Adecco USA, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 2018

367 NLRB No. 11 (N.L.R.B. 2018)

367 NLRB No. 11
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Adecco USA, Inc. and Michele Mims Case 13–CA–
175962
October 4, 2018
DECISION AND ORDER REMANDING1
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
Pursuant to a charge filed by Michele Mims on May
10, 2016, and amended September 9, 2016, the General
Counsel issued a complaint on September 20, 2016. The
complaint alleges that, since at least July 30, 2015, the
Respondent has promulgated, maintained, and enforced
its Dispute Resolution and Arbitration Agreement for
Consultants/Associates (the Agreement), in violation of
Section 8(a)(1) of the National Labor Relations Act. The
complaint further alleges that the Agreement includes an
overbroad work rule prohibiting or restricting employee
access to the Board in violation of Section 8(a)(1). On
November 2, 2016, the General Counsel filed a motion to
transfer case to the Board and for Summary Judgment.
On November 4, 2016, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. On
November 18, 2016, the Respondent filed a response.
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 Sys-
tems 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 individual-
ized 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 vio-
late 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 allegation that the Dispute Resolution and

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Arbitration Agreement for Consultants/Associates is un-
lawful based on Murphy Oil must be dismissed.
2. There remains the separate issue whether the
Agreement independently violates Section 8(a)(1) of the
Act because it prohibits or restricts employee access to
the Board. When the General Counsel filed its pending
motion, the issue whether maintenance of a facially neu-
tral work rule or policy violated Section 8(a)(1) would be
resolved based on the “reasonably construe” prong of the
analytical framework set forth in Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646 (2004). On December 14,
2017, the Board issued its decision in The Boeing Co.,
365 NLRB No. 154, 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
General Counsel’s motion does not establish that there
are no genuine issues of material fact and that either par-
ty is entitled to judgment as a matter of law as to this
complaint allegation.
Accordingly, we deny without prejudice the Motion
for Summary Judgment with respect to this complaint
allegation, and we will remand this proceeding to the
Regional Director for Region13 for further action as he
deems appropriate.
ORDER
The complaint allegation that the promulgation,
maintenance, and enforcement of the Dispute Resolution
and Arbitration Agreement for Consultants/Associates
unlawfully restricts employees’ statutory rights to pursue
class or collective actions is dismissed.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment is denied without preju-
dice in all other respects, and these proceedings are re-
manded to the Regional Director for Region 13 for fur-
ther appropriate action.
Dated, Washington, D.C. October 4, 2018
____________________________________
John F. Ring, Chairman
________________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD