The Rose Group d/b/a Applebee's and Applebee's Restaurants as joint and single employers

National Labor Relations Board - Administrative Judge Opinions

Apr 22, 2015

05-CA-135360 (N.L.R.B. Apr. 22, 2015)

JD–24–15
Newtown, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
THE ROSE GROUP D/B/A APPLEBEE’S RESTAURANT
and Case 05–CA–135360
JEFF ARMSTRONG, An Individual
Andrew Andela, Esq.,
for the General Counsel.
Thomas Lewis and Jonathan A. Scobie, Esqs., (Stevens & Lee),
for the Respondent.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was tried in Baltimore, Maryland,
on February 26, 2015. The Charging Party filed the charge on August 25, 2014, and the General
Counsel issued the complaint on November 28, 2014. The complaint alleges that the Respondent
violated Section 8(a)(1) of the National Labor Relations Act (the Act) by maintaining a Dispute
Resolution Program containing a mandatory arbitration provision and prohibiting pursuit of class
or collective actions.
No witnesses were presented at the hearing. The General Counsel and the Respondent
reached stipulations that would obviate the need for a hearing. However, the Charging Party did
not agree to waive a hearing. Therefore, we convened in order to afford the Charging Party the
opportunity to state his objections on the record. The Charging Party did not appear, but
expressed his objections to the General Counsel prior to the hearing, and the General Counsel
reported those objections on the record. As I determined that those objections were either a
matter of semantics or raised issues that are not material, I accepted the stipulations and granted
the parties’ motion to issue a decision on a stipulated record.
On the entire record, and after considering the briefs filed by the General Counsel and the
Respondent, I make the following
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2
FINDINGS OF FACT
I. JURISDICTION
5
The Respondent, The Rose Group, consists of several entities including one called
Delaware Valley Rose LP, which has a principal place of business in Newtown, Pennsylvania. It
operates public restaurants (Applebee’s Neighborhood Bar and Grill) selling food and beverages
in Pennsylvania, New Jersey, Maryland, and Delaware, including one in Rehoboth Beach,
Delaware. In the 12-month period preceding the hearing, the Respondent derived gross revenues 10
in excess of $500,000, and purchased and received at its Rehoboth Beach facility goods valued
in excess of $5000 directly from points located outside the State of Delaware. Therefore I find
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
15
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
Overview20
The essential facts are recited in the Stipulation reached between the General Counsel
and the Respondent, and are outlined herein. (Jt. Exh. 1.) Since about April 2013, the
Respondent has maintained rules and regulations regarding the resolution of workplace disputes,
entitled the Dispute Resolution Program. A copy of the booklet containing the terms of that 25
program is issued to all new employees of restaurants operated by Delaware Valley Rose,
including the Rehoboth Beach facility. (Jt. Exh. 2.) Since about April 2013, the Respondent has
required all of its employees employed by Delaware Valley Rose, including those at the
Rehoboth Beach facility, to sign an agreement and receipt for the Dispute Resolution Program as
a condition of employment. (Jt. Exh. 3.)30
Dispute Resolution Program
Under the Dispute Resolution Program, all covered workplace disputes must be resolved
through arbitration. “THIS PROGRAM IS A CONDITION OF YOUR EMPLOYMENT AND 35
IS THE MANDATORY AND EXCLUSIVE MEANS BY WHICH THOSE PROBLEMS MAY
BE RESOLVED, SO READ THE INFORMATION IN THIS BOOKLET CAREFULLY.”
(Emphasis in original.) (Jt. Exh. 2, p. 1.) “This Program shall constitute the mandatory and
exclusive means by which all covered workplace claims may be resolved. The submission of an
application, acceptance of employment, or the continuation of employment by an individual shall 40
be deemed to be acceptance of the Dispute Resolution Program. No signature shall be required
for the policy to be applicable. This agreement applies and extends to all future employment with
the company and shall survive any termination and/or resignation.” (Jt. Exh. 2, p. 7.)
