20/20 Communications, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 2018

12-CA-165320 (N.L.R.B. Dec. 3, 2018)

1
McKE
Fort Worth, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
20/20 COMMUNICATIONS, INC.
and Case 12-CA-165320
CHARLIE SMITH
DECISION, ORDER, and
NOTICE TO SHOW CAUSE
On September 6, 2016, Administrative Law Judge Michael A. Rosas issued the attached
decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed
exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
1. The judge found, applying the Board’s decisions in D. R. Horton, Inc., 357 NLRB
2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA,
Inc., 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), that the
Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining and
enforcing a Mutual Arbitration Agreement (the “MAA”) that requires employees, as a condition
of employment, to waive their rights to pursue class or collective actions involving employment-
related claims in all forums, whether arbitral or judicial.
Recently, the Supreme Court issued a decision in Epic Systems Corp. v. Lewis, 584 U.S.
__, 138 S. Ct. 1612 (2018), a consolidated proceeding including review of court decisions below
in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016), Morris v. Ernst & Young, LLP,
2
834 F.3d 975 (9th Cir. 2016), and Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
Epic Systems concerned the issue, common to all three cases, whether employer-employee
agreements that contain class- and collective-action waivers and stipulate that employment
disputes are to be resolved by individualized arbitration violate the National Labor Relations Act.
Id. at __, 138 S. Ct. at 1619–1621, 1632. The Supreme Court held that such employment
agreements do not violate this Act and that the agreements must be enforced as written pursuant
to the Federal Arbitration Act. Id. at __, 138 S. Ct. at 1619, 1632.
The Board has considered the decision and the record in light of the exceptions and
briefs. In light of the Supreme Court’s decision in Epic Systems, which overrules the Board’s
holding in Murphy Oil USA, Inc., we conclude that the complaint allegation that the MAA is
unlawful based on Murphy Oil must be dismissed.1
2. There remains the separate issue whether the Respondent’s MAA independently
violated Section 8(a)(1) of the Act because it interferes with employees’ ability to access the
Board. The General Counsel excepts to the judge’s failure to analyze this issue and make an
express finding that the MAA is unlawful because employees would reasonably believe they are
prohibited from filing or pursuing unfair labor practice charges with the Board. See U-Haul Co.
of California, 347 NLRB 375, 377-378 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007).
At the time of the judge’s decision and the General Counsel’s exceptions, the issue
whether maintenance of a work rule or policy that did not expressly restrict employee access to
the Board violated Section 8(a)(1) on the basis that employees would reasonably believe it did
would be resolved based on the prong of the analytical framework set forth in Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004), that held an employer’s maintenance of a facially

1 We therefore find no need to address other issues raised by the Respondent’s exceptions
to the judge’s decision regarding this allegation.
3
neutral work rule would be unlawful “if employees would reasonably construe the language to
prohibit Section 7 activity.” Id. at 647. Recently, the Board overruled the Lutheran Heritage
“reasonably construe” test and announced a new standard that applies retroactively to all pending
cases. The Boeing Co., 365 NLRB No. 154, slip op. at 16-18 (2017).
Accordingly, we sever and retain this complaint allegation, and we issue below a notice
to show cause why the allegation that the MAA unlawfully restricts employee access to the
Board should not be remanded to the judge for further proceedings in light of Boeing, including,
if necessary, the filing of statements, reopening the record, and issuance of a supplemental
decision.
ORDER
The complaint allegation that the maintenance of the Mutual Arbitration Agreement
unlawfully restricts employees’ statutory rights to pursue class or collective actions is dismissed.
Further,
NOTICE IS GIVEN that any party seeking to show cause why the issue whether the
Respondent’s Mutual Arbitration Agreement unlawfully restricts employee access to the Board
should not be remanded to the administrative law judge must do so in writing, filed with the
Board in Washington, D.C., on or before December 17, 2018 (with affidavit of service on the
parties to this proceeding). Any briefs or statements in support of the motion shall be filed on
the same date.
4
Dated, Washington, D.C. December 3, 2018.
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD