Great Lakes Restaurant Management, LLC

National Labor Relations Board - Board Decisions

Feb 23, 2016

363 NLRB No. 130 (N.L.R.B. 2016)

363 NLRB No. 130
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.
Great Lakes Restaurant Management, LLC and Fast
Food Workers Committee. Case 03–CA–143685
February 23, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations of the complaint, and
that the Board should find, as a matter of law, that the
Respondent has violated Section 8(a)(1) of the Act by
maintaining and enforcing an agreement that prohibits its
employees from participating in collective or class litiga-
tion in all forums, and leads employees reasonably to
believe that they are prohibited from filing and pursuing
to conclusion charges with the Board.
Pursuant to a charge filed on December 31, 2014, and
an amended charge filed on January 21, 2015, by Fast
Food Workers Committee (the Union), the General
Counsel issued a complaint on March 26, 2015. The
complaint alleges that at all material times the Respond-
ent has maintained a Dispute Resolution Program (the
DRP) that employees are required to sign as a condition
of employment. The DRP booklet, which is appended to
the complaint, states on its first page that: “THIS
PROGRAM IS A CONDITION OF YOUR EMPLOYMENT AND
IS THE MANDATORY AND EXCLUSIVE MEANS BY WHICH
[COVERED] PROBLEMS MAY BE RESOLVED, SO READ
THE INFORMATION IN THIS PROGRAM BOOKLET
CAREFULLY.” (Bold in original.) The booklet describes
a four-step dispute resolution process, ending with arbi-
tration. The relevant portion of the Program booklet for
the arbitration step reads as follows:
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 fu-
ture 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);
• tort claims (including, but not limited to,
claims for physical, mental or psychological
injury, but excluding statutory workers com-
pensation 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 condi-
tion 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, reg-
ulation 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 reg-
ulation.
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;
• unemployment insurance claims; and
• any lawful claim(s) brought under the Dodd
Frank Act’s whistleblower protection, pur-
suant to 15 U.S.C. Section 1514A, et. Seq.,
is exempted from this DRP plan.
Neither the employee nor the Company has to submit
the items listed under this “Claims Not Subject to Arbi-
tration” caption to arbitration under this Program and
may seek and obtain relief from a court or the appropri-
ate administrative agency.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The employee and company each agree, that there shall
be no class or collective action arising from any em-
ployee’s claim(s), and each employee may only main-
tain a claim under this plan on an individual basis and
may not participate in a class or collective action.
The DRP booklet concludes with the following bolded lan-
guage:
This Program shall constitute the mandatory and
exclusive means by which all covered workplace
claims may be resolved. The submission of an ap-
plication, acceptance of employment or the continu-
ation 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. This agreement applies and
extends to all future employment with the company
and shall survive any termination and/or resigna-
tion.
This same self-executing provision is included in a
separate document, the “Agreement for Receipt for Dis-
pute Resolution Program” (the Agreement), that is dis-
tributed to all employees for their signature and which
incorporates the provisions of the DRP. The Agreement
also specifically reiterates the DRP’s requirements in
stating that “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.” Further, it specifi-
cally describes covered claims as including “claims for
wrongful termination; . . . discrimination (including, but
not limited to, claims based on race, sex, sexual orienta-
tion, religion, national origin, age, medical condition or
disability, whether under federal, state or local law);
[and] claims for a violation of any other non-criminal
federal, state or other governmental law, statute, regula-
tion or ordinance; and claims for retaliation under any
law, statute, regulation or ordinance . . . .”
Paragraph VI of the complaint alleges that at all mate-
rial times the Respondent has maintained the DRP that
employee applicants are required to sign as a condition
of employment, that by doing so the Respondent has
maintained and enforced a mandatory arbitration agree-
ment that prohibits employees from engaging in protect-
ed concerted activities, including class or collective ac-
tion addressing terms and conditions of employment, and
that maintenance and enforcement of the mandatory DRP
leads employees reasonably to believe that they are pro-
hibited from filing and pursuing to conclusion charges
with the Board. Paragraph VII of the complaint alleges
that the conduct described in paragraph VI violates Sec-
tion 8(a)(1) of the Act.
On April 9, 2015, the Respondent filed an answer ad-
mitting that it maintains the DRP, stating that the DRP
document “speaks for itself,” and otherwise denying all
other factual allegations in complaint paragraph VI. The
answer further denies the legal conclusions in complaint
paragraph VII that the Respondent has violated the Act.
On May 4, 2015, the General Counsel filed a Motion
for Summary Judgment. On May 6, 2015, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. On May 20, 2015, the Respondent filed a
response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Board held in D. R. Horton, Inc., 357 NLRB
2277, 2277 (2012), enf. denied in relevant part 737 F.3d
344 (5th Cir. 2013), and reaffirmed in Murphy Oil USA,
Inc., 361 NLRB No. 72, slip op. at 1 (2014), enf. denied
808 F.3d 1013 (5th Cir. 2015), that an employer violates
Section 8(a)(1) “when it requires employees covered by
the Act, as a condition of their employment, to sign an
agreement that precludes them from filing joint, class, or
collective claims addressing their wages, hours, or other
working conditions against the employer in any forum,
arbitral or judicial.” Additionally, an employer violates
Section 8(a)(1) if employees would reasonably believe
that its arbitration policy interferes with their ability to
file a Board charge or to access the Board’s processes.
U-Haul Co. of California, 347 NLRB 375, 377–378
(2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007). If an
employer’s arbitration policy is unlawful, the Board will
find that the employer also violates Section 8(a)(1) if it
seeks to enforce the policy. Murphy Oil, supra, 361
NLRB No. 72, slip op. at 19 (citing NLRB v. Washington
Aluminum Co., 370 U.S. 9, 16–17 (1962), and Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).
The Respondent contends that summary judgment is
not warranted because it has not admitted all material
factual allegations in the complaint and because the
Board’s holding in D. R. Horton conflicts with certain
judicial decisions, including the Fifth Circuit’s denial of
enforcement in D. R. Horton, Inc. v. NLRB, 737 F.3d 344
(5th Cir. 2013), and the Second Circuit’s holding in
Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir.
2013) (class-action waiver in employment contract not
invalid even where claim is not economically worth pur-
suing individually). The Respondent further argues that
there are no facts in the record to support the General
Counsel’s allegation that the Respondent unlawfully en-
GREAT LAKES RESTAURANT MANAGEMENT, LLC 3
forced the DRP. With respect to the allegation of inter-
ference with employee access to the Board, the Respond-
ent argues that the fact that two employees filed charges
with the Board in this case shows that they believed that
they were allowed to file and pursue such charges.
As to the maintenance allegations, we find no merit in
the Respondent’s arguments. There is no dispute as to
any material fact. The Respondent admits that it main-
tains the DRP and that the program document speaks for
itself. We agree. The DRP booklet describes in detail a
mandatory arbitration agreement that explicitly requires
employees to waive their right to maintain class or col-
lective actions in any forum. Maintenance of such a re-
quirement violates Section 8(a)(1) of the Act for the rea-
sons set forth in D. R. Horton and reaffirmed in Murphy
Oil.1 In fact, the DRP at issue substantially mirrors the
one found to be unlawfully maintained in PJ Cheese,
Inc., 362 NLRB No. 177 (2015).
We also find the DRP separately violates Section
8(a)(1) because employees would reasonably believe that
it bars or restricts their right to file and pursue unfair
labor practice charges with the Board. See D. R. Horton,
above, slip op. at 2 and fn. 2; Murphy Oil, above, slip op.
at 19 fn. 98, and U-Haul Co. of California, above, 347
NLRB at 377–378. Where maintenance of an arbitration
agreement is alleged to restrict employee access to the
Board, the Board applies the Lutheran Heritage2 test for
determining whether employer work rules interfere with
employees’ Section 7 rights. Countrywide Financial
Corp., Countrywide Home Loans, Inc., and Bank of
America Corp., 362 NLRB No. 165, slip op. at 2 (2015).
Thus, when, as here, the rule does not explicitly restrict
Section 7 rights, an 8(a)(1) violation may be found if
there is a showing that employees would reasonably con-

