Brinker International Payroll Company, L.P.

494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 54 Brinker International Payroll Company L.P. and The Sawaya & Miller Law Firm. Case 27–CA– 110765 December 1, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On June 4, 2014, Administrative Law Judge Lauren Esposito issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The judge found, applying the Board’s decision in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013), that the Re- spondent violated Section 8(a)(1) of the Act by maintain- ing and enforcing an arbitration agreement that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving em- ployment-related claims in all forums, whether arbitral or judicial. The judge also found, relying on D. R. Horton and U-Haul of California, 347 NLRB 375, 377–378 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007), that maintaining the arbitration agreement violated Section 8(a)(1) because employees reasonably would believe that it bars or restricts their right to file unfair labor practices with the Board. In Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. granted in part, denied in part --- F.3d --- (5th Cir. 2015), the Board reaffirmed the relevant holdings of D. R. Hor- ton, supra. The Board has considered the decision and record in light of the exceptions and briefs, and, based on the judge’s application of D. R. Horton, and on our subse- quent decision in Murphy Oil, we affirm the judge’s rul- ings, findings,1 and conclusions,2 and adopt the recom- mended Order as modified and set forth in full below.3 1 We disagree with our dissenting colleague’s argument that manda- tory arbitration agreements do not violate the Act for the reasons stated in Murphy Oil, 361 NLRB 774, 774–794. In affirming the judge’s findings, we do not rely on her citation to Supply Technologies, LLC, 359 NLRB 379 (2012); Universal Lubri- cants, 359 NLRB 1526 (2013); Federal Security, 359 NLRB 1 (2012); and Belgrove Post Acute Care Center, 359 NLRB 633 (2013). See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). We reject the Respondent’s argument that the General Counsel failed to properly allege that the Respondent violated Sec. 8(a)(1) by maintaining an arbitration agreement that would reasonably be inter- preted as preventing employees from filing charges with the Board. The complaint included the portion of the arbitration agreement gov- ORDER The National Labor Relations Board orders that the Respondent, Brinker International Payroll, Denver, Colo- rado, its officers, agents, successors, and assigns, shall erning external remedies and alleged that such language violated the Act. Further, the General Counsel’s statement of position, included with the joint motion and stipulation of facts, alleged that the arbitration agreement was unlawful both because it prohibits employees from pursuing class or collective actions in judicial and arbitral forums and because employees would reasonably believe that the agreement bars or restricts their right to file charges with the Board. We find the Re- spondent was therefore on sufficient notice regarding the nature of the allegations against it. We agree with the judge, for the reasons she stated, that employees would reasonably interpret the arbitration agreement to restrict their right to file charges with the Board, notwithstanding the language in the arbitration agreement stating that “[t]his agreement does limit an em- ployee’s ability to complete any external administrative remedy (such as with the EEOC).” We also reject the Respondent’s assertion that the judge erred by failing to issue a stay in this case pending the outcome of the civil litigation. 2 The Respondent argues that the complaint is time-barred by Sec. 10(b) because the initial unfair labor practice charge was filed and served more than 6 months after then-employees Sarah Hickey, Amy Gulden, and Jay Ragsdale signed and became subject to the arbitration agreement. We reject this argument, as did the judge, because the Respondent continued to maintain the unlawful arbitration agreement during the 6-month period preceding the filing of the initial charge. The Board has long held under these circumstances that maintenance of an unlawful workplace rule, such as the Respondent’s arbitration agreement, constitutes a continuing violation that is not time-barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB 1452, 1452 (2015); Neiman Marcus Group, 362 NLRB 1286, 1287 & fn. 6 (2015); and Cellular Sales of Missouri, LLC, 362 NLRB 241, 242 & fn. 7 (2015). It is equally well-established that an employer’s enforcement of an unlawful rule, like the arbitration agreement here, independently vio- lates Sec. 8(a)(1). See Murphy Oil, supra, at 792–793. 3 Consistent with our decision in Murphy Oil, supra, at 794, we amend the judge’s remedy and shall order the Respondent to reimburse Sarah Hickey, Amy Gulden, and Jay Ragsdale for all reasonable ex- penses and legal fees, with interest, incurred in opposing the Respond- ent’s unlawful motion in United States District Court to compel indi- vidual arbitration of their class or collective claims. See Bill Johnson’s Restaurants v. NLRB, 461 U. S. 731, 747 (1983) (“If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorneys’ fees and other ex- penses” as well as “any other proper relief that would effectuate the policies of the Act.”). Interest shall be computed in the manner pre- scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole orders for suits maintained in violation of the Act, it is appropriate and necessary to award interest on litigation expenses”), enfd. 973 F.2d 230 (3d Cir. 1992). We shall also amend the judge’s remedy to order the Respondent to notify the United States Court of Appeals for the Tenth Circuit and the district court that it has rescinded or revised the arbitration agreement and to inform the courts that it no longer opposes Sarah Hickey, Amy Gulden, and Jay Ragsdale’s lawsuit on the basis of the arbitration agreement. We shall substitute new notices to conform to the Order as modified. BRINKER INTL. PAYROLL CO. L.P. 495 1. 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 Rela- tions Board. (b) Maintaining and/or enforcing a mandatory arbitra- tion agreement that requires employees, as a condition of employment, to waive the right to maintain class or col- lective actions in all forums, whether arbitral or judicial. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the mandatory arbitration agreement in all of its forms, or revise it in all of its forms to make clear to employees that the arbitration agreement does not con- stitute a waiver of their right to maintain employment- related joint, class, or collective actions in all forums, and that it does not bar or restrict employees’ right to file charges with the National Labor Relations Board. (b) Notify all applicants and current and former em- ployees who were required to sign or otherwise become bound to the mandatory arbitration agreement in any form that it has been rescinded or revised and, if revised, provide them a copy of the revised agreement. (c) Notify the United States Court of Appeals for the Tenth Circuit and the United States District Court for the District of Colorado, in Civil Action No. 13-cv-00951- REB-BNB that it has rescinded or revised the mandatory arbitration agreement upon which it based its motion to dismiss Sarah Hickey, Amy Gulden, and Jay Ragsdale’s collective lawsuit and to compel individual arbitration of their claims, and inform the courts that it no longer op- poses the lawsuit on the basis of the arbitration agree- ment. (d) In the manner set forth in this decision, reimburse Sarah Hickey, Amy Gulden, and Jay Ragsdale for any reasonable attorneys’ fees and litigation expenses that they may have incurred in opposing the Respondent’s motion to dismiss the collective lawsuit and compel indi- vidual arbitration. (e) Within 14 days after service by the Region, post at its Denver, Colorado locations copies of the attached notice marked “Appendix A,” and at all other facilities where the unlawful arbitration agreement is or has been in effect, copies of the attached notice marked “Appendix B.”4 Copies of the notices, on forms provided by the 4 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- Regional Director for Region 27, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- utive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates 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. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix A” to all current employees and former employees employed by the Re- spondent at any time since February 7, 2013. (f) Within 21 days after service by the Region, file with the Regional Director for Region 27 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. MEMBER MISCIMARRA, concurring in part and dissenting in part. In this case, my colleagues find that the Respondent’s Agreement to Arbitrate (Agreement) violates Section 8(a)(1) of the National Labor Relations Act (the Act or NLRA) because the Agreement waives the right to par- ticipate in class or collective actions regarding non- NLRA employment claims. Sarah Hickey, Amy Gulden, and Jay Ragsdale signed the Agreement, and later the Charging Party, on behalf of Hickey, Gulden, Ragsdale, and all others similarly situated, filed a class action law- suit against the Respondent in federal court alleging vio- lations of the Fair Labor Standards Act and the Colorado Wage Act. In reliance on the Agreement, the Respond- ent filed a motion to dismiss and compel arbitration (Mo- tion to Compel Arbitration), which the court granted.1 My colleagues find that the Respondent thereby unlaw- fully enforced its Agreement. I respectfully dissent from these findings for the reasons explained in my partial dissenting opinion in Murphy Oil USA, Inc.2 ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 Hickey et al. v. Brinker International Payroll Co., L.P., No. 1:13- cv-00951-REB-BNB, 2014 WL 622883 (D. Colo. Feb. 18, 2014). 2 361 NLRB 774, 705–808 (2014) (Member Miscimarra, dissent- ing in part). The Board majority’s holding in Murphy Oil invalidating class-action waiver agreements was recently denied enforcement by the Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB, No. 14-60800, 2015 WL 6457613 (5th Cir. Oct. 26, 2015). 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I agree that an employee may engage in “concerted” activities for “mutual aid or protection” in relation to a claim asserted under a statute other than NLRA.3 How- ever, Section 8(a)(1) of the Act does not vest authority in the Board to dictate any particular procedures pertaining to the litigation of non-NLRA claims, nor does the Act render unlawful agreements in which employees waive class-type treatment of non-NLRA claims. To the con- trary, as discussed in my partial dissenting opinion in Murphy Oil, NLRA Section 9(a) protects the right of every employee as an “individual” to “present” and “ad- just” grievances “at any time.”4 This aspect of Section 9(a) is reinforced by Section 7 of the Act, which protects each employee’s right to “refrain from” exercising the collective rights enumerated in Section 7. Thus, I be- lieve it is clear that (i) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims;5 (ii) a class-waiver agreement per- taining to non-NLRA claims does not infringe on any NLRA rights or obligations, which has prompted the overwhelming majority of courts to reject the Board’s 3 I agree that non-NLRA claims can give rise to “concerted” activi- ties engaged in by two or more employees for the “purpose” of “mutual aid or protection,” which would come within the protection of NLRA Sec. 7. See Murphy Oil, 361 NLRB 774, 796–798 (Member Miscimar- ra, dissenting in part). However, the existence or absence of Sec. 7 protection does not depend on whether non-NLRA claims are pursued as a class or collective action, but on whether Sec. 7’s statutory re- quirements are met—an issue separate and distinct from whether an individual employee chooses to pursue a claim as a class or collective action. Id.; see also Beyoglu, 362 NLRB 1238, 1241–1242 (2015) (Member Miscimarra, dissenting). 4 Murphy Oil, above at 808–807 (Member Miscimarra, dissenting in part). Sec. 9(a) states: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representa- tives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual em- ployee or a group of employees shall have the right at any time to pre- sent grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargain- ing representative has been given opportunity to be present at such adjustment” (emphasis added). The Act’s legislative history shows that Congress intended to preserve every individual employee’s right to “adjust” any employment-related dispute with his or her employer. See Murphy Oil, above at 804–805 (Member Miscimarra, dissenting in part). 5 When courts have jurisdiction over non-NLRA claims that are po- tentially subject to class treatment, the availability of class-type proce- dures does not rise to the level of a substantive right. See D. R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class action procedures . . . is not a substantive right.”) (citations omitted), petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980) (“[T]he right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims.”). position regarding class waiver agreements;6 and (iii) enforcement of a class-action waiver as part of an arbitra- tion agreement is also warranted by the Federal Arbitra- tion Act (FAA).7 Although questions may arise regard- ing the enforceability of particular agreements that waive class or collective litigation of non-NLRA claims, I be- lieve these questions are exclusively within the province of the court or other tribunal that, unlike the NLRB, has jurisdiction over such claims. Because I believe the Respondent’s Agreement was lawful under the NLRA, I would find it was similarly lawful for the Respondent to file a motion in