Darden Restaurants, Inc. GMRI, Inc. Yard House USA Inc., Yard House Northridge, LLC.

National Labor Relations Board - Board Decisions

Sep 25, 2018

367 NLRB No. 4 (N.L.R.B. 2018)

367 NLRB No. 4
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board, Washington, D.C. 20570, of
any typographical or other formal errors so that corrections can be in-
cluded in the bound volumes.
Darden Restaurants, Inc.; GMRI, Inc.; Yard House
USA, Inc.; Yard House Northridge, LLC and Fil-
berto Martinez. Case 31–CA–158487
September 25, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On August 18, 2016, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondents
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decisions in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant
part, 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA,
Inc., 361 NLRB 774 (2014), enf. denied in relevant part,
808 F.3d 1013 (5th Cir. 2015), that Respondent GMRI,
Inc. violated Section 8(a)(1) of the National Labor Rela-
tions Act by maintaining a Dispute Resolution Process
(DRP) that requires employees, as a condition of employ-
ment, to waive their rights to pursue class or collective ac-
tions involving employment-related claims in all forums,
whether arbitral or judicial. The judge also found that Re-
spondents Darden Restaurants, Inc., GMRI, Inc., Yard
House USA, Inc., and Yard House Northridge, LLC vio-
lated Section 8(a)(1) of the Act by enforcing the DRP.
Recently, the Supreme Court issued a decision in Epic
Systems Corp. v. Lewis, 584 U.S. __, 138 S.Ct. 1612
(2018), a consolidated proceeding that included review of
court decisions below in Lewis v. Epic Systems Corp., 823
F.3d 1147 (7th Cir. 2016), Morris v. Ernst & Young, LLP,
834 F.3d 975 (9th Cir. 2016), and Murphy Oil USA, Inc.
v. NLRB, 808 F.3d 1013 (5th Cir. 2015). Epic Systems
concerned the issue, common to all three cases, whether
employer-employee agreements that contain class- and
collective-action waivers and stipulate that employment
disputes are to be resolved by individualized arbitration
violate the National Labor Relations Act. Id. at __, 138
S.Ct. at 1619–1621, 1632. The Supreme Court held that
such employment agreements do not violate this Act and
that the agreements must be enforced as written pursuant

1 We therefore find no need to address other issues raised by the Re-
spondent’s exceptions. We note that the Respondents, in their exceptions
brief, assert that “no employee could reasonably misinterpret the DRP as
to the Federal Arbitration Act. Id. at __, 138 S.Ct. at 1619,
1632.
The Board has considered the decision and the record in
light of the exceptions and briefs. In light of the Supreme
Court’s decision in Epic Systems, which overrules the
Board’s holding in Murphy Oil, we conclude that the com-
plaint must be dismissed.1
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 25, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Eric Brooks, Esq., for the General Counsel.
Matthew Matern, Esq., (Matern Law Group), counsel for the
Charging Party.
Anthony Martin, Esq., (Ogletree, Deakins, Nash, Smoak & Stew-
art, P.C.), counsel for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. The parties
herein waived a hearing and submitted this case directly to me
by way of a Joint Motion and Submission of Stipulation of Facts
and Exhibits dated June 28, 2016, and by Order Granting Joint
Motion, Approving Stipulations of Fact, Reassigning ALJ and
Setting Due Date for Briefs dated June 29, 2016, Associate Chief
Judge Gerald Etchingham approved the Joint Motion. The par-
ties agree that the following Stipulations of Fact are true for this
matter only, although they do not concede the relevancy of these
facts:
1. On August 20, 2015, the Charging Party filed the charge
and copies were served by U.S. mail on Respondent Darden, Re-
spondent GMRI, Respondent Yard House USA, and Respondent
Yard House Northridge on August 21, 2015.
2. On February 26, 2016, the Acting Regional Director for
Region 31 issued a complaint and notice of hearing, and a copy
prohibiting Sec. 7 activity, including the filing of unfair labor practice
charges with the Board.” No such violation was alleged or found here.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was served by U.S. mail on Respondent Darden, Respondent
GMRI, Respondent Yard House USA, and Respondent Yard
House Northridge on the same day.
3. On March 11, 2016, Respondent Darden, Respondent
GMRI, Respondent Yard House USA, and Respondent Yard
House Northridge filed their Answers to the Complaint.
