Bud's Woodfire Oven LLC d/b/a Ava's Pizzeria

National Labor Relations Board - Administrative Judge Opinions

May 18, 2018

05-CA-194577 (N.L.R.B. May. 18, 2018)

JD−32−18
St. Mary’s, Maryland
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BUD’S WOODFIRE OVEN LLC d/b/a
AVA’S PIZZERIA
And Case 05-CA-194577
RALPH D. GROVES, AN INDIVIDUAL
Oluwatosin Fadarey and Patrick J. Cullen, Esqs.,
for the General Counsel.
Adam E. Konstas and Leslie Robert Stellman, Esqs.
(Pessin Katz Law, P.A.), Towson, Maryland,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Baltimore,
Maryland on April 3, 2017. The complaint alleges that Bud’s Woodfire Oven LLC d/b/a Ava’s
Pizzeria (the Company, Respondent or Ava’s Pizzeria) discharged employee Ralph D. Groves on
October 15, 20161 in violation of Section 8(a)(1) of the National Labor Relations Act (the Act)2
because he complained during an employee group meeting about a manager’s failure to assist
kitchen employees. Additionally, the complaint alleges that the Company compels employees to
sign a mandatory arbitration agreement which waives their rights to receive any relief from the
National Labor Relations Board’s (the Board) processes in violation of Sections 8(a)(1) and
8(a)(4). The Company denies the allegations, contending that Groves acted on his own behalf and
did not engage in concerted activities with other employees for mutual aid and protection.
Moreover, the Company asserts that its mandatory arbitration rule is lawful because it contains a
carve-out provision enabling employees to file charges with the Board.
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Company, I make the following

1 All dates are in 2016 unless otherwise indicated.
2 29 U.S.C. §§ 151-169.
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FINDINGS OF FACT
I. JURISDICTION
5
The Company, a limited liability company, operates a public restaurant selling food and
beverages in St. Mary’s, Maryland, where it derives gross revenues annually in excess of $50,000,
and purchases and receives goods valued in excess of $5,000 directly from points outside the State
of Maryland. The Company admits, and I find, that it is an employer engaged in commerce within
the meaning of Sections 2(2), (6), and (7) of the Act.10
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations
15
Ava’s Pizzeria, an 88-seat pizzeria restaurant and wine bar, is one of two restaurants owned
by the Company and its principal, Chris Agharabi. The restaurant employs approximately 30
employees. Brian Ball, the General Manager, has overseen the general operations of Ava’s
Pizzeria and the Company’s other restaurant, Theo’s Steaks, Sides and Spirits, for over 6 years.
His operational functions include supervising the managers, assistant managers and employees of 20
each restaurant and, during labor shortages, assisting with cooking and other restaurant functions.
In addition, Ball and other managers document operational and personnel developments in a log
book reflecting customer and employee concerns, daily sales and other information.
Administratively, Ball meets periodically with the Company’s owner, managers, assistant
managers, employees, and Alice Pelanne, the Company’s bookkeeper and director of human 25
resources.
The restaurant consists of a dining room, which is separated from the main (or front)
kitchen area by a short hallway, and the back kitchen, which is separated from the main kitchen by
a patio. A typical kitchen staff shift includes a chef, three line cooks, a prep cook and a kitchen 30
expeditor. The line cooks are each assigned to one of three stations in the main kitchen – the pizza
station, the sauté station or the salad station, but rotate as necessary. The kitchen expeditor
facilitates the delivery of food from the main kitchen to the wait staff. The prep cook works in the
back kitchen, preparing meatballs, sliced vegetables, cheese, and other food for the line cooks.
35
B. Ralph Groves
Groves, whose nickname is RJ, was initially hired by the Company in June 2015 as a
dishwasher at the rate of $10.00 per hour. A few weeks later, Groves was promoted to line cook
making salads and periodically filling in as pizza cook and prep cook. Agharabi and managers 40
provided him with positive performance appraisals and two $1.00 hourly raises as of July 2016.
The extent of Groves’ previous disciplinary history consisted of several warnings by Ball
regarding his loud playing of offensive music and mobile telephone usage in the kitchen.
By July 2016, Groves felt “burnt out” making salads and met with Agharabi and Marie 45
Cabeceiras, an assistant manager. After explaining that he felt overwhelmed by the tremendous
amount of work at the salad station and the lack of help, he gave two weeks’ notice of his intention
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to resign. Agharabi and Cabeceiras, however, convinced him to reconsider, promoted him to the
position of kitchen expeditor and gave him another raise, bringing his hourly pay rate to $13.50.3
C. Groves’ Relationship With Management
5
During his tenure with the Company, Groves had a propensity for speaking up whenever he
disagreed with management. Sometime in or around September 2016, the Company changed the
smoking policy to limit the designated smoking area behind the restaurant to one smoker at a time.
Groves and two other employees, Michael Cordan and Taylor Falon, were discussing the
Company’s change in the smoking policy when Ball overheard the conversation from his office. 10
He “yelled down” to the employees “that if anybody had a problem” they “should say it to [his]
face” and they “didn’t need to be down there bitching about it.” Groves did just that and went up
to Ball’s office to share his critique of the new policy and express dismay at Ball’s disrespectful
treatment. Ball apologized. However, during a follow-up discussion with Ball and Agharabi later
that night, the latter criticized Groves for not being a team player and urged him to be supportive 15
of Company policies because other staff listened to him.4
In addition to the September altercation, Groves also harbored displeasure with Ball’s
management approach because he felt that Ball spent too much time observing and not enough
time pitching in to help kitchen staff.5 Some staff, including line cook Jerome Butler, did not have 20
an issue with Ball’s role and actually joked about his tendency to stand and observe by the wall.6
Others, such as former employee Lynell Harris, simply told Ball to help them out when
appropriate.7
D. The October 15th Staff Meeting25
Prior to Ava’s Pizzeria opening for business on October 15, Ball and Cabeceiras convened
a meeting with approximately 10 kitchen and wait staff. Ball led the discussion and was not in a
great mood. He commented “that he didn’t come to work to be anybody’s fucking babysitter” and
proceeded to express frustration with various aspects, including the early closing of the dessert 30

3 Agharabi, although present throughout the hearing, did not testify.
4 I credited Groves’ hearsay testimony regarding his conversation with the two coworkers as inherently
reliable and corroborated by his additional, undisputed testimony that Ball overheard their conversation,
spoke with Groves about it, and Ball and Agharabi followed up with another meeting about the incident
later that day. (Tr. 95-99.)
5 Groves testified that coworkers expressed concerns to him about Ball’s failure to pitch in “over and
over again” and that “[i]t was a concern that everybody had shared and that we all talked about.” However,
Groves’ reference to Ball’s lack of participation as a “concern” on the part of others constituted
uncorroborated hearsay. (Tr. 104-105.) See W. D. Manor Mechanical Contractors, Inc., 357 NLRB 1526
(2011) (uncorroborated hearsay is entitled to “little weight”)
6 Butler agreed with Groves’ comments that Ball did not help out like other managers and “stands [by]
the wall all of the time,” instead of “moving around like everyone else wanted him to.” However, he did
not characterize Ball’s management style as a “concern” or complaint, explaining that “[t]here’s no issue
with me” and that other employees actually “joked” about the fact that Ball stood by the wall. (Tr. 65-71.)
7 Harris also failed to corroborate Groves’ testimony that employees complained or were concerned
about Ball’s management role. When asked whether she agreed with Groves’ comments, Harris said, “I
don’t know if I did or I didn’t.” In fact, she had no problem telling Ball “to get over here and help us out”
on occasion. (Tr. 73-78.)
