The Neiman Marcus Group, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 2015

362 NLRB No. 157 (N.L.R.B. 2015)

362 NLRB No. 157
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The Neiman Marcus Group, Inc. and Sheila
Monjazeb. Case 31–CA–074295
August 4, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN
On February 6, 2014, Administrative Law Judge Elea-
nor Laws issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings, and conclusions,
and to adopt the recommended Order, as modified and
set forth in full below.2
The judge found that the Respondent violated Section
8(a)(1) of the Act by maintaining a mandatory and bind-
ing arbitration program (MAP) that employees reasona-
bly would believe bars or restricts their rights to file
charges with the Board.3 Applying the Board’s decision

1 The Respondent’s exceptions that the Board, General Counsel,
Regional Director of Region 31, and the Administrative Law Judge
acted without authority in this case because the Board lacked a valid
quorum when the complaint issued are without merit. See Benjamin H.
Realty Corp., 361 NLRB No. 103 (2014); Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10, slip op. at 1 fn. 1 (2014);
Barstow Community Hospital, 31–CA–129445 (2015) (Regional Direc-
tor for Region 31), citing Pallet Companies, Inc., 361 NLRB No. 33,
slip op. at 1–2 (2014).
In adopting the judge, we do not rely on J. A. Croson Co., 359
NLRB No. 2 (2012) or Bloomingdale’s Inc., 359 NLRB No. 113
(2013), cited by the judge.
2 We have modified the judge’s recommended Order and substituted
a new notice to conform to the Board’s standard remedial language.
3 Pursuant to longstanding Board precedent, the Board will find that
a policy on which employment is conditioned, such as the MAP in this
case, violates Sec. 8(a)(1) if employees would reasonably believe the
policy interferes with their ability to file a Board charge or access to the
Board’s processes, even if the policy does not expressly prohibit access
to the Board. See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014),
slip op. at 13, 19 fn. 98, 39 fn. 15; D. R. Horton, 357 NLRB No. 184,
slip op. at 2 fn. 2, 4 (2012), enfd. in relevant part, 737 F.3d 344 (5th
Cir. 2013); U-Haul Co. of California, 347 NLRB 375, 377–378 (2006),
enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007); Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004). Here, the judge found that the MAP
consisted of: (a) a mandatory arbitration agreement and mandatory
arbitration agreement acknowledgement form requiring employees to
individually arbitrate employment-related disputes; (b) a resolutions
plan and a resolutions plan acknowledgement form requiring all em-
ployment-related disputes to be submitted to individual binding arbitra-
tion; and (c) an associate handbook and associate handbook acknowl-
edgement form requiring all employment-related disputes to be submit-
in D. R. Horton, 357 NLRB No. 184 (2012), enf. denied
in relevant part, 737 F.3d 344 (5th Cir. 2013), the judge
also found that the Respondent violated Section 8(a)(1)
by maintaining and enforcing the MAP because it re-
quires employees, as a condition of employment, to
waive their rights to pursue class or collective actions in
employment-related claims in all forums, whether arbi-
tral or judicial.
In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014),
the Board reaffirmed the relevant holdings of D. R. Hor-
ton, supra. Based on the judge’s application of D. R.
Horton, and on our subsequent decision in Murphy Oil,
we affirm the judge’s findings and conclusions,4 and

ted to individual binding arbitration. The judge found that the Re-
spondent enforced the MAP by: (a) requiring the Charging Party job
applicant to agree to the mandatory arbitration agreement, resolutions
plan, and associate handbook; and (b) asserting the MAP in litigation
that the Charging Party brought against the Respondent. We affirm the
judge’s conclusion that the Respondent’s maintenance of the MAP
violated Sec. 8(a)(1) for the reasons the judge stated, but base our find-
ing that the Respondent unlawfully enforced the MAP solely on its
efforts to compel individual arbitration of the Charging Party’s wage-
and-hour claims in its filings with the California Superior Court and the
American Arbitration Association, which occurred within the 10(b)
period.
4 We reject the Respondent’s assertion that the judge incorrectly
concluded that the MAP violated Sec. 8(a)(1) because it would cause
employees to reasonably believe that they would need to arbitrate em-
ployment-related claims rather than file charges with the Board. Alt-
hough one page of the MAP, separate from the arbitration agreement
itself, contains a statement that the agreement does not “keep you from
filing a charge or complaint” with a government agency such as the
Board, the judge found that other statements in the agreement and MAP
documents encompassed by the complaint would lead employees to
believe that claims covered by the MAP include matters within the
Board’s jurisdiction. Thus, she concluded that employees would rea-
sonably construe the policy to restrict their access to the Board. The
Respondent does not except to the judge’s analysis, which we adopt in
the absence of argument. Rather, the Respondent argues that the judge
erred by basing her unfair labor practice findings on the arbitration
agreement as it existed before its revision pursuant to a May 2010
settlement in Case 20–CA–33510, instead of analyzing what the Re-
spondent contends is the agreement’s current, revised form. Because
the Respondent continued to maintain and admittedly enforce that
presettlement agreement, at least against the Charging Party, we reject
this argument. Thus, we find no merit in the Respondent’s exception to
the judge’s finding that employees would reasonably believe that they
were required to arbitrate NLRA-related claims. The Respondent also
contends in its exceptions that this allegation was not specifically
pleaded in the complaint, but it offers no argument contesting the
judge’s finding that the allegation was properly before her and fully
litigated. We agree with the judge. We also note that the allegation is
clearly encompassed by the complaint allegation that the MAP requires
that “all employment-related disputes” be submitted to arbitration.
Further, the complaint seeks a remedial order requiring the Respondent
to cease and desist from maintaining or enforcing an arbitration agree-
ment that employees reasonably could believe restricts their right to file
Board charges. Finally, in the parties’ joint motion, the Respondent
stipulated to the statement of issues, which stated that “the central legal
issue to be resolved” includes whether the MAP interferes with em-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adopt the recommended Order and notice, as modified
and set forth in full below.5
As did the judge, we reject the Respondent’s argument
that the complaint is time-barred under Section 10(b) of
the Act, assertedly because the initial unfair labor prac-
tice charge was filed and served more than 6 months af-
ter the Charging Party signed the MAP documents and
more than 6 months after her employment with the Re-
spondent ended. What matters, rather, is that the Re-
spondent maintained and enforced the MAP with respect
to the Charging Party during the Section 10(b) period.
This time span includes, of course, the relevant 6-month
period that preceded the filing of the charge on February
7, 2012, and its service on February 10, 2012. The
Board has held repeatedly that the maintenance of an
unlawful rule is a continuing violation, regardless of
when the rule was promulgated.6 It is equally well estab-

ployees’ Sec. 7 rights “because several of the program’s documents
interfere with employees’ access to the Board and its processes.”
For the reasons set forth in detail in his dissent in Murphy Oil, supra,
slip op. at 35–58, Member Johnson would not find that the Respond-
ent’s maintenance or enforcement of the arbitration agreement violates
the Act insofar as it prevents employees from pursuing class and other
collective actions. Because he does not find these violations, Member
Johnson finds it unnecessary to consider here whether or under what
circumstances the remedies related to the enforcement violation would
be appropriate. See Murphy Oil, supra, slip op. at 39 fn. 15 (Member
Johnson, dissenting); see generally BE & K Construction Co. v. NLRB,
536 U.S. 516 (2002). Because he finds no merit to this allegation, he
does not reach the Respondent’s related argument that the Charging
Party was not engaged in concerted activity when, as an individual
plaintiff, she brought a collective wage-and-hour complaint in the Cali-
fornia Superior Court and collective demand for arbitration with the
American Arbitration Association. Nor does he pass on whether the
enforcement violation was timely raised, or on his colleagues’ broad
assertion about the enforcement of unlawful rules in general.
5 Consistent with our decision in Murphy Oil, we amend the judge’s
remedy and shall order the Respondent to reimburse the Charging Party
for all reasonable expenses and legal fees, with interest, incurred in
opposing the Respondent’s unlawful motion to compel individual arbi-
tration in the collective wage-and-hour litigation and collective demand
for arbitration. Id. at 21; see Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731, 747 (1983) (“If a violation is found, the Board may order the
employer to reimburse the employees whom he had wrongfully sued
for their attorneys’ fees and other expenses” as well as “any other prop-
er relief that would effectuate the policies of the Act.”). Interest shall
be computed in the manner prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). See Teamsters Local 776 (Rite Aid),
305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole orders for suits
maintained in violation of the Act, it is appropriate and necessary to
award interest on litigation expenses.”), enfd. 973 F.2d 230 (3d Cir.
1992).
We shall also amend the judge’s remedy to order the Respondent to
notify the California Superior Court that it has rescinded or revised the
MAP and to inform the court that it no longer opposes the plaintiff’s
claims on the basis of the arbitration agreement.
6 See Carney Hospital, 350 NLRB 627, 627–628 (2007); Eagle-
Picher Industries, 331 NLRB 169, 174 fn. 7 (2000); Wire Products
Mfg. Corp., 326 NLRB 625, 633 (1998), enfd. sub nom. NLRB v. R. T.
lished that an employer’s enforcement of an unlawful
rule, including a mandatory arbitration policy like the
one at issue here, independently violates Section 8(a)(1).7
The complaint was timely in this respect, as well.
Finally, we decline to reconsider our December 20,
2013 Order denying the Respondent’s motion to dismiss
the complaint due to settlement bar and estoppel. The
Respondent argues that the May 2010 settlement agree-
ment reached in Case 20–CA–33510, which resulted in
the Respondent revising several of the documents of its
MAP, estops the General Counsel from pursuing the in-
stant complaint. Essentially, the Respondent contends
that any alleged violations regarding the presettlement
version of the policy were settled, and the revised agree-
ment was approved by the then-General Counsel. The
Respondent nonetheless contends that the presettlement
agreement remains binding on the Charging Party be-
cause it is the one she agreed to as a condition of em-
ployment, and she had left the company before the policy
was revised. Consistent with that position, beginning in
August 2011—more than a year after entering the settle-
ment agreement and revising the arbitration program
pursuant to the settlement—the Respondent enforced the
original, presettlement arbitration program against the
Charging Party by moving to compel individual arbitra-
tion in filings with the California Superior Court (and
later the American Arbitration Association) in response
to the Charging Party’s class-action wage-and-hour com-
plaint
The Respondent’s argument is meritless. The Board
has long held that “a settlement agreement disposes of all
issues involving presettlement conduct unless prior viola-
tions of the Act were unknown to the General Counsel,
not readily discoverable by investigation, or specifically
reserved from the settlement by the mutual understand-
ing of the parties.” Hollywood Roosevelt Hotel Co., 235
NLRB 1397, 1397 (1978). The instant complaint does

Blankenship & Associates, Inc., 210 F.3d 375 (7th Cir. 2000); see also
Murphy Oil, supra, slip op. at 13 (the vice of maintaining a workplace
rule that restricts Sec. 7 activity is that it reasonably tends to chill em-
ployees’ exercise of their statutory rights); Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enfd. 203 F.3d. 52 (D.C. Cir. 1999) (same).
Cf. Teamsters Local 293 (Lipton Distributing), 311 NLRB 538, 539
(1993) (finding violation for maintenance of unlawful contractual pro-
vision executed outside 10(b) period).
7 See Murphy Oil, supra, slip op. at 19–21 (citing NLRB v. Washing-
ton Aluminum Co., 370 U.S. 9, 16–17 (1962); Republic Aviation Corp.,
324 U.S. 793 (1945)); Sahara Reno, 262 NLRB 824, 824 fn. 2, 845
(1982), enfd. 722 F.2d 734 (3d Cir. 1983); King Radio Corp., 166
NLRB 649, 649 fn. 2 (1966), enfd. 398 F.2d 14 (10th Cir. 1968). In
adopting the judge’s conclusion that the Respondent violated the Act by
enforcing the MAP, we rely solely on the principle that the enforcement
of an unlawful provision is, in itself, an independent violation of Sec.
8(a)(1).
THE NEIMAN MARCUS GROUP, INC. 3
not allege presettlement conduct, however. Nor is the
postsettlement conduct alleged here grounded in a
presettlement policy that would itself be settlement-
barred from litigation as the Respondent claims, citing,
e.g., Ratliff Trucking Corp., 310 NLRB 1224 (1993).
Rather, the current case involves postsettlement mainte-
nance and enforcement of the presettlement version of
the mandatory arbitration program signed by the Charg-
ing Party. The Respondent cannot claim that the revision
and settlement extinguish its liability regarding the origi-
nal arbitration program while still maintaining that the
original mandatory arbitration documents remain binding
on the Charging Party and similarly situated employees
who signed only the original agreement.8 Further, based
on the exhibits in the record, it appears that the Respond-
ent’s 2010 revision of its arbitration program pursuant to
the settlement was based on a legal analysis that the
Board subsequently expressly disavowed in D. R. Hor-
ton, Inc., above at slip op. at 6–7, and further clarified in
Murphy Oil, decisions that are controlling here. Alt-
hough the extent to which the Respondent’s current poli-
cy may or may not comport with controlling law is not
before us, nothing in the settlement or Board precedent
exempts the Respondent, postsettlement, from a continu-
ing obligation to comply with current law.9
ORDER
The National Labor Relations Board orders that the
Respondent, The Neiman Marcus Group, Inc., Beverly
Hills, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration program that
employees reasonably would believe bars or restricts the
right to file charges with the National Labor Relations
Board.
(b) Maintaining and/or enforcing a mandatory arbitra-
tion program that requires employees, as a condition of