1 For the reasons we stated in Murphy Oil, above, slip op. at 6–11,
we reject the Respondent’s argument that the Board should apply the
judicial holdings in D. R. Horton, Inc. v. NLRB, above, and Sutherland
v. Ernst & Young, LLP, above, to the instant case.
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, above, slip op. at 2, and Bristol
Farms, 363 NLRB No. 45, slip op. at 2 and fn. 2 (2015). But what our
colleague ignores is that the Act does “creat[e] a right to pursue joint,
class, or collective claims if and as available without the interference of
an employer-imposed restraint.” Id., slip op. at 16–17. The Respond-
ent’s DRP and the Agreement are just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol Farms,
supra, there is no merit to our colleague’s view that finding the Agree-
ments unlawful runs afoul of employees’ Sec. 7 right to “refrain from”
engaging in protected concerted activity. See Murphy Oil, above, slip
op. at 18; Bristol Farms, above, slip op. at 3.
2 Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646, 647 (2004).
strue the language to prohibit Section 7 activity. Id.
Based on the undisputed language of the DRP, we find
that employees would reasonably construe it to prohibit
filing Board charges or otherwise accessing the Board’s
processes—activities that are protected by Section 7 of
the Act.
As described above, the DRP booklet identifies legal
claims subject to mandatory arbitration that “include, but
are not limited to” those involving claims for wages or
other compensation; contract breaches; wrongful termi-
nation; “discrimination [. . .] whether under federal, state
or local law;” violations of “any other non-criminal fed-
eral, state, or other governmental law, statute, regulation
or ordinance; and claims of retaliation under any law,
statute, regulation or ordinance[.]” While the booklet
does not explicitly restrict the filing of charges with the
Board, it does not include unfair labor practice claims
among the four types of specific claims or disputes that
are not subject to mandatory arbitration. Thus, contrary
to our dissenting colleague, we find that both the breadth
of the DRP language encompassing claims under Federal
statutes and regulations and the absence of unfair labor
practice claims in the limited list of specific exclusions
from mandatory arbitration would cause employees to
reasonably construe the DRP as prohibiting them from
filing Board charges, in violation of Section 8(a)(1) of
the Act.3

