MUTUAL AGREEMENT TO ARBITRATE CLAIMS Revised 4/5/2007

Transcription

1 MUTUAL AGREEMENT TO ARBITRATE CLAIMS Revised 4/5/2007 Recognizing that differences may arise between The Marcus Corporation, any affiliated or related entities or corporations, and their representatives, agents, directors, officers and employees (collectively the Corporation ) and an applicant, employee or former employee of the Corporation ( the Individual ) (jointly, the Parties ) during the application process and/or during or after the Individual s employment, and recognizing that resolution of such differences in the courts is rarely time or cost effective for either party, the Corporation and the Individual have entered into this Mutual Agreement to Arbitrate Claims ( Agreement ) in order to establish and gain the benefits of a speedy, impartial and cost-effective dispute resolution procedure. By this Agreement, THE CORPORATION AND THE INDIVIDUAL KNOWINGLY AND VOLUNTARILY AGREE TO WAIVE AND HEREBY WAIVE ANY RIGHT UNDER LOCAL, STATE OR FEDERAL LAW TO A JURY TRIAL REGARDING THOSE MATTERS THAT THE PARTIES INTEND TO BE RESOLVED THROUGH ARBITRATION ( COVERED DISPUTES ). 1. Exclusivity. Arbitration shall be the exclusive forum for the resolution of Covered Disputes. 2. Identity of the Corporation. For purposes of this Agreement, the Corporation is understood to mean The Marcus Corporation and all its affiliated or related entities or corporations as well as their representatives, agents, directors, officers and employees. This includes, without limitation, the affiliated or related entities or corporations that are attached to this Agreement as Exhibit A. 3. Scope. Covered Disputes are those involving the Individual and the Corporation that concern any controversy or claim arising out of or relating to any aspect of the employment relationship, including its formation, continuation or termination ( Employment Issues ), to any interpretation or application of rights and duties concerning any Employment Issues, or any alleged breach of rights, duties and responsibilities concerning any Employment Issues. Employment Issues shall include, but not be limited to, recruiting, hiring, pay, hours of work, benefits, working conditions, promotions, demotions, transfers, work assignments, layoffs, recalls, training, termination, severance pay, reference information and any other employment related matters. The binding nature of this procedure shall survive any employment termination of the Individual. Covered Disputes include but are not limited to: Claims relating to the Corporation s Employee Handbook; Claims for wages, compensation or other employee benefits ; Tort claims; Common law claims; Contract claims regarding any Employment Issues;

2 Claims relating to employment-related Intellectual Property matters; Claims relating to Unfair Competition matters including but not limited to those matters concerning non-competition, confidential or proprietary business information, trade secrets and solicitations of Corporation employees; Claims of discrimination, retaliation or harassment under any local, state or federal law or regulation for which a court in the Individual s locality of employment would have jurisdiction, including, without limitation, Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. 1981, the Americans with Disabilities Act, the Rehabilitation Act, Age Discrimination in Employment Act; and Claims under any other local, state or federal law or regulations regarding any Employment Issues. The term Covered Disputes does not include: Eligibility for unemployment insurance benefits; Eligibility for worker s compensation benefits; Charges or claims brought on behalf of the individual by a Government Agency; Claims for injunctive and/or other equitable relief regarding Intellectual Property, Unfair Competition matters or breach of the confidentiality provision of this Agreement; Grievances under or pursuant to a collective bargaining agreement covering the Individual. Claims related to the Employee Retirement Income Security Act of 1974 as amended. Nothing in this Agreement shall be construed as prohibiting Employee from filing an administrative charge of an unfair labor practice with the National Labor Relations Board. 4. Effect on At-Will Employment Relationship. THIS AGREEMENT DOES NOT ALTER THE AT-WILL EMPLOYMENT STATUS OF INDIVIDUALS EMPLOYED BY THE CORPORATION. AS EMPLOYEES AT WILL, EITHER THE INDIVIDUAL OR THE CORPORATION MAY TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY REASON AND WITHOUT ANY LIABILITY. THIS AGREEMENT SIMILARLY DOES NOT ALTER THE EMPLOYMENT STATUS OF INDIVIDUALS COVERED BY A COLLECTIVE BARGAINING AGREEMENT. 5. Internal Complaint Procedure. Individuals are expected to utilize and exhaust internal complaint procedures and otherwise take advantage of the corrective opportunities offered to them by the Corporation before giving notice to arbitrate a Covered Dispute. Complaints should initially be brought to the attention of the Individual s supervisor, manager, Human Resources representative, or Division President. The Corporation s internal procedures will be most effective for resolving or addressing covered situations if they are used before notice to arbitrate is given. The Arbitrator shall explore with the parties whether the individual took advantage of the corrective opportunities offered to him or her prior to filing his or her Notice to Arbitrate.

