Briad Wenco, LLC d/b/a Wendy's Restaurant

National Labor Relations Board - Administrative Judge Opinions

Jul 6, 2016

29-CA-165942 (N.L.R.B. Jul. 6, 2016)

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Livingston, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BRIAD WENCO, LLC, D/B/A
WENDY’S RESTAURANT
and Case No. 29–CA–165942
FAST FOOD WORKERS COMMITTEE
Annie Hsu, Esq., for the General Counsel.
Ceilidh Gao, Esq., Levy Ratner P.C., Counsel for the Charging Party.
Jason Pruzansky, Esq., Davis & Gilbert, LLP, Counsel for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. By Joint Motion 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, herein called the Union, on December 10, 20151, January 7,
2016, and March 16, 2016; on March 28, 2016, complaint issued alleging that Briad Wenco,
LLC, d/b/a Wendy’s Restaurant, herein the Respondent, violated Section 8(a)(1) of the Act by
(a) maintaining a mandatory arbitration agreement that employees would reasonably believe
bars or restricts them from filing 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 Respondent 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 described above in
paragraph (1), derives gross revenues valued 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 engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act).

1 Unless indicated otherwise, all dates referred to herein relate to the year 2015.
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4. At all material times, the Fast Food Workers Committee (the Charging Party) has
been a labor organization within the meaning 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
agreements which Respondent requested its employees to sign as part of their new hire
paperwork. The following facilities maintained 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 consideration, 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 company 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 arbitrator(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, 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,
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, 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 Americans with Disabilities Act of 1990,
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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 Medical 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 Employee Retirement Income Security Act);
• and any other claims alleging any violation of any federal, state, local or other
governmental law, statute, regulation, or ordinance, 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
arbitration 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 parties 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 appoint 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 provided: 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, including all discrete subparts, upon
the other party. Each party shall be entitled to serve one (1) request for production of
documents upon the other party. The parties are free to request additional discovery,
which shall be left to discretion of the arbitrator Each party shall be permitted to file a
written motion to dismiss some or all claims prior to the hearing.
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7. The parties agree to pay the JAMS administrative fees in accordance with the Rules.
All other costs and expenses associated with the arbitration, including, without limitation,
each party's respective attorneys' fees, shall be borne by the party incurring the
expense.
8. Any conflict between the Rules and those set forth in this Agreement shall be resolved
in favor of those in this Agreement.
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 statement 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 complaint or participating in any investigation or
proceeding conducted 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
compensation, or temporary disability benefits are not covered by this Agreement and
are not subject to arbitration under this Agreement. Also, any claims seeking injunctive
and/or equitable relief for any alleged unfair competition and/or the use and/or
unauthorized disclosure of trade secrets or confidential information 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 behalf 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 conducted under this Agreement, and it is expressly agreed between 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.
Furthermore, the Company and I agree that neither can join or participate 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 resolving any dispute prior to the commencement of
such arbitration on an informal basis. Only when those internal efforts fail may an
employment dispute be submitted to final and binding 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 informally.
14. If any proceeding in which the validity or enforceability of this Agreement is
challenged, the prevailing party to such proceeding shall be entitled to an award of
attorney's fees and costs through and including any appeals of such proceeding.
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15. Should any term of this agreement be deemed void or unenforceable, that term shall
be severed and the remaining portions 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 employment 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 express 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 consideration, 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 company 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 arbitrator(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, 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
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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 Medical 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 Employee Retirement Income Security Act);
• and any other claims alleging any violation of any federal, state, local or other
governmental law, statute, regulation, or ordinance, 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
arbitration 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 parties 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 appoint 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 provided: 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, including all discrete subparts, upon
the other party. Each party shall be entitled to serve one (1) request for production of
documents upon the other party. The parties are free to request additional discovery,
which shall be left to discretion of the arbitrator 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 accordance with the Rules.
All other costs and expenses associated with the arbitration, including, without limitation,
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each party's respective attorneys' fees, shall be borne by the party incurring the
expense.
8. Any conflict between the Rules and those set forth in this Agreement shall be resolved
in favor of those in this Agreement.
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 statement 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 complaint or participating in any investigation or
proceeding conducted 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
compensation, or temporary disability benefits are not covered by this Agreement and
are not subject to arbitration under this Agreement. Also, any claims seeking injunctive
and/or equitable relief for any alleged unfair competition and/or the use and/or
unauthorized disclosure of trade secrets or confidential information 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 behalf 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 conducted under this Agreement, and it is expressly agreed between 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.
Furthermore, the Company and I agree that neither can join or participate 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 resolving any dispute prior to the commencement of
such arbitration on an informal basis. Only when those internal efforts fail may an
employment dispute be submitted to final and binding 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 informally.
14. If any proceeding in which the validity or enforceability of this Agreement is
challenged, the prevailing party to such proceeding 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 unenforceable, that term shall
be severed and the remaining portions of the agreement shall be enforceable.
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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 employment 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 express 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 consideration, 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 company 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 arbitrator(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, 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,
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 animals 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 Human 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
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;
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• 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 Medical 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 Employee Retirement Income Security Act);
• and any other claims alleging any violation of any federal, state, local or other
governmental law, statute, regulation, or ordinance, 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
arbitration 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 parties 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 appoint 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 provided: 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, including all discrete subparts, upon
the other party. Each party shall be entitled to serve one (1) request for production of
documents upon the other party. The parties are free to request additional discovery,
which shall be left to discretion of the arbitrator 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 accordance with the Rules.
All other costs and expenses associated with the arbitration, including, without limitation,
each party's respective attorneys' fees, shall be borne by the party incurring the
expense.
8. Any conflict between the Rules and those set forth in this Agreement shall be resolved
in favor of those in this Agreement.
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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 statement 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 complaint or participating in any investigation or
proceeding conducted 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
compensation, or temporary disability benefits are not covered by this Agreement and
are not subject to arbitration under this Agreement. Also, any claims seeking injunctive
and/or equitable relief for any alleged unfair competition and/or the use and/or
unauthorized disclosure of trade secrets or confidential information 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 behalf 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 conducted under this Agreement, and it is expressly agreed between 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.
Furthermore, the Company and I agree that neither can join or participate 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 resolving any dispute prior to the commencement of
such arbitration on an informal basis. Only when those internal efforts fail may an
employment dispute be submitted to final and binding 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 informally.
14. If any proceeding in which the validity or enforceability of this Agreement is
challenged, the prevailing party to such proceeding 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 unenforceable, that term shall
be severed and the remaining portions 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 employment at any time, without prior notice and with or
without cause. Likewise, the Company may terminate my employment at any time,
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without prior notice and with or without cause. My status as an at-will employee can only
be changed by an express written agreement between myself and the President and
Chief Operating Officer.
Analysis
This is another case in line with D. R. Horton, Inc., 357 NLRB 2277 (2012), Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014) and Cellular Sales of Missouri, LLC, 362 NLRB No. 27
(2015). Paragraphs 1 and 2 require the employees to utilize arbitration to determine 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 agencies, such as the Board and the EEOC,
although it does not contain 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 Lutheran-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 reasonably 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 employees to waive their NLRA right to
collectively pursue litigation 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 Respondent’s arguments, adverse judicial decisions, and the
views of our dissenting colleagues. Today we reaffirm that decision. Its reasoning 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 proceedings violate the Act and affirmed the
District Court’s decision 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
Company 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 forums.” 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 provision 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 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
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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 because the employees would
reasonably believe that it bars or restricts 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. However, paragraph 11
states that nothing in the agreement shall be construed to prohibit an employee or former
employee from filing a charge or participate in any proceeding before the Board or other
specified administrative agencies. Counsel for the Respondent 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 unequivocal 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 specialized 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 unequivocal, stating that nothing in the agreement should be construed 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 arbitration. 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 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 restricted the employees from filing charges with the Board, in violation of
Section 8(a)(1) of the Act. Amex Card Services Company, 363 NLRB No. 40 (2015).
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. Fast Food Workers Committee has been a labor organization 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 Pennsylvania listed in the attached appendix violate

