PJ Cheese, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 2015

362 NLRB No. 177 (N.L.R.B. 2015)

362 NLRB No. 177
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.
PJ Cheese, Inc. and James Sullivan. Case 10–CA–
113862
August 20, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND MCFERRAN
On June 6, 2014, Administrative Law Judge William
Nelson Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt his recommended Order as modified and set
forth in full below.3

1 The Respondent argues that the charges and amended charges
supporting the complaint are invalid because they were filed by Sulli-
van’s attorney, without evidence that Sullivan authorized the filings.
The judge correctly rejected this argument, noting that under Sec. 102.9
of the Board’s Rules & Regulations, a charge can be filed by “any
person” and that “person” is defined in Sec. 2(1) of the Act to include
“legal representatives.” Contrary to the Respondent’s argument, there
is no requirement in the Rules that a charging party authorize a legal
representative to file a charge on his or her behalf.
2 For the reasons set forth in detail in his dissent in Murphy Oil
USA, Inc., 361 NLRB No. 72, slip op. at 35–58 (2014), Member John-
son would not find that the Respondent’s maintenance or enforcement
of its arbitration agreement violates the Act insofar as it has been ap-
plied to prevent employees from pursuing class and other collective
actions. Because he does not find these violations, Member Johnson
finds it unnecessary to consider here whether or under what circum-
stances the remedies related to the maintenance or enforcement viola-
tions would be appropriate. See Murphy Oil, slip op. at 39 fn. 15
(Member Johnson, dissenting); see generally BE & K Construction Co.
v. NLRB, 536 U.S. 516 (2002). Further, because he finds no merit to
these allegations, he does not reach the Respondent’s related argument
that the charging party was not engaged in concerted activity when, as
an individual plaintiff, he brought a collective FLSA claim in Federal
district court. Nor does he pass on the Respondent’s other defenses.
Finally, Member Johnson finds it unnecessary to pass on the merits
of whether the Respondent maintained a mandatory arbitration policy
that employees would reasonably believe prohibits them from filing
charges with the Board because the Respondent did not raise in its
exceptions the Dispute Resolution Program’s language stating that the
arbitration policy “will not prevent you from filing a charge with any
state or federal administrative agency.” Thus, he agrees with his col-
leagues that any argument or defense based on that language is waived.
3 We shall substitute a new notice to conform to the Order as modi-
fied.
1. Applying the Board’s decision in D. R. Horton,4 the
judge found that Respondent PJ Cheese violated Section
8(a)(1) of the Act by maintaining a mandatory arbitration
policy that requires its employees, as a condition of em-
ployment, to submit their employment-related claims for
resolution by individual arbitration, thereby compelling
them to waive their Section 7 right to pursue such claims
through class or collective action in all forums, arbitral
and judicial. The judge further found, again relying on
D. R. Horton, that maintenance of the arbitration policy
also violates Section 8(a)(1) by leading employees to
reasonably believe that they are prohibited from filing
unfair labor practice charges with the Board. See also,
U-Haul Co. of California, 347 NLRB 375 (2006), enfd.
255 Fed. Appx. 527 (D.C. Cir. 2007). In Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014), which issued after
the judge’s decision, the Board affirmed the relevant
holdings of D. R. Horton. Based on the judge’s applica-
tion of D. R. Horton, and the subsequent decision in
Murphy Oil, we affirm both of the Section 8(a)(1)
maintenance violations found by the judge.5
The Respondent contends that the maintenance viola-
tions are time-barred by Section 10(b) because the arbi-
tration policy was implemented and signed by Charging
Party, James Sullivan, more than 6 months before the
initial unfair labor practice charge was filed. We reject
this contention, as did the judge, because the Respondent
continued to maintain the unlawful policy throughout the
6-month period preceding the filing of the charge. The
Board has long held under these circumstances that
maintenance of an unlawful workplace rule, such as the
arbitration policy here, constitutes a continuing violation
that is not time-barred by Section 10(b). See Cellular
Sales of Missouri, LLC, 362 NLRB No. 27, slip op. at 2
and fn. 7 (2015); The Neiman Marcus Group, 362 NLRB
No. 157, slip op. at 2 fn. 6, and cases cited therein.
We also reject the Respondent’s argument that the
complaint should be dismissed because Sullivan
acknowledged in writing that he voluntarily agreed to the
arbitration policy. In footnote 28 of D. R. Horton, the
Board left open the question whether an agreement to
resolve employment disputes only by arbitration and
only on an individual basis, would violate the Act if it
was not imposed by the employer. Specifically, the
Board stated that it did not reach the question:

4 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d
344 (5th Cir. 2013).
5 For the reasons set forth in fn. 16 of Murphy Oil, we reject the Re-
spondent’s assertion that the decision in D. R. Horton was issued by an
invalidly constituted majority and is thus null and void.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether, if arbitration is a mutually beneficial means of
dispute resolution, an employer can enter into an
agreement that is not a condition of employment with
an individual employee to resolve either a particular
dispute or all potential employment disputes through
non-class arbitration rather than litigation in court.
(emphasis added).
Here, however, the Respondent’s arbitration policy,
the Dispute Resolution Program (DRP), states promi-
nently, in capitalized and bolded letters, that it is a
“CONDITION OF YOUR EMPLOYMENT AND IS
THE EXCLUSIVE MEANS BY WHICH THOSE
PROBLEMS MAY BE RESOLVED.” The DRP fur-
ther specifies that it is a self-executing document and that
“submission of an application, acceptance of employ-
ment or the continuation of employment by an individual
shall be deemed to be acceptance of the Dispute Resolu-
tion Program. No signature shall be required for the pol-
icy to be applicable.” This same self-executing provision
is included in a separate document, the “Agreement for
Receipt for Dispute Resolution Program” (Agreement),
that is distributed to all employees for their signature and
which incorporates the unlawful provisions of the DRP.
Together, both documents make explicit that the arbi-
tration policy is a condition of employment and that em-
ployees are bound to it regardless of whether they sign
the Agreement. As such, neither the DRP nor the
Agreement presents the “not a condition of employment”
issue left open in D. R. Horton.6
2. The judge also found, and we agree, that the Re-
spondent, through its parent company, PJ United, Inc.
(PJU), violated Section 8(a)(1) by enforcing the arbitra-
tion policy in response to a lawsuit that Sullivan filed

6 We note that there is a statement on the last page of the DRP, un-
der 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.” The Respondent did not
raise any defense to either of the 8(a)(1) maintenance allegations that
was predicated on this language, either to the judge or in exceptions to
the Board. Therefore any potential defense is waived under Sec.
102.46 (b)(2) of the Board’s Rules and Regulations.
In any event, we find that the language does not render the arbitra-
tion policy lawful. First, the DRP specifies under the heading “Claims
Not Subject to Arbitration,” that only three claims or disputes are not
covered by the policy. The sentence referencing charges filed with
State or Federal administrative agencies is not a specified exclusion in
that section. Second, the sentence appears only in the DRP, but is
omitted from the Agreement that employees are given to sign. As a
result, there is a conflict both within the DRP itself, and between the
DRP and the Agreement, that creates an ambiguity that likely would
confuse employees and applicants as to whether the sentence is appli-
cable at all. Such ambiguity, properly construed against the Respond-
ent as drafter of the arbitration policy, precludes reliance on the sen-
tence as a defense to the maintenance violations. Lafayette Park Hotel,
326 NLRB 824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
against PJU. Sullivan filed the collective action lawsuit
in the United States District Court for the Northern Dis-
trict of Alabama, on behalf of himself and similarly situ-
ated employees, alleging that PJU and its CEO commit-
ted wage violations under the Fair Labor Standards Act
(FLSA). In response, PJU filed a motion with the court
to stay the lawsuit “until arbitration of Sullivan’s dispute
with the Company has been had on a single-
claimant/noncollective or class-wide basis in accordance
with the terms of the Agreements and the [DRPs].” PJU
averred in its motion that the DRP defines the “Compa-
ny” to include PJU as well as Sullivan’s employer, the
Respondent.7
In Murphy Oil, the Board found that a respondent’s
motion in Federal district court in response to an FLSA
collective action, to compel employees to individually
arbitrate their wage disputes as required by its unlawful
arbitration agreement, violated Section 8(a)(1) based on
established precedent that enforcement of an unlawful
rule is itself unlawful because it interferes with the exer-
cise of Section 7 rights. 361 NLRB No. 72, slip op. at
19. As in Murphy Oil, we find that the Respondent en-
forced its arbitration policy in violation of Section
8(a)(1), by the district court motion filed by PJU to com-
pel Sullivan and similarly situated employees to arbitrate
their employment claims individually.8
The Respondent argues that it cannot be found to have
committed the enforcement violation because PJU alone
filed the district court motion. We disagree. The arbitra-
tion policy on which PJU relied in support of its motion
specifies that it is a “contract between the employee and
the Company” and the DRP defines the Company as PJU
and its subsidiaries, including the Respondent. And as
noted above, PJU acknowledged in its motion that the
“Company” included the Respondent. Thus, by PJU
making clear to the court that the Company seeking en-
forcement of the arbitration contract between Sullivan
and the Company included the Respondent, it was, as the
judge correctly found, a “direct participa[nt]” in that
court enforcement action. We conclude, therefore, that
the Respondent is appropriately held accountable for the

7 The court granted the motion, but deferred to the arbitrator the
question of whether the wage claims should be arbitrated individually
or collectively.
8 To the extent the Respondent argues that Sullivan was not engaged
in concerted activity in filing the FLSA suit in Federal district court, we
reject that argument. As the Board made clear in Beyoglu, 362 NLRB
No. 152 (2015), “the filing of an employment-related class or collective
action by an individual is an attempt to initiate, to induce, or to prepare
for group action and is therefore conduct protected by Section 7.” Id.,
slip op. at 2. See also, D. R. Horton, 357 NLRB No. 184, slip op. at 2.
PJ CHEESE, INC. 3
8(a)(1) enforcement violation committed against Sullivan
and his fellow employees.9
ORDER10
The Respondent, PJ Cheese, Inc., Birmingham, Ala-
bama, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory and binding arbitration
agreement that employees reasonably would believe bars
or restricts employees’ rights to file charges with the
National Labor Relations Board or to access the Board’s
processes.
(b) Maintaining and/or enforcing a mandatory and
binding arbitration agreement that requires employees, as
a condition of employment, to waive the right to main-
tain 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful 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 con-
stitute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not restrict employees’ right to file
charges with the National Labor Relations Board or to
access the Board’s processes.
(b) Notify all current and former employees who were
required to sign the unlawful arbitration agreement that it
has been rescinded or revised and, if revised, provide
them a copy of the revised agreement.
(c) Notify the United States District Court for the
Northern District of Alabama that it has rescinded or
revised the unlawful arbitration agreement upon which it
based its motion to stay the collective FLSA lawsuit of
James Sullivan and to compel individual arbitration of
his claim, and inform the court that it no longer opposes
the action on the basis of the unlawful arbitration agree-
ment.

9 The Respondent also argues that the enforcement violation is fore-
closed because Sullivan was no longer employed at the time the court
motion was filed. We reject this argument, first because former em-
ployees are not stripped of their Sec. 7 rights, Waco, Inc., 273 NLRB
746, 747 (1984), and second because the arbitration policy here specifi-
cally states that it “survives the termination of [Sullivan’s] employ-
ment.”
10 Consistent with our decision in Murphy Oil, we amend the
judge’s remedy to order the Respondent to notify the district court that
it has rescinded or revised the unlawful aspects of its arbitration policy,
and to inform the court that it no longer opposes Sullivan’s FLSA law-
suit on the basis of the unlawful policy.
(d) In the manner set forth in the remedy section of
the judge’s decision, reimburse James Sullivan for any
reasonable attorneys’ fees and litigation expenses that he
may have incurred in opposing the Respondent’s motion
to stay his collective lawsuit and compel individual arbi-
tration.
(e) Within 14 days after service by the Region, post at
its Birmingham, Alabama facility copies of the attached
notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily 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 cov-
ered by any other material. If 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 marked “Appen-
dix” to all current employees and former employees em-
ployed by the Respondent at any time since January 17,
2013, and any employees against whom the Respondent
has enforced its mandatory arbitration agreement since
July 17, 2013.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 10, a sworn certi-
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 20, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Harry I. Johnson, III, Member

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
______________________________________
Lauren McFerran, Member
(SEAL) 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 mandatory and binding arbi-
tration agreement that our employees reasonably would
believe bars or restricts their right to file charges with the
National Labor Relations Board or to access the Board’s
processes.
WE WILL NOT maintain and/or enforce a mandatory
and binding arbitration agreement that requires our em-
ployees, 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 unlawful arbitration agreement in
all of its forms, or revise it in all of its forms to make
clear that the unlawful arbitration agreement does not
constitute a waiver of your right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums, and that it does not restrict your right to file charg-
es with the National Labor Relations Board or to access
the Board’s processes.
WE WILL notify all current and former employees who
were required to sign the unlawful arbitration agreement
that it has been rescinded or revised and, if revised, pro-
vide them a copy of the revised agreement.
WE WILL notify the court in which we have moved to
stay the collective lawsuit filed by James Sullivan that
we have rescinded or revised the unlawful arbitration
agreement upon which we based our motion, and WE
WILL inform the court that we no longer oppose Sulli-
van’s collective lawsuit on the basis of that agreement.
WE WILL reimburse James Sullivan for any reasonable
attorneys’ fees and litigation expenses that he may have
incurred in opposing our motion to stay his collective
lawsuit and compel individual arbitration.
PJ CHEESE, INC.
The Board’s decision can be found at
www.nlrb.gov/case/10-CA-113862 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. Room 5011,
Washington, D.C. or by calling (202) 273–1940.
Kerstin I. Meyers, Esq., for the Government.1
William K. Handcock, Esq., for the Company.2
Mark Potashnick, Esq., for the Charging Party.3
DECISION
STATEMENT OF THE CASE
WILLIAM NELSON CATES, Administrative Law Judge. This
case was tried before me on April 28, 2014, in Birmingham,
Alabama. The charge initiating this matter was filed on Sep-
tember 23, 2013,4 and amended on November 15 and 17 and
again on December 27. The General Counsel issued a com-
plaint and notice of hearing (complaint) on January 3, 2014.
The Government alleges the Company, since on or about Janu-
ary 2010, has maintained a mandatory arbitration policy which
contains provisions that unlawfully prohibits employees from
engaging in protected concerted activities and that leads em-
ployees reasonably to believe they are prohibited from filing
charges with the National Labor Relations Board (Board). It is
stipulated that Charging Party Sullivan, on November 30, 2010,
signed the Company’s Agreement and Receipt for Dispute

1 I shall refer to counsel for the General Counsel as counsel for the
Government and the General Counsel as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and shall refer to the Respondent as the Company. It is noted that
in the parties partial stipulation of facts, set forth elsewhere here, the
Company is referred to as the Respondent.
3 I shall refer to James Sullivan as the Charging Party and counsel
for Sullivan as counsel for the Charging Party.
4 All dates herein are 2013, unless stated otherwise.
PJ CHEESE, INC. 5
Resolution Program in which Sullivan agreed, as a condition of
his employment, that all work place disputes would be submit-
ted to final and binding arbitration on an individual basis and
not on a class-wide basis. It is stipulated that on July 9, Charg-
ing Party Sullivan filed a fair labor standards complaint against
the Company in the United States District Court for the North-
ern District of Alabama, Western Division, captioned James
Sullivan v. PJ United, Inc., and Douglas Stephens Civil Action
No.7: 13-cv-01275-LSC. It is alleged that since on or about
July 17, the Company, in response to Sullivan’s suit, has sought
to enforce the arbitration agreement by filing with the court a
Motion to Stay the Trial of This Civil Action and require the
matter be arbitrated on an individual basis. The Government
alleges, that by the conduct just described, the Company has
been interfering with, restraining, and coercing employees in
the exercise of their rights guaranteed in Section 7 of the Na-
tional Labor Relations Act (the Act) and is in violation of Sec-
tion (8)(a)(1) of the Act.
In essence, this is another case raising issues concerning ar-
bitration policies that effect collective bargaining and represen-
tational rights related to D. R. Horton, Inc., 357 NLRB No. 184
(2012), enf. denied in pertinent part 737 F.3d 344 (2013).
The Company, in its answer to the complaint, and at trial,
denies having violated the Act in any manner alleged in the
complaint.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. Only one witness was called (by the
Company) and the parties were able to stipulate to the matters
about which the witness testified. I have studied the whole
record including the parties partial written stipulations of fact
which, I received in evidence, as Joint Exhibits 1–9, and based
on the detailed findings and analysis below, I conclude and find
the Company violated the Act essentially as alleged in the
complaint.
FINDINGS OF FACT
The Charge
The Company in its posttrial brief contends the complaint
was not preceded by a valid charge. The Company correctly
notes the original and each of the three amended charges were
filed by the Charging Party’s attorney on behalf of the Charg-
ing Party. The Company asserts no evidence was presented at
trial to establish Charging Party Sullivan authorized Charging
Party Attorney Potashnick to file and amend the charges on his
behalf. The Company also contends the charge was not “sworn
to” as required by the Board’s Rules and Regulations Section
102.11.
I find the original and each of the amended charges were val-
idly filed. See Appex Investigation & Security Co., 302 NLRB
815, 818–819 (1991). In Appex, such a procedural defense was
addressed, in part, as follows:
Section 102.9 of the Board’s Rules and Regulations provides
that a charge may be filed “by any person”. . . .
“The simple fact is that anyone for any reason may file charg-
es with the Board.” Operating Engineers Local 39 (Kaiser
Foundation), 268 NLRB 115, 116 (1983).
It is clear the Charging Party’s attorney may validly file a
charge on behalf of the Charging Party. Section 102.1 of the
Board’s Rules and Regulations defines the term “person” as
inter alia a “representative” for the person. Charging Party
Attorney Potashnick signed the charge, and amended charges,
with the following “Declaration” which states: “I declare that I
have read the above charge and that the statements are true to
the best of my knowledge and belief.”
I conclude and find the Company’s contention that the com-
plaint here was not preceded by a valid charge is without merit.
I. JURISDICTION AND SUPERVISORY STATUS
The Company is an Alabama corporation with an office and
place of business in Birmingham, Alabama, from which it op-
erates a number of retail restaurant facilities in Alabama, Loui-
siana, Texas, Mississippi, Tennessee, Illinois, Missouri, Ohio,
Virginia, and Utah. During the calendar year ending December
1, the Company in conducting its business operations derived
gross revenues in excess of $500,000, and purchased and re-
ceived at its Alabama facilities goods and products valued in
excess of $50,000 directly from points located outside the State
of Alabama. The parties admit and I find the Company is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The parties do not contest that Company Director of Human
Resources Becky Gwarjanski is a supervisor of the Company
within the meaning of Section 2(11) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principle issues in this proceeding are whether the Com-
pany has violated, and is violating, Section 8(a)(1) of the Act
by maintaining a mandatory arbitration agreement which con-
tains provisions that unlawfully prohibits employees from en-
gaging in protected concerted activities; and whether the lan-
guage of the mandatory agreement also leads employees rea-
sonably to believe that they are prohibited from filing charges
with the Board.
B. Facts
The stipulated facts (on the record and by exhibits) are, in
pertinent part, as follows:
1. Sullivan voluntarily ended his employment with the Com-
pany in early January 2012.5 (Tr. p. 23, LL. 20–23.)
2. Company Director of Human Resources Becky
Gwarjanski, in a written declaration given under oath (Jt. Exh.
2)6 and in trial testimony here (Tr. p. 26, LL. 13–14), indicat-
ed the Company is a wholly-owned subsidiary of PJ United,
Inc. Gwarjanski also indicated PJ United developed the Dis-
pute Resolution Program (DRP) which covers all of the Com-
pany’s employees, and has been modified from time to time,
with the most recent modified version being in 2010. A copy

5 I shall refer to the transcript as Tr. with “p. or pp.” indicating the
page(s) and “L. or LL.” as the line(s).
6 I shall refer to the “joint exhibits” as Jt. Exh. with the number as-
signed each joint exhibit.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the 2010 modification of the DRP was received in evidence
(Jt. Exh. 3). Relevant portions of the DRP read as follows:
DISPUTE RESOLUTION PROGRAM
This Dispute Resolution Program is adopted for PJ United,
Inc., PJ Cheese, Inc., PJ Louisiana, LLC, PJ Chippewa,
LLC, PJ Utah, LLC, and Ohio Pizza Delivery Company,
all of which are collectively hereinafter referred to as the
“Company.”
. . . .
THIS PROGRAM IS A CONDITION OF YOUR
EMPLOYMENT AND IS THE MANDATORY AND
EXCLUSIVE MEANS BY WHICH THOSE
PROBLEMS MAY BE RESOLVED, SO READ THE
INFORMATION IN THIS PROGRAM BOOKLET
CAREFULLY.
Program Rules
Claims Subject to Arbitration
Claims and disputes subject to arbitration include all those
legal claims you may now or in the future have against the
Company (and its successors or assigns) or against its of-
ficers, directors, shareholders, employees or agents, includ-
ing claims related to any Company employee benefit pro-
gram or against its fiduciaries or administrator (in their
personal or official capacity), and all claims that the Com-
pany may now or in the future have against you, whether
or not arising out of your employment or termination, ex-
cept 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 war-
ranty (expressed or implied);
 Tort claims (including, but not limited to, claims for
physical, mental or psychological injury, but ex-
cluding statutory workers compensation claims);
 Claims for wrongful termination,
 Sexual harassment,
 Discrimination (including, but not limited to, claims
based on race, sex, sexual orientation, religion, na-
tional 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 employees benefit program
sponsored by the Company (after exhausting ad-
ministrative remedies under the terms of such
plans);
 “Whistleblower” claims under any federal, state or
other governmental law, statute, regulation or or-
dinance;
 Claims for a violation of any other noncriminal fed-
eral, state or other governmental law, statute, regu-
lation or ordinance, and
 Claims for retaliation under any law, statute, regula-
tion or ordinance, including retaliation under any
workers compensation law or regulation.
Claims Not Subject to Arbitration
The only claim or disputes not subject to arbitration are as fol-
lows:
 Any claim by an employee for benefits under a plan
or program which provides its own binding arbi-
tration procedure.
 Any statutory workers compensation claim; and
 Unemployment insurance claims.
Neither the employee nor the Company has to submit the
items listed under this “Claims Not Subject to Arbitration”
caption to arbitration under this Program and may seek and
obtain relief from a court or the appropriate administrative
agency.
The parties also agree that any arbitration between the em-
ployee and the Company is their individual claim and that any
claim subject to arbitration will not be arbitrated on a collec-
tive or a class-wide basis, provided however, that this provi-
sion shall not apply to any prospective class or collective ac-
tion based on alleged violations of wage and hour laws if, and
only if, such claim should cause the agreement to arbitrate to
be unenforceable under the prevailing law.
Also, any nonlegal 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.
3. Charging Party Sullivan signed the Agreement and Receipt
for Dispute Resolution Program on November 30, 2010,
which was received in evidence (Jt. Exh. 4). Relevant por-
tions of the Receipt reads as follows:
Agreement And Receipt For
Dispute Resolution Program
MUTUAL PROMISE TO RESOLVE CLAIMS BY
BINDING ARBITRATION. The Company and I agree that
all legal claims or disputes covered by the Agreement must be
submitted to binding arbitration and that this binding arbitra-
tion will be the sole and exclusive final remedy for resolving
any such claim or dispute. I also agree that any arbitration be-
tween the Company and me is of an individual claim and that
any claim subject to arbitration will not be arbitrated on a
multi-claimant, a collective or a class-wide basis.
The mutual obligations set forth in this Agreement shall con-
stitute a contract between the Employee and the Company but
shall not change an Employee’s at-will relationship or any
term of any other contract or agreement between the Compa-
ny and Employee. This Policy shall constitute the entire
agreement between the Employee and Company for the reso-
lution of Covered Claims. The submission of an application,
acceptance of employment or the continuation of employment
by an individual shall be deemed to be acceptance of the dis-
pute resolution program. No signature shall be required for
the policy to be applicable.
PJ CHEESE, INC. 7
Legally protected rights covered by this Dispute Resolution
Program are all legal claims, including claims for wages or
other compensation, claims for breach of any contract, cove-
nant or warranty (expressed or implied); that claims (includ-
ing, but not limited to, claims for physical, mental or psycho-
logical injury, but excluding statutory workers compensation
claims); claims for wrongful termination, sexual harassment;
discrimination (including, but not limited to, claims based on
race, sex, religion, national origin, age, medical condition or
disability, whether under federal, state or local law); claims
for benefits or claims for damages of other remedies under
any employee benefit program sponsored by the Company
(after exhausting administrative remedies under the terms of
such plans); “whistleblower” claims under any federal, state
or other governmental law, statute, regulation or ordinance,
and claims for retaliation under any law, statute, regulation or
ordinance, including retaliation under any workers compensa-
tion law or regulation.
I understand and agree that by entering into this Agreement, I
anticipate gaining the benefits of a speedy, impartial dispute
resolution procedure. This procedure is explained in the Dis-
pute Resolution Program Booklet, which I acknowledge I
have received and read or have had an opportunity to read.
MULTI-STATE BUSINESS. I understand and agree the
Company is engaged in transactions involving interstate
commence and that my employment involves such com-
merce. I agree that the Federal Arbitration Act shall govern
the interpretation, enforcement, and proceedings under this
Agreement.
4. Sullivan, on July 9, filed a Complaint in United States Dis-
trict Court, Northern District of Alabama, Western Division,
against the Company in James Sullivan v. PJ United, Inc.,
and Douglas Stephens Civil Action No. 7: 13-cv-1275-LSC.
(Jt. Exh. 5.) Relevant portions of the Complaint read as fol-
lows:
COMPLAINT
Plaintiff James Sullivan, individually and on behalf of all
other similarly situated delivery drivers, for his Complaint
against defendants PJ United, Inc. and Douglas Stephens,
alleges as follow:
2. Plaintiff James Sullivan, and all other similarly situated
delivery drivers, work or previously worked as delivery
drivers at Papa John’s restaurants owned and operated by
Defendants. This lawsuit is brought as a collective action
under the Fair Labor Standards Act (FLSA), 29 U.S.C. §
201, et seq., to recover unpaid minimum wages owed to
Plaintiff and all other similarly situated workers employed
by Defendants.
Collective Allegations
38. Plaintiff Sullivan brings this FLSA claim as an “opt-
in” collective action on behalf of similarly situated deliv-
ery drivers who opt-in to this case pursuant to 29 U.S.C. §
216(b).
39. Plaintiff, individually and on behalf of other similarly
situated employees, seeks relief on a collective basis chal-
lenging Defendants’ practice of failing to pay employees
federal minimum wage. The number and identity of other
plaintiffs yet to opt-in may be ascertained from Defend-
ants’ records, and potential class members may be notified
of the pendency of this action by regular mail.
5. In response to Sullivan’s Complaint the Company filed
with the Federal District Court a Motion to Stay the Trial of
this Civil Action on July 17. (Jt. Exh. 6.) Relevant portions
of the Motion read as follows:
1. The Company has adopted a Dispute Resolution Pro-
gram (the “Program”). (Gwarjanski Dec., Exh. 1.)
2. Sullivan twice signed an Agreement and Receipt for
Alternative Dispute Resolution (the “Agreement”), once
on November 30, 2010 and once on May 28, 2008.
(Gwarjanski Dec., Exhs. 2 and 3.)
3. The Program reflects that all legal claims, including
claims for wages, that arise from employment with the
Company shall be resolved through arbitration as provided
in the Program. (Gwarjanski Dec., Exh. 1.)
4. The Program defines the Company to include PJ Unit-
ed, Inc.; certain related companies, including Sullivan’s
employer, PJ Cheese, Inc. (“PJ Cheese”); and the Compa-
ny’s officers, directors, shareholders, and employees, in-
cluding Douglas Stephens. (Gwarjanski Dec., Exh. 1, p. 6;
Doc. 1, par. 6.)
5. Each signed Acknowledgement reflects that Sullivan
received a copy of the Program; that he read or had the op-
portunity to read the Program; that he agreed that all legal
claims between himself and the Company, including
claims for wages, “must be submitted to binding arbitra-
tion,” that the mutual obligations set forth in the Agree-
ment constitute a contract between Sullivan and the Com-
pany; that “the Company is engaged in transactions involv-
ing interstate commerce and that [Sullivan’s] employment
involves such commerce,” and that Sullivan voluntarily
entered into the Agreement. (Gwarjanski Dec., Exhs. 2 and
3.)
. . . .
6. In each signed Agreement, Sullivan unambiguously
stated: “I also agree that any arbitration between the Com-
pany and me is of an individual claim and that any claim
subject to arbitration will not be arbitrated on a multi-
claimant, a collective or a class-wide basis.” (Gwarjanski
Dec., Exhs. 2 and 3.) The Program contains the same pro-
vision. (Gwarjanski Dec., Exh. 1, p. 6.)
7. Each signed agreement constitutes a written agreement
to arbitrate within the meaning of Section 3 of the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 3.
8. Sullivan’s Complaint reflects a dispute concerning
wages, which dispute arises from his employment with the
Company. (Doc. 1.)
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. [9.] Section 3 of the FAA requires this Court to stay the
trial of this civil action “until such arbitration has been had
in accordance with the terms of the agreement.”
. . . .
11. The Company has submitted an arbitration demand to
the American Arbitration Association seeking arbitration
of Sullivan’s individual claims against the Company and
therefore is not in default in proceeding with arbitration
under the signed Agreements.
WHEREFORE, the Company respectfully moves this
Court to enter an order staying the trial of this civil action
until arbitration of Sullivan’s dispute with the Company
has been had on a single-claimant/noncollective or class-
wide basis in accordance with the terms of the Agreements
and the Programs.
6. On August 5, the Company filed a Response to Sulli-
van’s Attempt to Show Cause. (Jt. Exh. 7.)