8 In addition, the settlement agreement includes standard settlement
language stating that it:
settles only the allegations in the above-captioned case(s), and does
not constitute a settlement of any other case(s) or matters. It does not
preclude persons from filing charges, the General Counsel from pros-
ecuting complaints, or the Board and the courts from finding viola-
tions with respect to matters which precede the date of the approval of
this Agreement regardless of whether such matters are known to the
General Counsel or are readily discoverable.
See B & K Builders, 325 NLRB 693, 694 (1998) (finding identical language
precluded settlement bar as to other presettlement conduct).
9 Member Johnson adheres to his view in previously denying Re-
spondent’s motion to dismiss that if the Respondent’s motion had been
limited to the class-action waiver allegations in the complaint and its
enforcement of the revised arbitration agreement, he would have grant-
ed the motion.
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the mandatory arbitration program in all
of its forms, or revise it in all of its forms to make clear
to employees that the arbitration program does not con-
stitute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not restrict employees’ right to file
charges with the National Labor Relations Board.
(b) Notify all current and former employees who were
required to sign acknowledgements regarding the manda-
tory arbitration program in any form that it has been re-
scinded or revised and, if revised, provide them a copy of
the revised program.
(c) Notify the Superior Court of the State of Califor-
nia, San Francisco, in Case CGC–10–502877, that it has
rescinded or revised the mandatory arbitration program
upon which it based its motion to dismiss Sheila
Monjazeb’s collective action and to compel individual
arbitration of her claim, and inform the court that it no
longer opposes the action on the basis of the arbitration
program.
(d) In the manner set forth in this decision, reimburse
Sheila Monjazeb for any reasonable attorneys’ fees and
litigation expenses that she may have incurred in oppos-
ing the Respondent’s motion to dismiss the wage claim
and compel individual arbitration.
(e) Within 14 days after service by the Region, post at
its Beverly Hills, California facility copies of the at-
tached notice marked “Appendix A,” and at all other
facilities employing covered employees, copies of the
attached notice marked “Appendix B.”10 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice
marked “Appendix A” to all current employees and for-
mer employees employed by the Respondent at any time
since August 3, 2011.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation 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 4, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration pro-
gram that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration program that requires our employees, as a con-
dition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration program in
all of its forms, or revise it in all of its forms to make
clear that the arbitration program does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign acknowledgements regarding the
mandatory arbitration program in all of its forms that the
arbitration program has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pro-
gram.
WE WILL notify the court in which Sheila Monjazeb
filed her collective wage claim that we have rescinded or
revised the mandatory arbitration program upon which
we based our motion to dismiss her collective wage
claim and compel individual arbitration, and WE WILL
inform the court that we no longer oppose Sheila
Monjazeb’s collective claim on the basis of that program.
WE WILL reimburse Sheila Monjazeb for any reasona-
ble attorneys’ fees and litigation expenses that she may
have incurred in opposing our motion to dismiss her col-
lective wage claim and compel individual arbitration.
THE NEIMAN MARCUS GROUP, INC.
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-074295 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.
THE NEIMAN MARCUS GROUP, INC. 5
APPENDIX B
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration pro-
gram that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration program that requires our employees, as a con-
dition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration program in
all of its forms, or revise it in all of its forms to make
clear that the arbitration program does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign acknowledgements regarding the
mandatory arbitration program in all of its forms that the
arbitration program has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pro-
gram.
THE NEIMAN MARCUS GROUP, INC.
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-074295 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.
Michelle Scannell, Esq., for the General Counsel.
David S. Bradshaw, Esq. (Jackson Lewis LLP), for the Re-
spondent.
Raul Perez, Esq., Alexandria White, Esq. (Capstone Law,
APC), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, ADMINISTRATIVE LAW JUDGE. This is an-
other case raising issues related to D. R. Horton, Inc., 357
NLRB No. 184 (2012), enf. granted in part and denied in part
737 F.3d 433 (5th Cir. 2013). It was tried based on a joint mo-
tion and stipulation of facts I approved on November 22, 2013.
Sheila Monjazeb (Monjazeb or the Charging Party) filed the
original charge on February 7, 2012, and an amended charge on
April 4, 2012.1 The General Counsel issued the complaint on
November 30, 2012, and the Neiman Marcus Group (the Re-
spondent, Company, or NMG) filed a timely answer denying all
material allegations and setting forth affirmative defenses. On
February 26, 2013, the Respondent filed a motion for judgment
on the pleadings on timeliness grounds. This motion was re-
ferred to the National Labor Relations Board (the Board) on
April 17, but no ruling has issued.2 The Respondent filed a
motion to dismiss on March 15, 2013, alleging the Board
lacked a quorum when it issued the complaint. The Board de-
nied this motion on May 10. The Respondent filed another
motion to dismiss on June 14, 2013, asserting the General
Counsel was “estopped, barred and/or otherwise foreclosed”
from pursuing the instant matter based on the terms of a settle-
ment agreement between the parties. The Board denied this
motion on December 20, 2013.
On the entire record and after considering the briefs filed by
the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Beverly Hills, California, is engaged in retail sales
of luxury clothing and other goods. The parties stipulate and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.

1 All dates are in 2013 unless otherwise indicated.
2 I denied the Respondent’s motion to stay proceedings pending the
Board’s ruling on this motion and a motion to dismiss upon which the
Board has since ruled. I will address the reasons for my ruling on the
motion for judgment on the pleadings in the body of this decision.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by main-
taining and enforcing a mandatory arbitration program (MAP)
consisting of: (1) a mandatory arbitration agreement and man-
datory arbitration acknowledgment form requiring employees
to individually arbitrate employment-related disputes; (2) a
resolutions plan and a resolutions plan acknowledgment form
requiring all employment-related disputes to be submitted to
individual binding arbitration; and (3) an associate handbook
and associate handbook acknowledgment form requiring all
employment-related disputes to be submitted to individual
binding arbitration. The complaint further asserts that the Re-
spondent violated Section 8(a)(1) when it enforced its MAP by:
(1) requiring the Charging Party to agree to the mandatory arbi-
tration agreement, resolutions plan, and associate handbook;
and (2) asserting the MAP in litigation the Charging Party
brought against it.
III. BACKGROUND
A. The Application
On or about October 28, 2009, the Respondent required
Monjazeb to agree to the terms set forth in its job application.
Specifically, Monjazeb was required to agree to the following
provision:
I understand that if I accept or continue employment with
NMG, I will automatically be deemed to have (1) accepted
the terms of the mandatory Arbitration Agreement, (2) agreed
to arbitrate such disputes, and (3) waived all rights to a judge
or jury trial for all such disputes.
(Stip. at 4; GC Exh. 1(g) at Appx. A.)3 Monjazeb was hired
and worked as a sales associate at Neiman Marcus’ Beverly
Hills, California store from November 20, 2009, through May
10, 2010.
B. The Mandatory Arbitration Agreement
The Respondent has a mandatory arbitration agreement (Ar-
bitration Agreement) that requires covered employees to submit
most legal claims arising out of their employment to binding
arbitration.4 The agreement is more than 9 pages long and
contains 23 numbered sections. (Stip. at 5, GC Exh. 1(g) at
Appx. B.) Monjazeb was required to agree to the terms set
forth in the Arbitration Agreement on November 23, 2009
(Stip. at 5, GC Exh. 1(g) at Appx. C.) Section 15 of the Arbi-
tration Agreement precludes class and collective actions, stat-
ing:

