Apple SoCal, LLC d/b/a Applebee's, Apple American Group II, LLC d/b/a Applebee's, and Apple American

National Labor Relations Board - Board Decisions

Dec 4, 2018

367 NLRB No. 44 (N.L.R.B. 2018)

367 NLRB No. 44
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Apple SoCal, LLC d/b/a Applebee’s, Apple American
Group II, LLC d/b/a Applebee’s and Apple
American Group, LLC and Samuel Y. Rodri-
guez. Case 31−CA−185387
December 4, 2018
DECISION AND ORDER REMANDING
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
Pursuant to a charge and amended charges filed by
Samuel Y. Rodriguez, the General Counsel issued a
complaint on June 29, 2017. The complaint alleges that
the Respondents have maintained and enforced a manda-
tory arbitration agreement that unlawfully restricts em-
ployees’ statutory right to pursue class or collective ac-
tions in violation of Section 8(a)(1) of the National Labor
Relations Act. The complaint also alleges that the man-
datory arbitration agreement includes language that em-
ployees would reasonably conclude prohibits or restricts
their right to file unfair labor practice charges with the
Board. On May 2, 2018, the Respondents filed a Motion
for Partial Summary Judgment and a supporting brief,
with exhibits attached. The Respondents contend that
the allegation that the arbitration agreement includes
language that employees would reasonably conclude
prohibits or restricts their right to file charges with the
Board should be dismissed as untimely under Section
10(b) of the Act. The General Counsel filed a brief in
opposition to the Respondents’ motion, and the Re-
spondents filed a reply brief.
On July 2, 2018, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the Respondents’ motion should not be granted in
favor of either party with respect to the 10(b) issue. The
General Counsel filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Partial Summary Judgment
The General Counsel and the Respondents agree, and
we find, that there are no disputed issues of fact warrant-
ing a hearing with respect to the10(b) issue and that the
10(b) issue can be resolved on the basis of the pleadings
before the Board.
The undisputed facts are as follows. Charging Party
Samuel Y. Rodriguez worked for Respondent Apple
SoCal, LLC d/b/a Applebee’s (Apple SoCal) from about
July 29, 2011, through about November 27, 2011, at its
Azusa, California location. Rodriguez subsequently
worked for Apple SoCal from about December 29, 2011,
through about March 24, 2013, at its Rancho Cucamon-
ga, California location. On July 30, 2011, as a condition
of his employment, Rodriguez signed a Receipt of Dis-
pute Resolution Program and Agreement to Abide by
Dispute Resolution Program (Agreement), which incor-
porated the terms of the Respondents’ Dispute Resolu-
tion Program Booklet (Booklet) (collectively, the 2011
Booklet and Agreement). The 2011 Booklet and Agree-
ment require employees, as a condition of their employ-
ment, to agree to submit employment-related claims or
disputes to binding arbitration, and they stipulate that
arbitration will be on an individual basis and not as a
class or collective action.
On about September 28, 2015, Rodriguez filed a com-
plaint in Los Angeles County Superior Court on behalf
of himself and others similarly situated against Respond-
ents Apple American Group and Apple American Group
II, LLC (Apple American Group II) alleging unlawful
business practices. On about June 9, 2016, Apple Amer-
ican Group and Apple American Group II filed in the
same court a petition to compel individual arbitration and
stay judicial proceedings in accordance with the terms of
the 2011 Booklet and Agreement. On about July 7,
2016, the Superior Court granted the Respondents’ peti-
tion.
On September 29, 2016, Rodriguez filed the initial
charge in this proceeding, alleging, in relevant part, that
Apple American Group and Apple American Group II
violated Section 8(a)(1) of the Act by requiring employ-
ees, “as a condition of employment, to agree to a manda-
tory arbitration provision which included a class action
waiver,” and by moving “to compel individual arbitration
pursuant to the terms of the agreement.”
On January 17, 2017, Rodriguez filed an amended
charge alleging that the same Respondents violated Sec-
tion 8(a)(1) by “maintain[ing] and enforc[ing] an arbitra-
tion agreement that precludes employees from collective
action in all forums, arbitral and judicial,” and further
alleging, for the first time, “that employees would inter-
pret [the arbitration agreement] to prohibit access to the
Board.”1
Thereafter, on June 29, 2017, the General Counsel is-
sued the instant complaint, alleging that the Respondents