7. On September 10, United States District Court Judge L.
Scott Coogler issued a Memorandum of Opinion (Jt. Exh.
8) in which Judge Coogler concluded the Company’s Mo-
tion to Stay Trial Pending Arbitration would be granted,
but, the Company’s request to the Court to order Sullivan
to pursue his arbitration only on a single claimant basis
would be denied because Judge Coogler concluded the ar-
bitrator must decide whether the collective action waiver
applies in this case.
8. On September 10 United States District Court Judge
Coogler issued an Order (Jt. Exh. 9) in accordance with the
Memorandum of Opinion set forth above.
I first address the issue of whether the allegations of the
complaint are time-barred. The Company contends the entire
complaint should be dismissed because it is time-barred by
Section 10(b) of the Act in that the complaint is based on
events that occurred outside the applicable limitations period.
Section 10(b) of the Act in part provides “. . . no complaint
shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charges with the Board
. . . .” It is undisputed Charging Party Sullivan signed the most
recent Agreement and Receipt for Dispute Resolution Program
containing the mandatory arbitration policy, at issue here, on
November 30, 2010, well outside the 10(b) period. As noted
elsewhere, here the original charge was filed on September 23.
It is alleged the Company, about July 17, has enforced the
mandatory arbitration policy, by filing a Motion to Stay Trial in
the United States District Court for the Northern District of
Alabama, Western Division, and, by subsequent responsive
pleading. The allegations are within the 10(b) limitations peri-
od, but, are they inescapably grounded in pre-10(b) events?
They are not. The Company’s July 17, filing of its Motion to
Stay Trial of this (Sullivan’s) civil action in which the Compa-
ny sought to stay the proceedings until Sullivan’s dispute with
the Company has been decided on a single-claimant/
noncollective or class-wide basis pursuant to the mandatory
arbitration policy signed by Sullivan, is clearly within the 10(b)
limitation period. The enforcement action by the Company,
based on Sullivan’s signed mandatory arbitration policy agree-
ment, took place approximately 2 months before the charge
here was filed. This action, by the Company, demonstrates it
was enforcing its mandatory agreement policy within the appli-
cable time period.
More specifically, I find the Company’s 10(b) defense with-
out merit. While it is clear Sullivan signed the mandatory arbi-
tration agreement policy on November 30, 2010, well outside
the 10(b) period, the Company continued to maintain and en-
force the mandatory arbitration policy well into the 10(b) peri-
od. The Government’s allegation the Company has, since July
17, 2013, a time within the 10(b) period, continued to maintain
its mandatory arbitration policy is established. The Company’s
motion filing on July 17, a time clearly within the 10(b) period,
was grounded on Sullivan’s having signed the mandatory arbi-
tration policy in which he agreed to arbitration on an individual
basis. In these circumstances, the date Sullivan signed the
mandatory arbitration policy is not controlling or relevant.
What is controlling and relevant is the Company continued to
maintain and enforce Sullivan’s signed mandatory arbitration
policy agreement within the 10(b) period. By continuing to
maintain and enforce the mandatory arbitration policy within
the 10(b) period establishes the conduct and action by the
Company is not inescapably grounded in pre-10(b) events. The
Board, in Lafayette Park Hotel, 326 NLRB 824 (1998), held an
employer commits a continuing violation of Section 8(a)(1) of
the Act throughout the period an unlawful rule, is maintained
and enforcement is sought. Stated differently, the Board has
held that, where an employer, as here, enforces an unlawful rule
during the 10(b) period it violates Section 8(a)(1) of the Act.
Such is a continuing violation. See: Teamsters Local 293 (R. L.
Lipton Distributing) 311 NLRB 538, 539 (1993). The continu-
ing violation I find here precludes the Company from a valid
10(b) defense.
I reject the Company’s contention that Charging Party Sulli-
van was not an employee of the Company at the time the Com-
pany filed its Motion to Stay in response to his James Sullivan
v. PJ United, Inc., and Douglas Stephens Civil Action No. 7:
13-cv-01275-LSC, case. The Company’s argument that since
Sullivan voluntarily terminated his employment with the Com-
pany outside the 10(b) limitations period his right to engage in
concerted activities or file actions related thereto had long end-
ed when the Company filed its Motion to Stay. I find Sullivan
remained an employee within the meaning of the Act at all
times, material herein. The Company, for example, still con-
sidered him an employee when it filed its Motion to Stay be-
cause the Motion to Stay was grounded on documents signed
by Sullivan as an employee of the Company.
The Company asserts Sullivan was not engaging in “protect-
ed concerted activity” when he filed his litigation in James
Sullivan v. PJ United, Inc., and Douglas Stephens Civil Action
No.7: 13-cv-01275-LSC. The Company asserts Sullivan was
not involved in any group action when he filed his class action
lawsuit because he did not seek support of others before filing
his suit. The Company’s argument is without merit. The Board
in D. R. Horton, Inc. held that filing a class action lawsuit is
protected concerted activity. The Board in so holding relied on
Meyers Industries, 281 NLRB 882, 887 (1986), for the proposi-
PJ CHEESE, INC. 9
tion that the actions of a single employee, such as Sullivan here,
are protected, if the employee “seek[s] to initiate or to induce or
to prepare for group action.” D. R. Horton, Inc., slip op. at 4.
The Board further held “an individual who files a class or col-
lective action . . . in court . . . seeks to initiate or induce group
action and is engaged in conduct protected by Section 7.” The
filing of a class action lawsuit to address wages, hours, and
other terms and conditions of employment, as is the case here,
constitutes concerted protected activity, unless done with mal-
ice or in bad faith of which there is none demonstrated here.
As noted elsewhere, here the complaint alleges the Company
has violated Section 8(a)(1) of the Act by, since about January
2010, maintaining and enforcing its mandatory arbitration poli-
cy that unlawfully prohibits employees from engaging in pro-
tected concerted activities, and, that leads employees reasona-
bly to believe that they are prohibited from filing charges with
the Board.