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3
The section captioned Claims Subject to Arbitration provides that:
Claims and disputes subject to arbitration include all those legal claims you may 5
now or in the future have against the Company . . . or against its officers, directors,
shareholders, employees or agents, including claims related to any Company employee
benefit program . . . and all claims that the Company may now or in the future have
against you, whether or not arising out of your employment or termination, except as
expressly excluded under the ‘Claims Not Subject to Arbitration’ section below.10
The legal claims subject to arbitration include, but are not to be limited to:
-claims for wages or other compensation;
-claims for breach of any contract, covenant or warranty (express or implied);
-tort claims (. . . but excluding statutory workers compensation claims);
-claims for wrongful termination;15
-sexual harassment;
-discrimination (including but not limited to, claims based on race, sex, sexual
orientation, religion, national origin, age, medical condition or disability whether under
federal, state or local law);
-claims for benefits or claims for damages or other remedies under any employee benefit 20
program sponsored by the Company (after exhausting administrative remedies under the
terms of such plans);
-“whistleblower” claims under any federal, state or other governmental law, statute,
regulation or ordinance;
-claims for a violation of any other non-criminal federal, state or other governmental law, 25
statute, regulation or ordinance; and
- claims for retaliation under any law, statute, regulation or ordinance, including
retaliation under any workers compensation law or regulation.
(Jt. Exh. 2, p. 4.)
30
The section captioned Claims Not Subject to Arbitration provides that:
The only claims or disputes not subject to arbitration are as follows:
-any claim by an employee for benefits under a plan or program which provides its
own binding arbitration procedure;35
-any statutory workers compensation claim;
-unemployment insurance claims; and
-any lawful claim(s) brought under the Dodd Frank Act’s whistleblower protection,
pursuant to 15 U.S.C. Section 1514A, et seq., is exempted from this DRP plan.
(Ibid.)40
Further, “(a)ny non-legal dispute is not subject to arbitration. Examples include disputes
over a performance evaluation, issues with co-workers, or complaints about your work-site or
work assignment which do not allege a legal violation.” (Ibid.)
45
The program also expressly prohibits pursuit of class or collective claims. “The employee
and company each agree, that there shall be no class or collective action arising from any
JD–24–15
4
employee’s claim(s), and each employee may only maintain a claim under this plan on an
individual basis and may not participate in a class or collective action.” (Ibid.)
The booklet sets forth the procedures to be followed, beginning with internal steps. If the
matter is not resolved internally, then either party may request mediation with a professional 5
contract mediator. If that is unsuccessful, then binding arbitration by an American Arbitration
Association arbitrator is the final step. (Jt. Exh. 2, p. 1 - 4.) Under the final section, “Not an
Employment Contract/Exclusive Remedy,” it states, “[t]his program will prevent you from filing
a lawsuit in Court for individual relief for a legal claim subject to arbitration.” (Jt. Exh. 2, p. 7.)
10
The program expressly permits aggrieved employees to file with Government entities. In
that same final section of the booklet, it states, “(h)owever, the Program will not prevent you
from filing a charge with any state or federal administrative agency.” (Jt. Exh. 2, p. 7.)
Charging Party’s Involvement15
The Charging Party was hired by the Respondent as a server at its Rehoboth Beach
facility on April 6, 2013. On that date, he electronically signed a copy of the dispute resolution
agreement. (Jt. Exh. 3.) The Charging Party was, therefore, subject to the terms and conditions
of that agreement from that date forward.20
The Respondent has a policy, known as the 85-15 policy, which requires servers to
certify when clocking out at the end of their shift whether they spent at least 85 percent of their
work hours on guest-facing tasks related to serving customers. The policy serves the dual
functions of being a customer service initiative as well as monitoring compliance with the Fair 25
Labor Standards Act (FLSA). The Charging Party complained to the Respondent that, on June
15, 2014, he had been disciplined for failing to certify having spent 85 percent of his worktime
on guest-facing tasks related to serving customers. He also complained to the Respondent in June
2014 that requiring him to call in on his day off, in accordance with company policy, was not in
conformance with the FLSA. 30
The Charging Party filed a charge with the National Labor Relations Board on August
25, 2014, alleging that the Respondent discriminated against him due to his protected concerted
activities when it terminated his employment and gave him bad employment references, and that
the Respondent maintains an unlawful mandatory arbitration policy. On October 31, 2014, the 35
Regional Director for Region 4 dismissed the first and second allegations. (Jt. Exh. 4.)