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station, excessive smoke breaks and the use of mobile telephones. At the conclusion, he asked if
anyone had anything to say, at which point Groves said, “how do you know you don’t do shit
around here.” Groves then cited an example from the night before when Ball knocked over a rack
of clean silverware during a busy time and merely watched as a hostess picked it up. Ball replied
that he would discuss his job duties with Groves later.8 5
E. The Company Discharges Groves
Groves’ work shift as a line cook proceeded uneventfully. After Groves’ shift ended
around 4:00 p.m., Ball approached him in the designated smoking area behind the restaurant. Ball 10
initiated the conversation with a leading question: “You don’t like working here, do you?” Groves
denied the accusation, insisting that he liked working there but felt the need to speak up about
things that needed to change in order for things to get better. Ball replied that he did not like that
about Groves and, as a result, he was fired.9
15
The Company’s daily log for October 15 contained Ball’s notes at 10:23 p.m. referencing
Grove’s discharge based on “disrespect and poor attitude,” but omitting any mention of poor or
disruptive performance:
12k for the day with about 5 coming in for lunch. Spoke to the staff today about trying to close 20
down stations way to (sic) early prior to the flag being pulled. Quite a bit of attitude of RJ and
. . . the end of service [I] fired him for lack of respect, and poor attitude towards his job.
F. Maryland State Unemployment Insurance Decision and Award
25
Shortly after his discharge, Groves filed a claim for unemployment insurance with the State
of Maryland Office of Unemployment Insurance. In his claimant statement, Groves asserted:
I was discharged by Brian Ball, General Manager. The reason he gave for the discharge was
because I spoke my mind. He stated he did not like that about me. It happened on the day I 30
was fired. We were in a meeting. Front and Back of House meeting. Things were being
addressed at the end of our job duties. Brian, General Manager, asked if there were any
concerns that would help us do our jobs. I stated that he did not know what he was doing. I
told him that we needed his help. I believed that there were times when he could be helping us
when he does not. Like for an example he knocked over a complete tray of silverware that he 35
dropped and did not bother to help. He stated he had to do payroll. I mentioned times when
we needed help and had gotten it and times we hadn’t. He started cutting me off. He asked if
anybody else had anything to say. He said he would talk to me later. I finished out my shift.
He asked me if I liked working there. I told him that it was not that I like working there but
that I felt that something had to be said for the better of everybody. I am going to say it if I feel 40
it needs to be said whoever it is. He told me he did not appreciate the way I spoke to him in

8 Groves and Ball provided a generally consistent account of the meeting. (Tr. 23-25, 108.)
9 Ball’s testimony – that Groves was discharged because he sabotaged the salad service – was not
credible. (Tr. 19-25.) Groves credibly testified that he worked as a line cook, but not at the salad station
that day. (Tr. 103-108.) In addition, Ball’s daily log entry, as well as the Company’s subsequent statements
to the Maryland unemployment insurance agency, based Groves’ discharge on his disrespect and attitude
and omitted any reference to problems with the salad service. (GC Exh. 2.)
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front of everybody. I worked the rest of the shift after the staff meeting. I was discharged at
the end of my shift that day.
Pelanne’s reply on behalf of the Company regarding Groves’ separation from employment was
that he “voluntarily quit employment” based on the following explanations: 5
Ralph continually had a very bad attitude which affected the whole kitchen staff and the day
that he was fired he was very disrespectful to the General Manager at a staff meeting.
* * *10
The claimant was discharged for being disrespectful towards his General Manager.
He would be fine then sometimes he would be dark. His mood would affect everybody around
him. He was spoken to about his attitude. That he needed to be more positive. He made a
comment about a staff party when the boss chartered a boat. It was a sunset dinner cruise. It 15
was a very nice event. For some reason I heard that he was one of the only few that did not
come. He was stirring up some trouble about blacks and whites. This was early September.
Then in the meeting on 10/15 right in front of everybody Ralph stated that the General
Manager did not know what he was talking about because he did not work as hard as the
kitchen staff does. Both the front and the back of the house staff were present. The General 20
Manager has owned like 15 restaurants during his career. He is a Chef himself and has worked
in a Kitchen for like 30 years. It was rude and disrespectful. The Kitchen Manager did know
what he was talking about and to make a statement that he did not in front of the entire staff
was the final straw. He had a bad attitude and it was only getting worse. He just brought
everybody down and due to the comment at the staff meeting the decision was made to let him 25
go.
