APPLE AMERICAN GROUP LLC-APPLEBEES D/B/A APPLEBEES NEIGHBORHOOD GRILL AND BAR

National Labor Relations Board - Board Decisions

Feb 22, 2016

363 NLRB No. 111 (N.L.R.B. 2016)

363 NLRB No. 111
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.
Apple American Group LLC Applebees, d/b/a/
Applebees Neighborhood Grill and Bar and Cole
S. Essling. Case 18–CA–103319
February 22, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On September 30, 2013, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions with supporting argument.
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 brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1
Pursuant to D. R. Horton, 357 NLRB No. 184 (2012),
enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013),
the judge found that the Respondent violated Section
8(a)(1) of the Act by maintaining its Dispute Resolution
Program, which requires employees, as a condition of
employment, to waive their rights to pursue class or col-
lective actions involving employment-related claims in
all forums, whether arbitral or judicial. In Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), enf. denied in rele-
vant part 808 F.3d 1013 (5th Cir. 2015), the Board reaf-
firmed the relevant holdings of D. R. Horton, supra.
Based on the judge’s application of D. R. Horton and
our subsequent decision in Murphy Oil, we affirm the
judge’s findings2 and conclusions and adopt the recom-
mended Order as modified and set forth in full below.

1 This case was submitted to the judge on a joint motion to waive a
hearing and have the case decided on a stipulated record. The judge
ordered that the Respondent cease and desist from “maintaining or
enforcing” (emphasis added) its Dispute Resolution Program and that
the Respondent “[n]otify arbitral or judicial panels, if any, where the
Respondent has attempted to enjoin or otherwise prohibit employees
from bringing or participating in class or collective actions that it is
withdrawing those objections and that it no longer objects to such em-
ployee actions.” However, neither the complaint nor the statement of
issues in the joint motion alleges that the Respondent enforced the
Dispute Resolution Program within the 10(b) period. Accordingly, we
shall omit the above quoted language from the Order and notice. We
shall further modify the judge’s recommended Order to conform to the
Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.
2 The Respondent argues that the Board had only two valid members
at the time D. R. Horton issued because, in the Respondent’s view, the
ORDER
The National Labor Relations Board orders that the
Respondent, Apple American Group LLC Applebees,
d/b/a Applebees Neighborhood Grill and Bar, St. Paul,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining a Dispute Resolution Program that re-
quires employees, as a condition of employment, to
waive the right to maintain class or collective actions in
all forums, whether arbitral or judicial.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

recess appointment of then-Member Becker was constitutionally inva-
lid under NLRB v. Noel Canning, 705 F.3d 490 (D.C. Cir. 2013), affd.
134 S.Ct. 2550 (2014). The Respondent thus contends that the Board
lacked a quorum when it issued D. R. Horton. See New Process Steel,
L.P. v. NLRB, 560 U.S. 674 (2010). We reject this argument for the
reasons set forth in Murphy Oil, supra, slip op. at 2 fn. 16. See also
Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812, 813 (D.C. Cir. 2014)
(“[T]he President’s recess appointment of Member Becker was consti-
tutionally valid.”); Gestamp South Carolina, LLC v. NLRB, 769 F.3d
254, 257–258 (4th Cir. 2014) (same).
The Respondent also argues that its Dispute Resolution Program in-
cludes an exemption allowing employees to file charges with adminis-
trative agencies, including with the Board, and thus does not, as in D.
R. Horton, unlawfully prohibit them from collectively pursuing litiga-
tion of employment claims in all forums. In support of its argument,
the Respondent cites Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053–
1054 (8th Cir. 2013), in which the court stated, in dicta, that the arbitra-
tion agreement there did not bar all concerted employee activity in
pursuit of employment claims because the agreement permitted em-
ployees to file charges with administrative agencies that could file suit
on behalf of a class of employees. We reject this argument for the
reasons set forth in SolarCity Corp., 363 NLRB No. 83, slip op. at 2–4
(2015).
Our dissenting colleague observes that the Act does not “dictate”
any particular procedures for the litigation of non-NLRA claims, and
“creates no substantive right for employees to insist on class-type
treatment” of such claims. This is all surely correct, as the Board has
previously explained in Murphy Oil, 361 NLRB No. 72, slip op. at 2,
and Bristol Farms, 363 NLRB No. 45, slip op. at 2 & fn. 2 (2015). But
what our colleague ignores is that the Act “does create a right to pursue
joint, class, or collective claims if and as available, without the interfer-
ence of an employer-imposed restraint.” Murphy Oil, 361 NLRB No.
