Grill Concepts Services, Inc. d/b/a The Daily Grill

National Labor Relations Board - Administrative Judge Opinions

Aug 5, 2015

31-CA-126475 (N.L.R.B. Aug. 5, 2015)

JD(SF)–31–15
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GRILL CONCEPTS, INC.
d/b/a THE DAILY GRILL
and Cases 31–CA–126475
31–CA–132845
UNITE HERE, LOCAL 11 31–CA–135061
Nicole M. Pereira, Esq.,
Marissa Dagdagan, Esq.,
for the General Counsel.
Karl Terrell, Esq.,
Arch Stokes, Esq.,
Patricia O’Rourke, Esq.,
Stokes, Wagner, Hunt, Maretz, and Terrell,
for the Respondent.
Jeremy Blasi, Esq.,
for the Charging Party.
Table of Contents
DECISION ......................................................................................................................................1
Statement of the Case ......................................................................................................................1
Findings of Fact...............................................................................................................................1
I. Jurisdiction ..............................................................................................................................1
II. Statement of Facts..................................................................................................................1
A. Background and Respondent’s Operations .......................................................................1
B. The Union ..........................................................................................................................2
C. The Uniform and Union Buttons .......................................................................................4
D. Conversations in Early April .............................................................................................8
E. Local Ordinance and Class Action Lawsuit.......................................................................9
F. Mandatory Meetings ..........................................................................................................9
G. The Rules.........................................................................................................................11
III. Decision and Analysis ........................................................................................................11
A. Credibility Legal Standards and General Findings .........................................................11
B. Union Buttons..................................................................................................................12
1. Section 8(a)(1)..............................................................................................................12
JD(SF)–31–15
ii
2. Section 8(a)(3) and (1) .................................................................................................15
C. Alleged Threats................................................................................................................15
1. Sandra Diaz .................................................................................................................15
2. Salvadore Tello.............................................................................................................16
D. Alleged Interrogations, Surveillance, Solicitation of Grievances and Promises.............16
1. Salvadore Tello.............................................................................................................16
a. Interrogation 17
b. Impression of Surveillance 18
2. Alfredo Mejia 18
a. Solicitation of Grievances 19
b. Interrogation 20
E. Alleged Promise/Grant of Benefits..................................................................................20
1. Meeting in late March or early April 20
2. Meeting on July 9 23
F. The Rules .........................................................................................................................24
1. Team Member Relations/Positive Culture 25
2. The Timekeeping rule 28
3. Code of Ethics: Relationships with Outside Parties 29
4. Team Member Conduct While Representing the Restaurant 30
5. Progressive Discipline: Gross Misconduct 32
6. Use of Your Likeness 35
7. Online Communications 35
8. Solicitation Rule 37
G. Dispute Resolution Program............................................................................................38
1. Alleged prohibition of class and collective actions 39
2. Alleged interference with Board procedures 45
Conclusions of Law.......................................................................................................................46
Remedy..........................................................................................................................................46
Order..............................................................................................................................................48
APPENDIX .......................................................................................................................................
JD(SF)–31–15
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Los Angeles, 5
California, on April 13–15, 2015. Unite Here, Local 11, (the Charging Party or Union) filed
charges and amended charges in the above-captioned cases on various dates between April 11,
2014, and November 20, 2014.1 The General Counsel consolidated the charges and issued on
January 30, 2015. Grill Concepts, Inc. (the Respondent or Company) filed a timely answer on
February 13, 2015, denying all material allegations and setting forth affirmative defenses. On 10
March 27, 2015, the General Counsel amended the complaint. The Respondent filed a timely
answer admitting the amended allegation and incorporating its prior affirmative defenses.
The amended complaint (complaint) alleges that the Respondent violated the National
Labor Relations Act (the Act or NLRA) by promulgating, maintaining, and enforcing unlawful 15
rules, threatening employees, soliciting complaints and grievances from employees, interrogating
employees, creating the impression that employees’ union and other protected concerted
activities were under surveillance, making promises to employees to discourage support for the
Union, and granting employees benefits to discourage support for the Union. Some allegations
allege violation of Section 8(a)(1), and others allege violation of Section 8(a)(3) and (1) of the 20
Act, as detailed below.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging
Party, I make the following25
FINDINGS OF FACT
I. JURISDICTION
30
The Respondent, a corporation with an office and place of business in Los Angeles,
California, is engaged in the nationwide operation of restaurants. The Respondent admits, and I
find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the
Act. 35
II. STATEMENT OF FACTS
A. Background and the Respondent’s Operations40
Grill Concepts is comprised of 33 restaurants throughout the country. Its corporate
offices are in Woodland Hills, California. Robert Spivak is Grill Concepts’ founder, president
and CEO. Tom Kachani is the vice president of operations, and Chris Gehrke is the vice
president of human resources. Kachani and Gehrke report to Spivak. Area directors oversee 45

1 All dates are in 2014 unless otherwise indicated.
JD(SF)–31–15
2
groups of restaurants. Each restaurant has a general manager who reports to the area manager.
The shift supervisors at each restaurant report to the restaurant’s general manager.
When Spivak began his first restaurant in 1984, his vision was to create “a traditional
American grill where the answer is yes, what is the question, and the guest is always right.” (Tr. 5
263–264, 268.) 2 Grill Concepts’ mission statement is “Take care of the guests, respect the
Team Member, and the rest will take care of itself.” (GC Exh. 2, p.2; Tr. 277–278, 318, 325.)
The restaurant primarily at issue in the instant complaint is the Daily Grill on Century
Boulevard (Century Daily Grill), which is located in the Westin Hotel adjacent to Los Angeles 10
International Airport (LAX). Grill Concepts leases space from the Westin, but the two are
separate entities. The Century Daily Grill opened in April 2010, and serves breakfast, lunch, and
dinner. It employs roughly 80 hourly employees.
During the relevant time period, Michael Burnett and Will White served as consecutive15
general managers at the Century Daily Grill.3 (Tr. 280.) They reported to Robert Robertson,
who was the area director of four restaurants, including Century Daily Grill.4 Shift supervisors
Grace Troung and Kevin O'Daniel, admitted agents of the Respondent, also worked at the
Century daily Grill during the relevant time period. (Tr. 29.)
20
The Century Daily Grill serves as the training restaurant for new managers. The general
manager oversees the training, which includes the technical aspects of the job as well as
exporting the Company’s culture to the other restaurants. (Tr. 323.)
The Respondent conducts regular surveys in order to gauge employee satisfaction in a 25
number of areas, including benefits. The surveys indicated a decline in employee satisfaction on
a company-wide basis from 2010–2014. (R Exh. 1; Tr. 412).
B. The Union
30
Individuals from the Union approached Madcadel5 Goytia and a coworker in September
2013. Goytia and about 8 other employees were part of an organizing committee that worked
under organizer Alex Sandoval. (Tr. 93).

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for the
Respondent’s exhibit; “GC Exh.” for the General Counsel’s exhibit; “CP Exh.” for Charging Party’s
exhibit; “GC Br.” for the General Counsel’s brief; “R Br.” for the Respondent’s brief, and “CP Br” for the
Charging Party’s brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited but rather are based my review and consideration of the entire record.
3 At the time of the hearing, Burnett was area director with oversight of 4 restaurants, including the
Century Daily Grill.
4 The parties have stipulated that Robert Robertson, Michael Burnett, Thomas Kachani, Bob Spivak,
and Will White are agents of Respondent as defined in Section 213 of the Act and supervisors of
Respondent within the meaning of Section 211 of the Act. (Tr. 29.)
5 Madcadel Goytia is often referred to by his nickname, “Mad.”
JD(SF)–31–15
3
Late in the afternoon on February 18, 2014, a group of employees including Goytia,
Salvador Tello, Alfredo Jimenez, Alfredo Mejia, Marcel Escobar, Albert Lazaro, Ramin Azad,
Danielle Sanchez, and Sandra Diaz, approached Will White in the restaurant’s office. He and the
group moved to the restaurant’s side entrance. Goytia said he was representing the workers and
they wanted to unionize. White said nothing and returned to his office. (Tr. 48–49; 131–132.) 5
The employees were informed that Kachani was in the restaurant and was willing to see them.
The group of employees, along with some community members, proceeded to the dining
room where Kachani and another man were seated. Some of the individuals wore union
buttons.6 Azad stated that he was very displeased his hours had been cut for the purpose of 10
making him ineligible for healthcare benefits. He expressed his belief that he had become a
number rather than a person. Diaz introduced herself and said she worked for the Company as a
busser. She said she was very worried for her insurance, and expressed that employees were
doing more work in fewer hours. Danielle Sanchez spoke next. She introduced herself and
expressed her perception that she had unfairly received discipline. Tello said he did not feel like 15
he had the right to speak and complained that his hours had been cut. Lazaro introduced himself
and said he wanted health insurance for his coworkers and himself. Goytia introduced himself,
and said he had been punished, he works hard for the Company, and the Company wanted to
take away his voice. He said the Company had done well the previous year, yet it was the worst
year for the employees. Goytia complained that the Company cut working hours, took away 20
health benefits, failed to respect breaks, and overworked the employees. Mejia spoke next,
stating he has been working in a hostile environment. Some community members also spoke.
(R Exh. 12.) At the end of the meeting, Goytia asked for assurance there was not going to be any
intimidation or retaliation for employees trying to unionize. Kachani said there would not be.
(Tr. 50–51.) 25
Spivak and Burnett were informed of the encounter. (Tr. 292, 330–331.) Burnett
informed Robertson about it, and this was the first Robertson had heard of activity involving a
union at the Century Boulevard Daily Grill. (Tr. 361.) No other similar events occurred in the
Respondent’s other restaurants during this time period. 30
Kachani contacted Gehrke and informed him of the encounter. (Tr. 348.) On February 18
at 5:19 p.m., White sent Gehrke an email, cc’d to Burnett and Kachani, identifying the
employees who confronted Kachani and indicating when they next worked. (CP Exh. 7.) At
7:13 p.m., White sent another email to Gehrke, cc’d to Burnett, Kachani, and Robertson, stating 35
he would send the schedule when it was finished so that Gehrke could talk with the staff the
following week. White also stated that Azad had mentioned to him that “they” intended to get
media coverage, the incident that day was only the beginning, and they had signed up a few more
employees for this “movement.” White suggested that Gehrke speak to Azad the following day,
and advised human resources to talk to the entire staff to get a sense of how many employees 40
were involved in this movement. (CP Exh. 9.) At 9:05 p.m., Gehrke responded to White’s 5:19
p.m. email, stating he would talk with some of the employees the following day, and schedule
the remainder for the following week. (CP Exh. 7.)

6 It is unclear whether any of these individuals were Daily Grill employees.
JD(SF)–31–15
4
On February 20, 2014, Gehrke sent Kachini a link to the Union’s Facebook posting of the
video of the group’s February 18 interaction with Kachani. (CP Exh. 6.)
Robertson was concerned that the employees were unhappy. He met with the Company’s
lawyers to determine what he could and could not do. He was instructed to follow the “no SPIT” 5
rule, meaning he should not spy, promise, interrogate, or threaten. Robertson had one-on-one
meetings with every hourly employee and a couple of group meetings. The one-on-one meetings
were to determine why the employees were frustrated and to ensure team members understood
the unionization process. (Tr. 363–365.)
10
On February 24, Gehrke distributed a document called “Team Member Talking Points—
Daily Grill on Century” to Kachani, Robertson, and Burnett, with copies to Spivak and some
other individuals. He informed the recipients that the document represented the talking points
regarding the union organizing attempt at Century, and said it could be used as a reference for
the one-on-one conversations that would be taking place with each of the hourly team members. 15
Gehrke instructed the recipients to ensure every management member understood the talking
points. Gehrke also referenced information sheets about health insurance. (CP Exh. 1.)
The talking points set forth the Company’s position that it does not want a union coming
to the restaurant. The document discusses the Company’s position that the Union is a waste of 20
money and time. It instructs to inform employees they have a right to have their complaints
heard, and emphasizes that the Company will do its best to respond. The talking points hit on
employee benefits, and discuss how the Affordable Care Act is the law, whether or not there is a
union. The talking points note that the employer can always say no at the bargaining table, and
the union might hold out for a provision that would force the Respondent to fire any employee 25
who failed to pay dues each month. The document accurately reflects the Respondent’s views on
unionization. (CP Exh. 2; Tr. 304–306.)
C. The Uniform and Union Buttons
30
Grill Concepts servers and bussers wear uniforms consistent with the Company’s uniform
policies. Servers wear a white button-down long-sleeved dress shirt, black shoes, black pants, a
brown vest, and a black apron. The Company provides the vest and the apron. The server
purchases the other pieces of the uniform based on specifications the Company provides. (Tr.
183, 267.) 35
According to the uniform standards, the shirt must be pressed and cannot be patterned or
have a flared collar.7 The uniform standards suggest dry cleaning the shirt with heavy starch on
the collar. The vest the Company provides must fit properly and be clean, well-maintained, and
buttoned. The servers at hotel properties, including the Century Daily Grill must wear dress 40
slacks which cannot be denim.8 Any belts must be black with no patterns. The shoes must be
rubber-soled and slip resistant, with no shiny buckles or non-black colors. Black socks must be
long enough to cover any skin. The Company-provided apron must be clean and well-

7 Burnett said the white shirt was a non-button oxford style shirt with no buttons at the collar. (Tr.
321.)
8 Servers at the Respondent’s “Public School” restaurants wear dark blue non-faded denim.
JD(SF)–31–15
5
maintained, and must cover the server’s waistline and belt, if worn. Server order books are to be
placed between the apron and belt, and not between the pants and the body. Aprons are to be
cross-tied in the back with a knot in the front and tucked under the apron so it is not visible. The
trainers must carry a wine tool, Company-provided crumber, and up to 4 black pens. Any trainer
pins are to be worn on the left collar. (GC Exh. 3.) The servers do not wear name tags or any 5
other buttons or insignia.
Bussers wear a black shirt, a black jacket, black pants, black socks, and black shoes (GC
Exh. 3; Tr. 245). Respondent only provides bussers with the black jacket. (Tr. 339.)
10
There are specific personal appearance standards for men and women addressing things
such as hair, jewelry, and tattoos. Employees are instructed to consult with their managers if
they have questions, and informed that managers have authority of what is considered
appropriate for their restaurants based on guest satisfaction, dress code requirements, and
safety/health concerns. (GC Exh. 3.) 15
Spivak’s reason for adherence to the uniform policy is that the servers’ job is “to provide
service to deliver food and not to make any statements of any kind, other than supporting our
restaurant.” (Tr. 267.) He elaborated:
20
There's an old standard and I guess I qualify as an old restaurant person, that servers are
to be seen and not heard. We don't -- we don't allow our servers to fraternize with our
guests. We really want them to be seamless and we're there because of the food and the
service that we provide and we're pretty rigid on that.”
25
(Tr. 268.)
Burnett stated that the uniform needs to be “clean, correct and complete,” which means
“[t]here's nothing missing that should be there and there's nothing additional that shouldn't be
there.” (Tr. 320.) The uniform is in line with the Company’s philosophy that before the 30
customers come through the door, they know what they’ll get in terms of food, service, and
atmosphere.
Burnett enforces the uniform standards at the Century Daily Grill. (Tr. 322.) Prior to the
beginning of service, the employees engage in a practice called “huddle up” where they discuss 35
the specials of the day, the soup of the day, and the expected volume in the restaurant. During
this time, management looks at the personal appearance of the team. (Tr. 329.) Burnett points
out both positive and negative compliance.
Goytia has worked for the Daily Grill since 2003, and at the Century Daily Grill since it 40
opened in April 2010.9 He has purchased several pairs of pants to wear to work, but wears two
pair most often: Louis Raphael pants made of polyester and Dockers pants made of cotton. The
Louie Raphael pants are glossier than the Dockers pants.

