2020 NLRB LEXIS 294; 2020-21 NLRB Dec. (CCH) P16,688; 369 NLRB No. 70

2020 NLRB LEXIS 294; 2020-21 NLRB Dec. (CCH) P16,688; 369 NLRB No. 70

Opinion

DECISION AND ORDER

On December 4, 2017, Administrative Law Judge Jeffrey D. Wedekind issued the attached decision. The Respondent filed exceptions, and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions ¹ and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

I. BACKGROUND

Prior to May 3, 2016, the Respondent required its employees to sign a mandatory arbitration agreement, entitled Alternative Dispute Resolution Policy (ADRP), which remains binding and enforceable against employees who signed it, including the Charging Party, Isidro Miranda. On October 26, 2016, the Respondent enforced [*2]  the ADRP by asserting it as an affirmative defense in litigation brought by the Charging Party against the Respondent in the Superior Court of California of the County of San Francisco.

The ADRP broadly subjects any employment-related dispute between an employee and the Respondent to binding arbitration, but it also specifically provides that employees may bring claims before the National Labor Relations Board. In relevant part, the ADRP provides as follows:

The Alternative Dispute Resolution Policy, which is also set forth in the Employee

Handbook, applies to any employment-related dispute between you and Royal Motor Sales, whether initiated by you or by the Dealership.

1. The Dealership utilizes a system of alternative dispute resolution which involves binding arbitration to resolve all disputes which may arise out of the employment context. Because of the mutual benefits (such as reduced expense and increased efficiency) which private binding arbitration can provide both you and the Dealership, you and the Dealership (collectively referred to as the "parties") both agree that any claim, dispute, and/or controversy that either party may have against one another (including, without limitation, [*3]  disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, and state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims) which would otherwise require or allow resort to any court or other governmental dispute resolution forum between you and the Dealership (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) arising from, related to, or having any relationship or connection whatsoever with you seeking employment with, employment by, or other association with the Dealership, whether based on tort, contract, statutory, or equitable law, or otherwise, (with the exception of workers compensation and unemployment insurance claims, or any other claims that by law are not resolvable through final and binding arbitration) [*4]  shall be submitted to and determined exclusively by binding arbitration. Claims may be brought before an administrative agency but only to the extent applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc. gov), the U.S. Department of Labor (www.dol.gov), or the National Labor Relations Board (www.nlrb.gov). Nothing in this Policy shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration.

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