There is no evidence that the Charging Party has ever engaged in protected concerted
activity. Although the Charging Party no longer works for the Respondent, the Respondent did
not formally terminate him. The Charging Party has never filed a legal claim, as defined in the 40
Dispute Resolution Program and Agreement, against the Respondent in court or in arbitration.
The Charging Party never requested arbitration. The Respondent has never enforced or attempted
to enforce the arbitration or class action terms of the Dispute Resolution Program and Agreement
against the Charging Party.
JD–24–15
5
B. The Parties’ Positions
Relying primarily on the Board’s decisions in D.R. Horton, Inc., 357 NLRB No. 184
(2012), enf. denied in relevant part 737 F. 3d.344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 5
NLRB No. 72 (2014), the General Counsel contends that the Respondent violated Section 8(a)(1)
of the Act by maintaining the Dispute Resolution Program and Agreement, that mandates
binding arbitration and precludes employees from filing class or collective actions. The General
Counsel further asserts that employees would reasonably construe language in the agreement to
preclude them from filing charges with the National Labor Relations Board, thus chilling the 10
exercise of their Section 7 rights, also in violation of Section 8(a)(1).
The Respondent contends that the Board has no jurisdiction over the instant complaint
since the Charging Party never exercised his Section 7 rights; he did not engage in any protected
concerted activity; he raised no allegations regarding any other employee but only raised 15
individual allegations in his charge to the Board (that were dismissed); his complaints to the
Respondent involved the FLSA, not the NLRA; and the Respondent has never attempted to
enforce the terms of the Dispute Resolution Program and Agreement against the Charging Party.
The Respondent asserts that the program and agreement is lawful under Federal circuit 20
court law, including the Supreme Court’s interpretation of the Federal Arbitration Act (FAA). It
contends that there is no substantive right to bring a class action under the FLSA, which is the
statute actually invoked by Charging Party. Further, it asserts that the NLRA does not fall within
the statutory exceptions to the FAA (the FAA savings clause or a Congressional command to
override the FAA). The Respondent argues that D.R. Horton and Murphy Oil were incorrectly 25
decided and that therefore I should not follow the Board’s decisions but, rather, Federal court
decisions. The Respondent further contends that, even under the Board’s decisions, the program
and agreement is lawful since it explicitly allows employees to file charges with administrative
agencies.
30
Finally, the Respondent maintains that the complaint is barred by Section 10(b) of the
Act because the charge was filed more than 18 months after the Charging Party signed the
arbitration agreement, and there has been no reaffirmation or enforcement of the agreement
within that time period.
35
III. LEGAL STANDARDS AND ANALYSIS
A. Does the Board Have Jurisdiction Over This Complaint?
The Respondent argues that the Board has no jurisdiction over this complaint since the 40
Charging Party has never engaged in any protected concerted activity. He raised no allegations
regarding any other employees, but only raised two individual allegations in his charge (that
were dismissed); his complaints to the Respondent involved alleged violations of the FLSA, not
the NLRA; and the Respondent has never attempted to enforce the terms of the Dispute
Resolution Program against the Charging Party.45
JD–24–15
6
These arguments are without merit. The fact that there is no underlying unfair labor
practice, and the only allegation pertains to maintenance (not enforcement) of a policy, is of no
relevance. Maintenance of a rule that violates employees’ Section 7 rights is in itself a violation
of Section 8(a)(1). Register-Guard, 351 NLRB 1110, 1110 fn. 2 (2007), enfd. in part 571 F.3d 53
(D.C. Cir. 2009), citing Eagle-Picher Industries, 331 NLRB 169, 174 fn. 7 (2000); see also 5
Lafayette Park Hotel, 326 NLRB 824, 825 (1998).
I find that the Board has jurisdiction over the complaint allegation, that is, whether the
Dispute Resolution Program and Agreement violates Section 8(a)(1) of the Act.