72, slip op. at 2 (emphasis in original). The Respondent’s Agreement is
just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, above, there is no merit to our colleague’s view that finding the
Agreement unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil, 361
NLRB No. 72, slip op. at 18; Bristol Farms, 363 NLRB No. 45, slip op.
at 3. Nor is he correct in insisting that Sec. 9(a) of the Act requires the
Board to permit individual employees to prospectively waive their Sec.
7 right to engage in concerted legal activity. See Murphy Oil, slip op.
at 17–18; Bristol Farms, slip op. at 2.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Rescind the Dispute Resolution Program in all its
forms, or revise it in all its forms to make clear to em-
ployees that the policy does not constitute a waiver of
their right to maintain employment-related joint, class, or
collective actions in all forums.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the Dis-
pute Resolution Program in any form that it has been
rescinded or revised and, if revised, provide them a copy
of the revised policy.
(c) Within 14 days after service by the Region, post at
its St. Paul, Minnesota facility and at all other facilities
where the unlawful Dispute Resolution Program is or has
been in effect copies of the attached notice marked “Ap-
pendix.”3 Copies of the notice, on forms provided by the
Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If, during 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 March 7,
2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 18 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. February 22, 2016
______________________________________
Mark Gaston Pearce, Chairman

3 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.”
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, my colleagues find that the Respondent’s
Dispute Resolution Program (DRP) violates Section
8(a)(1) of the National Labor Relations Act (the Act or
NLRA) because the DRP waives the right to participate
in class or collective actions regarding non-NLRA em-
ployment claims. I respectfully dissent from this finding
for the reasons explained in my partial dissenting opinion
in Murphy Oil USA, Inc.1
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.2 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”3 This aspect of Section

1 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was recently denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
Because I disagree with the Board’s decisions in Murphy Oil, above,
and D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in pert.
part 737 F.3d 344 (5th Cir. 2013), and I believe the NLRA does not
render unlawful arbitration agreements that provide for the waiver of
class-type litigation of non-NLRA claims, I find it unnecessary to reach
whether such agreements should independently be deemed lawful to the
extent they “leave[] open a judicial forum for class and collective
claims,” D. R. Horton, 357 NLRB No. 184, slip op. at 12, by permitting
the filing of complaints with administrative agencies that, in turn, may
file class- or collective-action lawsuits. See Owen v. Bristol Care, Inc.,
702 F.3d 1050 (8th Cir. 2013).
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
APPLE AMERICAN GROUP LLC APPLEBEES 3
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;4 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;5 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).6 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-

ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
4 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
5 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v.
Adecco USA, Inc., 99 F. Supp. 3d (N.D. Cal. 2015), motion to certify
for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30,
2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-00062-
BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsid-
eration of prior determination that class waiver in arbitration agreement
violated NLRA).
6 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. February 22, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a Dispute Resolution Program
(DRP) that requires you, as a condition 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 DRP in all its forms, or revise it
in all its forms to make clear that the DRP does not con-
stitute a waiver of your right to maintain employment-
related joint, class, or collective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise became bound to the
DRP in any form that it has been rescinded or revised,
and, if revised, WE WILL provide them a copy of the re-
vised agreement.
APPLE AMERICAN GROUP LLC APPLEBEES
D/B/A APPLEBEES NEIGHBORHOOD GRILL AND
BAR
The Board’s decision can be found at
www.nlrb.gov/case/18-CA-103319 or by using the QR
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
Tyler Wiese, Esq., for the General Counsel.
Melissa Griffin, Esq. (Apple American Group LLC), for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. The parties
herein waived a hearing and submitted this case directly to me
by way of a Joint Motion and Stipulation of Facts dated August
20, 2013. The complaint herein, which issued on July 19,
2013,1 and was based upon an unfair labor practice charge that
was filed on April 22 by Cole S. Essling, an Individual, alleges
that since March 7, Apple American Group LLC–Applebees
d/b/a Applebees Neighborhood Grill and Bar, herein called
Respondent, issued, promulgated and maintained an employee
handbook rule containing a mandatory arbitration clause that
would reasonably be understood by employees to prohibit them
from filing collective or class-wide legal actions against the
Respondent in any forum, whether legal or arbitral, in violation
of Section 8(a)(1) of the Act.