federal court seeking to enforce the Agreement. It is relevant that the federal court that had jurisdiction over the non- NLRA claims granted the Respondent’s motion to com- pel arbitration. The reasonableness of the Respondent’s motion is also supported by the multitude of court deci- sions that have enforced similar agreements.8 As the Fifth Circuit recently observed after rejecting (for the second time) the Board’s position regarding the legality of class waiver agreements: “[I]t is a bit bold for [the Board] to hold that an employer who followed the rea- soning of our D. R. Horton decision had no basis in fact or law or an ‘illegal objective’ in doing so. The Board might want to strike a more respectful balance between its views and those of circuit courts reviewing its or- ders.”9 I also believe that any Board finding of a viola- tion based on the Respondent’s meritorious federal court Motion to Compel Arbitration would improperly risk infringing on the Respondent’s rights under the First 6 The Fifth Circuit has twice denied enforcement of Board orders invalidating a mandatory arbitration agreement that waived class-type treatment of non-NLRA claims. See Murphy Oil USA, Inc. v. NLRB, above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority of courts considering the Board’s position have likewise rejected it. See Murphy Oil, 361 NLRB 774, 807 (Member Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member Johnson, dissenting) (collect- ing cases); see also Patterson v. Raymours Furniture Co., No. 14-CV- 5882 (VEC), 2015 WL 1433219 (S.D.N.Y. Mar. 27, 2015); Nanavati v. Adecco USA, Inc., No. 14-cv-04145-BLF, 2015 WL 1738152 (N.D. Cal. Apr. 13, 2015), motion to certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30, 2015); Brown v. Citicorp Credit Services, No. 1:12-cv-00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration of prior determination that class waiver in arbitration agreement violated NLRA). 7 For the reasons expressed in my Murphy Oil partial dissent, and those thoroughly explained in former Member Johnson’s partial dissent in Murphy Oil, the FAA requires that the arbitration agreement be enforced according to its terms. Murphy Oil, above at 807 (Member Miscimarra, dissenting in part); id., slip op. at 49–58 (Member Johnson, dissenting). 8 See, e.g., Murphy Oil USA, Inc. v. NLRB, above; Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013). 9 Murphy Oil USA, Inc. v. NLRB, above, at *6. BRINKER INTL. PAYROLL CO. L.P. 497 Amendment’s Petition Clause. See Bill Johnson’s Res- taurants v. NLRB, 461 U.S. 731 (1983); BE & K Con- struction Co. v. NLRB, 536 U.S. 516 (2002); see also my partial dissent in Murphy Oil, above, 361 NLRB 774, 806–808. Finally, for similar reasons, I believe the Board cannot properly require the Respondent to reim- burse the Charging Party for its attorneys’ fees in the circumstances presented here. Murphy Oil, above 361 NLRB 774, at 808. Accordingly, as to these issues,10 I respectfully dissent. 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 maintain a mandatory arbitration agree- ment that our employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. WE WILL NOT maintain and/or enforce a mandatory ar- bitration agreement that requires our employees, as a condition of employment, to waive the right to maintain 10 Putting aside the validity of the class waiver provisions, I agree with my colleagues that the Agreement unlawfully interferes with the filing of charges with the Board. Although the Agreement states that it “does not limit an employee’s ability to complete any external adminis- trative remedy (such as with the EEOC),” this does not reasonably encompass the filing of Board charges. In particular, under the NLRB’s procedures, a charge represents the mere commencement of Board proceedings, followed by a lengthy multiple-step progression including the potential issuance of a complaint, a possible hearing before an administrative law judge, the filing with the Board of poten- tial exceptions to the judge’s decision and recommended order, and potential compliance proceedings (among other things). Consequently, charge-filing with the Board does not in any sense “complete” the Board’s administrative “remedy,” so the carve-out in Respondent’s Agreement does not reasonably encompass NLRB charge-filing. To this extent, I agree that the Agreement violates Sec. 8(a)(1). See U- Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. mem. 255 Fed.Appx. 527 (D.C. Cir. 2007). class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the 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 applicants and current and former employees who were required to sign or otherwise be- come bound to the mandatory arbitration agreement in all of its forms that the arbitration agreement has been re- scinded or revised and, if revised, WE WILL provide them a copy of the revised agreement. WE WILL notify the court in which Sarah Hickey, Amy Gulden, and Jay Ragsdale filed their collective lawsuit that we have rescinded or revised the mandatory arbitra- tion agreement upon which we based our motion to dis- miss their collective lawsuit and compel individual arbi- tration, and WE WILL inform the courts that we no longer oppose Sarah Hickey, Amy Gulden, and Jay Ragsdale’s collective lawsuit on the basis of that agreement. WE WILL reimburse Sarah Hickey, Amy Gulden, and Jay Ragsdale for any reasonable attorneys’ fees and liti- gation expenses that they may have incurred in opposing our motion to dismiss their collective lawsuit and compel individual arbitration. BRINKER INTERNATIONAL PAYROLL COMPANY L.P. The Board’s decision can be found at www.nlrb.gov/case/27-CA-110765 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. 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 maintain a mandatory arbitration agree- ment that our employees reasonably would believe bars or restricts their right to file charges with the National Labor Relations Board. WE WILL NOT maintain and/or enforce a mandatory ar- bitration agreement that requires our employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the 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 applicants and current and former employees who were required to sign or otherwise be- come bound to the mandatory arbitration agreement in all of its forms that the arbitration agreement has been re- scinded or revised and, if revised, WE WILL provide them a copy of the revised agreement. BRINKER INTERNATIONAL PAYROLL COMPANY, L.P. The Board’s decision can be found at www.nlrb.gov/case/27-CA-110765 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. Renee C. Barker, Esq., for the General Counsel. Kevin C. Berens, Esq. and Ross M. Gardner, Esq. (Jackson Lewis, PC), of Omaha, Nebraska, for the Respondent. David H. Miller, Esq. and Leslie Krueger-Pagett, Esq. (The Sawaya & Miller Law Firm), for the Charging Party. DECISION STATEMENT OF THE CASE LAUREN ESPOSITO, Administrative Law Judge. Based upon a charge in Case No. 27–CA–110765, filed