Adecco USA, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 2018

32-CA-142303 (N.L.R.B. Nov. 6, 2018)

10/24/18
RMcK
San Bruno, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ADECCO USA, INC.
and Case 32-CA-142303
RAJAN NANAVATI
ORDER DENYING MOTION AND REMANDING
On May 24, 2016, the National Labor Relations Board granted the General Counsel’s
motion for summary judgment in a Decision and Order, 364 NLRB No. 9, 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. On July 20, 2018, the United States Court of Appeals for
the Fifth Circuit denied enforcement of the Board’s Order on the first finding, in light of 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, the issue of whether the maintenance of a 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 have been 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.
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 14-17 (2017).
Under the standard announced in Boeing, the General Counsel has not established in his
motion for summary judgment that there are no genuine issues of material fact or that he is
entitled to judgment as a matter of law. Accordingly, we deny without prejudice the General
Counsel’s motion and we will remand this issue to the Regional Director for Region 32 for
further action he deems appropriate.
ORDER
IT IS ORDERED that the General Counsel’s motion for summary judgment is denied,
and this proceeding is remanded to the Regional Director for Region 32 for further appropriate
action.
Dated, Washington, D.C. November 6, 2018.
________________________________
John F. Ring, Chairman
________________________________
Lauren McFerran, Member
________________________________
Marvin E Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD