WALNUT CREEK ASSOCIATES 2, INC., D/B/A WALNUT CREEK HONDA

National Labor Relations Board - Unpublished Board DecisionsOct 31, 2018

32-CA-176353 (N.L.R.B. Oct. 31, 2018)

1 RMcK Oakland, CA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD WALNUT CREEK ASSOCIATES 2, INC. d/b/a WALNUT CREEK HONDA and Case 32-CA-176353 ELY LANDEN DECISION AND ORDER REMANDING 1 Pursuant to charges filed by Ely Landen, the General Counsel issued a complaint on September 30, 2016. The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing a mandatory arbitration agreement. The complaint also alleges that the mandatory arbitration agreement includes an overbroad provision prohibiting or restricting employee access to the Board in violation of Section 8(a)(1). Finally, the complaint alleges that the mandatory arbitration agreement includes an overbroad confidentiality provision that prohibits employees from disclosing the “existence, content, or results” of an arbitration without the consent of all parties in violation of Section 8(a)(1). On November 4, 2016, the General Counsel filed a motion to transfer the case to the Board and a motion for summary judgment. On November 7, 2016, the Respondent filed a cross-motion for summary judgment. 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Member Emanuel is recused and took no part in the consideration of this case. 2 On November 8, 2016, the National Labor Relations Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel’s motion for summary judgment should not be granted. The General Counsel filed a response to the Notice to Show Cause, and the Respondent filed an opposition to the General Counsel’s motion for summary judgment. 1. 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 1619–21, 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., we conclude that the complaint allegations that the mandatory arbitration agreement is unlawful based on Murphy Oil must be dismissed. 2. There remain the separate issues whether the arbitration agreement independently violates Section 8(a)(1) of the Act because it prohibits or restricts employee access to the Board and because it prohibits employees from disclosing anything about an arbitration without the consent of all parties. When the parties filed 3 their pending motions, the issue whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would be resolved based on the “reasonably construe” prong of the standard set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). On December 14, 2017, the Board issued its decision in The Boeing Company, 365 NLRB No. 154, slip op. at 14-17 (2017), in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases. Under the standard announced in Boeing, the parties’ motions do not establish that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law as to these complaint allegations. Accordingly, we deny without prejudice the motions for summary judgment with respect to these complaint allegations, and we will remand this proceeding to the Regional Director for Region 32 for further action as she deems appropriate. ORDER The complaint allegations that the maintenance and enforcement of the mandatory arbitration agreement unlawfully restricts employees’ statutory rights to pursue class or collective actions are dismissed. IT IS FURTHER ORDERED that the parties’ motions for summary judgment are denied without prejudice in all other respects, and these proceedings are remanded to the Regional Director for Region 32 for further appropriate action. Dated, Washington, D.C., October 31, 2018. 4 ____________________________________ JOHN F. RING, CHAIRMAN ____________________________________ LAUREN McFERRAN, MEMBER ____________________________________ MARVIN E. KAPLAN, MEMBER (SEAL) NATIONAL LABOR RELATIONS BOARD