4. (a) At all material times, Respondent Darden has been a
Florida corporation and through its direct and indirect ownership
of various subsidiaries has a place of business in Los Angeles,
California, where it has been engaged in operating public restau-
rants selling food and beverages.
(b) In the calendar year ending December 31, 2015, Respond-
ent Darden through its direct and indirect ownership of various
subsidiaries has derived gross revenues in excess of $500,000
and has purchased and received for its California location, goods
valued in excess of $5000 directly from points outside the State
of California.
(c) At all material times, Respondent Darden has been an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
5. (a) At all material times, Respondent GMRI has been a
Florida corporation, and through its direct and indirect owner-
ship of various subsidiaries, has a place of business in Los An-
geles, California, where it has been engaged in operating public
restaurants selling food and beverages.
(b) In the calendar year ending December 31, 2015, Respond-
ent GMRI through its direct and indirect ownership of various
subsidiaries has derived gross revenues in excess of $500,000
and has purchased and received for its California location, goods
valued in excess of $5000 directly from points outside the State
of California.
(c) At all material times, Respondent GMRI has been an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
6. (a) At all material times, Respondent Yard House USA has
been a Delaware corporation, and through its direct and indirect
ownership of various subsidiaries, has a place of business in Los
Angeles, California, where it has been engaged in operating pub-
lic restaurants selling food and beverages.
(b) In the calendar year ending December 31, 2015, Respond-
ent Yard House USA has derived gross revenues in excess of
$500,000 and has purchased and received for its California loca-
tion, goods valued in excess of $5000 directly from points out-
side the State of California.
(c) At all material times, Respondent Yard House USA has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
7. (a) At all material times, Respondent Yard House
Northridge has been a California corporation with a place of
business in Los Angeles, California, where it has been engaged
in operating public restaurants selling food and beverages.
(b) In the calendar year ending December 31, 2015, Respond-
ent Yard House Northridge has derived gross revenues in excess
of $500,000 and has purchased and received for its California
location, goods valued in excess of $5000 directly from points
outside the State of California.
(c) At all material times, Respondent Yard House Northridge
has been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
8. Employees employed by the Respondents, including the
Charging Party, are not represented by a labor organization.
9. At material times, Respondent Yard House Northridge, Re-
spondent Yard House USA, and Respondent GMRI have re-
quired employees, including the Charging Party, to submit em-
ployment related and compensation related disputes to arbitra-
tion. The terms of the agreement are described in the Dispute
Resolution Process (DRP). The DRP states that examples of le-
gal claims covered by the DRP include but are not limited to:
claims that arise out of the Civil Rights Act of 1964, Americans
With Disabilities Act, Fair Labor Standards Act, Age Discrimi-
nation in Employment Act, and Family Medical Leave Act.
10. The DRP also states:
Class, Collective, and Representative Actions
There will be no right or authority for any dispute to be brought,
heard or arbitrated by any person as a class action, collective
action or on behalf of any other person or entity under the DRP.
The arbitrator has no jurisdiction to certify any group of current
or former employees,or applicants for employment, as a class
or collective action in any arbitration proceeding.
11. Employees, including the Charging Party, must agree to
abide by the terms of the DRP as a term and condition of em-
ployment.
12. The Charging Party signed the following acknowledge-
ment on or about February 23, 2013:
This agreement contains the requirements, obligations, proce-
dures and benefits of the Dispute Resolution Process (DRP). “I
acknowledge that I have received and/or have had the op-
portunity to read this arbitration agreement. I understand
that this arbitration agreement requires that disputes that
involve the matters subject to the agreement be submitted
to mediation or arbitration pursuant to the arbitration
agreement rather than to a judge or jury in court. I agree
as a condition of my employment, to submit any eligible dis-
putes I may have to the DRP and to abide by the provisions
outlined in the DRP. I understand this includes, for example,
claims under state and federal laws relating to harassment or
discrimination, as well as other employment-related claims as
defined by the DRP. Finally, I understand that the Company is
equally bound by all of the provisions of the DRP.” (Emphasis
in original.)
13. The Charging Party was employed at Respondents’
Northridge, California facility from November 8, 2012, until
May 28, 2013.
14. The DRP is a condition of employment of all employees
who are employed by any of the Respondents.
15. On or about March 2, 2015, the Charging Party filed a
class-action lawsuit in Case No. BC-574043, captioned Filiberto
Martinez, et al. v. Darden Restaurants, Inc., et al., (Superior
Court of the State of California, County of Los Angeles), alleg-
ing that the Respondent Darden, Respondent Yard House
Northridge, Respondent Yard House USA, and Respondent
GMRI violated the California Labor Code, Industrial Welfare
Commission Wage Orders, and the California Business and Pro-
fessional Code.
DARDEN RESTAURANTS, INC., GMRI, INC., YARD HOUSE USA, INC., YARD HOUSE NORTHRIDGE, LLC 3
16. On or about May 6, 2016, Charging Party and Respondent
Darden, Respondent Yard House Northridge, Respondent Yard
House USA, and Respondent GMRI jointly submitted a Joint In-
itial Status Conference Class Action Response Statement to the
Superior Court.
17. On or about May 7, 2015, Respondent Darden, Respond-
ent Yard House Northridge, Respondent Yard House USA, and
Respondent GMRI, acting jointly1, filed a Notice of Removal of
Action Pursuant to 28 U.S.C. Sections 1332, 1441, and 1446,
Case No. 2:15-cv-3434 (U.S.D.C., C.D. Cal., herein the
U.S.D.C.).
18. On or about May 8, 2015, Respondent Darden, Respond-
ent Yard House Northridge, Respondent Yard House USA, and
Respondent GMRI, acting jointly, submitted a Motion to Compel
Binding Arbitration; Memorandum of Points and Authorities to
the U.S.D.C.
19. On or about June 4, 2015, Charging Party submitted its
Opposition to Respondents’ Motion to Compel Arbitration to the
U.S.D.C.
20. On or about June 5, 2015, Respondent Darden, Respond-
ent Yard House Northridge, Respondent Yard House USA, and
Respondent GMRI, acting jointly, submitted it’s Reply to the
U.S.D.C.
21. On or about August 13, 2015, U.S.D.C. Judge George H.
Wu issued his Order granting Respondent Darden, Respondent
Yard House Northridge, Respondent Yard House USA, and Re-
spondent GMRI’s Motion to Compel Binding Arbitration.
22. Charging Party and Respondents filed a Joint Status Con-
ference Statement Regarding Arbitration, in Case No. 2:15-cv-
3434 (U.S.D.C., C.D. Cal.) dated February 18, 2016.
STATEMENT OF ISSUES IN THIS CASE:
Without waiving objections to the materiality or relevance
based on the foregoing factual stipulations, the Parties agree and
stipulate to the following issues presented in this matter:
1. Whether Respondent Yard House Northridge’s, Respond-
ent Yard House USA’s, and Respondent GMRI’s maintenance
of the DRP interferes with, restrains, and coerces employees in
the exercise of rights guaranteed under Section 7 of the Act in
violation of Section 8(a)(1) of the Act.
2. Whether Respondent Yard House Northridge’s, Respond-
ent Yard House USA’s, and Respondent GMRI’s requirement
that employees, including the Charging Party, sign the DRP as a
condition of employment interferes with, restrains, and coerces
employees in the exercise of rights guaranteed under Section 7
of the Act in violation of Section 8(a)(1) of theAct.
3. Whether Respondent Darden’s, Respondent Yard House
Northridge’s, Respondent Yard House USA’s, and Respondent
GMRI’s filing of its May 8, 2015 Motion to Compel Binding Ar-
bitration of Charging Party’s class action lawsuit interferes with,
restrains, and coerces employees in the exercise of rights

1 “Acting jointly” refers to the fact that all four Respondents jointly
asserted in litigation that Charging Party’s lawsuit should be removed to
federal court and that Charging Party was required to submit his wage
and hour claims to arbitration under the terms of the DRP. Counsel for
the General Counsel does not allege, and the parties do not stipulate, that
guaranteed under Section 7 of the Act in violation of Section
8(a)(1) of the Act.
4. Whether Respondent Darden or Respondent Yard House
USA are proper parties to this matter.
5. Whether the remedies sought by the General Counsel in
this case are appropriate.
6. Whether the charges are time barred under Section 10(b)
of the Act.
7. Whether the Board and/or Martinez are estopped from pur-
suing this particular matter.
The relevant portions of the DRP are as follows:
This document is the Dispute Resolution Process (DRP)
agreement between the Employee and his/her employer
(“the Company”), which is a direct or indirect subsidiary of
Darden Restaurants, Inc. The DRP is governed by the Fed-
eral Arbitration Act (9 U.S.C. §§I et seq.). The require-
ments, obligations, procedures and benefits in this booklet
are binding on the Employee and the Company during and
after the period of the Employee’s employment. The mutual
goal of DRP is to resolve eligible work related problems,
concerns and disputes between the Employee and the Com-
pany in a prompt, fair and efficient way that protects the
legal rights of both the employee and the company.
This agreement is used throughout the United States.
The DRP is always to be used and interpreted consistently
with applicable law. If any provision of the DRP is in con-
flict with applicable law, that provision may be severed or
revised to make the DRP valid and enforceable. The sev-
ered or revised provision, will not affect the remaining pro-
visions of the DRP. Additionally, the DRP may be updated
from time to time as required by applicable law.
INTRODUCTION
Occasional differences may arise between the Company and an
Employee, both during and after employment. The mutual goal
is to resolve work-related problems, concerns and disputes in a
prompt, fair and efficient way that protects the legal rights of
both the Employee and the Company. To accomplish this goal,
the Dispute Resolution Process (DRP) is comprised of a four-
step process: Open Door, Peer Review, Mediation and Arbitra-
tion. The DRP, instead of court actions, is the sole means for
resolving covered employment related disputes. Disputes eligi-
ble for DRP must be resolved only through DRP, with the final
step being binding arbitration heard by an arbitrator. This
means DRP-eligible disputes will not be resolved by a judge or
jury. Neither the Company nor the Employee may bring DRP
eligible disputes to court. The Company and the Employee
waives all rights to bring a civil court action for these disputes.
What is covered under DRP?
the four Respondents are joint employers under current Board law and
the Act. However, this does not prevent any party from raising this theory
and/or arguing joint employer status in any other proceeding or civil lit-
igation related to the DRP.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Open Door, as described on page 4, Is the first step in DRP
and is always available to Employees or the Company to use to
discuss any issues or resolve any disputes relating to their em-
ployment.
Steps two and three of DRP - Peer Review and Mediation-ap-
ply to all employment related disputes or claims brought by the
Employee against the Company or the Company against the
Employee other than those limited “Exceptions listed below.”
Some examples of disputes which are covered by the first three
steps of DRP include, but are not limited to: disputes about
compensation earned, termination, discrimination and harass-
ment. Only disputes which state a legal claim may be submitted
to Arbitration, which is the fourth and final step of DRP. The
arbitrator has the authority to dismiss disputes that do not state
a legal claim. Examples of legal claims covered by DRP in-
clude but are not limited to: claims that arise under the Civil
Rights Act of 1964, Americans With Disabilities Act, Fair La-
bor Standards Act, Age Discrimination in Employment Act,
and Family Medical Leave Act.
What are the exceptions to DRP?
The DRP is not available to resolve disputes:
related to Workers Compensation or Unemployment Insurance
benefits; that are legally required by controlling federal law to
be arbitrated or resolved under a different process;
claims for employee benefits under any benefit plan sponsored
by the Company and covered by Employee Retirement Income
Security Act of 1974 or funded by insurance, unfair competi-
tion , violation of trade secrets, any common law right or duty,
or any federal, state or local ordinance or statute; or
regarding wage rates, wage scales or benefits, performance
standards or ratings, work rules, food quality and service stand-
ards , or company policies and procedures , including whether
to open or close operations; unless these disputes are brought
pursuant to a specific federal or state statute, or other applicable
legal standard.
What are the exceptions to Arbitration?
The final step of DRP- Arbitration -is not available to resolve
disputes:
• that do not state a legal claim under applicable law;
• that by controlling federal law cannot be subjected to man-
datory arbitration; or
• that are legally required under controlling federal law to be
arbitrated or resolved under a different process.
Class, Collective and Representative Actions
There will be no right or authority for any dispute to be brought,
heard or arbitrated by any person as a class action, collective
action or on behalf of any other person or entity under the DRP.
The arbitrator has no jurisdiction to certify any group of current
or former employees, or applicants for employment, as a class
or collective action in any arbitration proceeding.
