LKQ Foster Auto Parts, Inc.

National Labor Relations Board - Unpublished Board Decisions

Oct 23, 2018

19-CA-164069 (N.L.R.B. Oct. 23, 2018)

NOT INCLUDED IN
BOUND VOLUMES
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
LKQ FOSTER AUTO PARTS, INC.
and Case 19-CA-164069
ANDREW G. BOBREK
ORDER RESCINDING ORDER APPROVING STIPULATION,
GRANTING MOTION, AND TRANSFERRING PROCEEDING
TO THE BOARD
This matter came before the National Labor Relations Board pursuant to a Board Order
granting a joint motion by the parties to transfer this proceeding directly to the Board for a
decision based on the stipulated record. For the reasons that follow, the Board has now decided
to rescind its prior Order and to deny the joint motion.
On March 31, 2016, the General Counsel, through the Regional Director for Region 19,
issued a complaint alleging that the Respondent has been violating Section 8(a)(1) of the
National Labor Relations Act by maintaining its Mandatory Arbitration Agreement. On August
26, 2016, the parties filed a joint motion to waive a hearing and a decision by an administrative
law judge and to transfer this proceeding to the Board for a decision based on a stipulated record.
On October 17, 2016, the Board issued an Order Approving Stipulation, Granting Motion, and
Transferring Proceeding to the Board. Pursuant to that Order, the Board transferred the case to
the Board for the purpose of issuing findings of fact, conclusions of law, and a Decision and
Order, and set a briefing schedule. The parties thereafter filed briefs.
2
In support of the complaint’s allegation that the Respondent unlawfully maintained its
arbitration agreement, the General Counsel relies on the Board’s decisions in D. R. Horton, 357
NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil
USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015),
holding that the maintenance of an arbitration agreement requiring employees to waive the right
to commence or participate in class or collective actions in all forums, whether arbitral or
judicial, violate Section 8(a)(1) of the Act.
Recently, the Supreme Court issued its 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,
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.
In light of the Supreme Court’s decision in Epic Systems, which overrules the Board’s
holding in Murphy Oil USA, Inc., the Board now rescinds its October 17, 2016 Order and denies
the parties’ August 26, 2016 joint motion without prejudice.1

1 Although not specifically alleged in the complaint, in his brief to the Board, the General
Counsel asserts that the Respondent’s maintenance of the arbitration agreement also violated
Sec. 8(a)(1) because employees would construe it to interfere with their right to file charges with
the Board. Epic Systems did not affect the issue whether the Respondent’s arbitration agreement
unlawfully restricts employee access to the Board. But see The Boeing Company, 365 NLRB
3
Dated, Washington, D.C. October 23, 2018.
By Direction of the Board:
/s/ Roxanne Rothschild
____________________________
Acting Executive Secretary

No. 154 (2017). Having rescinded the Order transferring this proceeding for a decision based on
a stipulated record, the Board expresses no opinion with respect to this issue at this time,
including whether it may be litigated in the absence of a complaint allegation.