368 NLRB No. 72
Briad Wenco, LLC d/b/a Wendy's Restaurant
368 NLRB No. 72
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Briad Wenco, LLC d/b/a Wendy’s Restaurant and
Fast Food Workers Committee. Case 29–CA–
165942
September 11, 2019
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND EMANUEL
On July 6, 2016, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Charging Party
filed an answering brief, the General Counsel filed an an-
swering letter brief, and the Respondent filed a reply brief.
In addition, the Charging Party filed limited cross-excep-
tions with supporting argument, and the Respondent filed
an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
The Respondent owns and operates Wendy’s restau-
rants in New York, New Jersey, and Pennsylvania. At its
restaurants, the Respondent maintains mandatory arbitra-
tion agreements that are identical except for their refer-
ence to applicable State laws. Employees are required to
sign the agreement applicable to the restaurant at which
they work as a condition of employment.
The agreements contain numbered paragraphs that read,
in relevant part, as follows:
1. Any claim, controversy or dispute (hereafter "claim")
that I have against the Company or the Company has
against me, arising from or relating to my employment
or the termination of my employment with the Company
. . . shall be fully heard and settled by binding arbitration
. . . .
2. The claims covered by this Agreement include, but
are not limited to . . . claims alleging any violation of any
federal, state, local or other governmental law, statute,
regulation, or ordinance, except claims expressly ex-
cluded from arbitration in Paragraph 11 of this Agree-
ment.
1 Under Boeing, the Board first determines whether a challenged rule
or policy, reasonably interpreted, would interfere with the exercise of
rights under Sec. 7 of the Act. If not, the rule or policy is lawful. If so,
the Board evaluates two things: “(i) the nature and extent of the potential
. . .
11. Nothing in this Agreement shall be construed to pro-
hibit any current or former employee from filing any
charge or complaint or participating in any investigation
or proceeding conducted by an administrative agency,
including but not limited to . . . the National Labor Rela-
tions Board . . . .
12. The Company and I agree that any and all claims
subject to arbitration under this Agreement will be insti-
tuted only in an individual capacity, and not as a repre-
sentative plaintiff on behalf of any purported class, col-
lective or consolidated action.
The judge found, relying on Murphy Oil USA, Inc., 361
NLRB 774 (2014), enf. denied in relevant part 808 F.3d
1013 (5th Cir. 2015), that the Respondent violated Section
8(a)(1) by maintaining its mandatory arbitration agree-
ments because they required employees to waive their
right to pursue class or collective actions in all forums. He
also found, relying on the “reasonably construe” prong of
Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), that the Respondent violated Section 8(a)(1) be-
cause employees would reasonably read the agreements as
barring or restricting them “from access to the Board
and/or filing charges with the Board.”
On October 3, 2018, the Board issued a Decision, Order,
and Notice to Show Cause in this case. The Board dis-
missed the allegation that the Respondent’s mandatory ar-
bitration agreements unlawfully require employees to
waive their right to pursue class or collective actions in all
forums based on Murphy Oil, above, in light of the Su-
preme Court’s decision in Epic Systems Corp. v. Lewis,
584 U.S. __, 138 S.Ct. 1612 (2018) (holding that agree-
ments that contain class- and collective-action waivers
and stipulate that employment disputes are to be resolved
by individualized arbitration do not violate the National
Labor Relations Act). The Board also gave notice to the
parties to show cause why the remaining issue in the
case—whether the Respondent’s mandatory arbitration
agreements unlawfully restrict employee access to the
Board—should not be remanded to the judge for further
proceedings in light of the Board’s decision in Boeing Co.,
365 NLRB No. 154 (2017). In Boeing, the Board over-
ruled the “reasonably construe” prong of Lutheran Herit-
age and announced a new standard, which applies retroac-
tively for evaluating the lawfulness of a facially neutral
policy. Id., slip op. at 3.1 The Respondent and the
impact on NLRA rights, and (ii) legitimate justifications associated with
the rule.” Id., slip op. at 3. The Boeing standard replaced the “reasonably
construe” prong of Lutheran Heritage. Other aspects of Lutheran
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
Charging Party each filed a response to the Notice to Show
Cause.2
In Prime Healthcare Paradise Valley, LLC, we held that
“an arbitration agreement that explicitly prohibits the fil-
ing of claims with the Board or, more generally, with ad-
ministrative agencies must be found unlawful” because
“[s]uch an agreement constitutes an explicit prohibition on
the exercise of employee rights under the Act.” 368
NLRB No. 10, slip op. at 5 (2019). We further stated that
where an agreement does not explicitly prohibit the filing
of claims with the Board, the Board must apply the stand-
ard set forth in Boeing and initially “determine whether
that agreement, ‘when reasonably interpreted, would po-
tentially interfere with the exercise of NLRA rights.’” Id.
(quoting Boeing, above, slip op. at 3). “The ‘when rea-
sonably interpreted’ standard is objective and looks solely
to the wording of the rule, policy, or other provision at is-
sue[,] . . . interpreted from the employees’ perspective.”
Id., slip op. at 6 fn. 14. For the reasons discussed below,
we reverse the judge and find that the Respondent did not
violate Section 8(a)(1) by maintaining its mandatory arbi-
tration agreements because the agreements, when reason-
ably interpreted, do not potentially interfere with employ-
ees’ right to access the Board and its processes, including
the filing of Board charges and participating in Board pro-
ceedings.3
Although the first paragraph of the Respondent’s agree-
ments provides that “[a]ny claim, controversy or dispute”
shall be resolved through binding arbitration, the second
paragraph, which lists the claims covered by the agree-
ments, refers to paragraph 11 of the agreements as exclud-
ing certain claims from arbitration. Paragraph 11 does not
expressly exclude claims arising under the Act from cov-
ered claims subject to arbitration. Nonetheless, it does ex-
plicitly provide that “[n]othing in this Agreement shall be
construed to prohibit any current or former employee from
filing any charge or complaint or participating in any in-
vestigation or proceeding conducted by an administrative
Heritage remain intact, including whether a challenged rule or policy ex-
plicitly restricts activities protected by Sec. 7. 343 NLRB at 646.
2 In its response to the Notice to Show Cause, the Charging Party
urges the Board to remand this case to the judge because Boeing had not
issued when the judge issued his decision in this case or when the Re-
spondent filed exceptions to that decision. The Respondent urges the
Board to find the agreements lawful under Boeing and dismiss the com-
plaint or, “[a]t a minimum,” remand the case to the judge. Because the
only issue in this case is the facial lawfulness of the arbitration agree-
ments—which are already a part of the record before us—we find that a
remand is unnecessary.
3 This is in contrast to the unlawful arbitration agreement in Prime
Healthcare, which, when “[r]easonably interpreted, . . . ma[d]e arbitra-
tion the exclusive forum for the resolution of all claims, including federal
statutory claims under the National Labor Relations Act,” and thus was
agency, including but not limited to . . . the National Labor
Relations Board.” We find that this “savings clause” lan-
guage in paragraph 11 renders the Respondent’s agree-
ments lawful under Boeing.
The language in paragraph 11 is unconditional and suf-
ficiently prominent. With the inclusion and placement of
this language, the agreements cannot be reasonably inter-
preted to prohibit employees from filing Board charges or
participating in Board proceedings in any manner,
whether acting individually or in concert with coworkers.4
Paragraph 11 is sufficiently prominent within the agree-
ments to ensure that employees who read them know that
the agreements preserve employees’ rights to access the
Board and its processes. In particular, paragraph 2 refers
to paragraph 11, which contains the relevant language. In
addition, paragraph 11 is reasonably proximate to para-
graphs 1 and 2; they are separated by only about a page of
text and are part of the same document. Because the
agreements are explicit in informing employees that there
is “nothing” in them that should be read as preventing em-
ployees from accessing the Board, and this language is
sufficiently prominent within the agreements, they cannot
be reasonably understood to potentially interfere with em-
ployees’ exercise of their NLRA rights. Accordingly, we
find paragraph 11 in the agreements to be an effective
“savings clause” and that the agreements are lawful under
Boeing Category 1(a). Boeing, above, slip op. at 4 (Cate-
gory 1(a) consists of “rules that are lawful because, when
reasonably interpreted, they would have no tendency to
interfere with Section 7 rights and therefore no balancing
of rights and justifications is warranted . . . .”) (internal
footnote omitted).5
In finding the violation, the judge relied on Amex Card
Services Co., 363 NLRB No. 40 (2015), a case decided
prior to Boeing, in which the Board found that an em-
ployer’s mandatory arbitration policy unlawfully re-
stricted employees’ right to file Board charges. However,
Amex is factually distinguishable. In that case, although
found to restrict employees from filing charges with the Board. 368
NLRB No. 10, slip op. at 6 (emphasis included).
4
Notably, the class- or collective-action waiver in par. 12 of the
agreements applies to “all claims subject to arbitration under this Agree-
ment.” It does not require an employee with a claim against the Re-
spondent that is not being arbitrated, such as a Board charge, to pursue it
“only in an individual capacity.”
5 Member McFerran acknowledges that Boeing, above, is currently
governing law, and joins the majority in applying that standard for insti-
tutional reasons but adheres to and reiterates her dissent in that case.
Here, Member McFerran agrees with her colleagues that employees
would not reasonably construe the arbitration policy as prohibiting em-
ployees from filing charges with the Board, under either the standard set
forth in Boeing or the previous standard. Likewise, she agrees that the
cases prior to Boeing finding that those arbitration policies unlawfully
restricted access to the Board are factually distinguishable.
BRIAD WENCO, LLC D/B/A WENDY’S RESTAURANT
3
the arbitration policy permitted the filing of Board
charges, the employer required employees to sign a sepa-
rate form that served as its own complete agreement and
stated that arbitration is the exclusive forum for the reso-
lution of all employment-related disputes without any lim-
itation. Amex, above, slip op. at 2–3. The form did not
provide that employees are permitted to file a claim or
charge with the Board. Id. Here, employees were pre-
sented with only a single document, and in light of the
prominent “savings clause” and its proximity to the provi-
sion requiring that all claims be resolved through binding
arbitration, we find that employees would not reasonably
interpret the agreements to bar or restrict their access to
the Board.6
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 11, 2019
______________________________________
John F. Ring,
Chairman
______________________________________
Lauren McFerran,
Member
______________________________________
Marvin E. Kaplan,
Member
_______________________________________
William J. Emanuel,
Member
6 Because the Respondent’s agreements unequivocally state that em-
ployees have a right to file Board charges and participate in Board pro-
ceedings, we find that this case is factually distinguishable from those in
which the pre-Boeing Board found “savings clause” language, in context,
to be confusing, ambiguous, or otherwise insufficient, without passing
on whether those cases were correctly decided. Specifically, in Lincoln
Eastern Management Corp., 364 NLRB No. 16, slip op. at 2–3 (2016),
the arbitration policy contained language stating that “following the ap-
propriate administrative processes . . . is a prerequisite” to arbitration,
which, the Board found, suggested that the filing of Board charges would
be futile because all disputes would ultimately be resolved through arbi-
tration. In addition, employees had to sign a separate document agreeing
to binding arbitration of all claims, and that separate agreement did not
specify that employees may file charges with the Board. Id., slip op. at
2. In Ralph’s Grocery, 363 NLRB No. 128, slip op. at 1–3 (2016), the
Board found that the arbitration agreement suggested that the filing of
Board charges would be permissible only when necessary to satisfy “any
applicable statutory conditions precedent or jurisdictional prerequisites”
and would be futile because arbitration is the “sole and exclusive rem-
edy.” Moreover, as in Lincoln Eastern, employees also had to sign a
separate document, in this case an employment application, summarizing
(SEAL) NATIONAL LABOR RELATIONS BOARD
Annie Hsu, Esq., for the General Counsel.
Jason Pruzansky, Esq. (Davis & Gilbert, LLP), for the Respond-
ent.
Ceilidh Gao, Esq. (Levy Ratner P.C.), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. By Joint Mo-
tion to Transfer Proceedings to the Division of Judges and Joint
Stipulation of Facts dated May 26, 2016, the parties waived a
hearing and submitted this matter directly to the undersigned.
The parties agree that this case was initiated by an unfair labor
practice charge and a first and second amended charge filed by
Fast Food Workers Committee (the Union), on December 10,
2015,1 January 7 and March 16, 2016; on March 28, 2016, com-
plaint issued alleging that Briad Wenco, LLC, d/b/a Wendy’s
Restaurant (the Respondent), violated Section 8(a)(1) of the Act
by (a) maintaining a mandatory arbitration agreement that em-
ployees would reasonably believe bars or restricts them from fil-
ing charges with the Board and/or restricts their access to the
Board’s processes, (b) maintaining a mandatory arbitration
agreement under which employees are compelled to waive the
right to maintain class or collective actions in all forums, whether
arbitral or judicial, and (c) requesting that its employees sign the
mandatory arbitration agreement described above; and that Re-
spondent filed a timely answer denying the alleged violations of
the Act.
The parties also stipulated to the following:
1. At all material times, Respondent has been a limited liability
company with its principal office and place of business located
at 78 Okner Parkway, Livingston, New Jersey, and has been
engaged in the operation of Wendy's restaurants at the locations
set forth in the Appendix attached hereto.
2. Annually, Respondent, in conducting its business operations
the arbitration agreement without referring to employees’ right to file
Board charges. Id., slip op. at 2. In SolarCity Corp., 363 NLRB No. 83,
slip op. at 4–5 (2015), the arbitration agreement contained language qual-
ifying employees’ right to file Board charges by stating that employees
could pursue only those claims “that are expressly excluded from arbi-
tration by statute” or that “applicable law permits [an] agency or admin-
istrative body to adjudicate . . . .” The Board reasoned that this language
required an employee to have “specialized legal knowledge” to deter-
mine whether the filing of Board charges is permitted. Id., slip op. at 5.