3 See, e.g., U-Haul Co. of California, above, 347 NLRB at 377 (find-
ing phrase “any other legal or equitable claims and causes of action
recognized by local, state, or federal law or regulations” reasonably
includes the filing of unfair labor practice charges with the Board). We
reject the Respondent’s argument that the fact that two employees had
filed charges with the Board shows that employees believed that they
were allowed to file and pursue such charges. See Scripps Health d/b/a
Scripps Memorial Hospital Encinitas, 347 NLRB 52, 52 (2006) (the
Board applies an objective standard to determine whether communica-
tions from an employer to its employees violate Sec. 8(a)(1), and “does
not consider either the motivation behind the remark or its actual ef-
fect.”) quoting Miller Electric Pump & Plumbing, 334 NLRB 824, 824
(2001).
We note that there is a statement on the last page of the DRP, under
the heading “Not an Employment Contract/Exclusive Remedy,” that
states this “Program will not prevent you from filing a charge with any
state or federal administrative agency.” An identical statement is also
included on the second page of the Agreement, under the paragraph
entitled “NOT AN EMPLOYMENT CONTRACT.” For the reasons
set forth in The Rose Group d/b/a Applebee’s Restaurant, 363 NLRB
No. 75, slip op. at 1 fn. 1, slip op. at 10 (2015), and PJ Cheese, above,
slip op. at 2 fn. 6, both of which involved the same language, we disa-
gree with our dissenting colleague that, in context, the inclusion of this
language would eliminate any reasonable uncertainty about the right of
employees to file charges with the Board to resolve claims specifically
covered by the mandatory arbitration agreement described as the exclu-
sive means for dispute resolution.
Finally, for the reasons stated in Ralph’s Grocery Co., 363 NLRB
128 (2016), we disagree with our dissenting colleague’s argument that
the DRP would be lawful even if it requires employees to arbitrate their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
We reach a different finding as to the complaint’s ad-
ditional allegation that the Respondent unlawfully “en-
forced” the DRP by requiring applicants to sign the DRP.
There is no claim or evidence that the Respondent ever
sought to enforce the DRP in a judicial proceeding. We
shall therefore dismiss the unlawful enforcement allega-
tion. Logisticare Solutions, Inc., a subsidiary of Provi-
dence Service Corp., 363 NLRB No. 85, slip op at 1 fn. 2
(2015).
Accordingly, the General Counsel’s Motion for Sum-
mary Judgment is granted in part.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Buffalo, New
York (the Respondent’s facility), has been engaged in the
retail sale of food and related products.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, derives gross revenues in
excess of $500,000.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the Respondent has maintained a
“Dispute Resolution Program” (the DRP) that employee
applicants are required to sign as a condition of employ-
ment. As described above, the DRP requires employees
to request arbitration for work-related problems that in-
volve legally protected rights, including all discrimina-
tion, whistleblower, and retaliation claims under Federal,
State, or local law. The Program also states that the
“employee and company each agree, that there shall be
no class or collective action arising from any employee’s
claim(s), and each employee may only maintain a claim
under this plan on an individual basis and may not partic-
ipate in a class or collective action.”
We find the Respondent has violated Section 8(a)(1) of
the Act by maintaining, as a condition of employment, a
mandatory arbitration agreement, which prohibits em-
ployees from engaging in protected concerted activities,
including class or collective action addressing terms and
conditions of employment; and which leads employees to
reasonably believe that they are prohibited from filing
and pursuing charges with the Board.