on August 7, 2013, by The Sawaya & Miller Law Firm (Charging Party), a com- plaint and notice of hearing (the Complaint) issued on January 30, 2014. The Complaint alleges that Brinker International Payroll Company LP (Brinker or Respondent), violated Section 8(a)(1) of the Act by maintaining and requiring as a condition of employment that employees execute an agreement to arbi- trate which interferes with, restrains, and coerces them in the exercise of their Section 7 rights. Respondent filed an answer denying the Complaint’s material allegations. On March 31, 2014, the parties filed a joint motion to waive hearing and sub- mit case to the Administrative Law Judge and joint Stipulation of Facts, pursuant to Section 102.35(a)(9) of the Board’s Rules and Regulations. On the joint Stipulation of Facts submitted by the parties, the parties’ Statements of Issues and Statements of Position, and their Briefs to the Administrative Law Judge, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION At all times material to the complaint’s allegations, Re- spondent has been a Delaware limited partnership with BIPC Management LLC as its general partner and BIPC Investments LLC as its limited partner, and has been a wholly owned sub- sidiary of Brinker International, Inc., a Delaware corporation. At all material times, Respondent has been engaged in the busi- ness of employing the employees working in Maggiano’s Little Italy Restaurants (Maggiano’s) throughout the United States, including Maggiano’s Little Italy Restaurants located in the Denver, Colorado area. Respondent admits and I find that at all material times it has been an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. BRINKER INTL. PAYROLL CO. L.P. 499 II. ALLEGED UNFAIR LABOR PRACTICES A. The Agreement to Arbitrate Since at least January 7, 2013, Respondent has maintained an Agreement to Arbitrate, which all Maggiano’s employees are required to execute as a condition of their employment. Re- spondent engages in the promulgation, dissemination, mainte- nance, modification, rescission and enforcement of the Agree- ment to Arbitrate. At all material times, the Agreement to Ar- bitrate has included the following language: . . . This agreement applies to all disputes involving legally protected rights (e.g. local, state and federal statutory, contrac- tual or common law rights) regardless of whether the statute was enacted or the common law doctrine was recognized at the time this agreement was signed. This agreement does not limit an employee’s ability to complete any external adminis- trative remedy (such as with the EEOC). . . . . This Agreement to Arbitrate substitutes on legitimate dispute resolution form (arbitration) for another (litigation), thereby waiving the right of either party to have the dispute resolved in court. This substitution involves no surrender, by either party, of the substantive statutory or common law benefits, protection or defense for individual claims. You do waive the right to commence or be a party to any representative, collec- tive or class action. . . . . The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a rep- resentative, collective or class proceeding. B. The Federal Class Action Litigation Sarah Hickey, Amy Gulden, and Jay Ragsdale are former employees of Respondent, who were employed at Maggiano’s restaurants in the Denver, Colorado area. Hickey, Gulden and Ragsdale all signed the Agreement to Arbitrate in June 2012. On April 1, 2013, the Charging Party filed a class action complaint on behalf of Hickey, Gulden, and Ragsdale, as indi- vidual plaintiffs and on behalf of all others similarly situated, in the United States District Court for the District of Colorado. This complaint alleged that Respondent violated the Fair Labor Standards Act and the Colorado Wage Act, and contained alle- gations of tortuous interference with contract, quantum meruit and unjust enrichment, and breach of contract. For purposes of clarity, this action, Civil Action No. 13-cv-00951-REB-BNB, will be referred to as the “FLSA action” or the “FLSA litiga- tion.” On August 12, 2013, Respondent filed a motion to compel arbitration of individual claims and to dismiss class action claims, collective action claims, and other proceedings in the FLSA action. Respondent argued that the plaintiffs’ claims were subject to the provisions of the Arbitration Agreement, which prohibits class or collective claims and requires that employment-related disputes be individually arbitrated. Re- spondent contended that the complaint should therefore be dismissed pursuant to the Federal Arbitration Act. On February 18, 2014, the District Court issued an Order granting Respond- ent’s motion to compel, dismissing plaintiffs’ class and collec- tive action claims with prejudice, and ordering the parties to arbitrate plaintiffs’ individual claims. On February 20, 2014, the District Court issued a final judgment to that effect. On March 20, 2014, the Charging Party filed a notice of ap- peal with the United States District Court for the District of Colorado, appealing the District Court’s order granting Re- spondent’s motion to compel to the United States Court of Ap- peals for the Tenth Circuit. III. ANALYSIS AND CONCLUSION A. The Positions of the Parties General Counsel contends that Respondent’s maintenance of the Agreement to Arbitrate violates Section 8(a)(1) of the Act, pursuant to D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013), in that it prohibits employees from initiating or pursuing class or collec- tive actions in any forum. General Counsel further asserts that the Agreement to Arbitrate may be reasonably interpreted by employees as precluding their right to file unfair labor practice charges with the National Labor Relations Board, and thus tends to chill employees in the exercise of their Section 7 rights. See Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd., 203 F.3d 52 (D.C. Cir. 1999). Finally, General Counsel argues that by filing the motion to compel in the FLSA action, seeking to enforce the unlawful Agreement to Arbitrate, Re- spondent further violated Section 8(a)(1) of the Act. Respondent contends that the Agreement to Arbitrate does not violate Section 8(a)(1). Respondent argues that a finding that the Agreement to Arbitrate violates Section 8(a)(1) is pre- cluded by the Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011), holding that the Federal Arbitration Act requires that arbitration agreements including class action waivers should be enforced pursuant to their terms. Respondent asserts that in subsequent cases, the Supreme Court has stated that without a specific “Congression- al command” in a federal statute’s text, the statute will not be interpreted to override the Federal Arbitration Act in this re- spect. Compucredit Corp. v. Greenwood, 132 S.Ct. 665 (2012); American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013). Respondent notes that all federal Courts of Ap- peal facing the issue have rejected the Board’s