3 Abbreviations used in this decision are as follows: “Stip.” for stip-
ulated fact; “Jt. Exh.” for joint exhibit; “GC Exh.” for General Coun-
sel’s exhibit; “GC Br.” for the General Counsel’s brief; “R. Br.” for the
Respondents’ brief. Although I have included several citations to the
record to highlight particular exhibits, I emphasize that my findings and
conclusions are based not solely on the evidence specifically cited, but
rather are based my review and consideration of the entire record.
4 Employees who have signed separate employment agreements and
employees who are covered by a collective-bargaining agreement are
not covered by the Arbitration Agreement.
Class Action Prohibition. The arbitrator shall not consolidate
claims of different employees into one (1) proceeding, nor
shall the arbitrator have the authority to consider, certify, or
hear an arbitration as a class action. While Section 22 hereof
contains a severability clause, this provision that precludes
class actions may not be severed from this Agreement for any
reason.
(GC Exh. 1(g) at Appx. B.)
A separate page, not included as a section of the agreement,
describes the Arbitration Agreement’s scope, stating:
THIS MANDATORY ARBITRATION AGREEMENT
REQUIRES YOU TO SUBMIT ALL COMPLAINTS,
DISPUTES, AND LEGAL CLAIMS (“DISPUTES”) YOU
HAVE AGAINST THE COMPANY, AND THE
COMPANY TO SUBMIT ALL DISPUTES IT HAS
AGAINST YOU, TO BINDING ARBITRATION. THE
MANDATORY ARBITRATION AGREEMENT COVERS
ALL DISPUTES, WHETHER THEY BE COMMON LAW,
STATUTORY (SUCH AS STATE AND
FEDERALDISCRIMINATION CLAIMS), OR
OTHERWISE—IN SHORT ANY DISPUTE.
THIS MANDATORY ARBITRATION
AGREEMENTMEANS BOTH YOU AND THE
COMPANY ARE WAIVING THE RIGHT TO A TRIAL
BY JURY OR TO A TRIAL BEFORE A JUDGE IN A
COURT OF LAW ON ALL DISPUTES. INSTEAD, ALL
DISPUTES MUST BE SUBMITTED TO FINAL AND
BINDING ARBITRATION.
THIS AGREEMENT FOR MANDATORY
ARBITRATION IS NOT OPTIONAL. IT IS
MANDATORY AND A CONDITION AND TERM OF
YOUR EMPLOYMENT. IF YOU ARE AN EMPLOYEE
ON OR AFTER JULY 15, 2007, WHICH IS THE
EFFECTIVE DATE OF THIS AGREEMENT (THE
“EFFECTIVE DATE”), YOU ARE DEEMED TO HAVE
ACCEPTED AND AGREED TO THE MANDATORY
ARBITRATION GREEMENT BY COMING TO WORK
AFTER THAT DATE. IF YOU ACCEPT EMPLOYMENT
WITH TILE COMPANY AFTER THE EFFECTIVE DATE,
YOU ARE DEEMED TO HAVE ACCEPTED AND
AGREED TO THIS MANDATORY ARBITRATION
AGREEMENT BY ACCEPTING A JOB AT THE
COMPANY
NOTHING IN THE MANDATORY ARBITRATION
AGREEWNT KEEPS YOU FROM FILING A CHARGE
OR COMPLAINT WITH THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, THE NATIONAL
LABOR RELATIONS BOARD, OR LIKE STATE
AGENCIES.
Id. [Emphasis in original.] Employees sign a separate form to
acknowledge receipt and understanding of the Arbitration
Agreement:
By signing below, I acknowledge and affirm that:
I have received and had an opportunity to review the NMG
THE NEIMAN MARCUS GROUP, INC. 7
Mandatory Arbitration Agreement (the “Arbitration Agree-
ment”);
I understand that the Arbitration Agreement is an important
legal document that requires me to submit all complaints, dis-
putes, and legal claims (“Disputes”) I have against the Com-
pany, and the Company to submit all Disputes it has against
me, to binding arbitration;
I understand that the Arbitration Agreement mans both I and
the Company are waiving the right to a trial by jury or to a tri-
al before a Judge in a court of law an[sic] all Disputes. In-
stead, all Disputes must be submitted to final and binding ar-
bitration;
I understand that the Arbitration Agreement is not optional.
Rather, it is mandatory and a condition and term of my em-
ployment if I am employed or continue employment on or after
July 15, 2007.
(GC Exh. 1(g) at Appx. C.)
C. The Associate Handbook and NMG Resolutions
The Respondent’s associate handbook requires employees to
take employment disputes through its 4-step process referred to
and trademarked as “NMG Resolutions™.” Relevant here, the
fourth and final step requires employees to submit to arbitra-
tion, in accordance with the Arbitration Agreement, any work-
place dispute that has not been resolved internally or through
mediation. (GC Exh. 1(g), Appx. D–E.) Monjazeb was re-
quired to agree to the terms in the handbook on November 23,
2009. The acknowledgment form states, in relevant part:
I have received and had an opportunity to review The NMG
Binding Arbitration Program, which sets forth the terms and
conditions of NMO’s binding arbitration plan which provides
that arbitration is the exclusive means of resolving any and all
disputes or claims I or the Company may have against each
other, arising out of or connected in any way with my em-
ployment with NMG, in lieu of a judge or jury trial. The
Company has advised me that if I accept or continue em-
ployment with the Company, I am deemed to have accepted
the Binding Arbitration Program.
(GC Exh. 1(g), Appx. F.)
D. Monjazeb’s Class Complaint
On August 20, 2010, Monjazeb filed a class action wage-
and-hour complaint against the Respondent in the Superior
Court of the State of California, San Francisco County, alleging
violations of various California Labor Code provisions. (Jt.
Exh. 1.) The Respondent filed an answer on October 12, 2010,
and asserted as its eighth affirmative defense that Monjazeb
was “subject to a written arbitration agreement requiring her to
submit any employment-related dispute to final and binding
arbitration.”5 (Jt. Exh. 2.)
On August 3, 2011, the Respondent filed a motion to compel
arbitration or in the alternative to stay the class action.
Monjazeb responded on August 19, 2011, with an opposition.

5 That same day, the Respondent filed an application with the state
court for an order designating the case as complex. (Jt. Exh. 3.)
The Respondent replied on August 25, and the parties then filed
a slew of related motions with the Superior Court. On Decem-
ber 20, 2011, Superior Court Judge Richard A. Kramer issued
an order dismissing Monjazeb’s claims except those covered by
the Private Attorney General’s Act (PAGA), which were stayed
pending outcome of the arbitration or further court order. (Jt.
Exhs. 4–11.)
Monjazeb filed a demand for arbitration with the American
Arbitration Association (AAA) on January 10, 2012. She filed
an amended demand on January 18, to include a demand for
class arbitration. (Jt. Exh. 12.) On February 5, the Respond-
ent’s attorney sent a letter to Lesley Barton, manager of ADR
services at the AAA, stating that in accordance with paragraph
15 of the Agreement, it would not participate in class arbitra-
tion. (Jt. Exh. 13.) In response, Monjazeb sought to have her
class action lawsuit reinstated in state court. The parties con-
tinued to file various motions, ultimately culminating in an
October 30, 2012 order from Judge Kramer vacating the previ-
ous order compelling arbitration, based upon his finding that
Arbitration Agreement was unconscionable under California
law, and issuing a new order denying the Respondent’s motion
to compel arbitration. The Respondent appealed Judge Kra-
mer’s order on December 20, 2012. At the time of this decision
the appeal was pending before the California Court of Appeal
for the First Appellate District. (Jt. Exhs. 13A-28.)
IV. DECISION AND ANALYSIS
A. Mandatory Waiver of Class Action Claims
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7. The rights
guaranteed in Section 7 include the right “to form, join or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection . . .”
The Board has held that activity is concerted if it is “engaged
in with or on the authority of other employees, and not solely
by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v.
NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. denied 474 U.S.
948 (1985), on remand Meyers Industries (Meyers II), 281
NLRB 882 (1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Concerted
activity also includes “circumstances where individual employ-
ees seek to initiate or to induce or to prepare for group action”
and where an individual employee brings “truly group com-
plaints to management’s attention.” Meyers II, 281 NLRB at
887.
The Respondent asserts that as a putative class member, the
Charging Party was not engaged in concerted activity. Estab-
lished case law instructs otherwise. Section 7 “protects employ-
ees from retaliation by their employers when they seek to im-
prove [their] working conditions through resort to administra-
tive and judicial forums. Eastex, Inc. v. NLRB, 437 U.S. 556,
565−566 (1978); see also D.R. Horton, supra, slip op. at 3; see
also Standsco Oil & Royalty Co., 42 NLRB 942, 948−949
(1942); United Parcel Service, 252 NLRB 1015, 1018, 1022 fn.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 (1980), enfd. 677 F.2d 421 (6th Cir. 1982). Whether class
member status existed is immaterial since the Act “protects
employees who engage in individual action . . . with the objec-
tive of initiating or inducing group action.” Mushroom Trans-
portation Co. v. NLRB, 330 F.2d. 683, 685 (3d Cir. 1964).
Even without class member status, Monjazeb’s class action
lawsuit sought to “enlist the support of fellow employees in
mutual aid and protection” and intended to “initiat[e] or
induc[e] group action” regarding alleged wage-and-hour viola-
tions against the Respondent. Whitaker Corp., 289 NLRB 933
(1988). “Clearly, 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
action and is engaged in conduct protected by Section 7.” D.R.
Horton, supra, slip op. at 3.6 I therefore find Monjazeb was
engaged in protected concerted activity when she filed and
pursued her class action suit.
I find the MAP is a condition of employment, as employees
and applicants must agree to its terms to be employed by the
Respondent.7 Accordingly, it is treated in the same manner as
other unilaterally implemented workplace rule. When evaluat-
ing whether a rule, including a mandatory arbitration policy,
violates Section 8(a)(1), the Board applies the test set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). See
U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd.
255 Fed.Appx. 527 (D.C. Cir. 2007); D.R. Horton, supra. Un-
der Lutheran Heritage, the first inquiry is whether the rule ex-
plicitly restricts activities protected by Section 7. If it does, the
rule is unlawful. If it does not, “the violation is dependent upon
a showing of one of the following: (1) employees would rea-
sonably construe the language to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights.” Lutheran Heritage at 647. Because the MAP explicitly
prohibits employees from pursuing employment-related claims
on a class or collective basis, I find it violates Section 8(a)(1).
In addition, by moving to compel arbitration and refusing to
arbitrate anything other than an individual claim, the Respond-
ent has applied the MAP to restrict Section 7 rights.
The Respondent argues, based on the Supreme Court’s rea-
soning in AT&T Mobility v. Concepcion, 131 S.Ct. 1740, 1746
(2011), and other related case law,8 that the Board in D.R. Hor-

