Employers Resource Arbitration Case
As indicated above, ER also contends that Torres’ class action wage and hour suit did not
constitute “concerted activity” within the meaning of Section 7 of the Act because Torres was
the sole named plaintiff and she admitted that she never discussed either the employment
agreement or the lawsuit with her coworkers (Tr. 33–34). However, in D.R. Horton, the Board
specifically held that “an individual who files a class or collective action regarding wages, hours
or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group
10 action and is engaged in conduct protected by Section 7.” 357 NLRB No. 184, slip op. at 3. The
Board subsequently reaffirmed this holding in Murphy Oil, rejecting the argument that such a
lawsuit is not “concerted” within the meaning of the Act. 361 NLRB No. 72, slip op. at 12–13. I
therefore likewise reject ER’s argument here, and find that Torres’ class action wage and hour
suit constituted protected concerted activity. Accordingly, as ER’s motion to the State court
sought to restrict that activity, it violated Section 8(a)(1) of the Act. See also Cellular Sales,
above (finding a similar violation on similar facts).
CONCLUSIONS OF LAW
1. ER is an “employer” within the meaning of Section 2(2), (6), and (7) of the Act.
2. Torres is an “employee” within the meaning of Section 2(3) of the Act.
3. By filing a motion in January 2013 to compel individual arbitration of Torres’ State
court class action wage and hour claims against it pursuant to its mandatory arbitration
employment agreement with Torres, ER has maintained and enforced that agreement to restrict
the right of employees under the Act to engage in protected concerted activities, and has thereby
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
REMEDY
The appropriate remedy for the violations found is an order requiring ER to cease and
desist from its unlawful conduct and to take certain affirmative action to effectuate the policies
of the Act. Specifically, ER must rescind or revise the mandatory arbitration employment
agreement, notify Torres, other current and former employees who executed the agreement, and
the State court that it has done so, and inform the State court that it no longer opposes Torres’
class action wage and hour suit on the basis of the agreement. ER must also reimburse Torres
for all reasonable expenses and legal fees incurred in opposing ER’s unlawful January 8, 2013
motion to compel individual arbitration of her class action suit, with interest computed and
compounded daily in the manner prescribed in New Horizons, 283 NLRB 1173 (1987), and
Kentucky River Medical Center, 356 NLRB No. 8 (2010). See Murphy Oil and Cellular Sales,
above.
Follow