Great Lakes Restaurant Management, LLC

GREAT LAKES RESTAURANT MGMT. LLC 1181 363 NLRB No. 130 Great Lakes Restaurant Management, LLC and Fast Food Workers Committee. Case 03–CA–143685 February 23, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN The General Counsel seeks summary judgment in this case on the grounds that there are no genuine issues of ma- terial fact as to the allegations of the complaint, and that the Board should find, as a matter of law, that the Re- spondent has violated Section 8(a)(1) of the Act by main- taining and enforcing an agreement that prohibits its em- ployees from participating in collective or class litigation in all forums, and leads employees reasonably to believe that they are prohibited from filing and pursuing to con- clusion charges with the Board. Pursuant to a charge filed on December 31, 2014, and an amended charge filed on January 21, 2015, by Fast Food Workers Committee (the Union), the General Coun- sel issued a complaint on March 26, 2015. The complaint alleges that at all material times the Respondent has main- tained a Dispute Resolution Program (the DRP) that em- ployees are required to sign as a condition of employment. The DRP booklet, which is appended to the complaint, states on its first page that: “THIS PROGRAM IS A CONDITION OF YOUR EMPLOYMENT AND IS THE MANDATORY AND EXCLUSIVE MEANS BY WHICH [COVERED] PROBLEMS MAY BE RESOLVED, SO READ THE INFORMATION IN THIS PROGRAM BOOKLET CAREFULLY.” (Bold in original.) The booklet describes a four-step dispute resolution process, ending with arbitra- tion. The relevant portion of the Program booklet for the arbitration step reads as follows: Claims Subject to Arbitration Claims and disputes subject to arbitration include all those legal claims you may now or in the future have against the Company (and its successors or assigns) or against its officers, directors, shareholders, employees or agents, including claims related to any Company em- ployee benefit program or against its fiduciaries or ad- ministrators (in their personal or official capacity), and all claims that the Company may now or in the future have against you, whether or not arising out of your em- ployment or termination, except as expressly excluded under the “Claims Not Subject to Arbitration” section below. 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 (expressed or implied); • tort claims (including, but not limited to, claims for physical, mental or psychological injury, but excluding statutory workers com- pensation claims); • claims for wrongful termination; • sexual harassment; • discrimination (including, but not limited to, claims based on race, sex, sexual orientation, religion, national origin, age, medical condi- tion or disability whether under federal, state or local law); • claims for benefits or claims for damages or other remedies under any employee benefit program sponsored by the Company (after ex- hausting administrative remedies under the terms of such plans); • “whistleblower” claims under any federal, state or other governmental law, statute, reg- ulation or ordinance; • claims for a violation of any other non-crimi- nal federal, state or other governmental law, statute, regulation or ordinance; and • claims for retaliation under any law, statute, regulation or ordinance, including retaliation under any workers compensation law or reg- ulation. Claims Not Subject to Arbitration 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; • any statutory workers compensation claim; • unemployment insurance claims; and • any lawful claim(s) brought under the Dodd Frank Act’s whistleblower protection, pursu- ant to 15 U.S.C. Section 1514A, et. Seq., is exempted from this DRP plan. Neither the employee nor the Company has to submit the items listed under this “Claims Not Subject to Arbi- tration” caption to arbitration under this Program and may seek and obtain relief from a court or the appropri- ate administrative agency. The employee and company each agree, that there shall be no class or collective action arising from any DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182 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. The DRP booklet concludes with the following bolded lan- guage: This Program shall constitute the mandatory and ex- clusive means by which all covered workplace claims may be resolved. The submission of an application, acceptance of employment or the continuation of em- ployment by an individual shall be deemed to be ac- ceptance of the Dispute Resolution Program. No sig- nature shall be required for the policy to be applica- ble. This agreement applies and extends to all future employment with the company and shall survive any termination and/or resignation. This same self-executing provision is included in a sep- arate document, the “Agreement for Receipt for Dispute Resolution Program” (the Agreement), that is distributed to all employees for their signature and which incorporates the provisions of the DRP. The Agreement also specifi- cally reiterates the DRP’s requirements in stating that “The Company and I agree that all legal claims or disputes covered by the Agreement must be submitted to binding arbitration and that this binding arbitration will be the sole and exclusive final remedy for resolving any such claim or dispute.” Further, it specifically describes covered claims as including “claims for wrongful termination; . . . discrimination (including, but not limited to, claims based on race, sex, sexual orientation, religion, national origin, age, medical condition or disability, whether under fed- eral, state or local law); [and] claims for a violation of any other non-criminal federal, state or other governmental law, statute, regulation or ordinance; and claims for retal- iation under any law, statute, regulation or ordinance.” Paragraph VI of the complaint alleges that at all material times the Respondent has maintained the DRP that em- ployee applicants are required to sign as a condition of em- ployment, that by doing so the Respondent has maintained and enforced a mandatory arbitration agreement that pro- hibits employees from engaging in protected concerted ac- tivities, including class or collective action addressing terms and conditions of employment, and that mainte- nance and enforcement of the mandatory DRP leads em- ployees reasonably to believe that they are prohibited from filing and pursuing to conclusion charges with the Board. Paragraph VII of the complaint alleges that the conduct described in paragraph VI violates Section 8(a)(1) of the Act. On April 9, 2015, the Respondent filed an answer ad- mitting that it maintains the DRP, stating that the DRP document “speaks for itself,” and otherwise denying all other factual allegations in complaint paragraph VI. The answer further denies the legal conclusions in complaint paragraph VII that the Respondent has violated the Act. On May 4, 2015, the General Counsel filed a Motion for Summary Judgment. On May 6, 2015, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On May 20, 2015, the Respondent filed a re- sponse. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Board held in D. R. Horton, Inc., 357 NLRB 2277, 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and reaffirmed in Murphy Oil USA, Inc., 361 NLRB 774, 774 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), that an employer violates Section 8(a)(1) “when it requires employees covered by the Act, as a con- dition of their employment, to sign an agreement that pre- cludes 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.” Additionally, an employer violates Section 8(a)(1) if em- ployees would reasonably believe that its arbitration pol- icy interferes with their ability to file a Board charge or to access the Board’s processes. U-Haul Co. of California, 347 NLRB 375, 377–378 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007). If an employer’s arbitration policy is unlawful, the Board will find that the employer also vi- olates Section 8(a)(1) if it seeks to enforce the policy. Murphy Oil, at 792 (citing NLRB v. Washington Aluminum Co., 370 U.S. 9, 16–17 (1962), and Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)). The Respondent contends that summary judgment is not warranted because it has not admitted all material factual allegations in the complaint and because the Board’s hold- ing in D. R. Horton conflicts with certain judicial deci- sions, including the Fifth Circuit’s denial of enforcement in D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), and the Second Circuit’s holding in Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir. 2013) (class- action waiver in employment contract not invalid even where claim is not economically worth pursuing individ- ually). The Respondent further argues that there are no facts in the record to support the General Counsel’s alle- gation that the Respondent unlawfully enforced the DRP. With respect to the allegation of interference with em- ployee access to the Board, the Respondent argues that the fact that two employees filed charges with the Board in this case shows that they believed that they were allowed to file and pursue such charges. GREAT LAKES RESTAURANT MGMT., LLC 1183 As to the maintenance allegations, we find no merit in the Respondent’s arguments. There is no dispute as to any material fact. The Respondent admits that it maintains the DRP and that the program document speaks for itself. We agree. The DRP booklet describes in detail a mandatory arbitration agreement that explicitly requires employees to waive their right to maintain class or collective actions in any forum. Maintenance of such a requirement violates Section 8(a)(1) of the Act for the reasons set forth in D. R. Horton and reaffirmed in Murphy Oil.1 In fact, the DRP at issue substantially mirrors the one found to be unlaw- fully maintained in PJ Cheese, Inc., 362 NLRB 1452 (2015). We also find the DRP separately violates Section 8(a)(1) because employees would reasonably believe that it bars or restricts their right to file and pursue unfair labor practice charges with the Board. See D. R. Horton, above, at 2278 fn. 2; Murphy Oil, above, at 792 fn. 98, and U- Haul Co. of California, above, 347 NLRB at 377–378. Where maintenance of an arbitration agreement is alleged to restrict employee access to the Board, the Board applies the Lutheran Heritage2 test for determining whether em- ployer work rules interfere with employees’ Section 7 rights. Countrywide Financial Corp., Countrywide Home Loans, Inc., and Bank of America Corp., 362 NLRB 1331, 1332 (2015). Thus, when, as here, the rule does not ex- plicitly restrict Section 7 rights, an 8(a)(1) violation may be found if there is a showing that employees would rea- sonably construe the language to prohibit Section 7 activ- ity. Id. Based on the undisputed language of the DRP, we find that employees would reasonably construe it to 1 For the reasons we stated in Murphy Oil, above, at 779–784, we reject the Respondent’s argument that the Board should apply the judicial holdings in D. R. Horton, Inc. v. NLRB, above, and Sutherland v. Ernst & Young, LLP, above, to the instant case. Our dissenting colleague observes that the Act does not “dictate” any particular procedures for the litigation of non-NLRA claims, and “creates no substantive right for employees to insist on class-type treatment” of such claims. This is all surely correct, as the Board has previously ex- plained in Murphy Oil, above, at 775, and Bristol Farms, 363 NLRB 442, 443 and fn. 2 (2015). But what our colleague ignores is that the Act does “creat[e] a right to pursue joint, class, or collective claims if and as avail- able without the interference of an employer-imposed restraint.” Id.,at 457–458. The Respondent’s DRP and the Agreement are just such an unlawful restraint. Likewise, for the reasons explained in Murphy Oil and Bristol Farms, supra, there is no merit to our colleague’s view that finding the Agreements unlawful runs afoul of employees’ Sec. 7 right to “refrain from” engaging in protected concerted activity. See Murphy Oil, above, at 791; Bristol Farms, above, at 444. 2 Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Vil- lage-Livonia, 343 NLRB 646, 647 (2004). 3 See, e.g., U-Haul Co. of California, above, 347 NLRB at 377 (find- ing phrase “any other legal or equitable claims and causes of action rec- ognized by local, state, or federal law or regulations” reasonably includes the filing of unfair labor practice charges with the Board). We reject the Respondent’s argument that the fact that two employees had filed prohibit filing Board charges or otherwise accessing the Board’s processes—activities that are protected by Sec- tion 7 of the Act. As described above, the DRP booklet identifies legal claims subject to mandatory arbitration that “include, but are not limited to” those involving claims for wages or other compensation; contract breaches; wrongful termina- tion; “discrimination [. . .] whether under federal, state or local law;” violations of “any other non-criminal federal, state, or other governmental law, statute, regulation or or- dinance; and claims of retaliation under any law, statute, regulation or ordinance[.]” While the booklet does not ex- plicitly restrict the filing of charges with the Board, it does not include unfair labor practice claims among the four types of specific claims or disputes that are not subject to mandatory arbitration. Thus, contrary to our dissenting colleague, we find that both the breadth of the DRP lan- guage encompassing claims under Federal statutes and regulations and the absence of unfair labor practice claims in the limited list of specific exclusions from mandatory arbitration would cause employees to reasonably construe the DRP as prohibiting them from filing Board charges, in violation of Section 8(a)(1) of the Act.3 We reach a different finding as to the complaint’s addi- tional allegation that the Respondent unlawfully “en- forced” the DRP by requiring applicants to sign the DRP. There is no claim or evidence that the Respondent ever sought to enforce the DRP in a judicial proceeding. We shall therefore dismiss the unlawful enforcement allega- tion. Logisticare Solutions, Inc., a subsidiary of Provi- dence Service Corp., 363 NLRB 780, 780 fn. 2 (2015). charges with the Board shows that employees believed that they were allowed to file and pursue such charges. See Scripps Health d/b/a Scripps Memorial Hospital Encinitas, 347 NLRB 52, 52 (2006) (the Board applies an objective standard to determine whether communica- tions from an employer to its employees violate Sec. 8(a)(1), and “does not consider either the motivation behind the remark or its actual effect.”) quoting Miller Electric Pump & Plumbing, 334 NLRB 824, 824 (2001). We note that there is a statement on the last page of the DRP, under the heading “Not an Employment Contract/Exclusive Remedy,” that states this “Program will not prevent you from filing a charge with any state or federal administrative agency.” An identical statement is also included on the second page of the Agreement, under the paragraph en- titled “NOT AN EMPLOYMENT CONTRACT.” For the reasons set forth in Applebee’s Restaurant, 363 NLRB 682, 682, 692 fn. 1 (2015), and PJ Cheese, above at 1452 fn. 6, both of which involved the same language, we disagree with our dissenting colleague that, in context, the inclusion of this language would eliminate any reasonable uncertainty about the right of employees to file charges with the Board to resolve claims specifically covered by the mandatory arbitration agreement de- scribed as the exclusive means for dispute resolution. Finally, for the reasons stated in Ralph’s Grocery Co., 363 NLRB 1166 (2016), we disagree with our dissenting colleague’s argument that the DRP would be lawful even if it requires employees to arbitrate their unfair labor practice claims because, in his view, it does not restrict em- ployees’ right to file charges with the Board. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184 Accordingly, the General Counsel’s Motion for Sum- mary Judgment is granted in part. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Buffalo, New York (the Respondent’s facility), has been engaged in the retail sale of food and related products. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business op- erations described above, derives gross revenues in excess of $500,000. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the Respondent has maintained a “Dispute Resolution Program” (the DRP) that employee applicants are required to sign as a condition of employ- ment. As described above, the DRP requires employees to request arbitration for work-related problems that in- volve legally protected rights, including all discrimina- tion, whistleblower, and retaliation claims under Federal, State, or local law. The Program also states that the “em- ployee and company each agree, that there shall be no class or collective action arising from any employee’s claim(s), and each employee may only maintain a claim under this plan on an individual basis and may not partic- ipate in a class or collective action.” We find the Respondent has violated Section 8(a)(1) of the Act by maintaining, as a condition of employment, a mandatory arbitration agreement, which prohibits em- ployees from engaging in protected concerted activities, including class or collective action addressing terms and conditions of employment; and which leads employees to reasonably believe that they are prohibited from filing and pursuing charges with the Board. CONCLUSIONS OF LAW 1. The Respondent, Great Lakes Restaurant Manage- ment, LLC, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. By maintaining a mandatory arbitration agreement, which prohibits employees from engaging in protected concerted activities, including class or collective action addressing terms and conditions of employment; and which leads employees to reasonably believe that they are prohibited from filing and pursuing charges with the Board, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and Section 2(6) and (7) of the Act. 3. The Respondent has not violated the Act in any other respect. REMEDY Having found that the Respondent has violated Section 8(a)(1) of the Act, we shall order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act. Specifically, we shall order the Respondent to rescind or revise the mandatory arbitration agreement; notify all applicants and current and former employees who were required to sign or otherwise become bound to the mandatory arbitration agreement about the rescission or revision and, if revised, provide them a copy of the revised agreement; and post a notice at all locations where the agreement was in effect. See D. R. Horton, above, at 2289. ORDER The National Labor Relations Board orders that the Re- spondent, Great Lakes Restaurant Management, LLC, Buffalo, New York, its officers, agents, successors, and assigns, shall 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 Relations Board. (b) Maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive the right to maintain class or collective 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 bar or restrict employees’ right to file charges with the National Labor Relations Board, nor constitute a waiver of their right to maintain employment-related joint, class, or col- lective actions in all forums. (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, pro- vide them a copy of the revised agreement. (c) Within 14 days after service by the Region, post at its Buffalo, New York facility, and at all other facilities where the unlawful arbitration agreement is or has been in GREAT LAKES RESTAURANT MGMT., LLC 1185 effect, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respond- ent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to em- ployees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. If 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 marked “Ap- pendix” to all current employees and former employees employed by the Respondent at any time since July 1, 2014. (d) Within 21 days after service by the Region, file with the Regional Director for Region 3 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. MEMBER MISCIMARRA, dissenting in part In this case, my colleagues grant the General Counsel’s motion for summary judgment in relevant part and find that the Respondent’s Dispute Resolution Program (“DRP”), including the “Agreement and Receipt for Dis- pute Resolution Program,” violates Section 8(a)(1) of the National Labor Relations Act (the Act or NLRA) because 4 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.” 1 361 NLRB 774, 795–808 (2014) (Member Miscimarra, dissenting in part). The Board majority’s holding in Murphy Oil invalidating class- action waiver agreements was denied enforcement by the Court of Ap- peals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). 2 363 NLRB 682, 683–686 (2015) (Member Miscimarra, concurring in part and dissenting in part). 3 363 NLRB 814, 816–817 (2015) (Member Miscimarra, concurring in part and dissenting in part). 4 I agree with my colleagues that the Respondent’s contention that two employees filed charges with the Board does not create a dispute of material fact as to whether, under the applicable objective standard, em- ployees would reasonably construe the DRP to prohibit NLRB charge filing. 5 It is well settled that summary judgment may be entered in favor of the party against whom the motion is filed even though that party has not filed a cross-motion for summary judgment. See 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § the DRP waives the right to participate in class or collec- tive actions regarding non-NLRA employment claims. I respectfully dissent from this ruling and finding for the reasons explained in my partial dissenting opinion in Mur- phy Oil USA, Inc.1 Additionally, my colleagues grant the General Counsel’s motion for summary judgment in rele- vant part and find that the DRP violates Section 8(a)(1) because employees would reasonably construe it to pro- hibit NLRB charge filing. I respectfully dissent from this ruling and finding for the reasons stated in my separate opinions in Rose Group d/b/a Applebee’s Restaurant2 and GameStop Corp., GameStop Inc., Sunrise Publications, Inc., GameStop Texas Ltd. (L.P.).3 Although I agree that there are no genuine issues of material fact warranting a hearing,4 I believe the General Counsel is not entitled to judgment as a matter of law on either of these complaint allegations. To the contrary, the Respondent is entitled to judgment as a matter of law. Accordingly, I would enter summary judgment for the Respondent and against the General Counsel and dismiss the complaint.5 I agree that an employee may engage in “concerted” ac- tivities for “mutual aid or protection” in relation to a claim asserted under a statute other than NLRA.6 However, Sec- tion 8(a)(1) of the Act does not vest authority in the Board to dictate any particular procedures pertaining to the liti- gation of non-NLRA claims, nor does the Act render un- lawful agreements in which employees waive class-type treatment of non-NLRA claims. To the contrary, as dis- cussed in my partial dissenting opinion in Murphy Oil, NLRA Section 9(a) protects the right of every employee as an “individual” to “present” and “adjust” grievances “at any time.”7 This aspect of Section 9(a) is reinforced by 2720, at 347 (3d ed. 1998) (“The weight of authority . . . is that summary judgment may be rendered in favor of the opposing party even though the opponent has made no formal cross-motion under [Federal] Rule [of Civil Procedure] 56.”) (citing cases). I join my colleagues in denying summary judgment on the complaint allegation that the Respondent un- lawfully enforced the DRP. 6 I agree that non-NLRA claims can give rise to “concerted” activities 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 Miscimarra, dis- senting 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 requirements are met—an issue separate and distinct from whether an individual em- ployee chooses to pursue a claim as a class or collective action. Id.; see also Beyoglu, 362 NLRB 1238, 1241–1242 (2015) (Member Miscimarra, dissenting). 7 Murphy Oil, above, at 803–806 (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 representatives 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186 Section 7 of the Act, which protects each employee’s right to “refrain from” exercising the collective rights enumer- ated in Section 7. Thus, I believe it is clear that (i) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims;8 (ii) a class- waiver agreement pertaining 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 position regarding class-waiver agreements;9 and (iii) enforcement of a class-action waiver as part of an arbitration agreement is also warranted by the Federal Ar- bitration Act (FAA).10 Although questions may arise re- garding the enforceability of particular agreements that waive class or collective litigation of non-NLRA claims, I believe these questions are exclusively within the prov- ince of the court or other tribunal that, unlike the NLRB, has jurisdiction over such claims. Applying the test set forth in Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Village-Livonia,11 my colleagues also find that the DRP violates Section 8(a)(1) of the Act on the basis that employees would reasonably construe it to prohibit them from filing charges with the conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the in- tervention 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 bargaining repre- sentative has been given opportunity to be present at such adjustment” (emphasis added). The Act’s legislative history shows that Congress in- tended to preserve every individual employee’s right to “adjust” any em- ployment-related dispute with his or her employer. See Murphy Oil, above, at 804–805 (Member Miscimarra, dissenting in part). 8 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, Jackson, Miss. 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.”). 9 The Fifth Circuit has twice denied enforcement of Board orders in- validating a mandatory arbitration agreement that waived class-type treatment of non-NLRA claims. See Murphy Oil, Inc., USA 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, 806 (Member Miscimarra, dissenting in part); id., at 809 fn. 5 (Member Johnson, dissenting) (collecting cases); see also Patterson v. Raymours Furniture Co., Inc., 96 F.Supp.3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco USA, Inc., 99 F.Supp.3d 1072 (N.D. Cal. 2015), motion to certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30, 2015); Brown v. Citicorp Credit Ser- vices, Inc., 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). 10 For the reasons expressed in my Murphy Oil partial dissent and those thoroughly explained in former Member Johnson’s dissent in NLRB.12 I disagree and would deny the General Coun- sel’s motion for summary judgment on this complaint al- legation as well. The DRP broadly requires arbitration of all legal claims, including those arising under the NLRA,13 but I do not be- lieve the scope of the DRP makes it violative of the Act. As I explained in Applebee’s Restaurant, above, and GameStop Corp., above, decades of case law—including the Board’s recent decision in Babcock & Wilcox Con- struction Co., Inc., 361 NLRB 1127 (2014)—establish that parties may lawfully agree to submit NLRA claims to arbitration, provided they do not otherwise interfere with NLRB charge filing.14 Such an agreement does not un- lawfully prohibit the filing of charges with the NLRB, par- ticularly when the right to do so is expressly stated in the agreement itself. In this case, the DRP and the separate “Agreement and Receipt for Dispute Resolution Program” each expressly provide that it “will not prevent you from filing a charge with any state or federal government ad- ministrative agency.” This language eliminates any pos- sible uncertainty about the right of employees to file charges with the Board.15 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., at 822–831 (Member Johnson, dissenting). 11 343 NLRB 646 (2004). 12 I have expressed my disagreement with the current Board standard regarding alleged overly broad rules and policies, set forth as the first prong of the Lutheran Heritage standard, under which rules and policies are deemed unlawful, even if they do not explicitly restrict protected ac- tivity and are not applied against or promulgated in response to such ac- tivity, where “employees would reasonably construe the language to pro- hibit Section 7 activity.” 