9 Goytia has been on medical leave since the last week of January 2015.
JD(SF)–31–15
6
Server Ramin Azad has worked for the Company for about 8 years, and has been at the
Century Daily Grill since it opened. He has seven white shirts he wears to work. They are
different brands. Some have pockets and others do not. (Tr. 209–210.)
Busser Salvador Tello has worked for the Company since 2008 and at the Century Daily 5
Grill since it opened. He wears six pairs of pants, made of different materials, to work.
On March 24, Tello was scheduled to work from 5:30–11:30 a.m. He wore a round white
pin on the pocket of his shirt. The pin was about an inch in diameter and said, “UNITE HERE!
LOCAL 11” in red and black lettering. (GC Exh. 4; Tr. 135–136.) At about 9:30, Robertson 10
approached him and told him he could not wear the button. Tello called the union office and
spoke to Sandoval, who informed Tello he had the right to wear the button. Robertson again
approached Tello about the button, and Tello reiterated that he had the right to wear it.
Robertson told Tello he needed to “decide if I continue with the Union or I continue with the
Grill.” Robertson said he needed to call his lawyer. About 20 minutes later, Robertson told Tello 15
he had to take the pin off or go home. (Tr. 137–139, 327.) Tello clocked out at about 10:00.
(Tr. 140.) He was only paid for the hours he worked, and did not receive tips.
Busser Sandra Diaz worked 5:30–11:30 a.m. on March 25. She wore the same union
button on the corner of her jacket pocket. She believed the shift supervisor “Mary” saw the pin 20
because everyone greets each other in the mornings and the place is very small. (Tr. 249–250.)
On March 25, Tello worked 10:45 a.m. to 4:45 p.m. He wore an anniversary pin he had
received a couple of months before. The pin was roughly an inch wide, and indicated 5 years of
service. (GC Exh. 8.) Burnett approached Tello and said, “Here you go again with your union 25
pin.” (Tr. 144.) Tello said it was not the union pin, but was the anniversary pin Burnett had
given him. At around 11:30, Tello put on his union button and continued to wear his anniversary
pin. At about noon, White approached him and told him he had to take the union button off.
Tello told White he had a right to wear the union button. White went back to the office, and
Burnett came out and told Tello he had to take off the union button, and it was better if he took 30
off both pins. Burnett sent Tello home, and Tello asked for documentation to show he was being
sent home. Burnett asked if he was sure, stating he did not want to write Tello up. Tello
worked for another 15–20 minutes, when Burnett called him to his office and presented him with
a written warning for declining to remove an unauthorized pin from his uniform. Tello declined
to sign the warning, and clocked out at around 12:30. (GC Exh. 5; Tr. 145–151.) He was paid 35
only for the hours he worked and did not receive tips.
Sanchez came to work at noon on March 25. She was scheduled to work until 4:00 p.m.
She saw Tello leaving work, and he informed her that he was being sent home for wearing the
button. Sanchez said she would wear hers to see what happened. (Tr. 189.) She put on the 40
button, and when Burnett passed her in the hallway of the beverage station, she turned toward
him. He told her that she needed to take off the button or she would be sent home. When
Sanchez informed Burnett she would not take off her button, he told her to clock out and go
home. Sanchez was paid only for the 20 minutes she worked, and did not receive tips. (Tr. 190–
191.)45
JD(SF)–31–15
7
Burnett said he saw the button during “huddle up” and asked Diaz to remove it. Diaz
said she had a right to wear it, and Burnett agreed, but stated that right did not extend to the
restaurant floor during service. He offered her the choice of removing the button or going
home.10 (Tr. 329.)
5
Diaz wore her union button again on March 26. At about 8:30 a.m., Supervisor Truong
told her to come to her office. Truong told Diaz she could not work if she was wearing the union
button because Company policy did not allow pins. Diaz asked under what circumstances she
could wear a pin, and Truong responded that employees could wear anniversary pins. Diaz
asked for something in writing if she was being sent home. Truong told Diaz she was going to 10
speak to Robertson to be sure she was sending her home. Diaz returned to work wearing her
button. Truong approached her again and told her she would receive a written warning if she
wore the button the next day. Diaz was scheduled to work until 11:30 but she punched out at
about 8:45. She was paid for the hours she worked. (Tr. 250–253.)
15
On March 28, server Alfredo Mejia was scheduled to work the dinner shift. He wore the
same union pin Sanchez and Tello had previously worn. White approached Mejia at about 5:15,
and told him to remove the pin because it was not part of his uniform. Mejia said he would not
remove the pin, and White sent him home. Mejia showed White a poster explaining rights under
the NLRA, including the right to wear a union pin. Mejia was paid only for the time he worked, 20
and he received tips. (Tr. 221–224.)
At 12:52 a.m. on March 29, White sent Gehrke an email telling him that he sent Mejia
home and explaining the poster Mejia had shown him. He asked for advice regarding team
members wearing pins. Gehrke responded that the poster was struck down by the courts, 25
including the provision about the pins. (CP Exh. 8.)
Mejia sent White an email at 7:29 p.m. on March 29 requesting, in relevant part, to be
compensated for the loss of income from being sent home the previous day. On April 2, White
responded and informed Mejia that he would not be compensated for the time he was sent home 30
for being out of uniform. White noted that the uniform policy is very specific, prohibiting
employees from wearing buttons or pins in front of guests. He informed Mejia that he could
wear a pin or button when he was on a break or otherwise not in front of guests, and attached a
copy of the Respondent’s personal appearance standards. (GC Exh. 10.)
35
On March 30, Goytia wore a union button like the one Tello had previously worn. He
placed it over his vest in his chest area. At around noon, O’Daniel told Goytia he was not
permitted to wear the pin. Goytia said he would not remove the pin willingly, and at Goytia’s
suggestion, O’Daniel sent Goytia home. Goytia asked for documentation to show he was being
sent home, and O’Daniel handed him a piece of paper with the phone number of Melinda Sharan, 40
a human resources representative. Goytia transitioned his tables to another server. As he was
leaving, O’Daniel told him he had nothing against him personally. Goytia was only paid for the
time he worked and he did not receive tips. (Tr. 52–55.)

10 The slight discrepancy of when Burnett told Sanchez to remove the button is not material to my
findings in this decision. I credit Sanchez’ version, however, because she provided specific and unrefuted
testimony that she was paid for working 20 minutes.
JD(SF)–31–15
8
In 2013, Goytia had worn 5-year and 10-year anniversary pins bearing the Grill Concepts
logo to work. The pins were roughly an inch wide. (Tr. 57–60; GC Exhs. 7–8.) Other servers
wore anniversary pins. He was not aware of a rule or policy prohibiting pins.
5
Busser Sandra Diaz wore a gold angel pin measuring just over ½ inch on her on the left
corner pocket of her uniform. (Tr. 246–247.) Burnett denied seeing the pin. He would have
asked that it be removed because there are no overt expressions of religion allowed. (Tr. 334.)
Diaz recalled seeing Burnett wear a clover pin for St. Patrick’s Day; Burnett denied wearing a St.
Patrick’s Day pin. (Tr. 248, 396.) 10
Westin hotel employees have a similar uniform, but the vest is darker. The Westin
employees are frequently in the restaurant retrieving bread or room order items. Hotel employees
wear Unite Here buttons inside the restaurant. (Tr. 84–85.)
15
Servers who are training other servers wear pins identifying them as trainers. Some
servers also possibly wore lobster pins when promoting a menu item. (Tr. 288–290.) Burnett
never saw a trainer pin at the Century Daily Grill. (Tr. 329.)
D. Conversations in Early April20
In early April, Robertson approached Mejia and asked him to follow him to the
boardroom, which is a private dining room. He told Mejia how much the Union would cost him
and the Company. Mejia responded that he knew the costs because he was already a union
member.11 Robertson continued to talk about the Union, and Mejia told him he was on the clock 25
so he did not want to discuss the Union. Robertson asked why Mejia wanted the Union at the
Daily Grill, and Mejia responded that he wanted to be protected from retaliation and also stated
there were some issues in his past. Robertson said he would stop all the retaliation practices. The
conversation continued into the dining room, and Robertson asked Mejia what he could do to
keep the Union from coming. Mejia reminded Robertson he had called for a meeting the 30
following week, so he would have the perfect forum to speak up, but the union movement was
very strong. Mejia also told Robertson that the Company had cut employees’ hours in response
to the Affordable Care Act (ACA) and if they think the Union is going to be expensive, they had
the chance to provide insurance for all employees and failed to do so. (Tr. 226–229.)
35
In April, Robertson told Tello to clock out and meet him in the boardroom. Gehrke was
also present. Robertson said he had seen Tello in the video and he was surprised because he
thought Tello was happy with his job. Tello said he had his reasons and he had not done
anything illegal. Robertson asked Tello if he knew how the union worked, and told him their
relationship would change because others would be making decisions for the employees. He also 40
asked if employees were signing cards. Tello responded that he was not going to say anything
that would jeopardize his coworkers. (Tr. 153–154.)

11 Mejia has been a member of Unite Here, Local 11 for 18 years through his employment at
Paramount Studios. (Tr. 236.)
JD(SF)–31–15
9
On April 13, Robertson sent an email to Gehrke stating that “they,” a group of hotel
maids along with Mad, Ramin, Alfredo, and Sal, marched and chanted for about 45 minutes until
they were ejected from the hotel. They did not come into the restaurant. (CP Exh. 5.)
On April 18, a group of 16 individuals was seated at the restaurant. After being served 5
bread and water, they stood up, revealed Unite Here t-shirts, chanted in Spanish, and marched
out of the restaurant. The chanting lasted about 90 seconds. (Tr. 397; R Exh. 8.)
E. Local Ordinance and Class Action Lawsuit
10
The cluster of hotels surrounding LAX, including the Westin Hotel where the Century
Daily Grill is housed, is commonly referred to as the Century Boulevard Corridor (Corridor).
Employers in the hotels in the Corridor are subject to the Airport Hospitality Enhancement
Zone Ordinance (Ordinance), codified as Los Angeles Municipal Code Section 104.101 et seq.
The Ordinance provides for a minimum wages and other employment standards for hotel 15
workers.12 (ALJ Exhs. 5, 6.) The Company made an error in calculating wages when the
Ordinance went into effect and underpaid employees for about 6 months. (Tr. 247.) The
employees at the Century Daily Grill filed a class action lawsuit against the Company for failing
to adhere to the minimum wage set forth in the Ordinance. (Tr. 72, 211, 459.) The employees
ultimately received retroactive wage increases, but it took longer than the Company had 20
anticipated for this to occur. (Tr. 111.)
F. Mandatory Meetings
Employees attend mandatory meetings about once a year to where management talks 25
about restaurant operations and events. In late March or early April,13 Robertson, Kachani, and
Burnett held mandatory meetings for all employees. They were on consecutive days, and each
employee attended one meeting or the other. Robertson announced that employees would be able
to request days off on a first-come first-serve basis. This had been manner in which time off had
been requested when he was the general manager, and he was unaware that this practice had 30
changed until he heard complaints from employees during his one-on-one meetings. Robertson
also said they could use flex-time before vacation time, which was a benefit because flex-time is
not payable when the employee leaves the Company, and vacation time is. (Tr. 367–371.)
Robertson announced that hours had been cut because of the upcoming changes 35
associated with the Affordable Care Act (ACA), but now with the restaurant’s financial
improvement, they could offer full-time work to some employees. Robertson said he and Burnett
planned to sit down with the employees and discuss their preferences regarding days, hours, and
shifts. Robertson also informed employees that they would be paid time and a half for working
holidays.14 In addition, Robertson told employees that the employee discount at the restaurant 40

12 It is undisputed that the ordinance applies to the servers and bussers employed at the Century Daily
Grill.
13 Robertson recalled the dates as March 24–25. Goytia, Tello, and Mejia recalled it was in April.
The precise date does not impact my findings.
14 The Respondent’s unionized restaurant in Chicago already had this benefit. Restaurants not located
within hotels are closed on Thanksgiving and Christmas.
JD(SF)–31–15
10
would increase from 30 percent to 50 percent and the previous restrictions on certain menu items
would be lifted. This was implemented company-wide. (Tr. 371–372; R Exh. 2, p. 9.)
Goytia asked if these changes were permanent and asked about the meaning of at-will
employment. He then read the at-will rule. Kachani said there would be a legal representative at 5
the restaurant tomorrow and Goytia could set up a meeting with him to answer any questions.
(Tr. 69–70, 97.) Mejia asked Robertson to explain to everybody that there would not be
retaliation. Robertson said he would discuss any problems with employees one-on-one. (Tr.
231–232.) Several other employees also asked questions. Goytia and Diaz wore union buttons
during the meeting. (Tr. 98.) 10
On May 2, Phil Kastel15 sent an email to Gehrke, Kachani, and Spivak, among others,
notifying them that Ramin Azad was passing out a flyer on his day off.
In May, Spivak conducted a meeting with employees to explain what had happened with 15
regard to their wages not being fully paid in accordance with the ordinance. He told the
employees they would receive checks for the wages they had been shorted in a couple of weeks.
(Tr. 275.)
The Respondent’s healthcare benefits broker is Bob Hoskins, a senior account executive 20
at Wells Fargo Bank. On June 3, Gehrke sent Hoskins an email asking if a specified benefit
contribution model could be used at the Century location. Gehrke asked Hoskins if there would
be an issue under ERISA [Employee Retirement Income Security Act]. Hoskins forwarded the
message to Daniel Kopti, asking if the proposed model would be discriminatory. Kopti replied
that under the Affordable Care Act, insured plans are prohibited from discriminating in favor of 25
highly compensated employees. He saw nothing in the Company’s plan that would be a problem
under the nondiscrimination standard. (R Exh. 3.)
Spivak conducted another mandatory meeting on July 9 in the Westin conference room.
Burnett, Gaeta, White, and Human Resources Representative Melinda Sharan also attended on 30
management’s behalf. Spivak apologized for losing his composure at the prior meeting
regarding the class action wage-and-hour lawsuit. He also apologized for how long it took
employees to receive their checks from the settlement of the lawsuit. He thanked everyone for
attending, and said the employees would receive $100 worth of gift cards. Spivak announced
that the company would start providing healthcare coverage for employees who worked at least 35
10 hours per week, and the copayment would be $10.00. He passed out pamphlets describing the
different plan options.16 (Goytia 71–73, 206–208, 233; GC Exh. 11.)
This was the first time gift cards were passed out at a mandatory meeting. In the past,
employees received gift cards based on certain performance incentives and competitions. (Tr. 40
213.)

15 Kastel’s job title was not identified.
16 The rates and plans were discussed in June. (R Exhs. 4–7.)
JD(SF)–31–15
11
G. The Rules
The Respondent maintains various rules and policies. All restaurants share the same
policies. The specific rules the General Counsel contends violate the Act are set forth and
discussed in the analysis section below. 5
Many of the rules are contained within the most recent version of the Restaurant Team
Member Handbook (employee handbook), dated June 14. (GC Exh. 2.) The handbook is
distributed to new employees during orientation. According to Burnett, the updated handbook
was distributed to existing employees as they came to work, and they were asked to sign a 10
receipt stating they had received it. The employees could decline to sign, and when this
occurred, Burnett just noted the employee declined to sign. If employees had questions, Burnett
would answer them or contact human resources if he did not know the answer. (Tr. 341–343.)
Goytia requested a copy of July 2014 the handbook from White. They met in White’s 15
office, and White told Goytia he would need to sign the acknowledgement of receipt. Goytia
said he did not understand the provision about arbitration and White said it was simply a receipt.
Goytia did not sign the receipt and he retained a copy of the handbook. (Tr. 79–80) Azad
received a copy of the employee handbook from O’Daniel in August 2014. He did not sign in
receipt of the handbook. (Tr. 214.)20
Failure to abide by the policies set forth in the employee handbook will lead to
disciplinary action, up to and including termination. (GC Exh. 2, p. 37.)
III. Decision and Analysis25
A. Credibility Legal Standards
While many of the issues in this case do not concern witness credibility, some of them
do. A credibility determination may rest on various factors, including “the context of the 30
witness' testimony, the witness' demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole.” Hills & Dales General Hospital, 360 NLRB No. 70, slip op at 7 (2014),
citing Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB
622, 623 (2001). In making credibility resolutions, it is well established that the trier of fact may 35
believe some, but not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d
749 (2d Cir. 1950).
The Board has agreed that “when a party fails to call a witness who may reasonably be
assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any 40
factual question on which the witness is likely to have knowledge.” International Automated
Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is particularly
true where the witness is the Respondent’s agent. Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006). Moreover, an adverse inference is warranted by the unexpected
failure of a witness to testify regarding a factual issue upon which the witness would likely have 45
knowledge. See Martin Luther King, Sr., Nursing Center, 231 NLRB 15, 15 fn. 1 (1977)
(adverse inference appropriate where no explanation as to why supervisors did not testify);
JD(SF)–31–15
12
Flexsteel Industries, 316 NLRB 745, 758 (1995) (failure to examine a favorable witness
regarding factual issue upon which that witness would likely have knowledge gives rise to the
“strongest possible adverse inference” regarding such fact).
Testimony from current employees tends to be particularly reliable because it goes 5
against their pecuniary interests. Gold Standard Enterprises, 234 NLRB 618, 619 (1978);
Georgia Rug Mill, 131 NLRB 1304, 1304 fn. 2 (1961); Gateway Transportation Co., 193 NLRB
47, 48 (1971); Federal Stainless Sink Div. of Unarco Industries, 197 NLRB 489, 491 (1972).
Where there is inconsistent evidence on a relevant point, my credibility findings are10
incorporated into my legal analysis below.
B. Union Buttons
Paragraph 8 of the complaint alleges that the Respondent has promulgated and 15
maintained a rule prohibiting employees from wearing union buttons or insignia on their
uniforms while working. The complaint more specifically alleges that, in violation of Section
8(a)(3) and (1):
ï‚· On about March 26, 2014, Grace Truong sent Sandra Diaz home for wearing a 20
union button on her uniform;
 On about March 30, 2014, Kevin O’Donnell sent Madcadel Goytia home for
wearing a union button on his uniform;
ï‚· In late March 2014, Will White sent Alfredo Mejia home for wearing a union
button on his uniform;25
ï‚· On about March 31, 2014, Robert Robertson sent Salvador Tello home for
wearing a union button on his uniform;
ï‚· On about April 1, 2014, Michael Burnett sent Salvador Tello home and issued
him written discipline for wearing a union button on his uniform;
ï‚· In early April 2014, Michael Burnett sent Danielle Sanchez home for wearing a 30
union button on her uniform.
1. Section 8(a)(1)
Under Section 8(a)(1), it is an unfair labor practice for an employer to interfere with, 35
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection . .
.”40
The basic test for a violation of Section 8(a)(1) is whether under all the circumstances the
employer's conduct reasonably tended to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury, 314 NLRB 470, 472, (1994);
Sunnyside Home Care Project, 308 NLRB 346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147(1959).45
JD(SF)–31–15
13
In Republic Aviation Corp v. NLRB, 324 U.S. 793, 801–803 (1945), the Supreme Court
held that employees have a protected right to wear union buttons and other insignia at work. This
right is balanced against the employer's right to maintain order, productivity, and discipline. The
Board has struck this balance by permitting employers to prohibit employees from wearing union
insignia where the employer proves that “special circumstances” exist. Id. at 797–798; see also 5
Boch Honda, 362 NLRB No. 83, slip op. at 2 (2015); Sam's Club, 349 NLRB 1007, 1010 (2007);
Control Services, 303 NLRB 481 (1991). Special circumstances may justify restrictions on
union insignia “when their display may jeopardize employee safety, damage machinery or
products, exacerbate employee dissension, or unreasonably interfere with a public image that the
employer has established, or when necessary to maintain decorum and discipline among 10
employees.” Komatsu America Corp., 342 NLRB 649, 650 (2004); see also United Parcel
Service, Inc., 195 NLRB 441 (1972).
The special circumstances exception is narrow and “a rule that curtails an employee's
right to wear union insignia at work is presumptively invalid.” E & L Transport Co., 331 NLRB 15
640 fn. 3 (2000). The burden of establishing the existence of special circumstances rests with the
employer. Pathmark Stores, 342 NLRB 378, 379 (2004). Any rule impinging on the employees’
Section 7 right to wear union insignia must be narrowly tailored to the special circumstances
justifying its maintenance. Mere employee contact with customers does not, by itself, justify
employer prohibition of union buttons or insignia. Virginia Electric & Power Co., 260 NLRB 20
408 (1982), citing Floridan Hotel of Tampa, Inc., 137 NLRB 1484 (1962), enfd. as modified on
other grounds 318 F.2d 545 (5th Cir. 1963).
Special circumstances are found “when the prohibition against union insignia or apparel .
. . ‘unreasonably interfere[s] with a public image that the employer has established, or when 25
necessary to maintain decorum and discipline among employees.’ Nordstrom, Inc., 264 NLRB
698, 700 (1982).” Smithfield Packing Co., 344 NLRB 1, fn 20 (2004); see also Bell-Atlantic-
Pennsylvania, Inc., 339 NLRB 1084, 1086 (2003). The Board has held that “An employer's
concern about the ‘public image’ presented by the apparel of its employees is . . . a legitimate
component of the ‘special circumstances' standard.” W San Diego, 348 NLRB 372, 380 (2006). 30
I find the Respondent has met its burden to show special circumstances. First, the
evidence is undisputed that the prohibition on wearing the union pin only was enforced when the
servers were going to interface with guests. Employees were permitted to wear union buttons at
employee meetings and while on breaks or otherwise not serving guests. Though interfacing 35
with guests is not enough for the Respondent to meet its burden, I find the prohibition was
required for the Respondent to maintain an ambience consistent with its established business
model. To this end, I found the testimony of the Respondent’s founder and CEO, Robert Spivak,
particularly compelling.
40
In addition to discussing the uniform standards and personal appearance standards,
Spivak testified about his vision in creating Grill Concepts. His philosophy, detailed in the
statement of facts above, was clearly to provide a place customers could come to get predictable,
reliable, customer-focused service and forget about everything else. To that end, he testified
about creating a restaurant where the servers were “seen and not heard” and they stayed focused 45
on their job to “provide service to deliver food and not to make any statements of any kind, other
JD(SF)–31–15
14
than supporting our restaurant.” The only message Spivak wants to impart to the guests is that
“the server’s job is clearly to provide service.”
The focus on atmosphere is very similar to W San Diego, where the Board found a
restriction on union insignia was in line with the hotel’s desire to create a “wonderland” 5
experience, where it described its guest services as “whatever whenever,” and its employees as
“talent” or “cast members.” This is similar to Spivak’s vision of the “traditional American grill
where the answer is yes, what is the question, and the guest is always right” and Grill Concepts’
mission statement, “Take care of the guests, respect the Team Member, and the rest will take
care of itself.” It is clear from the testimony of both Spivak and Burnett that a consistent, 10
customer-driven experience is at the core of the Respondent’s business model, and the uniform
and professional appearance of its servers is part of that model.17
The General Counsel and the Charging Party point to some inconsistencies in the
uniforms and some lapses in enforcement. The fact that employees wear pants and shirts made 15
from different materials, however, does not meaningfully detract from the fact that the uniforms
are essentially the same for the servers and bussers, respectively. The evidence also shows that
there has been some inconsistency in enforcing the rule, with certain pins sometimes being
permitted (such as the anniversary pins) and the Respondent’s potential occasional use of pins
for promotional restaurant items. I do not find these materially detract from the Respondent’s 20
defense under existing Board law. See Hertz Corp., 305 NLRB 487 (1991) (on remand from
Sixth Circuit, NLRB v. Hertz Corp., 920 F.2d 933 (6th Cir. 1990)) (ban on union insignia by
employees who interfaced with the public lawful despite occasional lapses in enforcement).
Moreover, the union pins at issue were more conspicuous than the anniversary buttons or the
angel pin Diaz wore. The union pins were white, with black and red lettering, contrasted against 25
the employees’ dark vests or jackets. The Board has upheld a prohibition on wearing a white
button with red lettering, United Parcel Service, 195 NLRB 441 (1972), as well as a “day-glow”
button with black lettering. Con-Way Central Express, 333 NLRB 1073 (2001).
The General Counsel and Charging Party also assert that the hotel employees, who wore 30
union insignia, were also in the restaurant retrieving items for room service delivery. These
employees, however, were hotel employees, whose jobs did not entail interacting with the
restaurant guests, and who were not under the Respondent’s control.18
The General Counsel further argues that the rule prohibiting union buttons was 35
promulgated in response to protected activity and is therefore unlawful under Lutheran Heritage
Village-Livonia, 343 NLRB 646, 647 (2004), discussed below. Any employer directive to
remove union insignia is going to be in response to the employees’ activity of displaying it.19 I

17 The General Counsel and Charging Party both point out that the employer in W San Diego
purchased the uniforms at considerable expense. The relative expense of the uniforms in that case
compared to the expense of the vests and jackets in the instant case, particularly compared against
respective operating budgets, is not a matter of record.
18 The Charging Party’s assertion that the uniforms were similar to the hotel employees’ uniforms is
not persuasive, particularly considering the uniforms are the same for all the restaurants (except the Public
School restaurants) regardless of whether they are housed in hotels.
19 The General Counsel points to White’s confusion over the pin policy as an indication that it did not
exist prior to the employees’ wearing union buttons. It is clear, however, that White only requested
JD(SF)–31–15
15
find, therefore, that the Republic Aviation framework is better suited to the instant factual
scenario. Similarly, the General Counsel asserts that had the prohibition of buttons been part of
the Respondent’s business plan, this would have been reflected in the uniform standards. I find,
however, the uniform and personal appearance standards convey the image the Respondent
wants to project, consistent with its business plan. The omission of buttons (among a plethora of 5
other potential adornments), does not establish that the Respondent regularly permitted servers
and bussers to wear conspicuous non-uniform pins prior to March 2014.
2. Section 8(a)(3) and (1)
10
Section 8(a)(3) prohibits “discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in any labor
organization.” Any violation of Section 8(a)(3) is also a violation of Section 8(a)(1). Chinese
Daily News, 346 NLRB 906, 933 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).
15
Neither the General Counsel nor the Charging party asserts that the mixed-motive analysis
set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), applies, and the Respondent does not assert a Wright Line defense. Instead,
the General Counsel argues there was no mixed motive because the very conduct for which the
employees were sent home was protected by Section 7. Felix Industries, 331 NLRB 144, 146; 20
(2000); Nor-Cal Beverage Co., 330 NLRB 610, 611-612 (2000). Because I have found the
Respondent has established special circumstances, however, I find it was justified in
conditioning employees’ continued work serving guests on removing the buttons. The
employees chose to go home rather than removing their buttons and continuing to work. With
regard to the written discipline issued to Tello, this was issued because Tello requested 25
documentation that he was being sent home for refusing to remove his union button.
Based on the foregoing, I recommend dismissal of complaint paragraph 8.
C. Alleged Threats30
In specifically assessing whether a remark constitutes a threat, the appropriate test is
“whether the remark can reasonably be interpreted by the employee as a threat.” Smithers Tire,
308 NLRB 72 (1992). Further, “It is well settled that the test of interference, restraint, and
coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive or on whether 35
the coercion succeeded or failed.” American Tissue Corp., 336 NLRB 435, 441 (2001) (citing
NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)).
1. Sandra Diaz
40
Paragraph 8(c)(ii) of the complaint alleges that, on March 26, 2014, Grace Truong,
threatened Diaz with discipline for wearing a union button on his or her uniform while working.

clarification after Mejia showed him the poster.
JD(SF)–31–15
16
Because I have found the Respondent has established special circumstances permitting it
to bar its employees from wearing a union button while working in uniform with the public, as
set forth fully above, I find there was no unlawful threat. I therefore recommend dismissal of
this allegation.
5
2. Salvador Tello
Complaint paragraph 9(a) alleges that about March 31, 2014, the Respondent threatened
an employee with an implied threat of job loss unless the employee ceased supporting the Union.
More specifically, the evidence shows that on March 24, Robertson told Tello he had to decide 10
whether he was going to “go with the Union or go with the grill.”
Tello’s testimony on this point is unrefuted, and I credit it. As a current employee
testifying against his own pecuniary interest I find his testimony to be particularly reliable. See
Gold Standard Enterprises, supra. I also draw an adverse inference based on Robertson’s failure 15
to testify about this allegation. Martin Luther King, Sr., Nursing Center, supra; Flexsteel
Industries, supra.
The statement conveyed to Tello was that he needed to choose the Union or the
Company, and I find it is an implied threat of job loss. See Shen Automotive Dealership Group, 20
321 NLRB 586, 591 (1996) (statement from supervisor to employee that he should “really try to
decide whether he was going to work with him or not” coercive among other unlawful conduct).
In the context present here, where Robertson was meeting with employees directly in response to
learning about the employees’ (including Tello) encounter with Kachani in February, I find this
statement was coercive. I therefore find the General Counsel has met its burden to prove this 25
complaint allegation.
D. Alleged Interrogations, Surveillance, Solicitation of Grievances and Promises
1. Salvador Tello30
Complaint subparagraphs 9(c) and (e) allege that the Respondent, in April 2014,
interrogated its employee about the union sympathies of employees and created the impression
that his union activities were under surveillance.20 Because these allegations stem from the same
conversation, they are discussed together. 35
As detailed in the statement of facts, sometime in mid-April, Robertson told Tello to
clock out and meet him in the boardroom, where Gehrke was also present. Robertson said he had
seen Tello in the video and expressed his surprise. Robertson asked Tello if he knew how the
union worked, told him that their relationship would change because others would be making 40
decisions for them, and asked if employees were signing cards.

20 The Respondent contends that the meetings with employees, including Tello and Mejia, took place
in March. There are no documents establishing the date, and the witness testimony conflicts. Whether
the meetings occurred in March or April has no bearing on my conclusions.
JD(SF)–31–15
17
a. Interrogation
In assessing the lawfulness of an interrogation, the Board applies the totality of
circumstances test adopted in Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub
nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This test involves a case-by-case 5
analysis of various factors, including those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964): (1) the background, i.e., whether the employer has a history of hostility toward or
discrimination against union activity; (2) the nature of the information sought; (3) the identity of
the interrogator, i.e., his or her placement in the Respondent's hierarchy; (4) the place and
method of the interrogation; and (5) the truthfulness of the interrogated employee's reply. See, 10
e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007); Grass Valley Grocery Outlet,
338 NLRB 877, 877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005).
The Board also considers the timing of the interrogation and whether the interrogated
employees are open and active union supporters. See, e.g., Gardner Engineering, 313 NLRB 15
755, 755 (1994), enfd. as modified on other grounds 115 F.3d 636 (9th Cir. 1997); Blue Flash
Express, 109 NLRB 591 (1954). Another factor is whether adequate assurances were provided.
See John W. Hancock, Jr., Inc., 337 NLRB 1223, 1223-1224 (2002). These factors “are not to be
mechanically applied,” they represent “some areas of inquiry” for consideration in evaluating an
interrogation's legality. Rossmore House, supra, fn. 20. The Board has held that interrogations 20
that constitute “a pointed attempt to ascertain the extent of the employees' union activities” are
unlawful. SAIA Motor Freight, Inc., 334 NLRB 979, 980 (2001).
With regard to the alleged interrogation, I find the totality of the circumstances compels a
finding that Tello was interrogated. The nature of the information sought went to the heart of 25
Tello’s and other employees’ union activity.21 The interrogator was the area director, a high
ranking management official, who was accompanied by the highest ranking corporate human
resources officer and the questioning took place behind closed doors. No assurances were
provided. As to the truthfulness of the reply, Tello did not answer because he did not want to
jeopardize his coworkers. 30
The Respondent contends that even if Robertson asked this question, it was in the manner
of an introductory statement of fact, used as a platform for communicating how the Union
worked. Though it is true Robertson asked Tello if he knew how unions worked, this does not
save the inquiry about whether employees were signing cards from constituting an interrogation, 35
based on the factors analyzed above.
The Respondent also contends that Robertson’s remarks were protected by Section 8(c)
of the Act. The employer’s freedom under Section 8(c) to express views, arguments, or opinion
about the union stops when the comments threaten employees or otherwise impinge upon 40
Section 7 rights. See Children's Center for Behavioral Development, 347 NLRB 35 (2006).
Because I have found the question about whether employees were signing cards to be an
unlawful impingement on Tello’s Section 7 rights, the Respondent’s contention fails.