Other Actions
The DRP does not prevent an Employee from exercising
statutorily protected rights to file any administrative charge or
complaint with administrative agencies. Such administrative
claims include, without limitation, claims or charges brought
before the Equal Employment Opportunity Commission, the
U.S. Department of Labor, and the National Labor Relations
Board. Nothing In the DRP will preclude or excuse the Em-
ployee from bringing an administrative claim before any
agency in order to fulfill the obligation to exhaust administra-
tive remedies before making a claim in arbitration.
DISPUTE RESOLUTION PROCESS ACKNOWLED-
GEMENT
This agreement contains the requirements, obligations, proce-
dures and benefits of the Dispute Resolution Process (DRP). I
acknowledge that I have received and/or have had the op-
portunity to read this arbitration agreement. I understand
that this arbitration agreement requires that disputes that
involve the matters subject to the agreement be submitted
to mediation or arbitration pursuant to the arbitration
agreement rather than to a judge or jury in court. I agree
as a condition of my employment, to submit any eligible dis-
putes I may have to the DRP and to abide by the provisions
outlined In the DRP. I understand this includes, for example,
claims under state and federal laws relating to harassment or
discrimination, as well as other employment-related claims as
defined by the DRP. Finally I understand that the Company Is
equally bound to all of the provisions of the DRP. [Emphasis
supplied]
[Space for signatures]
In addition to these stipulations, certain uncontradicted facts are
set forth in the court documents of the Charging Parties’ lawsuit
and the Respondents’ notice of removal and motion to compel
binding arbitration. The DRP has been in effect since at least
1995 and the Charging Party executed the agreement in February
2012. The Charging Party’s “Class Action Complaint” was for
the alleged failure to provide required meal periods and rest pe-
riods, failure to pay overtime wages and minimum wages, failure
to timely pay wages and to pay all wages due to employees who
quit or were terminated and failure to maintain required records
and to furnish accurate itemized statements. The court docu-
ments state that neither Darden, YH USA (Yard House USA,
Inc.), nor YH LLC has any employees in the State of California
and that GMRI, Inc. is “the only proper defendant. . . as the
employer of record for Plaintiff.” GMRI is a wholly owned sub-
sidiary of Darden and Darden is the sole shareholder of GMRI.
YH USA is a wholly owned subsidiary of GMRI and YH LLC
is a wholly owned subsidiary of YH USA. Darden acquired YH
USA on August 29, 2012, and from that time GMRI has been the
employer of the employees at the locations involved herein. Prior
to that date, YH USA was the employer at the location involved
as well as all the Yard House restaurants throughout the country.
Analysis
Initially, I note that as the complaint does not allege that the
Respondents violated the Act by maintaining a mandatory arbi-
tration agreement that employees would reasonably believe bars
them from filing charges with the Board and/or restricts their ac-
cess to the Board’s processes, I need not determine that issue.
DARDEN RESTAURANTS, INC., GMRI, INC., YARD HOUSE USA, INC., YARD HOUSE NORTHRIDGE, LLC 5
The initial issue therefore is whether the maintenance of the DRP
and the requirement that prospective employees sign it as a con-
dition of employment violates Section 8(a)(1) of the Act, and I
find that it clearly does.
This is another case in line with D.R. Horton, Inc., 357 NLRB
2277 (2012), Murphy Oil USA, Inc., 361 NLRB 774 (2014), and
Cellular Sales of Missouri, LLC, 362 NLRB 241 (2015). The
DRP requires the employees to utilize arbitration to determine
any dispute and prohibits class, collective or consolidated ac-
tions. 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 ac-
tivities that are protected by Section 7 of the Act; if so, it is un-
lawful. 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 em-
ployment claims in all forums arbitral and judicial “as a condi-
tion of employment. In Murphy Oil, supra, 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, ad-
verse judicial decisions, and the views of our dissenting col-
leagues. 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 af-
firmed the District Court’s decision to refuse to dismiss the em-
ployee’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 de-
clared to be unenforceable by the Board, National Licorice Com-
pany 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.l.