The Joint Motion and Stipulation of Facts provides as fol-
lows:
1. The charge in this proceeding was filed by the Charging
Party on April 22, 2013, and a copy was served by regular mail
on Respondent on about that same date. Respondent acknowl-
edges receipt of the charge.
2. On July 19, 2013, the Acting Regional Director for Re-
gion Eighteen of the National Labor Relations Board issued a
complaint in this proceeding alleging Respondent violated the
National Labor Relations Act (Act). Respondent and the
Charging Party each acknowledge receipt of a copy of the
complaint, which was served on both by mail on that same date.
3. Respondent filed an answer to complaint on July 31,
2013. The Acting General Counsel and the Charging Party
each acknowledge receipt of a copy of the answer, which was
served on both by mail on that same date.
4. (a) At all material times, Respondent, a Delaware corpo-
ration with facilities throughout the United States, including a
facility in St. Paul, Minnesota, has been engaged in the opera-

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2013.
tion of public restaurants selling food and beverages throughout
the country.
(b) In conducting its operations described above in subpara-
graph (a) during the calendar year ending December 31, 2012,
Respondent derived gross revenues in excess of $500,000.
(c) In conducting its operations described above in subpara-
graph (a) during the calendar year ending December 31, 2012,
Respondent purchased and received at its St. Paul, Minnesota
facility goods and services valued in excess of $50,000 from
entities located outside the State of Minnesota.
(d) At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
5. Respondent operates approximately 440 Applebee’s res-
taurants across 23 states.
6. During the last 6 months, Respondent has maintained an
employee handbook containing a mandatory dispute resolution
procedure. This employee handbook was distributed to em-
ployees at all restaurants operated by Respondent, including its
facility located at 1018 Meadowlands Drive in St. Paul, Minne-
sota.
7. The mandatory dispute resolution procedure consists of
two documents:
“Receipt of Dispute Resolution and Agreement to Abide by
Dispute Resolution Program” (“Receipt”) and “Dispute Reso-
lution Program.”
8. Since this dispute resolution procedure was introduced,
employees have been required to sign the “Receipt of Dispute
Resolution and Agreement to Abide by Dispute Resolution
Program.” Both the Receipt and the Dispute Resolution Pro-
gram constitute terms and conditions of employment for em-
ployees.
9. Since 2008, four complaints have been filed against Ap-
ple American Group LLC and its subsidiaries on behalf of clas-
ses of employees alleging employment-related violations of
various State and Federal statutes. In each instance, the Re-
spondent has asserted the existence of class and collective ac-
tion waivers in the “Receipt of Dispute Resolution and Agree-
ment to Abide by Dispute Resolution Program” and “Dispute
Resolution Program” as a defense to the class action com-
plaints. In two of those cases, the forum court has denied Re-
spondent’s motions to compel individual arbitration. In one
other action for violations of the Fair Labor Standards Act, the
parties settled before a ruling was issued. In the fourth case,
also alleging violations of the Fair Labor Standards Act, the
Respondent has not yet been served.
10. Charging Party Cole S. Essling has not expressed any in-
tention to file, nor has he actually filed, any collective, repre-
sentative or class action claims against Respondent.
11. The issues presented in this matter are:
(a) Whether Respondent’s mandatory dispute resolution pol-
icy would reasonably be read by employees as prohibiting them
from bringing class or collective claims in any forum, whether
legal or arbitral, against Respondent.
(b) Whether Respondent has interfered with, coerced, or re-
strained its employees’ exercise of their Section 7 rights, in
APPLE AMERICAN GROUP LLC APPLEBEES 5
violation of Section 8(a)(1) of the Act, by maintaining its man-
datory dispute resolution policy.
The Joint Motion further provides that Counsel for the Gen-
eral Counsel’s and the Respondent’s Statements of Position
are attached thereto, and that the Stipulation is made without
prejudice to any objection that any party may have as to the
relevancy of any of the facts therein.
Respondent’s Dispute Resolution Program states as follows:
This Dispute Resolution Program is adopted for Apple Amer-
ican Group (Apple American Group LLC and Apple Ameri-
can Group II LLC) and all subsidiaries or affiliated entities,
and all successors and assigns of any of them, all of which are
collectively hereinafter referred to as the “Company.”
