Brinker International Payroll Company, L.P.

National Labor Relations Board - Unpublished Board Decisions

Dec 16, 2020

27-CA-110765 (N.L.R.B. Dec. 16, 2020)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BRINKER INTERNATIONAL PAYROLL
COMPANY L.P.
and Case 27-CA-110765
THE SAWAYA & MILLER LAW FIRM
NOTICE TO SHOW CAUSE
On December 1, 2015, the National Labor Relations Board issued a Decision
and Order, 363 NLRB No. 54, finding that the Respondent violated Section 8(a)(1) of
the Act by both (1) maintaining and enforcing a mandatory individual arbitration policy
and (2) interfering, through the arbitration policy, with employees’ ability to access the
Board’s processes. On June 19, 2018, the United States Court of Appeals for the Fifth
Circuit summarily granted review of the portion of the Board’s Order governed by the
Supreme Court’s decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612
(2018), and remanded the second finding back to the Board.
At the time of the Board’s decision, and Administrative Law Judge Lauren
Esposito’s June 4, 2014 decision that the Board affirmed, the issue of whether the
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), which held that an
employer’s maintenance of a facially neutral work rule would be unlawful “if employees
would reasonably construe the language to prohibit Section 7 activity.” Id. at 647. The
Board has since 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 at slip op. 14-17 (2017).
Accordingly, the Board hereby issues the following notice to show cause why this
proceeding 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.1
NOTICE IS GIVEN that any party seeking to show cause why this case 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 30, 2020 (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.
Dated, Washington, D.C., December 16, 2020
By direction of the Board:
Roxanne L. Rothschild
Executive Secretary

1 See generally Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10, slip op. at 5
(2019) (explaining the Board’s post-Boeing approach to analyzing allegations that a
mandatory arbitration agreement unlawfully restricts access to the Board).