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.
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Section 8(a)(1) of the Act by requiring the employees to waive the right to maintain 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 employment, 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 recommend that
Respondent be ordered to notify any arbitral or judicial panel where it has attempted to enjoin,
or otherwise, prohibit, employees from bringing or participating in class or collective 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 recommended3
ORDER
The Respondent Briad Wenco, LLC, d/b/a Wendy’s Restaurant, 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 guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act.
(a) Rescind the arbitration agreements in the States of New 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 employment.
(b) Notify arbitral or judicial panels, if any, where the Respondent has attempted to
enjoin or otherwise prohibit employees 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.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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(c) Within 14 days after service by the Region, post at its facilities in the States of New
York, New Jersey and Pennsylvania listed in the appendix attached hereto, copies of the
attached notice marked “Appendix B.”4 Copies of the notice, on forms provided 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 employees 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 employed 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
________________________________
Joel P. Biblowitz
Administrative Law Judge

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.”
JD(NY)–24–16

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
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
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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

JD(NY)–24-16
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
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 Labor Relations Board and WE WILL
rescind the agreements and notify 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, restrain 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 participating 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
(Employer)
Dated______________ By_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
Two Metro Tech Center, 5th Floor
Brooklyn, NY 11201
(718) 330-7713
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The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29–CA–165942 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (718) 330-7713.