gone out of business or closed the facilities involved in 25
these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of
the notice to all current employees and former employees employed by the Respondents at any
time since February 1, 2013.
(f) Within 21 days after service by the Region, file with the Regional 30
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, DC July 16, 2015
35
______________________________
Ira Sandron40
Administrative Law Judge

9 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–14– 15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain, as a condition of employment and continued employment, a
mandatory arbitration agreement (MAA) that prohibits employees from pursuing collective or
class lawsuits and arbitrations.
WE WILL NOT assert an MAA as an affirmative defense in litigation, or otherwise enforce it,
to preclude employees from pursuing, on a collective or class basis, employment-related
disputes with us.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL withdraw the affirmative defense that we asserted in Keith Salinas, et al. v. US
Xpress Enterprises, Inc. and US Xpress, Inc., No. 1:13-cv-00245 (E.D. Tenn.), that the
employees’ class-action lawsuit should be rejected because of the MAA that is currently in
effect (the MAA).
WE WILL rescind the requirement that employees enter into or sign the MAA, or sign
acknowledgements relating to it, as a condition of employment.
WE WILL rescind the MAA or revise it to make it clear that the agreement does not constitute
a waiver of the employees’ right to initiate or maintain employment-related collective or class
actions in arbitrations and in the courts.
WE WILL notify all applicants and current and former employees who were required to agree
to the MAA that the MAA has been so rescinded or revised, and provide them with any revised
agreement.
JD(ATL–14– 15
U.S. XPRESS ENTERPRISES, INC.
(Employer)
Dated: ___________________ By: _____________________________________________
(Representative) (Title)
U.S. XPRESS, 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 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.
233 Peachtree Street N.E., Harris Tower, Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/10-CA-141407 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (205) 933–3013.