21 Though Robertson denied attempting to discover information about who was supporting the Union
during his employee interviews (Tr. 365), he did not deny asking whether employees were signing cards.
JD(SF)–31–15
18
b. Impression of Surveillance
The test for determining whether an employer engages in unlawful surveillance or
whether it creates the impression of surveillance is an objective one and involves the
determination of whether the employer's conduct, under the circumstances, was such as would 5
tend to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under
Section 7 of the Act. See Broadway, 267 NLRB 385, 400 (1983) (citing United States Steel
Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
The Board has consistently held that an employer’s mere observation of open, public 10
union activity on or near its property does not constitute unlawful surveillance. See Fred'k
Wallace & Son, Inc., 331 NLRB 914, 915 (2000). For example, in Metal Industries, 251 NLRB
1523, 1523 (1980), the Board found no unlawful surveillance of employees where the employer
had a longstanding practice of going to the employee parking lot to say goodbye to its departing
employees at the end of the workday. The employer's observance of the employees' Section 7 15
activity was inseparable from its regular and noncoercive practice. See also Wal-Mart Stores,
340 NLRB 1216, 1223 (2003).
Employers may not, however, “do something ‘out of the ordinary’ to give employees the
impression that it is engaging in surveillance of their protected activities.” Loudon Steel, Inc., 20
340 NLRB 307, 313 (2003); See also Partylite Worldwide, Inc., 344 NLRB 1342 (2005); Arrow
Automotive Industries, 258 NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982); Sprain Brook
Manor Nursing Home, 351 NLRB 1190 (2007). The Board's analysis thus focuses on whether
the observations were ordinary or represented unusual behavior. Aladdin Gaming, LLC, 345
NLRB 585 (2005), rev. denied 515 F.3d 942 (9th Cir. 2008).25
The employees’ complaints to Kachani took place in the restaurant and were filmed by
the Union. Obviously, the managers who observed this interaction were not engaged in
surveillance. Robertson, however, did not observe the activity when it occurred, nor is it clear
how he knew the Union had posted it on its Facebook page.22 He did not mention where he had 30
obtained the video, and expressed his surprise to see Tello taking part in the February 18
confrontation. Though Tello was presumably aware the incident was being filmed, there is no
evidence he had any role in disseminating any footage or informing anyone where they could
view it. Given the context, described above, I find the Respondent “did something out of the
ordinary” by taking the affirmative steps to go on the Union’s Facebook page to view the 35
protected activity, and then informing Tello it had done so.
Based on the foregoing, I find the General Counsel has proved complaint allegations 9(c)
and (e).
40
2. Alfredo Mejia
Complaint allegation 9(b) alleges that, around early April 2014, the Respondent solicited
employee complaints and grievances, promised its employees increased benefits and improved
terms and conditions of employment to discourage employee support for the Union. Complaint 45

22 Robertson was not in the restaurant on February 18. (Tr. 361.)
JD(SF)–31–15
19
subparagraphs 9(d) and (f) allege that the Respondent, in April 2014, interrogated an employee
about the union sympathies of other employees, and promised the employee that the Respondent
would no longer retaliate against its employees. Because these allegations stem from the same
conversation, they are discussed together.
5
As detailed in the statement of facts, in early April, Robertson asked Mejia to accompany
him to the boardroom. Robertson told him how much the Union would cost the Company.
Robertson asked why Mejia wanted the Union at the Daily Grill, and Mejia said he wanted
protection from retaliation. Robertson replied that he would stop the retaliation practice, and he
asked Mejia what he could do to keep the Union from coming. Mejia reminded Robertson that 10
he had called for a meeting the following week, the union movement was very strong, and the
Company had cut employees’ hours in response to the Affordable Care Act.
a. Solicitation of Grievances
15
Employer solicitation of employee grievances or complaints during an organizing
campaign may be considered as an implied promise to resolve complaints elicited favorably for
the employees. See Alamo Rent-A-Car, 336 NLRB 1155 (2001). In Majestic Star Casino, LLC,
335 NLRB 407, 407–408 (2001), the Board, quoting Maple Grove Health Care Center, 330
NLRB 775 (2000), stated:20
Absent a previous practice of doing so . . . the solicitation of grievances during an
organizational campaign accompanied by a promise, expressed or implied, to remedy
such grievances violates the Act. . . .[I]t is the promise, expressed or implied, to remedy
the grievances that constitutes the essence of the violation. . . . [T]he solicitation of 25
grievances in the midst of a union campaign inherently constitutes an implied promise to
remedy the grievances. Furthermore, the fact [that] an employer's representative does not
make a commitment to specifically take corrective action does not abrogate the
anticipation of improved conditions expectable for the employees involved. [T]he
inference that an employer is going to remedy the same when it solicits grievances in a 30
preelection setting is [sic] rebuttable one.
An employer with a past practice of soliciting employee grievances may continue to do so during
an organizing campaign as long as the practice remains essentially the same. Longview Fibre
Paper & Packaging, Inc., 356 NLRB No. 108 (2011). 35
The Respondent argues, at some length, that there was no organizing drive. This
argument is wholly unavailing. Management was aware of the employees approaching Kachani.
They knew the Union was involved, as Goytia told White he represented the employees and they
wanted to unionize, and Gehrke identified and shared the video of the incident from the Union’s 40
Facebook page.23 Robertson met with the Company’s attorneys to find out what he could and
could not do, and he met with the employees to explain the unionization process. The Team
Member Conversation Points “regarding the union organizing attempt” underscore that the

23 White did not testify, and I therefore infer he would have corroborated Goytia’s testimony on this
point. Roosevelt Memorial Medical Center, supra.
JD(SF)–31–15
20
Respondent was aware of organizational activity, as do several emails described in statement of
facts above.
There is no history of soliciting employee grievances by having managers approach
employees in the manner Robertson approached Mejia. By Robertson’s question to Mejia 5
regarding what the Company could do to keep the Union from coming in, the Respondent
violated Section 8(a)(1) as alleged. See J & C Towing Co., Inc., 307 NLRB 198, 199, 205
(1992).
In addition, in response Robertson asking why Mejia wanted the Union and Mejia 10
responding that he wanted the Union to be protected from retaliation, Robertson promised to stop
the retaliation. This amounts to a solicitation of grievances and a promise of a remedy, also in
violation of Section 8(a)(1).
b. Interrogation15
The standards for interrogation, set forth above in relation to employee Tello above,
apply here. For the same reasons as above, I find Robertson’s questions to Mejia constituted an
unlawful interrogation. Mejia, in a one-on-one meeting with the Area Manager Robertson, was
asked why he wanted a Union, after Robertson had told him the Union would be costly to the 20
Company. Applying the totality of the circumstances test, and considering the context, I find this
was coercive. See Association of Community Orgs. for Reform Now, 338 NLRB 886 (2003).
The Respondent contends that I should discredit Mejia, contending that he is the only
witness who testified about being asked such questions and he is knowledgeable about union 25
relationships. Robertson, however, did not deny making the comments attributed to him.
Moreover, there was nothing in Mejia’s demeanor when testifying to indicate he was not being
truthful, and his testimony was not otherwise impeached.24
The Respondent further asserts that Mejia was not pressed to answer any questions and 30
was not threatened or coerced. As noted above, I have found the interrogation was coercive
based on the applicable legal standards, which do not require a threat.
E. Alleged Promise/Grant of Benefits
35
1. Meeting in late March or early April
Complaint allegation 9(g) alleges that, in mid-April 2014, the Respondent promised
and/or granted employees the following benefits to discourage their support for the Union: (1)
time-and a-half pay for employees working a holiday; (2) new protocol for employees to more 40
easily request a day off; (3) a bigger employee discount for food at the restaurant; and (4) a
reconsideration of the cutback of employees’ hours. These allegations regarding the meeting
with employees are detailed in the statement of facts.

24 As a current employee testifying against his pecuniary interest, Mejia’s testimony is considered
particularly reliable, as discussed in the credibility section of this decision.
JD(SF)–31–15
21
The Supreme Court, in Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944),
stated that the “action of employees with respect to the choice of their bargaining agents may be
induced by favors bestowed by the employer as well as by his threats or domination.” As the
Court explained in NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964):
5
The danger inherent in well-timed increases in benefits is the suggestion of a fist inside
the velvet glove. Employees are not likely to miss the inference that the source of benefits
now conferred is also the source from which future benefits must flow and which may
dry up if it is not obliged.
10
(Footnote omitted.) It held that “the conferral of employee benefits while a representation
election is pending, for the purpose of inducing employees to vote against the union,” interferes
with the employees' protected right to organize. It is well-settled that the Exchange Parts
principles apply to promises and/or granting of wage increases or other benefits, if they are made
in response to union organizational activity, regardless of whether a representation petition has15
been filed. Network Dynamics, 351 NLRB 1423, 1424 (2007); Hampton Inn NY-JFK Airport,
348 NLRB 16, 17 (2006).
Unlike most 8(a)(1) allegations, analysis of a claim that benefits were promised,
announced, or granted to coerce employees in their choice of bargaining representative is 20
motive-based. Network Dynamics Cabling, Inc., 351 NLRB 1423, 1424 (2007). The granting of
benefits to employees during union organizational activity “is not per se unlawful” where the
employer can show that its actions were governed by other factors. American Sunroof Corp.,
248 NLRB 748, 748 (1980), modified on other grounds 667 F.2d 20 (6th Cir. 1981).
25
To establish such a claim, the General Counsel must first prove, by a preponderance of
the evidence, “that employees would reasonably view the grant of benefits as an attempt to
interfere with or coerce them in their choice on union representation.” Southgate Village Inc.,
319 NLRB 916 (1995). If the General Counsel meets this burden, the employer must
demonstrate a legitimate business reason for the timing of the benefit. One way to do this is to 30
show the benefit was “part of an already established Company policy and the employer did not
deviate from the policy upon the advent of the union.” American Sunroof, supra; see also Real
Foods Co., 350 NLRB 309, 310 (2007); Holly Farms Corp., 311 NLRB 273, 274 (1993), enfd.
48 F.3d 1362 (4th Cir. 1995), affd. 517 U.S. 392 (1996); Jewish Home for the Elderly of
Fairfield County, 343 NLRB 1069, 1087–1090 (2004).35
I find the employees would reasonably view the grant of benefits as an attempt to
discourage support for the Union. The employee meetings occurred in the wake of and
admittedly in response to the February 18 presentation to Kachini and shortly after employees
wore buttons in support of the Union. The meeting occurred after one-on-one meetings with 40
employees to determine why they were unhappy, and, as discussed below, addressed some of the
grievances the employees aired. Under these circumstances, I find employees would reasonably
view the grant of benefits as an attempt to discourage support for the Union.
With regard to the change in how time off was requested, Robertson stated that this was 45
implemented because the manner of scheduling time off was one of the top complaints he heard
during his meetings with employees, and it was merely a reversion to how time off was
JD(SF)–31–15
22
requested back when he was general manager. These meetings, however, occurred in response
to employees’ union activity. Robertson admitted that the meetings were in part to determine if
employees understood the unionization process. In addition, White suggested speaking to all of
the employees to get a sense of how many were involved in the “movement.” Because the
meetings occurred in response to union activity, and the change to the manner in which time off 5
was requested occurred as a result of the meetings, there is no legitimate explanation for the
timing of this change.
With regard to restoration of hours, cutting back employees’ hours was raised as a
complaint during the employees’ presentation to Kachani on February 18. The Respondent 10
explains the timing by asserting that the decision to let employees return to 8-hour shifts was tied
to the Affordable Care Act. Specifically, the Respondent contends that it had implemented a
policy of permitting employees to work no more than 30 hours per week, in response to the
ACA. Robertson said employees were not happy with this, so the Company decided in 2013 to
end this practice. (Tr. 374.) There is no evidence, however, that this was communicated to the 15
employees at the time, and it is clear from employees’ statements to Kachani on February 18,
that the cutbacks to employees’ hours had not yet been restored. During the all-employee
meetings, Robertson said he and Burnett planned to sit down with the employees and discuss
their preferences regarding days, hours, and shifts. The fact that the Respondent found it
necessary to inform employees of this if it had ostensibly occurred more than a year prior is 20
curious. If the decision had been made in 2013, the timing of both communicating the benefit to
employees and implementing it does not make sense.
The changes to holiday pay and the employee discount for food at the Respondent’s
restaurants were company-wide. With regard to holiday pay, this change impacts only the 25
restaurants in hotels, as the other restaurants are not open on the days when employees would
receive time-and-a-half pay. Both changes were announced in Grill Concepts’ management
newsletter on April 4, 2014. (R Exh. 2, p. 9.) Standing alone, I would not find that
announcement of these two benefits coercive. I find, however, the timing of the meetings,
coupled with the other promises that I have found were intended to discourage support for the 30
Union, establishes the General Counsel’s burden.25
The Respondent relies on the employee surveys to justify the timing of the benefits,
contending that the Company had been attempting to improve employee morale before any union
activity occurred. This does not square, however, with Robertson’s apparently newly discovered 35
concern that the employees at the Century Daily Grill were unhappy based on the events of
February 18, prompting him to conduct one-on-one meetings with every employee. These
meetings would have been superfluous had the surveys already formed the source of the
Company’s response.
40
The Respondent further contends there is no evidence that the Union has organized stand-
alone restaurants. This is of no moment. The Respondent’s actions are evaluated in the same
manner whether or not the Union has organized stand-alone restaurants in the past.

25 As noted above, it is unclear whether the all-employee meetings were in March or April but either
way the timing leads me to the same conclusion.
JD(SF)–31–15
23
Based on the foregoing, I find the General Counsel established complaint allegation 9(g).
2. Meeting on July 9
Complaint paragraph 10 alleges that the Respondent, in a meeting Spivak conducted on 5
July 9, 2014, announced to employees that they could to sign up for a health care plan and
distributed $100 gift cards to discourage support for the Union.
The legal framework set forth above for the March/April meetings applies here. For the
same reasons, I find the General Counsel has established that employees would reasonably view 10
the grant of benefits as coercive.
With regard to the health benefits, the Respondent asserts that changes to the health plan
were made in accordance with the ACA, and that the Century Daily Grill was used as a test case
to see how many employees would enroll. The ACA’s employer mandate, which requires 15
employers with more than 50 employees to provide healthcare coverage to their employees, was
initially to take effect in 2014. On July 2, 2013, the Treasury Department announced the
employer mandate would not take effect until 2015.26 Email exchanges about implementation at
the Century Daily Grill started in early June 2014. Give the Respondent’s rationale for using the
Century Daily Grill as a test case, it is curious a similar test case implementation plan was not 20
discussed and documented in or around June of 2013, prior to the time the Respondent (or
anyone) knew there would be a 1-year delay. The fact that there were no emails produced
discussing the topic prior to June 2014, is telling.
The Respondent’s asserted reason for the unique choice of the Century Daily Grill as the 25
venue to test the healthcare benefit likewise does not withstand scrutiny. The Respondent
contends that it chose the Century Daily Grill because it the Airport Hospitality Enhancement
Zone Ordinance served to alleviate concerns under ERISA. Specifically, the Respondent
contends that because the hourly employees at the Century Daily Grill were paid more under the
Ordinance, offering this benefit only to them insulated them from a discrimination complaint 30
under ERISA.
During the hearing, I instructed the Respondent to identify what provisions of ERISA it
relied upon and to make those provisions part of the record. (Tr. 423.) Nonetheless, the
Respondent did not, at the hearing or in closing brief, identify what provisions of ERISA the 35
Company was relying upon or how the Ordinance would exempt the Century location from
ERISA’s discrimination provisions.
The only type discrimination tying the provision of healthcare benefits to wages is, by no
coincidence, the same type of discrimination Gehrke discussed with Hoskins, the Respondent’s 40
healthcare broker.27 Specifically, 26 USC § 105(h), prohibits an employer from offering a self-

26 See http://www.treasury.gov/connect/blog/Pages/Continuing-to-Implement-the-ACA-in-a-Careful-
Thoughtful-Manner-.aspx. I take judicial notice of these dates, which are not subject to reasonable
dispute. Federal Rule of Evidence 201.
27 Under Section 501 of ERISA, it is unlawful for “any person to discharge, fine, suspend, expel,
discipline, or discriminate against a participant or beneficiary for exercising any right to which he is
entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the
JD(SF)–31–15
24
insured medical reimbursement plan in a manner that discriminates in favor of highly
compensated employees. This prohibition was explained to Gehrke in an email. The
Respondent has pointed to nothing that would justify its choice of the Century Daily Grill as a
test case based on ERISA discrimination concerns, and it simply makes no sense.28 Importantly,
it is clear from the email exchanges between Gehrke and Hoskins that the Century Daily Grill 5
was chosen as the implementation site prior to the request for advice regarding discrimination.
The Respondent contends that health benefits were offered when the union activity was a
“somewhat distant memory,” asserting that the indication employees were interested in
unionizing was on March 30. (R Br. 24.) The employees were told on July 9 about the benefits, 10
which had been in the works since at least early June. On April 13 Burnett forwarded Robertson
and Robertson forwarded to Gehrke an email about union activity. On April 18, Burnett
informed higher management of employees with Unite Here T-shirts coming marching in the
restaurant. On May 2, Kastel had sent an email to a few top management officials about Azad
passing out flyers. Any timing argument does not withstand even minimal scrutiny. 15
Based on the foregoing, I find the granting of healthcare benefits violated Section 8(a)(1)
as alleged.
With regard to the gift cards, I find the Respondent has met its burden to establish a 20
legitimate reason for the timing of this benefit. The gift cards were presented as an apology from
Spivak for the delay in paying the back wages employees were owed.29 This is a legitimate
explanation and, as the Respondent notes, the Company regularly gives gift cards. Though they
are not routinely handed out at all-employee meetings, the context here makes sense—the
Respondent was providing compensation to apologize for having shorted the hourly employees’ 25
compensation. Accordingly, I recommend dismissal of this complaint allegation.
F. The Rules
As detailed below, the complaint alleges that various employer rules violate Section30
8(a)(1) of the Act. The General Counsel has the burden to prove that a rule or policy violates the
Act. In determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is
whether the rule would reasonably tend to chill employees in the exercise of their Section 7
rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999);
Hills & Dales General Hospital, supra, slip op. at 5.35

attainment of any right to which such participant may become entitled under the plan.” This provision
has nothing to do with discrimination in providing healthcare plans to employees. It is also unlawful to
discriminate on the basis of health status. 29 U.S.C. §§ 1140, 1182.
28 The only concern about discrimination mentioned in the email exchange between Gehrke and
Hoskins involved moving the overall plan to a self-insured contract. There is nothing whatsoever tying
the Ordinance to the discrimination provisions. (R Exh. 3.)
29 There is no allegation that the granting of the gift cards was in response to the protected activity of
the class action lawsuit employees filed. The General Counsel in fact objected to questions about the
lawsuit on relevance grounds.
JD(SF)–31–15
25
Under the test enunciated in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004),
if the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, “the violation is
dependent upon a showing of one of the following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in response to union or
other protected activity; or (3) the rule has been applied to restrict the exercise of Section 7 5
rights.” Id. at 647. A rule does not violate the Act if a reasonable employee merely could
conceivably read it as barring Section 7 activity. Rather, the inquiry is whether a reasonable
employee would read the rule as prohibiting Section 7 activity. Id. The question of whether a
rule or policy is on its face a violation of the Act requires a balancing between an employer's
right to implement certain legitimate rules of conduct in order to maintain a level of productivity 10
and discipline at work, with the right of employees to engage in Section 7 activity. Firestone Tire
& Rubber, 238 NLRB 1323, 1324 (1978).
The Board must give the rule under consideration a reasonable reading and ambiguities
are construed against its promulgator. Lutheran Heritage, supra at 647; Lafayette Park Hotel, 15
supra at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–470 (D.C. Cir. 2007). Moreover, the
Board must “refrain from reading particular phrases in isolation, and it must not presume
improper interference with employee rights.” Lutheran Heritage, supra at 646.
1. Team Member Relations/Positive Culture 20
Paragraph 6(a) of the complaint alleges that the Respondent’s “Team Member
Relations/Positive Culture” rule violates the Act. The rule states, in relevant part:
Grill Concepts, Inc. believes that the working conditions, wages, and benefits offered to 25
Team Members are competitive with those offered by other employers in this area and in
this industry. If Team Members have concerns about working conditions, wages or
benefits, they are encourage[d] to voice these concerns openly, respectfully and directly
to their General Managers or if necessary, the Regional/Area Director or with the People
Department. 30
When Team Members deal openly, respectfully and directly with managers, the work
environment will be more enjoyable, communication will be clearer, and attitudes can be
positive. We believe that Grill Concepts, Inc. strives to demonstrate its commitment to
Team members by responding effectively to their concerns and creating an atmosphere of 35
fun and excitement through teamwork.
We aim to strive for a culture in the restaurant that is “people friendly.” All our managers
know the importance of treating all Team members and peers like the professional adults
that you are.40
In this regard, everyone is to be treated with courtesy and respect at all times, under all
situations. Yelling, threatening, meanness, sarcasm, intolerance, impatience, belittling
and any other form of harassment is not tolerated at any time by the management staff or
by hourly Team Members.45
JD(SF)–31–15
26
We need YOU, the Team Member to keep this culture alive and well. No one is perfect.
We are a busy restaurant and sometimes we feel under pressure to satisfy all our Guests.
We would NEVER lose our temper with a guest and we will not take our anger out on
each other either.
5
(GC Exh. 2, p.12.)
The General Counsel and the Charging Party argue the requirement to maintain a positive
culture expressly restricts Section 7 activity. They assert that the first paragraph specifically
addresses the protected activity of discussing working conditions, wages, and benefits with 10
management, and the subsequent paragraphs broaden into a general admonition in favor of
positive dealings. As such, they contend that this juxtaposition is an explicit restriction on
Section 7 rights because employees must express their concerns about working conditions
without yelling, sarcasm, intolerance, impatience, and other negative conduct.
15
The Respondent asserts that the rule does not expressly restrict Section 7 activity nor
would it reasonably be construed to do so, it was not promulgated in response to Section 7
activity, and it has not been applied to restrict Section activity.
I find the rule does not expressly restrict Section 7 activity. I find, however, that 20
employees would construe the requirement to voice concerns about wages, hours, and working
conditions to management “respectfully” as a restriction on their Section 7 rights under current
Board law. Though the language in the first paragraph is phrased in terms of encouraging rather
than requiring employees to voice their concerns to management in a respectful manner, the
subsequent paragraphs are phrased in terms of a requirement. In Casino San Pablo, 361 NLRB 25
No. 148, slip op. at 3 (2014), the Board majority stated, when discussing the phrase
“insubordination or other disrespectful conduct”:
In the typical workplace, where traditional managerial prerogatives and supervisory
hierarchies are maintained, employees would reasonably understand this phrase as 30
encompassing any form of Section 7 activity that might be deemed insufficiently
deferential to a person in authority--in other words, as referring to something less than
actual insubordination. For example, the act of concertedly objecting to working
conditions imposed by a supervisor, collectively complaining about a supervisor's
arbitrary conduct, or jointly challenging an unlawful pay scheme-- all core Section 7 35
activities--would reasonably be viewed by employees as ““disrespectful” in and of
themselves, regardless of their manner and means, and thus as violating the rule.
See also First Transit, Inc., 360 NLRB No. 72, slip op. at 2-3 (2014); 2 Sisters Food Group, 357
NLRB No. 168, slip op. at 2 (2011); Claremont Resort & Spa, 344 NLRB 832 (2005). I find, 40
therefore, the portion of the rule requiring employees to voice concerns about wages and other
working conditions “respectfully” is overly broad under extant caselaw.
Moreover, there is no exception carved out for Section 7 activity with regard to the
requirement to refrain from the conduct set forth in the fourth paragraph of the rule, whether that 45
conduct is directed at management or is among coworkers. The Supreme Court has noted that
protected concerted speech may include “intemperate, abusive and inaccurate statements.” Linn
JD(SF)–31–15
27
v. United Plant Guards, 383 U.S. 53 (1966). The Board has distinguished between prohibitions
that would not generally implicate Section 7 protections, and those that would not. See Palms
Hotel & Casino 344 NLRB 1363, 1367-1368 (2005). When read in context, the proscription on
“threatening, meanness, sarcasm, intolerance, . . . belittling and any other form of harassment”
in the instant rule falls into the former category and is not problematic. It is clear the provision’s 5
intent is to foster mutual respect among coworkers. On the other hand, “yelling” and
“impatience” commonly arise in a multitude of protected activities. A ban on these behaviors,
without limiting language, is overly broad. Employers can require employees to be respectful
and professional to each other and to customers, but any such rule must make clear it does not
encompass Section 7 activity. No such clarification is present in the instant rule. 10
The Respondent cites to Fiesta Hotel Corporation, 344 NLRB 1363, 1367 (2005), which
involved a rule forbidding employees from engaging in “any type of conduct, which is or has the
effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with fellow
Team Members or patrons.” The Board, however, has distinguished between rules prohibiting 15
protected concerted criticism of the employer and rules requiring employees to be respectful and
professional to coworkers or customers.30 The rule in Fiesta Hotel does not regulate conduct
toward the employer, and is therefore distinguishable.
The Respondent also points to Copper River of Boiling Springs, 360 NLRB No. 60 20
(2014). Much of the discussion in Copper River, including the portions on which the Respondent
relies, concerned rules regarding behavior toward coworkers and guests. As discussed below, I
do not find certain aspects of the instant rule to be overly broad in terms of treatment of guests
and coworkers during the course of serving the Restaurant’s patrons. The rule in Copper River
regarding conduct toward management prohibited “[i]nsubordination to a manager or lack of 25
respect and cooperation with fellow employees or guests.” Id at fn. 2. The only proscribed
conduct toward management in that rule was insubordination. In Casino San Pablo, slip op. at 4,
the Board distinguished rules prohibiting insubordinate conduct toward management from rules
prohibiting what would reasonably be construed as conduct broader than insubordination,
including proscriptions on “disrespectful” conduct. The rule in the instant case is not limited to 30
insubordination toward management. As such, Copper River is also distinguishable.31
To the extent the General Counsel and the Charging Party assert that the language in the
final paragraph regarding maintenance of a positive culture and not losing one’s temper or taking
anger out on coworkers or guests is overly broad, I find that it is not. The final paragraph, unlike 35
the preceding ones, clearly refers to the treatment of guests and coworkers during the course of
serving the Respondent’s patrons. No reasonable reading of this paragraph, even when
considered with the other parts of the rule, is a restriction on Section 7 protected activity.32
Based on the foregoing, I find the General Counsel has met its burden to prove the Team 40
Member Relations/Positive Culture rule violates Section 8(a)(1).

30 General Counsel Memorandum 15–04 (March 28, 2015) discusses this distinction in the Board’s
caselaw.
31 The Respondent also cites to some ALJ decisions which are not precedential and not as directly on
point as the Board caselaw upon which I have relied.
32 The Respondent may not lawfully interpret this part of the rule to prohibit protected activity, and
there is no evidence it has done so.
JD(SF)–31–15
28
2. The Timekeeping rule
Paragraph 6(b) of the complaint alleges that the Respondent’s timekeeping rule violates
Section 8(a)(1). The rule states:5
Accurate recording of time worked is the responsibility of every non-exempt Team
Member. Grill Concepts, Inc. is required by law to keep accurate records of time worked.
Time worked is the time actually spent on the job performing assigned duties. You are
NOT permitted to work while not punched in.10
Non-exempt Team Members are required to record accurately the time they begin and
end their work, as well as the beginning and ending time of each meal period (in those
states that require such.) They also must record the beginning and ending time of any
split shift or departure from work for personal reasons. Overtime work always must be 15
approved in advance by the manager.
Please DO NOT loiter on restaurant property when not working. While off the clock and
waiting to punch in, Team Members should not be in the restaurant earlier than 15
minutes prior to their scheduled starting time nor should they remain more than 15 20
minutes after they clock out.
If an adjustment to the time record in Aloha or MenuLink is needed due to a Team
Member neglecting to clock-in or clock-out properly, etc., the adjustment must be made
by a Manager and ONLY with the signed consent of the affected Team Member. Hourly 25
Managers or other Hourly Team Members will not change their own time under any
circumstance.
Altering, falsifying or tampering with time records, or recording time on another Team
Member's time record or having someone else record your time is strictly prohibited. 30
Violation of these timekeeping rules is a serious policy violation and will result in
disciplinary action, up to and including termination.
(GC Exh. 2, p. 17, emphasis in original.)
35
The General Counsel and the Charging Party argue that the provisions in the third
paragraph not to loiter on the restaurant property when not working and to avoid being in the
restaurant more than 15 minutes before punching in and after punching out violate Section
8(a)(1).
40
Employers may maintain rules and policies tailored to legitimate business concerns, but
may not “maintain overbroad no-loitering rules that reasonably tend to chill the exercise of
Section 7 rights.” Tecumseh Packaging Solutions, Inc., 352 NLRB 694 (2008). In Lutheran
Heritage Village-Livonia, the Board found that a rule prohibiting “[l]oitering on company
property (the premises) without permission from the Administrator” violated Section 8(a)(1) of 45
the Act because it would reasonably chill employees in the exercise of their Section 7 rights. Id.
at 655. In so finding, the Board explained that employees reasonably would interpret the rule “to
JD(SF)–31–15
29
prohibit them from lingering on the [r]espondent's premises after the end of a shift in order to
engage in Sec[tion] 7 activities, such as the discussion of workplace concerns.” Id. at 649 fn. 16.
I find this reasoning applies to the instant case, and the rule would likewise be reasonably
interpreted as prohibiting employees from gathering before and after their shifts to engage in
Section 7 activities.5
The Respondent contends it is clear that the rule’s purpose is to ensure accurate
timekeeping and prevent employees from working off the clock. (R Exh. 2, p. 6.) This
contention is undermined, however, by the fact that accurate timekeeping and avoiding off the
clock work are addressed in the first paragraph. The third paragraph is superfluous if it is meant 10
to convey nothing different. Moreover, the admonition not to loiter makes clear this provision’s
scope is broader.
The Respondent further argues that, when read the Company’s policies regarding
employee meals, employees would reasonably construe that they should not come in early or 15
stay late in order to avoid working off the clock, but they may come to the property any other
time. The policy with regard to team member meal discounts for hourly non-exempt employee’s
however, appears to apply to team members who are working a scheduled shift at their own
restaurant, and to employees “visiting other restaurants” when not working. (GC Exh. 2, p. 39.)
In any event, the plain language of the provision, even in context, is reasonably read as a 20
restriction on employees meeting together on the restaurant property before or after their shifts,
in both work and non-work areas, to engage in protected activity.
Finally, the Respondent argues that the Board’s test in Tri-County Medical Center, 222
NLRB 1089 (1976), does not apply because the rule at issue does not ban all access. Even 25
assuming it did, the Respondent argues the rule is lawful. In Tri-County Medical Center, the
Board held that an employer's rule barring off-duty employees access to their employer's facility
is valid only if it: (1) limits access solely to the interior of the facility, (2) is clearly disseminated
to the employees, and (3) applies to off-duty access for all purposes, not just for union activity.
Here, the rule, embodied in the handbook, was disseminated to all employees and applies to off-30
duty access during the 15 minutes before and after work for any purpose. The rule does not limit
access solely to the interior of the facility. The Respondent argues, however, that the employees
know the Westin owns the property and the Company leases only the restaurant space. The term
“restaurant property” is not defined in the handbook and the rule is not limited to interior
working areas. Considering that ambiguities must be construed against the rule’s drafter, in this 35
case the Respondent, I find that even if the rule is evaluated under Tri-County Medical Center, it
violates Section 8(a)(1). See Lafayette Park Hotel, supra at 828; Murphy Oil, supra, slip op. at
26.
3. Code of Ethics: Relationships with Outside Parties40
Paragraph 6(c) of the complaint alleges the Respondent’s “Code of Ethics: Relationships
with Outside Parties” rule violates the Act. The rule states, in relevant part:
Federal, state and local government departments and agencies have regulations 45
concerning acceptance by their employees of entertainment, meals and gifts from firms
and personnel with whom the departments and agencies do business or over whom they
JD(SF)–31–15
30
have regulatory authority. You may not give any entertainment, meals or gifts to such
government employees or union officials unless they are of minimal value and are clearly
appropriate under the given circumstances. If you question what is deemed an appropriate
circumstance or what is a minimal value please seek advice from a supervisor. You may
entertain socially any relatives of friends employed by or representing government 5
agencies or trade unions. However, it should be clear, that the entertainment is not related
to the business or union affairs of GCI. No expenditure for such social entertainment is
reimbursable by GCI to a Team Member.
(GC Exh. 2, p. 21.)10
The General Counsel and the Charging Party contend that this rule on its face prohibits
Section 7 activity of employees discussing union matters when entertaining union officials. I
agree.
15
The Respondent contends that the plain meaning of the language makes it clear the rule
addresses Section 302 of the Labor Management Relations Act (LMRA). Perhaps it is clear to
one trained in labor law, but the rule nowhere mentions the LMRA or how the rule purports to
comply with it. From the employees’ perspective, no such clarity is apparent. Nor could it be,
given the patent disconnect between the non-referenced LMRA and the rule. The Respondent 20
contends that the rule merely restricts conduct proscribed by the LMRA, 29 USC § 186, which
prohibits employers from paying, lending, or delivering money or gifts to labor unions and their
representatives. That provision of the LMRA, however, applies to an “employer or association
of employers or any person who acts as a labor relations expert, adviser, or consultant to an
employer. . . .” Id. The instant rule restricts the actions of employees. The rationale therefore 25
does not comport with the rule’s plain language. There is not “one potential interpretation” that
infringes on employee rights, as the Respondent contends. It is instead an express prohibition,
and I find the General Counsel has proved this allegation.
4. Team Member Conduct While Representing the Restaurant30
Paragraph 6(d) of the complaint alleges the Respondent’s “Team Member Conduct While
Representing the Restaurant” rule violate Section 8(a)(1). The pertinent part of the rule states:
Team Members must refrain from any negative behaviors (as listed in this manual) off 35
the property while representing the Restaurant. The Restaurant reserves the right to
counsel any Team Member who jeopardizes the welfare and/or reputation of the
Restaurant up to and including termination of employment.
Representing the company includes: All behaviors while wearing Grill Concepts, Inc. 40
uniform, or any other insignia or logo apparel that represents Grill Concepts, Inc. or any
of its affiliates. Driving of company vehicles or running errands for Grill Concepts, Inc.
business; Usage of business cards with any Grill Concepts, Inc. logo or other Grill
Concepts, Inc. materials, letterhead, envelopes, etc.; Representation or recognition on a
public online social media website; Sales activities, social events in which you are 45
recognized as an official Grill Concepts, Inc. Team Member or other events in which
identity as a Grill Concepts, Inc. Team Member is recognized or assumed.
JD(SF)–31–15
31
(GC Exh. 2, p. 26.)
The General Counsel and the Charging Party argue that the rule is overly broad for a
couple of reasons. First, the rule threatens discharge of employees who jeopardize the welfare 5
and/or reputation of the restaurant. Both parties cite to Costco Wholesale Corp., 358 NLRB No.
106, slip op. at 1–2 (2012), where the Board found a policy prohibiting employees from making
statements “that damage the Company, defame any individual or damage a person's reputation”
to be unlawful because the rule had no “accompanying language that would tend to restrict its
application” to legitimate business concerns. This decision was subsequently invalidated by the 10
Supreme Court’s decision in NLRB v. Noel Canning, a Division of the Noel Corp., 134 S.Ct.
2550 (2014), and I do not rely on it to support my findings. The same holds true for Karl Knauz
Motors, Inc., 358 NLRB No. 104 (2012).33
The Respondent contends that this provision is similar to the rules Flamingo Hilton-15
Laughlin, 330 NLRB 287 (1999), and Lafayette Park Hotel, supra, which the Board found
lawful. The rule Flamingo Hilton-Laughlin prohibited “off-duty misconduct that materially and
adversely affects job performance or tends to bring discredit to the Hotel.” Id. at 288. The rule
in Lafayette Park Hotel prohibited “[u]nlawful or improper conduct off the hotel's premises or
during non-working hours which affects the employee's relationship with the job, fellow 20
employees, supervisors, or the hotel's reputation or good will in the community.” The Board, in
both cases, found that no reasonable reading of these provisions suggested they were aimed at
curtailing protected activity. I agree with the Respondent that, under current valid Board
caselaw, the rule’s provision admonishing any Team Member who jeopardizes the welfare
and/or reputation of the Restaurant, standing alone, does not violate the Act. 25
This does not end the inquiry, however. The rule prohibits “any negative behaviors”
while representing the restaurant. The Board has found that rules prohibiting “negative” speech
and behavior are unlawful. For example, in Roomstore, 357 NLRB No. 143, slip op. at 1 fn. 3
(2011), the Board found a rule prohibiting “any type of ‘negative energy or attitudes” to be30
unlawful. In Hills & Dales General Hospital, supra, the Board found a rule prohibiting
“negative comments about fellow team members,” “engag[ing] in or listen[ing] to negativity, and
requiring employees to “represent [the Respondent] in the community in a positive and
professional manner” was overly broad. On the other hand, the Board has found rules to be
lawful when the conduct they aim to prohibit clearly falls outside the Act’s protection, such as 35
conduct that is abusive, injurious, threatening, intimidating, coercing, and/or profane. See, e.g.
Lutheran Heritage, supra; Palms Hotel and Casino, supra. Here, the term “negative behaviors”
is broad and vague, and easily interpreted to include protected concerted activities protesting
working conditions. As the Charging Party and General Counsel point out, the rule would
reasonably be interpreted to apply to attendance at a union event when the employee identifies 40
himself or herself as an employee and complains about working conditions.

33 The General Counsel also references Dish Network Corp., 359 NLRB No. 108, which cites to Karl
Knauz. No exceptions to the ALJ’s finding in Dish Network that the rule violated the Act were filed,
however.
JD(SF)–31–15
32
Moreover, the instant prohibition on “negative behaviors” is expressly broadened in a
manner that could not have been contemplated by the Board in 1998 and 1999, when Flamingo
Hilton-Laughlin and Lafayette Park Hotel were decided. Specifically, the prohibition includes
“[r]epresentation or recognition on a public online social media website.” Thus, an employee
who is merely recognized as working for the Company on a public online social media website 5
and makes disparaging comments protected by Section 7 is covered by this rule. Clearly, such
comments would fall within the vague definition of negative behavior. See Triple Play Sports
Bar & Grille, 361 NLRB No. 31, slip op. at 7 (2014).
The Respondent claims that the handbook outlines the negative behaviors are prohibited 10
while on the property and includes behaviors that are not protected under Section 7. Though the
provision at issue states, in parentheses, that the negative behaviors are listed in the manual, the
rule does not contain or provide reference to such a list. This distinguishes the instant rule from
a rule providing specific examples of the sort of behavior it purports to prohibit. See, e.g.,
Tradesmen International, 338 NLRB 460, 462-463 (2002).15
5. Progressive Discipline: Gross Misconduct
Complaint paragraph 6(e) alleges that the Respondent’s “Progressive Discipline: Gross
Misconduct” rule violates Section 8(a)(1). The part of the rule at issue states:20
A Team Member may be terminated for cause without prior warning for committing any
conduct issues as listed as Gross Misconduct. Gross Misconduct issues include:
intentionally punching another Team Member's time record, or having another Team
Member punch a time record; falsifying any records or negotiable (including time 25
records, expense reports, or Team Member purchases); failure to participate in or
intentional falsification of a statement during a formal company investigation; deliberate
falsification of company hiring documents; proven or admitted theft of company
property, another Team Members property, or unauthorized removal of company
property; possession, sale or consumption of alcohol (sale of alcohol that is not part of 30
our business or in violation of law), illegal drugs, or prescription drugs that impact work
performance; possession of weapons or firearms on company premises (does not apply to
locked vehicles in TX and OK); intentionally and/or illegally intimidating or harassing
(sexual or any other nature) Team Members, supervisors, or Guests; fighting, or
attempting to provoke a fight on company premises or on company time; malicious or 35
careless actions resulting in injury to individuals or the destruction or loss of company
property or another Team Members personal property; physical assault of a supervisor or
Team Member; leaving the restaurant without notifying a member of the management
team; absence from work without properly notifying management for 2 or more days
within a rolling 12 month period (no call, no show); unauthorized disclosure of 40
confidential or privileged information concerning company or Team Members;
unauthorized markdowns (or failure to charge properly), intentional unauthorized
manipulation of the POS or any other company owned or managed computer system, or
use of a supervisors password without authorization. This is not a complete list of
infractions or is it intended to outline all infractions that may result in disciplinary action, 45
up to and including termination.
JD(SF)–31–15
33
(GC Exh. 2, p. 31.)
The General Counsel and the Charging Party assert that the provision regarding
participation in investigations and the confidentiality provisions in this rule are overly broad.
5
Turning first to the confidentiality provision, in addition to the current rule, the employee
handbook defines confidential information to include “all non-public information that might be
of use to competitors or may be harmful to our guests. It also includes information that suppliers
and guests have entrusted to you.” (GC Exh. 2, p. 22.) It further defines confidential information
as including “guests/visitors/patrons names; guest/vendor activities in the Restaurant; Team 10
Member/Manager activities; Financial information regarding the Restaurant; Recipes.” (GC
Exh. 2, p. 28.) In addition, the handbook acknowledgment form states:
I am aware that during the course of my employment confidential information will be
made to me, i.e. Guest lists, pricing policies, recipes, and other related information. I 15
understand that this information is critical to the success of Grill Concepts, Inc. and must
not be disseminated or used outside of Grill Concepts premises. In the event of
termination of employment, whether voluntary or involuntary, I hereby agree not to
utilize or exploit this information with any other individual or company.
20
(GC Exh. 2, p. 76.)
The rule itself prohibits unauthorized disclosure of confidential or privileged information
concerning coworkers. Because there is no provision exempting discussions about wages, hours
and other working conditions, I find the rule is overly broad. See U.S. DirecTV Holdings, LLC, 25
359 NLRB No. 54, slip op. at 3 (2013). The rule does not explicitly reference wage or salary
information. The provision, however, still prohibits employees from disclosing confidential
information about other employees and is therefore overly broad. See Flamingo Hilton-
Laughlin, supra, at 291–292.
30
The Respondent points to Mediaone of Greater Florida, Inc., 340 NLRB 277 (2003), to
assert that a reasonable reading of the rule here does not prohibit Section 7 activity. The rule in
Mediaone stated:
Proprietary Information35
You're responsible for the appropriate use and protection of company and third party
proprietary information, including information assets and intellectual property.
Information is any form (printed, electronic or inherent knowledge) of company or third
party proprietary information. Intellectual property includes, but is not limited to:40
• business plans
• technological research and development
• product documentation, marketing plans and pricing information
• copyrighted works such as music, written documents (magazines, trade journals,
newspapers, etc.), audiovisual productions, brand names and the legal rights to 45
protect such property (for example, patents, trademarks, copyrights)
JD(SF)–31–15
34
• trade secrets and non-public information
• customer and employee information, including organizational charts and
databases
• financial information
• patents, copyrights, trademarks, service marks, trade names and goodwill.5
While it's not improper for you to use proprietary information in the general course of
doing business, you must safeguard it against loss, damage, misuse, theft, fraud, sale,
disclosure or improper disposal. Always store proprietary information in a safe place.
10
You may not use or access the proprietary information of the company or others for
personal purposes or disclose non-public information outside the company. Doing so
could hurt the company, competitively or financially….
(Bold and italics in original.) The context in Mediaone was obviously much more specific than 15
the many types of “gross misconduct” the instant rule outlines.
The Respondent also cites to Lafayette Park Hotel, supra, where a majority of the Board
upheld a standard of conduct prohibiting employees from “[d]ivulging Hotel-private information
to employees or other individuals or entities that are not authorized to receive that information.” 20
The term “Hotel private” was not defined in the rule, but the Board found it would not be
reasonably read to include employee wage discussions. Here, unlike in Lafayette Park Hotel, the
rule prohibits “unauthorized disclosure of confidential or privileged information concerning
company or Team Members.” (emphasis added). Because of this, the substance of the rule
implicates information about employee wages and other working conditions in a manner that the 25
rule in Lafayette Park Hotel did not. The same distinction holds true for K-Mart, 330 NLRB 263
(1999), where the rule prohibited disclosure of “company and business documents.”34
With regard to the provision about investigations, the Charging Party asserts that an
employer “may not require an employee to participate in a formal company investigation into 30
allegations against it, including unfair labor practice charge allegations.”35 (CP Br. 26.) The
Charging Party points to Beverly Health & Rehab. Servs., Inc., 332 NLRB 347, 356 (2000),
where the Board found a rule compelling employees to cooperate, at the risk of discipline, in the
investigation of “any … violation of … laws, or government regulations” clearly applied to
unfair labor practice charges. The current rule provides that a “Team Member may be 35
terminated for cause without prior warning for” . . . failure to participate in . . . a formal company
investigation.” The plain language of the rule requires cooperation in company investigations,
without limitation. This includes investigations related to Board charges and employees’ union

34 The Respondent also cites to Community Hospitals of Central California v. N.L.R.B, 335 F.3d 1079
(D.C. Cir. 2003), which denied enforcement to the Board’s order relating to, inter alia, a confidentiality
provision. I note that I am bound to follow the Board unless the Supreme Court dictates otherwise.
Manor West, Inc., 311 NLRB 655, 667 fn. 43 (1993); see also Waco, Inc., 273 NLRB 746, 749 n.14
(1984) (“We emphasize that it is a judge’s duty to apply established Board precedent which the Supreme
Court has not reversed. It is for the Board, not the judge, to determine whether precedent should be
varied.”).
35 The General Counsel highlights this provision when setting forth the rule, but does not provide
argument regarding investigations. (GC Br. 44–45.)
JD(SF)–31–15
35
sympathies, and the rule does not include any safeguards required by Johnnie's Poultry Co., 146
NLRB 770 (1964).
The Respondent argues that the rule should not be read to presume that the Respondent
will violate the law. This position does not square with Board caselaw that the mere 5
maintenance of an overly broad rule under Lutheran Heritage, regardless of whether it is
enforced in a manner that violates the Act, is unlawful. Beverly Health & Rehab. Servs., supra.
There is no presumption either way. The rule, as reasonably read, includes investigation into
Board charges and union sympathies. As it does not contain safeguards or limiting language, it
violates Section 8(a)(1). 10
6. Use of Your Likeness
Paragraph 6(f) of the complaint alleges the Respondent’s “Use of Your Likeness (Name,
Voice, Photo)” rule violates the Act. The rule states:15
At times, the company may use your likeness for the purpose of training and
development, Team Member programs, company recruiting materials, etc. Your
continued employment is consent for us to use your likeness for these purposes. If we use
your likeness in our marketing or advertising programs we will ask you for additional 20
consent.
(GC Exh. 2, p. 35.)
The General Counsel and the Charging Party, citing to citing to Armstrong Machine Co., 25
Inc., 343 NLRB 1149, 1172 (2004), and In Re Allegheny Ludlum Corp., 333 NLRB 734 (2001),
argue that this rule violates Section 8(a)(1) because an employer may not use an employee’s
image or likeness in an antiunion campaign without the employee’s voluntary consent.
The Respondent asserts that the purposes for which it may use an employee’s likeness 30
may is set forth in the rule, i.e. training and development, Team Member programs, company
recruiting materials, and the like. I agree that the context of this rule is clear, and find a
reasonable reading of the rule would not lead employees to believe they are required permit the
Respondent to use their likeness in antiunion material. While it is true that the Respondent may
not interpret the policy to require employees to permit their likeness to be used in antiunion 35
material, the policy, as reasonably read, does not impinge on Section 7 rights. See Lutheran
Heritage Village-Livonia, supra at 646-647 (2004). I therefore recommend dismissal of this
complaint allegation.
7. Online Communications 40
The complaint, at paragraph 6(g), alleges the Respondent’s “Online Communications”
rule violates Section 8(a)(1). The rule states, in relevant part:
Grill Concepts, Inc. (GCI) recognizes that online communication tools such as weblogs 45
(“blogs”) and other online channels (social media, chat rooms, etc.) increasingly serve as
channels for direct interaction with Guests, the media and other GCI stakeholders. The
JD(SF)–31–15
36
company's commitment to being direct supports open communications by Team
Members and other GCI representatives, providing such communications are transparent,
ethical and accurate.
All online communication by GCI Team Members or company representatives on behalf 5
of GCI is subject to GCI's Code of Conduct and applicable electronic communication
policies, laws and regulations. GCI's Code of Conduct sets forth a standard of personal
responsibility for Team Members both inside and in some cases, outside the workplace.
GCI's Online Communication Policy adopts the same standard.
10
1. Any GCI Team Member or representative engaging in online, electronic dialogue as a
delegate of the company is required to meet a standard that mandates: Transparency of
Origin. GCI requires that Team Members and other company representatives disclose
their employment or association with GCI (e.g., First Name.Last
Name@grillconcepts.com) in all communications with Guests, the media or other GCI 15
stakeholders when speaking on behalf of GCI. GCI requires that Team Members and
other company representatives provide contact information on request.
2. Accurate Information. GCI Team Members and other company representatives may
not knowingly communicate information that is untrue or deceptive. Communications 20
should be based on current, accurate, complete and relevant data. GCI will take all
reasonable steps to assure the validity of information communicated via any channel but
it is the Team Member's or other company representative's responsibility to assure
accuracy in the first instance. Anecdotes and opinions will be identified as such.
25
3. Ethical Conduct. GCI Team Members and other company representatives will not
conduct activities that are illegal or contrary to GCI's Code of Conduct, Privacy Policy,
Harassment Policy, and related policies.
4. Protection of Confidential and Proprietary Information. GCI Team Members and other 30
company representatives must maintain the confidentiality of information considered
GCI confidential, including company data, Guest data, partner and/or supplier data,
personal Team Member data, and any information not generally available to the public.
GCI Team Members or company representatives who fail to comply with this policy will
be subject to discipline, up to and including termination of employment from GCI. In 35
addition, depending on the nature of the policy violation or the online channel content,
participants may also be subject to civil and/or criminal penalties.
(GC Exh. 2, p. 28.)
40
I find this rule is overly-broad in a couple of respects. First, as the Supreme Court has
noted, protected concerted conversations can become contentious, yet they remain protected
even if the conversations include “intemperate, abusive and inaccurate statements.” Linn v.
United Plant Guards, 383 U.S. 53 (1966). The Board has held that the maintenance of a rule
banning false or misleading statements violates the Act. See Grandview Health Care Center, 45
332 NLRB 347, 348 (2000)) enfd. 297 F.3d 468, 476-479 (6th Cir. 2002); Lafayette Park Hotel,
supra, at 828.
JD(SF)–31–15
37
In addition, the rule prohibits Board has protection of confidential and proprietary
information, including “personal Team Member data.” This would reasonably be read to include
data about wages and other working conditions. See Three D, LLC, 361 NLRB No. 31 (2014).
5
The Respondent asserts that the rule limits the prohibitions to employees who are
speaking on behalf of the Company.36 I disagree, and find a reasonable reading is at best
ambiguous. The second non-numbered paragraph discusses a code of conduct that applies to
anyone speaking on the Company’s behalf. The first numbered paragraph again refers to
standards for employees who engage in electronic dialogue “as a delegate of the company . . .” 10
The next paragraphs, however, contain no such limiting language. If the language limiting the
restrictions to employees speaking on the Company’s behalf in the second non-numbered
paragraph was intended to be global, the language in the first numbered paragraph containing a
similar limitation is redundant. Considering that ambiguities must be construed against the rule’s
drafter, in this case the Respondent, I find that that it violates Section 8(a)(1). See Lafayette Park 15
Hotel, supra at 828; Murphy Oil, supra, slip op. at 26.
8. Solicitation Rule
Complaint paragraph 6(h) alleges the Respondent’s solicitation rule violates Section 20
8(a)(1). The provisions at issue state:
In an effort to ensure a productive and harmonious work environment, outside persons
may not solicit or distribute literature in the workplace at any time for any purpose. If you
observe a non-Team Member distributing literature in the workplace, please contact a 25
manager immediately. Grill Concepts, Inc. recognizes that Team Members may have
interests in events and organizations outside the workplace. However, Team Members
may not solicit or distribute literature concerning outside activities or merchandise while
in their work area or while on-duty.
30
(GC Exh. 2, p. 34.)
The General Counsel and the Charging Party assert that the rule unlawfully prohibits
employees who are not working from engaging in solicitation in work areas.
35
An employer has a right to impose some restrictions on employees' statutory right to
engage in solicitation at the workplace. Solicitations involve approaching an employee or group
of employees to talk about the union, and often involve the organizers asking employees if they
want to sign a union card. This can involve a back-and-forth, with questions and answers, and,
as such, the employer can require that this occur only when all involved in the discussion are off 40
the clock. The Supreme Court has agreed with the Board, however, that as long as the
employees are not on the clock, solicitations may occur anywhere, including in work areas.
Republic Aviation Corp. v. NLRB, supra at 802–803 (1945); Our Way, Inc., 268 NLRB 394
(1983); Food Services of America, 360 NLRB No. 123, slip op. at 7 (2014).

36 The Respondent also cites to Dresser-Rand Company, 358 NLRB No. 34 (2012). This decision
was subsequently invalidated by the Supreme Court’s decision in NLRB v. Noel Canning, supra.
JD(SF)–31–15
38
The Respondent cites to several cases standing for the correct proposition that employers
can prohibit solicitation in working areas during working time. The rule at issue here, however,
clearly states that employee cannot solicit in their work area or while on duty. Simple
elimination of the word “or” would change the result, but the rule can only be read and 5
interpreted as written. The rule necessary includes solicitation in employee work areas while
they are not on duty, and it therefore violates Section 8(a)(1).
G. Dispute Resolution Program
10
Paragraph 7 of the complaint alleges the Respondent’s dispute resolution agreement,
acknowledgement of receipt of the agreement, and opt-out provision, which have been contained
in its employee handbook since about July 2014, violate Section 8(a)(1).37 The Dispute
Resolution Arbitration Agreement (DRAA) states:
15
In consideration for my employment and the continuation of my employment with Grill
Concepts (the "Grill"), and unless I choose to opt out of this Agreement as set forth
below, both the Grill and I agree to submit for binding arbitration by a neutral arbitrator
any employment-related disputes (whether brought by me or the Grill) which are not
resolved through the Grill's employee appeal procedure or another informal means. (I 20
understand that the Grill's employee appeal procedure is not a required step before I may
choose to bring my claim in arbitration.) Employment-related disputes are any actual or
alleged events, claims or disputes between me and the Grill in connection with or
concerning or arising out of my employment, or the administration or termination of my
employment, including those based upon alleged violations of federal and/or state laws, 25
including, but not limited to Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair
Labor Standards Act, with the exception of claims for workers' compensation benefits,
unemployment compensation benefits, claims under any of the Grill's employee welfare
benefit and pension plans, and any other claims prohibited by law from being resolved by 30
arbitration. The Grill and I agree that any such matter, claim, dispute or grievance will be
subject to this arbitration provision regardless of whether or not said matter, claim,
dispute, or grievance is with or against the Grill or an affiliate of the Grill.
To the extent permitted by law, the Grill and I waive our rights to have any employment-35
related disputes submitted as part of a class or collective action in court or in arbitration.
This waiver shall not affect or diminish the substantive remedies that may be awarded by
an arbitrator.
I understand that my decision to accept or continue employment with the Grill constitutes 40
my agreement to be bound by this Dispute Resolution Arbitration Agreement.
I understand that my decision to accept or continue employment with the Grill constitutes
my agreement to be bound by this Dispute Resolution Arbitration Agreement unless I

37 The complaint was amended to separate the opt-out notification from the acknowledgement of
receipt.
JD(SF)–31–15
39
choose to opt out of this Dispute Resolution Arbitration Agreement by signing the
attached Opt Out Notification and delivering it to my General Manager within thirty (30)
days of my signature on this Agreement. If I decide to opt out of the Dispute Resolution
Arbitration Agreement, I understand that I will be permitted to continue my employment.
5
. . .
BY SIGNING THIS AGREEMENT, THE PARTIES ARE WAIVING THEIR RIGHT
TO A JURY TRIAL OR A COURT TRIAL OF ANY EMPLOYMENT-RELATED
DISPUTE, AS DEFINED ABOVE.10
(GC Exh. 2, pp. 69–71.)
The acknowledgement of receipt form contains the following pertinent provisions:
15
I have received a copy of the Grill Concepts, Inc. Dispute Resolution Arbitration
Agreement located in the Appendix of this handbook and understand its contents. I
understand that I may opt out of the Arbitration Agreement by signing the Opt Out
Notification and delivering it to my General Manager within 30 days of signing the
Dispute Resolution Arbitration Agreement. 20
The opt-out provision states:
I am notifying the Grill of my decision to opt out of the Dispute Resolution Arbitration
Agreement. To be effective, I understand that this Opt Out Notification must be signed 25
and delivered to my General Manager within thirty (30) days from the execution of my
Dispute Resolution Arbitration Agreement. I also understand that I may not opt out of my
Dispute Resolution Arbitration Agreement while I have any legal claim pending which
arose prior to my execution of this form or which has been or could have been submitted
to arbitration at the time the claim arose.30
I understand that by opting out of the Dispute Resolution Arbitration Agreement I will
not be entitled to (None) (consideration), which is provided to Grill employees for
participating in the Grill Dispute Resolution Arbitration program.
35
(GC Exh. 2, p. 93.)
1. Alleged prohibition of class and collective actions
Concerted legal action addressing wages, hours, and working conditions falls within 40
Section 7’s protections. See, e.g., Murphy Oil, 361 NLRB No. 72 (2014); D. R. Horton, Inc.,
357 NLRB No. 184 (2012), enf. granted in part and denied in part 737 F.3d 433 (5th Cir. 2013):38
Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978); Spandsco Oil & Royalty Co., 42 NLRB
942, 948-949 (1942); Salt River Valley Water Users Ass'n, 99 NLRB 849, 853-854 (1952), enfd.

38 The Board in Murphy Oil reexamined D.R. Horton, and determined that its reasoning and results
were correct.
JD(SF)–31–15
40
206 F.2d 325 (9th Cir. 1953); Brady v. National Football League, 644 F.3d 661, 673 (8th Cir.
2011) (“lawsuit filed in good faith by a group of employees to achieve more favorable terms or
conditions of employment is ‘concerted activity’ under §7 of the National Labor Relations
Act.”); Trinity Trucking & Materials Corp. v. NLRB, 567 F.2d 391 (7th Cir. 1977) (mem. disp.),
cert. denied, 438 U.S. 914 (1978).5
Applied to other legislation, resolution of a dispute through class action in court as
opposed to an individual arbitration is a matter of procedure; the substantive rights can be
vindicated in either forum. Under the NLRA, the act of employees choosing a collective forum,
i.e. the procedure for bringing forward collective or class claim regarding wages, hours, or other 10
working conditions, is among the core substantive conduct the statute protects. Put more simply,
the choice of procedure is the substance of the right. The Board, accordingly, has held that
agreements requiring employees to waive their right to participate in class or collective legal
action violates the Act because they “extinguish” a substantive right protected by Section 7.
Murphy Oil, supra, at 11; see also D. R. Horton, supra. 15
This case is different from Murphy Oil and D.R. Horton because the DRAA permits
employees to opt out of arbitration and pursue claims in court on a collective or class basis. The
Respondent argues that this case presents the “more difficult question” of “whether . . . an
employer can enter into an agreement that is not a condition of employment with an individual 20
employee to resolve either a particular dispute or all potential employment disputes through non-
class arbitration rather than litigation in court.” Dr. Horton, supra at fn. 28. Simply put, does the
Act permit such waiver? This boils down to whether employees may be forced to choose
whether or not to prospectively and irrevocably waive their substantive right to band together
and bring a class or collective lawsuit against their employer in an attempt to better their wages, 25
hours, or other working conditions.
The Respondent asserts that the strong federal policy in favor of arbitration, along with
the voluntary nature of the DRAA, and the findings of various courts and administrative law
judges compels a conclusion that the DRAA is lawful. 30
The General Counsel and Charging Party assert that the DRAA is unlawful because it is
not truly voluntary, it constitutes an irrevocable waiver of prospective Section 7 rights, it requires
employees to self-identify as choosing to preserve their Section 7 rights, it is inconsistent with
Board precedent finding unlawful and unenforceable employee separation agreements that waive 35
or “trade away” the employee's right to engage in future concerted activity, it interferes with the
rights of individuals who have opted out to act concertedly with employees who have not, and it
permits employers to obviate employees’ rights under the Act through private contracts. The
Charging Party further asserts that the DRAA is not voluntary for employees with pending
claims. 40
As a threshold issue, I must determine whether the DRAA is a condition of employment.
With regard to new employees with any claim pending during the of the opt-out period, I find the
DRAA is a condition of employment. The DRAA states, “I also understand that I may not opt
out of my Dispute Resolution Arbitration Agreement while I have any legal claim pending which 45
arose prior to my execution of this form or which has been or could have been submitted to
arbitration at the time the claim arose.” (GC Ex. 2, p. 93, emphasis added.) For these
JD(SF)–31–15
41
individuals, the DRAA is “consideration for [their] employment and the continuation of [their]
employment with Grill Concepts” and therefore a condition of employment.
For employees without pending claims, I find the DRAA it is not a condition of
employment. The opt-out provision is mentioned in the first sentence of the DRAA. Toward the 5
end of the DRAA it states, “If I decide to opt out of the Dispute Resolution Arbitration
Agreement, I understand that I will be able to continue my employment.” The acknowledgment
and receipt again mention the opt-out provision. The Charging Party asserts that the opt-out
provision is not attached to the DRAA and is buried deep within the handbook. While the opt-
out provision ideally would be attached to the DRAA, I find it is sufficiently referenced with the 10
DRAA and it is contained within the same appendix to the handbook. While ideally it would be
attached to the DRAA, if the Respondent was attempting to conceal the existence of the opt-out
provision, it did a poor job of it.
In addition, the evidence shows that current employees were not required to sign the 15
DRAA or sign in receipt of the handbook and thus be bound by the DRAA.39 Neither Goytia nor
Azad signed the DRAA or the acknowledgment and receipt of the employee handbook, and no
negative consequences ensued. Moreover, Burnett provided unrefuted testimony that employees
could decline to sign, and when this occurred, Burnett just noted the employee declined to sign.
These facts lead to the conclusion that continued employment with the Respondent was not 20
conditioned upon signing the DRAA.40
As noted in footnote 28 of D.R. Horton, the Board has not decided whether an “employer
can enter into an agreement that is not a condition of employment with an individual employee to
resolve either a particular dispute or all potential employment disputes through non-class 25
arbitration rather than litigation in court.” Murphy Oil and D.R. Horton make clear that the
Board will find unlawful any policy that “extinguishes” an employee’s right to engage in such
litigation. This leaves open the question of whether an opt-out provision like the current one,
which does not eradicate the employees’ rights, nonetheless interferes with or coerces employees
in this right. 30
Turning to the Act itself, under Section 8(a)(1), an employer may not “interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7
states, in pertinent part:
35
Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or other

39 This evidence pertains only to employees who were already working when the new employee
handbook containing the DRAA went into effect.
40 My finding, based in part on stipulation, that the DRAA is not, in blanket form, a condition of
employment, does not in any way preclude individual claims that, under specified sets of facts not
presented here, it operated as one. It also does not equate with a finding that the DRAA was voluntary no
matter the set of facts under which an employee failed to opt out of it. Certainly, employees are not
foreclosed from claiming they were coerced or hoodwinked into believing they needed to sign the
agreement to retain their employment.
JD(SF)–31–15
42
mutual aid or protection, and shall also have the right to refrain from any or all of such
activities.
(emphasis added.) The right to forego collective or class action litigation belongs to the
employee, so long as such right is voluntary and free of coercion. Clearly, an employee cannot 5
be forced to engage in any particular concerted activity, including being party to a collective
lawsuit.

The more difficult question is under what conditions, if any, an employee can
prospectively and irrevocably waive his or her statutory right to engage in protected concerted 10
activity. Abundant caselaw has developed on the issue of when a union may, through collective
bargaining, waive employees’ statutory rights. In the context of collective bargaining, “in order
to establish a waiver of a statutory right, there must be a clear and unmistakable relinquishment
of that right.” Gem City Ready Mix Co., 270 NLRB 1260, 1260–1261 (1984); see also In re Tide
Water Assoc. Oil Co., 85 NLRB 1096, 1098 (1949) (establishing the “clear and unmistakable” 15
standard for waivers of statutorily protected rights); Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983) (“we will not infer from a general contractual provision that the parties intended
to waive a statutorily protected right unless the undertaking is ‘explicitly stated’. More
succinctly, the waiver must be clear and unmistakable”); 14 Penn Plaza LLC v. Pyett, 556 U.S.
247, 257 (2009).20
With regard to individual employees who are not party to a collective-bargaining
agreement, the Board in Murphy Oil shed some light on this question. Though the arbitration
agreement at issue in Murphy Oil was mandatory, to support its decision, the Board relied on
National Licorice Co. v. NLRB, 309 U.S. 350, 364 (1940), where the Supreme Court found the 25
employer could not contract with individual employees to relinquish their rights under the Act.
In National Licorice, a committee of three employees negotiated a contract with the employer
providing for a wage increase, overtime, holiday pay, and vacation time. The contracts as
executed were between the employer and the individual employees who signed them.
Employees who signed the contract relinquished their rights to strike, demand a closed shop, or 30
sign an agreement with any union. Employees who did not sign the contract did not reap its
benefits.
The focus in National Licorice was the employment contracts themselves, not whether
they were conditions of continued employment; they were not. Because the contracts35
discouraged membership in a labor organization, and constituted “yellow dog” agreements, they
were found to be invalid. The right to engage in concerted activity is just as protected as the
right to engage in union activity. The agreement, whether it is a condition of employment or not,
extracts a promise to refrain from activity protected by Section 7, and is therefore invalid under
the reasoning set forth in National Licorice and like cases. See also J.I. Case Co. v. NLRB, 321 40
U.S. 332, 340 (1944) (contracts utilized as a means of interfering with rights guaranteed by the
Act invalid); NLRB v. J.H. Stone & Sons, 125 F.2d 752, 756 (7th Cir. 1942) (employment
contract requiring employees to attempt to resolve employment disputes individually with
employer is per se violation even if “entered into without coercion” and not all employees signed
because it was a “restraint upon collective action”); Jahn & Oilier Engraving Co., 24 NLRB 893, 45
900–901, 906–907 (1940), enfd. in relevant part, 123 F.2d 589, 593 (7th Cir. 1941).
JD(SF)–31–15
43
That collective or class litigation is but one category of protected activity under the Act
does not matter. Compare the substantive right to freedom from religious discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. One of the many
manifestations of this right is the freedom to seek religious accommodation from the employer to
permit the employee to observe his religion while retaining his job. It is difficult to imagine an 5
employment contract requiring employees to agree they will not seek religious accommodation,
with a 30-day opt-out provision, would pass muster. An agreement to forego the protected
concerted activity of class or collective litigation, with a 30-day opt out provision, is a similar
prospective waiver of substantive rights that should be accorded no less protection. An obvious
distinction is that the Title VII example does not implicate the FAA because the right to engage 10
in collective or class litigation has nothing to do with the substance of the right to be free from
discrimination based on religion.41 It is a distinction without a difference, however, as the Board
has addressed the interplay between the FAA and the NLRA at length, and has determined that
substantive rights under the NLRA are protected, in no relative sense, despite the strong federal
policy in favor of arbitration. Murphy Oil, supra, D.R. Horton, supra. 42 15
In Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072 (2014), on which the
Respondent relies, the Court of Appeals for the Ninth Circuit rejected arguments based on the
reasoning of National Licorice and J.I. Croson. Bloomingdale’s involved an arbitration
agreement with a 30-day opt-out provision similar to the one in the instant case.43 The court held 20
that to prevail on a claim under National Licorice and its progeny, the plaintiff employee was
required to show that the arbitration agreement was “’conduct immediately favorable to
employees,’” which Bloomingdale's undertook with the express purpose of impinging upon its
employees' “’freedom of choice’” in deciding whether to waive or retain their right to participate
in class litigation.” 755 F.3d at 1076, quoting NLRB v. Exch. Parts Co., 375 U.S. 405, 409 25
(1964). The Supreme Court has found that “the informality of arbitral proceedings is itself
desirable, reducing the cost and increasing the speed of dispute resolution.” AT&T Mobility LLC
v. Concepcion, 131 S.Ct. 1740, 1749 (2011). It therefore confers a benefit upon employees.44
Moreover, the employer’s intent to impinge on employee rights is not a required element of a
Section 8(a)(1) violation, so the employer’s purpose is not material.45 30