10
B. Is the Complaint Barred by the Statute of Limitations?
Section 10(b) of the Act states in relevant part that “no complaint shall issue based upon
on any unfair labor practice occurring more than six months prior to the filing of the charge with
the Board.” The Respondent contends that Section 10(b) bars the instant action since the charge 15
was filed on August 25, 2014, more than 6 months after the Charging Party signed the agreement
on April 6, 2013.
It is undisputed that the Charging Party filed the charge more than 6 months after
executing the agreement. He never reaffirmed the agreement, and the Respondent has never 20
sought to enforce the agreement against the Charging Party. It is also undisputed that the
Dispute Resolution Program is still maintained by the Respondent.
It is well established that Section 10(b) does not bar allegations of unlawful practices that
began more than 6 months before a charge was filed but have continued within the 6-month 25
period. Specifically, it does not bar a complaint allegation based on the maintenance of a facially
invalid rule or policy within the 10(b) period, even if the rule or policy was promulgated earlier
and has not been enforced. Cellular Sales of Missouri, LLC, 362 NLRB No. 27 (2015). “The
Board has held repeatedly that the maintenance of an unlawful rule is a continuing violation,
regardless of when the rule was first promulgated.” (Id. at 2.) 30
Therefore, I find that Section 10(b) of the Act does not bar the instant complaint.
C. Does the Respondent’s Dispute Resolution Program and Agreement Unlawfully Prohibit
Employees From Engaging in Protected Concerted Activity? 35
Section 7 of the Act confers on employees a substantive right to engage in concerted
activity. See Murphy Oil, supra. Section 8(a)(1) makes it unlawful for an employer “to interfere
with, restrain, or coerce employees in the exercise of rights guaranteed” in Section 7.
40
The Respondent’s Dispute Resolution Program and Agreement requires employees, as a
condition of employment, to sign an agreement waiving their right to pursue claims on a
collective or classwide basis in any forum. Only individual claims are permitted in the program.
Binding arbitration is the final step in the program, and the program prohibits employees from
then filing in court. 45
JD–24–15
7
In D. R. Horton, the Board held that an employer violates Section 8(a)(1) when it requires
employees who are covered by the Act, as a condition of employment, to sign an agreement that
precludes them from filing joint, class, or collective claims addressing their wages, hours, or
other working conditions against the employer in any forum, arbitral or judicial. D. R. Horton at
12. The Board determined that this was an unlawful restriction of employees’ Section 7 right to 5
engage in concerted activity, notwithstanding the Federal Arbitration Act. The Board recently
made a similar finding in Cellular Sales of Missouri, 362 NLRB No. 27, slip op. at 1 (2015).
The Respondent asserts that this case must be decided under the FAA. It relies upon a
Federal court decision finding that “collective action waivers of the FLSA are not subjectively 10
unconscionable here.” Porreca v. Rose Group, No. Civ. A. 13–1674, 2013 WL 6498392 at 16
(E.D. Pa., Dec. 11, 2013), relying on AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011),
and Quilloin v. Tenet HealthSystem Philadelphia, Inc., 673 F.3d 221 (3d Cir. 2012). However,
this case does not involve the FLSA, but the NLRA.
15
Most of the Respondent’s myriad legal arguments merely rehash those addressed by the
Board in Murphy Oil, and there is no need for me to repeat the Board’s reasoning herein, as that
decision powerfully speaks for itself. The Respondent’s challenges to the validity of D.R.
Horton and Murphy Oil are made in vain. I am aware of the various Federal circuit court
decisions that have declined to adopt the Board’s reasoning, holding instead that arbitration 20
agreements requiring the waiver of class or collective actions do not violate Section 8(a)(1).
However, the Board has not acquiesced to those contrary Federal court decisions. See D. L.
Baker, Inc., 351 NLRB 515, 529 fn. 42 (2007); Pathmark Stores, Inc., 342 NLRB 378 fn. 1
(2004). The administrative law judge is required to apply established Board precedent that has
not been reversed by the Supreme Court. See Pathmark Stores, supra; Waco, Inc., 273 NLRB 25
746, 749 fn. 14 (1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963), enf. granted in part 331
F.2d 176 (8th Cir. 1964). The Supreme Court has not ruled directly on the issue before me.
Therefore, D. R. Horton and Murphy Oil are controlling, and the Respondent’s arguments are
more appropriately directed to the Board.
30
The Respondent further argues that, even if D. R. Horton and Murphy Oil are controlling,
the instant situation is distinguishable. I disagree. The facts in the cases are not identical, but the
legal theory is applicable.
The Respondent’s Dispute Resolution Program and Agreement precludes employees 35
from pursuing any class or collective claim in any forum. Therefore, I find that the Respondent’s
maintenance of the Dispute Resolution Program and Agreement violates Section 8(a)(1), as
alleged in the complaint.
D. Would Employees Reasonably Construe the Dispute Resolution Program and Agreement 40
to Prohibit Section 7 Activity?
Employees’ Section 7 right to engage in concerted activity includes the right to file
charges with the Board. U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255 Fed.
Appx. 527 (D.C. Cir 2007). 45
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It is well settled that an employer’s maintenance of a work rule which reasonably tends to
chill employees’ exercise of their Section 7 rights violates Section 8(a)(1) of the Act. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd mem. 203 F.3d 52 (D.C. Cir. 1999). A work rule
which does not explicitly restrict Section 7 activity will nonetheless be found unlawful where the
evidence establishes one of the following (i) employees would “reasonably construe” the rule’s 5
language to prohibit Section 7 activity; (ii) the rule was “promulgated in response” to union or
protected concerted activity; or (iii) “the rule has been applied to restrict the exercise of Section 7
rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
Further, ambiguities in work rules are construed against the party which promulgated 10
them. See Supply Technologies, LLC, 359 NLRB No. 38 (2012); Lafayette Park, supra at 828.
Although this case does not involve a work rule, per se, but a program and agreement
signed by employees, the fact that the rule is in the form of an agreement is of no consequence
since it is not voluntary but imposed as a condition of employment. It is therefore analyzed as 15
any other unilaterally implemented workplace rule.
The program and agreement at issue does not explicitly prohibit filing a charge with the
Board. It does, however, very broadly define the matters subject exclusively to resolution
through arbitration. The booklet states that claims and disputes subject to arbitration include all 20
legal claims against the Company, and lists a number of types of claims as examples.
Significantly, the list of claims not subject to arbitration lists four specific claims as the only
claims or disputes not subject to arbitration.
Similar policies have been found by the Board to be unlawful. 2 Sisters Food Group, 25
Inc., 357 NLRB No. 168 at 1–2 (2011) (policy requiring that employees submit “all
[employment] disputes and claims” to arbitration could be reasonably interpreted to preclude the
filing of charges with the Board); U-Haul Co. of California, 347 NLRB 375 (2006) (agreement
requiring arbitration of “all disputes relating to or arising out of an employee’s employment . . .
or the termination of that employment,” including “any other legal or equitable claims and 30
causes of action recognized by local, state, or federal law or regulations” is unlawful); Cellular
Sales of Missouri, 362 NLRB No. 27, slip op. at 1 fn. 4 (2015) (work rule reasonably construed
to interfere with ability to file charges with Board even if the rule did not expressly prohibit
access to Board).
35
The General Counsel contends that the Respondent’s Dispute Resolution Program and
Agreement violate Section 8(a)(1) of the Act in that it may reasonably be interpreted to prohibit
the filing of unfair labor practices charges and would, therefore, tend to chill the employees’
exercise of their rights under Section 7. The Respondent counters that the program expressly
states, “[h]owever, the Program will not prevent you from filing a charge with any state or 40
federal administrative agency.” It argues further that the unrepresented Charging Party
nonetheless filed the instant charge, demonstrating that he understood the language and was not
inhibited from filing with the Board. The General Counsel acknowledges that provision, but
notes that it is on the last page of the booklet, under the heading “Not an Employment
Contract/Exclusive Remedy,” and the disclaimer is immediately followed by a sentence 45
reiterating that the program is the mandatory and exclusive means to resolve all covered
workplace claims. I agree with the General Counsel. The language in the booklet repeatedly
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9
states that the program is the exclusive means of resolving workplace problems, and it defines
the types of matters subject to the program very broadly, as “all legal claims.” The fact that one
sentence is included, in an obscure section at the end of the booklet, that seems to state
something different, does not change the outcome. That sentence would confuse employees, and
that ambiguity is held against the Respondent. 5
Therefore, I find that employees would reasonably interpret the Respondent’s Dispute
Resolution Program as prohibiting them from filing unfair labor practice charges with the Board,
that constitutes a separate violation of Section 8(a)(1) of the Act.
10
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
15
2. By maintaining the Dispute Resolution Program and Agreement that requires as a
condition of employment that employees waive their right to engage in class or
collective action, the Respondent has engaged in an unfair labor practice in violation
of Section 8(a)(1) of the Act.
20
3. By maintaining the Dispute Resolution Program and Agreement that employees
would reasonably construe to discourage engaging in protected concerted activity, the
Respondent has violated Section 8(a)(1) of the Act.
4. The above unfair labor practices affect commerce within the meaning of Section 2(6) 25
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 30
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended135
ORDER
The Respondent, The Rose Group, Delaware Valley Rose LP, d/b/a/ Applebee’s
Restaurant, located in Rehoboth Beach, Delaware, its officers, agents, successors, and assigns, 40
shall

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–24–15
10
1. Cease and desist from
(a) Maintaining a mandatory and binding arbitration program and agreement that requires
employees, as a condition of employment, to waive the right to participate in any 5
class or collective actions, in all forums, whether judicial or arbitral.
(b) Maintaining a mandatory and binding arbitration program and agreement that
employees would reasonably believe bars or restricts employees’ right to file charges
with the Board or to access the Board’s processes.10
(c) 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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.15
(a) Rescind the mandatory and binding arbitration program and agreement, or revise it, to
make clear to employees that the program and agreement does not constitute a waiver
of their right under the NLRA to participate in joint, class, or collective actions in all
forums. 20
(b) Rescind the mandatory and binding arbitration program and agreement, or revise it, to
make clear to employees that the program and agreement does not restrict employees’
right to file charges with the Board or to access the Board’s processes.
25
(c) Notify all current and former employees who were required to sign the Dispute
Resolution Program and Agreement that it has been rescinded or revised and, if
revised, provide them a copy of the revised agreement.
(d) Within 14 days after service by the Region, post at its Rehoboth Beach facility in 30
Rehoboth Beach, Delaware, copies of the attached notice marked “Appendix.”2
Copies of the notice, on forms provided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted. In addition to physical 35
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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. The Respondent shall also mail 40
copies of the attached notice marked Appendix, at its own expense, to all employees
who were, but are no longer, employed by the Respondent at its Rehoboth Beach

2 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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facility at any time from the onset of the unfair labor practices found in this case until
the completion of these employees’ work at that jobsite, as well as to applicants for
employment during that same time period. The notice shall be mailed to the last
known address of each of the employees after being signed by the Respondent’s
authorized representative. In the event that, during the pendency of these proceedings, 5
the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the
Respondent at any time since April 6, 2013.
10
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. April 22, 201515
____________________20
Susan A. Flynn
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain a mandatory and binding arbitration program and agreement that
requires employees, as a condition of employment, to waive the right to participate in any class
or collective actions, in all forums, whether judicial or arbitral.
WE WILL NOT maintain a mandatory and binding arbitration program and agreement that
employees would reasonably believe bars or restricts employees’ right to file charges with the
Board or to access the Board’s processes.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind or revise the Dispute Resolution Program and Agreement to make clear to
employees that the program and agreement does not constitute a waiver of their right under the
NLRA to participate in joint, class, or collective actions in all forums.
WE WILL rescind or revise the Dispute Resolution Program and Agreement to make clear to
employees that the program and agreement does not restrict employees’ right to file charges with
the Board or to access the Board’s processes.
WE WILL notify all applicants and current and former employees who were required to sign the
Dispute Resolution Program and Agreement that it has been rescinded or revised and, if revised,
provide them a copy of the revised agreement.
THE ROSE GROUP, DELAWARE VALLEY
ROSE, D/B/A APPLEBEE’S RESTAURANT
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Bank of America Center, Tower II, 100 S. Charles Street, 6th Floor, Baltimore, MD 21201
(410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-135360 or by using the QR code
below. 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (410) 962-2822.