Based on the foregoing, the agency initially determined that Groves’ disrespect towards his
general manager constituted gross misconduct. On appeal, the initial determination disqualifying
him from receiving unemployment insurance benefits was reversed. In evaluating the evidence, 30
the hearing examiner cited the Company’s failure to appear at the appeal hearing, the “unexplained
reasons” as to why “the employer believed that the claimant did not like working for the
employer,” and the absence of evidence of any wrongdoing on Groves’ part.10
G. The Company’s Mandatory Arbitrary Agreement35
On March 8, 2017, Groves filed the underlying unfair labor practice charge alleging that
the Company violated Section 8(a)(1) by discharging him for engaging in protected concerted
activity. On September 26, 2017, the Company reinstated Groves as a part-time employee since he
had procured full-time work elsewhere. As a condition of his employment, the Company required 40

10 I received the state unemployment insurance report into evidence and have considered the prior
statements of the parties contained therein, but do not adopt its legal conclusions. See Cardiovascular
Consultants of Nevada, 323 NLRB 67 n. 1 (1997) (decisions in State unemployment compensation
proceedings are admissible and its findings may be considered, but are not controlling).
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that Groves sign a mandatory arbitration agreement. The agreement, which the Company has been
“maintained since about May 6, 2017,”11 states, in pertinent part:
The parties to this Agreement agree to arbitrate any and all disputes, claims, or
controversies (“claims”) they may have against each other, including their current and 5
former agents, owners, officers, directors, or employees, which arise from the employment
relationship between Employee and Employer or the termination thereof. Claims covered
by this Agreement include, but are not limited to: claims of employment discrimination and
harassment under Title VII of the Civil Rights Act; the Age Discrimination in Employment
Act, as amended; the Americans with Disabilities Act; 42 U.S.C. section 1981; the 10
Employment Retirement Income Security Act; the Maryland Labor Code; including any
claims brought by the Employee related to wages; breach of employment contract or the
implied covenant of good faith and fair dealing; wrongful discharge; or tortious conduct
(whether intentional or negligent) including defamation, misrepresentation, fraud, infliction
of emotional distress, but excluding claims for workers’ compensation benefits to remedy 15
work-related injury or illness. The parties understand and agree that they are waiving their
right to bring such claims to court, including the right to a jury trial.
* * *
20
The decision or award of the arbitrator shall be final and binding upon the parties. The
arbitrator shall have the power to award any type of legal or equitable relief that would be
available in a court of competent jurisdiction including, but not limited to attorneys’ fees
and punitive damages when such damages and fees are available under the applicable
statute and/or judicial authority. Any arbitral award may be entered as a judgment or order 25
in any court of competent jurisdiction. The parties agree that any relief or recovery to
which they are entitled arising out of the employment relationship or cessation thereof shall
be limited to that awarded by the arbitrator.
Nothing in this Agreement precludes Employee from filing a charge or from participating 30
in an administrative investigation of a charge before any appropriate government agency.
However, Employee understands and agrees that Employee cannot obtain any monetary
relief or recovery from such a proceeding.
* * *35
A court or other entity construing this Agreement should administer, modify, or interpret it
to the extent and such manner as to render it unenforceable. If, for any reason, this
Agreement is declared unenforceable and cannot be administered, interpreted or modified
to be enforceable, the parties agree to waive any right they may have to a jury trial with 40
respect to any dispute or claim relating to employment, termination or employment, or any
terms and conditions of employment with the Employer.
Employee understands that s/he would not be hired by the Company if s/he did not sign this
Agreement. Employee has signed it in consideration of employment by the Company. 45

11 The Company admitted this allegation in its amended answer.
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Employee has been advised of his or her right to consult with counsel regarding this
Agreement. EMPLOYEE ALSO UNDERTANDS THAT BY ENTERING INTO THIS
AGREEMENT, S/HE IS WAIVING ANY RIGHT TO A TRIAL BY JURY.12
LEGAL ANALYSIS5
I. GROVES TERMINATION
The complaint alleges that the Company violated Section 8(a)(1) of the Act by discharging
Groves because he engaged in protected concerted conduct by criticizing Ball, the General 10
Manager, during a staff meeting. The Company denies the allegations on two grounds. First, the
Company alleges that Groves was not expressing a complaint on behalf of his coworkers, but
rather, an individual gripe that he had about Ball’s aversion to helping out kitchen staff.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. 15
denied 455 U.S. 989 (1982), the General Counsel has the initial burden of establishing that an
employee’s union or protected concerted activity was a motivating factor in an employer’s
decision to take adverse action against the employee. Id. at 1089. The General Counsel meets this
burden by showing that the employee engaged in protected concerted activity, that the employer
had knowledge of that activity, and that the employer harbored animus against such activity. See, 20
e.g., Mesker Door, Inc., 357 NLRB 591, 592 (2011). If the General Counsel makes this initial
showing, the burden then shifts to the employer to prove that it would have taken the same action
even in the absence of the employee’s protected activity. Wright Line, 251 NLRB at 1089.
The credible evidence established overwhelmingly that Groves was discharged because he 25
criticized Ball during the earlier staff meeting for not doing anything to help out kitchen staff.
Groves’ vulgar comment – “how do you know you don’t do shit around here” – sought to
undermine Ball’s broad critique of staff performance, but was consistent with the tone set by Ball
in opening the meeting by telling staff that he “didn’t come to work to be anybody’s fucking
babysitter.” As such, the knowledge and adverse action components of the analysis are quite 30
evident. In addition, Ball’s animus towards Groves’ remarks was demonstrated by the
suspiciously close timing of, and the admitted, shifting and unsubstantiated reasons for, the
discharge. See In re Medic One, Inc., 331 NLRB 464, 475 (2000). Those same insufficiencies also
preclude the Company from meeting its burden of establishing that it would have acted in the
same manner absent the activity. See Parkview Lounge, LLC d/b/a Ascent Lounge, 366 NLRB No. 35
71 slip op. at 10 (2018) (inconsistent or shifting reasons alleged for discharge two days after the
concerted protected activity were mere pretext to mask unlawful motive).
The remaining question is whether Groves acted on his own behalf or engaged in protected
concerted conduct during the October 15 staff meeting. The Board defines concerted activity as 40
that which is “engaged in with or on the authority of other employees, and not solely by and on
behalf of the employee himself.” Meyers Industries, 268 NLRB, 493, 497 (1984). This definition
includes instances in which an individual employee brings group complaints to the attention of
management. Meyers Industries, 281 NLRB 882, 887 (1986). The Board has found individual

12 In its answer to the amended complaint, the Company admitted that the arbitration agreement has
been maintained since May 6, 2017.
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action to be concerted where the evidence supports a finding that the concerns expressed by the
individual are the logical outgrowth of the concerns expressed by the group. Mike Yurosek & Son,
Inc., 306 NLRB 1037, 1038 (1992) citing Salisbury Hotel, 283 NLRB 685, 687 (1987).
Determining whether action is concerted depends on whether the employee’s actions can be 5
linked to those of his coworkers. Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151, 153
(2014), citing City Disposal Systems, 465 U.S. 822, 831 (1984). The concept of “mutual aid or
protection” focuses on the goal of the concerted activity, specifically, whether the employee
involved seeks to improve employees’ terms and conditions of employment. Id. at 153.
10
It is undisputed that Groves engaged in concerted protected activity about a month or so
earlier with respect to conditions imposed by management on employees’ use of the designated
employee smoking area. In that instance, neither Ball nor Agharabi refuted Groves’ version of the
incident in which Ball overheard Groves and two other employees discussing the new smoking
policy. In addition, Agharabi urged Groves’ acquiescence to Company policies because other 15
employees looked up to him. Moreover, Groves’ interactions with Ball and Agharabi that day
provides ample evidence of the Company’s animus towards his protected concerted activities.
That incident alone, however, does not alleviate the General Counsel’s burden to establish that
Groves engaged in protected concerted activity on October 15. There is no assertion that he was
discharged because of his earlier smoking policy advocacy; such an argument would fail in any 20
event, as his discharge was clearly precipitated by his criticism of Ball on October 15.
Ball helped out on occasion with cooking duties, but Groves was not pleased with
his lack of hands-on involvement in kitchen operations. I did credit Groves’ testimony that
he expressed his feelings about Ball to coworkers. In addition, I found that Ball’s penchant 25
for standing by the wall was a topic that came up with coworkers. However, there was no
corroboration for Grove’s hearsay testimony that any of his coworkers complained about or
otherwise shared his concerns about Ball’s involvement in kitchen operations. Moreover,
testimony by employees that they joked about Ball’s actions or inaction, or actually asked
him to help them out in certain cases, falls short of concerted activity. Manimark Corp., 7 30
F.3d at 550 (citing ARO, Inc. v. NLRB, 596 F.2d 713 (6th Cir. 1979) (concerted activity
requires a showing that the employee was “acting on behalf of, or as a representative of,
other employees rather than acting for the benefit of other employees only in a theoretical
sense.”). Lastly, while Groves’ criticism of Ball was directed at working conditions that
affected all of the kitchen employees, that alone does not constitute Section 7 activity. See35
Jim Causley Pontiac v. NLRB, 620 F.2d 122, 126 n. 7 (6th Cir.1980) (the employee "must
be actually, rather than impliedly, representing the views of other employees.").
It is also difficult to imagine how lashing out at a manager who asks employees for
feedback by asking, “how do you know you don’t do shit around here,” even begins to lay the 40
foundation for meaningful dialogue about employees’ terms and conditions of employment.
Protected activities have been found to include terms and conditions of employment such as
wages, benefits, working hours, the physical environment, dress codes, assignments,
responsibilities, and the like.” See New River Industries, Inc. v. NLRB, 945 F.2d 1290, 1294 (4th
Cir. 1991). They do not include, however, employees’ personal gripes directed at supervisors and 45
managers unrelated to their terms and conditions of employment. In this case, Groves insulted
Ball by accusing him of doing nothing at the restaurant, an expression that can be reasonably
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interpreted as questioning the scope of his managerial responsibilities. It did not entail the very
nature of Groves’ work conditions, but rather, was calculated to undermine Ball’s managerial
authority. Groves’ comments thus encroached on a management prerogative which had nothing to
do with his individual terms and conditions of employment. See Joanna Cotton Mills Co. v. NLRB,
176 F.2d 749, 753 (4th Cir. 1949) (activity was unprotected where the purpose but was to “get rid 5
of or humiliate the supervisory employee with whom he was angry"); New River Industries, 945
F.2d at 1294 (employee's criticism of management by preparing a letter mocking the value of a gift
from management to employees was not protected activity).
Under the circumstances, the allegations that the Company discharged Groves in violation 10
of Section 8(a)(1) of the complaint are dismissed.
II. THE MANDATORY ARBITRATION AGREEMENT
The complaint alleges that “[s]ince about May 6, 2017,” the Company has maintained a 15
rule in the form of a mandatory arbitration agreement which interferes with employees’ protected
activities in violation of Section 8(a)(1) and discriminates against them in violation of Section
8(a)(4). Specifically, the agreement allegedly interferes with employees’ rights to file charges or
otherwise access the Board’s processes and prohibits them from obtaining remedies through the
Board’s processes. The Company disputes that interpretation, insisting that the agreement contains 20
a carve-out exception enabling employees to access the Board’s processes and asserts, in any
event, that there are legitimate justifications for maintaining it.