The Board further found that the agreement suggested that, even if em-
ployees can invoke the Board’s processes, they may only do so individ-
ually because the agreement required them to “waive any right to pursue
or participate in any dispute on behalf of, or as part of, any class, collec-
tive or representative action,” which the Board found clearly encom-
passed the filing of Board charges that speak to a group or collective
concern. Id., slip op. at 6. Member McFerran agrees with her colleagues
that Amex, Lincoln Eastern, Ralph’s Grocery, and SolarCity are distin-
guishable, and adheres to her views in those cases that the agreements at
issue were unlawful.
1 Unless indicated otherwise, all dates referred to herein relate to the
year 2015.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
described above in paragraph (1), derives gross revenues val-
ued in excess of $500,000 and purchases and receives at its
New York facilities goods valued in excess of $50,000 directly
from enterprises located outside the State of New York.
3. At all material times, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act (the Act).
4. At all material times, the Fast Food Workers Committee (the
Charging Party) has been a labor organization within the mean-
ing of Section 2(5) of the Act.
5. The Complaint and Notice of Hearing dated March 28, 2016
alleges that at all material times, Respondent, at its facilities
listed below in the Appendix, maintained arbitration agree-
ments which Respondent requested its employees to sign as
part of their new hire paperwork. The following facilities main-
tained the Arbitration Agreements:
6. Respondent's facilities located in New York, Exhibit 1,
maintained the Arbitration Agreement.
7. Respondent's facilities located in New Jersey, Exhibit 2,
maintained the Arbitration Agreement.
8. Respondent's facilities located in Pennsylvania, Exhibit 3,
maintained the Arbitration Agreement.
Exhibit 1 (New York Employees)
BRIAD WENCO, L.L.C.
ARBITRATION AGREEMENT (THE "AGREEMENT")
For New York Employees
PLEASE READ THIS AGREEMENT CAREFULLY. BY
SIGNING THIS AGREEMENT YOU AGREE TO WAIVE
YOUR RIGHT TO BRING A LAWSUIT IN COURT
AGAINST YOUR EMPLOYER, INCLUDING BUT NOT
LIMITED
TO
A
LAWSUIT
INVOLVING
DISCRIMINATION AND HARASSMENT CLAIMS.
[Name], in consideration of my hiring by Briad Wenco,
L.L.C. ("the Company") and for other good and sufficient con-
sideration, expressly agree as follows:
1. Any claim, controversy or dispute (hereafter "claim") that I
have against the Company or the Company has against me,
arising from or relating to my employment or the termination
of my employment with the Company (its owners, directors,
officers, managers, employees, agents, franchisors or any com-
pany owned by or affiliated with the Company) shall be fully
heard and settled by binding arbitration in accordance with the
JAMS Employment Arbitration Rules & Procedures (the
"Rules") and judgment upon the award rendered by the arbitra-
tor(s) may be entered in any court having jurisdiction thereof.
The parties agree that it is intended that the entire controversy
or dispute between the parties, from commencement of the
controversy or dispute through the arbitration hearing, includ-
ing all discovery, be brought in JAMS.
2. The claims covered by this Agreement include, but are not
limited to:
• claims alleging discrimination or harassment under federal,
state or local law or regulation including, but not limited to,
claims for discrimination based upon race, color, national
origin, ancestry, religion, marital status, age, gender, sexual or
affectional orientation, gender identity or expression, civil un-
ion status, domestic partnership status, veteran status, citizen-
ship status, pregnancy, medical condition or disability, genetic
information, predisposing genetic characteristics, creed status
as victim of domestic violence, arrest records, or conviction
records (including but not limited to claims under Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967, the Ameri-
cans with Disabilities Act of 1990, the New York Human
Rights Law, and the New York City Human Rights Law, and
all amendments to any such statutes);
• retaliation claims;
• claims for wages or other compensation (including but not
limited to claims under the Fair Labor Standards Act or New
York Labor Law, for overtime, salary, bonuses, severance pay,
and vacation pay and any other compensation);
• claims alleging breach of any contract or covenant (express
or implied);
• tort claims;
• defamation claims;
• claims alleging wrongful termination;
• claims alleging violation of any federal or state leave laws or
regulations (including but not limited to the Family and Medi-
cal Leave Act and the New York City Earned Sick Time Act);
• claims for employee benefits including health care benefits or
pension benefits (including but not limited to claims under the
Consolidated Omnibus Budget Reconciliation Act and the Em-
ployee Retirement Income Security Act);
• and any other claims alleging any violation of any federal,
state, local or other governmental law, statute, regulation, or or-
dinance, except claims expressly excluded from arbitration in
Paragraph 11 of this Agreement,
3. I accept and consent to binding arbitration as an alter-
native to civil litigation and agree to forego a trial by jury
with respect to all claims covered by this Agreement.
4. The arbitration shall occur at a JAMS hearing site located
nearest to the place of my employment (or, where I was last
employed, if at the time of the commencement of the arbitra-
tion I am no longer employed). The law of the State in which I
am employed (or, where I was last employed, if at the time of
the commencement of the arbitration I am no longer employed)
is the law which shall govern any procedural and substantive
issues at the arbitration.
5. A single arbitrator shall hear any dispute brought under this
Agreement. The arbitrator selected for the arbitration shall be a
licensed attorney with experience in employment law. The par-
ties agree to follow the "Rules" on the selection of an arbitrator,
including but not limited to the strike and rank process, but if
no arbitrator is selected from the first list of arbitrators sent to
the parties, the parties agree that a second list of arbitrators will
be sent to the parties for striking and ranking in accordance
with the Rules. If no arbitrator is selected from the second list
of arbitrators sent to the parties, the parties agree that a third list
of arbitrators will be sent to the parties for striking and ranking
in accordance with the Rules. If no arbitrator is selected from
BRIAD WENCO, LLC D/B/A WENDY’S RESTAURANT
5
the third list of arbitrators, JAMS will have the power to ap-
point an arbitrator in accordance with the Rules.
6. The arbitration will be conducted in the English Language.
The parties agree to follow the Rules, except as herein pro-
vided: Each party shall be permitted at the arbitration to take
one (1) deposition no longer than seven (7) hours, except that
if there are multiple Claimants, the Company will be permitted
to take one (1) deposition no longer than seven (7) hours for
each Claimant. Each party shall be permitted to serve one set
of no more than twenty-five (25) written interrogatories, in-
cluding all discrete subparts, upon the other party. Each party
shall be entitled to serve one (1) request for production of doc-
uments upon the other party. The parties are free to request ad-
ditional discovery, which shall be left to discretion of the arbi-
trator Each party shall be permitted to file a written motion to
dismiss some or all claims prior to the hearing.
7. The parties agree to pay the JAMS administrative fees in ac-
cordance with the Rules. All other costs and expenses associ-
ated with the arbitration, including, without limitation, each
party's respective attorneys' fees, shall be borne by the party in-
curring the expense.
8. Any conflict between the Rules and those set forth in this
Agreement shall be resolved in favor of those in this Agree-
ment.
9. The parties agree to keep the entire arbitration proceeding
confidential, except as otherwise prohibited by law.
10. The award of the arbitrator shall be accompanied by a state-
ment of the reasons upon which the award is based.
11. Nothing in this Agreement shall be construed to prohibit
any current or former employee from filing any charge or com-
plaint or participating in any investigation or proceeding con-
ducted by an administrative agency, including but not limited
to, the Equal Employment Opportunity Commission, the Na-
tional Labor Relations Board, the Department of Labor or any
state or local fair employment practices agency or other gov-
ernment enforcement agency, in connection with any claim
such employee may have against the company. Further, any
claims for workers' compensation, unemployment compensa-
tion, or temporary disability benefits are not covered by this
Agreement and are not subject to arbitration under this Agree-
ment. Also, any claims seeking injunctive and/or equitable re-
lief for any alleged unfair competition and/or the use and/or un-
authorized disclosure of trade secrets or confidential infor-
mation are not covered. Either party is free to seek and obtain
such relief from a court of competent jurisdiction.
12. The Company and I agree that any and all claims subject to
arbitration under this Agreement will be instituted only in an
individual capacity, and not as a representative plaintiff on be-
half of any purported class, collective or consolidated action. It
is the parties' intent to the fullest extent permitted by law to
waive any and all rights to the application of class or collective
action procedures or remedies to arbitration proceedings con-
ducted under this Agreement, and it is expressly agreed be-
tween the Company and me that any arbitrator adjudicating
claims under this Agreement shall have no power or authority
to adjudicate class, collective or consolidated claims. Further-
more, the Company and I agree that neither can join or partici-
pate as a member of a class or collective action that may have
been instituted in court or in arbitration by a third-party in order
to pursue any claims that are subject to arbitration under this
Agreement.
13. As a prerequisite to submitting an employment dispute to
arbitration, the parties agree to make good faith efforts at re-
solving any dispute prior to the commencement of such arbi-
tration on an informal basis. Only when those internal efforts
fail may an employment dispute be submitted to final and bind-
ing arbitration in accordance with this Agreement. Current or
former employees should contact the Vice President of Human
Resources to attempt to resolve their employment disputes in-
formally.
14. If any proceeding in which the validity or enforceability of
this Agreement is challenged, the prevailing party to such pro-
ceeding shall be entitled to an award of attorney's fees and costs
through and including any appeals of such proceeding.
15. Should any term of this agreement be deemed void or un-
enforceable, that term shall be severed and the remaining por-
tions of the agreement shall be enforceable.
16. The term of this Agreement shall survive the termination of
my employment with the Company.
17. Nothing in this Agreement in any way alters my at-will
employment with the Company. I may terminate my em-
ployment at any time, without prior notice and with or without
cause. Likewise, the Company may terminate my employment
at any time, without prior notice and with or without cause. My
status as an at-will employee can only be changed by an ex-
press written agreement between myself and the President and
Chief Operating Officer.
Exhibit 2 (New Jersey Employees):
BRIAD WENCO, L.L.C.
ARBITRATION AGREEMENT (THE "AGREEMENT")
For New Jersey Employees.
PLEASE READ THIS AGREEMENT CAREFULLY. BY
SIGNING THIS AGREEMENT YOU AGREE TO WAIVE
YOUR RIGHT TO BRING A LAWSUIT IN COURT
AGAINST YOUR EMPLOYER, INCLUDING BUT NOT
LIMITED
TO
A
LAWSUIT
INVOLVING
DISCRIMINATION AND HARASSMENT CLAIMS.
[Name], in consideration of my hiring by Briad Wenco, L.L.C.
("the Company") and for other good and sufficient considera-
tion, expressly agree as follows:
1. Any claim, controversy or dispute (hereafter "claim") that I
have against the Company or the Company has against me,
arising from or relating to my employment or the termination
of my employment with the Company (its owners, directors,
officers, managers, employees, agents, franchisors or any com-
pany owned by or affiliated with the Company) shall be fully
heard and settled by binding arbitration in accordance with the
JAMS Employment Arbitration Rules & Procedures (the
"Rules") and judgment upon the award rendered by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
arbitrator(s) may be entered in any court having jurisdiction
thereof, The parties agree that it is intended that the entire con-
troversy or dispute between the parties, from commencement
of the controversy or dispute through the arbitration hearing,
including all discovery, be brought in JAMS.
2. The claims covered by this Agreement include, but are not
limited to:
• claims alleging discrimination or harassment under federal,
state or local law or regulation including, but not limited to,
claims for discrimination based upon race, color, nationality,
national origin, ancestry, religion, marital status, age, gender,
sexual or affectional orientation, gender identity or expression,
civil union status, domestic partnership status, veteran status,
citizenship status, pregnancy, medical condition or disability,
handicap, genetic information, atypical hereditary cellular or
blood trait, or creed (including but not limited to claims under
Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act of 1967,
the Americans with Disabilities Act of 1990, the New Jersey
Law Against Discrimination, and all amendments to any such
statutes);
• retaliation claims (including but not limited to claims under
the New Jersey Conscientious Employee Protection Act);
• claims for wages or other compensation (including but not
limited to claims under the Fair Labor Standards Act or New
Jersey State Wage and Hour Law or New Jersey State Wage
Payment Law, for overtime, salary, bonuses, severance pay,
and vacation pay and any other compensation);
• claims alleging breach of any contract or covenant (express
or implied);
• tort claims;
• defamation claims;
• claims alleging wrongful termination;
• claims alleging violation of any federal •or state leave laws or
regulations (including but not limited to the Family and Medi-
cal Leave Act, the New Jersey Family Leave Act, and the New
Jersey Paid Family Leave Act);
• claims for employee benefits including health care benefits or
pension benefits (including but not limited to claims under the
Consolidated Omnibus Budget Reconciliation Act and the Em-
ployee Retirement Income Security Act);
• and any other claims alleging any violation of any federal,
state, local or other governmental law, statute, regulation, or or-
dinance, except claims expressly excluded from arbitration in
Paragraph 11 of this Agreement.
3. I accept and consent to binding arbitration as an alternative
to civil litigation and agree to forego a trial by jury with respect
to all claims covered by this Agreement.
4. The arbitration shall occur at a JAMS hearing site located
nearest to the place of my employment (or, where I was last
employed, if at the time of the commencement of the arbitra-
tion I am no longer employed). The law of the State in which I
am employed (or, where I was last employed, if at the time of
the commencement of the arbitration I am no longer employed)
is the law which shall govern any procedural and substantive
issues at the arbitration.
