Grill Concepts Services, Inc. d/b/a The Daily Grill

National Labor Relations Board - Board Decisions

Jun 29, 2016

364 N.L.R.B. 36 (N.L.R.B. 2016)

364 NLRB No. 36
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.
Grill Concepts Services, Inc. d/b/a The Daily Grill
and Unite Here, Local 11. Cases 31–CA–126475,
31–CA–132845, and 31–CA–135061
June 30, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On August 6, 2015, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent and
the General Counsel each filed exceptions, a supporting
brief, and an answering brief. The Charging Party filed
cross-exceptions and a supporting brief, the Respondent
filed an answering brief, and the Charging Party filed a
reply brief.1
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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,2
and conclusions only to the extent consistent with this
Decision and Order, to amend the remedy, and to adopt
the judge’s recommended Order as modified and set
forth in full below.3
Introduction
The judge found that the Respondent violated Section
8(a)(1) of the Act by making implied threats of job loss,
soliciting employee complaints and grievances, interro-
gating employees about their union activities and the
union activities of other employees, creating the impres-

1 The Charging Party filed a motion to strike portions of the Re-
spondent’s answering brief to the General Counsel’s exceptions for
asserting facts not in evidence. We find it unnecessary to pass on this
motion because the Board does not consider facts not supported by the
record. Sunshine Piping, 351 NLRB 1371, 1372 fn. 12 (2007). Fur-
thermore, we note that the additional facts asserted, even if true, would
not affect the result in this case. See J&J Snack Foods Handhelds
Corp., 363 NLRB No. 21, slip op. at 1 fn. 1 (2015).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We have amended the judge’s conclusions of law consistent with
our findings. We shall also modify the judge’s recommended Order to
conform to our findings and to the Board’s standard remedial language
and in accordance with our decision in Guardsmark, LLC, 344 NLRB
809, 812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007).
We shall substitute new notices to conform to the Order as modified.
sion that employees’ union activity was under surveil-
lance,4 promising employees several benefits in order to
discourage union support,5 and promulgating and main-
taining overly broad employee work rules6 and an unlaw-
ful arbitration agreement.7 We agree with these findings.

4 We agree with the judge that Area Manager Robert Robertson
gave employee Salvador Tello the impression that his union activities
were under surveillance when Robertson informed Tello that he, Rob-
ertson, had seen a video of Tello’s participation in a union-sponsored
employee protest at the facility and that he was surprised by Tello’s
involvement with the Union. In addition to the reasons given by the
judge, we find that the coerciveness of Robertson’s statements was
heightened by the fact that, in the same conversation, Robertson unlaw-
fully interrogated Tello about his own and his coworkers’ union activi-
ty.
5 No exceptions were filed to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(1) by unlawfully providing a
benefit to employees in the form of $100 gift cards.
Because we agree with the judge that the Respondent violated Sec.
8(a)(1) by promising several benefits to all employees in April and July
in order to dissuade employee support for the Union, we find it unnec-
essary to pass on the judge’s finding of an additional promise of a bene-
fit to employee Alfredo Mejia in early April, when Area Manager Rob-
ert Robertson promised that he would end retaliation practices, as any
such finding would not affect the remedy.
6 No exceptions were filed to the judge’s finding that the last para-
graph of the “Team Member Relations/Positive Culture” rule is lawful,
or to her finding that the provision in the “Team Member Conduct” rule
prohibiting conduct that would jeopardize “the welfare and/or reputa-
tion” of the Respondent is lawful.
Member McFerran joins her colleagues in finding the “Team Mem-
ber Relations/Positive Culture” rule unlawfully overbroad, but in doing
so she relies only on the first and second paragraphs of that rule, which
caution employees to “respectfully” communicate with their managers
about workplace concerns, including specifically “concerns about
working conditions.” She further observes that the first paragraph
instructs employees to voice workplace concerns “directly to” man-
agement personnel, reasonably implying that those concerns should not
be raised with other employees or third parties, such as unions. See
Hyundai America Shipping Agency, Inc., 357 NLRB 860, 871–872
(2011).
In affirming the judge’s findings that the “Progressive Discipline:
Gross Misconduct” and “Timekeeping” rules were unlawful, we do not
rely on DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54
(2013), which was decided by a panel that included Board Members
who were not validly appointed, or on Tecumseh Packaging Solutions,
Inc., 352 NLRB 694 (2008), which was decided by a two-Member
Board.
Unlike the judge and his colleagues, Chairman Pearce would addi-
tionally find the “Use of Your Likeness” rule to be unlawful. That rule
authorizes the Respondent to use an employee’s likeness for “Team
Member programs, company recruiting materials, etc.” He finds that
an employee would reasonably read the rule to permit the Respondent
to use his or her likeness for campaign propaganda. See Care One at
Madison Ave., 361 NLRB No. 159, slip op. at 1, 15–16 (2014).
7 The judge found, applying the Board’s decisions in D. R. Horton,
Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344
(5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014),
enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), that the
Respondent violated Sec. 8(a)(1) of the Act by promulgating and main-
taining a dispute resolution arbitration agreement that requires employ-
ees, as a condition of employment, to waive their rights to pursue class
or collective actions involving employment-related claims in all fo-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The General Counsel excepts, and the Charging Party
cross-excepts, to the judge’s finding that the Respondent
demonstrated special circumstances that justified its
promulgation and maintenance of a rule prohibiting em-
ployees from wearing union buttons on their uniforms.
In addition, the General Counsel excepts to the judge’s
further finding that the Respondent lawfully enforced
and threatened to enforce this prohibition. As explained
below, we find merit in these exceptions and find the
violations alleged.
Promulgation and Maintenance of Rule Prohibiting
Union Buttons
The Respondent’s employee handbook regulates the
uniforms to be worn by its employees. The handbook
does not contain a written proscription on buttons, pins,
or other insignia. In the past, the Respondent has al-
lowed its employees to wear certain buttons, such as
“trainer” pins and anniversary pins. A few weeks into
the Union’s organizing campaign, some employees be-
gan wearing prounion buttons. These buttons were ap-
proximately one inch in diameter and had the Union’s
name in red and black lettering on a white background or
in white and black lettering on a red background. When-
ever employees were seen wearing such buttons, the Re-
spondent’s supervisors sent them home early or threat-
ened to discipline them if they wore a union button
again; that is, the Respondent imposed a de facto rule
prohibiting the wearing of union buttons.
It is well settled that an employer violates Section
8(a)(1) when it prohibits employees from wearing union
insignia at the workplace, absent special circumstances.
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–
803 (1945); Boch Honda, 362 NLRB No. 83, slip op. at
2–3 (2015), enfd. ___ F.3d ___ (1st Cir., June 17, 2016).
The Board has recognized that such special circumstanc-

rums, whether arbitral or judicial. We affirm this finding, based on the
judge’s application of D. R. Horton and Murphy Oil. See also Lewis v.
Epic Systems, ___ F.3d ___ (7th Cir. 2016) (holding that mandatory
individual arbitration agreement violates the National Labor Relations
Act and is unenforceable under the Federal Arbitration Act).
The Respondent contends that the opt-out provision of its arbitration
agreement places it outside the scope of D. R. Horton and Murphy Oil.
The Board has rejected this argument, holding that an opt-out proce-
dure still imposes an unlawful mandatory condition of employment that
falls squarely within the rule of D. R. Horton and Murphy Oil. See On
Assignment Staffing Services, 362 NLRB No. 189, slip op. at 1, 4–5
(2015), enf. denied No. 15–60642 (5th Cir. June 6, 2016). The Board
further held in On Assignment Staffing Services, slip op. at 1, 5–8, that
even assuming that an opt-provision renders an arbitration agreement
not a condition of employment (or nonmandatory), an arbitration
agreement precluding collective action in all forums is unlawful even if
entered into voluntarily because it requires employees to prospectively
waive their Sec. 7 right to engage in concerted activity. See also Nijjar
Realty, Inc., d/b/a Pama Management, 363 NLRB No. 38 (2015).
es exist when the display of union insignia “may jeopard-
ize employee safety, damage machinery or products,
exacerbate employee dissension, or unreasonably inter-
fere with a public image that the employer has estab-
lished, as part of its business plan, through appearance
rules for its employees.” Bell-Atlantic-Pennsylvania,
339 NLRB 1084, 1086 (2003), enfd. sub nom. Commu-
nications Workers of America, Local 13000 v. NLRB, 99
Fed. Appx. 233 (D.C. Cir. 2004). However, a rule that
curtails employee Section 7 rights to wear union insignia
must be narrowly tailored to the special circumstances
justifying the rule. Boch Honda, supra, slip op. at 2. In
analyzing an employer’s public image justification, the
Board considers the appearance and message of the in-
signia to determine if it interferes with the employer’s
desired public image. See United Parcel Service, 312
NLRB 596, 597 (1993), enf. denied 41 F.3d 1068 (6th
Cir. 1994). Neither the fact that employees are required
to wear a uniform, nor the fact that customers may be
exposed to union insignia, is alone sufficient to constitute
special circumstances. P.S.K. Supermarkets, 349 NLRB
34, 35 (2007). The employer bears the burden of proving
such special circumstances. Pathmark Stores, Inc., 342
NLRB 378, 379 (2004).
The Respondent asserted, and the judge found, that the
Respondent had demonstrated special circumstances be-
cause permitting employees to wear union buttons on
their uniforms while interacting with customers would
unreasonably interfere with the Respondent’s public im-
age as a “traditional American grill restaurant” where
customers could come to get “predictable, reliable” ser-
vice, and the servers’ role is to “be seen and not heard”—
to “deliver food and [] not make any statements of any
kind, other than supporting our restaurant.” We disagree.
The Respondent presented no evidence on how the Un-
ion’s small, inconspicuous, and non-inflammatory but-
tons would unreasonably interfere with a server’s ability
to provide reliable service or interfere with the Respond-
ent’s public image. If we were to find special circum-
stances here, the exception would become so broad as to
ultimately consume the rule.
The Board’s decision in W San Diego, 348 NLRB 372
(2006), which was relied on heavily by both the judge
and the Respondent, is readily distinguishable. There, the
Board found that special circumstances existed where the
employer’s aim was to provide an “alternative hotel ex-
perience referred to as ‘Wonderland’ where guests
[could] fulfill their ‘fantasies and desires’ and get ‘what-
ever [they] want whenever [they] want it.’” Id. In Boch
Honda, supra, the Board emphasized that W San Diego
was based on “narrow factual circumstances.” 362
GRILL CONCEPTS SERVICES 3
NLRB No. 83, slip op. at 2 fn. 6. Here, the Respondent
provided no comparable evidence.
For these reasons, we find that the Respondent has not
demonstrated special circumstances justifying its rule
prohibiting employees from wearing union buttons on
their uniforms, and, accordingly, we find that the Re-
spondent’s promulgation and maintenance of its rule
violated Section 8(a)(1). 8
Enforcement of Rule Prohibiting Union Buttons
Because we find that the Respondent unlawfully main-
tained a rule prohibiting employees from wearing union
buttons on their uniforms, we further find that the Re-
spondent violated Section 8(a)(3) and (1) when it disci-
plined employees Salvador Tello, Alfredo Mejia, Sandra
Diaz, Danielle Sanchez, and Madcadel Goytia for violat-
ing the rule. The Respondent also violated Section
8(a)(1) by threatening to discipline Diaz if she wore a
union button on her uniform again. See Continental
Group, 357 NLRB 409, 412 (2011).
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Grill Concepts Services, Inc.,
d/b/a The Daily Grill, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Unite Here, Local 11 is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
making implied threats of job loss; soliciting employee
complaints and grievances; interrogating employees
about their union activities and the union activities of
other employees; creating the impression that employees’
union activity was under surveillance; promising em-
ployees reconsideration of cutbacks to their hours and a
new way to request time off, implementing time-and-a-
half pay for holidays and a greater employee discount for
food at its restaurants, and announcing the opportunity
for employees to sign up for healthcare benefits, in order
to discourage support for the union; promulgating and
maintaining overly broad rules; promulgating and main-
taining a rule prohibiting employees from wearing union
buttons on their uniforms; threatening to discipline em-
ployees for wearing union buttons; and promulgating and
maintaining an unlawful dispute resolution arbitration
agreement.

8 Because we find that the Respondent failed to prove special cir-
cumstances that would warrant such a rule, we find it unnecessary to
pass on the General Counsel’s alternative argument that the rule was
unlawfully promulgated in response to the employees’ union activity.
See Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act by disciplining employees for wearing union buttons.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
AMENDED REMEDY
In addition to the remedies provided in the judge’s de-
cision, we shall order the Respondent to cease and desist
from the additional violations found herein. Specifically,
we shall order that the Respondent rescind its rule pro-
hibiting employees from wearing union buttons on their
uniforms, and that it cease and desist disciplining and
threatening to discipline employees for wearing union
buttons. Because the violations found do not involve a
cessation of employment, backpay shall be computed in
accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). Additional-
ly, we shall order the Respondent to compensate Salva-
dor Tello, Alfredo Mejia, Sandra Diaz, Danielle Sanchez,
and Madcadel Goytia for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and to
file a report with the Regional Director allocating the
backpay awards to the appropriate calendar year for each
employee. AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016). The Respondent shall also be required to
remove from its files any and all references to the unlaw-
ful discipline imposed on these employees, and within 3
days thereafter to notify them in writing that this has
been done and that the discipline will not be used against
them in any way.
We also find that companywide notice posting is ap-
propriate because the record shows that the Respondent’s
unlawful arbitration agreement and unlawful work rules
contained in the employee handbook apply to employees
at all of the Respondent’s restaurants. “[W]e have con-
sistently held that, where an employer’s overbroad rule is
maintained as a companywide policy, we will generally
order the employer to post an appropriate notice at all of
its facilities where the unlawful policy has been or is in
effect.” MasTec Advanced Technologies, 357 NLRB
103, 109 (2011) (quoting Guardsmark, LLC, 344 NLRB
809, 812 (2005), enfd. in relevant part 475 F.3d 369
(D.C. Cir. 2007)). Accordingly, we shall order that the
Respondent post a notice at all locations where the arbi-
tration agreement and overly broad employee work rules
were in effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that the
Respondent, Grill Concepts Services, Inc., d/b/a The
Daily Grill, Los Angeles, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Disciplining employees for wearing union buttons
or otherwise engaging in union activities.
(b) Threatening employees with discharge or disci-
pline if they wear union buttons on their uniforms or en-
gage in other union activities.
(c) Soliciting employee complaints and grievances
and promising to remedy them in order to discourage
employees from selecting union representation.
(d) Coercively interrogating employees about their un-
ion activities and the union activities of other employees.
(e) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(f) Granting benefits to employees in order to discour-
age employees from selecting union representation.
(g) Promulgating and maintaining a rule prohibiting
employees from wearing union buttons on their uni-
forms.
(h) Promulgating and maintaining rules which em-
ployees would reasonably construe to discourage engag-
ing in union or other protected concerted activities, and
specifically the following overly broad employee hand-
book rules:
i. A “Team Member Relations/Positive Culture” rule
that requires employees to interact with management
respectfully;
ii. A “Timekeeping” rule that prohibits employees
from loitering on the employer’s premises;
iii. A “Code of Ethics: Relationships with Outside Par-
ties” rule that prohibits employees from entertaining
union officials;
iv. A “Team Member Conduct While Representing the
Restaurant” rule that prohibits any negative behavior
by employees;
v. A “Progressive Discipline: Gross Misconduct” rule
that prohibits employees from disclosing confidential
information, including employee information, and re-
quires mandatory participation in employer investiga-
tions;
vi. An “Online Communications” rule that prohibits
employees from disclosing confidential information,
including employee information, and the communica-
tion of untrue information; and
vii. A “Solicitation” rule that prohibits solicitation by
off-duty employees in work areas during non-work
time.
(i) Promulgating and maintaining a mandatory arbitra-
tion agreement that employees reasonably would believe
bars or restricts the right to file charges with the National
Labor Relations Board.
(j) Promulgating and maintaining a mandatory arbitra-
tion agreement that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions for employment-related claims in all fo-
rums, whether arbitral or judicial.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Salvador Tello, Alfredo Mejia, Sandra Diaz,
Danielle Sanchez, and Madcadel Goytia whole for any
loss of earnings and other benefits suffered as a result of
ending their scheduled shifts early, in the manner set
forth in the amended remedy section of this Decision.
(b) Compensate Salvador Tello, Alfredo Mejia, San-
dra Diaz, Danielle Sanchez, and Madcadel Goytia for the
adverse tax consequences, if any, of receiving a lump-
sum backpay award, and file with the Regional Director
for Region 31, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar year for each employee.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful disci-
pline and/or warnings, and within 3 days thereafter, noti-
fy the employees in writing that this has been done and
that the discipline and/or warnings will not be used
against them in any way.
(d) Rescind the rule prohibiting employees from wear-
ing union buttons on their uniforms.
(e) Rescind the rules listed in 1(h), above.
(f) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful rules have been rescinded, or (2) provide the lan-
guage of lawful rules; or publish and distribute a revised
employee handbook that (1) does not contain the unlaw-
ful rules, or (2) provides the language of lawful rules.
(g) Rescind the arbitration agreement in all of its
forms, or revise it in all of its forms to make clear to em-
ployees that the arbitration agreement does not constitute
a waiver of their right to maintain employment-related
joint, class, or collective actions in all forums, and that it
GRILL CONCEPTS SERVICES 5
does not bar or restrict employees’ right to file charges
with the National Labor Relations Board.
(h) Notify all current and former employees who were
required to sign or otherwise become bound to the man-
datory arbitration agreement in any form that it has been
rescinded or revised and, if revised, provide them a copy
of the revised policy.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facility in Los Angeles, California, copies of the at-
tached notice marked “Appendix A” in both English and
Spanish, and at all other locations where the unlawful
employee work rules and arbitration agreement have
been in effect, copies of the attached notice marked “Ap-
pendix B” in both English and Spanish.9 Copies of the
notices, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent 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. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
marked “Appendix A” to all current employees and for-
mer employees employed by the Respondent at any time
since October 12, 2013. If the Respondent has gone out
of business or closed any facilities other than the one
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
marked “Appendix B” to all current employees and for-

9 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.”
mer employees employed by the Respondent at those
facilities at any time since October 12, 2013.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 30, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 discipline or otherwise discriminate
against any of you for wearing union buttons on your
uniform, or otherwise engaging in union activity.
WE WILL NOT threaten you with discharge or discipline
if you wear a union button on your uniform, or otherwise
engaging in union activity.
WE WILL NOT solicit employee complaints and griev-
ances and promise to remedy them in order to discourage
you from selecting union representation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL NOT coercively interrogate you about your
union activities and the union activities of other employ-
ees.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT grant benefits to you in order to discour-
age you from selecting union representation.
WE WILL NOT promulgate or maintain a rule prohibit-
ing employees from wearing union buttons on their uni-
forms.
WE WILL NOT promulgate or maintain the following
rules which employees would reasonably construe to
discourage engaging in union or other protected concert-
ed activities, and specifically the following overly broad
employee handbook rules:
(i) A “Team Member Relations/Positive Culture” rule
that requires employees to interact with management
respectfully;
(ii) A “Timekeeping” rule that prohibits employees
from loitering on the employer’s premises;
(iii) A “Code of Ethics: Relationships with Outside
Parties” rule that prohibits employees from entertaining
union officials;
(iv) A “Team Member Conduct While Representing
the Restaurant” rule that prohibits any negative behav-
ior by employees;
(v) A “Progressive Discipline: Gross Misconduct” rule
that prohibits employees from disclosing confidential
information, including employee information, and re-
quires mandatory participation in employer investiga-
tions;
(vi) An “Online Communications” rule that prohibits
employees from disclosing confidential information,
including employee information, and the communica-
tion of untrue information; and
(vii) A “Solicitation” rule that prohibits solicitation by
off-duty employees in work areas during non-work
time.
WE WILL NOT promulgate or maintain a mandatory ar-
bitration agreement that our employees reasonably would
believe bars or restricts their right to file charges with the
National Labor Relations Board.
WE WILL NOT promulgate or maintain a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
employment-related class or collective actions in all fo-
rums, 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 make Salvador Tello, Alfredo Mejia, Sandra
Diaz, Danielle Sanchez, and Madcadel Goytia whole for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful discipline, plus interest.
WE WILL compensate Salvador Tello, Alfredo Mejia,
Sandra Diaz, Danielle Sanchez, and Madcadel Goytia for
the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file with the Re-
gional Director for Region 31, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline and/or warnings of Salvador Tello, Alfredo
Mejia, Sandra Diaz, Danielle Sanchez, and Madcadel
Goytia, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
discipline and/or warnings will not be used against them
in any way.
WE WILL rescind the rule prohibiting employees from
wearing union buttons.
WE WILL rescind the employee handbook rules listed
above.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful rules
have been rescinded, or (2) provide the language of law-
ful rules; or publish and distribute a revised employee
handbook that (1) does not contain the unlawful rules, or
(2) provides the language of lawful rules.
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 current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration agreement in all of its forms that
the arbitration agreement has been rescinded or revised
and, if revised, WE WILL provide them a copy of the re-
vised policy.
GRILL CONCEPTS SERVICES, INC., D/B/A THE
DAILY GRILL
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-126475 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
GRILL CONCEPTS SERVICES 7
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
APPENDIX B
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 promulgate or maintain the following
rules which employees would reasonably construe to
discourage engaging in union or other protected concert-
ed activities, and specifically the following overly broad
employee handbook rules:
(i) A “Team Member Relations/Positive Culture” rule
that requires employees to interact with management
respectfully;
(ii) A “Timekeeping” rule that prohibits employees
from loitering on the employer’s premises;
(iii) A “Code of Ethics: Relationships with Outside
Parties” rule that prohibits employees from entertaining
union officials;
(iv) A “Team Member Conduct While Representing
the Restaurant” rule that prohibits any negative behav-
ior by employees;
(v) A “Progressive Discipline: Gross Misconduct” rule
that prohibits employees from disclosing confidential
information, including employee information, and re-
quires mandatory participation in employer investiga-
tions;
(vi) An “Online Communications” rule that prohibits
employees from disclosing confidential information,
including employee information, and the communica-
tion of untrue information; and
(vii) A “Solicitation” rule that prohibits solicitation by
off-duty employees in work areas during non-work
time.
WE WILL NOT promulgate or maintain a mandatory ar-
bitration agreement that our employees reasonably would
believe bars or restricts their right to file charges with the
National Labor Relations Board.
WE WILL NOT promulgate or maintain a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
employment-related class or collective actions in all fo-
rums, 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 employee handbook rules listed
above.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful rules
have been rescinded, or (2) provide the language of law-
ful rules; or publish and distribute a revised employee
handbook that (1) does not contain the unlawful rules, or
(2) provides the language of lawful rules.
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 current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration agreement in all of its forms that
the arbitration agreement has been rescinded or revised
and, if revised, WE WILL provide them a copy of the re-
vised policy.
GRILL CONCEPTS SERVICES, INC., D/B/A THE
DAILY GRILL
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-126475 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Nicole M. Pereira, Esq., and Marissa Dagdagan, Esq., for the
General Counsel.
Karl Terrell, Esq., Arch Stokes, Esq., Patricia O’Rourke, Esq.,
(Stokes, Wagner, Hunt, Maretz, and Terrell), for the Re-
spondent.
Jeremy Blasi, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Los Angeles, California, on April 13–15, 2015. Unite
Here, Local 11 (the Charging Party or Union) filed charges and
amended charges in the above-captioned cases on various dates
between April 11, 2014, and November 20, 2014.1 The Gen-
eral Counsel consolidated the charges and issued on January
30, 2015. Grill Concepts, Inc. (the Respondent or Company)
filed a timely answer on February 13, 2015, denying all materi-
al allegations and setting forth affirmative defenses. On March
27, 2015, the General Counsel amended the complaint. The
Respondent filed a timely answer admitting the amended alle-
gation and incorporating its prior affirmative defenses.
The amended complaint (complaint) alleges that the Re-
spondent violated the National Labor Relations Act (the Act or
NLRA) by promulgating, maintaining, and enforcing unlawful
rules, threatening employees, soliciting complaints and griev-
ances from employees, interrogating employees, creating the
impression that employees’ union and other protected concerted
activities were under surveillance, making promises to employ-
ees to discourage support for the Union, and granting employ-
ees benefits to discourage support for the Union. Some allega-
tions allege violation of Section 8(a)(1), and others allege viola-
tion of Section 8(a)(3) and (1) of the Act, as detailed below.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Los Angeles, California, is engaged in the nation-
wide operation of restaurants. The Respondent admits, and I
find, that it 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.

1 All dates are in 2014 unless otherwise indicated.
II. STATEMENT OF FACTS
A. Background and the Respondent’s Operations
Grill Concepts is comprised of 33 restaurants throughout the
country. Its corporate offices are in Woodland Hills, Califor-
nia. Robert Spivak is Grill Concepts’ founder, president and
CEO. Tom Kachani is the vice president of operations, and
Chris Gehrke is the vice president of human resources. Kachani
and Gehrke report to Spivak. Area directors oversee groups of
restaurants. Each restaurant has a general manager who reports
to the area manager. The shift supervisors at each restaurant
report to the restaurant’s general manager.
When Spivak began his first restaurant in 1984, his vision
was to create “a traditional American grill where the answer is
yes, what is the question, and the guest is always right.” (Tr.
263–264, 268.)2 Grill Concepts’ mission statement is “Take
care of the guests, respect the Team Member, and the rest will
take care of itself.” (GC Exh. 2, p.2; Tr. 277–278, 318, 325.)
The restaurant primarily at issue in the instant complaint is
the Daily Grill on Century Boulevard (Century Daily Grill),
which is located in the Westin Hotel adjacent to Los Angeles
International Airport (LAX). Grill Concepts leases space from
the Westin, but the two are separate entities. The Century Dai-
ly Grill opened in April 2010, and serves breakfast, lunch, and
dinner. It employs roughly 80 hourly employees.
During the relevant time period, Michael Burnett and Will
White served as consecutive general managers at the Century
Daily Grill.3 (Tr. 280.) They reported to Robert Robertson,
who was the area director of four restaurants, including Century
Daily Grill.4 Shift Supervisors Grace Troung and Kevin
O’Daniel, admitted agents of the Respondent, also worked at
the Century daily Grill during the relevant time period. (Tr. 29.)
The Century Daily Grill serves as the training restaurant for
new managers. The general manager oversees the training,
which includes the technical aspects of the job as well as ex-
porting the Company’s culture to the other restaurants. (Tr.
323.)
The Respondent conducts regular surveys in order to gauge
employee satisfaction in a number of areas, including benefits.
The surveys indicated a decline in employee satisfaction on a
company-wide basis from 2010–2014. (R. Exh. 1; Tr. 412.)

2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for the Respondent’s exhibit; “GC Exh.” for the Gen-
eral Counsel’s exhibit; “CP Exh.” for Charging Party’s exhibit; “GC
Br.” for the General Counsel’s brief; “R. Br.” for the Respondent’s
brief, and “CP Br.” for the Charging Party’s brief. Although I have
included several citations to the record to highlight particular testimony
or exhibits, I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited but rather are based my review
and consideration of the entire record.
3 At the time of the hearing, Burnett was area director with oversight
of 4 restaurants, including the Century Daily Grill.
4 The parties have stipulated that Robert Robertson, Michael Burnett,
Thomas Kachani, Bob Spivak, and Will White are agents of Respond-
ent as defined in Sec. 213 of the Act and supervisors of Respondent
within the meaning of Sec. 211 of the Act. (Tr. 29.)
GRILL CONCEPTS SERVICES 9
B. The Union
Individuals from the Union approached Madcadel5 Goytia
and a coworker in September 2013. Goytia and about 8 other
employees were part of an organizing committee that worked
under organizer Alex Sandoval. (Tr. 93.)
Late in the afternoon on February 18, 2014, a group of em-
ployees including Goytia, Salvador Tello, Alfredo Jimenez,
Alfredo Mejia, Marcel Escobar, Albert Lazaro, Ramin Azad,
Danielle Sanchez, and Sandra Diaz, approached Will White in
the restaurant’s office. He and the group moved to the restau-
rant’s side entrance. Goytia said he was representing the work-
ers and they wanted to unionize. White said nothing and re-
turned to his office. (Tr. 48–49; 131–132.) The employees
were informed that Kachani was in the restaurant and was will-
ing to see them.
The group of employees, along with some community mem-
bers, proceeded to the dining room where Kachani and another
man were seated. Some of the individuals wore union buttons.6
Azad stated that he was very displeased his hours had been cut
for the purpose of making him ineligible for healthcare bene-
fits. He expressed his belief that he had become a number ra-
ther than a person. Diaz introduced herself and said she
worked for the Company as a busser. She said she was very
worried for her insurance, and expressed that employees were
doing more work in fewer hours. Danielle Sanchez spoke next.
She introduced herself and expressed her perception that she
had unfairly received discipline. Tello said he did not feel like
he had the right to speak and complained that his hours had
been cut. Lazaro introduced himself and said he wanted health
insurance for his coworkers and himself. Goytia introduced
himself, and said he had been punished, he works hard for the
Company, and the Company wanted to take away his voice. He
said the Company had done well the previous year, yet it was
the worst year for the employees. Goytia complained that the
Company cut working hours, took away health benefits, failed
to respect breaks, and overworked the employees. Mejia spoke
next, stating he has been working in a hostile environment.
Some community members also spoke. (R. Exh. 12.) At the
end of the meeting, Goytia asked for assurance there was not
going to be any intimidation or retaliation for employees trying
to unionize. Kachani said there would not be. (Tr. 50–51.)
Spivak and Burnett were informed of the encounter. (Tr.
292, 330–331.) Burnett informed Robertson about it, and this
was the first Robertson had heard of activity involving a union
at the Century Boulevard Daily Grill. (Tr. 361.) No other simi-
lar events occurred in the Respondent’s other restaurants during
this time period.
Kachani contacted Gehrke and informed him of the encoun-
ter. (Tr. 348.) On February 18 at 5:19 p.m., White sent Gehrke
an email, cc’d to Burnett and Kachani, identifying the employ-
ees who confronted Kachani and indicating when they next
worked. (CP Exh. 7.) At 7:13 p.m., White sent another email
to Gehrke, cc’d to Burnett, Kachani, and Robertson, stating he
would send the schedule when it was finished so that Gehrke

5 Madcadel Goytia is often referred to by his nickname, “Mad.”
6 It is unclear whether any of these individuals were Daily Grill em-
ployees.
could talk with the staff the following week. White also stated
that Azad had mentioned to him that “they” intended to get
media coverage, the incident that day was only the beginning,
and they had signed up a few more employees for this “move-
ment.” White suggested that Gehrke speak to Azad the follow-
ing day, and advised human resources to talk to the entire staff
to get a sense of how many employees were involved in this
movement. (CP Exh. 9.) At 9:05 p.m., Gehrke responded to
White’s 5:19 p.m. email, stating he would talk with some of the
employees the following day, and schedule the remainder for
the following week. (CP Exh. 7.)
On February 20, 2014, Gehrke sent Kachini a link to the Un-
ion’s Facebook posting of the video of the group’s February 18
interaction with Kachani. (CP Exh. 6.)
Robertson was concerned that the employees were unhappy.
He met with the Company’s lawyers to determine what he
could and could not do. He was instructed to follow the “no
SPIT” rule, meaning he should not spy, promise, interrogate, or
threaten. Robertson had one-on-one meetings with every hour-
ly employee and a couple of group meetings. The one-on-one
meetings were to determine why the employees were frustrated
and to ensure team members understood the unionization pro-
cess. (Tr. 363–365.)
On February 24, Gehrke distributed a document called
“Team Member Talking Points—Daily Grill on Century” to
Kachani, Robertson, and Burnett, with copies to Spivak and
some other individuals. He informed the recipients that the
document represented the talking points regarding the union
organizing attempt at Century, and said it could be used as a
reference for the one-on-one conversations that would be taking
place with each of the hourly team members. Gehrke instructed
the recipients to ensure every management member understood
the talking points. Gehrke also referenced information sheets
about health insurance. (CP Exh. 1.)
The talking points set forth the Company’s position that it
does not want a union coming to the restaurant. The document
discusses the Company’s position that the Union is a waste of
money and time. It instructs to inform employees they have a
right to have their complaints heard, and emphasizes that the
Company will do its best to respond. The talking points hit on
employee benefits, and discuss how the Affordable Care Act is
the law, whether or not there is a union. The talking points note
that the employer can always say no at the bargaining table, and
the union might hold out for a provision that would force the
Respondent to fire any employee who failed to pay dues each
month. The document accurately reflects the Respondent’s
views on unionization. (CP Exh. 2; Tr. 304–306.)
C. The Uniform and Union Buttons
Grill Concepts servers and bussers wear uniforms consistent
with the Company’s uniform policies. Servers wear a white
button-down long-sleeved dress shirt, black shoes, black pants,
a brown vest, and a black apron. The Company provides the
vest and the apron. The server purchases the other pieces of the
uniform based on specifications the Company provides. (Tr.
183, 267.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
According to the uniform standards, the shirt must be
pressed and cannot be patterned or have a flared collar.7 The
uniform standards suggest dry cleaning the shirt with heavy
starch on the collar. The vest the Company provides must fit
properly and be clean, well-maintained, and buttoned. The
servers at hotel properties, including the Century Daily Grill
must wear dress slacks which cannot be denim.8 Any belts
must be black with no patterns. The shoes must be rubber-
soled and slip resistant, with no shiny buckles or non-black
colors. Black socks must be long enough to cover any skin.
The Company-provided apron must be clean and well-
maintained, and must cover the server’s waistline and belt, if
worn. Server order books are to be placed between the apron
and belt, and not between the pants and the body. Aprons are
to be cross-tied in the back with a knot in the front and tucked
under the apron so it is not visible. The trainers must carry a
wine tool, Company-provided crumber, and up to 4 black pens.
Any trainer pins are to be worn on the left collar. (GC Exh. 3.)
The servers do not wear name tags or any other buttons or in-
signia.
Bussers wear a black shirt, a black jacket, black pants, black
socks, and black shoes (GC Exh. 3; Tr. 245). Respondent only
provides bussers with the black jacket. (Tr. 339.)
There are specific personal appearance standards for men
and women addressing things such as hair, jewelry, and tattoos.
Employees are instructed to consult with their managers if they
have questions, and informed that managers have authority of
what is considered appropriate for their restaurants based on
guest satisfaction, dress code requirements, and safety/health
concerns. (GC Exh. 3.)
Spivak’s reason for adherence to the uniform policy is that
the servers’ job is “to provide service to deliver food and not to
make any statements of any kind, other than supporting our
restaurant.” (Tr. 267.) He elaborated:
There’s an old standard and I guess I qualify as an old restau-
rant person, that servers are to be seen and not heard. We
don’t—we don’t allow our servers to fraternize with our
guests. We really want them to be seamless and we’re there
because of the food and the service that we provide and we’re
pretty rigid on that.”
(Tr. 268.)
Burnett stated that the uniform needs to be “clean, correct
and complete,” which means “[t]here’s nothing missing that
should be there and there’s nothing additional that shouldn’t be
there.” (Tr. 320.) The uniform is in line with the Company’s
philosophy that before the customers come through the door,
they know what they’ll get in terms of food, service, and at-
mosphere.
Burnett enforces the uniform standards at the Century Daily
Grill. (Tr. 322.) Prior to the beginning of service, the employ-
ees engage in a practice called “huddle up” where they discuss
the specials of the day, the soup of the day, and the expected

7 Burnett said the white shirt was a non-button oxford style shirt with
no buttons at the collar. (Tr. 321.)
8 Servers at the Respondent’s “Public School” restaurants wear dark
blue non-faded denim.
volume in the restaurant. During this time, management looks
at the personal appearance of the team. (Tr. 329.) Burnett
points out both positive and negative compliance.
Goytia has worked for the Daily Grill since 2003, and at the
Century Daily Grill since it opened in April 2010.9 He has
purchased several pairs of pants to wear to work, but wears two
pair most often: Louis Raphael pants made of polyester and
Dockers pants made of cotton. The Louie Raphael pants are
glossier than the Dockers pants.
Server Ramin Azad has worked for the Company for about 8
years, and has been at the Century Daily Grill since it opened.
He has seven white shirts he wears to work. They are different
brands. Some have pockets and others do not. (Tr. 209–210.)
Busser Salvador Tello has worked for the Company since
2008 and at the Century Daily Grill since it opened. He wears
six pairs of pants, made of different materials, to work.
On March 24, Tello was scheduled to work from 5:30–11:30
a.m. He wore a round white pin on the pocket of his shirt. The
pin was about an inch in diameter and said, “UNITE HERE!
LOCAL 11” in red and black lettering. (GC Exh. 4; Tr. 135–
136.) At about 9:30, Robertson approached him and told him
he could not wear the button. Tello called the union office and
spoke to Sandoval, who informed Tello he had the right to wear
the button. Robertson again approached Tello about the button,
and Tello reiterated that he had the right to wear it. Robertson
told Tello he needed to “decide if I continue with the Union or I
continue with the Grill.” Robertson said he needed to call his
lawyer. About 20 minutes later, Robertson told Tello he had to
take the pin off or go home. (Tr. 137–139, 327.) Tello clocked
out at about 10. (Tr. 140.) He was only paid for the hours he
worked, and did not receive tips.
Busser Sandra Diaz worked 5:30–11:30 a.m. on March 25.
She wore the same union button on the corner of her jacket
pocket. She believed the shift supervisor “Mary” saw the pin
because everyone greets each other in the mornings and the
place is very small. (Tr. 249–250.)
On March 25, Tello worked 10:45 a.m. to 4:45 p.m. He
wore an anniversary pin he had received a couple of months
before. The pin was roughly an inch wide, and indicated 5
years of service. (GC Exh. 8.) Burnett approached Tello and
said, “Here you go again with your union pin.” (Tr. 144.)
Tello said it was not the union pin, but was the anniversary pin
Burnett had given him. At around 11:30, Tello put on his union
button and continued to wear his anniversary pin. At about
noon, White approached him and told him he had to take the
union button off. Tello told White he had a right to wear the
union button. White went back to the office, and Burnett came
out and told Tello he had to take off the union button, and it
was better if he took off both pins. Burnett sent Tello home,
and Tello asked for documentation to show he was being sent
home. Burnett asked if he was sure, stating he did not want to
write Tello up. Tello worked for another 15–20 minutes, when
Burnett called him to his office and presented him with a writ-
ten warning for declining to remove an unauthorized pin from
his uniform. Tello declined to sign the warning, and clocked