3 6. Notice to Arbitrate. The Individual or Corporation must immediately notify the other party of its intention to arbitrate in writing and sent by certified or registered mail. Notice to Arbitrate from the Corporation shall be sent to the Individual at the Individual s most recent address on file with the Corporation. When an Individual gives Notice to Arbitrate, he or she will send notice to the Corporation as follows: Marcus Corporation Attention: Thomas F. Kissinger, General Counsel 100 East Wisconsin Avenue Milwaukee, WI Time Limit to Give Notice to Arbitrate. A Notice to Arbitrate must be given WITHIN SIX (6) MONTHS of the incident giving rise to the dispute, unless a longer period is required by statutory law. A party not issuing a timely Notice to Arbitrate is understood to have waived his/her/its right to pursue the dispute through and in arbitration, administrative or court procedures and proceedings. 8. Arbitration Rules. Covered Disputes shall be decided in accordance with the then in effect National Rules for the Resolution of Employment Disputes ( Rules ) of the American Arbitration Association ( AAA ). Expedited AAA rules will not apply to Covered Disputes. 9. AAA Administration. The Chicago office of the AAA will administer matters involving all Covered Disputes. 10. Notice to AAA. The Corporation shall inform the Chicago Office of the AAA when a Notice to Arbitrate has been issued by it or received from an Individual. The AAA will arrange for the party giving the Notice to Arbitrate to prepare a Demand for Arbitration ( Demand ) describing the particulars of any Covered Dispute and to pay any required filing fee. Such Demand must set forth with sufficient clarity and particularity the alleged facts and legal claims on which the party seeking arbitration is relying. The Demand may be amended, if otherwise timely, appropriate and approved by the Arbitrator, until the final pre-hearing conference is held. 11. Filing Fee. If an Individual gives Notice to Arbitrate and files a Demand for Arbitration, the Individual shall pay the AAA filing fee, capped in the amount of $125, unless the Individual demonstrates an inability to pay. The Corporation shall pay the remaining portion of the filing fee. The demonstrable inability of an Individual to pay the AAA filing fee is an issue for the AAA to determine. If an Individual demonstrates an inability to pay the full AAA filing fee, the AAA shall determine what percentage of the fee, if any, the Individual is able to pay. The Corporation then may either pay the remainder of the fee, or decline to arbitrate the dispute, in which case the Individual may then pursue the dispute in the appropriate administrative or judicial forum. 12. Single Arbitrator. A single arbitrator shall be chosen by the Parties to resolve Covered Disputes. Covered Disputes involving separate events or occurrences involving the