5. A single arbitrator shall hear any dispute brought under this
Agreement. The arbitrator selected for the arbitration shall be a
licensed attorney with experience in employment law. The par-
ties agree to follow the "Rules" on the selection of an arbitrator,
including but not limited to the strike and rank process, but if
no arbitrator is selected from the first list of arbitrators sent to
the parties, the parties agree that a second list of arbitrators will
be sent to the parties for striking and ranking in accordance
with the Rules. If no arbitrator is selected from the second list
of arbitrators sent to the parties, the parties agree that a third list
of arbitrators will be sent to the parties for striking and ranking
in accordance with the Rules. If no arbitrator is selected from
the third list of arbitrators, JAMS will have the power to ap-
point an arbitrator in accordance with the Rules.
6. The arbitration will be conducted in the English Language.
The parties agree to follow the Rules, except as herein pro-
vided: Each party shall be permitted at the arbitration to take
one (1) deposition no longer than seven (7) hours, except that
if there are multiple Claimants, the Company will be permitted
to take one (1) deposition no longer than seven (7) hours for
each Claimant. Each party shall be permitted to serve one set
of no more than twenty-five (25) written interrogatories, in-
cluding all discrete subparts, upon the other party. Each party
shall be entitled to serve one (1) request for production of doc-
uments upon the other party. The parties are free to request ad-
ditional discovery, which shall be left to discretion of the arbi-
trator Each party shall be permitted to file a written motion to
dismiss some or all claims prior to the hearing.
7, The parties agree to pay the JAMS administrative fees in ac-
cordance with the Rules. All other costs and expenses associ-
ated with the arbitration, including, without limitation, each
party's respective attorneys' fees, shall be borne by the party in-
curring the expense.
8. Any conflict between the Rules and those set forth in this
Agreement shall be resolved in favor of those in this Agree-
ment.
9. The parties agree to keep the entire arbitration proceeding
confidential, except as otherwise prohibited by law.
10. The award of the arbitrator shall be accompanied by a state-
ment of the reasons upon which the award is based.
11. Nothing in this Agreement shall be construed to prohibit
any current or former employee from filing any charge or com-
plaint or participating in any investigation or proceeding con-
ducted by an administrative agency, including but not limited
to, the Equal Employment Opportunity Commission, the Na-
tional Labor Relations Board, the Department of Labor or any
state or local fair employment practices agency or other gov-
ernment enforcement agency, in connection with any claim
such employee may have against the company. Further, any
claims for workers' compensation, unemployment compensa-
tion, or temporary disability benefits are not covered by this
Agreement and are not subject to arbitration under this Agree-
ment. Also, any claims seeking injunctive and/or equitable re-
lief for any alleged unfair competition and/or the use and/or un-
authorized disclosure of trade secrets or confidential
BRIAD WENCO, LLC D/B/A WENDY’S RESTAURANT
7
information are not covered. Either party is free to seek and ob-
tain such relief from a court of competent jurisdiction.
12. The Company and I agree that any and all claims subject to
arbitration under this Agreement will be instituted only in an
individual capacity, and not as a representative plaintiff on be-
half of any purported class, collective or consolidated action. It
is the parties' intent to the fullest extent permitted by law to
waive any and all rights to the application of class or collective
action procedures or remedies to arbitration proceedings con-
ducted under this Agreement, and it is expressly agreed be-
tween the Company and me that any arbitrator adjudicating
claims under this Agreement shall have no power or authority
to adjudicate class, collective or consolidated claims. Further-
more, the Company and I agree that neither can join or partici-
pate as a member of a class or collective action that may have
been instituted in court or in arbitration by a third-party in order
to pursue any claims that are subject to arbitration under this
Agreement.
13. As a prerequisite to submitting an employment dispute to
arbitration, the parties agree to make good faith efforts at re-
solving any dispute prior to the commencement of such arbi-
tration on an informal basis. Only when those internal efforts
fail may an employment dispute be submitted to final and bind-
ing arbitration in accordance with this Agreement. Current or
former employees should contact the Vice President of Human
Resources to attempt to resolve their employment disputes in-
formally.
14. If any proceeding in which the validity or enforceability of
this Agreement is challenged, the prevailing party to such pro-
ceeding shall be entitled to an award of attorney's fees and costs
through and including any appeals of such proceeding.
15. Should any term of this agreement be deemed void or un-
enforceable, that term shall be severed and the remaining por-
tions of the agreement shall be enforceable.
16. The term of this Agreement shall survive the termination of
my employment with the Company.
17. Nothing in this Agreement in any way alters my at-will
employment with the Company. I may terminate my em-
ployment at any time, without prior notice and with or without
cause. Likewise, the Company may terminate my employment
at any time, without prior notice and with or without cause. My
status as an at-will employee can only be changed by an ex-
press written agreement between myself and the President and
Chief Operating Officer.
Exhibit 3 (Pennsylvania Employees):
BRIAD WENCO, L.L.C.
ARBITRATION AGREEMENT (THE "AGREEMENT")
For Pennsylvania Employees
PLEASE READ THIS AGREEMENT CAREFULLY. BY
SIGNING THIS AGREEMENT YOU AGREE TO WAIVE
YOUR RIGHT TO BRING A LAWSUIT IN COURT
AGAINST YOUR EMPLOYER, INCLUDING BUT NOT
LIMITED
TO
A
LAWSUIT
INVOLVING
DISCRIMINATION AND HARASSMENT CLAIMS.
[Name], in consideration of my hiring by Briad Wenco, L.L.C.
(“the Company”) and for other good and sufficient considera-
tion, expressly agree as follows:
1. Any claim, controversy or dispute (hereafter "claim") that I
have against the Company or the Company has against me,
arising from or relating to my employment or the termination
of my employment with the Company (its owners, directors,
officers, managers, employees, agents, franchisors or any com-
pany owned by or affiliated with the Company) shall be fully
heard and settled by binding arbitration in accordance with the
JAMS Employment Arbitration Rules & Procedures (the
"Rules") and judgment upon the award rendered by the arbitra-
tor(s) may be entered in any court having jurisdiction thereof
The parties agree that it is intended that the entire controversy
or dispute between the parties, from commencement of the
controversy or dispute through the arbitration hearing, includ-
ing all discovery, be brought in JAMS.
2. The claims covered by this Agreement include, but are not
limited to:
• claims alleging discrimination or harassment under federal,
state or local law or regulation including, but not limited to,
claims for discrimination based upon race, color, national
origin, ancestry, religion, familial status, age, gender, veteran
status, pregnancy, medical condition or disability or handicap,
genetic information, religious creed, use of guide or support an-
imals because of blindness, deafness, or physical handicap of
the user or because the user is a handler or trainer of support or
guide animals (including but not limited to claims under Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, the Pennsylvania Hu-
man Relations Act, and all amendments to any such statutes);
• retaliation claims (including but not limited to claims under
the Pennsylvania Whistleblower Law);
• claims for wages or other compensation (including but not
limited to claims under the Fair Labor Standards Act or the
Pennsylvania Wage Payment and Collection Law, for over-
time, salary, bonuses, severance pay, and vacation pay and any
other compensation);
• claims alleging breach of any contract or covenant (express
or implied);
• tort claims;
• defamation claims;
• claims alleging wrongful termination;
• claims alleging violation of any federal or state leave laws or
regulations (including but not limited to the Family and Medi-
cal Leave Act);
• claims for employee benefits including health care benefits or
pension benefits (including but not limited to claims under the
Consolidated Omnibus Budget Reconciliation Act and the Em-
ployee Retirement Income Security Act);
• and any other claims alleging any violation of any federal,
state, local or other governmental law, statute, regulation, or or-
dinance, except claims expressly excluded from arbitration in
Paragraph 11 of this Agreement.
3. I accept and consent to binding arbitration as an alternative
to civil litigation and agree to forego a trial by jury with respect
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
to all claims covered by this Agreement.
4. The arbitration shall occur at a JAMS hearing site located
nearest to the place of my employment (or, where I was last
employed, if at the time of the commencement of the arbitra-
tion I am no longer employed). The law of the State in which I
am employed (or, where I was last employed, if at the time of
the commencement of the arbitration I am no longer employed)
is the law which shall govern any procedural and substantive
issues at the arbitration.
5. A single arbitrator shall hear any dispute brought under this
Agreement. The arbitrator selected for the arbitration shall be a
licensed attorney with experience in employment law. The par-
ties agree to follow the "Rules" on the selection of an arbitrator,
including but not limited to the strike and rank process, but if
no arbitrator is selected from the first list of arbitrators sent to
the parties, the parties agree that a second list of arbitrators will
be sent to the parties for striking and ranking in accordance
with the Rules. If no arbitrator is selected from the second list
of arbitrators sent to the parties, the parties agree that a third list
of arbitrators will be sent to the parties for striking and ranking
in accordance with the Rules. If no arbitrator is selected from
the third list of arbitrators, JAMS will have the power to ap-
point an arbitrator in accordance with the Rules.
6. The arbitration will be conducted in the English Language.
The parties agree to follow the Rules, except as herein pro-
vided: Each party shall be permitted at the arbitration to take
one (1) deposition no longer than seven (7) hours, except that
if there are multiple Claimants, the Company will be permitted
to take one (1) deposition no longer than seven (7) hours for
each Claimant. Each party shall be permitted to serve one set
of no more than twenty-five (25) written interrogatories, in-
cluding all discrete subparts, upon the other party. Each party
shall be entitled to serve one (1) request for production of doc-
uments upon the other party. The parties are free to request ad-
ditional discovery, which shall be left to discretion of the arbi-
trator Each party shall be permitted to file a written motion to
dismiss some or all claims prior to the hearing.
7, The parties agree to pay the JAMS administrative fees in ac-
cordance with the Rules. All other costs and expenses associ-
ated with the arbitration, including, without limitation, each
party's respective attorneys' fees, shall be borne by the party in-
curring the expense.
8. Any conflict between the Rules and those set forth in this
Agreement shall be resolved in favor of those in this Agree-
ment.
9. The parties agree to keep the entire arbitration proceeding
confidential, except as otherwise prohibited by law.
10. The award of the arbitrator shall be accompanied by a state-
ment of the reasons upon which the award is based.
11. Nothing in this Agreement shall be construed to prohibit
any current or former employee from filing any charge or com-
plaint or participating in any investigation or proceeding con-
ducted by an administrative agency, including but not limited
to, the Equal Employment Opportunity Commission, the
National Labor Relations Board, the Department of Labor or
any state or local fair employment practices agency or other
government enforcement agency, in connection with any claim
such employee may have against the company. Further, any
claims for workers' compensation, unemployment compensa-
tion, or temporary disability benefits are not covered by this
Agreement and are not subject to arbitration under this Agree-
ment. Also, any claims seeking injunctive and/or equitable re-
lief for any alleged unfair competition and/or the use and/or un-
authorized disclosure of trade secrets or confidential infor-
mation are not covered. Either party is free to seek and obtain
such relief from a court of competent jurisdiction.
12. The Company and I agree that any and all claims subject to
arbitration under this Agreement will be instituted only in an
individual capacity, and not as a representative plaintiff on be-
half of any purported class, collective or consolidated action. It
is the parties' intent to the fullest extent permitted by law to
waive any and all rights to the application of class or collective
action procedures or remedies to arbitration proceedings con-
ducted under this Agreement, and it is expressly agreed be-
tween the Company and me that any arbitrator adjudicating
claims under this Agreement shall have no power or authority
to adjudicate class, collective or consolidated claims. Further-
more, the Company and I agree that neither can join or partici-
pate as a member of a class or collective action that may have
been instituted in court or in arbitration by a third-party in order
to pursue any claims that are subject to arbitration under this
Agreement.
13. As a prerequisite to submitting an employment dispute to
arbitration, the parties agree to make good faith efforts at re-
solving any dispute prior to the commencement of such arbi-
tration on an informal basis. Only when those internal efforts
fail may an employment dispute be submitted to final and bind-
ing arbitration in accordance with this Agreement. Current or
former employees should contact the Vice President of Human
Resources to attempt to resolve their employment disputes in-
formally.
14. If any proceeding in which the validity or enforceability of
this Agreement is challenged, the prevailing party to such pro-
ceeding shall be entitled to an award of attorney's fees and costs
through and including any appeals of such proceeding.
15. Should any term of this agreement be deemed void or un-
enforceable, that term shall be severed and the remaining por-
tions of the agreement shall be enforceable.
16. The term of this Agreement shall survive the termination
'of my employment with the Company.
17. Nothing in this Agreement in any way alters my at-will
employment with the Company. I may terminate my em-
ployment at any time, without prior notice and with or without
cause. Likewise, the Company may terminate my employment
at any time, without prior notice and with or without cause. My
status as an at-will employee can only be changed by an ex-
press written agreement between myself and the President and
Chief Operating Officer.