Case Co. v. NLRB, 321 U.S. 332, 337 (1944); and Section 7’s
“other concerted activities” have long been held to include “re-
sort 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 pro-
vision prohibits any collective, representative, or class legal
proceedings. Section 7 provides that “employees shall have the
right...to engage in...concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.” A collec-
tive representative, or class legal proceeding is just such a “con-
certed 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 DRP required employees to
forego any class, collective or consolidated actions and mandates
that all arbitrations must be brought in an individual capacity. It
therefore violates Section 8(a)(1) of the Act.
An additional issue is which of the Respondents are proper
parties herein and are responsible for the unfair labor practices
alleged herein. Although all four entities are listed as Respond-
ents, I note that paragraph 9 of the complaint alleges that Re-
spondents Yard House Northridge, Yard House USA, and
GMRI, but not Darden, required employees to execute the DRP
as a condition of employment. ln addition, uncontradicted Dec-
larations that are part of the Court documents state that since
2012, when the employees were transitioned from Yard House
USA to GMRI, GMRI has been the employer of employees at all
Yard House locations throughout the country, including the lo-
cation where the Charging Party was employed, and since that
transition, Yard House USA and Yard House Northridge have
not employed any employees in the State of California. I there-
fore find that only Respondent GMRI violated Section 8(a)(1) of
the Act by requiring its employees to agree to the DRP as a con-
dition of employment.
It is next alleged that the Respondent’s Motion to Compel
Binding Arbitration filed on May 8 interfered with the Charging
Party’s rights guaranteed by Section 7 of the Act, in violation of
Section 8(a)(1) of the Act. The Stipulation of Facts at paragraphs
17 and 18 states that on May 7 and 8 Respondents Darden, Yard
House Northridge, Yard House USA, and GMRI, acting jointly,
filed a notice of removal of action and motion to compel binding
arbitration. Clearly, these Court filings had the purpose of having
Martinez’ lawsuit dismissed and requiring him, instead, to arbi-
trate the dispute pursuant to the terms of the DRP. The law is
clear that lawsuits which attempt to enforce contract provisions
which violate the Act, constitute independent violations. Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731, 747 (1983). By
filing these Court actions on May 7 and 8 to dismiss Martinez’
Court action and require him to arbitrate his dispute pursuant to
the terms of the DRP, the Respondents further sought to restrict
his right to engage in protected concerted activity, in violation of
Section 8(a)(1) of the Act. Philmar Care, LLC, 363 NLRB No.
57 (2015); Employers Resource, 363 NLRB No. 59 (2015).
The remaining issue is whether the charges herein are time
barred by Section 10(b) of the Act. As the evidence establishes
that the Respondent has continued to maintain the DRP, it con-
stitutes a continuing violation that is not time barred by Section
10(b) of the Act. Employers Resource, supra, footnote 2.
CONCLUSIONS OF LAW
1. Respondents are each employers within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By requiring employees, and prospective employees, to
sign the DRP, whereby they agree to individual arbitrations to
resolve any labor dispute that they had with their employer,
thereby waiving the right to maintain class or collective actions
in all forums, Respondent GMRI violated Section 8(a)(1) of the
Act.
3. By bringing Court actions on May 7 and May 8 the Re-
spondents Darden, GMRI, Yard House USA, and Yard House
Northridge violated Section 8(a)( 1) of the Act.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
The appropriate remedy for the violations found is an order
requiring Respondent to cease and desist from their unlawful
conduct and to take certain affirmative action to effectuate the
policies of the Act. Specifically, Respondent GMRI must rescind
or revise the mandatory arbitration employment agreement, no-
tify Martinez and other current and former employees who exe-
cuted the agreement, and the Court that it has done so, and in-
form the Court that it no longer opposes class Martinez’ action
on the basis of the agreement. Respondents must also reimburse
Martinez for all reasonable expenses and legal fees incurred in
opposing its unlawful motion to compel individual arbitration of
his class action suit, with interest computed and compounded
daily in the manner prescribed in New Horizons, 283 NLRB
1173 (1987), and Kentucky River Medical Center, 356 NLRB 6
(2010). See Murphy Oil and Cellular Sales.
On these finding of fact and conclusions of law and the entire
record, I issue the following recommended2
ORDER
Respondent, GMRI, Inc., its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining and/or enforcing an arbitration provision that
requires employees as a condition of employment to waive the
right to maintain class or collective actions in all forums, whether
arbitral or judicial.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the DRP arbitration provision in all of its forms
or revise it in all of its forms to make clear to employees that the
arbitration provision does not constitute a waiver of their right to
maintain employment-related joint, class, or collective actions in
all forums.