1 On March 30, 2017, Rodriguez filed a second amended charge
adding Apple Mid Cal II, LLC as a respondent. On April 26, 2017,
Rodriguez filed a third amended charge removing Apple Mid Cal as a
respondent, adding Apple SoCal as a respondent, and modifying the
operative language to allege that the Respondents “maintained and/or
enforced an arbitration agreement that precludes employees from col-
lective action in all forums, arbitral and judicial, that employees would
interpret to prohibit access to the Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
violated Section 8(a)(1) of the Act by maintaining and
enforcing the 2011 Booklet and Agreement, both because
they require employees, as a condition of employment, to
waive their right to maintain class or collective actions in
all forums, and because they would reasonably be con-
strued by employees to preclude them from, or restrict
them in, filing unfair labor practice charges with the
Board.
On July 26, 2017, the Regional Director for Region 31
issued an order withdrawing and placing in abeyance the
complaint allegations predicated on the class- and collec-
tive-action waivers in the 2011 Booklet and Agreement,
pending the Supreme Court’s decision in Murphy Oil
USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant
part 808 F.3d 1013 (5th Cir. 2015), affd. sub nom. Epic
Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612
(2018).2
In support of their Motion for Partial Summary Judg-
ment on the remaining complaint allegation—that em-
ployees would reasonably construe the 2011 Booklet and
Agreement to restrict their right to file charges with the
Board—the Respondents contend that this allegation
should be dismissed as untimely under Section 10(b) of
the Act because they did not maintain or enforce the
2011 Booklet and Agreement in the 6 months prior to the
filing of the January 17, 2017 amended charge. Accord-
ing to the Respondents, they maintained the 2011 Book-
let and Agreement from April 2011 through sometime in
2014,3 and they last enforced those documents on June 9,
2016, when they filed the petition to compel individual
arbitration and stay judicial proceedings in the class-
action litigation brought by Rodriguez.4 However, the
charge was not amended to allege that the 2011 Booklet
and Agreement would reasonably be interpreted to pro-
hibit access to the Board until January 17, 2017, more
than 6 months after the Respondents had either main-
tained or enforced these documents.

2 In Epic Systems, a consolidated proceeding including review of
court decisions in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir.
2016), Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016),
and Murphy Oil, supra, the Supreme Court held that employer-
employee agreements that contain class- and collective-action waivers
and stipulate that employment disputes are to be resolved by individual-
ized arbitration do not violate the National Labor Relations Act and
must be enforced as written pursuant to the Federal Arbitration Act.
584 U.S. at __, 138 S. Ct. at 1619−1621, 1632.
3 Starting in 2014, the Respondents distributed a revised Booklet
and Agreement to newly hired employees. The revised Booklet and
Agreement are not at issue in this case.
4 The Respondents make contradictory claims concerning the date
they last enforced the 2011 Booklet and Agreement. However, the
Respondents acknowledge that on June 9, 2016, they filed a petition to
compel individual arbitration and stay judicial proceedings in accord-
ance with the terms of the 2011 Booklet and Agreement in the class-
action litigation brought by Rodriguez.
In his opposition brief and response to the Notice to
Show Cause, counsel for the General Counsel maintains
that, even assuming the limitations period expired 6
months after the Respondents last enforced the 2011
Booklet and Agreement, the allegation in the January 17,
2017 amended charge is not time barred because it is
closely related to the allegations in the original, timely
filed charge. We agree.
Section 10(b) of the Act provides, in pertinent part,
that “no complaint shall issue based upon any unfair la-
bor practice occurring more than six months prior to the
filing of the charge with the Board.” Thus, in general, an
unfair labor practice charge filed more than 6 months
after the alleged unfair labor practice took place is un-
timely. The Board has held, however, that “‘the timely
filing of a charge tolls the time limitation of Section
10(b) as to matters subsequently alleged in an amended
charge which are similar to, and arise out of the same
course of conduct, as those alleged in the timely filed
charge. Amended charges containing such allegations, if
filed outside the 6-month 10(b) period, are deemed, for
10(b) purposes, to relate back to the original charge.’”
WGE Federal Credit Union, 346 NLRB 982, 983 (2006)
(quoting Pankratz Forest Industries, 269 NLRB 33, 36-
37 (1984), enfd. mem. sub nom. Kelly-Goodwin Hard-
wood Co. v. NLRB, 762 F.2d 1018 (9th Cir. 1985)).
In determining whether an amended charge relates
back to an earlier charge for 10(b) purposes, the Board
applies the three-prong “closely related” test set forth in
Redd-I, Inc., 290 NLRB 1115, 1118 (1988).5 The Board
considers (1) whether the otherwise untimely allegations
of the amended charge involve the same legal theory as
the allegations in the timely charge, and (2) whether the
otherwise untimely allegations arise from the same fac-
tual situation or sequence of events as the allegations in
the timely charge. The Board may also consider (3)
whether a respondent would raise the same or similar