The Company is committed to building a strong relationship
between the Company and all of our employees—a relation-
ship that is based on trust and open communication. The
Company is an equal opportunity employer and strives to
maintain an atmosphere of mutual trust and open, honest
communication. By working together, we can reach any goal
we set for ourselves. We do not and will not tolerate harass-
ment or discrimination by any employee, regardless of their
status with the Company, and no employee will be retaliated
against for using this Program.
We understand, however, that problems and disagreements
are unavoidable when people with different viewpoints spend
a lot of time together. We cannot entirely eliminate disa-
greements, but we can provide a process for resolving them
when they do occur by taking prompt constructive action.
Based on these beliefs and values, we developed this
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 DISPUTES BETWEEN
YOU AND THE COMPANY MAY BE RESOLVED, SO
READ THE INFORMATION IN THIS PROGRAM
BOOKLET CAREFULLY.
When you have a work-related problem, follow the steps
listed below in this policy.
Step 1: UTILIZE THE OPEN DOOR POLICY
In any relationship, when a disagreement occurs, keeping
emotions bottled up inside only causes the problem to get
bigger. At the Company we want to encourage open commu-
nication so we can solve the problem with the least amount of
stress for those involved. To do this, we have developed an
Open-Door Policy that encourages you to talk with your man-
ager to get your concerns addressed quickly.
1. Talk directly to your immediate manager. If you
have a problem, first discuss it with your Manager or Gen-
eral Manager as soon as possible after the problem arises.
2. Talk to a higher level of management. Some-
times, you may not be able to resolve the issue with your
Manager or General Manager. If this is the case, take your
concern to your Area Director, Director of Operations or
up to the Market President to get the answers you need.
3. Talk with Human Resources. If you have tried
the above steps and are not satisfied, or if you are not com-
fortable talking to your managers for any reason, you can
contact your Human Resources Generalist to get the help
you need.
4. Talk with Support Center. If for any reason you
are uncomfortable with following the prior steps, you
should feel free to contact the Support Center Human Re-
source Dept. at 216.525.2775 or Employee Hotline at
800.837.3667 x1300 and ask for help.
Step 2: EXECUTIVE REVIEW
If you have tried the Open Door Policy and are not satisfied,
you may request the Executive Review Step. In this step, the
Company’s President or his designee (the “Executive”) will
review the issue or problem and attempt to resolve the issue or
problem to your satisfaction and to the satisfaction of your
Manager and the Company. Failing that, the Executive will
make a decision.
Here is how you obtain access to the Executive Review Step:
1. Request review. As soon as possible after your
exhaustion of the Open Door Policy Step process, you can
start the Executive Review process by contacting the
Company’s Employee Relations department. The Em-
ployee Relations department can be reached at
216.525.2775 or you can call the Employee Hotline at
800.837.3667 x1300 and ask for help.
2. Submit information. In order to access the Executive
Review Step, you should provide a written statement that con-
tains as much of the following information as is reasonably
available to you:
a. Describe in detail, to the best of your ability, the
factual basis on which your claim is made.
b. Describe the measures you have taken at the Com-
munication Step to resolve the issue including the supervi-
sors you have spoken with about the problem.
c. Describe the nature and extent of any remedy or re-
lief you believe you should have. You can obtain a copy
of a form to use for this purpose from the Human Re-
sources Department.
3. The Review. The Company’s Executive will re-
view the problem and make whatever investigation he be-
lieves is appropriate under the circumstances. This may
include, in all likelihood, a discussion with you and your
Manager and a review of all relevant documents.
4. The Solution. The Executive will attempt to find a
way to resolve the problem to the satisfaction of all the
parties involved in the situation. However, if the problem
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cannot be resolved in this manner, the Executive will
make a decision. That decision will be made in writing,
generally within thirty (30) days of your request for execu-
tive review.
5. Non-Legal Claims. If your claim is not a statutory
or common law claim (“legal claim”), Executive Review
is the final step in the Dispute Resolution Program. (Only
legal claims may proceed to mediation or arbitration). For
example, mediation and arbitration are not available to re-
view performance evaluations, job elimination or lay-off
decisions, Company work rules, policies and pay rates, or
increases or decreases in benefits, except to the extent
such matters relate to statutory or common law claims.
Step 3: MEDIATION
If you believe you have a legal claim that was not solved
through the Open Door Policy or Executive Review, the next
step is Mediation. In Mediation, an objective, independent
third party tries to help the parties reach a mutually agreeable
solution.
