PJ United and RPM getting sued


n00b
Posts: 1
Joined: Sat Sep 13, 2014 8:32 pm

Where do you work?:
PJ United
User Type:
Pizza Delivery Driver
Car you drive:
2005 Honda Civic
PostPosted: Sat Sep 13, 2014 8:34 pm
is it too late to join the lawsuit? I've worked with PJ united since 2011 and am still with them. It is absolutely trash the wages we get paid, and on top of that they charge the "delivery fee" which forces customers to cash out extra money for deliveries and in return they tip us less!
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Master Driver
Posts: 6999
Joined: Sun Oct 18, 2009 10:40 pm
Location: Chesapeake, VA
Where do you work?:
Papa John's franchise
User Type:
Pizza Delivery Driver
Car you drive:
2010 Ford Fusion
PostPosted: Sun Sep 14, 2014 4:06 am
poqpizza wrote:is it too late to join the lawsuit? I've worked with PJ united since 2011 and am still with them. It is absolutely trash the wages we get paid, and on top of that they charge the "delivery fee" which forces customers to cash out extra money for deliveries and in return they tip us less!


Welcome to the Board! I work for PJ United also and have been for over 11 years.

I cannot discuss the case with you, but you CAN call the lawyer handling the case and discuss your situation with him. I have spoken with him many times and he is very easy to talk to. He can advise you what your options are.

His contact information is here:

TXJT wrote:So how does one join this? And what are the time frames they are looking for? I spent over a decade with those PJU crooks until I finally got fed up with their $4 an hour crap and lack of caring that their greed was destroying both the stores I worked in as well as my income as well.


Welcome to the board!

Contacting them is very easy:

Paul McInnes LLP
2000 Baltimore, Suite 100
Kansas City, MO 64108
(816) 984-8100

Just call that number and tell them you want to join in the suit.

You can also go to their website and enter in your contact info:

https://paulmcinnes.com/contact/

Then they will contact you.

The 'time frame' is that you must have worked for PJ United or RPM pizza in the past 3 years. This is how far back the statute of limitations goes.

If you are eligible to join, they will send you (by mail or e-mail) a form to fill out with information about when you worked there and then you send it in and then it goes from there.

There is no cost to join cases like this. The lawyers only get paid if you win. If you lose, it costs you nothing. They typically keep about 1/3 of any proceeds as payment, the drivers get paid the rest. They will explain that in detail when you join the suit.
"If you ain't on the road, you ain't makin' money!" - gregster

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User avatar
Master Driver
Posts: 6999
Joined: Sun Oct 18, 2009 10:40 pm
Location: Chesapeake, VA
Where do you work?:
Papa John's franchise
User Type:
Pizza Delivery Driver
Car you drive:
2010 Ford Fusion
PostPosted: Wed Apr 22, 2015 9:23 pm
Wow! Here is the document that busts up the the part of the Arbitration Agreement that forbids Class or Collective actions!

IN THE MATTER OF THE ARBITRATION BETWEEN * AAA CASE NO.: 30 20 1300 0597
*
*
*
JAMES SULLIVAN
* CLAIM: FAIR LABOR STANDARDS
* ACT
*
*
AND
*
* CLAIMANT: JAMES SULLIVAN
*
*
PJ UNITED, INC. AND
*
DOUG STEPHENS
* ARBITRATOR’S FILE NO: 2013-3341
INTERIM ORDER
ARBITRATOR: JACK CLARKE
INTERIM DECISION DATE: DECEMBER 12, 2014
APPEARANCES FOR THE PARTIES
CLAIMANT
Mark A. Potashnick, Esq., Weinhaus & Potashnick, St. Louis, Missouri
Richard M. Paul III, Esq., Paul McInnes, LLP, Kansas City, Missouri
Jack D. McInnes, Esq., Paul McInnes, LLP, Kansas City, Missouri
W. Lewis Garrison, Jr., Esq., Henninger Garrison Davis, LLC, Birmingham, Alabama
William L. Bross, Esq., Henninger Garrison Davis, LLC, Birmingham, Alabama
Brandy Robertson, Esq., Henninger Garrison Davis, LLC, Birmingham, Alabama
Taylor C. Bartlett, Esq., Henninger Garrison Davis, LLC, Birmingham, Alabama
EMPLOYER
William K. Hancock, Esq., Galloway, Scott, Moss & Hancock, LLC, Birmingham, Alabama


PROCEDURAL HISTORY/FACTS
PJ United, Inc., PJ Cheese, Inc. and Douglas Stephens are hereinafter referred
to collectively as “Employer”. James Sullivan is hereinafter referred to as “Claimant”.
PJ Cheese, Inc. employed Claimant at certain times. PJ Cheese, Inc. is a wholly
owned subsidiary of PJ United, Inc. Douglas (Doug) Stephens is an officer of PJ United,
Inc. and PJ Cheese, Inc.

The issues involved in this case were raised not only in this arbitration but also in
a civil action in Federal court and in a National Labor Relations Board (NLRB)
administrative action. Several of the facts set out above and below are based on
findings in the Decision by NLRB Administrative Law Judge William Nelson Cates dated
June 6, 2014. Common to all three cases are the arbitration agreements and Dispute
Resolution Program Booklet noted hereafter.

On November 30, 2010, Claimant and Douglas S. Stephens signed a document
entitled “Agreement and Receipt for Dispute Resolution Program” (hereinafter
“Arbitration Agreement”), which reads in part:

    I have received a copy of the Dispute Resolution Program of PJ
    United, Inc., PJ Cheese, Inc., PJ Louisiana, Inc., PJ Chippewa, LLC, Ohio
    Pizza Delivery, Inc., and PJ Utah. LLC., their successors and assigns (the
    “Company”), and have read and understood its contents. However, I
    understand that I am employed only by the particular corporation listed
    above which actually provides my employment and the benefits thereof,
    and not by any other above listed corporation. I understand that my
    employment is “at-will” and such employment is not for a fixed term or
    definite period and may be terminated of the will of either party, with or
    without notice.
    I recognize that differences may arise between the Company and
    me during or following my employment with the Company, and that those
    differences may or may not be related to employment. I understand and
    agree that any such differences will be resolved as provided In the Dispute
    Resolution Policy.


    MUTUAL PROMISE TO RESOLVE CLAIMS BY BINDING
    ARBITRATION. The Company and I agree that all legal claims or disputes
    covered by the Agreement must be submitted to binding arbitration and
    that this binding arbitration will be the sole and exclusive final remedy for
    resolving any such claim or dispute. I also agree that any arbitration
    between the Company and me is of an individual claim and that any claim
    subject to arbitration will not be arbitrated on a multi-claimant, a collective
    or a class-wide basis.

    The mutual obligations set forth in this Agreement shall constitute a
    contract between the Employee and the Company but shall not change an
    Employee’s at-will relationship or any term of any other contract or
    agreement between the Company and Employee, This Policy shall
    constitute the entire agreement between the Employee and Company for
    the resolution of Covered Claims. The submission of an application,
    acceptance of employment or the continuation of employment by an
    individual shall be deemed to be acceptance of the dispute resolution
    program. No signature shall be required for the policy to be applicable.
    Legally protected rights covered by this Dispute Resolution
    Program are all legal claims, including: claims for wages or other
    compensation; claims for breach of any contract, covenant or warranty
    (expressed or implied): tort claims (including, but not limited to, claims for
    physical, mental or psychological injury, but excluding statutory workers
    compensation claims); claims for wrongful termination; sexual
    harassment; discrimination (including, but not limited to. claims based on
    race, sex. religion, national origin, age, medical condition or disability,
    whether under federal, state or local law); claims for benefits or claims for
    damages or other remedies under any employee benefit program
    sponsored by the Company (after exhausting administrative remedies
    under the terms of such plans); “whistleblower claims under any federal,
    state or other governmental law, statute, regulation or ordinance; and
    claims for a violation of any other non-criminal federal, state or other
    governmental law, statute, regulation or ordinance; and claims for
    retaliation under any law, statute, regulation or ordinance, including
    retaliation under any workers compensation law or regulation.
    I understand and agree that by entering into this Agreement, I
    anticipate gaining the benefits of a speedy, impartial dispute resolution
    procedure. This procedure is explained in the Dispute Resolution Program
    Booklet, which I acknowledge I have received and read or have had an
    opportunity to read.

    MULTI-STATE BUSINESS. I understand and agree the Company
    is engaged in transactions involving interstate commerce and that my
    employment Involves such commerce. I agree that the Federal Arbitration
    Act shall govern the interpretation, enforcement, and proceedings under
    this Agreement.

    SOLE AND ENTIRE AGREEMENT. This Agreement and the
    Dispute Resolution Program Booklet are the complete agreement of the
    parties on the subject of arbitration of disputes.... This agreement is
    binding upon, and shall inure to the benefit of the parties hereto and their
    successors and assigns, and upon all persons and entities who or which,
    directly or indirectly control, are controlled by, or are under common
    control with the parties.

    NOT AN EMPLOYMENT CONTRACT. While this Agreement is a
    binding promise between the Company and me to arbitrate all claims in
    dispute described in the Program Booklet, this Agreement is not and shall
    not be construed to create any contract of employment, expressed or
    implied. Nor does this Agreement In any way alter the “at-will” status of my
    employment.

    VOLUNTARY AGREEMENT. I acknowledge that I have carefully
    read this Agreement, I understand its terms, that all understandings and
    agreements between the Company and me relating to the subjects
    covered in this Agreement are contained in It, and that I have entered into
    the Agreement voluntarily and not in reliance on any other promises or
    representations by the Company other than those in the Agreement Itself
    and the Dispute Resolution Program.

    I further acknowledge and agree that I have been given the
    opportunity to discuss this Agreement with my own private lawyer and
    have used that opportunity to the extent that I wish to do so. This
    Agreement shall apply to me, my representatives, executors,
    administrators, guardians, heirs and assigns in any action where a claim
    could be brought.


    The Dispute Resolution Program Booklet noted in the Agreement provides in
    part:
    This Dispute Resolution Program is adopted for PJ United, Inc., PJ
    Cheese, Inc., PJ Louisiana, LLC, PJ Chippewa, LLC, PJ Utah, LLC, and
    Ohio Pizza Delivery Company, all of which are collectively hereinafter
    referred to as the “Company”.


    Claimant and Stephens executed an identical document on May 28, 2008.

    However, each employee understands that he/she is employed only by
    the particular corporation listed above that actually provides the
    employee’s employment and the benefits thereof, and not by any other
    above listed corporation.
    ....
    [W]e developed the DISPUTE RESOLUTION PROGRAM (the “Program”).
    The Program is a four-step process for resolving workplace problems
    quickly and fairly. This policy describes the steps that both you and the
    Company must take to resolve many types of workplace problems. The
    Company is also obligated to follow the Program and will also be bound by
    arbitration. The types of problems covered by the Program are explained
    in detail in this policy.
    THIS PROGRAM IS A CONDITION OF YOUR EMPLOYMENT AND IS
    THE MANDATORY AND EXCLUSIVE MEANS BY WHICH THOSE
    PROBLEMS MAY BE RESOLVED, SO READ THE INFORMATION IN
    THIS PROGRAM BOOKLET CAREFULLY.
    ....
    Step 4: Arbitration
    If you have a work-related problem that involves one of your legally
    protected rights shown on page 4, which has not been resolved through
    the earlier steps, you must request arbitration.
    In arbitration, an outside neutral expert called an arbitrator becomes
    involved in the resolution process. He or she listens to the facts, then
    makes a final binding decision and awards any damages, just like a judge
    in a court of law. Arbitration is less formal than conventional court litigation
    but is clearly established and governed by rules and standards of conduct,
    which are designed to assure due process of law is fully protected.
    However, the goal of arbitration is still to provide quick problem resolution
    without damaging the working relationship.

    Here is how the arbitration process works:

      1. Request arbitration. If you believe you have a legal claim,
      you must request that your claim go to arbitration. Simply
      complete an Arbitration Request form and return it to the
      Company at 2300 Resource Drive, Birmingham, Alabama
      35242 addressed to the attention of the Employee Relations
      Coordinator....

      2. Choose an arbitrator. Once the MA receives your request to
      begin arbitration, it will send both you and the Company a list
      of approved arbitrators with a brief biography on each. Once
      you receive the list, you and the Company each remove the
      names of any arbitrators that you do not want to hear the
      case, list in order of preference the remaining arbitrators,
      and then return the list to the agency. The arbitrator who has
      received the highest ranking in order of preference from both
      lists shall be assigned. If this process does not result in the
      selection of an arbitrator, the agency will appoint an
      arbitrator.

      3. A hearing is set. The agency arbitrator will schedule a date,
      time and place for a hearing. During this hearing, both you
      and the Company present the pertinent facts. You may hire
      a lawyer to participate in the arbitration hearing with you.
      The hearing will be conducted in the community where you
      are employed or in another mutually agreeable location.

      4. A decision is made. Based on the information presented and
      the facts gathered, the arbitrator will make a final binding
      decision in writing. The decision of the arbitrator shall have
      preclusive effect with respect to any subsequent litigation. If
      you win, the arbitrator can award you anything you might
      seek through a court of law. By using arbitration, your rights
      are protected and damages can be paid if those rights have
      been violated. It is only the process that is different.

    Program Rules

    Claims Subject to Arbitration

    Claims and disputes subject to arbitration include all those legal claims
    you may now or in the future have against the Company (and its
    successors or assigns) or against its officers, directors, shareholders,
    employees or agents, including claims related to any Company employee
    benefit program or against its fiduciaries or administrators (in their
    personal or official capacity), and all claims that the Company may now or
    in the future have against you, whether or not arising out of your
    employment or termination, except as expressly excluded under the
    “Claims Not Subject to Arbitration” section below. The legal claims subject
    to arbitration include, but are not to be limited to:

      • claims for wages or other compensation;
      •claims for breach of any contract, covenant or warranty
      (expressed or implied);
      ort claims (including, but not limited to, claims for physical,
      mental or psychological injury, but excluding statutory
      workers compensation claims);
      •claims for wrongful termination;
      •sexual harassment;
      •discrimination (including, but not limited to, claims based on
      race, sex, sexual orientation, religion, national origin, age,
      medical condition or disability whether under federal, state or
      local law);
      •claims for benefits or claims for damages or other remedies
      under any employee benefit program sponsored by the
      Company (after exhausting administrative remedies under
      the terms of such plans);
      •“whistleblower” claims under any federal, state or other
      governmental law, statute, regulation or ordinance;
      •claims for a violation of any other non-criminal federal, state
      or other governmental law, statute, regulation or ordinance;
      and
      •claims for retaliation under any law, statute, regulation or
      ordinance, including retaliation under any workers
      compensation law or regulation

    Claims Not Subject to Arbitration
    The only claims or disputes not subject to arbitration are as follows:
      •any claim by an employee for benefits under a plan or
      program which provides its own binding arbitration
      procedure;
      •any statutory workers compensation claim; and
      •unemployment insurance claims.

    Neither the employee nor the Company has to submit the items listed
    under this “Claims Not Subject to Arbitration” caption to arbitration under
    this Program and may seek and obtain relief from a court or the
    appropriate administrative agency.

    The parties also agrees that any arbitration between the employee and the
    Company is their individual claim and that any claim subject to arbitration
    will not be arbitrated on a collective or a class-wide basis; provided
    however, that this provision shall not apply to any prospective class or
    collective action based on alleged violations of wage and hour laws if, and
    only if, such claim should cause the agreement to arbitrate to be
    unenforceable under the prevailing law.

    Also, any non-legal dispute is not subject to arbitration. Examples include
    disputes over a performance evaluation, issues with co-workers, or
    complaints about your work site or work assignment which do not allege a
    legal violation.

    Required Notice of All Claims

    When seeking arbitration, the claimant must file the Request for Arbitration
    form and give written notice of any claim to the other party within one year
    or within the applicable statute of limitations, whichever is longer. The day
    the act complained of occurred shall be counted for purposes of
    determining the applicable period.

    Use the Request for Arbitration form when submitting a claim for
    arbitration. Identify and describe the nature of all claims asserted and the
    facts on which your claims are based. Send this written notice by certified
    or registered mail, return receipt requested. If the Company wishes to
    invoke arbitration, it will give written notice to you at the last address
    recorded in the Company’s payroll records.

Clamant, individually and on behalf of other similarly situated persons, initiated
the Federal court action noted above by filing a Complaint in the United States District
Court for the Northern District of Alabama, Western Division, on July 9, 2013 against PJ
United, Inc. and Douglas Stephens as Defendants.

Claimant alleged, inter alia, that he “and all other similarly situated delivery truck drivers work or previously worked for Papa John’s restaurants owned and operated by Defendants.” Claimant stated: “This lawsuit is brought as a collective action under the Fair Labor Standards Act (FLSA) 29 U.S.C.
§ 201 et seq., to recover unpaid minimum wages owed to Plaintiff and all other similarly
situated workers employed by Defendants.”

Employer initiated the present arbitration by filing an Employment Arbitration
Rules Demand for Arbitration with the Voorhees, New Jersey office of the American
Arbitration Association on July 22, 2013, wherein they identified Claimant as Claimant.

The AAA notified the undersigned of his appointment by email dated September 12,
2013.

At some point in time, Defendants filed a Motion to Stay Proceedings Pending
Arbitration in the Federal court action, wherein they asked not only that the Court stay
that action pending arbitration but also that the Court direct that the Claimant could
pursue arbitration only on a single claimant basis. On September 10, 2013, USDC
Judge L. Scott Coogler granted the motion to stay pending arbitration but declined to
order that the arbitration proceed on a single claimant basis only, stating that was an
issue for the arbitrator to decide.

Claimant initiated the administrative action noted above by filing a Charge with
the NLRB on September 23, 2013. Following a hearing, Administrative Law Judge
William Nelson Cates issued a Decision dated June 6, 2014. He wrote in part:

    As noted elsewhere, here the complaint alleges the Company has
    violated Section 8(a)(1) of the Act by, since about January 2010,
    maintaining and enforcing its mandatory arbitration policy that unlawfully
    prohibits employees from engaging in protected concerted activities, and,
    that leads employees reasonably to believe that they are prohibited from
    filing charges with the Board.
    ....
    The Company’s mandatory arbitration policy explicitly restricts activities protected by Section 7 of the Act and, as such, is unlawful under Section 8(a)(1) of the Act. In this regard the Board in D. R. Horton, Inc., supra slip op. at 13, held an employer violates Section 8(a)(1) of the Act “by requiring employees [as here] to waive their right to collectively pursue employment related claims in all forums, arbitral and judicial.” The Board noted at 10 “The 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 rests.” Stated differently, the Board in D. R. Horton, Inc., supra determined that as a condition of employment “employers may not compel employees to waive their NLRA right to collectively pursue litigation of employment claims in all forums arbitral and judicial.” D. R. Horton, Inc., slip op. at 12.

    The General Counsel also alleges the mandatory arbitration policy
    leads employees reasonably to believe that they are prohibited from filing
    charges with the Board. I agree. The agreement language, which in part,
    states: “The Company and I agree that all legal claims and disputes
    covered by the agreement must be submitted to binding arbitration and
    that this binding arbitration will be the sole and exclusive final remedy for
    resolving any such claim or dispute” would lead employees to reasonably
    believe that employment, wage, discrimination, and termination issues
    must be submitted exclusively to binding arbitration and not to the Board.
    The only employment issues not subject to the mandatory arbitration
    policy here involves workers compensation and unemployment insurance
    claims or any benefit plan that has its own arbitration procedure. Simply
    stated the language of the mandatory arbitration policy here may reasonably be construed, by employees, to restrict them from, concertedly
    or individually, filing charges under the NLRA and such interferes with the
    employees Section 7 rights and violates Section 8(a)(1) of the Act


Judge Cates reached the following conclusions of law (excluding the
jurisdictional finding)

    2. By maintaining a mandatory arbitration policy, that waives
    the right of its employees to maintain class or collective actions in all
    forums, judicial or arbitral, the Company has engaged in unfair labor
    practices affecting commerce within the meaning of Section 2(6) and (7) of
    the Act and violates Section 8(a)(1) of the Act.

    3. By maintaining a mandatory arbitration policy, that leads
    employees reasonably to believe they are prohibited from filing charges
    with the National Labor Relations Board the Company has engaged in
    unfair labor practices affecting commerce within the meaning of Section
    2(6) and (7) of the Act and violates Section 8(a)(1) of the Act.

    4. By, on July 17, 2013, enforcing the mandatory arbitration
    agreement by asserting the provisions thereof in litigation brought against
    the Company in James Sullivan v. PJ United, Inc., and Douglas Stephens
    Civil Action No. 7: 13-cv-01275-LSC and by filing a motion to, in essence,
    compel plaintiffs to individually arbitrate their class-wide wage and hour
    claims against the Company, the Company has engaged in unfair labor
    practices affecting commerce within the meaning of Section 2(6) and (7) of
    the Act and has violated Section 8(a)(1) of the Act.