holding in D. R. Horton, including the Fifth Circuit when deciding the Petition for Review of the Board’s Decision and Order. D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). As a result, Re- spondent argues that D. R. Horton should not be applied in this case, and that the Agreement to Arbitrate was lawful. Respondent advances additional arguments in support of its contention that the Agreement to Arbitrate does not violate the Act. Respondent contends that at the time the D. R. Horton Decision was issued by the Board, the Board did not have a valid quorum, and the Board’s Decision is therefore inopera- tive. Respondent further argues that the Agreement to Arbi- trate, unlike the arbitration agreement at issue in D. R. Horton, explicitly excludes claims filed with federal administrative agencies, and therefore does not affect employees’ exercise of their Section 7 rights. Respondent also asserts that the Com- 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plaint is time-barred pursuant to Section 10(b) of the Act. B. The Agreement to Arbitrate The evidence establishes that the Agreement to Arbitrate re- quires Respondent’s employees to waive any right to pursue class or collective claims pertinent to their employment, in any forum. After limiting the forum for resolution of disputes be- tween the employee and Respondent to arbitration, the Agree- ment to Arbitrate provides that employees “waive the right to commence or be a party to any representative, collective or class action.” The Agreement to Arbitrate further states that “The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a repre- sentative, collective or class proceeding.” By requiring that employees waive their right to pursue claims collectively in any forum, the Agreement to Arbitrate violates Section 8(a)(1) of the Act, pursuant to D. R. Horton. 357 NLRB 2277, 2288–2289. In D. R. Horton, the Board held that class or collective legal action on the part of employees, regardless of the particular forum involved, is a form of activity “at the core of what Congress intended to protect by adopting the broad language of Section 7,” and is therefore “central to the Act’s purposes.” D. R. Horton, 357 NLRB 2277, 2279. As a result, the Board held that “employers may not compel em- ployees to waive their NLRA right to collectively pursue litiga- tion and employment claims in all forums, arbitral and judi- cial.” D. R. Horton, 357 NLRB 2277, 2288 (emphasis in origi- nal). Because the Agreement to Arbitrate precludes Respond- ent’s employees from initiating or pursuing any class or collec- tive claim in any forum, Respondent’s maintenance and en- forcement of the Agreement to Arbitrate violates Section 8(a)(1), as alleged in the complaint. Respondent’s arguments regarding the legal infirmity of the Board’s D. R. Horton decision must be addressed to the Board itself, and not to an Administrative Law Judge. It is well set- tled that the Board generally applies a “non-acquiescence poli- cy” with respect to contrary views of the federal Courts of Ap- peal. See D. L. Baker, Inc., 351 NLRB 515, 529, fn. 42 (2007); Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004). Thus, the Administrative Law Judge is required to “apply established Board precedent which the Supreme Court has not reversed.” Pathmark Stores, Inc., 342 NLRB at 378, fn. 1; see also Gas Spring Co., 296 NLRB 84, 97–98 (1989), enfd. 908 F.2d 966 (4th Cir. 1990). Although Respondent contends that the Su- preme Court’s decision in ATT Mobility v. Concepcion obviates the legal viability of D. R. Horton, the Board in D. R. Horton considered and distinguished that opinion given the number and scope of the contracts involved, and the conflict between the Federal Arbitration Act and state law at issue in the Supreme Court case. D. R. Horton, 357 NLRB 2277, 2287–2288, dis- cussing AT&T Mobility v. Concepcion, 130 S.Ct. at 1748, 1750–1752. The subsequent Supreme Court decisions cited by Respondent as requiring a “contrary Congressional command” in order to forego enforcement of an otherwise valid arbitration agreement do not explicitly overrule the Board’s D. R. Horton decision. Compucredit Corp. v. Greenwood, 132 S.Ct. 665, 668–669 (2012); American Express Co. v. Italian Colors Res- taurant, 133 S.Ct. 2304, 2309 (2013). As a result, Respond- ent’s argument that the Agreement to Arbitrate lawfully pre- cludes class or collective legal actions because no “contrary Congressional command” requires that a waiver be rejected is also appropriately addressed solely to the Board itself.1 Respondent also points out that the Fifth Circuit when decid- ing the Petition for Review of D. R. Horton refused to enforce the portion of the Board’s decision and order finding that an arbitration agreement which eliminated the right to initiate and pursue class or collective claims violated Section 8(a)(1). D. R. Horton, Inc. v. NLRB, 737 F.3d at 362. Respondent notes that other Circuits addressing the issue have held that arbitration agreements requiring the waiver of class or collection actions do not violate Section 8(a)(1). Richards v. Ernst & Young, LLP, 734 F.3d 871 (9th Cir. 2013); Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir. 2013); Owen v. Bistol Care, Inc., 702 F.3d 1050 (8th Cir. 2013). Regardless of this case law, as discussed above an Administrative Law Judge is bound by the decisions of the Board, including D. R. Horton, until overturned by the Board or the Supreme Court. See Pathmark Stores, Inc., 342 NLRB at 378 fn. 1; Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963), enf. granted in part, 331 F.2d 176 (8th Cir. 1964). Therefore, Respondent’s contentions based upon the decisions of the federal Courts of Appeal must also be directed to the Board. Respondent further contends that the Board’s decision in D. R. Horton is invalid, because the Board lacked a valid quorum at the time the decision issued. See Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 81 U.S.L.W. 3629 (June 24, 2013). The Board has repeatedly held that because this issue has not been definitively resolved given the conflict- ing opinions of at least three other Circuits, the Board “is charged to fulfill its responsibilities under the Act.” See, e.g., Universal Lubricants, LLC, 359 NLRB 1526 fn. 1 (2013); Bel- grove Post Acute Care Center, 359 NLRB 633, 633 (2013). As a result, Respondent’s argument regarding the lack of a valid Board quorum must be rejected. Respondent’s argument that the Complaint in this matter is time-barred pursuant to Section 10(b) of the Act is also unper- suasive. It is well-settled that where, as here, a rule violating Section 8(a)(1) is maintained during the 10(b) period, a viola- tion is established even if the rule was promulgated prior to that time. See, e.g., Register Guard, 351 NLRB 1110, fn. 2 (2007), enf. granted and denied in part, 571 F.3d 53 (D.C.Cir. 2009). Although Respondent contends that the instant case involves not rules but agreements, which were executed in 2009, the Board has repeatedly