BRIAD WENCO, LLC D/B/A WENDY’S RESTAURANT
9
Analysis
This is another case in line with D. R. Horton, Inc., 357 NLRB
2277 (2012), Murphy Oil USA, Inc., 361 NLRB 774 (2014) and
Cellular Sales of Missouri, LLC, 362 NLRB 241 (2015). Para-
graphs 1 and 2 require the employees to utilize arbitration to de-
termine any dispute with the Respondent while paragraph 12
prohibits class, collective, or consolidated actions. However, the
agreement, at paragraph 11 permits covered employees to file
charges and to participate in proceedings of administrative agen-
cies, such as the Board and the EEOC, although it does not con-
tain an “opt out” provision wherein employees can affirmatively
notify the Respondent that he/she does not want to be bound by
these restrictions. Horton applied the test as set forth in Lu-
theran-Heritage Village-Livonia, 343 NLRB 646 (2004), which
stated that the initial inquiry is whether the rule at issue explicitly
restricts activities that are protected by Section 7 of the Act; if
so, it is unlawful. If not, the finding of a violation is dependent
upon a showing of one of the following: employees would rea-
sonably construe the rule to prohibit protected activity or the rule
has been applied to restrict the exercise of this activity. The
Board, in Horton, found that “employers may not compel em-
ployees to waive their NLRA right to collectively pursue litiga-
tion of employment claims in all forums arbitral and judicial” as
a condition of employment. In Murphy Oil, supra, at page 2, the
Board stated that although Horton was rejected by the U.S. Court
of Appeals for the Fifth Circuit and was viewed as unpersuasive
by the Second and Eighth Circuits: “We have independently
reexamined D. R. Horton, carefully considering the Respond-
ent’s arguments, adverse judicial decisions, and the views of our
dissenting colleagues. Today we reaffirm that decision. Its rea-
soning and result were correct” On May 26, 2016, the United
States Court of Appeals for the Seventh Circuit, in Jacob Lewis
v. Epic Systems Corporation agreed with the Board and found
that these restrictions on class, collective, or representative pro-
ceedings violate the Act and affirmed the District Court’s deci-
sion to refuse to dismiss the employee’s claim based upon the
arbitration agreement. The Court cited a number of Supreme
Court rulings in making this finding: Contracts “stipulating . . .
the renunciation by the employees of rights guaranteed by the
[NLRA]” are unlawful and may be declared to be unenforceable
by the Board, National Licorice Co. v. NLRB, 309 U.S. 350, 369
(1940); “Whenever private contracts conflict with [the Board’s]
functions, they obviously must yield or the [NLRA] would be
reduced to a futility.” J. I. Case Co. v. NLRB, 321 U.S. 332, 337
(1944); and Section 7’s “other concerted activities” have long
been held to include “resort to administrative and judicial fo-
rums.” Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978). The
Court further stated:
Epic’s clause runs straight into the teeth of Section 7. The pro-
vision prohibits any collective, representative, or class legal
proceedings. Section 7 provides that “employees shall have the
right . . . to engage in…concerted activities for the purpose of
collective bargaining or other mutual aid or protection.” A
2 Counsel for the Respondent, in his brief, argues that the agreement
is lawful, based upon the Federal Arbitration Act. I reject that argument
as the Board has.
collective representative, or class legal proceeding is just such
a “concerted activity.”
The Court concluded that a contract that limits Section 7 rights
that is a condition of employment or of continued employment,
interferes with and restrains employees in the exercise of those
rights in violation of Section 8(a)(1) of the Act. And that is the
situation in the instant matter. The Respondent’s Arbitration
Agreements required employees to forego any class, collective
or consolidated actions and that all arbitrations must be brought
in an individual capacity. As employees were required to agree
to these terms in order to become or remain employees of the
Respondent, I find that the Respondent has violated Section
8(a)(1) of the Act.2
The final issue is whether the agreement violates the Act be-
cause the employees would reasonably believe that it bars or re-
stricts them from access to the Board and/or filing charges with
the Board. As stated above, the first paragraph of the agreement
states that “Any claim, controversy or dispute that I have against
the Company . . . relating to my employment. . .shall be fully
heard and settled by binding arbitration” and paragraphs 2 and 3
state the types of claims included and that the individual accepts
and consents to binding arbitration and agrees to forego a trial by
jury with respect to all claims covered by the agreement. How-
ever, paragraph 11 states that nothing in the agreement shall be
construed to prohibit an employee or former employee from fil-
ing a charge or participate in any proceeding before the Board or
other specified administrative agencies. Counsel for the Re-
spondent alleges that regardless of the earlier provisions of the
agreement, this paragraph clearly gives employees the right to
file charges with the Board and therefore this allegation should
be dismissed. While I agree that paragraph 11 is clear and une-
quivocal that employees have the right to take their complaints
to the Board, I disagree with this argument and find that the
agreement further violates the Act as alleged in the complaint.
As is usual in these matters, we begin with Lutheran Heritage
Village-Livonia, supra, to determine whether employees would
reasonably construe the agreement to prohibit them from taking
their complaint to the Board. In making this determination, I
recognize that typical “nonlawyer employees” do not have spe-
cialized legal knowledge to analyze these agreements, 2 Sisters
Food Group, Inc., 357 NLRB 1816 (2011). Further, as the Board
stated in Ingram Book Co., 315 NLRB 515, 516 fn. 2 (1994):
“rank and file employees do not generally carry law books to
work or apply legal analysis to company rules as do lawyers and
cannot be expected to have the expertise to examine company
rules from a legal standpoint.” Although paragraph 11 in une-
quivocal, stating that nothing in the agreement should be con-
strued to prevent an employee from filing charges with the
Board, paragraphs 1 and 2 are also unequivocal stating that any
claim, controversy or dispute must be resolved by individual ar-
bitration. I believe that it is fair to assume that the applicants for
employment, if they did read the provisions of the agreement,
did not get as far as paragraph 11 and, if they did, it is likely that
they would not understand that they could file charges with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10
Board, regardless of the provisions contained in paragraphs 1
and 2. Further, even if the employee did get as far as paragraph
11, the following paragraph reinforces the restrictions contained
in paragraphs 1 and 2. I therefore find that these agreements re-
stricted the employees from filing charges with the Board, in vi-
olation of Section 8(a)(1) of the Act. Amex Card Services Co.,
363 NLRB No. 40 (2015).
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Fast Food Workers Committee has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The arbitration agreements maintained by the Respondent
at its locations in the States of New York, New Jersey, and Penn-
sylvania listed in the attached Appendix violate Section 8(a)(1)
of the Act by requiring the employees to waive the right to main-
tain class or collective actions and restrict the employees from
filing charges with the Board.
THE REMEDY
Having found that the Respondent has violated the Act by
maintaining the arbitration agreement as a condition of employ-
ment, I recommend that the Respondent be ordered to cease and
desist from maintaining and enforcing this agreement, and that it
be ordered to notify all employees, including those who signed
the agreement, that it has been rescinded and they will not be
required to sign it as a condition of employment. Further, I rec-
ommend that Respondent be ordered to notify any arbitral or ju-
dicial panel where it has attempted to enjoin, or otherwise, pro-
hibit, employees from bringing or participating in class or col-
lective actions, that it is withdrawing these objections and that it
no longer objects to such employee actions.
Upon the foregoing findings of fact, conclusions of law and
based upon the entire record, I hereby issue the following rec-
ommended3
ORDER
The Respondent Briad Wenco, LLC, d/b/a Wendy’s Restau-
rant, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing its arbitration agreements in the
States of New York, New Jersey, and Pennsylvania.
(b) Telling its employees that they must sign the arbitration
agreement as a condition of obtaining or retaining employment
with the Respondent in the States of New York, New Jersey, or
Pennsylvania.
(c) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of their rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Rescind the arbitration agreements in the States of New
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
York, New Jersey, and Pennsylvania and notify all employees,
and employee applicants, that it will no longer require employees
in these states to sign this agreement as a condition of employ-
ment.
(b) Notify arbitral or judicial panels, if any, where the Re-
spondent has attempted to enjoin or otherwise prohibit employ-
ees in the States of New York, New Jersey, or Pennsylvania from
bringing or participating in class or collective actions, that it is
withdrawing those objections and that it no longer objects to
such employee actions.
(c) Within 14 days after service by the Region, post at its fa-
cilities in the States of New York, New Jersey, and Pennsylvania
listed in the appendix attached hereto, copies of the attached no-
tice marked “Appendix B.”4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 29, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since December 10, 2015.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. July 6, 2016
APPENDIX A
359 ROUTE 17 SOUTH, WOODRIDGE, NJ
301 MOUNT HOPE AVE. SUITE 2103
131 WOODBRIDGE CTR. DR.,WOODBRIDGE, NJ
853 CONVERY BLVD.(ROUTE 35), PERTH AMBOY, NJ
413 ROUTE 10 EAST, EAST HANOVER, NI
147 BLOOMFIELD AVENUE, BLOOMFIELD, Ni
327 RIDGE ROAD, LYNDHURST, NJ
30 ROUTE 17 SOUTH, RUTHERFORD, NJ
210 WEST FIRST AVE., ROSELLE, NJ
420 ROUTE 46 WEST, S. HACKENSACK, NJ
219-44 HILLSIDE AVE., QUEENS VILLAGE, NY
138-41 JAMAICA AVENUE, JAMAICA, NY
4416 QUEENS BLVD., LONG ISLAND CITY, NY
685 N. DELSEA DRIVE, GLASSBORO, NJ
5480 RT. 42 (BLACKHORSE PIKE) TURNERSVILLE,NJ
568 CUTHBERT BLVD., HADDON TOWNSHIP, NJ
300 S. BLACKHORSE PIKE, BELLMAWR, NJ
1140 ROUTE 73, MT. LAUREL, NJ
2400 CHURCH ROAD, CHERRY HILL, NJ
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.”
BRIAD WENCO, LLC D/B/A WENDY’S RESTAURANT
11
704 MANTUA PIKE, WOODBURY HEIGHTS, NJ
1006-1240 NIXON DRIVE, MT. LAUREL, NJ
1101 WALNUT STREET, PHILADELPHIA, PA
446 ROUTE 37 WEST, TOMS RIVER, NJ -
4361 ROUTE 130 SOUTH, BURLINGTON, NJ
2 WEST MAIN ST, WRIGHTSTOWN, NJ
1916 LINDEN BOULEVARD, BROOKLYN, NY
505 UTICA AVENUE, BROOKLYN, NY
469 FLATBUSH AVENUE, BROOKLYN, NY
90 ST. GEORGES AVENUE, RAHWAY, NJ
1377 BLACKWOOD-CLEM RD, CLEMENTON, NJ
2741 ROUTE 42, WASHINGTON TWP, NJ
1149 HURFEVILLE ROAD (RT.41) DEPTFORD, NJ
301 RT. 9 NORTH, LANOKA HARBOR, Ni
5300 MARLTON PIKE, (RT. 70) PENNSAUKEN, NJ
2107 MT. HOLLY ROAD (RT. 541), BURLINGTON, NJ
1501 CHESTNUT STREET, PHILADELPHIA, PA
53 BANANIER DRIVE, TOMS RIVER, NJ
356 ROUTE 72 WEST, MANAHAWKIN, NJ
55 PARSONAGE RD, MENLO PARK MALL, Edison, NJ
335 FIFTH AVE, NEW YORK, NY
7321 NORTH CRESCENT BLVD., PENNSAUKEN, NJ
935 EASTON AVE, SOMERSET, NJ ,
1101 WHITEHORSE ROAD, NJ
310 WHITEHORSE PIKE, Lawnside, NJ
69 RI 73 & LAFAYETTE AVENUE, NJ
5011 ROUTE 130 SOUTH, NI
65 SOUTH WHITEHORSE PIKE, NJ
488 CROWN POINT ROAD, NJ
6041 BLACK HORSE PIKE, NJ
74 CENTERTON ROAD, MT. LAUREL, NJ
500 Cross Keys Road, Sicklerville, NJ
3179 Atlantic Avenue, Brooklyn, N.Y,
2-30 Garfield Avenue, Jersey City, NJ.
Rt 440 & Kellogg Street, Jersey City, NJ.
2121-2123 Third Avenue & 116th St. NY, NY
3939 Broadway & West 165th St., NY, NY
181 Lefante Way, Bayonne, NJ.
600 Shrewsbury Avenue, Tinton Falls, NJ.
79 East 125th Street, NY, NY
388 Highway Rt. 35, Keyport, NJ.
35 US Highway 206 S, Chester NJ.
728 Rt 1.5 South, Lake Hopatcong, NJ
180 Rt. 23, Franklin, NJ
219 Mountain Avenue, Hackettstown, NJ
3190 Rt 22 West, Branchburg, NJ
555 West Lancaster Avenue, Haverford, PA
3600 Aramingo Avenue, Philadelphia, PA
5150 Pennell Road, Media, PA
6001 N Broad Street, Philadelphia, PA
1708 N Broad Street, Philadelphia, PA
259 City Line Avenue, Merion, PA
7700 City Line Avenue, Philadelphia, PA
800 Reed Road, Broomhali, PA
3000 Island Avenue, Philadelphia, PA
501 Adams Avenue, Philadelphia, PA
2301 Cottman Avenue. Philadelphia, PA
700 E. Hunting Park, Philadelphia, PA
901 Caftan Avenue, Philadelphia, PA
2387 Cheltenham Avenue, Philadelphia, PA
3521 Edgemont Avenue, Brookhaven, PA
2340 Oregun.Avenue, Philadelphia, PA -
2130 S Christopher Columbus Blvd, Philadelphia, PA
733 Huntingdon Pike, Huntingdon, PA
115 Stewart Avenue, Ridley, PA
5901 Ridge Avenue, Philadelphia, 5534
Wayne Ave., Philadelphia
2920 Fox Street, Philadelphia, PA
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 No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain or enforce the arbitration agreement
that prohibits our employees in the States of New York, New
Jersey, and Pennsylvania from bringing or participating in class
or collective actions or from filing charges with the National La-
bor Relations Board and WE WILL rescind the agreements and no-
tify our employees in those states that they need not sign the
agreement in order to become, or remain, an employee.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights guaranteed by
Section 7 of the Act.
WE WILL notify any arbitral or judicial panel where we have
attempted to prevent or enjoin you from commencing, or partic-
ipating in, joint or class actions relating to wages, hours or other
terms and conditions of employment, that we are withdrawing
our objections to these actions, and WE WILL no longer object to
you bringing or participating in such class or collective actions
or filing charges with the National Labor Relations Board.
BRIAD WENCO, LLC, D/B/A WENDY’S RESTAURANT
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–165942 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.