41 Though conditioning the ability of employees to arbitrate employment claims on an agreement to
waive their right to seek reasonable accommodation of their religious beliefs is no less offensive.
42 I also find the General Counsel’s arguments about the coercive effect of requiring employees to
self-identify persuasive, but I need not rely on this argument to support my conclusion herein that
prospective waiver of substantive statutory rights violates the Act.
43 The opt-out provision in Bloomingdale’s had some safeguards not present here.
44 The irony of asserting the Court’s finding that arbitration is a benefit for employees while arguing
they should not be bound to arbitrate their claims is not lost on me. I am not in a position to stray from
the Supreme Court’s findings in Concepcion, however. I note, nonetheless, my skepticism that a
collective or class action would achieve less “streamlined proceedings and expeditious results” than, say,
1,000+ employees at the same company concertedly deciding to simultaneously demand individual
arbitration of their separate (yet essentially the same) claims under the Fair Labor Standards Act (FLSA).
The familiar adage “Be careful what you wish for” comes to mind.
I further note that, while it may be argued arbitration is mutually beneficial, and therefore not an
inducement, many employment terms deemed to be inducements, such as vacation time for employees,
confer benefits both on the employee and the employer.
45 Though framed as impinging on the employees’ choice of whether to waive rights, the contract
itself, regardless of its voluntariness, is unlawful under National Licorice.
JD(SF)–31–15
44
The Bloomingdale’s decision also addressed an argument, under J.I Croson, that
regardless of inducement, an employee may never waive the right to participate in class or
collective litigation by negotiating an individual contract with her employer. The Ninth Circuit
found J.I. Croson was limited to the finding that an employer “may not negotiate individual 5
contracts with employees and then refuse to engage in collective bargaining with the employees'
designated union representatives on the ground that doing so would violate the terms of the
individual contracts.” Id. at 1076–1077. The Ninth Circuit relied on the Supreme Court’s
statement that “nothing prevents an employee from making an individual contract with her
employer, ‘provided it is not inconsistent with a collective agreement or does not amount to or 10
result from or is not part of an unfair labor practice.’” Id at 1077, quoting J.I. Croson, 321 U.S.
at 339. Since the court determined the agreement was not an unfair labor practice, it found the
arbitration agreement was valid. My different conclusion about the applicability of National
Licorice, in line with the Board’s reasoning in Murphy Oil, leads me to the opposite conclusion
when applying J.I. Croson.46 15
When discussing the Supreme Court’s decision in American Express Co. v. Italian Colors
Restaurant, ___ U.S. ___, 133 S.Ct. 2304 (2013), issued after D.R. Horton, the Board in Murphy
Oil also indicated that a contract prospectively waiving substantive rights under the Act is
unlawful in and of itself, regardless of how it is applied. The Board noted that the Supreme 20
Court, in Italian Colors, explained “the Federal policy favoring arbitration, however liberal, does
have limits. It does not permit a ‘prospective waiver of a party's right to pursue statutory
remedies,’ such as a ‘provision in an arbitration agreement forbidding the assertion of certain
statutory rights.’” Murphy Oil, supra, slip op. at 11, quoting Italian Colors, supra, 133 S.Ct. at
2310 (internal quotation omitted).25
The so-called “effective vindication” exception to the FAA, “finds its origin in the desire
to prevent ‘prospective waiver of a party's right to pursue statutory remedies.’” Italian Colors at
2310; quoting Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 637, fn.
19 (1985). In creating the “effective vindication” exception to the FAA, the Supreme Court held30
that, “so long as the prospective litigant effectively may vindicate its statutory cause of action in
the arbitral forum, the statute will continue to serve both its remedial and deterrent function.”
Mitsubishi Motors, supra at 637. In Mitsubishi Motors, the Court was clearly discussing the
federal statute underlying the cause of action, which in that case was the Sherman Act, 15 U.S.C.
§ 1 et seq. There was no reason for the Court to discuss whether the FAA must yield to another 35
federal statute that was substantively implicated by the statute giving rise to the underlying cause
of action.
It is axiomatic that many of the NLRA’s protections necessarily implicate other federal
employment statutes, and specifically the right to pursue claims under them. 47 The question not 40
raised in Mitsubishi Motors is whether the effective vindication exception applies to waivers of

46 For these same reasons I am not persuaded by the reasoning of Valley Health System, LLC, 2015
WL 1254854 (March 18, 2015), or Bloomingdales, Inc., 2013 WL 3225945 (June 25, 2013), to which the
Respondent also cites.
47 As numerous cases illustrate, the FLSA is the underlying statute for many of the class and
collective claims giving rise to litigation about arbitration agreements.
JD(SF)–31–15
45
federal statutory rights necessary and attendant to the underlying claim, but not available as a
remedy to the underlying cause of action. In other words, does the rationale underlying the
effective vindication exception change if the vindication is through the act of litigating itself, not
from the remedy resulting from such litigation?48 The Board in Murphy Oil applied the
reasoning of Mitsubishi Motors, signaling that it does. The Board’s reasoning rationally extends5
to the circumstance here, where the question is whether to “permit” employees to prospectively
waive their rights, not whether a waiver may be required as a condition of employment.49
The Respondent argues that the strong federal policy in favor of arbitration, as affirmed
by the Supreme Court in Concepcion, supra, CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 10
672 fn.4 (2012), compels a finding that the agreement here is lawful. In reaching its decisions in
Murphy Oil and D.R. Horton, the Board recognized the strong federal policy in favor of
arbitration and discussed it at length, distinguishing the above Supreme Court precedents. The
Respondent also notes that numerous decisions have permitted parties to agree to this type of
contract. I am bound, however, by the Board precedent, which I find contrary to permitting an 15
agreement like the one at issue here.
2. Alleged interference with Board procedures
The General Counsel argues that the DRAA violates Section 8(a)(1) because it interferes 20
with employees’ access to the Board’s procedures.
The agreement states that “employment-related disputes” are subject to arbitration. This
is broadly defined to include “disputes between me and the Grill in connection with or
concerning or arising out of my employment, or the administration or termination of my 25
employment.” It also explicitly includes claims based on “alleged violations of federal and/or
state laws, including, but not limited to Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act, the Age Discrimination in Employment Act, [and] the Fair
Labor Standards Act.” It specifically excludes “workers' compensation benefits, unemployment
compensation benefits, claims under any of the Grill's employee welfare benefit and pension 30
plans, and any other claims prohibited by law from being resolved by arbitration.”

48 The statutory remedy flowing from the right to bring class or collective actions under the Act is an
order stating that the employer will not interfere with the Section 7 rights of employees to bring such
claims, a notice posting, and rescission of the unlawful arbitration agreement.
49 Though I do not find the nature of the opt-out provision relevant given my finding that individual
employees may not waive substantive rights under the Act, I agree with my colleagues who have found
opt-out provisions such as the one here, where the employee gives up rights by doing nothing, are
coercive and interfere with Section 7 rights. See 24 Hour Fitness USA, Inc. , 2012 WL 5495007 (NLRB
Div. of Judges, Nov. 6, 2012); Mastec Services Company, Inc., 2013 WL 2409181 (NLRB Div. of
Judges, June 3, 2013); Securitas Security Services USA, Inc., 2013 WL 5984335 (NLRB Div. of Judges,
November 8, 2013); Kmart Corporation, 2013 WL 6115697 (NLRB Div. of Judges, November 19,
2013); Dominos Pizza, 2014 WL 1267122 (NLRB Div. of Judges, March 27, 2014); RPM Pizza, 2014
WL 3401751 (NLRB Division of Judges, July 11, 2014); Kenai Drilling, 2015 WL 1647909 (NLRB Div.
of Judges, April 13, 2015); AT&T Mobility Services, 2015 WL 3955133 (NLRB Div. of Judges, June 25,
2015); U.S. Express Enterprises, Case 10–CA–141407 (NLRB Div. of Judges, July 16, 2015).
JD(SF)–31–15
46
Certainly many of the included claims could also describe unfair labor practice claims.
In addition, claims under the Act are not specified in the excluded claims section. A reasonable
employee reading this in the context of the rest of the document is not going to know that the
phrase “any other claims prohibited by law” would excuse disputes resulting in NLRB charges
from arbitration. See 2 Sisters Food Group, Inc., 357 NLRB No. 168, slip op. at 7 (2011). 5
Considering that ambiguities must be construed against the employer, I find the DRAA
violates Section 8(a)(1) because employees would reasonably believe it encompasses Board
charges. See Aroostook County Regional Opthamology Center, 317 NLRB 218 (1995).
10
CONCLUSIONS OF LAW
1. By making implied threats of job loss, soliciting employee complaints and grievances,
interrogating employees about their union activities and the union activities of other employees,
creating the impression that employees’ union activity was under surveillance, promising 15
employees the Company will no longer retaliate against them, promising employees
reconsideration of cutbacks to their hours, promising employees a new way to request time off in
order to discourage support for the union, implementing time-and-a-half pay for holidays and a
greater employee discount for food at its restaurants in order to discourage support for the union,
announcing the opportunity for employees to sign up for healthcare benefits in order to 20
discourage support for the union, promulgating and maintaining overly broad rules, and
promulgating and maintaining an unlawful dispute resolution arbitration agreement, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
25
2. By the conduct described above, the Respondent has violated Section 8(a)(1) of the
Act.
REMEDY
30
Having found that the Respondent 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.
Having made an implied threat of job loss to an employee, the Respondent will be 35
ordered to cease and desist from this action.
Having interrogated employees about union activities, the Respondent will be ordered to
cease and desist from these actions.
40
Having created the impression that employees’ protected activities were under
surveillance, the Respondent will be ordered to cease and desist from this action.
Having promised employees they will no longer retaliate against them to discourage
support for the Union, the Respondent will be ordered to cease and desist from this action.45
JD(SF)–31–15
47
Having promised its employees reconsideration of the cutbacks to employees’ hours to
discourage support for the Union, the Respondent will be ordered to cease and desist from this
action.
Having promised employees a new way to request time off to discourage support for the 5
Union, the Respondent will be ordered to cease and desist from this action.
Having implemented a new policy granting time-and-a-half pay for employees who work
certain holidays in order to discourage support for the Union, the Respondent will be ordered to
cease and desist from this action.10
Having granted employees a greater employee discount for food at its restaurants in order
to discourage support for the union, the Respondent will be ordered to cease and desist from this
action.
15
Having maintained the following overly-broad rules:
ï‚· Team Member Relations/Positive Culture
ï‚· Timekeeping
ï‚· Code of Ethics/Relationships with Outside Parties20
ï‚· Team Member Conduct While Representing the Restaurant
ï‚· Progressive Discipline: Gross Misconduct
ï‚· Online Communications
ï‚· Solicitations
25
the Respondent will be ordered to revise or rescind these rules, and advise its employees in
writing that said rules have been so revised or rescinded.
Having maintained an unlawful dispute resolution arbitration agreement and
acknowledgement of receipt of the agreement, the Respondent will be ordered to revise or 30
rescind this agreement and acknowledgment of receipt, and advise its employees in writing that
these documents have been so revised or rescinded.
The Respondent shall be required to post a notice informing employees of its violations
of the Act. 35
The General Counsel, at complaint paragraph 13, has requested that the notice be read
aloud, in English and Spanish, by the Respondent’s representatives in the presence of a Board
agent at meetings scheduled during working time. Alternatively, the General Counsel suggests
the notice be read in the same manner by a Board agent in the presence of the individuals listed 40
in complaint paragraph 5.
The Board has required that notices be read aloud by high-ranking officials or a Board
agent when numerous serious unfair labor practices have been committed by a high-ranking
management official. Allied Medical Transport, Inc., supra at 6, fn. 9 (2014). When unfair labor 45
practices are severe and widespread, having the notice read aloud to employees allows them to
“fully perceive that the Respondent and its managers are bound by the requirements of the Act.”
JD(SF)–31–15
48
Federated Logistics & Operations, 340 NLRB 255, 258 (2003), affd. 400 F.3d 920, 929–930
(D.C. Cir. 2005); see also Homer D. Bronson Co., 349 NLRB 512, 515 (2007). Though I have
found numerous violations, I do not find they were widespread enough or sufficiently egregious
to warrant this enhanced remedy.
5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended50
ORDER
10
The Respondent, Grill Concepts, Inc., d/b/a The Daily Grill, Los Angeles, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
15
(a) Making implied threats of job loss
(b) Soliciting employee complaints and grievances in order to dissuade employee support
for the Union
20
(c) Coercively interrogating employees about their union activities and the union
activities of other employees
(d) Creating the impression that employees’ union activity is under surveillance
25
(e) Promising employees the Company will no longer retaliate against them in order to
discourage employee support for the Union
(f) Promising employees reconsideration of cutbacks to their hours in order to discourage
employee support for the Union30
(g) Promising employees a new way to request time off in order to discourage employee
support for the Union
(h) Implementing time-and-a-half pay for holidays and a greater employee discount for 35
food at its restaurants in order to discourage employee support for the union
(i) Announcing the opportunity for employees to sign up for healthcare benefits in order
to discourage support for the union
40
(j) Promulgating and maintaining the following overly broad rules:
ï‚· Team Member Relations/Positive Culture

50 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(SF)–31–15
49
ï‚· Timekeeping
ï‚· Code of Ethics/Relationships with Outside Parties
ï‚· Team Member Conduct While Representing the Restaurant
ï‚· Progressive Discipline: Gross Misconduct
ï‚· Online Communications5
ï‚· Solicitations
(k) Promulgating and maintaining an unlawful dispute resolution arbitration agreement
and acknowledgement of receipt.
10
(l) 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. Take the following affirmative action necessary to effectuate the policies of the Act
15
(a) Rescind the dispute resolution arbitration agreement and acknowledgment of receipt
or revise these documents in a manner that makes it clear employees will not
prospectively waive their protected rights to bring class and/or collective lawsuits if
they do not affirmatively opt out of the agreement.
20
(b) Advise its employees in writing that these documents have been so revised or
rescinded.
(c) Within 14 days after service by the Region, post at its facility in Los Angeles,
California, copies of the attached notice marked “Appendix in both English and 25
Spanish.”51 Copies of the notice, on forms provided by the Regional Director for
Region 21, 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. In
addition to physical posting of paper notices, the notices shall be distributed 30
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 material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of business or 35
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 March 31, 2014.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn 40
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

51 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(SF)–31–15
50
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
5
Dated, Washington, D.C. August 6, 2015
____ ________________
Eleanor Laws10
Administrative Law Judge
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 do anything to prevent you from exercising these rights.
WE WILL NOT make implied threats of job loss if you choose to support the union.
WE WILL NOT solicit employee complaints and grievances to discourage you from supporting
the union.
WE WILL NOT interrogate you about your union activities and the union activities of other
employees.
WE WILL NOT create the impression that your union activities are under surveillance.
WE WILL NOT promise we will no longer retaliate against employees in order to discourage
support for the union
WE WILL NOT promise reconsideration of cutbacks to your hours in order to discourage
support for the union.
WE WILL NOT promise you a new way to request time off in order to discourage support for
the union.
WE WILL NOT implement time-and-a-half pay for holidays and a greater employee discount
for food at its restaurants in order to discourage support for the union.
WE WILL NOT announce the opportunity for employees to sign up for healthcare benefits in
order to discourage support for the union.
WE WILL NOT promulgate or maintain the following overly broad rules:
ï‚· Team Member Relations/Positive Culture
ï‚· Timekeeping
ï‚· Code of Ethics/Relationships with Outside Parties
ï‚· Team Member Conduct While Representing the Restaurant
ï‚· Progressive Discipline: Gross Misconduct
ï‚· Online Communications
ï‚· Solicitations
WE WILL NOT promulgate or maintain an unlawful dispute resolution arbitration agreement
and acknowledgment of receipt.
WE WILL rescind or revise the following overly broad rules:
ï‚· Team Member Relations/Positive Culture
ï‚· Timekeeping
ï‚· Code of Ethics/Relationships with Outside Parties
ï‚· Team Member Conduct While Representing the Restaurant
ï‚· Progressive Discipline: Gross Misconduct
ï‚· Online Communications
ï‚· Solicitations
and notify you that these rules have been rescinded or revised.
WE WILL rescind the dispute resolution arbitration agreement and acknowledgment of receipt
or revise these documents in a manner that makes it clear employees will not prospectively
waive their protected rights to bring class and/or collective lawsuits if they do not affirmatively
opt out of the agreement.
WE WILL advise you in writing that these documents have been so revised or rescinded
GRILL CONCEPTS, INC.
(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.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-126475
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary,
National Labor Relations Board, 1099 14th Street, N.W., 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, (310) 235-7424.