unfair labor practice claims because, in his view, it does not restrict
employees’ right to file charges with the Board.
CONCLUSIONS OF LAW
1. The Respondent, Great Lakes Restaurant Manage-
ment, LLC, is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. By maintaining a mandatory arbitration agreement,
which prohibits employees from engaging in protected
concerted activities, including class or collective action
addressing terms and conditions of employment; and
which leads employees to reasonably believe that they
are prohibited from filing and pursuing charges with the
Board, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
3. The Respondent has not violated the Act in any
other respect.
REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act, we shall order it to cease and desist
and to take certain affirmative actions designed to effec-
tuate the policies of the Act. Specifically, we shall order
the Respondent to rescind or revise the mandatory arbi-
tration agreement; notify all applicants and current and
former employees who were required to sign or other-
wise become bound to the mandatory arbitration agree-
ment about the rescission or revision and, if revised, pro-
vide them a copy of the revised agreement; and post a
notice at all locations where the agreement was in effect.
See D. R. Horton, above, slip op. at 13.
ORDER
The National Labor Relations Board orders that the
Respondent, Great Lakes Restaurant Management, LLC,
Buffalo, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement
that employees reasonably would believe bars or restricts
the right to file charges with the National Labor Rela-
tions Board.
(b) Maintaining a mandatory arbitration agreement
that requires employees, as a condition of employment,
to waive the right to maintain class or collective 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.
GREAT LAKES RESTAURANT MANAGEMENT, LLC 5
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the mandatory arbitration agreement in all
of its forms, or revise it in all of its forms to make clear
to employees that the arbitration agreement does not bar
or restrict employees’ right to file charges with the Na-
tional Labor Relations Board, nor constitute a waiver of
their right to maintain employment-related joint, class, or
collective actions in all forums.
(b) Notify all applicants and current and former em-
ployees who were required to sign or otherwise become
bound to the mandatory arbitration agreement in any
form that it has been rescinded or revised and, if revised,
provide them a copy of the revised agreement.
(c) Within 14 days after service by the Region, post at
its Buffalo, New York facility, and at all other facilities
where the unlawful arbitration agreement is or has been
in effect, copies of the attached notice marked “Appen-
dix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
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 dis-
tributed 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, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice marked “Appendix” to all current employees and
former employees employed by the Respondent at any
time since July 1, 2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cation of a responsible official on a form provided by the

4 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.”
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 23, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.:
In this case, my colleagues grant the General Coun-
sel’s motion for summary judgment in relevant part and
find that the Respondent’s Dispute Resolution Program
(“DRP”), including the “Agreement and Receipt for Dis-
pute Resolution Program,” violates Section 8(a)(1) of the
National Labor Relations Act (the Act or NLRA) be-
cause the DRP waives the right to participate in class or
collective actions regarding non-NLRA employment
claims. I respectfully dissent from this ruling and finding
for the reasons explained in my partial dissenting opinion
in Murphy Oil USA, Inc.1 Additionally, my colleagues
grant the General Counsel’s motion for summary judg-
ment in relevant part and find that the DRP violates Sec-
tion 8(a)(1) because employees would reasonably con-
strue it to prohibit NLRB charge filing. I respectfully
dissent from this ruling and finding for the reasons stated
in my separate opinions in The Rose Group d/b/a Apple-
bee’s Restaurant2 and GameStop Corp., GameStop Inc.,
Sunrise Publications, Inc., and GameStop Texas Ltd.
(L.P.).3 Although I agree that there are no genuine issues
of material fact warranting a hearing,4 I believe the Gen-
eral Counsel is not entitled to judgment as a matter of