The arbitration policy here is mandatory. The policy in all
capital letters states; “THIS PROGRAM IS A CONDITION
OF YOUR EMPLOYMENT AND IS THE EXCLUSIVE
MEANS BY WHICH THOSE PROBLEMS MAY BE
RESOLVED, SO READ THE INFORMATION IN THIS
PROGRAM BOOKLET CAREFULLY.” Some of the specifi-
cally stated claims subject to the mandatory arbitration policy
includes, in limited part; wages, legal claims regarding termina-
tion, discrimination based on sex, sexual orientation, religion,
national origin, age, medical condition or disability whether
under Federal, State, or Local law; and, claims for a violation
of any other noncriminal Federal, State, or other governmental
law, statute, regulation, or ordinance. The only claims not sub-
ject to arbitration are; any claim by an employee for benefits
under a plan or program which provides its own binding arbi-
tration procedure; any statutory workers compensation claims;
and, unemployment insurance claims. In the Agreement and
Receipt for Dispute Resolution Program that employees are
required to sign, reads in part; “The Company and I agree that
all legal claims or disputes covered by the Agreement must be
submitted to binding arbitration and that this binding arbitration
will be the sole and exclusive final remedy for resolving any
such claim or dispute. I also agree that any arbitration between
the Company and me is of an individual claim and that any
claim subject to arbitration will not be arbitrated on a multi-
claimant, a collective or a class-wide basis.”
In looking at the overall content of the mandatory arbitration
policy here, it is necessary to review the rules the Board has
established for doing so.
In evaluating whether a rule applied to all employees, as a
condition of continued employment, including the mandatory
arbitration policy at issue here, violates Section 8(a)(1) of the
Act, the Board, as noted in D. R. Horton, Inc., at 4–6, applies
its test set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), citing U–Haul Co. of California, 347 NLRB
375, 377 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
Pursuant to Lutheran Heritage the inquiry, or test to be applied,
is whether the rule explicitly restricts activities protected by
Section 7 of the Act. If so, the rule is unlawful. If it does not
explicitly restrict protected activity, the finding of a violation is
dependent upon a showing of one of the following: (1) em-
ployees would reasonably construe the rule to prohibit Section
7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise
of Section 7 rights.
The Company’s mandatory arbitration policy explicitly re-
stricts activities protected by Section 7 of the Act and, as such,
is unlawful under Section 8(a)(1) of the Act. In this regard the
Board in D. R. Horton, Inc., supra slip op. at 13, held an em-
ployer violates Section 8(a)(1) of the Act “by requiring em-
ployees [as here] to waive their right to collectively pursue
employment-related claims in all forums, arbitral and judicial.”
The Board noted at 10 “The right to engage in collective ac-
tion—including collective legal action—is the core substantive
right protected by the NLRA and is the foundation on which the
Act and Federal labor policy rests.” Stated differently, the
Board in D. R. Horton, Inc., supra determined that as a condi-
tion of employment “employers may not compel employees to
waive their NLRA right to collectively pursue litigation of em-
ployment claims in all forums arbitral and judicial.” D. R. Hor-
ton, Inc., slip op. at 12.
The General Counsel also alleges the mandatory arbitration
policy leads employees reasonably to believe that they are pro-
hibited from filing charges with the Board. I agree. The agree-
ment language, which in part, states: “The Company and I
agree that all legal claims and disputes covered by the agree-
ment must be submitted to binding arbitration and that this
binding arbitration will be the sole and exclusive final remedy
for resolving any such claim or dispute” would lead employees
to reasonably believe that employment, wage, discrimination,
and termination issues must be submitted exclusively to bind-
ing arbitration and not to the Board. The only employment
issues not subject to the mandatory arbitration policy here in-
volves workers compensation and unemployment insurance
claims or any benefit plan that has its own arbitration proce-
dure. Simply stated the language of the mandatory arbitration
policy here may reasonably be construed, by employees, to
restrict them from, concertedly or individually, filing charges
under the NLRA and such interferes with the employees Sec-
tion 7 rights and violates Section 8(a)(1) of the Act.
The Company, in its posttrial, brief notes the Government
seeks, as party of any remedy, the Company reimburse Charg-
ing Party Sullivan for his reasonable litigation expenses related
to the Company’s Motion to Stay in his civil action James Sul-
livan v. PJ United, Inc., and Douglas Stephens Civil Action No.
7: 13-cv-01275-LSC. The Company contends the requested
relief cannot be granted because PJ Cheese, the Company here,
did not file the Motion to Stay in the civil action but rather PJ
United, which is not named as a party in this proceeding, filed
the action.
I find no merit in the Company’s contention. First, I note PJ
Cheese is a wholly-owned subsidiary of PJ United. PJ United
adopted the Dispute Resolution Program for its PJ Cheese em-
ployees. The Acknowledgement and Receipt for the Dispute
Resolution Program that Charging Party Sullivan signed was
used by the Company in its defense to the civil action brought
by Sullivan against PJ United. In fact, without the Company’s
(PJ Cheese) active participation in the civil suit PJ United
would not have had, or been able to advance, the defense it did
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in Charging Party Sullivan’s civil suit. Stated differently, PJ
United lacked any agreement with Charging Party Sullivan and
in order to prevail in the civil suit, as it did, PJ United needed,
and obtained, the Company here, PJ Cheese’s, direct participa-
tion in its legal defense based on provisions of the Dispute Res-
olution Program. I note Company (PJ Cheese) Director of Hu-
man Resources Becky Gwarjanski provided a sworn declaration
in PJ United’s defense outlining the fact Charging Party Sulli-
van had signed and was bound by the Dispute Resolution Pro-
gram for employees of the Company here (PJ Cheese). The
Company’s actions directly caused the accrual of legal fees and
I conclude Charging Party Sullivan should be compensated for
those expenses as explained in the Remedy section of the deci-
sion.
CONCLUSIONS OF LAW
1. The Company, PJ Cheese, Inc., Birmingham, Alabama,
is, and has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By maintaining a mandatory arbitration policy, that
waives the right of its employees to maintain class or collective
actions in all forums, judicial or arbitral, the Company has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act and violates Section
8(a)(1) of the Act.
3. By maintaining a mandatory arbitration policy, that leads
employees reasonably to believe they are prohibited from filing
charges with the National Labor Relations Board the Company
has engaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act and violates
Section 8(a)(1) of the Act.
4. By, on July 17, 2013, enforcing the mandatory arbitration
agreement by asserting the provisions thereof in litigation
brought against the Company in James Sullivan v. PJ United,
Inc., and Douglas Stephens Civil Action No. 7: 13-cv-01275-
LSC and by filing a motion to, in essence, compel plaintiffs to
individually arbitrate their class-wide wage and hour claims
against the Company, the Company has engaged in unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act and has violated Section 8(a)(1) of the
Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I shall recommend it cease and desist therefrom
and take certain affirmative action designated to effectuate the
policies of the Act.
I recommend the Company be ordered to rescind, modify or
revise its mandatory arbitration policy to clearly inform its
employees the agreement does not constitute a waiver, in all
forums, of their right to maintain employment-related class or
collective actions and/or to prohibit them from filing charges
with the National Labor Relations Board, and, to notify its em-
ployees the mandatory arbitration policy has been rescinded,
modified or revised and provide a copy of any modified or
revised agreement to all employees.
I recommend the Company be required to reimburse Charg-
ing Party James Sullivan for any litigation and related expens-
es, with interest to-date, and in the future, directly related to the
Company’s filings in James Sullivan v. PJ United, Inc., and
Douglas Stephens Civil Action No. 7: 13-cv-01275-LSC. See:
Federal Security, Inc., 359 NLRB No. 1, slip op. at 14 (2012).
Determining the applicable rate of interest on the reimburse-
ment will be as outlined in New Horizons for the Retarded, 283
NLRB 1173 (1987) (adopting the Internal Revenue Service rate
for underpayment of Federal taxes). Interest on all amounts
due to Charging Party Sullivan shall be computed on a daily
bases as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
I recommend the Company be required upon request, to file
a joint motion with Charging Party James Sullivan to vacate
United States District Court Judge L. Scott Coogler’s Order of
September 10, 2013, granting the Company’s motion to stay the
trial of Sullivan’s civil action in James Sullivan v. PJ United,
Inc., and Douglas Stephens Civil Action No.7: 13-cv-01275-
LSC. See Federal Security, Inc., supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Company, PJ Cheese, Birmingham, Alabama, it officers,
agents, successors, and assigns, shall
1. Cease and desist form
(a) Maintaining a mandatory arbitration policy, that waives
employees’ right to maintain class or collective actions in all
forums; whether arbitral or judicial.
(b) Maintaining a mandatory arbitration policy that leads
employees reasonably to believe that they are prohibited from
filing charges with the National Labor Relations Board.
(c) Seeking to enforce its mandatory arbitration policy by fil-
ings in any court to compel individual arbitration pursuant to
the terms of its mandatory arbitration policy.
(d) In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their right under the
Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Within 7 calendar days after the Board enters its Deci-
sion, and upon request of Charging Party James Sullivan, file a
joint motion with Sullivan to vacate United States District
Court Judge L. Scott Coogler’s Order of September 10, 2013,
granting the Company’s motion to stay the trial of Sullivan’s
civil action in James Sullivan v. PJ United, Inc., and Douglas
Stephens Civil Action No. 7: 13-cv-01275-LSC.
(b) Reimburse Charging Party James Sullivan for any legal
and related expenses incurred, to-date and in the future, with
respect to James Sullivan v. PJ United, Inc., and Douglas Ste-
phens Civil Action No. 7: 13-cv-01275-LSC, with interest, as
described in the remedy section of this decision.
(c) Rescind, modify or revise its mandatory arbitration policy
to ensure its employees the mandatory arbitration policy does
not contain or constitute a waiver, in all forums, of their right to

7 If no exceptions are filed provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 201.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
PJ CHEESE, INC. 11
maintain employment-related class or collective actions.
(d) Rescind, modify or revise its mandatory arbitration poli-
cy to ensure its employees the mandatory arbitration policy
does not prohibit them from filing charges with the National
Labor Relations Board.
(e) Notify its employees of the rescinded, modified or re-
vised mandatory arbitration policy and provide a copy of any
modified or revised policy to each employee.
(f) Within 14 days after service by the Region, post at its
Birmingham, Alabama facility, copies of the notice marked
“Appendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to ensure that the notices are not altered, defaced, or
covered by any other material. In addition to the physical post-
ing of paper notices, notices shall be distributed electronically,
such as email, posting on an intranet or an internet site, or other
electronic means, if the Company customarily communicates
with its employees by such means. In the event that, during the
pendency of these proceedings, the Company has gone out of
business or closed the facility involved in these proceedings,
the Company shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Company at any time since July 17, 2013.
Dated at Washington, D.C. June 6, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this 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.

8 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 the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT maintain or enforce a mandatory arbitration
policy that waives employees’ right to maintain class or collec-
tive action in all forums, arbitral or judicial.
WE WILL NOT maintain or enforce a mandatory arbitration
policy that prohibits you from filing charges with the National
Labor Relations Board.
WE WILL NOT enforce, or attempt to enforce, any agreement,
by filing petition(s) in any court, to compel you to individually
arbitrate your work related concerns.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of their rights
under the Act.
WE WILL within 7 days after the Board Order, and, upon re-
quest of Charging Party James Sullivan, file a joint motion to
vacate United States District Court Judge L. Scott Coogler’s
Order of September 10, 2013, granting the Company’s motion
to stay the trial of Sullivan’s civil action in James Sullivan v. PJ
United, Inc., and Douglas Stephens Civil Action No. 7: 13-cv-
01275-LSC.
WE WILL reimburse Charging Party James Sullivan any rea-
sonable legal and other expenses incurred related to our various
responses to his civil action in James Sullivan v. PJ United,
Inc., and Douglas Stephens Civil Action No. 7: 13-cv-01275-
LSC, plus interest.
WE WILL rescind, modify or revise our mandatory arbitration
policy to make clear to you our policy does not constitute a
waiver in all forums of your right to maintain employment-
related class or collective actions and to make clear to you our
policy does not prohibit filing charges with the National Labor
Relations Board.
WE WILL notify our employees we have rescinded, modified
or revised our mandatory arbitration policy and provide each of
you a copy of any revised or modified policy.
PJ CHEESE, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/10-CA-113862 or by using the QR code be-
low. 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.