5 The Respondents urge the Board to reexamine Redd-I in light of
the Supreme Court’s decisions in Ledbetter v. Goodyear Tire & Rubber
Co., 550 U.S. 618 (2007), overturned due to legislative action U.S. Pub.
L. No. 111−2 (2009), and Nat'l. R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 104−105 (2002). The issues addressed by the Court in
Ledbetter and Morgan are factually and legally distinct from the issue
addressed by the Board in Redd-I. In Ledbetter, the Court rejected the
suggestion that a neutral employment practice occurring within the
statutory limitations period is actionable under Title VII if it gives
effect to a discriminatory act that occurred outside the limitations peri-
od. 550 U.S. at 632. In Morgan, the Court distinguished between
continuing violations and discrete discriminatory acts under Title VII,
and it rejected the lower court’s holding that so long as one discrete
discriminatory act falls within the charge-filing period, that act and all
discriminatory acts sufficiently related to it—no matter how long ago
they occurred—constitute a continuing violation and may be considered
as such for purposes of liability. 536 U.S. at 114.
APPLE SOCAL, LLC D/B/A APPLEBEE’S, APPLE AMERICAN GROUP II, LLC 3
defenses to both the untimely and timely charge allega-
tions. Redd-I, supra.
Here, all three prongs of the Redd-I test are satisfied.
With respect to the first prong, the otherwise untimely
charge allegation involves the same section of the Act
(Section 8(a)(1)) as the timely charge allegation, and at
the time the charges were filed, both allegations would
have been analyzed under the “reasonably construe”
prong of Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004).6
Turning to the second factor, the otherwise untimely
allegation arises from the same factual situation or se-
quence of events as the timely allegations. All are based
on the Respondents’ maintenance and enforcement of the
2011 Booklet and Agreement. The 2011 Agreement
expressly provides that it “shall survive the termination
of [the signatory employee’s] employment.” Moreover,
by asserting the 2011 Booklet and Agreement as an af-
firmative defense in the class-action litigation brought by
Rodriguez, the Respondents reaffirmed their intent to
maintain the 2011 Booklet and Agreement as to him.
The Respondents’ efforts to distinguish between the
maintenance and enforcement of the class- and collec-
tive-action waiver, on the one hand, and on the other the
maintenance of the allegedly overbroad language restrict-
ing employees’ access to the Board are unpersuasive.
Given the Respondents’ assertion of the 2011 Booklet
and Agreement in the class-action litigation, Rodriguez
would reasonably believe that the Respondents were con-
tinuing to maintain the entire 2011 Booklet and Agree-
ment, including the allegedly overbroad language re-
stricting employees’ access to the Board.7

6 See D. R. Horton, Inc., 357 NLRB 2277, 2280 (2012) (observing
that mandatory arbitration policy “is properly treated as the Board treats
other unilaterally implemented workplace rules. In evaluating whether
an employer has violated Section 8(a)(1) by maintaining such a manda-
tory arbitration policy, the Board . . . applies the test set forth in Lu-
theran Heritage.”), enf. denied in relevant part 737 F.3d 344 (5th Cir.
2013); Murphy Oil, supra, 361 NLRB at 775, 786 fns. 78 & 79, 792
(applying Lutheran Heritage test and finding that “even assuming
[mandatory arbitration policy] does not expressly prohibit the exercise
of Section 7 rights, it still violates Section 8(a)(1) because employees . .
. would reasonably construe it as waiving their right to pursue employ-
ment-related claims concertedly in all forums”); U-Haul Co. of Cali-
fornia, 347 NLRB 375, 378 (2006) (applying Lutheran Heritage test
and finding that mandatory arbitration policy violated Sec. 8(a)(1)
because employees would “reasonably construe the broad language to
prohibit the filing of unfair labor practice charges with the Board”),
enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007). The Board overruled the
“reasonably construe” prong of the Lutheran Heritage standard in
Boeing Co., 365 NLRB No. 154 (2017), but it did so after the Charging
Party filed the initial and amended charges at issue here.
7 In the “Statement of Undisputed Facts” in the Respondents’ Mo-
tion for Partial Summary Judgment, the Respondents nowhere state that
they ever informed Rodriguez that the 2011 Booklet and Agreement
had been revised or rescinded.
As for the third prong—whether a respondent would
raise the same or similar defenses to the timely and oth-
erwise untimely allegations—it is only necessary for this
part of the test that the defenses be similar, not that they
be identical. At the time the charge and amended charg-
es were filed, the Respondents would have relied on sim-
ilar defenses and evidence: the Federal Arbitration Act,
the language of the 2011 Booklet and Agreement, and
whether that language, reasonably construed, would in-
terfere with the exercise by employees of their Section 7
rights. Although the defenses that the Respondents
would raise have subsequently changed in light of the
Supreme Court’s decision in Epic Systems, supra, and the
Board’s decision in Boeing, supra, this is due to the issu-
ance of those decisions, not to the filing of amended
charges by Rodriguez.
In sum, we find that the otherwise untimely allegation
that the 2011 Booklet and Agreement would reasonably
be interpreted to prohibit access to the Board is closely
related to the allegations in the timely filed initial charge
and thus is not barred by Section 10(b). Accordingly, we
deny the Respondents’ Motion for Partial Summary
Judgment.
Ruling on General Counsel’s Request for Summary
Judgment
In his brief in opposition to the Respondents’ motion,
counsel for the General Counsel contends that there are
no genuine issues of material fact and requests that the
Board find, as a matter of law, that the Respondents vio-
lated Section 8(a)(1) by maintaining the Booklet and
Agreement because they would reasonably be interpreted
by employees to preclude them from, or restrict them in,
filing unfair labor practice charges with the Board.
As indicated above, at the time the charge and the
amended charges were filed, the issue whether mainte-
nance of a facially neutral work rule or policy violated
Section 8(a)(1) would have been resolved based on the
“reasonably construe” prong of the analytical framework
set forth in Lutheran Heritage, supra, 343 NLRB at 647.
On December 14, 2017, the Board issued its decision in
Boeing, supra, in which it overruled the “reasonably con-
strue” prong of the Lutheran Heritage framework and
announced a new standard that applies retroactively to all
pending cases. Under the standard announced in Boeing,
the General Counsel has not established that there are no
genuine issues of material fact and that either party is
entitled to judgment as a matter of law as to this com-
plaint allegation.
Accordingly, we deny without prejudice the General
Counsel’s request for summary judgment, and we will
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
remand this proceeding to the Regional Director for Re-
gion 31 for further action as she deems appropriate.8
ORDER
IT IS ORDERED that the Respondents’ Motion for Partial
Summary Judgment is denied.
IT IS FURTHER ORDERED that the General Counsel’s re-
quest for summary judgment is denied without prejudice,
and these proceedings are remanded to the Regional Di-
rector for Region 31 for further appropriate action.
Dated, Washington, D.C. December 4, 2018

8 In view of our determination herein, we find it unnecessary to ad-
dress the Respondents’ argument that the General Counsel’s request for
summary judgment is procedurally improper under Sec. 102.24(a) of
the Board’s Rules and Regulations.
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD