Hoot Winc, LLC and Ontario Wings, LLC dba Hooters of Ontario Mills, Joint Employers, (2015)

Docket Number:31-CA-104872
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills and Alexis Hanson

Hoot Winc, LLC and Ontario Wings, LLC d/b/a

Hooters of Ontario Mills, and Jamie West

Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills, and Chanelle Panitch.

Cases 31–CA–104872, 31–CA–104874, 31–CA– 104877, 31–CA–104892, 31–CA–107256, and 31– CA–107259

September 1, 2015

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA

On May 19, 2014, Administrative Law Judge William Nelson Cates issued the attached decision. The Respondents filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to adopt the judge’s rulings, findings, and conclusions regarding the Respondents’ arbitration agreement and to adopt his recommended Order as modified and set forth in full below.1

  1. The judge found, and we agree, that the Respondents violated Section 8(a)(1) of the Act by maintaining a mandatory arbitration agreement that would reasonably be read by employees to prohibit the filing of unfair labor practice charges with the Board. It is well settled that a work rule violates Section 8(a)(1) if employees would reasonably believe that the rule interferes with their ability to file Board charges, even if the policy does not ex

    1 Following the judge’s decision in this case, the parties executed an informal Board settlement agreement and a non-Board settlement agreement resolving all alleged violations other than those pertaining to the maintenance of the arbitration agreement. On October 22, 2014, the Board granted the parties joint motion to sever and remand the settled allegations. Accordingly, the only issue before us is whether the Respondents’ arbitration agreement violates Sec. 8(a)(1) of the Act. There are no exceptions to the judge’s finding that the Respondents are joint employers.

    We shall modify the recommended Order to reflect the settlement and remand of the other allegations and to conform to the Board’s standard remedial language. We shall substitute a new notice to conform to the Order as modified.

    pressly prohibit access to the Board. See Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 19 fn. 98 (2014); D. R. Horton, Inc., 357 NLRB No. 184, slip op. at 2 fn. 2 (2012), enf. denied on other grounds 737 F.3d 344 (5th Cir. 2013), petition for rehearing en banc denied (2014); U-Haul Co. of California, 347 NLRB 375, 377– 378 (2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007). Furthermore, it is settled that production of extrinsic evidence, such as testimony showing that employees interpreted the rule to preclude access to the Board, is not a precondition to finding that a rule is unlawful by its terms. See, e.g., Murphy Oil, supra, slip op. at 13 fn. 79; Hills & Dales General Hospital, 360 NLRB No. 70, slip op. at 1–2 (2014) (citing Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004); Claremont Resort & Spa, 344 NLRB 832, 832 (2005)).

    Here, the parties stipulated, and the judge found, that the Respondents required employees to sign an arbitration agreement as a condition of employment. The arbitration agreement requires that all “claims” between the employee and the Respondents shall exclusively be decided by arbitration. The term “claims” encompasses

    all disputes arising out of or related to your application for employment, the application and recruitment process, the interview process, the formation of the employment relationship, your employment by the Company, or your separation from employment with the Company. The term “Claims” includes, but is not limited to, any claim whether arising under federal, state, or local law, under a statute such as Title VII of the Civil Rights Act of 1964, under a rule, under a regulation or under the common law, including, but not limited [to] ANY CLAIM OF DISCRIMINATION, SEXUAL OR OTHER TYPE OF HARASSMENT, RETALIATION, WRONGFUL DISCHARGE, ANY CLAIM FOR WAGES, COSTS, INTEREST, ATTORNEYS’ FEES OR PENALTIES. “Claim” does not include any dispute that cannot be arbitrated as a matter of law.

    (Emphasis in original.)

    Although the arbitration agreement does not explicitly prohibit employees from filing charges with the Board, we agree with the judge’s finding that employees would reasonably read it to do so—particularly in light of the breadth of the provision quoted above, its reference to “any claim” under “federal law” or “under a statute,” and its specific inclusion of claims of discrimination, retaliation, or discharge or for wages. See U-Haul Co. of California, supra, 347 NLRB at 377.