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 denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
2 363 NLRB No. 75, slip op. at 3–5 (2015) (Member Miscimarra,
concurring in part and dissenting in part).
3 363 NLRB No. 89, slip op. at 4–5 (2015) (Member Miscimarra,
concurring in part and dissenting in part).
4 I agree with my colleagues that the Respondent’s contention that
two employees filed charges with the Board does not create a dispute of
material fact as to whether, under the applicable objective standard,
employees would reasonably construe the DRP to prohibit NLRB
charge filing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
law on either of these complaint allegations. To the con-
trary, the Respondent is entitled to judgment as a matter
of law. Accordingly, I would enter summary judgment
for the Respondent and against the General Counsel and
dismiss the complaint.5
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.6 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.”7 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the

5 It is well settled that summary judgment may be entered in favor of
the party against whom the motion is filed even though that party has
not filed a cross-motion for summary judgment. See 10A Charles A.
Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Pro-
cedure § 2720, at 347 (3d ed. 1998) (“The weight of authority . . . is
that summary judgment may be rendered in favor of the opposing party
even though the opponent has made no formal cross-motion under
[Federal] Rule [of Civil Procedure] 56.”) (citing cases). I join my
colleagues in denying summary judgment on the complaint allegation
that the Respondent unlawfully enforced the DRP.
6 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 200 East 81st Restaurant corp. d/b/a Beyoglu, 362
NLRB No. 152, slip op. at 4–5 (2015) (Member Miscimarra, dissent-
ing).
7 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-
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).
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;8 (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;9 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).10 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
Applying the test set forth in Martin Luther Memorial
Home, Inc. d/b/a Lutheran Heritage Village-Livonia,11
my colleagues also find that the DRP violates Section
8(a)(1) of the Act on the basis that employees would rea-
sonably construe it to prohibit them from filing charges
with the NLRB.12 I disagree and would deny the General

8 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, Jackson, Miss. v. Roper, 445 U.S.
326, 332 (1980) (“[T]he right of a litigant to employ Rule 23 is a pro-
cedural right only, ancillary to the litigation of substantive claims.”).
9 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 1072 (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
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA).
10 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).
11 343 NLRB 646 (2004).
12 I have expressed my disagreement with the current Board standard
regarding alleged overly broad rules and policies, set forth as the first
prong of the Lutheran Heritage standard, under which rules and poli-
cies are deemed unlawful, even if they do not explicitly restrict protect-
ed activity and are not applied against or promulgated in response to
GREAT LAKES RESTAURANT MANAGEMENT, LLC 7
Counsel’s motion for summary judgment on this com-
plaint allegation as well.
The DRP broadly requires arbitration of all legal
claims, including those arising under the NLRA,13 but I
do not believe the scope of the DRP makes it violative of
the Act. As I explained in Applebee’s Restaurant, above,
and GameStop Corp., above, decades of case law—
including the Board’s recent decision in Babcock & Wil-
cox Construction Co., Inc., 361 NLRB No. 132 (2014)—
establish that parties may lawfully agree to submit
NLRA claims to arbitration, provided they do not other-
wise interfere with NLRB charge filing.14 Such an
agreement does not unlawfully prohibit the filing of
charges with the NLRB, particularly when the right to do
so is expressly stated in the agreement itself. In this
case, the DRP and the separate “Agreement and Receipt
for Dispute Resolution Program” each expressly provide
that it “will not prevent you from filing a charge with any
state or federal government administrative agency.” This
language eliminates any possible uncertainty about the
right of employees to file charges with the Board.15

such activity, where “employees would reasonably construe the lan-
guage to prohibit Section 7 activity.” 343 NLRB at 647. See, e.g., Lily
Transportation Corp., 362 NLRB No. 54, slip op. at 1 fn. 3 (2015);
Conagra Foods, Inc., 361 NLRB No. 113, slip op. at 8 fn. 2 (2014);
Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 10 fn. 3
(2014), affd. sub nom. Three D, LLC v. NLRB, Nos. 14-3284, -3814,
2015 WL 6161477 (2d Cir. Oct. 21, 2015). I advocate a reexamination
of this aspect of Lutheran Heritage in an appropriate future case.
13 The DRP states that “[c]laims 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, . . . except as expressly
excluded under the ‘Claims Not Subject to Arbitration’ section below.”
An illustrative list of legal claims subject to arbitration includes “claims
for a violation of any . . . non-criminal federal . . . law [or] statute.”
The DRP’s listed exclusions under “Claims Not Subject to Arbitration”
do not mention claims arising under the NLRA.
14 Although NLRA claims may lawfully be made subject to arbitra-
tion, the Board in all cases retains the right, under Sec. 10(a) of the Act,
to independently review any allegations of unfair labor practices made
in a charge filed with the Board. See GameStop Corp., 363 NLRB No.
89, slip op. at 4–5 fn. 10 (Member Miscimarra, concurring in part and
dissenting in part); Applebee’s Restaurant, 363 NLRB No. 75, slip op.
at 3 & fn. 11 (Member Miscimarra, concurring in part and dissenting in
part).
15 See Applebee’s Restaurant, above, slip op. at 4 (Member
Miscimarra, concurring in part and dissenting in part) (finding no inter-
ference with NLRB charge filing based on virtually identical language).
My colleagues reject this rationale based on PJ Cheese, Inc., 362
NLRB No. 177 (2015), and Applebee’s Restaurant, above. Similar to
the instant case, in PJ Cheese and Applebee’s Restaurant the employer
maintained a Dispute Resolution Program (the DRP) and also required
employees to sign a separate agreement (titled, in PJ Cheese, “Agree-
ment for Receipt for Dispute Resolution Program,” 362 NLRB No.
177, slip op. at 2, and in Applebee’s Restaurant, “Agreement and Re-
ceipt for Dispute Resolution Program,” 363 NLRB No. 75, slip op. at 1
fn. 1). And like the DRP at issue here, the DRP in both PJ Cheese and
Accordingly, for the reasons set forth above, I respect-
fully dissent in part from the majority’s decision. I
would deny the General Counsel’s motion for summary
judgment. Moreover, since there are no issues of materi-
al fact warranting a hearing, and since I believe the Re-
spondent is entitled to judgment as a matter of law, I
would enter summary judgment for the Respondent and
dismiss the complaint.
Dated, Washington, D.C. February 23, 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.

Applebee’s Restaurant stated that it “will not prevent you from filing a
charge with any state or federal administrative agency.” 362 NLRB
No. 177, slip op. at 2 fn. 6; 363 NLRB No. 75, slip op. at 1 fn. 1. How-
ever, in this case, the DRP and separate “Agreement and Receipt for
Dispute Resolution Program” each State that it “will not prevent you
from filing a charge with any state or federal government administra-
tive agency,” whereas in PJ Cheese and Applebee’s Restaurant, the
parallel language appeared only in the DRP but was omitted from the
separate agreement. 362 NLRB No. 177, slip op. at 2 fn. 6; 363 NLRB
No. 75, slip op. at 4 (Member Miscimarra, concurring in part and dis-
senting in part). The majority in PJ Cheese found this difference be-
tween the two documents “create[d] an ambiguity” that precluded the
employer from relying on the language of the DRP as a defense, 362
NLRB No. 177, slip op. at 2 fn. 6, and the majority in Applebee’s Res-
taurant cited and relied on PJ Cheese, 363 NLRB No. 75, slip op. at 1
fn. 1. That rationale does not apply here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain a mandatory arbitration agree-
ment that requires our employees, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive 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 agreement
in all of its forms, or revise it in all of its forms to make
clear that the arbitration agreement 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 applicants and current and former
employees who were required to sign or otherwise be-
come bound to the mandatory arbitration agreement in all
of its forms that the arbitration agreement has been re-
scinded or revised and, if revised, WE WILL provide them
a copy of the revised agreement.
GREAT LAKES RESTAURANT MANAGEMENT,
LLC
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-143685 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.