4 Corporation and the Individual are to be decided in the same arbitration proceeding unless the Arbitrator orders that matters be separated. When more than one Individual has Covered Disputes arising out of the same transaction, occurrence, or series of transactions and occurrences, the Disputes may be considered and decided in the same arbitration proceeding only if the Corporation agrees in writing. Otherwise, each Individual s Covered Disputes will be considered separately. 13. Arbitration Panel. The AAA maintains regional Employment Dispute Resolution Rosters of outside and neutral employment arbitrators ( AAA Approved Panels ). The Corporation will identify on a regional basis a number of arbitrators from AAA Approved Panels. The arbitrators so designated shall constitute the Regional Approved Panels. After a Demand for Arbitration has been submitted, the AAA will randomly select three (3) arbitrators from the appropriate Regional Approved Panel. The Parties will select a single Arbitrator from among the three arbitrators provided by AAA by alternately striking one arbitrator from the AAA presented list. The party responsible for the Notice to Arbitrate shall make the first strike. The final remaining arbitrator will serve as the sole Arbitrator assigned to hear the Covered Dispute. The arbitrators listed on AAA Approved Panels and Regional Approved Panels were selected based upon their professional credentials, reputation for objectivity and fairness, expertise in employment matters, lack of relationship with the Corporation, experience with arbitration and/or litigation and geographic considerations. Geographic considerations were taken into account in order to minimize travel costs associated with the arbitration process and to help determine the most convenient site for the arbitration hearing. 14. Hearing Site. The hearing will take place in the community in which the Individual worked or applied for work. 15. Arbitrator Fees and Expenses. The Corporation will pay the per diem fees and incurred reasonable expenses of the Arbitrator who is appointed to resolve the Covered Dispute(s), as well as AAA administrative fees, mediation fees, and hearing fees. The party causing a postponement or cancellation shall be responsible for any postponement or cancellation fees. 16. The Parties Fees and Costs. Each party will be responsible for the fees and costs of its own witnesses, expert witnesses and attorneys. The expense of the stenographic record of the arbitration hearing shall be borne equally by the parties requesting the record. 17. Award of Fees, Expenses and Costs. Arbitration fees and expenses and the parties fees and costs, including attorneys fees, may be awarded by the Arbitrator to a party if the other party, in bad faith, participates in the commencement or pursuit of a frivolous claim, defense or position or otherwise intentionally acts to interfere with or obstruct the arbitration process. The Arbitrator may, in such circumstances, award such costs and fees as are deemed appropriate by the Arbitrator to compensate for or to deter the

5 prohibited behavior, and as the interests of justice may require in the judgment of the Arbitrator. If applicable statutory law permits any or all of these expenses to be awarded to a prevailing party, the Arbitrator may determine whether or not it is appropriate to award such expenses to a prevailing party. 18. Arbitrator Authority. The Arbitrator is authorized to hear and decide dispositive prehearing motions and to decide arbitrability issues regarding Covered Disputes. Discovery shall be in accordance with the authority the Arbitrator is given under the Rules. The Arbitrator may issue orders to protect the confidentiality of proprietary, trade secret, confidential and other sensitive business information. The burden of proof shall rest at all times with the party seeking relief. In resolving Covered Disputes, the Arbitrator may reverse determinations or actions of the Corporation which clear and convincing evidence establishes to have been arbitrary, capricious, wholly unreasonable, illegal or wrongful, unless a different burden of proof is statutorily required by applicable law. The Arbitrator is not authorized to substitute his or her judgment for that of the Corporation s representatives. The Arbitrator will have no authority to add to, modify, or subtract from the policies or procedures of the Corporation and is limited to interpreting and applying applicable current law when addressing statutory issues. 19. Exploration of Settlement. Prior to fact-finding, the Arbitrator shall inquire as to whether the parties have explored the possibility of settlement of their dispute. 20. The Arbitrator s Decision and Award. The Arbitrator s decision and award shall be in writing and shall contain findings of fact, conclusions, conclusions of law when appropriate, and a statement of reasons ( Decision and Award ). The Decision and Award shall be final and binding on the Parties. 21. Available Remedies. The Arbitrator is authorized to fashion remedies that make the prevailing party whole for demonstrated losses incurred, including the imposing of applicable statutory remedies. Consequential, punitive or liquidated damages may not be awarded unless applicable statutory law requires such damages to be awarded. 22. Confidentiality. The arbitration hearing shall be private, and no one shall attend the hearing who is not directly involved in it. The Arbitrator s Decision and Award will similarly be kept confidential and shall be disclosed only to the parties, and then only to the parties financial advisors, attorneys and spouses. The Decision and Award will be disclosed to employees of the Corporation on a need to know basis. A party to an arbitration may bring an action for relief based on a violation of this paragraph as a Dispute Covered by this Agreement. 23. Judicial Review. Judgment may be entered on a Decision and Award in any court of competent jurisdiction. The Arbitrator s conclusions of law regarding statutory claims shall be reviewed upon appeal using a de novo standard of review. The standard of judicial review on other issues shall be as provided for in the Federal Arbitration Act ( FAA ), 9 U.S.C. 1 et seq.