    The Respondents point out that the arbitration agreement includes an express exemption for “any dispute that

    363 NLRB No. 2

    2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    cannot be arbitrated as a matter of law.” That provision, however, does not save the arbitration agreement from violating Section 8(a)(1). Although unfair labor practice charges must be filed with the Board, they may be resolved through arbitration. See Murphy Oil, supra, slip op. at 13, 18–19 & fn. 98. Accordingly, we affirm the judge’s conclusion that the arbitration agreement violated Section 8(a)(1) because employees would reasonably believe it prohibited the filing of charges with the Board. See id.; U-Haul Co. of California, supra, 347 NLRB at 377–378.

  2. Applying the Board’s decision in D. R. Horton, Inc., supra, the judge also found that the arbitration agreement violated Section 8(a)(1) because it required employees to waive their right to engage in class or collective action in all forums, whether arbitral or judicial. We agree.

    In Murphy Oil, supra, the Board thoroughly examined and reaffirmed the rationale of D. R. Horton. Specifically, the Board found that class or collective litigation by employees of claims relating to the terms and conditions of their employment is protected concerted activity, and that a policy prohibiting such activity in both arbitral and judicial forums violates Section 8(a)(1). As in Murphy Oil and D. R. Horton, the Respondents here required employees to sign, as a condition of employment, an arbitration agreement that barred each employee from litigating claims against the Respondents on a class, representative, or collective basis in any forum, arbitral or judicial.2 Thus, we agree with the judge that the Respondents’ maintenance of that arbitration agreement violated Section 8(a)(1) of the Act.3

    2 In their statement of facts, the Respondents quote a section of the agreement, entitled “Arbitrators’ Authority,” which states in part that the arbitration agreement “shall not be construed to deprive a party of any substantive right preserved by law.” The Respondents do not otherwise address or rely on that provision. In any event, we find that the provision does not change the result here. At most, it creates ambiguity as to an employee’s right to file charges with the Board, and it is insufficient to counteract the broadly worded language requiring individual arbitration of all claims arising under Federal law. It is well established that any ambiguity in a work rule that may restrict protected concerted conduct “must be construed against the [employer] as the promulgator of the rule[ ].” Ark Las Vegas Restaurant Corp., 343 NLRB 1281, 1282 (2004).

    3 For the reasons stated in his partial dissent in Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 22–35 (2014), Member Miscimarra does not believe that Sec. 8(a)(1) of the Act prohibits employees and employers from entering into agreements that waive class procedures in litigation or arbitration. Accordingly, he would find that the Respondents did not violate Sec. 8(a)(1) by maintaining a class waiver agreement. Member Miscimarra agrees with his colleagues, however, that employees would reasonably read the agreement to require arbitration of disputes arising under the NLRA and thus to prohibit the filing of charges with the Board. To that extent, he agrees that the language of the agreement violates Sec. 8(a)(1). See id., slip op. at 23 fn. 4.

    ORDER

    The National Labor Relations Board orders that the Respondents, Hoot Winc, LLC and Ontario Wings, LLC d/b/a/ Hooters of Ontario Mills, Joint Employers, Ontario, California, their officers, agents, successors, and assigns, shall

  3. Cease and desist from

    (a) Maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board.

    (b) Maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive the right to maintain joint, class, or collective actions in all forums, whether arbitral or judicial.

    (c) In any like or related manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act.

  4. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Rescind the unlawful arbitration agreement in all of its forms, or revise it in all of its forms to make clear to employees that the agreement does not constitute a waiver of their right to maintain employment-related joint, class, or collective actions in all forums, and that it does not restrict employees’ right to file charges with the National Labor Relations Board.

    (b) Notify all current and former employees who were required...

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