6 At fn. 5 in D.R. Horton, the Board, citing to court decisions, notes,
“Employees surely understand what several Federal courts have recog-
nized: that named plaintiffs run a greater risk of suffering unlawful
retaliation than unnamed class members.” As such, the Board observed
that “in a quite literal sense, named-employee-plaintiffs protect the
unnamed class members.”
7 The Respondent’s asserted affirmative defense that the MAP was
voluntary is discussed below.
8 AT&T Mobility LLC v.Concepcion, supra; CompuCredit Corp. v.
Greenwood, 132 S.Ct. 665 (2012); Marmet Health Care Center. v.
Brown, 132 S.Ct. 1201 (2012); Stolt-Nielsen S.A. v. Animal Feeds
International Corp., 559 U.S. 662 (2010); 14 Penn Plaza LLC v. Pyett,
556 U.S. 247 (2009); Circuit City Stores, Inc. v. Adams, 532 U.S. 105,
119 (2001); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20
(1991); Shearson/American Express v. McMahon, 482 U.S. 220, 227
(1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S.
614, 628 (1985); Moses H. Cone Memorial Hospital v. Mercury Con-
ton erred by failing to follow the Federal Arbitration Act
(FAA), 9 U.S.C. §§ 1 et. seq. The Board, however, considered
these arguments and precedents in D.R. Horton to support a
different conclusion by which I am bound.9
Next, the Respondent argues that I should follow the reason-
ing of the Court of Appeals for the Fifth Circuit, which vacated
the Board’s D.R. Horton decision. D.R. Horton, Inc. v. NLRB,
No. 12–60031 (5th Cir. Dec. 3, 2013). Because I am bound by
Board precedent until it is either overturned by the Supreme
Court or reversed by the Board itself, this argument fails.
Citing to the Supreme Court precedent discussed above,
along with American Express. Co. v. Italian Colors Restaurant,
133 S.Ct. 2034 (2013), as well as lower court decisions repudi-
ating D.R. Horton, the Respondent asserts that the instant com-
plaint lacks merit. The Respondent requests that I follow the
recent decision of Administrative Law Judge Bruce Rosenstein
in Chesapeake Energy Corporation, No. 14-CA-100530 (No-
vember 8, 2013). This decision is not precedential, however,
and to the extent it conflicts with the Board’s case law, I am
precluded from following it. The Respondent argues, and
Judge Rosenstein found, that American Express Co. makes
clear that it is improper to find a congressional command where
none exists. American Express Co. involved a group of mer-
chants who were unhappy with the rates American Express
charged them to use their cards at their respective businesses.
At issue before the Court was whether the merchants were
bound by agreements mandating individual arbitration of these
disputes and precluding a class action suit for violation of anti-
trust law. The merchants argued that without the ability to
proceed collectively, it was not cost effective to challenge
American Express’ rates. The Court noted that the laws at
issue, the Sherman and Clayton Acts, fail to reference class
actions, and found that the “antitrust laws do not guarantee an
affordable procedural path to the vindication of every claim.”
Id. at 2309. Though the NLRA likewise does not reference
class or collective actions, the Board in D.R. Horton distin-
guished it from other statutes the Court has considered by find-
ing that Section 7 substantively guarantees employees the right
to engage in collective action, including collective legal action,
for mutual aid and protection concerning wages, hours, and
working conditions. As the Board stated, “the intent of the
FAA was to leave substantive rights undisturbed.” D.R. Horton,
slip op. at 11. No such substantive statutory provision was
asserted in American Express Co., and therefore the decision is
not sufficiently on point to warrant straying from Board prece-
dent. See Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Los
Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd.
640 F2d 1017 (9th Cir. 1981).
The Respondent next contends that the remedies the General
Counsel has requested create obstacles to the enforcement of
the FAA, and because the FAA is preemptive, they must be
denied. The Board has rejected this position regarding the rela-

struction Corp., 460 U.S. 1 (1983). Though a couple of the cases the
Respondent cites were not specifically referenced in D.R. Horton, the
principles for which they were cited were addressed.
9 Though the American Express Co. decision came after D.R. Hor-
ton, I have addressed this below.
THE NEIMAN MARCUS GROUP, INC. 9
tionship between the FAA and the NLRA, as set forth in D. R.
Horton, so I am unable to find merit to this defense as a general
matter. More specifically, the Respondent incorporates its
10th, 11th, and 12th affirmative defenses to argue a lack of
remedial power. I address these more specific arguments be-
low.
In support of its 10th, 12th, and 13th affirmative defenses,
the Respondent asserts that the Board lacks the authority to
order reimbursement of litigation expenses for actions taken in
court because this would interfere with the authority of the
Superior Court in Monjazeb’s pending civil case. I disagree, as
the court is not determining whether the Respondent violated
the Act by its actions in litigation. Monjazeb may lose her
lawsuit alleging violations of the California Labor Code and
therefore lose any entitlement for the court to order reimburse-
ment attorney’s fees as a remedy.10 Win or lose, her class ac-
tion lawsuit is still protected concerted activity under the Act.
It is a matter of common sense that if collective and class legal
actions are protected by the Act, any remedy imposed upon the
Respondent for interfering with an active protected lawsuit is
going to implicate another forum in some fashion. Such inter-
ference, be it by way of legal action or otherwise, is unlawful
and requires a make whole remedy, including attorney’s fees
incurred in fighting the unlawful legal action. J.A. Croson Co.,
359 NLRB No. 2, slip op. at 10 (2012); See also Bill Johnson’s
Restaurants v. NLRB, 461 U.S. 731, 747 (1983). The fact that
Monjazeb initiated the lawsuit does not, in my view, create a
meaningful distinction. The Respondent by its actions in court
is challenging Board case law which very clearly holds the
MAP violates the Act. The motion to compel arbitration,
which by virtue of the MAP can only be on an individual basis,
is the crux of the challenge. Inherent in the challenge are risks,
which the Respondent is assuming by declining to follow the
Board’s case law as it works its way through the system. In
any event, the General Counsel’s requested remedy of attor-
ney’s fees for defending against the motion to compel arbitra-
tion does not intrude upon the court’s ability to determine the
merits of Monjazeb’s claims before it. Should Monjazeb pre-
vail in court and be entitled to attorney’s fees as a result of the
Respondent’s violations of State law, the California Superior
Court judiciary is fully capable of applying California law to
sort out the equities when devising its remedy.
The 11th affirmative defense asserts that the complaint is
barred because it would require the Respondent to rescind the
MAP with respect to all employees, including supervisors,
mangers, and other employees not covered by the Act. The
General Counsel contends that the complaint only seeks a rem-
edy for employees as defined by the Act. Any remedial order
will thus reflect the scope of the complaint the term “employ-
ee” will be construed in accordance with the Act.
The Respondent’s 12th affirmative defense contends that the

10 I note that California Labor Code sec.218.5 authorizes attorney’s
fees for the prevailing party in “ any action brought for the nonpay-
ment of wages, fringe benefits, or health and welfare or pension fund
contributions . . . if any party to the action requests attorney’s fees and
costs upon the initiation of the action.” Sec. 1194(a) entitles employees
who have been found to have received less than minimum wage or
overtime compensation to attorney’s fees, among other remedies.
Board lacks jurisdiction to order the Respondent to take or
abstain from taking action with regard to the Charging Party’s
civil action in state court. The law does not require the em-
ployer to permit class action civil lawsuits. Instead, D.R. Hor-
ton states that a forum for class or collective claims must be
available. The MAP foreclosed both judicial and arbitral class
action options, and therefore Monjazeb, in turn, attempted to
pursue her class claims in each forum. Because the MAP is
facially invalid and unlawful, a Board order requiring the Re-
spondent to withdraw its opposition to Monjazeb’s state court
claim comports with established precedent. Bill Johnson’s Res-
taurants, supra, fn. 5 (1983); Loehmann’s Plaza, 305 NLRB
663, 671 (1991); Federal Security, Inc., 336 NLRB 703 (2001),
remanded on other grounds, 202 WL31234984 (D.C. Cir.
2002). I find, however that an order requiring the Respondent
to withdraw its opposition to Monjazeb’s class claim either in
court or arbitration better aligns with the Board’s decision in
D.R. Horton.
The Respondent argues that D.R. Horton is void because the
Board lacked a quorum when it issued the decision. This ar-
gument derives from the D.C. Circuit’s decision in Noel Can-
ning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), which the Board
has rejected and so must I. See, e.g., Bloomingdale’s Inc., 359
NLRB No. 113 (2013). Moreover, the Board denied the Re-
spondent’s motion to dismiss based on alleged lack of quorum,
and therefore any argument that this was erroneous is properly
addressed to the Board. The Respondent further argues that the
complaint is barred because individuals involved in prosecuting
it were not properly appointed.
Next, the Respondent asserts that continued prosecution of
this case violates its First Amendment rights to defend itself in
the lawsuit the Charging Party initiated under Bill Johnson’s v.
NLRB, 461 U.S. 731, 741 (1983), and BE&K Construction, 536
U.S. 516 (2002). I find that instant case falls within the excep-
tion set forth in Bill Johnson’s at footnote 5, which states in
relevant part:
It should be kept in mind that what is involved here is an em-
ployer’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. Brief of
Petitioner 12-13, 20; Reply Brief for Petitioner 8. Nor could it
be successfully argued otherwise, for we have upheld Board
orders enjoining unions from prosecuting court suits for en-
forcement of fines that could not lawfully be imposed under
the Act, see Granite State Joint Board, Textile Workers Un-
ion, 187 N.L.R.B. 636, 637 (1970), enforcement denied, 446
F.2d 369 (CA1 1971), rev’d, 409 U.S. 213, 93 S.Ct. 385, 34
L.Ed.2d 422 (1972); Booster Lodge No. 405, Machinists &
Aerospace Workers, 185 N.L.R.B. 380, 383 (1970), enforced
in relevant part, 148 U.S.App.D.C. 119, 459 F.2d 1143
(1972), aff’d, 412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764
(1973), and this Court has concluded that, at the Board’s re-
quest, a District Court may enjoin enforcement of a state-
court injunction “where [the Board’s] federal power pre-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
empts the field.” NLRB v. Nash-Finch Co., 404 U.S. 138, 144,
92 S.Ct. 373, 377, 30 L.Ed.2d 328 (1971).
The Board has determined that these exceptions apply in the
wake of Bill Johnson’s and BE&K Construction. See, e.g.,
Allied Trades Council (Duane Reade Inc.), 342 NLRB 1010,
1013 fn. 4 (2004); Teamsters, Local 776 (Rite Aid Corp.), 305
NLRB 832, 835 (1991). Moreover, as the General Counsel
notes, particular litigation tactics may fall within the exception
even if the entire lawsuit may not be enjoined. Wright Electric,
Inc., 327 NLRB 1194, 1195 (1999), enfd. 200 F.3d 1162 (8th
Cir. 2000); Dilling Mechanical Contractors, Inc, 357 NLRB
No. 56 (2011). As such, since the Board has concluded in D.R.
Horton that agreements such as those comprising the MAP
explicitly restrict Section 7 activity, the Respondent’s attempt
to enforce the MAP in state court by moving to compel arbitra-
tion fall within the unlawful objective exception in Bill John-
son’s.
The Respondent asserts that the proceedings before the
Board must be stayed pending outcome of the state court civil
action, relying on the Board’s decision following remand in Bill
Johnson’s. Bill Johnson’s Restaurants, 290 NLRB 29 (1988).
The facts of that case, however, did not implicate the exception
set forth above, as stated by Associate Chief Administrative
Law Judge Gerald Etchingham in his order denying the Re-
spondent’s motion to stay. The Respondent further contends
that the Board’s complaint should be stayed because it seeks
remedies inconsistent or incompatible with those of the San
Francisco Superior Court in the Charging Party’s wage-and-
hour lawsuit. These arguments were not distinguished from the
arguments in support of the Bill Johnson’s defense asserted
above, and are therefore unavailing.11 (R. Br. pp. 17–21.)
The Respondent raises a timeliness defense under Section
10(b) of the Act, which states in pertinent part, that “no com-
plaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the
Board . . .” The Respondent filed a motion to dismiss on Feb-
ruary 26, 2013, asserting the charge was untimely. As of the
date this decision was written, the Board had not ruled on this
motion, and I denied a motion to stay proceedings pending the
Board’s ruling. I did so based on my determination that the
issue has repeatedly and consistently been decided squarely
against the Respondent’s position.
The Respondent contends that this case should be dismissed,
because Monjazeb’s charge was filed more than 6 months after
November 20, 2009, the date she signed and was subject to the
agreement, and more than 6 months after her employment with
the Respondent ended. However, this argument is without
merit under controlling case law holding that a continuing vio-
lation exists as long as the rule is still being enforced at the time
of the charge. See American Cast Iron Pipe Co., 234 NLRB
1126 fn. 1 (1978); Alamo Cement Co., 277 NLRB 1031, 1036–
1037 (1985) (no time bar where enforcement allegation could
not have been litigated sooner); The Guard Publishing Co., 351
NLRB 1110, 1110 fn. 2 (2007) (“maintenance during the 10(b)