Judge Cates recommended the following Order:
    The Company, PJ Cheese, Birmingham, Alabama, it officers,
    agents, successors, and assigns, shall

    1. Cease and desist from

    (a) Maintaining a mandatory arbitration policy, that
    waives employees’ right to maintain class or collective actions in all
    forums; whether arbitral or judicial.

    (b) Maintaining a mandatory arbitration policy that leads
    employees reasonably to believe that they are prohibited from filing
    charges with the National Labor Relations Board.

    (c) Seeking to enforce its mandatory arbitration policy by
    filings in any court to compel individual arbitration pursuant to the
    terms of its mandatory arbitration policy.

    (d) In any like or related manner, interfering with,
    restraining or coercing employees in the exercise of their right
    under the Act.


    2. Take the following affirmative action designed to effectuate
    the policies of the Act.

    (a) Within 7 calendar days after the Board enters its
    Decision, and upon request of Charging Party James Sullivan, file a
    joint motion with Sullivan to vacate United States District Court
    Judge L. Scott Coogler’s Order of September 10, 2013, granting
    the Company’s motion to stay the trial of Sullivan’s civil action in
    James Sullivan v. PJ United, Inc., and Douglas Stephens Civil
    Action No. 7: 13-cv-01275-LSC.

    (b) Reimburse Charging Party James Sullivan for any
    legal and related expenses incurred, to-date and in the future, with
    respect to James Sullivan v. PJ United, Inc., and Douglas Stephens
    Civil Action No. 7: 13-cv-01275-LSC, with interest, as described in
    the remedy section of this decision.

    (c) Rescind, modify or revise its mandatory arbitration
    policy to ensure its employees the mandatory arbitration policy
    does not contain or constitute a waiver, in all forums, of their right to
    maintain employment-related class or collective actions.

    (d) Rescind, modify or revise its mandatory arbitration
    policy to ensure its employees the mandatory arbitration policy
    does not prohibit them from filing charges with the National Labor
    Relations Board.

    (e) Notify its employees of the rescinded, modified or
    revised mandatory arbitration policy and provide a copy of any
    modified or revised policy to each employee.

Counsel for the Claimant, counsel for the Employer and the Arbitrator
participated in pre-hearing management conferences by telephone on October 9, 2013
and August 22, 2014. During the October conference, the parties and the Arbitrator
agreed to hold the arbitration in abeyance pending the outcome of the NLRB action.
During the August conference, the parties and the Arbitrator agreed that the parties
should brief and the Arbitrator should decide whether the present action may proceed
as a collective action or be limited to the Claimant’s individual claims before the
submission of evidence related to any specific claim. Both parties timely submitted
briefs-in-chief and reply briefs. The Arbitrator received the parties’ reply/response briefs
on September 12, 2014.

The issue to be resolved at this point in time is whether the present arbitration
may proceed as a collective action or will be limited to consideration of the Claimant’s
individual claim(s) only.

Contrary to the Claimant’s Brief, the Arbitrator’s notes do not indicate that counsel for
the Employer agreed explicitly or implicitly that the Arbitrator should be bound by any
decision the NLRB or an administrative law judge might issue. On the contrary, the
Arbitrator’s notes indicate that counsel for the Employer stated in effect that he was not
agreeing that Board’s decision would have any impact on the present arbitration.

DISCUSSION
As stated above, the issue to be resolved at this point in time is whether the
present arbitration may proceed as a collective action or will be limited to consideration
of the Claimant’s individual claim(s) only. The Arbitrator finds that the present arbitration
may proceed as a collective action and therefore enters the Order set out below. The
Arbitrator’s reasoning follows.

The present case at first appears to present a conflict between precedential
decisions in the U.S. Court of Appeals for the Eleventh Circuit.
As Claimant points out, a line of cases holds that that an arbitrator must abide by decisions of the NLRB and may not direct a party to commit an unfair labor practice. The Employer, on the other hand, relies on an Eleventh Circuit case that holds that an agreement to arbitrate must be enforced as written and that provisions in such agreements waiving the right to pursue a claim collectively are enforceable. However, the facts of the case are such that the case cited by Employer is distinguishable. Under the circumstances, the undersigned Arbitrator must be guided by the line of cases cited by Claimant.

The Arbitration Agreements signed by Claimant and Douglas Stephens in 2008
and 2010 and the Dispute Resolution Program Booklet each provide that arbitration
shall not be conducted on a collective basis. However, in an action between these same
parties, NLRB Administrative Law Judge William Nelson Cates held,
inter alia , that the Employer engaged in unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the National Labor Relations Act and violated Section 8(a)(1) of
the Act by maintaining its mandatory arbitration policy, which includes a waiver of the
right of its employees to maintain collective actions in all forums. So far as the Arbitrator
can determine from the evidence presented, that decision has not been reversed or
modified. Therefore, the Arbitrator must respect that decision. Indeed, unless and until
it is modified, that decision is entitled to be respected as the law of this case.

As noted above, the Employer relies on a judicial decision that holds that an
agreement to arbitrate must be enforced as written and that provisions in such
agreements waiving the right to pursue a claim collectively are enforceable. The
difficulty with the Employer’s argument, as applied to the facts of this case, is that the decision cited by it did not involve a situation wherein the NLRB had determined that enforcing a waiver of collective actions of FLSA claims constituted a violation of law. Walthour
involved an appeal from a district court’s order granting motions of the
employer; the decision makes no reference to involvement by the NLRB.

Section 2 of the Federal Arbitration Act provides that a contract to arbitrate a
future dispute “shall be valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any contract.” Contract law is, of course, a
matter of state law. Alabama law clearly provides that a contract to commit an illegal act
should not be enforced as written but rather should be reformed. Given the illegal
nature of the prohibition against collective actions set out in the Arbitration Agreements
signed by Claimant and Douglas Stephens in 2008 and 2010 and the Dispute
Resolution Program Booklet, the Arbitrator must excise it. Thus it is proper to read those
Agreements and the Booklet as authorizing an employee to pursue an FLSA claim as a
collective action.

The Employer correctly notes that in D.R. Horton, Inc. v. N.L.R.B ., 737 F.3d 344(5th
Cir., 2013), the court refused to enforce the NLRB’s decision in D. R. Horton, Inc.,
357 NLRB No. 184 (2012), on which Judge Cates’ decision appears to be largely
based. However, that Fifth Circuit decision is not precedential in the Eleventh Circuit.
More importantly, while the Order set out below might have followed from a successful
action to enforce Judge Cates’ decision (assuming the NLRB had adopted it), the
Arbitrator is not enforcing Judge Cates’s decision. That decision relates to the enforceability of the Employer’s mandatory arbitration agreement generally. The
Arbitrator is merely respecting that decision as it applies to the facts of the present case.

The Employer’s argument that the arbitrator selection provisions of the Arbitration
Agreements signed by Claimant and Douglas Stephens in 2008 and 2010 and the
Dispute Resolution Program Booklet prohibit the Claimant’s pursuing a collective action
is not persuasive. As Claimant notes in his Response Brief, the collective action process
of the FLSA provides for an opt-in procedure. Thus, no employee will be bound unless
he/she opts into the present arbitration. In addition, to allow the Employer to avoid
Claimant’s pursuing his FLSA claim as a collective action on the basis of the arbitrator
selection provisions would allow the Employer to accomplish indirectly that which Judge
Cates’ decision prohibits directly, i.e. enforcing a waiver of collective actions.

The Employer’s argument that requiring the Claimant to proceed individually will
hurt no one is not persuasive. It ignores completely the rationale underlying collective
actions, i.e. amassing a claim large enough to warrant prosecution. As anyone familiar
with judicial and arbitral processes in this country is well aware, there is no substitute for
quality representation and quality representation is not free.
For the above reasons, the Arbitrator will order that Claimant may continue this
arbitration as a collective action.


ORDER
Having heard or read and carefully reviewed the evidence and argumentative
materials in this case and in light of the above Discussion, the Arbitrator directs that
Claimant may continue the present arbitration as a collective action.
Dated: December 12, 2014


Jack Clarke, Arbitrator
Athens, Georgia
"If you ain't on the road, you ain't makin' money!" - gregster

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PostPosted: Thu Apr 23, 2015 12:00 am
I find this funny... funny in the sense that the 'Dispute Resolution Program' that is presented in the above post is, as far as I can tell, nearly word for word, exactly the same 'Dispute Resolution Program' I signed. I have noticed that some words were changed. I would be interested in knowing if there is something printed on each page that says...

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