treated mandatory arbitration policies, 1 Respondent cites the Decision and Recommended Order of Ad- ministrative Law Judge Bruce D. Rosenstein in Chesapeake Energy Corp., JD–78–13 (November 8, 2013), in further support of its argu- ment that the Board’s holding in D. R. Horton, Inc. is no longer tenable in light of the Supreme Court’s opinion in American Express Co. Judge Rosenstein’s decision, which is now before the Board on excep- tions and cross-exceptions, is not precedential, and therefore I decline to find, as suggested by Respondent, that D. R. Horton is no longer effective, given the well-settled case law regarding an administrative law judge’s duty to apply established and unreversed precedent dis- cussed here. BRINKER INTL. PAYROLL CO. L.P. 501 whether specifically executed by employees or not, as work rules subject to this particular 10(b) analysis. See Supply Tech- nologies, LLC, 359 NLRB 379, 379–382 (2012); 2 Sisters Food Group, 357 NLRB 1816, 1817–1818 (2011); U-Haul Co. of California, 347 NLRB 375, 377–378 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007). As a result, I find that the allegation that the Agreement to Arbitrate violates Section 8(a)(1) is not barred by Section 10(b) of the Act. For all of the foregoing reasons, I find that the Agreement to Arbitrate, by prohibiting Respondent’s employees from initiat- ing or pursuing any class or collective claim in any forum, vio- lates Section 8(a)(1) of the Act pursuant to the Board’s decision in D. R. Horton. General Counsel further contends that the Agreement to Ar- bitrate violates Section 8(a)(1) in that it may reasonably be interpreted to preclude the filing of unfair labor practice charg- es, and would therefore tend to chill the employees’ exercise of their rights under Section 7. It is well settled that an employ- er’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 at 825. A particular work rule which does not explicitly restrict Section 7 activity will be found unlawful where the evidence establishes one of the following: (i) employees would “reasonably con- strue the rule’s language” to prohibit Section 7 activity; (ii) the rule was “promulgated in response” to union or protected con- certed 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). The Board has cautioned that rules must be afforded a “reasonable” interpretation, with- out “reading particular phrases in isolation” or assuming “im- proper interference with employee rights.” Lutheran Heritage Village-Livonia, 343 NLRB at 646. Ambiguities in work rules are construed against the party which promulgated them. See Supply Technologies, LLC, 359 NLRB 379, 381; Lafayette Park Hotel, 326 NLRB at 828. I find that employees would reasonably interpret Respond- ent’s Agreement to Arbitrate as prohibiting them from filing unfair labor practice charges, and that Respondent’s mainte- nance of the Agreement as a condition of employment therefore violates Section 8(a)(1) on this basis as well. The Agreement to Arbitrate contains broad language regarding the scope of its applicability. It begins by stating that Respondent “has provid- ed for the resolution of all disputes that arise between you and Brinker through formal, mandatory arbitration before a neutral arbitrator” if those disputes cannot be resolved through Re- spondent’s internal procedures (emphasis added). As set forth above, the Agreement to Arbitrate provides that it . . . applies to all disputes involving legally protected rights (e.g. local, state and federal statutory, contractual or common law rights) regardless of whether the statute was enacted or the common law doctrine was recognized at the time this agreement was signed (emphasis added). The Agreement to Arbitrate also states that it “substitutes one legitimate dispute resolution forum (arbitra- tion) for another (litigation), thereby waiving any right of either party to have the dispute resolved in court.” The Board has repeatedly held that sweeping language in defining the issues subject to solely arbitral resolution is reasonably interpreted by employees to encompass and prohibit the filing of unfair labor practice charges. See Supply Technologies, LLC, 359 NLRB 280 at 280–279 (agreement requiring that employees “bring any claim of any kind,” including “claims relating to my appli- cation for employment, my employment, or the termination of my employment” solely to employer’s alternative dispute reso- lution program reasonably interpreted as prohibiting the filing of unfair labor practice charges); 2 Sisters Food Group, 357 NLRB 1816, 1816–1817, 1837 (policy requiring that employ- ees submit “all [employment] disputes and claims” to arbitra- tion could be reasonably interpreted to preclude the filing of charges with the Board); U-Haul Co. of California, 347 NLRB at 377–378 (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 causes of action recognized by local, state, or federal law or regulations” violated Section 8(a)(1)). I further find that the Agreement’s language providing that it “does not limit an employee’s ability to complete any external administrative remedy (such as with the EEOC)” is insufficient to indicate to a reasonable employee that the Agreement does not prohibit the filing of unfair labor practice charges with the Board. This language does not explicitly exclude unfair labor practice charges filed with the National Labor Relations Board from the Agreement’s requirement that all employment-related claims be resolved in the context of arbitration. See Supply Technologies, LLC, 359 NLRB 379, 380 (NLRB unfair labor practice charges not among enumerated exceptions to policy requiring arbitration of employment disputes); 2 Sisters Food Group, Inc., 357 NLRB 1816, 1817 (same).2 Furthermore, in the context of the reasonable interpretation analysis the Board has eschewed any assumption that employees have specialized legal knowledge or experience which they would bring to bear on an arbitration agreement’s language. For example, in 2 Sisters Food Group, Inc., the Board found that language limit- ing the employer’s policy to claims “that may be lawfully [] resolve[d] by arbitration” was not susceptible to the interpreta- tion by “most nonlawyer employees,” who would be unfamiliar with the Act’s limitations on compulsory arbitration, that unfair labor practice charges were thereby excluded. 357 NLRB 1816, 1817. Similarly, in U-Haul Co. of California, the Board concluded that employees without legal training could not be reasonably expected to understand that language limiting arbi- tration to disputes or claims “that a court of law would be au- thorized to entertain or would have jurisdiction over” conse- quently excluded unfair labor practice charges from the scope of the agreement. 