11 Associate Chief Administrative Law Judge Gerald Etchingham
denied the Respondent’s motion to stay proceedings, and I agree with
his reasoning, as incorporated by reference.
period of a rule that transgresses employee rights is itself a
violation of Sec. 8(a)(1).”) In this case, the agreement mandat-
ed that Monjazeb arbitrate employment-related claims pursuant
to the MAP even after her termination. She acted in a timely
fashion while the MAP was in effect and the Respondent was
enforcing it against her.12
The Respondent further contends that, even if D.R. Horton is
accepted as good law, by accepting employment with Neiman
Marcus after being informed about the MAP, Monjazeb volun-
tarily agreed to arbitration. Specifically, the Respondent avers
that footnote 28 of D.R. Horton leads to the conclusion that
applicants, as opposed to current employees, who accept em-
ployment after knowingly signing an arbitration agreement
have voluntarily acceded to abide by it. Footnote 28 states that
the Board does not reach the following question:
[W]hether, if arbitration is a mutually beneficial means of dis-
pute resolution, an employer can enter into an agreement that
is not a condition of employment with an individual employee
to resolve either a particular dispute, or all potential employ-
ment disputes through a non-class arbitration rather than liti-
gation in court.
Here, however, the MAP was a condition of Monjazeb’s em-
ployment, i.e., she could either agree to the MAP’s terms or not
work for the Respondent. Whether it was a condition of her
employment from the outset or a condition she was required to
accept as a current employee in order to retain employment
makes no difference analytically with regard to whether the
MAP interfered with her Section 7 right to collective legal ac-
tion.13 The question posed by the Board in footnote 28 was
whether an agreement to engage in non-class arbitration on a
purely voluntary basis without regard to employment or contin-
ued employment would violate the Act. The mandatory nature
of the agreement here takes it outside the scope of the Board’s
reference in footnote 28.
B. Effect on Employees’ Ability to file Board Charges
Finally, I will address the Respondent’s contention that the
complaint does not allege that the MAP violates the Act be-
cause it would reasonably be interpreted as preventing employ-
ees from filing charges with the Board. While the complaint
could have been more specific, it provided the Respondent with
sufficient notice of the documents at issue (the application,

12 Any contention that Monjazeb was not an employee at the time
she filed her charge is unavailing, as an “employee” includes “former
employees of a particular employer.” Briggs Mfg. Co., 75 NLRB 569,
571 (1947); See also Frye Electric Inc., 352 NLRB 245, 357 (2008.)
13 To hold otherwise renders meaningless longstanding protections
for applicants. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).
Moreover, while it was the Charging Party’s choice to work for Neiman
Marcus even though it meant agreeing to the MAP, taken to its logical
extreme, if waivers such as the MAP are judicially sanctioned and
become the norm for employers, employees will increasingly be faced
with the option of foregoing statutorily protected collective litigation
about wages, hours, and working conditions for mutual aid and protec-
tion or not working.
In any event, Monjazeb was required to agree to the terms set forth
in the Arbitration Agreement and the associate handbook on November
23, 2009, 3 days after her employment with the Respondent started.
THE NEIMAN MARCUS GROUP, INC. 11
Arbitration Agreement, the associate handbook and the at-
tendant acknowledgement forms), the time frame when the
alleged violation occurred, and the relief requested . Under the
Board’s requirements, this is sufficient. See American News-
paper Publishers Assn. v. NLRB, 193 F.2d 782, 800 (7th Cir.
1951), affd. 345 U.S. 100 (1953). The complaint alleges that
the MAP violates Section 8(a)(1) by requiring employees to
agree to individual arbitration of employment-related disputes
and requests the following relief, at paragraph 8:
As part of the remedy for Respondent’s unfair labor practices,
the Acting General Counsel seeks an order requiring that Re-
spondent cease and desist from maintaining and/or attempting
to enforce a mandatory arbitration agreement that employees
reasonably could believe bars or restricts their right to file
charges with the National Labor Relations Board.
I find this put the Respondent on sufficient notice.
The Respondent contends that the NMG Resolutions pro-
gram was modified to ensure employees are notified they may
file charges with the Board. The Board denied the Respond-
ent’s motion to dismiss based on this argument and any argu-
ment that this was erroneous is properly made to the Board.
Turning to the merits, in evaluating the impact of a rule on
employees, the appropriate inquiry is whether the rule would
reasonably tend to chill employees in the exercise of their Sec-
tion 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). A rule does not
violate the Act if a reasonable employee merely could conceiv-
ably read it as barring Section 7 activity. Rather, the inquiry is
whether a reasonable employee would read the rule as prohibit-
ing Section 7 activity. Lutheran Heritage, supra. The Board
must give the rule under consideration a reasonable reading and
ambiguities are construed against its promulgator. Lafayette
Lutheran Heritage, supra at 647; Lafayette Park Hotel, 326
NLRB at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467-
470 (D.C. Cir. 2007). Moreover, the Board must “refrain from
reading particular phrases in isolation, and it must not presume
improper interference with employee rights.” Lutheran Herit-
age supra at 646.
The Respondent states that the Arbitration Agreement ex-
pressly states: “The Agreement does not prohibit a Covered
Employee from filing a charge or complaint with a governmen-
tal agency such as the Equal Employment Opportunity Com-
mission, the National Labor Relations Board, or like state agen-
cies.” Section 3 of the agreement includes as “covered dis-
putes” numerous claims involving wages, hours, and working
conditions, such as
Discrimination or harassment on the basis of race, color,
gender, sexual orientation, religion, national origin, age, disa-
bility, or any other unlawful basis (emphasis added.)
. . .
Violations of any . . . governmental statute . . . relating to
workplace health, and safety, voting, meal or rest breaks, . . .
minimum wage and overtime pay, pay days, holiday pay, va-
cation pay, severance/separation pay, or payment at termina-
tion.
. . .
Retaliation for filing a protected claim for benefits (such as
workers’ compensation) or exercising rights under any stat-
ute. (emphasis added).
. . .
[C]laims of wrongful termination or constructive discharge.
. . .
All other employment-related legal disputes, controversies, or
claims arising out of, concerning, or relating in any way to,
employment or cessation of employment with the Company
Notably, section 4, which directly follows and is entitled,
“Claims not Covered by This Agreement,” contains no excep-
tion for filing charges with the Board. The last sentence of
section 4 states, “If there is any inconsistency between this
Section and the definition of covered Claims in Section 3, then
this Section controls.” It is not until section 5, entitled
“Agreement Limitations” where the language stating that the
Agreement does not prohibit a covered employee from filing a
charge with the Board appears. There is, unlike in section 4, no
statement that section 5 controls in the event of an inconsisten-
cy between section 5 and the covered disputes set forth in sec-
tion 3.
Moreover, as the General Counsel points out, the job appli-
cation, the Arbitration Agreement acknowledgement form, the
NMG Resolutions Plan document, the NMG Resolutions Plan
document acknowledgement form, and the associate handbook
all expressly state that disputes with the Respondent must be
resolved through arbitration, with no reference to filing charges
with the Board.
Considering that ambiguities must be construed against the
employer, I find the MAP violates Section 8(a)(1) because
would cause employees to reasonably believe that they would
need to arbitrate employment-related claims covered by section
rather than file charge with the Board. See Aroostook County
Regional Opthamology Center, 317 NLRB 218 (1995).
V. CONCLUSIONS OF LAW
(1) The Respondent, The Neiman Marcus Group, Inc., is an
employer within the meaning of Section 2(6) and (7) of the Act.
(2) The Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing a mandatory and binding arbitration
program (MAP), consisting of: (a) a mandatory arbitration
agreement and mandatory arbitration agreement acknowledg-
ment form requiring employees to individually arbitrate em-
ployment-related disputes; (b) a resolutions plan and a resolu-
tions plan acknowledgment form requiring all employment-
related disputes to be submitted to individual binding arbitra-
tion; and (c) an associate handbook and associate handbook
acknowledgment form requiring all employment-related dis-
putes to be submitted to individual binding arbitration.
(3) The Respondent violated Section 8(a)(1) of the Act when
it enforced the MAP by: (a) requiring the Charging Party to
agree to the mandatory arbitration agreement, resolutions plan
and associate handbook; and (b) asserting the MAP in litigation
the Charging Party brought against the Respondent.
(4) The Respondent violated Section 8(a)(1) of the Act by
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
maintaining a mandatory and binding arbitration policy that
employees reasonably would believe bars or restricts their right
to file charges with the National Labor Relations Board.
Remedy
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
As I have concluded that the MAP is unlawful, the recom-
mended order requires that the Respondent revise or rescind it,
and advise its employees in writing that said rule has been so
revised or rescinded. Because the Respondent utilized the
MAP on a corporatewide basis, the Respondent shall post a
notice at all locations where the MAP, or any portion of it re-
quiring all employment-related disputes to be submitted to
individual binding arbitration, was in effect. See, e.g., U-Haul
Co. of California, supra, fn. 2 (2006); D.R. Horton, supra, slip
op. at 17.
I recommend the Company be required to reimburse Charg-
ing Party Monjazeb for any litigation and related expenses,
with interest, to date and in the future, directly related to the
Company’s filing its motion to compel arbitration in Case No.
CGC-10-502877, in the Superior Court of California, San Fran-
cisco County and in the California Court of Appeal for the First
Appellate District. Determining the applicable rate of interest
on the reimbursement will be as outlined in New Horizons, 283
NLRB 1173 (1987) (adopting the Internal Revenue Service rate
for underpayment of Federal taxes). Interest on all amounts
due to Monjazeb shall be computed on a daily bases as pre-
scribed in Kentucky River Medical Center, 356 NLRB 8 (2010),
enf. denied on other grounds sub. nom., Jackson Hospital Corp.
v. NLRB, 647 F. 3d 1137 (D.C. Cir. 2011).
I recommend the Respondent be required to ensure the
Charging Party has a forum to litigate her class complaint by
either: (1) withdrawing its appeal of the California Superior
Court’s order vacating its prior order compelling Charging
Party to arbitrate and issuing a new order denying Respondent’s
motion to compel arbitration; or (2) permitting the Charging
Party to renew her demand arbitrate her class claims and notify-
ing the Manager of ADR Services at the AAA that it will pro-
ceed with classwide arbitration.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, The Neiman Marcus Group, Inc., Beverly
Hills, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining and enforcing a mandatory arbitration pro-
gram that requires its employees to waive the right to maintain
class or collective actions in all forums, whether arbitral or