9 Goytia has been on medical leave since the last week of January
2015.
GRILL CONCEPTS SERVICES 11
out at around 12:30. (GC Exh. 5; Tr. 145–151.) He was paid
only for the hours he worked and did not receive tips.
Sanchez came to work at noon on March 25. She was
scheduled to work until 4 p.m. She saw Tello leaving work,
and he informed her that he was being sent home for wearing
the button. Sanchez said she would wear hers to see what hap-
pened. (Tr. 189.) She put on the button, and when Burnett
passed her in the hallway of the beverage station, she turned
toward him. He told her that she needed to take off the button
or she would be sent home. When Sanchez informed Burnett
she would not take off her button, he told her to clock out and
go home. Sanchez was paid only for the 20 minutes she
worked, and did not receive tips. (Tr. 190–191.)
Burnett said he saw the button during “huddle up” and asked
Diaz to remove it. Diaz said she had a right to wear it, and
Burnett agreed, but stated that right did not extend to the restau-
rant floor during service. He offered her the choice of remov-
ing the button or going home.10 (Tr. 329.)
Diaz wore her union button again on March 26. At about
8:30 a.m., Supervisor Truong told her to come to her office.
Truong told Diaz she could not work if she was wearing the
union button because Company policy did not allow pins. Diaz
asked under what circumstances she could wear a pin, and Tru-
ong responded that employees could wear anniversary pins.
Diaz asked for something in writing if she was being sent
home. Truong told Diaz she was going to speak to Robertson
to be sure she was sending her home. Diaz returned to work
wearing her button. Truong approached her again and told her
she would receive a written warning if she wore the button the
next day. Diaz was scheduled to work until 11:30 but she
punched out at about 8:45. She was paid for the hours she
worked. (Tr. 250–253.)
On March 28, server Alfredo Mejia was scheduled to work
the dinner shift. He wore the same union pin Sanchez and
Tello had previously worn. White approached Mejia at about
5:15, and told him to remove the pin because it was not part of
his uniform. Mejia said he would not remove the pin, and
White sent him home. Mejia showed White a poster explaining
rights under the NLRA, including the right to wear a union pin.
Mejia was paid only for the time he worked, and he received
tips. (Tr. 221–224.)
At 12:52 a.m. on March 29, White sent Gehrke an email tell-
ing him that he sent Mejia home and explaining the poster
Mejia had shown him. He asked for advice regarding team
members wearing pins. Gehrke responded that the poster was
struck down by the courts, including the provision about the
pins. (CP Exh. 8.)
Mejia sent White an email at 7:29 p.m. on March 29 request-
ing, in relevant part, to be compensated for the loss of income
from being sent home the previous day. On April 2, White
responded and informed Mejia that he would not be compen-
sated for the time he was sent home for being out of uniform.
White noted that the uniform policy is very specific, prohibiting

10 The slight discrepancy of when Burnett told Sanchez to remove
the button is not material to my findings in this decision. I credit
Sanchez’ version, however, because she provided specific and unrefut-
ed testimony that she was paid for working 20 minutes.
employees from wearing buttons or pins in front of guests. He
informed Mejia that he could wear a pin or button when he was
on a break or otherwise not in front of guests, and attached a
copy of the Respondent’s personal appearance standards. (GC
Exh. 10.)
On March 30, Goytia wore a union button like the one Tello
had previously worn. He placed it over his vest in his chest
area. At around noon, O’Daniel told Goytia he was not permit-
ted to wear the pin. Goytia said he would not remove the pin
willingly, and at Goytia’s suggestion, O’Daniel sent Goytia
home. Goytia asked for documentation to show he was being
sent home, and O’Daniel handed him a piece of paper with the
phone number of Melinda Sharan, a human resources repre-
sentative. Goytia transitioned his tables to another server. As
he was leaving, O’Daniel told him he had nothing against him
personally. Goytia was only paid for the time he worked and he
did not receive tips. (Tr. 52–55.)
In 2013, Goytia had worn 5-year and 10-year anniversary
pins bearing the Grill Concepts logo to work. The pins were
roughly an inch wide. (Tr. 57–60; GC Exhs. 7–8.) Other serv-
ers wore anniversary pins. He was not aware of a rule or policy
prohibiting pins.
Busser Sandra Diaz wore a gold angel pin measuring just
over ½ inch on her on the left corner pocket of her uniform.
(Tr. 246–247.) Burnett denied seeing the pin. He would have
asked that it be removed because there are no overt expressions
of religion allowed. (Tr. 334.) Diaz recalled seeing Burnett
wear a clover pin for St. Patrick’s Day; Burnett denied wearing
a St. Patrick’s Day pin. (Tr. 248, 396.)
Westin hotel employees have a similar uniform, but the vest
is darker. The Westin employees are frequently in the restau-
rant retrieving bread or room order items. Hotel employees
wear Unite Here buttons inside the restaurant. (Tr. 84–85.)
Servers who are training other servers wear pins identifying
them as trainers. Some servers also possibly wore lobster pins
when promoting a menu item. (Tr. 288–290.) Burnett never
saw a trainer pin at the Century Daily Grill. (Tr. 329.)
D. Conversations in Early April
In early April, Robertson approached Mejia and asked him to
follow him to the boardroom, which is a private dining room.
He told Mejia how much the Union would cost him and the
Company. Mejia responded that he knew the costs because he
was already a union member.11 Robertson continued to talk
about the Union, and Mejia told him he was on the clock so he
did not want to discuss the Union. Robertson asked why Mejia
wanted the Union at the Daily Grill, and Mejia responded that
he wanted to be protected from retaliation and also stated there
were some issues in his past. Robertson said he would stop all
the retaliation practices. The conversation continued into the
dining room, and Robertson asked Mejia what he could do to
keep the Union from coming. Mejia reminded Robertson he
had called for a meeting the following week, so he would have
the perfect forum to speak up, but the union movement was
very strong. Mejia also told Robertson that the Company had

11 Mejia has been a member of Unite Here, Local 11 for 18 years
through his employment at Paramount Studios. (Tr. 236.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
cut employees’ hours in response to the Affordable Care Act
(ACA) and if they think the Union is going to be expensive,
they had the chance to provide insurance for all employees and
failed to do so. (Tr. 226–229.)
In April, Robertson told Tello to clock out and meet him in
the boardroom. Gehrke was also present. Robertson said he
had seen Tello in the video and he was surprised because he
thought Tello was happy with his job. Tello said he had his
reasons and he had not done anything illegal. Robertson asked
Tello if he knew how the union worked, and told him their
relationship would change because others would be making
decisions for the employees. He also asked if employees were
signing cards. Tello responded that he was not going to say
anything that would jeopardize his coworkers. (Tr. 153–154.)
On April 13, Robertson sent an email to Gehrke stating that
“they,” a group of hotel maids along with Mad, Ramin, Alfre-
do, and Sal, marched and chanted for about 45 minutes until
they were ejected from the hotel. They did not come into the
restaurant. (CP Exh. 5.)
On April 18, a group of 16 individuals was seated at the res-
taurant. After being served bread and water, they stood up,
revealed Unite Here t-shirts, chanted in Spanish, and marched
out of the restaurant. The chanting lasted about 90 seconds.
(Tr. 397; R. Exh. 8.)
E. Local Ordinance and Class Action Lawsuit
The cluster of hotels surrounding LAX, including the Westin
Hotel where the Century Daily Grill is housed, is commonly
referred to as the Century Boulevard Corridor (Corridor). Em-
ployers in the hotels in the Corridor are subject to the Airport
Hospitality Enhancement Zone Ordinance (Ordinance), codi-
fied as Los Angeles Municipal Code Section 104.101 et seq.
The Ordinance provides for a minimum wages and other em-
ployment standards for hotel workers.12 (ALJ Exhs. 5, 6.) The
Company made an error in calculating wages when the Ordi-
nance went into effect and underpaid employees for about 6
months. (Tr. 247.) The employees at the Century Daily Grill
filed a class action lawsuit against the Company for failing to
adhere to the minimum wage set forth in the Ordinance. (Tr.
72, 211, 459.) The employees ultimately received retroactive
wage increases, but it took longer than the Company had antic-
ipated for this to occur. (Tr. 111.)
F. Mandatory Meetings
Employees attend mandatory meetings about once a year to
where management talks about restaurant operations and
events. In late March or early April,13 Robertson, Kachani, and
Burnett held mandatory meetings for all employees. They were
on consecutive days, and each employee attended one meeting
or the other. Robertson announced that employees would be
able to request days off on a first-come first-serve basis. This
had been manner in which time off had been requested when he
was the general manager, and he was unaware that this practice

12 It is undisputed that the ordinance applies to the servers and
bussers employed at the Century Daily Grill.
13 Robertson recalled the dates as March 24–25. Goytia, Tello, and
Mejia recalled it was in April. The precise date does not impact my
findings.
had changed until he heard complaints from employees during
his one-on-one meetings. Robertson also said they could use
flex-time before vacation time, which was a benefit because
flex-time is not payable when the employee leaves the Compa-
ny, and vacation time is. (Tr. 367–371.)
Robertson announced that hours had been cut because of the
upcoming changes associated with the Affordable Care Act
(ACA), but now with the restaurant’s financial improvement,
they could offer full-time work to some employees. Robertson
said he and Burnett planned to sit down with the employees and
discuss their preferences regarding days, hours, and shifts.
Robertson also informed employees that they would be paid
time and a half for working holidays.14 In addition, Robertson
told employees that the employee discount at the restaurant
would increase from 30 percent to 50 percent and the previous
restrictions on certain menu items would be lifted. This was
implemented company-wide. (Tr. 371–372; R Exh. 2, p. 9.)
Goytia asked if these changes were permanent and asked
about the meaning of at-will employment. He then read the at-
will rule. Kachani said there would be a legal representative at
the restaurant tomorrow and Goytia could set up a meeting with
him to answer any questions. (Tr. 69–70, 97.) Mejia asked
Robertson to explain to everybody that there would not be re-
taliation. Robertson said he would discuss any problems with
employees one-on-one. (Tr. 231–232.) Several other employ-
ees also asked questions. Goytia and Diaz wore union buttons
during the meeting. (Tr. 98.)
On May 2, Phil Kastel15 sent an email to Gehrke, Kachani,
and Spivak, among others, notifying them that Ramin Azad was
passing out a flyer on his day off.
In May, Spivak conducted a meeting with employees to ex-
plain what had happened with regard to their wages not being
fully paid in accordance with the ordinance. He told the em-
ployees they would receive checks for the wages they had been
shorted in a couple of weeks. (Tr. 275.)
The Respondent’s healthcare benefits broker is Bob Hoskins,
a senior account executive at Wells Fargo Bank. On June 3,
Gehrke sent Hoskins an email asking if a specified benefit con-
tribution model could be used at the Century location. Gehrke
asked Hoskins if there would be an issue under ERISA [Em-
ployee Retirement Income Security Act]. Hoskins forwarded
the message to Daniel Kopti, asking if the proposed model
would be discriminatory. Kopti replied that under the Afforda-
ble Care Act, insured plans are prohibited from discriminating
in favor of highly compensated employees. He saw nothing in
the Company’s plan that would be a problem under the nondis-
crimination standard. (R. Exh. 3.)
Spivak conducted another mandatory meeting on July 9 in
the Westin conference room. Burnett, Gaeta, White, and Hu-
man Resources Representative Melinda Sharan also attended on
management’s behalf. Spivak apologized for losing his compo-
sure at the prior meeting regarding the class action wage-and-
hour lawsuit. He also apologized for how long it took employ-

14 The Respondent’s unionized restaurant in Chicago already had
this benefit. Restaurants not located within hotels are closed on
Thanksgiving and Christmas.
15 Kastel’s job title was not identified.
GRILL CONCEPTS SERVICES 13
ees to receive their checks from the settlement of the lawsuit.
He thanked everyone for attending, and said the employees
would receive $100 worth of gift cards. Spivak announced that
the company would start providing healthcare coverage for
employees who worked at least 10 hours per week, and the
copayment would be $10. He passed out pamphlets describing
the different plan options.16 (Goytia 71–73, 206–208, 233; GC
Exh. 11.)
This was the first time gift cards were passed out at a manda-
tory meeting. In the past, employees received gift cards based
on certain performance incentives and competitions. (Tr. 213.)
G. The Rules
The Respondent maintains various rules and policies. All
restaurants share the same policies. The specific rules the Gen-
eral Counsel contends violate the Act are set forth and dis-
cussed in the analysis section below.
Many of the rules are contained within the most recent ver-
sion of the Restaurant Team Member Handbook (employee
handbook), dated June 14. (GC Exh. 2.) The handbook is dis-
tributed to new employees during orientation. According to
Burnett, the updated handbook was distributed to existing em-
ployees as they came to work, and they were asked to sign a
receipt stating they had received it. The employees could de-
cline to sign, and when this occurred, Burnett just noted the
employee declined to sign. If employees had questions, Burnett
would answer them or contact human resources if he did not
know the answer. (Tr. 341–343.)
Goytia requested a copy of July 2014 the handbook from
White. They met in White’s office, and White told Goytia he
would need to sign the acknowledgement of receipt. Goytia
said he did not understand the provision about arbitration and
White said it was simply a receipt. Goytia did not sign the
receipt and he retained a copy of the handbook. (Tr. 79–80.)
Azad received a copy of the employee handbook from
O’Daniel in August 2014. He did not sign in receipt of the
handbook. (Tr. 214.)
Failure to abide by the policies set forth in the employee
handbook will lead to disciplinary action, up to and including
termination. (GC Exh. 2, p. 37.)
III. DECISION AND ANALYSIS
A. Credibility Legal Standards
While many of the issues in this case do not concern witness
credibility, some of them do. A credibility determination may
rest on various factors, including “the context of the witness’
testimony, the witness’ demeanor, the weight of the respective
evidence, established or admitted facts, inherent probabilities
and reasonable inferences that may be drawn from the record as
a whole.” Hills & Dales General Hospital, 360 NLRB No. 70,
slip op at 7 (2014), citing Double D Construction Group, 339
NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623
(2001). In making credibility resolutions, it is well established
that the trier of fact may believe some, but not all, of a wit-

16 The rates and plans were discussed in June. (R. Exhs. 4–7.)
ness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d
749 (2d Cir. 1950).
The Board has agreed that “when a party fails to call a wit-
ness who may reasonably be assumed to be favorably disposed
to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have
knowledge.” International Automated Machines, 285 NLRB
1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is
particularly true where the witness is the Respondent’s agent.
Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006). Moreover, an adverse inference is warranted by the
unexpected failure of a witness to testify regarding a factual
issue upon which the witness would likely have knowledge.
See Martin Luther King, Sr., Nursing Center, 231 NLRB 15, 15
fn. 1 (1977) (adverse inference appropriate where no explana-
tion as to why supervisors did not testify); Flexsteel Industries,
316 NLRB 745, 758 (1995) (failure to examine a favorable
witness regarding factual issue upon which that witness would
likely have knowledge gives rise to the “strongest possible
adverse inference” regarding such fact).
Testimony from current employees tends to be particularly
reliable because it goes against their pecuniary interests. Gold
Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia
Rug Mill, 131 NLRB 1304, 1304 fn. 2 (1961); Gateway Trans-
portation Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink
Div. of Unarco Industries, 197 NLRB 489, 491 (1972).
Where there is inconsistent evidence on a relevant point, my
credibility findings are incorporated into my legal analysis
below.
B. Union Buttons
Paragraph 8 of the complaint alleges that the Respondent has
promulgated and maintained a rule prohibiting employees from
wearing union buttons or insignia on their uniforms while
working. The complaint more specifically alleges that, in vio-
lation of Section 8(a)(3) and (1):
 On about March 26, 2014, Grace Truong sent Sandra
Diaz home for wearing a union button on her uni-
form;
 On about March 30, 2014, Kevin O’Donnell sent
Madcadel Goytia home for wearing a union button
on his uniform;
 In late March 2014, Will White sent Alfredo Mejia
home for wearing a union button on his uniform;
 On about March 31, 2014, Robert Robertson sent
Salvador Tello home for wearing a union button on
his uniform;
 On about April 1, 2014, Michael Burnett sent Salva-
dor Tello home and issued him written discipline
for wearing a union button on his uniform;
 In early April 2014, Michael Burnett sent Danielle
Sanchez home for wearing a union button on her
uniform.
1. Section 8(a)(1)
Under Section 8(a)(1), it is an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
exercise of the rights guaranteed in Section 7 of the Act. The
rights guaranteed in Section 7 include the right “to form, join or
assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection . . .”
The basic test for a violation of Section 8(a)(1) is whether
under all the circumstances the employer’s conduct reasonably
tended to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury,
314 NLRB 470, 472, (1994); Sunnyside Home Care Project,
308 NLRB 346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147(1959).
In Republic Aviation Corp v. NLRB, 324 U.S. 793, 801–803
(1945), the Supreme Court held that employees have a protect-
ed right to wear union buttons and other insignia at work. This
right is balanced against the employer’s right to maintain order,
productivity, and discipline. The Board has struck this balance
by permitting employers to prohibit employees from wearing
union insignia where the employer proves that “special circum-
stances” exist. Id. at 797–798; see also Boch Honda, 362 NLRB
No. 83, slip op. at 2 (2015); Sam’s Club, 349 NLRB 1007, 1010
(2007); Control Services, 303 NLRB 481 (1991). Special cir-
cumstances may justify restrictions on union insignia “when
their display may jeopardize employee safety, damage machin-
ery or products, exacerbate employee dissension, or unreasona-
bly interfere with a public image that the employer has estab-
lished, or when necessary to maintain decorum and discipline
among employees.” Komatsu America Corp., 342 NLRB 649,
650 (2004); see also United Parcel Service, Inc., 195 NLRB
441 (1972).
The special circumstances exception is narrow and “a rule
that curtails an employee’s right to wear union insignia at work
is presumptively invalid.” E & L Transport Co., 331 NLRB
640 fn. 3 (2000). The burden of establishing the existence of
special circumstances rests with the employer. Pathmark
Stores, 342 NLRB 378, 379 (2004). Any rule impinging on the
employees’ Section 7 right to wear union insignia must be nar-
rowly tailored to the special circumstances justifying its
maintenance. Mere employee contact with customers does not,
by itself, justify employer prohibition of union buttons or insig-
nia. Virginia Electric & Power Co., 260 NLRB 408 (1982),
citing Floridan Hotel of Tampa, Inc., 137 NLRB 1484 (1962),
enfd. as modified on other grounds 318 F.2d 545 (5th Cir.
1963).
Special circumstances are found “when the prohibition
against union insignia or apparel . . . ‘unreasonably interfere[s]
with a public image that the employer has established, or when
necessary to maintain decorum and discipline among employ-
ees.’ Nordstrom, Inc., 264 NLRB 698, 700 (1982).” Smithfield
Packing Co., 344 NLRB 1 fn 20 (2004); see also Bell-Atlantic-
Pennsylvania, Inc., 339 NLRB 1084, 1086 (2003). The Board
has held that “An employer’s concern about the ‘public image’
presented by the apparel of its employees is . . . a legitimate
component of the ‘special circumstances’ standard.” W San
Diego, 348 NLRB 372, 380 (2006).
I find the Respondent has met its burden to show special cir-
cumstances. First, the evidence is undisputed that the prohibi-
tion on wearing the union pin only was enforced when the serv-
ers were going to interface with guests. Employees were per-
mitted to wear union buttons at employee meetings and while
on breaks or otherwise not serving guests. Though interfacing
with guests is not enough for the Respondent to meet its bur-
den, I find the prohibition was required for the Respondent to
maintain an ambience consistent with its established business
model. To this end, I found the testimony of the Respondent’s
founder and CEO, Robert Spivak, particularly compelling.
In addition to discussing the uniform standards and personal
appearance standards, Spivak testified about his vision in creat-
ing Grill Concepts. His philosophy, detailed in the statement of
facts above, was clearly to provide a place customers could
come to get predictable, reliable, customer-focused service and
forget about everything else. To that end, he testified about
creating a restaurant where the servers were “seen and not
heard” and they stayed focused on their job to “provide service
to deliver food and not to make any statements of any kind,
other than supporting our restaurant.” The only message
Spivak wants to impart to the guests is that “the server’s job is
clearly to provide service.”
The focus on atmosphere is very similar to W San Diego,
where the Board found a restriction on union insignia was in
line with the hotel’s desire to create a “wonderland” experi-
ence, where it described its guest services as “whatever when-
ever,” and its employees as “talent” or “cast members.” This is
similar to Spivak’s vision of the “traditional American grill
where the answer is yes, what is the question, and the guest is
always right” and Grill Concepts’ mission statement, “Take
care of the guests, respect the Team Member, and the rest will
take care of itself.” It is clear from the testimony of both
Spivak and Burnett that a consistent, customer-driven experi-
ence is at the core of the Respondent’s business model, and the
uniform and professional appearance of its servers is part of
that model.17
The General Counsel and the Charging Party point to some
inconsistencies in the uniforms and some lapses in enforce-
ment. The fact that employees wear pants and shirts made from
different materials, however, does not meaningfully detract
from the fact that the uniforms are essentially the same for the
servers and bussers, respectively. The evidence also shows that
there has been some inconsistency in enforcing the rule, with
certain pins sometimes being permitted (such as the anniversary
pins) and the Respondent’s potential occasional use of pins for
promotional restaurant items. I do not find these materially
detract from the Respondent’s defense under existing Board
law. See Hertz Corp., 305 NLRB 487 (1991) (on remand from
Sixth Circuit, NLRB v. Hertz Corp., 920 F.2d 933 (6th Cir.
1990)) (ban on union insignia by employees who interfaced
with the public lawful despite occasional lapses in enforce-
ment). Moreover, the union pins at issue were more conspicu-

17 The General Counsel and Charging Party both point out that the
employer in W San Diego purchased the uniforms at considerable ex-
pense. The relative expense of the uniforms in that case compared to
the expense of the vests and jackets in the instant case, particularly
compared against respective operating budgets, is not a matter of rec-
ord.
GRILL CONCEPTS SERVICES 15
ous than the anniversary buttons or the angel pin Diaz wore.
The union pins were white, with black and red lettering, con-
trasted against the employees’ dark vests or jackets. The Board
has upheld a prohibition on wearing a white button with red
lettering, United Parcel Service, 195 NLRB 441 (1972), as well
as a “day-glow” button with black lettering. Con-Way Central
Express, 333 NLRB 1073 (2001).
The General Counsel and Charging Party also assert that the
hotel employees, who wore union insignia, were also in the
restaurant retrieving items for room service delivery. These
employees, however, were hotel employees, whose jobs did not
entail interacting with the restaurant guests, and who were not
under the Respondent’s control.18
The General Counsel further argues that the rule prohibiting
union buttons was promulgated in response to protected activity
and is therefore unlawful under Lutheran Heritage Village-
Livonia, 343 NLRB 646, 647 (2004), discussed below. Any
employer directive to remove union insignia is going to be in
response to the employees’ activity of displaying it.19 I find,
therefore, that the Republic Aviation framework is better suited
to the instant factual scenario. Similarly, the General Counsel
asserts that had the prohibition of buttons been part of the Re-
spondent’s business plan, this would have been reflected in the
uniform standards. I find, however, the uniform and personal
appearance standards convey the image the Respondent wants
to project, consistent with its business plan. The omission of
buttons (among a plethora of other potential adornments), does
not establish that the Respondent regularly permitted servers
and bussers to wear conspicuous non-uniform pins prior to
March 2014.
2. Section 8(a)(3) and (1)
Section 8(a)(3) prohibits “discrimination in regard to hire or
tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organiza-
tion.” Any violation of Section 8(a)(3) is also a violation of
Section 8(a)(1). Chinese Daily News, 346 NLRB 906, 933
(2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).
Neither the General Counsel nor the Charging party asserts
that the mixed-motive analysis set forth in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), applies, and the Respondent does
not assert a Wright Line defense. Instead, the General Counsel
argues there was no mixed motive because the very conduct for
which the employees were sent home was protected by Section
7. Felix Industries, 331 NLRB 144, 146; (2000); Nor-Cal Bev-
erage Co., 330 NLRB 610, 611–612 (2000). Because I have
found the Respondent has established special circumstances,
however, I find it was justified in conditioning employees’
continued work serving guests on removing the buttons. The

18 The Charging Party’s assertion that the uniforms were similar to
the hotel employees’ uniforms is not persuasive, particularly consider-
ing the uniforms are the same for all the restaurants (except the Public
School restaurants) regardless of whether they are housed in hotels.
19 The General Counsel points to White’s confusion over the pin pol-
icy as an indication that it did not exist prior to the employees’ wearing
union buttons. It is clear, however, that White only requested clarifica-
tion after Mejia showed him the poster.
employees chose to go home rather than removing their buttons
and continuing to work. With regard to the written discipline
issued to Tello, this was issued because Tello requested docu-
mentation that he was being sent home for refusing to remove
his union button.
Based on the foregoing, I recommend dismissal of complaint
paragraph 8.
C. Alleged Threats
In specifically assessing whether a remark constitutes a
threat, the appropriate test is “whether the remark can reasona-
bly be interpreted by the employee as a threat.” Smithers Tire,
308 NLRB 72 (1992). Further, “It is well settled that the test of
interference, restraint, and coercion under Section 8(a)(1) of the
Act does not turn on the employer’s motive or on whether the
coercion succeeded or failed.” American Tissue Corp., 336
NLRB 435, 441 (2001) (citing NLRB v. Illinois Tool Works,
153 F.2d 811, 814 (7th Cir. 1946)).
1. Sandra Diaz
Paragraph 8(c)(ii) of the complaint alleges that, on March 26,
2014, Grace Truong, threatened Diaz with discipline for wear-
ing a union button on his or her uniform while working.
Because I have found the Respondent has established special
circumstances permitting it to bar its employees from wearing a
union button while working in uniform with the public, as set
forth fully above, I find there was no unlawful threat. I there-
fore recommend dismissal of this allegation.
2. Salvador Tello
Complaint paragraph 9(a) alleges that about March 31, 2014,
the Respondent threatened an employee with an implied threat
of job loss unless the employee ceased supporting the Union.
More specifically, the evidence shows that on March 24, Rob-
ertson told Tello he had to decide whether he was going to “go
with the Union or go with the grill.”
Tello’s testimony on this point is unrefuted, and I credit it.
As a current employee testifying against his own pecuniary
interest I find his testimony to be particularly reliable. See Gold
Standard Enterprises, supra. I also draw an adverse inference
based on Robertson’s failure to testify about this allegation.
Martin Luther King, Sr., Nursing Center, supra; Flexsteel In-
dustries, supra.
The statement conveyed to Tello was that he needed to
choose the Union or the Company, and I find it is an implied
threat of job loss. See Shen Automotive Dealership Group, 321
NLRB 586, 591 (1996) (statement from supervisor to employee
that he should “really try to decide whether he was going to
work with him or not” coercive among other unlawful con-
duct). In the context present here, where Robertson was meet-
ing with employees directly in response to learning about the
employees’ (including Tello) encounter with Kachani in Febru-
ary, I find this statement was coercive. I therefore find the
General Counsel has met its burden to prove this complaint
allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
D. Alleged Interrogations, Surveillance, Solicitation of
Grievances and Promises
1. Salvador Tello
Complaint subparagraphs 9(c) and (e) allege that the Re-
spondent, in April 2014, interrogated its employee about the
union sympathies of employees and created the impression that
his union activities were under surveillance.20 Because these
allegations stem from the same conversation, they are discussed
together.
As detailed in the statement of facts, sometime in mid-April,
Robertson told Tello to clock out and meet him in the board-
room, where Gehrke was also present. Robertson said he had
seen Tello in the video and expressed his surprise. Robertson
asked Tello if he knew how the union worked, told him that
their relationship would change because others would be mak-
ing decisions for them, and asked if employees were signing
cards.
a. Interrogation
In assessing the lawfulness of an interrogation, the Board
applies the totality of circumstances test adopted in Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This
test involves a case-by-case analysis of various factors, includ-
ing those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964): (1) the background, i.e., whether the employer has a
history of hostility toward or discrimination against union ac-
tivity; (2) the nature of the information sought; (3) the identity
of the interrogator, i.e., his or her placement in the Respond-
ent’s hierarchy; (4) the place and method of the interrogation;
and (5) the truthfulness of the interrogated employee’s reply.
See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2
(2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1
(2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005).
The Board also considers the timing of the interrogation and
whether the interrogated employees are open and active union
supporters. See, e.g., Gardner Engineering, 313 NLRB 755,
755 (1994), enfd. as modified on other grounds 115 F.3d 636
(9th Cir. 1997); Blue Flash Express, 109 NLRB 591 (1954).
Another factor is whether adequate assurances were provided.
See John W. Hancock, Jr., Inc., 337 NLRB 1223, 1223–1224
(2002). These factors “are not to be mechanically applied,” they
represent “some areas of inquiry” for consideration in evaluat-
ing an interrogation’s legality. Rossmore House, supra, fn. 20.
The Board has held that interrogations that constitute “a pointed
attempt to ascertain the extent of the employees’ union activi-
ties” are unlawful. SAIA Motor Freight, Inc., 334 NLRB 979,
980 (2001).
With regard to the alleged interrogation, I find the totality of
the circumstances compels a finding that Tello was interrogat-
ed. The nature of the information sought went to the heart of

20 The Respondent contends that the meetings with employees, in-
cluding Tello and Mejia, took place in March. There are no documents
establishing the date, and the witness testimony conflicts. Whether the
meetings occurred in March or April has no bearing on my conclusions.
Tello’s and other employees’ union activity.21 The interrogator
was the area director, a high ranking management official, who
was accompanied by the highest ranking corporate human re-
sources officer and the questioning took place behind closed
doors. No assurances were provided. As to the truthfulness of
the reply, Tello did not answer because he did not want to jeop-
ardize his coworkers.
The Respondent contends that even if Robertson asked this
question, it was in the manner of an introductory statement of
fact, used as a platform for communicating how the Union
worked. Though it is true Robertson asked Tello if he knew
how unions worked, this does not save the inquiry about
whether employees were signing cards from constituting an
interrogation, based on the factors analyzed above.
The Respondent also contends that Robertson’s remarks
were protected by Section 8(c) of the Act. The employer’s
freedom under Section 8(c) to express views, arguments, or
opinion about the union stops when the comments threaten
employees or otherwise impinge upon Section 7 rights. See
Children’s Center for Behavioral Development, 347 NLRB 35
(2006). Because I have found the question about whether em-
ployees were signing cards to be an unlawful impingement on
Tello’s Section 7 rights, the Respondent’s contention fails.
b. Impression of surveillance
The test for determining whether an employer engages in un-
lawful surveillance or whether it creates the impression of sur-
veillance is an objective one and involves the determination of
whether the employer’s conduct, under the circumstances, was
such as would tend to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed under Section 7
of the Act. See Broadway, 267 NLRB 385, 400 (1983) (citing
United States Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
The Board has consistently held that an employer’s mere ob-
servation of open, public union activity on or near its property
does not constitute unlawful surveillance. See Fred’k Wallace
& Son, Inc., 331 NLRB 914, 915 (2000). For example, in Met-
al Industries, 251 NLRB 1523, 1523 (1980), the Board found
no unlawful surveillance of employees where the employer had
a longstanding practice of going to the employee parking lot to
say goodbye to its departing employees at the end of the work-
day. The employer’s observance of the employees’ Section 7
activity was inseparable from its regular and noncoercive prac-
tice. See also Wal-Mart Stores, 340 NLRB 1216, 1223 (2003).
Employers may not, however, “do something ‘out of the or-
dinary’ to give employees the impression that it is engaging in
surveillance of their protected activities.” Loudon Steel, Inc.,
340 NLRB 307, 313 (2003); See also Partylite Worldwide, Inc.,
344 NLRB 1342 (2005); Arrow Automotive Industries, 258
NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982); Sprain
Brook Manor Nursing Home, 351 NLRB 1190 (2007). The
Board’s analysis thus focuses on whether the observations were
ordinary or represented unusual behavior. Aladdin Gaming,

21 Though Robertson denied attempting to discover information
about who was supporting the Union during his employee interviews
(Tr. 365), he did not deny asking whether employees were signing
cards.
GRILL CONCEPTS SERVICES 17
LLC, 345 NLRB 585 (2005), rev. denied 515 F.3d 942 (9th Cir.
2008).
The employees’ complaints to Kachani took place in the res-
taurant and were filmed by the Union. Obviously, the manag-
ers who observed this interaction were not engaged in surveil-
lance. Robertson, however, did not observe the activity when it
occurred, nor is it clear how he knew the Union had posted it
on its Facebook page.22 He did not mention where he had ob-
tained the video, and expressed his surprise to see Tello taking
part in the February 18 confrontation. Though Tello was pre-
sumably aware the incident was being filmed, there is no evi-
dence he had any role in disseminating any footage or inform-
ing anyone where they could view it. Given the context, de-
scribed above, I find the Respondent “did something out of the
ordinary” by taking the affirmative steps to go on the Union’s
Facebook page to view the protected activity, and then inform-
ing Tello it had done so.
Based on the foregoing, I find the General Counsel has
proved complaint allegations 9(c) and (e).
2. Alfredo Mejia
Complaint allegation 9(b) alleges that, around early April
2014, the Respondent solicited employee complaints and griev-
ances, promised its employees increased benefits and improved
terms and conditions of employment to discourage employee
support for the Union. Complaint subparagraphs 9(d) and (f)
allege that the Respondent, in April 2014, interrogated an em-
ployee about the union sympathies of other employees, and
promised the employee that the Respondent would no longer
retaliate against its employees. Because these allegations stem
from the same conversation, they are discussed together.
As detailed in the statement of facts, in early April, Robert-
son asked Mejia to accompany him to the boardroom. Robert-
son told him how much the Union would cost the Company.
Robertson asked why Mejia wanted the Union at the Daily
Grill, and Mejia said he wanted protection from retaliation.
Robertson replied that he would stop the retaliation practice,
and he asked Mejia what he could do to keep the Union from
coming. Mejia reminded Robertson that he had called for a
meeting the following week, the union movement was very
strong, and the Company had cut employees’ hours in response
to the Affordable Care Act.
a. Solicitation of grievances
Employer solicitation of employee grievances or complaints
during an organizing campaign may be considered as an im-
plied promise to resolve complaints elicited favorably for the
employees. See Alamo Rent-A-Car, 336 NLRB 1155 (2001).
In Majestic Star Casino, LLC, 335 NLRB 407, 407–408
(2001), the Board, quoting Maple Grove Health Care Center,
330 NLRB 775 (2000), stated:
Absent a previous practice of doing so . . . the solicitation of
grievances during an organizational campaign accompanied
by a promise, expressed or implied, to remedy such grievanc-
es violates the Act. . . .[I]t is the promise, expressed or im-
plied, to remedy the grievances that constitutes the essence of

22 Robertson was not in the restaurant on February 18. (Tr. 361.)
the violation. . . . [T]he solicitation of grievances in the midst
of a union campaign inherently constitutes an implied prom-
ise to remedy the grievances. Furthermore, the fact [that] an
employer’s representative does not make a commitment to
specifically take corrective action does not abrogate the antic-
ipation of improved conditions expectable for the employees
involved. [T]he inference that an employer is going to reme-
dy the same when it solicits grievances in a preelection setting
is [sic] rebuttable one.
An employer with a past practice of soliciting employee griev-
ances may continue to do so during an organizing campaign as
long as the practice remains essentially the same. Longview
Fibre Paper & Packaging, Inc., 356 NLRB 796 (2011).
The Respondent argues, at some length, that there was no
organizing drive. This argument is wholly unavailing. Man-
agement was aware of the employees approaching Kachani.
They knew the Union was involved, as Goytia told White he
represented the employees and they wanted to unionize, and
Gehrke identified and shared the video of the incident from the
Union’s Facebook page.23 Robertson met with the Company’s
attorneys to find out what he could and could not do, and he
met with the employees to explain the unionization process.
The Team Member Conversation Points “regarding the union
organizing attempt” underscore that the Respondent was aware
of organizational activity, as do several emails described in
statement of facts above.
There is no history of soliciting employee grievances by hav-
ing managers approach employees in the manner Robertson
approached Mejia. By Robertson’s question to Mejia regarding
what the Company could do to keep the Union from coming in,
the Respondent violated Section 8(a)(1) as alleged. See J & C
Towing Co., Inc., 307 NLRB 198, 199, 205 (1992).
In addition, in response Robertson asking why Mejia wanted
the Union and Mejia responding that he wanted the Union to be
protected from retaliation, Robertson promised to stop the retal-
iation. This amounts to a solicitation of grievances and a prom-
ise of a remedy, also in violation of Section 8(a)(1).
b. Interrogation
The standards for interrogation, set forth above in relation to
employee Tello above, apply here. For the same reasons as
above, I find Robertson’s questions to Mejia constituted an
unlawful interrogation. Mejia, in a one-on-one meeting with
the Area Manager Robertson, was asked why he wanted a Un-
ion, after Robertson had told him the Union would be costly to
the Company. Applying the totality of the circumstances test,
and considering the context, I find this was coercive. See Asso-
ciation of Community Orgs. for Reform Now, 338 NLRB 886
(2003).
The Respondent contends that I should discredit Mejia, con-
tending that he is the only witness who testified about being
asked such questions and he is knowledgeable about union
relationships. Robertson, however, did not deny making the
comments attributed to him. Moreover, there was nothing in

23 White did not testify, and I therefore infer he would have corrobo-
rated Goytia’s testimony on this point. Roosevelt Memorial Medical
Center, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Mejia’s demeanor when testifying to indicate he was not being
truthful, and his testimony was not otherwise impeached.24
The Respondent further asserts that Mejia was not pressed to
answer any questions and was not threatened or coerced. As
noted above, I have found the interrogation was coercive based
on the applicable legal standards, which do not require a threat.
E. Alleged Promise/Grant of Benefits
1. Meeting in late March or early April
Complaint allegation 9(g) alleges that, in mid-April 2014,
the Respondent promised and/or granted employees the follow-
ing benefits to discourage their support for the Union: (1) time-
and a-half pay for employees working a holiday; (2) new proto-
col for employees to more easily request a day off; (3) a bigger
employee discount for food at the restaurant; and (4) a recon-
sideration of the cutback of employees’ hours. These allega-
tions regarding the meeting with employees are detailed in the
statement of facts.
The Supreme Court, in Medo Photo Supply Corp. v. NLRB,
321 U.S. 678, 686 (1944), stated that the “action of employees
with respect to the choice of their bargaining agents may be
induced by favors bestowed by the employer as well as by his
threats or domination.” As the Court explained in NLRB v.
Exchange Parts Co., 375 U.S. 405, 409 (1964):
The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now
conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged.
(Footnote omitted.) It held that “the conferral of employee
benefits while a representation election is pending, for the pur-
pose of inducing employees to vote against the union,” inter-
feres with the employees’ protected right to organize. It is
well-settled that the Exchange Parts principles apply to prom-
ises and/or granting of wage increases or other benefits, if they
are made in response to union organizational activity, regard-
less of whether a representation petition has been filed. Net-
work Dynamics, 351 NLRB 1423, 1424 (2007); Hampton Inn
NY-JFK Airport, 348 NLRB 16, 17 (2006).
Unlike most 8(a)(1) allegations, analysis of a claim that ben-
efits were promised, announced, or granted to coerce employ-
ees in their choice of bargaining representative is motive-based.
Network Dynamics Cabling, Inc., 351 NLRB 1423, 1424
(2007). The granting of benefits to employees during union
organizational activity “is not per se unlawful” where the em-
ployer can show that its actions were governed by other factors.
American Sunroof Corp., 248 NLRB 748, 748 (1980), modified
on other grounds 667 F.2d 20 (6th Cir. 1981).
To establish such a claim, the General Counsel must first
prove, by a preponderance of the evidence, “that employees
would reasonably view the grant of benefits as an attempt to
interfere with or coerce them in their choice on union represen-
tation.” Southgate Village Inc., 319 NLRB 916 (1995). If the

24 As a current employee testifying against his pecuniary interest,
Mejia’s testimony is considered particularly reliable, as discussed in the
credibility section of this decision.
General Counsel meets this burden, the employer must demon-
strate a legitimate business reason for the timing of the benefit.
One way to do this is to show the benefit was “part of an al-
ready established Company policy and the employer did not
deviate from the policy upon the advent of the union.” Ameri-
can Sunroof, supra; see also Real Foods Co., 350 NLRB 309,
310 (2007); Holly Farms Corp., 311 NLRB 273, 274 (1993),
enfd. 48 F.3d 1362 (4th Cir. 1995), affd. 517 U.S. 392 (1996);
Jewish Home for the Elderly of Fairfield County, 343 NLRB
1069, 1087–1090 (2004).
I find the employees would reasonably view the grant of
benefits as an attempt to discourage support for the Union. The
employee meetings occurred in the wake of and admittedly in
response to the February 18 presentation to Kachini and shortly
after employees wore buttons in support of the Union. The
meeting occurred after one-on-one meetings with employees to
determine why they were unhappy, and, as discussed below,
addressed some of the grievances the employees aired. Under
these circumstances, I find employees would reasonably view
the grant of benefits as an attempt to discourage support for the
Union.
With regard to the change in how time off was requested,
Robertson stated that this was implemented because the manner
of scheduling time off was one of the top complaints he heard
during his meetings with employees, and it was merely a rever-
sion to how time off was requested back when he was general
manager. These meetings, however, occurred in response to
employees’ union activity. Robertson admitted that the meet-
ings were in part to determine if employees understood the
unionization process. In addition, White suggested speaking to
all of the employees to get a sense of how many were involved
in the “movement.” Because the meetings occurred in response
to union activity, and the change to the manner in which time
off was requested occurred as a result of the meetings, there is
no legitimate explanation for the timing of this change.
With regard to restoration of hours, cutting back employees’
hours was raised as a complaint during the employees’ presen-
tation to Kachani on February 18. The Respondent explains the
timing by asserting that the decision to let employees return to
8-hour shifts was tied to the Affordable Care Act. Specifically,
the Respondent contends that it had implemented a policy of
permitting employees to work no more than 30 hours per week,
in response to the ACA. Robertson said employees were not
happy with this, so the Company decided in 2013 to end this
practice. (Tr. 374.) There is no evidence, however, that this
was communicated to the employees at the time, and it is clear
from employees’ statements to Kachani on February 18, that
the cutbacks to employees’ hours had not yet been restored.
During the all-employee meetings, Robertson said he and Bur-
nett planned to sit down with the employees and discuss their
preferences regarding days, hours, and shifts. The fact that the
Respondent found it necessary to inform employees of this if it
had ostensibly occurred more than a year prior is curious. If the
decision had been made in 2013, the timing of both communi-
cating the benefit to employees and implementing it does not
make sense.
The changes to holiday pay and the employee discount for
food at the Respondent’s restaurants were company-wide.
GRILL CONCEPTS SERVICES 19
With regard to holiday pay, this change impacts only the restau-
rants in hotels, as the other restaurants are not open on the days
when employees would receive time-and-a-half pay. Both
changes were announced in Grill Concepts’ management news-
letter on April 4, 2014. (R. Exh. 2, p. 9.) Standing alone, I
would not find that announcement of these two benefits coer-
cive. I find, however, the timing of the meetings, coupled with
the other promises that I have found were intended to discour-
age support for the Union, establishes the General Counsel’s
burden.25
The Respondent relies on the employee surveys to justify the
timing of the benefits, contending that the Company had been
attempting to improve employee morale before any union activ-
ity occurred. This does not square, however, with Robertson’s
apparently newly discovered concern that the employees at the
Century Daily Grill were unhappy based on the events of Feb-
ruary 18, prompting him to conduct one-on-one meetings with
every employee. These meetings would have been superfluous
had the surveys already formed the source of the Company’s
response.
The Respondent further contends there is no evidence that
the Union has organized stand-alone restaurants. This is of no
moment. The Respondent’s actions are evaluated in the same
manner whether or not the Union has organized stand-alone
restaurants in the past.
Based on the foregoing, I find the General Counsel estab-
lished complaint allegation 9(g).
2. Meeting on July 9
Complaint paragraph 10 alleges that the Respondent, in a
meeting Spivak conducted on July 9, 2014, announced to em-
ployees that they could to sign up for a health care plan and
distributed $100 gift cards to discourage support for the Union.
The legal framework set forth above for the March/April
meetings applies here. For the same reasons, I find the General
Counsel has established that employees would reasonably view
the grant of benefits as coercive.
With regard to the health benefits, the Respondent asserts
that changes to the health plan were made in accordance with
the ACA, and that the Century Daily Grill was used as a test
case to see how many employees would enroll. The ACA’s
employer mandate, which requires employers with more than
50 employees to provide healthcare coverage to their employ-
ees, was initially to take effect in 2014. On July 2, 2013, the
Treasury Department announced the employer mandate would
not take effect until 2015.26 Email exchanges about implemen-
tation at the Century Daily Grill started in early June 2014.
Give the Respondent’s rationale for using the Century Daily
Grill as a test case, it is curious a similar test case implementa-
tion plan was not discussed and documented in or around June
of 2013, prior to the time the Respondent (or anyone) knew

25 As noted above, it is unclear whether the all-employee meetings
were in March or April but either way the timing leads me to the same
conclusion.
26 See http://www.treasury.gov/connect/blog/Pages/Continuing-to-
Implement-the-ACA-in-a-Careful-Thoughtful-Manner-.aspx. I take
judicial notice of these dates, which are not subject to reasonable dis-
pute. Federal Rule of Evidence 201.
there would be a 1-year delay. The fact that there were no
emails produced discussing the topic prior to June 2014, is
telling.
The Respondent’s asserted reason for the unique choice of
the Century Daily Grill as the venue to test the healthcare bene-
fit likewise does not withstand scrutiny. The Respondent con-
tends that it chose the Century Daily Grill because it the Airport
Hospitality Enhancement Zone Ordinance served to alleviate
concerns under ERISA. Specifically, the Respondent contends
that because the hourly employees at the Century Daily Grill
were paid more under the Ordinance, offering this benefit only
to them insulated them from a discrimination complaint under
ERISA.
During the hearing, I instructed the Respondent to identify
what provisions of ERISA it relied upon and to make those
provisions part of the record. (Tr. 423.) Nonetheless, the Re-
spondent did not, at the hearing or in closing brief, identify
what provisions of ERISA the Company was relying upon or
how the Ordinance would exempt the Century location from
ERISA’s discrimination provisions.
The only type discrimination tying the provision of
healthcare benefits to wages is, by no coincidence, the same
type of discrimination Gehrke discussed with Hoskins, the Re-
spondent’s healthcare broker.27 Specifically, 26 USC § 105(h),
prohibits an employer from offering a self-insured medical
reimbursement plan in a manner that discriminates in favor of
highly compensated employees. This prohibition was ex-
plained to Gehrke in an email. The Respondent has pointed to
nothing that would justify its choice of the Century Daily Grill
as a test case based on ERISA discrimination concerns, and it
simply makes no sense.28 Importantly, it is clear from the email
exchanges between Gehrke and Hoskins that the Century Daily
Grill was chosen as the implementation site prior to the request
for advice regarding discrimination.
The Respondent contends that health benefits were offered
when the union activity was a “somewhat distant memory,”
asserting that the indication employees were interested in un-
ionizing was on March 30. (R. Br. 24.) The employees were
told on July 9 about the benefits, which had been in the works
since at least early June. On April 13 Burnett forwarded Rob-
ertson and Robertson forwarded to Gehrke an email about un-
ion activity. On April 18, Burnett informed higher manage-
ment of employees with Unite Here T-shirts coming marching
in the restaurant. On May 2, Kastel had sent an email to a few

27 Under Section 501 of ERISA, it is unlawful for “any person to
discharge, fine, suspend, expel, discipline, or discriminate against a
participant or beneficiary for exercising any right to which he is entitled
under the provisions of an employee benefit plan . . . or for the purpose
of interfering with the attainment of any right to which such participant
may become entitled under the plan.” This provision has nothing to do
with discrimination in providing healthcare plans to employees. It is
also unlawful to discriminate on the basis of health status. 29 U.S.C.
§§ 1140, 1182.
28 The only concern about discrimination mentioned in the email ex-
change between Gehrke and Hoskins involved moving the overall plan
to a self-insured contract. There is nothing whatsoever tying the Ordi-
nance to the discrimination provisions. (R. Exh. 3.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
top management officials about Azad passing out flyers. Any
timing argument does not withstand even minimal scrutiny.
Based on the foregoing, I find the granting of healthcare
benefits violated Section 8(a)(1) as alleged.
With regard to the gift cards, I find the Respondent has met
its burden to establish a legitimate reason for the timing of this
benefit. The gift cards were presented as an apology from
Spivak for the delay in paying the back wages employees were
owed.29 This is a legitimate explanation and, as the Respondent
notes, the Company regularly gives gift cards. Though they are
not routinely handed out at all-employee meetings, the context
here makes sense—the Respondent was providing compensa-
tion to apologize for having shorted the hourly employees’
compensation. Accordingly, I recommend dismissal of this
complaint allegation.
F. The Rules
As detailed below, the complaint alleges that various em-
ployer rules violate Section 8(a)(1) of the Act. The General
Counsel has the burden to prove that a rule or policy violates
the Act. In determining whether a work rule violates Section
8(a)(1), the appropriate inquiry is whether the rule would rea-
sonably tend to chill employees in the exercise of their Section
7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998),
enfd. 203 F.3d 52 (D.C. Cir. 1999); Hills & Dales General
Hospital, supra, slip op. at 5.
Under the test enunciated in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), if the rule explicitly restricts
Section 7 rights, it is unlawful. If it does not, “the violation is
dependent upon a showing of one of the following: (1) employ-
ees would reasonably construe the language to prohibit Section
7 activity; (2) the rule was promulgated in response to union or
other protected activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.” Id. at 647. A rule does
not violate the Act if a reasonable employee merely could con-
ceivably read it as barring Section 7 activity. Rather, the in-
quiry is whether a reasonable employee would read the rule as
prohibiting Section 7 activity. Id. The question of whether a
rule or policy is on its face a violation of the Act requires a
balancing between an employer’s right to implement certain
legitimate rules of conduct in order to maintain a level of
productivity and discipline at work, with the right of employees
to engage in Section 7 activity. Firestone Tire & Rubber, 238
NLRB 1323, 1324 (1978).
The Board must give the rule under consideration a reasona-
ble reading and ambiguities are construed against its promulga-
tor. Lutheran Heritage, supra at 647; Lafayette Park Hotel,
supra at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–
470 (D.C. Cir. 2007). Moreover, the Board must “refrain from
reading particular phrases in isolation, and it must not presume
improper interference with employee rights.” Lutheran Herit-
age, supra at 646.

29 There is no allegation that the granting of the gift cards was in re-
sponse to the protected activity of the class action lawsuit employees
filed. The General Counsel in fact objected to questions about the
lawsuit on relevance grounds.
1. Team Member Relations/Positive Culture
Paragraph 6(a) of the complaint alleges that the Respond-
ent’s “Team Member Relations/Positive Culture” rule violates
the Act. The rule states, in relevant part:
Grill Concepts, Inc. believes that the working conditions,
wages, and benefits offered to Team Members are competi-
tive with those offered by other employers in this area and in
this industry. If Team Members have concerns about working
conditions, wages or benefits, they are encourage[d] to voice
these concerns openly, respectfully and directly to their Gen-
eral Managers or if necessary, the Regional/Area Director or
with the People Department.
When Team Members deal openly, respectfully and directly
with managers, the work environment will be more enjoyable,
communication will be clearer, and attitudes can be positive.
We believe that Grill Concepts, Inc. strives to demonstrate its
commitment to Team members by responding effectively to
their concerns and creating an atmosphere of fun and excite-
ment through teamwork.
We aim to strive for a culture in the restaurant that is “people
friendly.” All our managers know the importance of treating
all Team members and peers like the professional adults that
you are.
In this regard, everyone is to be treated with courtesy and re-
spect at all times, under all situations. Yelling, threatening,
meanness, sarcasm, intolerance, impatience, belittling and any
other form of harassment is not tolerated at any time by the
management staff or by hourly Team Members.
We need YOU, the Team Member to keep this culture alive
and well. No one is perfect. We are a busy restaurant and
sometimes we feel under pressure to satisfy all our Guests.
We would NEVER lose our temper with a guest and we will
not take our anger out on each other either.
(GC Exh. 2, p.12.)
The General Counsel and the Charging Party argue the re-
quirement to maintain a positive culture expressly restricts
Section 7 activity. They assert that the first paragraph specifi-
cally addresses the protected activity of discussing working
conditions, wages, and benefits with management, and the sub-
sequent paragraphs broaden into a general admonition in favor
of positive dealings. As such, they contend that this juxtaposi-
tion is an explicit restriction on Section 7 rights because em-
ployees must express their concerns about working conditions
without yelling, sarcasm, intolerance, impatience, and other
negative conduct.
The Respondent asserts that the rule does not expressly re-
strict Section 7 activity nor would it reasonably be construed to
do so, it was not promulgated in response to Section 7 activity,
and it has not been applied to restrict Section activity.
I find the rule does not expressly restrict Section 7 activity. I
find, however, that employees would construe the requirement
to voice concerns about wages, hours, and working conditions
to management “respectfully” as a restriction on their Section 7
rights under current Board law. Though the language in the
first paragraph is phrased in terms of encouraging rather than
GRILL CONCEPTS SERVICES 21
requiring employees to voice their concerns to management in a
respectful manner, the subsequent paragraphs are phrased in
terms of a requirement. In Casino San Pablo, 361 NLRB No.
148, slip op. at 3 (2014), the Board majority stated, when dis-
cussing the phrase “insubordination or other disrespectful con-
duct”:
In the typical workplace, where traditional managerial prerog-
atives and supervisory hierarchies are maintained, employees
would reasonably understand this phrase as encompassing
any form of Section 7 activity that might be deemed insuffi-
ciently deferential to a person in authority--in other words, as
referring to something less than actual insubordination. For
example, the act of concertedly objecting to working condi-
tions imposed by a supervisor, collectively complaining about
a supervisor’s arbitrary conduct, or jointly challenging an un-
lawful pay scheme—all core Section 7 activities—would rea-
sonably be viewed by employees as ““disrespectful” in and of
themselves, regardless of their manner and means, and thus as
violating the rule.
See also First Transit, Inc., 360 NLRB No. 72, slip op. at 2–3
(2014); 2 Sisters Food Group, 357 NLRB 1816, 1817 (2011);
Claremont Resort & Spa, 344 NLRB 832 (2005). I find, there-
fore, the portion of the rule requiring employees to voice con-
cerns about wages and other working conditions “respectfully”
is overly broad under extant caselaw.
Moreover, there is no exception carved out for Section 7 ac-
tivity with regard to the requirement to refrain from the conduct
set forth in the fourth paragraph of the rule, whether that con-
duct is directed at management or is among coworkers. The
Supreme Court has noted that protected concerted speech may
include “intemperate, abusive and inaccurate statements.” Linn
v. United Plant Guards, 383 U.S. 53 (1966). The Board has
distinguished between prohibitions that would not generally
implicate Section 7 protections, and those that would not. See
Palms Hotel & Casino 344 NLRB 1363, 1367–1368 (2005).
When read in context, the proscription on “threatening, mean-
ness, sarcasm, intolerance, . . . belittling and any other form of
harassment” in the instant rule falls into the former category
and is not problematic. It is clear the provision’s intent is to
foster mutual respect among coworkers. On the other hand,
“yelling” and “impatience” commonly arise in a multitude of
protected activities. A ban on these behaviors, without limiting
language, is overly broad. Employers can require employees to
be respectful and professional to each other and to customers,
but any such rule must make clear it does not encompass Sec-
tion 7 activity. No such clarification is present in the instant
rule.
The Respondent cites to Fiesta Hotel Corporation, 344
NLRB 1363, 1367 (2005), which involved a rule forbidding
employees from engaging in “any type of conduct, which is or
has the effect of being injurious, offensive, threatening, intimi-
dating, coercing, or interfering with fellow Team Members or
patrons.” The Board, however, has distinguished between rules
prohibiting protected concerted criticism of the employer and
rules requiring employees to be respectful and professional to
coworkers or customers.30 The rule in Fiesta Hotel does not
regulate conduct toward the employer, and is therefore distin-
guishable.
The Respondent also points to Copper River of Boiling
Springs, 360 NLRB No. 60 (2014). Much of the discussion in
Copper River, including the portions on which the Respondent
relies, concerned rules regarding behavior toward coworkers
and guests. As discussed below, I do not find certain aspects of
the instant rule to be overly broad in terms of treatment of
guests and coworkers during the course of serving the Restau-
rant’s patrons. The rule in Copper River regarding conduct
toward management prohibited “[i]nsubordination to a manager
or lack of respect and cooperation with fellow employees or
guests.” Id at fn. 2. The only proscribed conduct toward man-
agement in that rule was insubordination. In Casino San Pablo,
slip op. at 4, the Board distinguished rules prohibiting insubor-
dinate conduct toward management from rules prohibiting what
would reasonably be construed as conduct broader than insub-
ordination, including proscriptions on “disrespectful” conduct.
The rule in the instant case is not limited to insubordination
toward management. As such, Copper River is also distin-
guishable.31
To the extent the General Counsel and the Charging Party
assert that the language in the final paragraph regarding
maintenance of a positive culture and not losing one’s temper
or taking anger out on coworkers or guests is overly broad, I
find that it is not. The final paragraph, unlike the preceding
ones, clearly refers to the treatment of guests and coworkers
during the course of serving the Respondent’s patrons. No
reasonable reading of this paragraph, even when considered
with the other parts of the rule, is a restriction on Section 7
protected activity.32
Based on the foregoing, I find the General Counsel has met
its burden to prove the Team Member Relations/Positive Cul-
ture rule violates Section 8(a)(1).
2. The Timekeeping rule
Paragraph 6(b) of the complaint alleges that the Respond-
ent’s timekeeping rule violates Section 8(a)(1). The rule states:
Accurate recording of time worked is the responsibility of
every non-exempt Team Member. Grill Concepts, Inc. is re-
quired by law to keep accurate records of time worked. Time
worked is the time actually spent on the job performing as-
signed duties. You are NOT permitted to work while not
punched in.
Non-exempt Team Members are required to record accurately
the time they begin and end their work, as well as the begin-
ning and ending time of each meal period (in those states that
require such.) They also must record the beginning and end-
ing time of any split shift or departure from work for personal

30 General Counsel Memorandum 15–04 (March 28, 2015) discusses
this distinction in the Board’s caselaw.
31 The Respondent also cites to some ALJ decisions which are not
precedential and not as directly on point as the Board caselaw upon
which I have relied.
32 The Respondent may not lawfully interpret this part of the rule to
prohibit protected activity, and there is no evidence it has done so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
reasons. Overtime work always must be approved in advance
by the manager.
Please DO NOT loiter on restaurant property when not work-
ing. While off the clock and waiting to punch in, Team Mem-
bers should not be in the restaurant earlier than 15 minutes
prior to their scheduled starting time nor should they remain
more than 15 minutes after they clock out.
If an adjustment to the time record in Aloha or MenuLink is
needed due to a Team Member neglecting to clock-in or
clock-out properly, etc., the adjustment must be made by a
Manager and ONLY with the signed consent of the affected
Team Member. Hourly Managers or other Hourly Team
Members will not change their own time under any circum-
stance.
Altering, falsifying or tampering with time records, or record-
ing time on another Team Member’s time record or having
someone else record your time is strictly prohibited. Viola-
tion of these timekeeping rules is a serious policy violation
and will result in disciplinary action, up to and including ter-
mination.
(GC Exh. 2, p. 17, emphasis in original.)
The General Counsel and the Charging Party argue that the
provisions in the third paragraph not to loiter on the restaurant
property when not working and to avoid being in the restaurant
more than 15 minutes before punching in and after punching
out violate Section 8(a)(1).
Employers may maintain rules and policies tailored to legit-
imate business concerns, but may not “maintain overbroad no-
loitering rules that reasonably tend to chill the exercise of Sec-
tion 7 rights.” Tecumseh Packaging Solutions, Inc., 352 NLRB
694 (2008). In Lutheran Heritage Village-Livonia, the Board
found that a rule prohibiting “[l]oitering on company property
(the premises) without permission from the Administrator”
violated Section 8(a)(1) of the Act because it would reasonably
chill employees in the exercise of their Section 7 rights. Id. at
655. In so finding, the Board explained that employees reason-
ably would interpret the rule “to prohibit them from lingering
on the [r]espondent’s premises after the end of a shift in order
to engage in Sec[tion] 7 activities, such as the discussion of
workplace concerns.” Id. at 649 fn. 16. I find this reasoning
applies to the instant case, and the rule would likewise be rea-
sonably interpreted as prohibiting employees from gathering
before and after their shifts to engage in Section 7 activities.
The Respondent contends it is clear that the rule’s purpose is
to ensure accurate timekeeping and prevent employees from
working off the clock. (R. Exh. 2, p. 6.) This contention is
undermined, however, by the fact that accurate timekeeping
and avoiding off the clock work are addressed in the first para-
graph. The third paragraph is superfluous if it is meant to con-
vey nothing different. Moreover, the admonition not to loiter
makes clear this provision’s scope is broader.
The Respondent further argues that, when read the Compa-
ny’s policies regarding employee meals, employees would
reasonably construe that they should not come in early or stay
late in order to avoid working off the clock, but they may come
to the property any other time. The policy with regard to team
member meal discounts for hourly non-exempt employee’s
however, appears to apply to team members who are working a
scheduled shift at their own restaurant, and to employees “visit-
ing other restaurants” when not working. (GC Exh. 2, p. 39.)
In any event, the plain language of the provision, even in con-
text, is reasonably read as a restriction on employees meeting
together on the restaurant property before or after their shifts, in
both work and non-work areas, to engage in protected activity.
Finally, the Respondent argues that the Board’s test in Tri-
County Medical Center, 222 NLRB 1089 (1976), does not ap-
ply because the rule at issue does not ban all access. Even as-
suming it did, the Respondent argues the rule is lawful. In Tri-
County Medical Center, the Board held that an employer’s rule
barring off-duty employees access to their employer’s facility is
valid only if it: (1) limits access solely to the interior of the
facility, (2) is clearly disseminated to the employees, and (3)
applies to off-duty access for all purposes, not just for union
activity. Here, the rule, embodied in the handbook, was dis-
seminated to all employees and applies to off-duty access dur-
ing the 15 minutes before and after work for any purpose. The
rule does not limit access solely to the interior of the facility.
The Respondent argues, however, that the employees know the
Westin owns the property and the Company leases only the
restaurant space. The term “restaurant property” is not defined
in the handbook and the rule is not limited to interior working
areas. Considering that ambiguities must be construed against
the rule’s drafter, in this case the Respondent, I find that even if
the rule is evaluated under Tri-County Medical Center, it vio-
lates Section 8(a)(1). See Lafayette Park Hotel, supra at 828;
Murphy Oil, supra, slip op. at 26.
3. Code of Ethics: Relationships with Outside Parties
Paragraph 6(c) of the complaint alleges the Respondent’s
“Code of Ethics: Relationships with Outside Parties” rule vio-
lates the Act. The rule states, in relevant part:
Federal, state and local government departments and agencies
have regulations concerning acceptance by their employees of
entertainment, meals and gifts from firms and personnel with
whom the departments and agencies do business or over
whom they have regulatory authority. You may not give any
entertainment, meals or gifts to such government employees
or union officials unless they are of minimal value and are
clearly appropriate under the given circumstances. If you
question what is deemed an appropriate circumstance or what
is a minimal value please seek advice from a supervisor. You
may entertain socially any relatives of friends employed by or
representing government agencies or trade unions. However,
it should be clear, that the entertainment is not related to the
business or union affairs of GCI. No expenditure for such so-
cial entertainment is reimbursable by GCI to a Team Member.
(GC Exh. 2, p. 21.)
The General Counsel and the Charging Party contend that
this rule on its face prohibits Section 7 activity of employees
discussing union matters when entertaining union officials. I
agree.
The Respondent contends that the plain meaning of the lan-
guage makes it clear the rule addresses Section 302 of the La-
GRILL CONCEPTS SERVICES 23
bor Management Relations Act (LMRA). Perhaps it is clear to
one trained in labor law, but the rule nowhere mentions the
LMRA or how the rule purports to comply with it. From the
employees’ perspective, no such clarity is apparent. Nor could
it be, given the patent disconnect between the non-referenced
LMRA and the rule. The Respondent contends that the rule
merely restricts conduct proscribed by the LMRA, 29 USC §
186, which prohibits employers from paying, lending, or deliv-
ering money or gifts to labor unions and their representatives.
That provision of the LMRA, however, applies to an “employer
or association of employers or any person who acts as a labor
relations expert, adviser, or consultant to an employer. . . .” Id.
The instant rule restricts the actions of employees. The ra-
tionale therefore does not comport with the rule’s plain lan-
guage. There is not “one potential interpretation” that infringes
on employee rights, as the Respondent contends. It is instead
an express prohibition, and I find the General Counsel has
proved this allegation.
4. Team Member Conduct While Representing the Restaurant
Paragraph 6(d) of the complaint alleges the Respondent’s
“Team Member Conduct While Representing the Restaurant”
rule violate Section 8(a)(1). The pertinent part of the rule
states:
Team Members must refrain from any negative behaviors (as
listed in this manual) off the property while representing the
Restaurant. The Restaurant reserves the right to counsel any
Team Member who jeopardizes the welfare and/or reputation
of the Restaurant up to and including termination of employ-
ment.
Representing the company includes: All behaviors while
wearing Grill Concepts, Inc. uniform, or any other insignia or
logo apparel that represents Grill Concepts, Inc. or any of its
affiliates. Driving of company vehicles or running errands for
Grill Concepts, Inc. business; Usage of business cards with
any Grill Concepts, Inc. logo or other Grill Concepts, Inc. ma-
terials, letterhead, envelopes, etc.; Representation or recogni-
tion on a public online social media website; Sales activities,
social events in which you are recognized as an official Grill
Concepts, Inc. Team Member or other events in which identi-
ty as a Grill Concepts, Inc. Team Member is recognized or as-
sumed.
(GC Exh. 2, p. 26.)
The General Counsel and the Charging Party argue that the
rule is overly broad for a couple of reasons. First, the rule
threatens discharge of employees who jeopardize the welfare
and/or reputation of the restaurant. Both parties cite to Costco
Wholesale Corp., 358 NLRB 1100, 1100–1101 (2012), where
the Board found a policy prohibiting employees from making
statements “that damage the Company, defame any individual
or damage a person’s reputation” to be unlawful because the
rule had no “accompanying language that would tend to restrict
its application” to legitimate business concerns. This decision
was subsequently invalidated by the Supreme Court’s decision
in NLRB v. Noel Canning, a Division of the Noel Corp., 134
S.Ct. 2550 (2014), and I do not rely on it to support my find-
ings. The same holds true for Karl Knauz Motors, Inc., 358
NLRB 1754 (2012).33
The Respondent contends that this provision is similar to the
rules Flamingo Hilton-Laughlin, 330 NLRB 287 (1999), and
Lafayette Park Hotel, supra, which the Board found lawful.
The rule Flamingo Hilton-Laughlin prohibited “off-duty mis-
conduct that materially and adversely affects job performance
or tends to bring discredit to the Hotel.” Id. at 288. The rule in
Lafayette Park Hotel prohibited “[u]nlawful or improper con-
duct off the hotel’s premises or during non-working hours
which affects the employee’s relationship with the job, fellow
employees, supervisors, or the hotel’s reputation or good will in
the community.” The Board, in both cases, found that no rea-
sonable reading of these provisions suggested they were aimed
at curtailing protected activity. I agree with the Respondent
that, under current valid Board caselaw, the rule’s provision
admonishing any Team Member who jeopardizes the welfare
and/or reputation of the Restaurant, standing alone, does not
violate the Act.
This does not end the inquiry, however. The rule prohibits
“any negative behaviors” while representing the restaurant.
The Board has found that rules prohibiting “negative” speech
and behavior are unlawful. For example, in Roomstore, 357
NLRB 1690, 1690 fn. 3 (2011), the Board found a rule prohib-
iting “any type of ‘negative energy or attitudes” to be unlawful.
In Hills & Dales General Hospital, supra, the Board found a
rule prohibiting “negative comments about fellow team mem-
bers,” “engag[ing] in or listen[ing] to negativity, and requiring
employees to “represent [the Respondent] in the community in
a positive and professional manner” was overly broad. On the
other hand, the Board has found rules to be lawful when the
conduct they aim to prohibit clearly falls outside the Act’s pro-
tection, such as conduct that is abusive, injurious, threatening,
intimidating, coercing, and/or profane. See, e.g. Lutheran Her-
itage, supra; Palms Hotel and Casino, supra. Here, the term
“negative behaviors” is broad and vague, and easily interpreted
to include protected concerted activities protesting working
conditions. As the Charging Party and General Counsel point
out, the rule would reasonably be interpreted to apply to attend-
ance at a union event when the employee identifies himself or
herself as an employee and complains about working condi-
tions.
Moreover, the instant prohibition on “negative behaviors” is
expressly broadened in a manner that could not have been con-
templated by the Board in 1998 and 1999, when Flamingo Hil-
ton-Laughlin and Lafayette Park Hotel were decided. Specifi-
cally, the prohibition includes “[r]epresentation or recognition
on a public online social media website.” Thus, an employee
who is merely recognized as working for the Company on a
public online social media website and makes disparaging
comments protected by Section 7 is covered by this rule.
Clearly, such comments would fall within the vague definition

33 The General Counsel also references Dish Network Corp., 359
NLRB No. 108, which cites to Karl Knauz. No exceptions to the ALJ’s
finding in Dish Network that the rule violated the Act were filed, how-
ever.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
of negative behavior. See Triple Play Sports Bar & Grille, 361
NLRB No. 31, slip op. at 7 (2014).
The Respondent claims that the handbook outlines the nega-
tive behaviors are prohibited while on the property and includes
behaviors that are not protected under Section 7. Though the
provision at issue states, in parentheses, that the negative be-
haviors are listed in the manual, the rule does not contain or
provide reference to such a list. This distinguishes the instant
rule from a rule providing specific examples of the sort of be-
havior it purports to prohibit. See, e.g., Tradesmen Internation-
al, 338 NLRB 460, 462–463 (2002).
Progressive Discipline: Gross Misconduct
Complaint paragraph 6(e) alleges that the Respondent’s
“Progressive Discipline: Gross Misconduct” rule violates Sec-
tion 8(a)(1). The part of the rule at issue states:
A Team Member may be terminated for cause without prior
warning for committing any conduct issues as listed as Gross
Misconduct. Gross Misconduct issues include: intentionally
punching another Team Member’s time record, or having an-
other Team Member punch a time record; falsifying any rec-
ords or negotiable (including time records, expense reports, or
Team Member purchases); failure to participate in or inten-
tional falsification of a statement during a formal company
investigation; deliberate falsification of company hiring doc-
uments; proven or admitted theft of company property, anoth-
er Team Members property, or unauthorized removal of com-
pany property; possession, sale or consumption of alcohol
(sale of alcohol that is not part of our business or in violation
of law), illegal drugs, or prescription drugs that impact work
performance; possession of weapons or firearms on company
premises (does not apply to locked vehicles in TX and OK);
intentionally and/or illegally intimidating or harassing (sexual
or any other nature) Team Members, supervisors, or Guests;
fighting, or attempting to provoke a fight on company prem-
ises or on company time; malicious or careless actions result-
ing in injury to individuals or the destruction or loss of com-
pany property or another Team Members personal property;
physical assault of a supervisor or Team Member; leaving the
restaurant without notifying a member of the management
team; absence from work without properly notifying man-
agement for 2 or more days within a rolling 12 month period
(no call, no show); unauthorized disclosure of confidential or
privileged information concerning company or Team Mem-
bers; unauthorized markdowns (or failure to charge properly),
intentional unauthorized manipulation of the POS or any oth-
er company owned or managed computer system, or use of a
supervisors password without authorization. This is not a
complete list of infractions or is it intended to outline all in-
fractions that may result in disciplinary action, up to and in-
cluding termination.
(GC Exh. 2, p. 31.)
The General Counsel and the Charging Party assert that the
provision regarding participation in investigations and the con-
fidentiality provisions in this rule are overly broad.
Turning first to the confidentiality provision, in addition to
the current rule, the employee handbook defines confidential
information to include “all non-public information that might
be of use to competitors or may be harmful to our guests. It also
includes information that suppliers and guests have entrusted to
you.” (GC Exh. 2, p. 22.) It further defines confidential infor-
mation as including “guests/visitors/patrons names;
guest/vendor activities in the Restaurant; Team Mem-
ber/Manager activities; Financial information regarding the
Restaurant; Recipes.” (GC Exh. 2, p. 28.) In addition, the
handbook acknowledgment form states:
I am aware that during the course of my employment confi-
dential information will be made to me, i.e. Guest lists, pric-
ing policies, recipes, and other related information. I under-
stand that this information is critical to the success of Grill
Concepts, Inc. and must not be disseminated or used outside
of Grill Concepts premises. In the event of termination of em-
ployment, whether voluntary or involuntary, I hereby agree
not to utilize or exploit this information with any other indi-
vidual or company.
(GC Exh. 2, p. 76.)
The rule itself prohibits unauthorized disclosure of confiden-
tial or privileged information concerning coworkers. Because
there is no provision exempting discussions about wages, hours
and other working conditions, I find the rule is overly broad.
See U.S. DirecTV Holdings, LLC, 359 NLRB No. 54, slip op. at
3 (2013). The rule does not explicitly reference wage or salary
information. The provision, however, still prohibits employees
from disclosing confidential information about other employees
and is therefore overly broad. See Flamingo Hilton-Laughlin,
supra, at 291–292.
The Respondent points to Mediaone of Greater Florida, Inc.,
340 NLRB 277 (2003), to assert that a reasonable reading of
the rule here does not prohibit Section 7 activity. The rule in
Mediaone stated:
Proprietary Information
You’re responsible for the appropriate use and protection of
company and third party proprietary information, including
information assets and intellectual property. Information is
any form (printed, electronic or inherent knowledge) of com-
pany or third party proprietary information. Intellectual prop-
erty includes, but is not limited to:
• business plans
• technological research and development
• product documentation, marketing plans
and pricing information
• copyrighted works such as music, written
documents (magazines, trade journals,
newspapers, etc.), audiovisual productions,
brand names and the legal rights to protect
such property (for example, patents, trade-
marks, copyrights)
• trade secrets and non-public information
• customer and employee information, in-
cluding organizational charts and databases
• financial information
• patents, copyrights, trademarks, service
marks, trade names and goodwill.
GRILL CONCEPTS SERVICES 25
While it’s not improper for you to use proprietary information
in the general course of doing business, you must safeguard it
against loss, damage, misuse, theft, fraud, sale, disclosure or
improper disposal. Always store proprietary information in a
safe place.
You may not use or access the proprietary information of the
company or others for personal purposes or disclose non-
public information outside the company. Doing so could hurt
the company, competitively or financially. . . .
(Bold and italics in original.) The context in Mediaone was
obviously much more specific than the many types of “gross
misconduct” the instant rule outlines.
The Respondent also cites to Lafayette Park Hotel, supra,
where a majority of the Board upheld a standard of conduct
prohibiting employees from “[d]ivulging Hotel-private infor-
mation to employees or other individuals or entities that are not
authorized to receive that information.” The term “Hotel pri-
vate” was not defined in the rule, but the Board found it would
not be reasonably read to include employee wage discussions.
Here, unlike in Lafayette Park Hotel, the rule prohibits “unau-
thorized disclosure of confidential or privileged information
concerning company or Team Members.” (emphasis added).
Because of this, the substance of the rule implicates infor-
mation about employee wages and other working conditions in
a manner that the rule in Lafayette Park Hotel did not. The
same distinction holds true for K-Mart, 330 NLRB 263 (1999),
where the rule prohibited disclosure of “company and business
documents.”34
With regard to the provision about investigations, the Charg-
ing Party asserts that an employer “may not require an employ-
ee to participate in a formal company investigation into allega-
tions against it, including unfair labor practice charge allega-
tions.”35 (CP Br. 26.) The Charging Party points to Beverly
Health & Rehab. Servs., Inc., 332 NLRB 347, 356 (2000),
where the Board found a rule compelling employees to cooper-
ate, at the risk of discipline, in the investigation of “any …
violation of … laws, or government regulations” clearly applied
to unfair labor practice charges. The current rule provides that
a “Team Member may be terminated for cause without prior
warning for” . . . failure to participate in . . . a formal company
investigation.” The plain language of the rule requires coopera-
tion in company investigations, without limitation. This in-
cludes investigations related to Board charges and employees’

34 The Respondent also cites to Community Hospitals of Central
California v. N.L.R.B, 335 F.3d 1079 (D.C. Cir. 2003), which denied
enforcement to the Board’s order relating to, inter alia, a confidentiality
provision. I note that I am bound to follow the Board unless the Su-
preme Court dictates otherwise. Manor West, Inc., 311 NLRB 655, 667
fn. 43 (1993); see also Waco, Inc., 273 NLRB 746, 749 n.14 (1984)
(“We emphasize that it is a judge’s duty to apply established Board
precedent which the Supreme Court has not reversed. It is for the
Board, not the judge, to determine whether precedent should be var-
ied.”).
35 The General Counsel highlights this provision when setting forth
the rule, but does not provide argument regarding investigations. (GC
Br. 44–45.)
union sympathies, and the rule does not include any safeguards
required by Johnnie’s Poultry Co., 146 NLRB 770 (1964).
The Respondent argues that the rule should not be read to
presume that the Respondent will violate the law. This position
does not square with Board caselaw that the mere maintenance
of an overly broad rule under Lutheran Heritage, regardless of
whether it is enforced in a manner that violates the Act, is un-
lawful. Beverly Health & Rehab. Servs., supra. There is no
presumption either way. The rule, as reasonably read, includes
investigation into Board charges and union sympathies. As it
does not contain safeguards or limiting language, it violates
Section 8(a)(1).
6. Use of Your Likeness
Paragraph 6(f) of the complaint alleges the Respondent’s
“Use of Your Likeness (Name, Voice, Photo)” rule violates the
Act. The rule states:
At times, the company may use your likeness for the purpose
of training and development, Team Member programs, com-
pany recruiting materials, etc. Your continued employment is
consent for us to use your likeness for these purposes. If we
use your likeness in our marketing or advertising programs
we will ask you for additional consent.
(GC Exh. 2, p. 35.)
The General Counsel and the Charging Party, citing to citing
to Armstrong Machine Co., Inc., 343 NLRB 1149, 1172 (2004),
and In Re Allegheny Ludlum Corp., 333 NLRB 734 (2001),
argue that this rule violates Section 8(a)(1) because an employ-
er may not use an employee’s image or likeness in an antiunion
campaign without the employee’s voluntary consent.
The Respondent asserts that the purposes for which it may
use an employee’s likeness may is set forth in the rule, i.e.
training and development, Team Member programs, company
recruiting materials, and the like. I agree that the context of this
rule is clear, and find a reasonable reading of the rule would not
lead employees to believe they are required permit the Re-
spondent to use their likeness in antiunion material. While it is
true that the Respondent may not interpret the policy to require
employees to permit their likeness to be used in antiunion mate-
rial, the policy, as reasonably read, does not impinge on Section
7 rights. See Lutheran Heritage Village-Livonia, supra at 646–
647 (2004). I therefore recommend dismissal of this complaint
allegation.
7. Online Communications
The complaint, at paragraph 6(g), alleges the Respondent’s
“Online Communications” rule violates Section 8(a)(1). The
rule states, in relevant part:
Grill Concepts, Inc. (GCI) recognizes that online communica-
tion tools such as weblogs (“blogs”) and other online channels
(social media, chat rooms, etc.) increasingly serve as channels
for direct interaction with Guests, the media and other GCI
stakeholders. The company’s commitment to being direct
supports open communications by Team Members and other
GCI representatives, providing such communications are
transparent, ethical and accurate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
All online communication by GCI Team Members or compa-
ny representatives on behalf of GCI is subject to GCI’s Code
of Conduct and applicable electronic communication policies,
laws and regulations. GCI’s Code of Conduct sets forth a
standard of personal responsibility for Team Members both
inside and in some cases, outside the workplace. GCI’s
Online Communication Policy adopts the same standard.
1. Any GCI Team Member or representative engaging in
online, electronic dialogue as a delegate of the company is re-
quired to meet a standard that mandates: Transparency of
Origin. GCI requires that Team Members and other company
representatives disclose their employment or association with
GCI (e.g., First Name.Last Name@grillconcepts.com) in all
communications with Guests, the media or other GCI stake-
holders when speaking on behalf of GCI. GCI requires that
Team Members and other company representatives provide
contact information on request.
2. Accurate Information. GCI Team Members and other com-
pany representatives may not knowingly communicate infor-
mation that is untrue or deceptive. Communications should be
based on current, accurate, complete and relevant data. GCI
will take all reasonable steps to assure the validity of infor-
mation communicated via any channel but it is the Team
Member’s or other company representative’s responsibility to
assure accuracy in the first instance. Anecdotes and opinions
will be identified as such.
3. Ethical Conduct. GCI Team Members and other company
representatives will not conduct activities that are illegal or
contrary to GCI’s Code of Conduct, Privacy Policy, Harass-
ment Policy, and related policies.
4. Protection of Confidential and Proprietary Information.
GCI Team Members and other company representatives must
maintain the confidentiality of information considered GCI
confidential, including company data, Guest data, partner
and/or supplier data, personal Team Member data, and any in-
formation not generally available to the public. GCI Team
Members or company representatives who fail to comply with
this policy will be subject to discipline, up to and including
termination of employment from GCI. In addition, depending
on the nature of the policy violation or the online channel con-
tent, participants may also be subject to civil and/or criminal
penalties.
(GC Exh. 2, p. 28.)
I find this rule is overly-broad in a couple of respects. First,
as the Supreme Court has noted, protected concerted conversa-
tions can become contentious, yet they remain protected even
if the conversations include “intemperate, abusive and inaccu-
rate statements.” Linn v. United Plant Guards, 383 U.S. 53
(1966). The Board has held that the maintenance of a rule ban-
ning false or misleading statements violates the Act. See
Grandview Health Care Center, 332 NLRB 347, 348 (2000))
enfd. 297 F.3d 468, 476–479 (6th Cir. 2002); Lafayette Park
Hotel, supra, at 828.
In addition, the rule prohibits Board has protection of confi-
dential and proprietary information, including “personal Team
Member data.” This would reasonably be read to include data
about wages and other working conditions. See Three D, LLC,
361 NLRB No. 31 (2014).
The Respondent asserts that the rule limits the prohibitions to
employees who are speaking on behalf of the Company.36 I
disagree, and find a reasonable reading is at best ambiguous.
The second non-numbered paragraph discusses a code of con-
duct that applies to anyone speaking on the Company’s behalf.
The first numbered paragraph again refers to standards for em-
ployees who engage in electronic dialogue “as a delegate of the
company . . .” The next paragraphs, however, contain no such
limiting language. If the language limiting the restrictions to
employees speaking on the Company’s behalf in the second
non-numbered paragraph was intended to be global, the lan-
guage in the first numbered paragraph containing a similar
limitation is redundant. Considering that ambiguities must be
construed against the rule’s drafter, in this case the Respondent,
I find that that it violates Section 8(a)(1). See Lafayette Park
Hotel, supra at 828; Murphy Oil, supra, slip op. at 26.
8. Solicitation Rule
Complaint paragraph 6(h) alleges the Respondent’s solicita-
tion rule violates Section 8(a)(1). The provisions at issue state:
In an effort to ensure a productive and harmonious work envi-
ronment, outside persons may not solicit or distribute litera-
ture in the workplace at any time for any purpose. If you ob-
serve a non-Team Member distributing literature in the work-
place, please contact a manager immediately. Grill Concepts,
Inc. recognizes that Team Members may have interests in
events and organizations outside the workplace. However,
Team Members may not solicit or distribute literature con-
cerning outside activities or merchandise while in their work
area or while on-duty.
(GC Exh. 2, p. 34.)
The General Counsel and the Charging Party assert that the
rule unlawfully prohibits employees who are not working from
engaging in solicitation in work areas.
An employer has a right to impose some restrictions on em-
ployees’ statutory right to engage in solicitation at the work-
place. Solicitations involve approaching an employee or group
of employees to talk about the union, and often involve the
organizers asking employees if they want to sign a union card.
This can involve a back-and-forth, with questions and answers,
and, as such, the employer can require that this occur only
when all involved in the discussion are off the clock. The Su-
preme Court has agreed with the Board, however, that as long
as the employees are not on the clock, solicitations may occur
anywhere, including in work areas. Republic Aviation Corp. v.
NLRB, supra at 802–803 (1945); Our Way, Inc., 268 NLRB 394
(1983); Food Services of America, 360 NLRB No. 123, slip op.
at 7 (2014).
The Respondent cites to several cases standing for the cor-
rect proposition that employers can prohibit solicitation in
working areas during working time. The rule at issue here,
however, clearly states that employee cannot solicit in their

36 The Respondent also cites to Dresser-Rand Co., 358 NLRB 254
(2012). This decision was subsequently invalidated by the Supreme
Court’s decision in NLRB v. Noel Canning, supra.
GRILL CONCEPTS SERVICES 27
work area or while on duty. Simple elimination of the word
“or” would change the result, but the rule can only be read and
interpreted as written. The rule necessary includes solicitation
in employee work areas while they are not on duty, and it there-
fore violates Section 8(a)(1).
G. Dispute Resolution Program
Paragraph 7 of the complaint alleges the Respondent’s dis-
pute resolution agreement, acknowledgement of receipt of the
agreement, and opt-out provision, which have been contained
in its employee handbook since about July 2014, violate Sec-
tion 8(a)(1).37 The Dispute Resolution Arbitration Agreement
(DRAA) states:
In consideration for my employment and the continuation of
my employment with Grill Concepts (the “Grill”), and unless
I choose to opt out of this Agreement as set forth below, both
the Grill and I agree to submit for binding arbitration by a
neutral arbitrator any employment-related disputes (whether
brought by me or the Grill) which are not resolved through
the Grill’s employee appeal procedure or another informal
means. (I understand that the Grill’s employee appeal proce-
dure is not a required step before I may choose to bring my
claim in arbitration.) Employment-related disputes are any ac-
tual or alleged events, claims or disputes between me and the
Grill in connection with or concerning or arising out of my
employment, or the administration or termination of my em-
ployment, including those based upon alleged violations of
federal and/or state laws, including, but not limited to Title
VII of the Civil Rights Act of 1964, as amended, the Ameri-
cans with Disabilities Act, the Age Discrimination in Em-
ployment Act, the Fair Labor Standards Act, with the excep-
tion of claims for workers’ compensation benefits, unem-
ployment compensation benefits, claims under any of the
Grill’s employee welfare benefit and pension plans, and any
other claims prohibited by law from being resolved by arbitra-
tion. The Grill and I agree that any such matter, claim, dispute
or grievance will be subject to this arbitration provision re-
gardless of whether or not said matter, claim, dispute, or
grievance is with or against the Grill or an affiliate of the
Grill.
To the extent permitted by law, the Grill and I waive our
rights to have any employment-related disputes submitted as
part of a class or collective action in court or in arbitration.
This waiver shall not affect or diminish the substantive reme-
dies that may be awarded by an arbitrator.
I understand that my decision to accept or continue employ-
ment with the Grill constitutes my agreement to be bound by
this Dispute Resolution Arbitration Agreement.
I understand that my decision to accept or continue employ-
ment with the Grill constitutes my agreement to be bound by
this Dispute Resolution Arbitration Agreement unless I
choose to opt out of this Dispute Resolution Arbitration
Agreement by signing the attached Opt Out Notification and
delivering it to my General Manager within thirty (30) days of

37 The complaint was amended to separate the opt-out notification
from the acknowledgement of receipt.
my signature on this Agreement. If I decide to opt out of the
Dispute Resolution Arbitration Agreement, I understand that I
will be permitted to continue my employment.
. . .
BY SIGNING THIS AGREEMENT, THE PARTIES ARE
WAIVING THEIR RIGHT TO A JURY TRIAL OR A
COURT TRIAL OF ANY EMPLOYMENT-RELATED
DISPUTE, AS DEFINED ABOVE.
(GC Exh. 2, pp. 69–71.)
The acknowledgement of receipt form contains the following
pertinent provisions:
I have received a copy of the Grill Concepts, Inc. Dispute
Resolution Arbitration Agreement located in the Appendix of
this handbook and understand its contents. I understand that I
may opt out of the Arbitration Agreement by signing the Opt
Out Notification and delivering it to my General Manager
within 30 days of signing the Dispute Resolution Arbitration
Agreement.
The opt-out provision states:
I am notifying the Grill of my decision to opt out of the Dis-
pute Resolution Arbitration Agreement. To be effective, I un-
derstand that this Opt Out Notification must be signed and de-
livered to my General Manager within thirty (30) days from
the execution of my Dispute Resolution Arbitration Agree-
ment. I also understand that I may not opt out of my Dispute
Resolution Arbitration Agreement while I have any legal
claim pending which arose prior to my execution of this form
or which has been or could have been submitted to arbitration
at the time the claim arose.
I understand that by opting out of the Dispute Resolution Ar-
bitration Agreement I will not be entitled to (None) (con-
sideration), which is provided to Grill employees for partici-
pating in the Grill Dispute Resolution Arbitration program.
(GC Exh. 2, p. 93.)
1. Alleged prohibition of class and collective actions
Concerted legal action addressing wages, hours, and working
conditions falls within Section 7’s protections. See, e.g., Mur-
phy Oil, 361 NLRB No. 72 (2014); D. R. Horton, Inc., 357
NLRB 2277 (2012), enf. granted in part and denied in part 737
F.3d 433 (5th Cir. 2013):38 Eastex, Inc. v. NLRB, 437 U.S. 556,
565–566 (1978); Spandsco Oil & Royalty Co., 42 NLRB 942,
948–949 (1942); Salt River Valley Water Users Assn., 99
NLRB 849, 853–854 (1952), enfd. 206 F.2d 325 (9th Cir.
1953); Brady v. National Football League, 644 F.3d 661, 673
(8th Cir. 2011) (“lawsuit filed in good faith by a group of em-
ployees to achieve more favorable terms or conditions of em-
ployment is ‘concerted activity’ under §7 of the National Labor
Relations Act.”); Trinity Trucking & Materials Corp. v. NLRB,
567 F.2d 391 (7th Cir. 1977) (mem. disp.), cert. denied, 438
U.S. 914 (1978).

38 The Board in Murphy Oil reexamined D. R. Horton, and deter-
mined that its reasoning and results were correct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Applied to other legislation, resolution of a dispute through
class action in court as opposed to an individual arbitration is a
matter of procedure; the substantive rights can be vindicated in
either forum. Under the NLRA, the act of employees choosing
a collective forum, i.e. the procedure for bringing forward col-
lective or class claim regarding wages, hours, or other working
conditions, is among the core substantive conduct the statute
protects. Put more simply, the choice of procedure is the sub-
stance of the right. The Board, accordingly, has held that
agreements requiring employees to waive their right to partici-
pate in class or collective legal action violates the Act because
they “extinguish” a substantive right protected by Section 7.
Murphy Oil, supra, at 11; see also D. R. Horton, supra.
This case is different from Murphy Oil and D.R. Horton be-
cause the DRAA permits employees to opt out of arbitration
and pursue claims in court on a collective or class basis. The
Respondent argues that this case presents the “more difficult
question” of “whether . . . an employer can enter into an agree-
ment 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.” Dr. Horton, supra at fn. 28. Simply put,
does the Act permit such waiver? This boils down to whether
employees may be forced to choose whether or not to prospec-
tively and irrevocably waive their substantive right to band
together and bring a class or collective lawsuit against their
employer in an attempt to better their wages, hours, or other
working conditions.
The Respondent asserts that the strong federal policy in favor
of arbitration, along with the voluntary nature of the DRAA,
and the findings of various courts and administrative law judges
compels a conclusion that the DRAA is lawful.
The General Counsel and Charging Party assert that the
DRAA is unlawful because it is not truly voluntary, it consti-
tutes an irrevocable waiver of prospective Section 7 rights, it
requires employees to self-identify as choosing to preserve their
Section 7 rights, it is inconsistent with Board precedent finding
unlawful and unenforceable employee separation agreements
that waive or “trade away” the employee’s right to engage in
future concerted activity, it interferes with the rights of individ-
uals who have opted out to act concertedly with employees who
have not, and it permits employers to obviate employees’ rights
under the Act through private contracts. The Charging Party
further asserts that the DRAA is not voluntary for employees
with pending claims.
As a threshold issue, I must determine whether the DRAA is
a condition of employment. With regard to new employees
with any claim pending during the of the opt-out period, I find
the DRAA is a condition of employment. The DRAA states, “I
also understand that I may not opt out of my Dispute Resolu-
tion Arbitration Agreement while I have any legal claim pend-
ing which arose prior to my execution of this form or which has
been or could have been submitted to arbitration at the time the
claim arose.” (GC Exh. 2, p. 93, emphasis added.) For these
individuals, the DRAA is “consideration for [their] employ-
ment and the continuation of [their] employment with Grill
Concepts” and therefore a condition of employment.
For employees without pending claims, I find the DRAA it is
not a condition of employment. The opt-out provision is men-
tioned in the first sentence of the DRAA. Toward the end of
the DRAA it states, “If I decide to opt out of the Dispute Reso-
lution Arbitration Agreement, I understand that I will be able to
continue my employment.” The acknowledgment and receipt
again mention the opt-out provision. The Charging Party as-
serts that the opt-out provision is not attached to the DRAA and
is buried deep within the handbook. While the opt-out provi-
sion ideally would be attached to the DRAA, I find it is suffi-
ciently referenced with the DRAA and it is contained within the
same appendix to the handbook. While ideally it would be
attached to the DRAA, if the Respondent was attempting to
conceal the existence of the opt-out provision, it did a poor job
of it.
In addition, the evidence shows that current employees were
not required to sign the DRAA or sign in receipt of the hand-
book and thus be bound by the DRAA.39 Neither Goytia nor
Azad signed the DRAA or the acknowledgment and receipt of
the employee handbook, and no negative consequences ensued.
Moreover, Burnett provided unrefuted testimony that employ-
ees could decline to sign, and when this occurred, Burnett just
noted the employee declined to sign. These facts lead to the
conclusion that continued employment with the Respondent
was not conditioned upon signing the DRAA.40
As noted in footnote 28 of D.R. Horton, the Board has not
decided whether 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 employ-
ment disputes through non-class arbitration rather than litiga-
tion in court.” Murphy Oil and D.R. Horton make clear that the
Board will find unlawful any policy that “extinguishes” an
employee’s right to engage in such litigation. This leaves open
the question of whether an opt-out provision like the current
one, which does not eradicate the employees’ rights, nonethe-
less interferes with or coerces employees in this right.
Turning to the Act itself, under Section 8(a)(1), an employer
may not “interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7.” Section 7 states,
in pertinent part:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities.

39 This evidence pertains only to employees who were already work-
ing when the new employee handbook containing the DRAA went into
effect.
40 My finding, based in part on stipulation, that the DRAA is not, in
blanket form, a condition of employment, does not in any way preclude
individual claims that, under specified sets of facts not presented here,
it operated as one. It also does not equate with a finding that the
DRAA was voluntary no matter the set of facts under which an em-
ployee failed to opt out of it. Certainly, employees are not foreclosed
from claiming they were coerced or hoodwinked into believing they
needed to sign the agreement to retain their employment.
GRILL CONCEPTS SERVICES 29
(emphasis added.) The right to forego collective or class action
litigation belongs to the employee, so long as such right is vol-
untary and free of coercion. Clearly, an employee cannot be
forced to engage in any particular concerted activity, including
being party to a collective lawsuit.
The more difficult question is under what conditions, if any,
an employee can prospectively and irrevocably waive his or her
statutory right to engage in protected concerted activity. Abun-
dant caselaw has developed on the issue of when a union may,
through collective bargaining, waive employees’ statutory
rights. In the context of collective bargaining, “in order to es-
tablish a waiver of a statutory right, there must be a clear and
unmistakable relinquishment of that right.” Gem City Ready
Mix Co., 270 NLRB 1260, 1260–1261 (1984); see also In re
Tide Water Assoc. Oil Co., 85 NLRB 1096, 1098 (1949) (estab-
lishing the “clear and unmistakable” standard for waivers of
statutorily protected rights); Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 708 (1983) (“we will not infer from a general
contractual provision that the parties intended to waive a statu-
torily protected right unless the undertaking is ‘explicitly stat-
ed’. More succinctly, the waiver must be clear and unmistaka-
ble”); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 257 (2009).
With regard to individual employees who are not party to a
collective-bargaining agreement, the Board in Murphy Oil shed
some light on this question. Though the arbitration agreement
at issue in Murphy Oil was mandatory, to support its decision,
the Board relied on National Licorice Co. v. NLRB, 309 U.S.
350, 364 (1940), where the Supreme Court found the employer
could not contract with individual employees to relinquish their
rights under the Act. In National Licorice, a committee of three
employees negotiated a contract with the employer providing
for a wage increase, overtime, holiday pay, and vacation time.
The contracts as executed were between the employer and the
individual employees who signed them. Employees who
signed the contract relinquished their rights to strike, demand a
closed shop, or sign an agreement with any union. Employees
who did not sign the contract did not reap its benefits.
The focus in National Licorice was the employment con-
tracts themselves, not whether they were conditions of contin-
ued employment; they were not. Because the contracts dis-
couraged membership in a labor organization, and constituted
“yellow dog” agreements, they were found to be invalid. The
right to engage in concerted activity is just as protected as the
right to engage in union activity. The agreement, whether it is
a condition of employment or not, extracts a promise to refrain
from activity protected by Section 7, and is therefore invalid
under the reasoning set forth in National Licorice and like cas-
es. See also J.I. Case Co. v. NLRB, 321 U.S. 332, 340 (1944)
(contracts utilized as a means of interfering with rights guaran-
teed by the Act invalid); NLRB v. J.H. Stone & Sons, 125 F.2d
752, 756 (7th Cir. 1942) (employment contract requiring em-
ployees to attempt to resolve employment disputes individually
with employer is per se violation even if “entered into without
coercion” and not all employees signed because it was a “re-
straint upon collective action”); Jahn & Oilier Engraving Co.,
24 NLRB 893, 900–901, 906–907 (1940), enfd. in relevant
part, 123 F.2d 589, 593 (7th Cir. 1941).
That collective or class litigation is but one category of pro-
tected activity under the Act does not matter. Compare the
substantive right to freedom from religious discrimination un-
der Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. One of the many manifestations of this right is the free-
dom to seek religious accommodation from the employer to
permit the employee to observe his religion while retaining his
job. It is difficult to imagine an employment contract requiring
employees to agree they will not seek religious accommoda-
tion, with a 30-day opt-out provision, would pass muster. An
agreement to forego the protected concerted activity of class or
collective litigation, with a 30-day opt out provision, is a simi-
lar prospective waiver of substantive rights that should be ac-
corded no less protection. An obvious distinction is that the
Title VII example does not implicate the FAA because the right
to engage in collective or class litigation has nothing to do with
the substance of the right to be free from discrimination based
on religion.41 It is a distinction without a difference, however,
as the Board has addressed the interplay between the FAA and
the NLRA at length, and has determined that substantive rights
under the NLRA are protected, in no relative sense, despite the
strong federal policy in favor of arbitration. Murphy Oil, supra,
D. R. Horton, supra. 42
In Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072
(2014), on which the Respondent relies, the Court of Appeals
for the Ninth Circuit rejected arguments based on the reasoning
of National Licorice and J.I. Croson. Bloomingdale’s involved
an arbitration agreement with a 30-day opt-out provision simi-
lar to the one in the instant case.43 The court held that to pre-
vail on a claim under National Licorice and its progeny, the
plaintiff employee was required to show that the arbitration
agreement was “‘conduct immediately favorable to employ-
ees,’” which Bloomingdale’s undertook with the express pur-
pose of impinging upon its employees’ “‘freedom of choice’”
in deciding whether to waive or retain their right to participate
in class litigation.” 755 F.3d at 1076, quoting NLRB v. Exch.
Parts Co., 375 U.S. 405, 409 (1964). The Supreme Court has
found that “the informality of arbitral proceedings is itself de-
sirable, reducing the cost and increasing the speed of dispute
resolution.” AT&T Mobility LLC v. Concepcion, 131 S.Ct.
1740, 1749 (2011). It therefore confers a benefit upon employ-
ees.44 Moreover, the employer’s intent to impinge on employee

41 Though conditioning the ability of employees to arbitrate em-
ployment claims on an agreement to waive their right to seek reasona-
ble accommodation of their religious beliefs is no less offensive.
42 I also find the General Counsel’s arguments about the coercive ef-
fect of requiring employees to self-identify persuasive, but I need not
rely on this argument to support my conclusion herein that prospective
waiver of substantive statutory rights violates the Act.
43 The opt-out provision in Bloomingdale’s had some safeguards not
present here.
44 The irony of asserting the Court’s finding that arbitration is a ben-
efit for employees while arguing they should not be bound to arbitrate
their claims is not lost on me. I am not in a position to stray from the
Supreme Court’s findings in Concepcion, however. I note, nonetheless,
my skepticism that a collective or class action would achieve less
“streamlined proceedings and expeditious results” than, say, 1,000+
employees at the same company concertedly deciding to simultaneous-
ly demand individual arbitration of their separate (yet essentially the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
rights is not a required element of a Section 8(a)(1) violation,
so the employer’s purpose is not material.45
The Bloomingdale’s decision also addressed an argument,
under J.I Croson, that regardless of inducement, an employee
may never waive the right to participate in class or collective
litigation by negotiating an individual contract with her em-
ployer. The Ninth Circuit found J.I. Croson was limited to the
finding that an employer “may not negotiate individual con-
tracts with employees and then refuse to engage in collective
bargaining with the employees’ designated union representa-
tives on the ground that doing so would violate the terms of the
individual contracts.” Id. at 1076–1077. The Ninth Circuit
relied on the Supreme Court’s statement that “nothing prevents
an employee from making an individual contract with her em-
ployer, ‘provided it is not inconsistent with a collective agree-
ment or does not amount to or result from or is not part of an
unfair labor practice.’” Id at 1077, quoting J.I. Croson, 321
U.S. at 339. Since the court determined the agreement was not
an unfair labor practice, it found the arbitration agreement was
valid. My different conclusion about the applicability of Na-
tional Licorice, in line with the Board’s reasoning in Murphy
Oil, leads me to the opposite conclusion when applying J.I.
Croson.46
When discussing the Supreme Court’s decision in American
Express Co. v. Italian Colors Restaurant, ___ U.S. ___, 133
S.Ct. 2304 (2013), issued after D.R. Horton, the Board in Mur-
phy Oil also indicated that a contract prospectively waiving
substantive rights under the Act is unlawful in and of itself,
regardless of how it is applied. The Board noted that the Su-
preme Court, in Italian Colors, explained “the Federal policy
favoring arbitration, however liberal, does have limits. It does
not permit a ‘prospective waiver of a party’s right to pursue
statutory remedies,’ such as a ‘provision in an arbitration
agreement forbidding the assertion of certain statutory rights.’”
Murphy Oil, supra, slip op. at 11, quoting Italian Colors, supra,
133 S.Ct. at 2310 (internal quotation omitted).
The so-called “effective vindication” exception to the FAA,
“finds its origin in the desire to prevent ‘prospective waiver of a
party’s right to pursue statutory remedies.’” Italian Colors at
2310; quoting Mitsubishi Motors Corp. v. Soler Chrysler–
Plymouth, Inc., 473 U.S. 614, 637, fn. 19 (1985). In creating
the “effective vindication” exception to the FAA, the Supreme
Court held that, “so long as the prospective litigant effectively
may vindicate its statutory cause of action in the arbitral forum,
the statute will continue to serve both its remedial and deterrent

same) claims under the Fair Labor Standards Act (FLSA). The familiar
adage “Be careful what you wish for” comes to mind.
I further note that, while it may be argued arbitration is mutually
beneficial, and therefore not an inducement, many employment terms
deemed to be inducements, such as vacation time for employees, confer
benefits both on the employee and the employer.
45 Though framed as impinging on the employees’ choice of whether
to waive rights, the contract itself, regardless of its voluntariness, is
unlawful under National Licorice.
46 For these same reasons I am not persuaded by the reasoning of
Valley Health System, LLC, 2015 WL 1254854 (March 18, 2015), or
Bloomingdales, Inc., 2013 WL 3225945 (June 25, 2013), to which the
Respondent also cites.
function.” Mitsubishi Motors, supra at 637. In Mitsubishi Mo-
tors, the Court was clearly discussing the federal statute under-
lying the cause of action, which in that case was the Sherman
Act, 15 U.S.C. § 1 et seq. There was no reason for the Court to
discuss whether the FAA must yield to another federal statute
that was substantively implicated by the statute giving rise to
the underlying cause of action.
It is axiomatic that many of the NLRA’s protections neces-
sarily implicate other federal employment statutes, and specifi-
cally the right to pursue claims under them. 47 The question
not raised in Mitsubishi Motors is whether the effective vindi-
cation exception applies to waivers of federal statutory rights
necessary and attendant to the underlying claim, but not availa-
ble as a remedy to the underlying cause of action. In other
words, does the rationale underlying the effective vindication
exception change if the vindication is through the act of litigat-
ing itself, not from the remedy resulting from such litigation?48
The Board in Murphy Oil applied the reasoning of Mitsubishi
Motors, signaling that it does. The Board’s reasoning rationally
extends to the circumstance here, where the question is whether
to “permit” employees to prospectively waive their rights, not
whether a waiver may be required as a condition of employ-
ment.49
The Respondent argues that the strong federal policy in favor
of arbitration, as affirmed by the Supreme Court in Concepcion,
supra, CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 672
fn.4 (2012), compels a finding that the agreement here is law-
ful. In reaching its decisions in Murphy Oil and D.R. Horton,
the Board recognized the strong federal policy in favor of arbi-
tration and discussed it at length, distinguishing the above Su-
preme Court precedents. The Respondent also notes that nu-
merous decisions have permitted parties to agree to this type of
contract. I am bound, however, by the Board precedent, which
I find contrary to permitting an agreement like the one at issue
here.

47 As numerous cases illustrate, the FLSA is the underlying statute
for many of the class and collective claims giving rise to litigation
about arbitration agreements.
48 The statutory remedy flowing from the right to bring class or col-
lective actions under the Act is an order stating that the employer will
not interfere with the Section 7 rights of employees to bring such
claims, a notice posting, and rescission of the unlawful arbitration
agreement.
49 Though I do not find the nature of the opt-out provision relevant
given my finding that individual employees may not waive substantive
rights under the Act, I agree with my colleagues who have found opt-
out provisions such as the one here, where the employee gives up rights
by doing nothing, are coercive and interfere with Section 7 rights. See
24 Hour Fitness USA, Inc. , 2012 WL 5495007 (NLRB Div. of Judges,
Nov. 6, 2012); Mastec Services Co., Inc., 2013 WL 2409181 (NLRB
Div. of Judges, June 3, 2013); Securitas Security Services USA, Inc.,
2013 WL 5984335 (NLRB Div. of Judges, November 8, 2013); Kmart
Corp., 2013 WL 6115697 (NLRB Div. of Judges, November 19, 2013);
Dominos Pizza, 2014 WL 1267122 (NLRB Div. of Judges, March 27,
2014); RPM Pizza, 2014 WL 3401751 (NLRB Division of Judges, July
11, 2014); Kenai Drilling, 2015 WL 1647909 (NLRB Div. of Judges,
April 13, 2015); AT&T Mobility Services, 2015 WL 3955133 (NLRB
Div. of Judges, June 25, 2015); U.S. Express Enterprises, Case 10–CA–
141407 (NLRB Div. of Judges, July 16, 2015).
GRILL CONCEPTS SERVICES 31
2. Alleged interference with Board procedures
The General Counsel argues that the DRAA violates Section
8(a)(1) because it interferes with employees’ access to the
Board’s procedures.
The agreement states that “employment-related disputes” are
subject to arbitration. This is broadly defined to include “dis-
putes between me and the Grill in connection with or concern-
ing or arising out of my employment, or the administration or
termination of my employment.” It also explicitly includes
claims based on “alleged violations of federal and/or state laws,
including, but not limited to Title VII of the Civil Rights Act of
1964, as amended, the Americans with Disabilities Act, the
Age Discrimination in Employment Act, [and] the Fair Labor
Standards Act.” It specifically excludes “workers’ compensa-
tion benefits, unemployment compensation benefits, claims
under any of the Grill’s employee welfare benefit and pension
plans, and any other claims prohibited by law from being re-
solved by arbitration.”
Certainly many of the included claims could also describe
unfair labor practice claims. In addition, claims under the Act
are not specified in the excluded claims section. A reasonable
employee reading this in the context of the rest of the document
is not going to know that the phrase “any other claims prohibit-
ed by law” would excuse disputes resulting in NLRB charges
from arbitration. See 2 Sisters Food Group, Inc., 357 NLRB
1816, 1822 (2011).
Considering that ambiguities must be construed against the
employer, I find the DRAA violates Section 8(a)(1) because
employees would reasonably believe it encompasses Board
charges. See Aroostook County Regional Opthamology Center,
317 NLRB 218 (1995).
CONCLUSIONS OF LAW
1. By making implied threats of job loss, soliciting employee
complaints and grievances, interrogating employees about their
union activities and the union activities of other employees,
creating the impression that employees’ union activity was
under surveillance, promising employees the Company will no
longer retaliate against them, promising employees reconsidera-
tion of cutbacks to their hours, promising employees a new way
to request time off in order to discourage support for the union,
implementing time-and-a-half pay for holidays and a greater
employee discount for food at its restaurants in order to dis-
courage support for the union, announcing the opportunity for
employees to sign up for healthcare benefits in order to dis-
courage support for the union, promulgating and maintaining
overly broad rules, and promulgating and maintaining an un-
lawful dispute resolution arbitration agreement, the Respondent
has engaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. By the conduct described above, the Respondent has vio-
lated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having made an implied threat of job loss to an employee,
the Respondent will be ordered to cease and desist from this
action.
Having interrogated employees about union activities, the
Respondent will be ordered to cease and desist from these ac-
tions.
Having created the impression that employees’ protected ac-
tivities were under surveillance, the Respondent will be ordered
to cease and desist from this action.
Having promised employees they will no longer retaliate
against them to discourage support for the Union, the Respond-
ent will be ordered to cease and desist from this action.
Having promised its employees reconsideration of the cut-
backs to employees’ hours to discourage support for the Union,
the Respondent will be ordered to cease and desist from this
action.
Having promised employees a new way to request time off
to discourage support for the Union, the Respondent will be
ordered to cease and desist from this action.
Having implemented a new policy granting time-and-a-half
pay for employees who work certain holidays in order to dis-
courage support for the Union, the Respondent will be ordered
to cease and desist from this action.
Having granted employees a greater employee discount for
food at its restaurants in order to discourage support for the
union, the Respondent will be ordered to cease and desist from
this action.
Having maintained the following overly-broad rules:
• Team Member Relations/Positive Culture
• Timekeeping
• Code of Ethics/Relationships with Outside Parties
• Team Member Conduct While Representing the Res-
taurant
• Progressive Discipline: Gross Misconduct
• Online Communications
• Solicitations
the Respondent will be ordered to revise or rescind these rules,
and advise its employees in writing that said rules have been so
revised or rescinded.
Having maintained an unlawful dispute resolution arbitration
agreement and acknowledgement of receipt of the agreement,
the Respondent will be ordered to revise or rescind this agree-
ment and acknowledgment of receipt, and advise its employees
in writing that these documents have been so revised or re-
scinded.
The Respondent shall be required to post a notice informing
employees of its violations of the Act.
The General Counsel, at complaint paragraph 13, has re-
quested that the notice be read aloud, in English and Spanish,
by the Respondent’s representatives in the presence of a Board
agent at meetings scheduled during working time. Alternative-
ly, the General Counsel suggests the notice be read in the same
manner by a Board agent in the presence of the individuals
listed in complaint paragraph 5.
The Board has required that notices be read aloud by high-
ranking officials or a Board agent when numerous serious un-
fair labor practices have been committed by a high-ranking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
management official. Allied Medical Transport, Inc., supra at 6,
fn. 9 (2014). When unfair labor practices are severe and wide-
spread, having the notice read aloud to employees allows them
to “fully perceive that the Respondent and its managers are
bound by the requirements of the Act.” Federated Logistics &
Operations, 340 NLRB 255, 258 (2003), affd. 400 F.3d 920,
929–930 (D.C. Cir. 2005); see also Homer D. Bronson Co.,
349 NLRB 512, 515 (2007). Though I have found numerous
violations, I do not find they were widespread enough or suffi-
ciently egregious to warrant this enhanced remedy.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended50
ORDER
The Respondent, Grill Concepts, Inc., d/b/a The Daily Grill,
Los Angeles, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Making implied threats of job loss
(b) Soliciting employee complaints and grievances in order
to dissuade employee support for the Union
(c) Coercively interrogating employees about their union ac-
tivities and the union activities of other employees
(d) Creating the impression that employees’ union activity is
under surveillance
(e) Promising employees the Company will no longer retali-
ate against them in order to discourage employee support for
the Union
(f) Promising employees reconsideration of cutbacks to their
hours in order to discourage employee support for the Union
(g) Promising employees a new way to request time off in
order to discourage employee support for the Union
(h) Implementing time-and-a-half pay for holidays and a
greater employee discount for food at its restaurants in order to
discourage employee support for the union
(i) Announcing the opportunity for employees to sign up for
healthcare benefits in order to discourage support for the union
(j) Promulgating and maintaining the following overly broad
rules:
• Team Member Relations/Positive Culture
• Timekeeping
• Code of Ethics/Relationships with Outside Parties
• Team Member Conduct While Representing the Res-
taurant
• Progressive Discipline: Gross Misconduct
• Online Communications
• Solicitations
(k) Promulgating and maintaining an unlawful dispute reso-
lution arbitration agreement and acknowledgement of receipt.
(l) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

50 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the dispute resolution arbitration agreement and
acknowledgment of receipt or revise these documents in a
manner that makes it clear employees will not prospectively
waive their protected rights to bring class and/or collective
lawsuits if they do not affirmatively opt out of the agreement.
(b) Advise its employees in writing that these documents
have been so revised or rescinded.
(c) Within 14 days after service by the Region, post at its fa-
cility in Los Angeles, California, copies of the attached notice
marked “Appendix in both English and Spanish.”
51
Copies of
the notice, on forms provided by the Regional Director for Re-
gion 21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained 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, the 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 customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 31,
2014.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. August 6, 2015
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

51 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.”
GRILL CONCEPTS SERVICES 33
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT make implied threats of job loss if you choose
to support the union.
WE WILL NOT solicit employee complaints and grievances to
discourage you from supporting the union.
WE WILL NOT interrogate you about your union activities and
the union activities of other employees.
WE WILL NOT create the impression that your union activities
are under surveillance.
WE WILL NOT promise we will no longer retaliate against
employees in order to discourage support for the union
WE WILL NOT promise reconsideration of cutbacks to your
hours in order to discourage support for the union.
WE WILL NOT promise you a new way to request time off in
order to discourage support for the union.
WE WILL NOT implement time-and-a-half pay for holidays
and a greater employee discount for food at its restaurants in
order to discourage support for the union.
WE WILL NOT announce the opportunity for employees to
sign up for healthcare benefits in order to discourage support
for the union.
WE WILL NOT promulgate or maintain the following overly
broad rules:
• Team Member Relations/Positive Culture
• Timekeeping
• Code of Ethics/Relationships with Outside Parties
• Team Member Conduct While Representing the Res-
taurant
• Progressive Discipline: Gross Misconduct
• Online Communications
• Solicitations
WE WILL NOT promulgate or maintain an unlawful dispute
resolution arbitration agreement and acknowledgment of re-
ceipt.
WE WILL rescind or revise the following overly broad rules:
• Team Member Relations/Positive Culture
• Timekeeping
• Code of Ethics/Relationships with Outside Parties
• Team Member Conduct While Representing the Res-
taurant
• Progressive Discipline: Gross Misconduct
• Online Communications
• Solicitations
and notify you that these rules have been rescinded or revised.
WE WILL rescind the dispute resolution arbitration agreement
and acknowledgment of receipt or revise these documents in a
manner that makes it clear employees will not prospectively
waive their protected rights to bring class and/or collective
lawsuits if they do not affirmatively opt out of the agreement.
WE WILL advise you in writing that these documents have
been so revised or rescinded
GRILL CONCEPTS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-126475 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, 1099 14th
Street, N.W., Washington, D.C. 20570, or by calling (202) 273–
1940.