347 NLRB at 377–378. Here, there is no basis to assume that a reasonable employee, unversed in labor and employment law, would understand the statement “This 2 I note that the Board has found that even language explicitly refer- ring to an employee’s responsibility to “timely file any charge with the NLRB” is insufficient to clarify a broad mandatory grievance and arbi- tration policy such that the policy would not be reasonably interpreted to prohibit the filing of unfair labor practice charges in violation of Section 8(a)(1). See Bill’s Electric, Inc., 350 NLRB 292, 296 (2007). 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement does not limit an employee’s ability to complete any external administrative remedy” to include filing an unfair la- bor practice charge with the Board, even if the agency were specifically mentioned. This is particularly the case in light of the Agreement’s preceding language stating that “all disputes” arising between the employee and Respondent, and “all dis- putes involving legally protected rights” may only be resolved through arbitration. For all of the foregoing reasons, I find that employees would reasonably interpret the Agreement to Arbitrate as prohibiting the filing of unfair labor practice charges, and that Respond- ent’s maintenance of the Agreement to Arbitrate as a condition of employment violated Section 8(a)(1) as a result. C. The Motion to Compel Arbitration of Individual Claims and to Dismiss Class Action Claims Filed by Respondent I find, as General Counsel argues, that Respondent violated Section 8(a)(1) of the Act by enforcing the Agreement to Arbi- trate when it filed the Motion to Compel Arbitration of Individ- ual Claims and to Dismiss Class Action Claims in the FLSA litigation. I find that Respondent’s Motion to Compel had an illegal objective within the meaning of Bill Johnson’s Restau- rants and its progeny, in that it constituted both an attempt to enforce a policy which was in and of itself unlawful and an effort to directly proscribe employees’ protected activity. As a result, Respondent violated Section 8(a)(1) by filing the Motion to Compel. In Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 740– 744, 748 (1983), the Supreme Court, formulating an accommo- dation between employee Section 7 rights and the First Amendment right of parties to petition the government for re- dress of grievances, held that only lawsuits motivated by a de- sire to retaliate against the exercise of Section 7 rights which lacked a reasonable basis in fact or law violated Section 8(a)(1) of the Act. However, the Supreme Court explicitly excluded from this analysis lawsuits filed with “an objective that is ille- gal under federal law.” Bill Johnson’s Restaurants, 461 U.S. at 737–738, fn. 5. In such cases, “the legality of the lawsuit en- joys no special protection under Bill Johnson’s.” Teamsters Local 776 (Rite Aid), 305 NLRB 832, 834 (1991), enfd. 973 F.2d 230 (3d Cir. 1992). Subsequently, in BE & K Construc- tion Co. v. NLRB, the Court invalidated the Board’s rule that an unsuccessful lawsuit filed for retaliatory reasons violated the Act even if reasonably based. 536 U.S. 516, 529–530 (2002). On remand, the Board held that the filing and maintenance of a reasonably based lawsuit does not violate the Act, regardless of the party’s motive for bringing it, so that only lawsuits which are “both objectively and subjectively baseless” are unlawful. BE & K Construction Co., 351 NLRB 451, 458 (2007). How- ever, since BE & K Construction Co., the Board has repeatedly held that the Supreme Court’s opinion in that case “did not alter the Board’s authority to find court proceedings that have an illegal objective under federal law to be an unfair labor prac- tice.” Dilling Mechanical Contractors, 357 NLRB 544, 546 (2011); Plasterers Local 200 (Standard Drywall), 357 NLRB 2212, 2214 fn. 7 (2011), enfd. 547 Fed.Appx. 812 (9th Cir. 2013), and 357 NLRB 1921, 1923 (2011), enfd. 547 Fed.Appx. 809 (9th Cir. 2013); Manufacturers Woodworking Assn. of Greater New York, Inc., 345 NLRB 538, 540, fn. 7 (2005); see also Can-Am Plumbing v. NLRB, 321 F.3d 145, 151 (D.C. Cir. 2003). As a result, lawsuits motivated by an illegal objective remain exempt from the Bill Johnson’s and BE & K analysis, and violate the Act. In addition, the Board has held that specific actions taken by a party in the context of litigation may have an illegal objective, and therefore violate Section 8(a)(1), even if the underlying lawsuit itself does not. In particular, the Board has held that discovery requests which seek information regarding employ- ees’ participation in union activity have an illegal objective, and therefore violate Section 8(a)(1). See Dilling Mechanical Contractors, 357 NLRB No. 56, at p. 1, 3 (“discovery requests” seeking the names of employees who had joined the union had an illegal objective and therefore violated Section 8(a)(1)); Wright Electric, Inc., 327 NLRB 1194, 1195 (1999), enfd. 200 F.3d 1162 (8th Cir. 2000) (discovery request seeking the identi- ties of employees who signed collective-bargaining authoriza- tions unlawful). I find that Respondent’s Motion to Compel in the instant case had an illegal objective in that it was an attempt to enforce the unlawful Agreement to Arbitrate. It is well-settled, as dis- cussed in the Supreme Court’s Bill Johnson’s opinion, that lawsuits which attempt to enforce contract provisions and poli- cies which violate the Act in and of themselves constitute inde- pendent statutory violations. Bill Johnson’s Restaurants, 461 U.S. at 737–738, fn. 5, citing Granite State Joint Board, Textile Workers Union, 187 NLRB 636, 637 (1970), enf. denied, 446 F.2d 369 (1st Cir. 1971), revd., 409 U.S. 213 (1972) and Boost- er Lodge No. 405, 185 NLRB 380, 385 (1970), enfd., 459 F.2d 1143 (D.C. Cir. 1972), affd., 412 U.S. 84 (1973) (noting that the Court had “upheld Board orders enjoining unions from prosecuting court suits for enforcement of fines that could not lawfully be imposed under the Act”); see also Regional Con- struction Corp., 333 NLRB 313, 319 (2001) (illegal objective extant in “cases where the underlying acts constitute unfair labor practices and the lawsuit is simply an attempt to enforce the underlying act”). In this case, Respondent’s Motion to Compel constituted an effort to enforce the Agreement to Arbi- trate which, for the reasons discussed above, violates Section 8(a)(1) of the Act in and of itself. The filing of the Motion to Compel consequently violated Section 8(a)(1) as well. In addition, the Motion to Compel violated Section 8(a)(1) as an attempt to directly prevent employees from engaging in activity protected by Section 7. The Board has repeatedly found that lawsuits designed to prevent employees’ Section 7 activity have an illegal objective, and therefore violate Section 8(a)(1). For example, in Federal Security, Inc., the Board de- termined that a lawsuit alleging that employees engaged in abuse of process and malicious prosecution by filing an unfair labor practice charge and providing evidence to the Board had the illegal objective of seeking to punish and deter access to Board processes, activity protected by Section 7. 