When you or the Company requests Mediation, the Company
will contact the American Arbitration Association (AAA) or a
similar organization specializing in dispute resolution. The
agency will assign a professional mediator to mediate the dis-
pute. The mediator will listen, work to open communication
lines, and offer creative solutions. But the mediator does not
make a final decision. It is up to you and the Company to
reach agreement. The goal of mediation is to develop a solu-
tion that satisfies both parties involved.
Here is how to put the Mediation Step to work for you:
1. Advise the Employee Relations department that
you request Mediation. You should request Mediation as
soon as possible, generally within sixty (60) days from the
date you complete the Executive Review Step, so that the
issues will be fresh in your mind. You will be requested to
complete a Request for Mediation form, which will be
furnished.
2. Select mediator. When either you or the Company
request Mediation, the parties will select an outside, inde-
pendent neutral mediator to handle the mediation process.
The Company will pay the fees of the mediator and the
mediation agency.
3. You, the mediator and the Company representa-
tive meet. The mediator will schedule a meeting between
you and the Company representative. The mediator will
guide the discussion and help resolve the problem. How-
ever, it is up to both you and the Company to reach
agreement. The mediator does not make the final deci-
sion.
4. Written agreement. If appropriate, after you and
the Company have agreed upon a solution, a written
agreement will be signed by the parties.
Step 4: ARBITRATION
If you have a work-related problem that involves one of your
legally protected rights, which has not been resolved through
the earlier steps, you may request Arbitration.
In Arbitration, an outside neutral expert chosen and agreed
upon by you and the Company, called an “arbitrator,” be-
comes 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 estab-
lished and governed by rules and standards of conduct, which
are designed to assure due process of law is fully protected.
The goal of Arbitration is to provide effective and efficient
problem resolution.
Here is how the Arbitration process works:
1. Request Arbitration. If you believe you have a
legal claim, you may request that your claim go to Arbitra-
tion. Simply complete an Arbitration Request Form (pro-
vided upon request) and return it to the Company at its
Cleveland, Ohio Support Center addressed to the attention
of the Apple American Group Employee Relation De-
partment, 6200 Oak Tree Blvd, Suite 250, Independence,
Ohio 44131. The form can be obtained from your Human
Resources Generalist. The Arbitration will be conducted
by the AAA or any similar organization mutually accepta-
ble to you and the Company. The arbitration will be con-
ducted under the AAA’s “National Rules for the Resolu-
tion of Employment Disputes”, which are in effect at the
time the demand for arbitration is filed. The rules can be
obtained from the AAA’s website at ADR.org or from the
Company upon request.
The arbitration agency selected (the “agency”) will
then bill you and the Company each a filing fee. Your
portion of that fee is limited to $125.00. The Company
will pay the balance of the agency’s initial filing fee and
will pay the arbitrator’s fee. If you establish that you can-
not pay the filing fee, the Company will pay your portion
of the fee.
2. A hearing is set. The arbitrator will schedule a
date, time and place for a hearing. During this hearing,
both you and the Company present the pertinent facts,
documents, and witnesses. You may hire a lawyer to par-
ticipate in the Arbitration hearing with you. The hearing
will be conducted in the community where you are/were
employed by the Company or in another mutually agreea-
ble location.
3. A decision is made. Based on the information pre-
sented and the facts gathered, the arbitrator will make a fi-
nal binding decision in writing that will set forth the essen-
tial findings and conclusions on which the award is based.
The decision of arbitrator shall have a final and binding ef-
fect in any related 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.
PROGRAM RULES CLAIMS SUBJECT TO
ARBITRATION
Claims and disputes subject to arbitration include all those le-
gal claims you may now or in the future have against the
Company or against its officers, directors, shareholders, em-
APPLE AMERICAN GROUP LLC APPLEBEES 7
ployees or agents, including claims related to any Company
employee benefit program or against its fiduciaries or admin-
istrators (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.
Legal claims that are subject to arbitration include, but
are not limited to:
*claims for wages or other compensation;
* claims for breach of any contract, covenant or war-
ranty (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;
* claims for sexual or other illegal harassment or dis-
crimination (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 fed-
eral, state or other governmental law, statute, regulation or
ordinance; and
* claims for retaliation under any law, statute, regula-
tion or ordinance.
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;
Your agreement to adhere to this Dispute Resolution Program
does not prohibit you from pursuing an administrative claim
with the National Labor Relations Board, any state or federal
department of labor or the United States Equal Employment
Opportunity Commission. This Agreement, does, however,
preclude you from personally pursuing court action regarding
any such claim.
Additionally, nothing in this Agreement is intended to prevent
either you or the Company from obtaining injunctive relief in
court to prevent irreparable harm pending the conclusion of
any arbitration conducted hereunder and either of us may ap-
ply to the appropriate state or federal court for a temporary re-
straining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbi-
tration agreement and without abridgement of the powers of
the arbitrator.
The parties also agree that any arbitration between the em-
ployee and the Company is of their individual claim and that
any claim subject to arbitration will not be arbitrated on a col-
lective or class-wide basis. However, this provision does not
preclude employees from exercising their rights under the Na-
tional Labor Relations Act to joining other employees in a
collective action to improve working conditions.
Also, any non-legal dispute is not subject to arbitration. Ex-
amples 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. Neither the
employee nor the Company has to submit the items listed un-
der this “Claims Not Subject to Arbitration” caption to arbi-
tration under this Program and may seek and obtain relief
from a court or the appropriate administrative agency.
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 of the act complained of or
within the applicable statute of limitations period, whichever
is longer. Subject to any exceptions under applicable law, the
day the act complained of occurred shall be counted for pur-
poses 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 re-
ceipt requested. If the Company wishes to invoke Arbitration,
it will also complete a Request for Arbitration form identify-
ing and describing the nature of all claims asserted and the
facts on which the claims are based and send this written no-
tice to you at the last address recorded in the Company’s pay-
roll records.
ARBITRATION PROCEDURES
You must use the Mediation Step explained in this policy be-
fore requesting Arbitration. The agency will administer any
Arbitration under the MA’s “National Rules for the Resolu-
tion of Employment Disputes” and in conformity with this
Dispute Resolution Program. Go to ADR.org to obtain a
copy of the rules or request a copy from the Company. The
rules in effect on the date a demand is made shall control.
The arbitration will be before a neutral arbitrator who is li-
censed to practice law and who has significant experience in
the employment law area. The arbitration shall apply the sub-
stantive law and the laws of remedies, if applicable, of the
state in which the claim arose, or federal law or both, depend-
ing upon the claims asserted. The decision of the arbitrator
shall be in writing and shall provide the reasons for the award
unless the parties agree otherwise.
The arbitrator shall have jurisdiction to hear and rule on pre-
hearing disputes and is authorized to hold a pre-hearing con-
ference by telephone or in person, as the arbitrator deems nec-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
essary. The arbitrator shall have the authority to rule on a mo-
tion to dismiss and/or a motion for summary judgment by any
party and, in doing so, must apply the standards governing
such motion under the Federal Rules of Civil Procedure.
PRE-HEARING PROCEDURES
You and the Company each have the right to take the deposi-
tion of individuals and expert witnesses designated by another
party. Depositions and other pre-trial discovery will be taken
in accordance with the order of the arbitrator selected under
the Program, who shall allow adequate discovery. You and
the Company have the right to subpoena witnesses to the Ar-
bitration in accordance with the Federal Rules of Civil Proce-
dure. At least thirty (30) days before the Arbitration, you and
the Company must exchange lists of witnesses, including any
experts, and copies of all exhibits to be used at the Arbitration.
ARBITRATION FEES AND COSTS
There are two types of administrative fees and costs associat-
ed with Arbitration; a filing fee with the arbitration agency se-
lected and payment to the arbitrator for his or her services and
expenses. Such fees and other expenses shall be allocated as
follows:
1. The party requesting Arbitration must pay a
$125.00 filing fee to the agency to request Arbitration. If
you request Arbitration the Company will pay the balance
of the initial filing fee, and will pay the entire fee if it re-
quests Arbitration.
2. Either party, at its expense, may arrange for and
pay the cost of a court reporter to provide a stenographic
record of the Arbitration proceedings.
3. Each party shall be responsible for its own attor-
neys’ fees and related litigation expenses, if any; however,
if any party prevails on a statutory claim, which allows the
prevailing party to be awarded attorneys’ fees the arbitra-
tor may award reasonable fees to the prevailing party.
4. Where permitted by law, the arbitrator may assess
attorneys’ fees against a party upon showing by the other
party that the first party’s claim is frivolous or unreasona-
ble or factually groundless.
5. If either party pursues a legal claim covered by the
Dispute Resolution Program in court or by any means oth-
er than Arbitration, the responding party shall be entitled
to stay or dismissal of such action, the remand of such ac-
tion to Arbitration, and the recovery of all costs and attor-
neys’ fees and expenses related to such action.
MULTI-STATE BUSINESS
The Company is engaged in transactions involving interstate
commerce and your employment involves such commerce;
therefore, the parties agree that the Federal Arbitration Act
shall govern the interpretation, enforcement and proceedings
under the Dispute Resolution Program.
PROGRAM PROVISIONS/ENFORCEMENT
The provisions of the Program document are severable and,
should any provision be held unenforceable, all others will
remain valid and binding. No provision of the Program doc-
ument will be held unenforceable if such provision can be
reasonably interpreted in a manner that results in such provi-
sion being enforceable. The arbitrators, and not any federal,
state, or local court or agency, shall have exclusive authority
to resolve any dispute relating to the interpretation,
arbitrability, applicability, enforceability or formation of the
agreement to arbitrate including, but not limited to, any claim
that all or any part of the agreement to arbitrate is void and
voidable.
If a court should determine that Arbitration under this Pro-
gram is not the exclusive, final, and binding method for the
Company and its employees to resolve disputes and/or that
the decision and award of the arbitrator is not final and bind-
ing as to some or all of a party’s claim(s), the party must sub-
mit the claim(s) to Arbitration and pursue the Arbitration to
conclusion before filing or pursuing any legal, equitable, or
other legal proceeding for any eligible claim in a court of
competent jurisdiction.
PROGRAM STEPS
While we encourage you to use all of the steps in the Program
in the order outlined, we realize that in some cases it may not
be appropriate to use the preliminary steps. Accordingly, if
your claim involves a legal claim that is subject to Arbitration
hereunder, you may proceed directly to Step 3, Mediation,
without first using Step 1, Open Door Policy or Step 2, Exec-
utive Review. The Company may skip Steps 1 and 2 if a le-
gal claim is involved.
NOT AN EMPLOYMENT CONTRACT/EXCLUSIVE
REMEDY
While this Program constitutes a binding promise between
you and the Company to resolve all disputes pursuant to the
process outlined herein, this Program is not and shall not be
construed to create any contract of employment, expressed or
implied. Nor does this Program in any way alter the “at will”
status of any employment. This Program will prevent you
from filing a lawsuit in Court for individual, class, or collec-
tive relief for a legal claim subject to arbitration.
Analysis
The issue herein is whether the Respondent’s Dispute Reso-
lution Program (Program) violates Section 8(a)(1) of the Act.
In support of this allegation, counsel for the General Counsel
cites D. R. Horton, 357 NLRB No. 184 (2012), where the
Board found a similar policy to violate Section 8(a)(1) of the
Act. However, whereas Horton precluded employees from
filing joint, class, or collective claims against the employer
addressing wages and other compensation, breach of contract
claims, tort claims, wrongful termination claims, sexual or oth-
er illegal harassment or discrimination claims, or other claims
specified therein, the Program herein specifically provides that
it does not prohibit employees from filing workers compensa-
tion claims, unemployment insurance claims, or claims before
the Board, any State or Federal department of labor, or the
United States Equal Employment Opportunity Commission.
However, unlike some recent cases, the Program does not con-
tain an “opt out” provision wherein employees have the right to
APPLE AMERICAN GROUP LLC APPLEBEES 9
refuse to participate in the Program by executing an agreement,
in a timely manner, setting forth their decision to refuse to par-
ticipate.
Counsel for the General Counsel, in his Statement of Posi-
tion, states that the Board applies the test set forth in Lutheran
Heritage Village–Livonia, 343 NLRB 646 (2004), i.e., whether
the rule explicitly restricts Section 7 activity or, even if it
doesn’t, whether employees would reasonably believe that it
did, and the instant rule explicitly requires that all legal claims
of the employees must be submitted to arbitration, and “. . . on
an individual basis and not as a class or collective action.”
Because these provisions require employees to waive their
Section 7 rights to bring class or collective claims in any forum
against the Respondent, counsel for the General Counsel argues
that the Program’s restrictions violate Section 8(a)(1) of the
Act. The fact that the Program specifically provides that the
employees do not waive their rights to bring actions before the
Board or other Governmental agencies does not change this
result, citing Horton (at slip opinion p. 6), which states: “if the
Act makes it unlawful for employers to require employees to
waive their right to engage in one form of activity, it is no de-
fense that employees remain able to engage in other concerted
activities.”
Counsel for the Respondent, in her Statement of Position,
states that there is no substantive right to class, collective or
representative arbitration procedures created by laws other than
the Act, and that this matter can be distinguished from Horton
as it explicitly permits employees to file claims with the Board,
departments of labor, or the EEOC; therefore the Program does
require employees to “waive the right to maintain class or col-
lective actions in all forums.” She further states that Horton
“has been discredited by every citable court decision in which it
has been considered,” and should be here, as well. Therefore,
she argues, the complaint should be dismissed.
In Horton, the Board found the arbitration provision unlaw-
ful because it “clearly and expressly bars employees from exer-
cising substantive rights that have long been protected by Sec-
tion 7 of the NLRB.” The Board did not say that the required
arbitration provision violated the Act only because it barred
employees from exercising their Section 7 rights of filing
charges with the Board to enforce those rights. The Board
clearly was saying that Section 7 rights include the right to
collectively bring court and arbitral actions. Therefore, it is
clear to me that the restriction contained in the Program are
unlawful even with the proviso that employees maintain their
right to file charges with the Board and other Governmental
agencies. Further, while I agree with counsel for the Respond-
ent that the courts have “discredited” the Board’s Horton deci-
sions, I am bound by that decision.
Counsel for the Respondent, in her brief, makes a number of
arguments to establish that Horton was decided incorrectly in
addition to arguing that this matter can be differentiated from
Horton because it permits access to the Board. She argues that
the complaint contravenes the Federal Arbitration Act and that
class or collective court or arbitral actions are not necessarily
concerted unless the other employees affirmatively consented
to, or joined with, the complaining party. She further argues
that even if the Program prohibits employees from filing class
or collective actions, it does not limit arbitrator’s ability to con-
solidate claims or issue collective relief. However, the Board
decided Horton and unless and until it determines that Horton
was incorrectly decided, or the Supreme Court so decides, I am
bound by that decision. I therefore find that the Respondent’s
Dispute Resolution Program violates Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Dispute Resolution Program maintained by the Re-
spondent violates Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has violated the Act by
maintaining the Dispute Resolution Program, I recommend that
Respondent be ordered to cease and desist from enforcing this
policy, and to post the Board notice set forth below at each of
its locations where the Dispute Resolution Program is in effect.
Further, I recommend that Respondent be ordered to notify all
arbitral and judicial panels where it has attempted to enjoin, or
otherwise prohibit, employees from bringing or participating in
class or collective actions, that it withdrawing these objections
and that it no longer objects to such employee actions.
Upon the foregoing findings of fact, conclusions of law, and
based upon the entire record, I hereby issue the following rec-
ommended2
ORDER
The Respondent, Apple American Group LLC Applebees,
d/b/a Applebees Neighborhood Grill and Bar, St. Paul, Minne-
sota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing its Dispute Resolution Pro-
gram.
(b) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Notify all employees at locations where the Program is
in effect, that it will no longer maintain or enforce the provi-
sions contained in the Dispute Resolution Program referred to
in the employee handbook that prohibits employees from bring-
ing or participating in class or collective actions in an arbitral or
judicial forum relating to wages, hours or terms and conditions
of employment.
(b) Notify arbitral or judicial panels, if any, where the Re-
spondent has attempted to enjoin or otherwise prohibit employ-
ees from bringing or participating in class or collective actions
that it is withdrawing those objections and that it no longer
objects to such employee actions.
(c) Within 14 days after service by the Region, post at each

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of its facilities where the Dispute Resolution Policy is main-
tained or enforced, copies of the attached notice marked “Ap-
pendix.”3 Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the 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 employ-
ees employed by the Respondent at any time since March 7,
2013.
(d) 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. September 30, 2013

3 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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your 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 the Dispute Resolution
Program referred to in the Employees’ Handbook as far as it
prohibits you from bringing or participating in class or collec-
tive actions relating to your wages, hours or terms and condi-
tions of employment in arbitrations or court actions and WE
WILL delete these provisions from our Employee Handbook.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce you in the exercise of your exercise of rights
guaranteed you by law.
WE WILL notify any arbitral or judicial panel where we have
attempted to prevent or enjoin you from commencing, or partic-
ipating in, joint or class actions relating to wages, hours or oth-
er terms and conditions of employment that we are withdrawing
our objections to these actions, and WE WILL no longer object to
you bringing or participating in such class or collective actions.
APPLE AMERICAN GROUP LLC APPLEBEES D/B/A
APPLEBEES NEIGHBORHOOD GRILL AND BAR