6 24. Choice of Law. This arbitration procedure shall be applicable in accordance with the FAA. Applicable federal law of the Seventh Circuit and applicable state law of Wisconsin shall be used to resolve Covered Disputes unless prohibited by law. 25. Invalid Provisions and Separability. The invalidity or unenforceability of any provision of this procedure shall not affect the other provisions. The procedure shall be interpreted as if such invalid or unenforceable provisions were omitted. The provisions and paragraphs of this procedure are intended to be separable from one another. 26. Term, Modification and Revocation. This Agreement shall survive the employeremployee relationship between the Corporation and the Individual and shall apply to any Covered Dispute whether it arises or is asserted during or after termination of the Employee s employment with the Corporation or the expiration of any benefit plan. This Agreement can be modified or revoked only by a writing signed by the Individual and an executive officer of the Corporation. Such written modification or revocation must reference this Agreement and specifically state an intent to modify or revoke this Agreement. 27. Sole and Entire Agreement. This is the complete agreement of the parties on the subject of arbitration of disputes. This Agreement supersedes any prior or contemporaneous oral or written agreement or understanding on the subject. In executing this Agreement, neither party is relying on any representation, oral or written, on the subject of the effect, enforceability or meaning of this Agreement except as specifically set forth in this Agreement. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES CAREFULY READING THIS AGREEMENT, UNDERSTANDING ITS TERMS, AND ENTERING INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF. EACH PARTY FURTHER ACKNOWLEDGES HAVING THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH PERSONAL LEGAL COUNSEL AND HAS USED THAT OPPORTUNITY TO THE EXTENT DESIRED. EMPLOYEE/APPLICANT CORPORATION Signature Print Name By Date Date

7 EXHIBIT A AFFILIATED AND RELATED ENTITIES OF THE MARCUS CORPORATION: B & G Realty, LLC Marcus Perimeter, LLC Baymont Inns Hospitality, LLC Marcus Restaurants, Inc. Baymont Inns, Inc. Marcus Scottsdale, LLC Baymont-Erlanger, LLC Marcus Skirvin, Inc. Captains-Kenosha, Inc. Marcus Technology, Inc. Café Refreshments, Inc. Marcus Theatres Corporation Colony Inns Restaurant Corporation Marcus Theatres Management, LLC Family Entertainment, LLC Marcus W, LLC First American Finance Corporation Marcus WS Franchises International, Inc. Geneva Lakes Golf Council, Inc. Marcus WS Hospitality Corporation Grand Geneva, LLC Marcus WS Refreshments, LLC LP 203, LLC Marcus WS, Inc. Marc s Carryout Corporation MCS Capital, LLC Marcus BIS Franchises International, LLC Milwaukee City Center, LLC Marcus BIS Hospitality, LLC Pfister, LLC Marcus BIS, LLC Platinum Condominium Development, LLC Marcus BIS Partners, LLC Platinum Holdings Las Vegas, LLC Marcus Bloomington, LLC Resort California, LLC Marcus Cinemas of Minnesota and Illinois, Resort Missouri, LLC Inc. Rush Ontario, LLC Marcus Cinemas of Ohio, LLC Skirvin Partners, LLC Marcus Cinemas of Wisconsin, LLC Springdale 2006, LLC Marcus City Center, LLC The Marcus Corporation Marcus Clayton, LLC Marcus Columbus, LLC Marcus Columbus Hotels, LLC Marcus Consid, LLC Marcus Cornhusker Investors Holdings, LLC Marcus Development LLC Marcus FL, LLC Marcus Green Lake, LLC Marcus Hotels, Inc. Marcus Hotels Hospitality, LLC Marcus Hotel Associates, Inc. Marcus Hotel Partners, Inc. Marcus Lincoln, LLC Marcus Lincoln Hotel, LLC Marcus Madison, LLC Marcus Management Las Vegas, LLC Marcus Midwest, LLC Marcus Non, LLC Marcus Northstar, Inc.