(b) Notify all current and former employees who were re-
quired to sign or otherwise become bound to the mandatory ar-
bitration provision in any form that it has been rescinded or re-
vised and, if revised, provide them a copy of the revised provi-
sion.
In addition
Respondents GMRI, Inc., Darden Restaurants, Inc., Yard
House USA, Inc., and Yard House Northridge LLC, its officers,
agents, successors and assigns, shall
1. Cease and desist from
(a) Taking any action, in court or otherwise, to restrict or pre-
vent its employees from bringing or maintaining a joint, collec-
tive or class action.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Notify the United States District Court, C.D. Cal. In Case
No. 2:15-cv-3434, that Respondent GMRI has rescinded or re-
vised the mandatory arbitration provision upon which it based its
motion to dismiss and compel individual arbitration of the claims
of Filiberto Martinez and inform the court that it no longer op-
poses the lawsuit on the basis of that provision.
(b) In the manner set forth in Murphy Oil, 361 NLRB 774
(2014), and Countrywide Financial Corp., 362 NLRB 1331
(2015), reimburse Martinez for any reasonable attorneys’ fees
and litigation expenses that he may have incurred in opposing
the Respondent’s motion to compel individual arbitration.
(c) Within 14 days the Respondent GMRI shall post at each
of its facilities, copies of the attached notice marked “Appendix
A,” while each of the Respondents shall post at each of its facil-
ities the attached notice marked “Appendix B.” Copies of the no-
tice, on forms provided by the Regional Director for Region 31,
after being signed by the Respondents’ authorized representa-
tive, shall be posted by the Respondents 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 distrib-
uted 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 Respondent to ensure that
the notices are not altered, defaced, or covered by any other ma-
terial. If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Re-
spondent at any time since February 20, 2015, and any current or
former employees against whom the Respondent has enforced its
mandatory arbitration agreement.
(d) Within 21 days after service by the Region, file with the
Regional Director for. Region 31 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated: Washington D.C August 18, 2016
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
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.
DARDEN RESTAURANTS, INC., GMRI, INC., YARD HOUSE USA, INC., YARD HOUSE NORTHRIDGE, LLC 7
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain and/or enforce an arbitration provision
that as a condition of employment requires you to waive the right
to maintain class or collective actions for employment-related
claims in all forums, arbitral or judicial and WE WILL NOT bring a
Court action to prevent you from participating in a class or col-
lective action.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights listed above.
WE WILL rescind or revise the arbitration provision in all of its
to make clear that it does not constitute a waiver of your right to
maintain employment-related joint, class, or collective actions in
all forums and WE WILL notify all current and former employees
who were required to sign or otherwise become bound to the ar-
bitration provision in all of its forms that the provision has been
rescinded or revised and, if revised, WE WILL provide them a copy
of the revised provision.
WE WILL notify the United States District Court, C.D. Cal, that
we have rescinded or revised the arbitration provision upon
which we based our motion to dismiss and compel individual ar-
bitration of the claims of Filberto Martinez, and inform the court
that we no longer oppose collective action on the basis of that
provision.
WE WILL reimburse Filberto Martinez in Case No. No.2:15-
cv-3434 for any reasonable attorneys’ fees and litigation ex-
penses that he may have incurred in opposing the Respondent’s
motion to compel individual arbitration.
GMRI, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-158487 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT bring a Court action in order to prevent you from
bringing a class or collective action regarding your employment
with us.
WE WILL NOT interfere with, restrain, or coerce you in the ex-
ercise of your rights as guaranteed by Section 7 of the Act.
WE WILL notify the United States District Court, C.D. Cal, that
GMRI has rescinded or revised the arbitration provision upon
which we based our motion to dismiss and compel individual ar-
bitration of the claims of Filberto Martinez and inform the court
that we no longer oppose collective action on the basis of that
provision.
WE WILL reimburse Filberto Martinez in Case No. No.2:15-
cv-3434 for any reasonable attorneys’ fees and litigation ex-
penses that he may have incurred in opposing the motion to com-
pel individual arbitration.
DARDEN RESTAURANTS, INC., YARD HOUSE USA, INC.
AND YARD HOUSE NORTHRIDGE, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-158487 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.