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
judicial.
(b) Enforcing its mandatory arbitration program by requiring
employees, including the Charging Party to sign acknowledge-
ment forms agreeing to the mandatory arbitration agreement,
resolutions plan and associate handbook.
(c) Enforcing its mandatory arbitration program by asserting
it in litigation the Charging Party brought against the Respond-
ent.
(d) Maintaining a mandatory and binding arbitration policy
that restricts employees’ protected activity or that employees
reasonably would believe bars or restricts their right to file
charges with the National Labor Relations Board.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or revise all elements of the MAP to make it
clear to employees that it does not constitute a waiver in all
forums of their right to maintain employment-related class or
collective actions and does not restrict employees’ right to file
charges with the National Labor Relations Board.
(b) Notify the employees of the rescinded or revised MAP
provisions to include providing them a copy of the revised
MAP documents or specific notification that the agreement has
been rescinded.
(c) Reimburse the Charging Party for any litigation expens-
es: (i) directly related to opposing the Respondent’s motion to
compel arbitration; and/or (ii) resulting from any other legal
action taken in response to Respondent’s efforts to enforce the
arbitration agreement.15
(d) Ensure the Charging Party has a forum to litigate her
class complaint by either: (1) withdrawing its appeal of the
California Superior Court’s order vacating its prior order com-
pelling Charging Party to arbitrate and issuing a new order
denying Respondent’s motion to compel arbitration; or (2)
permitting the Charging Party to renew her demand arbitrate
her class claims and notifying the Manager of ADR Services at
the AAA that it will proceed with classwide arbitration.
(e) Within 14 days after service by the Region, post at all fa-
cilities where the MAP, or any portion of it requiring all em-
ployment-related disputes to be submitted to individual binding
arbitration copies of the attached notice marked “Appendix.”16
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the

15 The General Counsel requests that I order reimbursement for all
employees who have incurred legal expenses during the 10(b) period.
As no evidence of any other legal proceeding other than the Charging
Party’s has been presented, I have fashioned the remedy accordingly.
16 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
THE NEIMAN MARCUS GROUP, INC. 13
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 3, 2011.
(f) 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. February 6, 2014
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce a mandatory arbitration
program consisting of: (a) a mandatory arbitration agreement
and mandatory arbitration acknowledgment form requiring
employees to individually arbitrate employment-related dis-
putes; (b) a resolutions plan and a resolutions plan acknowl-
edgment form requiring all employment-related disputes to be
submitted to individual binding arbitration; and (c) an associate
handbook and associate handbook acknowledgment form that
requires all employment-related disputes to be submitted to
individual binding arbitration.
WE WILL NOT enforce a mandatory arbitration program by
requiring Charging Party Sheila Monjazeb to agree to the man-
datory arbitration agreement, resolutions plan and associate
handbook.
WE WILL NOT enforce a mandatory arbitration program by as-
serting it in litigation the Charging Party Sheila Monjazeb
brought against us.
WE WILL NOT maintain a mandatory arbitration policy that
employees reasonably would believe bars or restricts their right
to file charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL rescind or revise the Mandatory Arbitration Pro-
gram 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 and does not restrict employees’ right to
file charges with the National Labor Relations Board.
WE WILL notify employees of the rescinded or revised man-
datory arbitration program, including providing them with a
copy of any revised agreements, acknowledgement forms or
other related documents, or specific notification that the agree-
ment has been rescinded
WE WILL reimburse Charging Party Sheila Monjazeb for any
litigation expenses: (i) directly related to opposing the Re-
spondent’s Motion to Compel Arbitration; and/or (ii) resulting
from any other legal action taken in response to Respondent’s
efforts to enforce the arbitration agreement.
WE WILL ensure the Charging Party Sheila Monjazeb has a
forum to litigate her class complaint by either: (1) withdrawing
our appeal of the California Superior Court’s order vacating its
prior order compelling Charging Party to arbitrate and issuing a
new order denying Respondent’s motion to compel arbitration;
or (2) permitting her to renew her demand arbitrate her class
claims and notifying the manager of ADR services at the AAA
that it will proceed with class arbitration.
THE NEIMAN MARCUS GROUP, INC.