359 NLRB , 12–13 (2012). See also Manno Electric, 321 NLRB 278, fn. 5, 295–298 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (lawsuit alleging that employees’ made “false” statements in “bad faith” to the Board had illegal objective and therefore violated Section 8(a)(1)); and see Elevator Constructors (Long Elevator), 289 BRINKER INTL. PAYROLL CO. L.P. 503 NLRB 1095 (1988), enfd. 902 F.2d 1297 (8th Cir. 1990) (union grievance premised upon an interpretation of its collective- bargaining agreement which would violate Section 8(e) of the Act had an illegal objective). Here, the Motion to Compel, in that it sought dismissal of the employees’ class or collective claims, attempted to directly interfere with employee’ activity protected by Section 7. As the Board explained in D. R. Horton, collective efforts to ad- dress workplace grievances through arbitration and litigation constitute protected concerted activity, and thus “an individual who files a class or collective action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in con- duct protected by Section 7.” 357 NLRB 2277, 2279. The Motion to Compel in the instant case, by urging the district court to dismiss the employees’ class or collective claims, sought to directly prevent them from engaging in activity pro- tected under Section 7. The Motion to Compel therefore had an illegal objective, and Respondent’s filing of the Motion violat- ed Section 8(a)(1) on this basis as well.3 For all of the foregoing reasons, I find that Respondent’s Motion to Compel Arbitration of Individual Claims and to Dismiss Class Action Claims in the FLSA litigation had an illegal objective, and therefore violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Brinker International Payroll Company, L.P., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By maintaining a mandatory arbitration policy which em- ployees are required to sign as a condition of their employment, requiring that employees waive their right to pursue class or collective claims in any forum, Respondent has violated Sec- tion 8(a)(1) of the Act. 3. By maintaining a mandatory arbitration policy which em- ployees are required to sign as a condition of their employment, which would be reasonably interpreted as prohibiting employ- ees from filing unfair labor practice charges with the Board, Respondent has violated Section 8(a)(1) of the Act. 4. By filing a Motion to Compel Arbitration of Individual Claims and to Dismiss Class Action Claims, Collective Action Claims, and other Proceedings, on August 12, 2013, in the United States District Court for the District of Colorado in Civil Action No. 13-cv-00951-REB-BNB, in order to enforce its Agreement to Arbitrate, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist 3 Because I find that Respondent’s Motion to Compel had an illegal objective, I do not find, as Respondent argues, that the instant case violates Respondent’s First Amendment right to defend itself in the FLSA litigation, and should be stayed pending the outcome of the FLSA litigation as a result. and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent maintained a mandatory arbi- tration policy, the Agreement to Arbitrate, which requires that employees waive their right to purse class or collective action claims in any forum, and may be reasonably interpreted as pro- hibiting employees from filing unfair labor practice charges. I therefore recommend that Respondent be ordered to rescind the Agreement to Arbitrate, and to provide the employees with specific notification that the Agreement has been rescinded. I recommend that Respondent be ordered to alternatively revise the Agreement to Arbitrate to clarify that it does not constitute a waiver in all forums of the employees’ right to maintain em- ployment-related class or collective claims, and does not re- strict employees’ right to file unfair labor practice charges with the National Labor Relations Board, and to notify the employ- ees of the revised agreement, including providing the employ- ees with a copy of the revised agreement. Because Respondent required that its employees at all dine-in public Maggiano’s Little Italy Restaurants throughout the nation execute the Agreement to Arbitrate as a condition of their employment, I will recommend that Respondent post a notice in all locations where the Agreement to Arbitrate was utilized. D. R. Horton, Inc., 357 NLRB 2277, 2289; U-Haul Co. of California, 347 NLRB at 375, fn. 2; see also Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007). In addition, I recommend that Respondent be ordered to file, together with the Charging Party, a joint motion to vacate the District Court’s February 18, 2014 Order granting Respond- ent’s Motion to Compel, dismissing plaintiffs’ class and collec- tive action claims with prejudice, and ordering the parties to arbitrate plaintiffs’ individual claims in Civil Action No. 13-cv- 00951-REB-BNB. This action is necessary to fully remedy the violation, because the Motion to Compel had an illegal objec- tive and was therefore unlawful from its inception, and should never have been filed or granted. Manno Electric, 321 NLRB at 297–298. The Board has in previous cases ordered respond- ents to take such specific actions to remedy the effects of hav- ing prosecuted lawsuits engendered by an illegal objective, or otherwise unlawful pursuant to Bill Johnson’s and related cas- es. Federal Security, Inc., 359 NLRB 1, 13–14 (respondent ordered to withdraw or seek to dismiss lawsuit filed with an illegal objective, and have default orders vacated); Federal Security, Inc., 336 NLRB 703, fn. 3, 704 (2001); see also Loehmann’s Plaza, 305 NLRB 663, 673 (1991) (ordering re- spondent to seek to have a permanent injunction against peace- ful picketing and handbilling withdrawn); Baptist Memorial Hospital, 229 NLRB 45, 45–46 (1977), enfd., 568 F.2d 1 (6th Cir. 1977) (ordering respondent to file a joint petition to ex- punge an arrest and conviction record created by police action initiated by respondent’s unlawful conduct). The filing of such a joint motion shall be at the Charging Party’s request and sub- ject to the time limitations for doing so pursuant to the Federal Rules of Civil Procedure. I further recommend that Respondent be ordered to reim- burse Sarah Hickey, Amy Gulden, Jay Ragsdale, and any other affected employees for any litigation and related expenses in- 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD curred, to date and in the future, directly related to Respond- ent’s Motion to Compel Arbitration of Individual Claims and to Dismiss Class Action Claims in Civil Action No. 13-cv-00951- REB-BNB in the United States Court for the District Colorado. See Federal Security, Inc., 359 NLRB 1, 14. The applicable rate of interest on the reimbursement will be determined pursu- ant to New Horizons, 283 NLRB 1173 (1987), and interest on all amounts due to the employees shall be computed on a daily basis pursuant to Kentucky River Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds, 647 F.3d 1137 (D.C. Cir. 2011). [Recommended Order omitted from publication.]