343 NLRB at 647. See, e.g., Lily Transporta- tion Corp., 362 NLRB 406, 406 fn. 3 (2015); Conagra Foods, Inc., 361 NLRB 944, 951 fn. 2 (2014); Triple Play Sports Bar & Grille, 361 NLRB 308, 317fn. 3 (2014), affd. sub nom. Three D, LLC v. NLRB, Nos. 14- 3284, -3814, 2015 WL 6161477 (2d Cir. Oct. 21, 2015). I advocate a reexamination of this aspect of Lutheran Heritage in an appropriate fu- ture case. 13 The DRP states that “[c]laims and disputes subject to arbitration include all those legal claims you may now or in the future have against the Company (and its successors or assigns) or against its officers, direc- tors, shareholders, employees or agents, . . . except as expressly excluded under the ‘Claims Not Subject to Arbitration’ section below.” An illus- trative list of legal claims subject to arbitration includes “claims for a violation of any . . . non-criminal federal . . . law [or] statute.” The DRP’s listed exclusions under “Claims Not Subject to Arbitration” do not men- tion claims arising under the NLRA. 14 Although NLRA claims may lawfully be made subject to arbitra- tion, the Board in all cases retains the right, under Sec. 10(a) of the Act, to independently review any allegations of unfair labor practices made in a charge filed with the Board. See GameStop Corp., 363 NLRB 814, 819–820 fn. 10 (Member Miscimarra, concurring in part and dissenting in part); Applebee’s Restaurant, 363 NLRB 682, 683 fn. 11 (Member Miscimarra, concurring in part and dissenting in part). 15 See Applebee’s Restaurant, above at 684 (Member Miscimarra, concurring in part and dissenting in part) (finding no interference with NLRB charge filing based on virtually identical language). GREAT LAKES RESTAURANT MGMT., LLC 1187 Accordingly, for the reasons set forth above, I respect- fully dissent in part from the majority’s decision. I would deny the General Counsel’s motion for summary judgment. Moreover, since there are no issues of material fact warranting a hearing, and since I believe the Respond- ent is entitled to judgment as a matter of law, I would enter summary judgment for the Respondent and dismiss the complaint. 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 vi- olated 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 ac- tivities. 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 a mandatory arbitration agree- ment that requires our employees, as a condition of em- ployment, 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 National La- bor Relations Board. WE WILL notify all applicants and current and former employees who were required to sign or otherwise become bound to the mandatory arbitration agreement in all of its forms that the arbitration agreement has been re- scinded or revised and, if revised, WE WILL provide them a copy of the revised agreement. GREAT LAKES RESTAURANT MANAGEMENT, LLC The Board’s decision can be found at www.nlrb.gov/case/03- CA-143685 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Sec- retary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. My colleagues reject this rationale based on PJ Cheese, Inc., 362 NLRB 1452 (2015), and Applebee’s Restaurant, above. Similar to the instant case, in PJ Cheese and Applebee’s Restaurant the employer main- tained a Dispute Resolution Program (the DRP) and also required em- ployees to sign a separate agreement (titled, in PJ Cheese, “Agreement for Receipt for Dispute Resolution Program,” 362 NLRB 1452, 1453, and in Applebee’s Restaurant, “Agreement and Receipt for Dispute Res- olution Program,” 363 NLRB 682, 682 fn. 1). And like the DRP at issue here, the DRP in both PJ Cheese and Applebee’s Restaurant stated that it “will not prevent you from filing a charge with any state or federal administrative agency.” 362 NLRB 1452, 1453 fn. 6; 363 NLRB 682, 682 fn. 1. However, in this case, the DRP and separate “Agreement and Receipt for Dispute Resolution Program” each State that it “will not pre- vent you from filing a charge with any state or federal government ad- ministrative agency,” whereas in PJ Cheese and Applebee’s Restaurant, the parallel language appeared only in the DRP but was omitted from the separate agreement. 362 NLRB 1452, 1453 fn. 6; 363 NLRB 682, 685 (Member Miscimarra, concurring in part and dissenting in part). The majority in PJ Cheese found this difference between the two documents “create[d] an ambiguity” that precluded the employer from relying on the language of the DRP as a defense, 362 NLRB 1452, 1453 fn. 6, and the majority in Applebee’s Restaurant cited and relied on PJ Cheese, 362 supra at 1452 fn. 1. That rationale does not apply here.