Board analysis as to the lawfulness of mandatory arbitration agreements is akin to that
applied to work rules. Both parties agree, however, that the Board’s most recent guidance on the 25
lawfulness of rules, Boeing Co., 365 NLRB No.154 (2017), does not apply. In Boeing, which
partially overturned the analysis in Lutheran Heritage Village-Livonia, 314 NLRB 646 (2004), the
Board set forth three work rule categories: Category 1 includes rules that are lawful to maintain
either because they do not prohibit or interfere with the exercise of the Act when reasonably
interpreted, or the potential adverse impact is outweighed by the justifications. Category 2 30
includes rules that warrant individualized scrutiny to determine whether they would interfere with
rights under the Act, and whether any adverse impact on Section 7 activity is outweighed by
legitimate justifications. Neither category applies here since the arbitration agreement clearly
prohibits or interferes with the exercise of Section 7 rights and the Company failed to articulate
legitimate justification for such infringement. 35
Assuming, arguendo, that Boeing Co. does apply to arbitration agreements, the provision at
issue clearly falls under Category 3 because it limits protected conduct, such as the filing of an
unfair labor practice charge, and obtaining a remedy through the Board. In Boeing, the Board
analyzed the rule in that case from the perspective of an objectively reasonable employee. There, 40
the employer’s justification for its rule was tied to protection of national security information,
trade secrets, and employees’ personal information. Such a rationale is absent here and a
reasonable interpretation of the rule would convey a clear sense to employees that it would be
futile to even file a charge. As the Supreme Court stated in Scrivener, 405 U.S. 117, 121 (1972),
this result would interfere with Congressional intent to grant employees access to the Board’s 45
processes. Therefore, under the Boeing analysis, the Company’s arbitration agreement unlawfully
impedes the filing of charges with the Board.
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The appropriate analysis here is set forth in Hoot Winc, LLC, 363 NLRB No. 2, slip op. at
1 (2015) (Section 8(a)(1) violation where mandatory arbitration agreement would reasonably be
read by employees to prohibit the filing of unfair labor practice charges with the Board). It is well
settled that a work rule violates Section 8(a)(1) if employees would reasonably believe that it 5
interferes with their ability to file Board charges, even if the policy does not expressly prohibit
access to the Board. See Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 19 fn. 98 (2014); D.
R. Horton, Inc., 357 NLRB No. 184, slip op. at 2 fn. 2 (2012), enf. denied on other grounds 737
F.3d 344 (5th Cir. 2013), petition for rehearing en banc denied (2014); U-Haul Co. of California,
347 NLRB 375, 377– 378 (2006), enfd. mem. 255 Fed. Appx. 527 (DC Cir. 2007). 10
It is undisputed that the Company has “maintained” the arbitration agreement since May 6,
2017. The clear implication, therefore, is that employees have been required to sign the agreement
as a condition of employment. The agreement requires arbitration of “any and all disputes” arising
from the employment relationship, and limits “any relief or recovery” to the arbitrator’s award.” 15
The exclusivity of that provision as the avenue for relief is amplified in a purported carve-out
provision:
Nothing in this Agreement precludes Employee from filing charges or from participating in
an administrative investigation of a charge before any appropriate government agency. 20
However, employee understands and agrees that Employee cannot obtain any monetary
relief or recovery from such a proceeding.
Operating on the belief that half a loaf is better than none, the Company glaringly ignores
the fact that the provision explicitly prohibits employees from obtaining monetary relief, e.g., 25
backpay, and or other “recovery,” which can reasonably be construed to encompass requested
relief for job reinstatement and cease and desist directives affecting other conditions of
employment. Moreover, while not explicitly prohibiting employees from filing charges with the
Board or participating in a Board investigation, employees could reasonably construe the
arbitration provision as precluding them from even testifying at Board hearings. 30
The foregoing prohibitions and restrictions evident from the arbitration agreement convey
the notion that it would be futile for an employee to file unfair labor practice charges since the
Act’s statutory remedies are beyond reach. Based on those considerations, the arbitration
agreement restrains employees’ Section 7 rights to engage in protected concerted conduct in 35
violation of Section 8(a)(1). See Ralph’s Grocery Co., 363 NLRB No. 128, slip op. at 3 (2016)
(“meaningful” access to and implementation of the Board’s processes includes investigation of the
charges, a determination on the merits and the appropriate statutory relief available under the Act).
The Company’s primary assertion – that its carve-out language is similar to provisions in 40
other mandatory arbitration agreements relied upon by the 5th Circuit – is incorrect. See Murphy
Oil USA, Inc. v. NLRB, 808 F.3d 1013, 1019-1020 (5th Cir. 2015), cert. granted, 137 S. Ct. 809,
196 L. Ed. 2d 595 (2017); Jack in the Box, Inc. v. NLRB, 671 F. App’x 316, 317 (5th Cir. 2016);
Logisticare Solutions, Inc. v. NLRB, 866 F.3d 715 (5th Cir. 2017). None of those decisions even
remotely convey the notion that affording employees some, but not all, of the Board’s processes 45
can be lawfully justified.
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11
The General Counsel also contends that the requirement that employees agree to its
arbitration policy as a condition of their employment violates Section 8(a)(4) because it
discriminates against their rights to pursue relief under the Act. Under Section 8(a)(4), it is an
unfair labor practice for an employer to discriminate against an employee because he has filed
charges or given testimony under the Act. Its purpose is to ensure effective administration of the 5
Act by providing protection to employees who initiate unfair labor practice charges or assist the
Board in proceedings under the Act. General Services, Inc., 229 NLRB 940, 941 (1977).
The General Counsel concedes that the Board has treated similar arbitration policies solely
as 8(a)(1) violations without mentioning Section 8(a)(4). See Ralph’s Grocery Co., supra at 4.10
However, she relies on Bill’s Electric, Inc. 350 NLRB 292 (2007), as an example where the Board,
when specifically presented with the 8(a)(4) theory, has found such a violation. That case is
distinguishable, however, since that employer actually took further steps to enforce the unlawful
policy in letters to alleged discriminatees. No such proof exists here and I decline to find such a
violation.15
Under the circumstances, the Company violated Section 8(a)(1) of the Act. The additional
allegation that the arbitration agreement violated Section 8(a)(4) is dismissed.
CONCLUSIONS OF LAW20
1. By maintaining a mandatory and binding arbitration agreement that explicitly interferes
with employees’ Section 7 rights to file charges and obtain remedies through the National Labor
Relations Board, the Respondent has engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.25
2. All other allegations in the complaint are dismissed.
REMEDY
30
Having found that the Respondent Bud’s Woodfire Oven LLC d/b/a Ava’s Pizzeria has
engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the 35
following recommended13
ORDER
The Respondent, its officers, agents, successors, and assigns, shall40
1. Cease and desist from

13 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.
JD−32−18
12
(a) Maintaining a mandatory and binding arbitration agreement that explicitly interferes
with employees’ Section 7 rights to file charges and obtain remedies through the National Labor
Relations Board.
(b) In any like or related manner interfering with, restraining, or coercing employees in the5
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind or revise the arbitration agreement to make it clear to employees that the 10
agreement does not constitute a waiver of the right to obtain remedies from, or otherwise file
charges with, the National Labor Relations Board.
(b) Notify all current and former employees who were required to sign or otherwise
become bound to the arbitration agreement has been rescinded or revised, and provide them with a 15
copy of the revised policy, if any.
(c) Within 14 days after service by the Region, post at its facility St. Mary’s, Maryland
copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by the Respondent’s authorized representative, 20
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. In addition to physical
posting of paper notices, the notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the 25
Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In
the event that, during the pendency of this proceeding, the Respondent has gone out of business or
closed the facility involved in this proceeding, 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 May 6, 2017.30
(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.
35
Dated, Washington, D.C. May 18, 2018
______________________________
Michael A. Rosas40
Administrative Law Judge

14 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.”
.1f.e.-v.../..- -4->,
JD−32−18
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we 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 a mandatory arbitration agreement with provisions that interfere with
your right to file charges and obtain relief or recovery through the National Labor Relations Board.
WE WILL rescind certain portions in our arbitration agreement that interfere with your right to file
charges and obtain relief or recovery through the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
BUD’S WOODFIRE OVEN LLC d/b/a AVA’S
PIZZERIA
(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.
Bank of America Center, Tower II, 100 S. Charles Street, Ste 600, Baltimore, MD 21201-2700
(410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m.
JD−32−18
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-194577 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, (410) 962-2880.