Adi Worldlink, LLC; Samsung Electronics America, Inc.; Samsung Telcommunications Americas, LLC

National Labor Relations Board - Board Decisions

Oct 2, 2018

367 NLRB No. 10 (N.L.R.B. 2018)

367 NLRB No. 10
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.
ADI Worldlink, LLC; Samsung Electronics America,
Inc. f/k/a Samsung Telecommunications Ameri-
cas, LLC, Respondents and Tim Curry, Ozias
Foster, Royce Ellison, Mervin L. McGirt, Clar-
ence Cook, and Kevin Astrop, Region 7 Charging
Parties and Nathan Nesbit, Chris Carethers, La-
mar Hall, Leon Townsend, Steven Le, and Sean
Goodson, Region 20 Charging Parties. Cases 07–
CA–157722, and 20–CA–156284
October 2, 2018
DECISION AND ORDER REMANDING1
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
Pursuant to charges filed by Tim Curry, Ozias Foster,
Royce Ellison, Mervin L. McGirt, Clarence Cook, Kevin
Astrop, Nathan Nesbit, Chris Carethers, Lamar Hall, Leon
Townsend, Steven Le, and Sean Goodson, the General
Counsel issued a complaint on November 30, 2015. The
complaint alleges that the Respondent has maintained and
enforced a mandatory arbitration agreement in violation of
Section 8(a)(1) of the National Labor Relations Act. The
complaint also alleges that the mandatory arbitration
agreement includes overboard provision prohibiting or re-
stricting employee access to the Board in violation of Sec-
tion 8(a)(1). On April 12, 2016, Respondent ADI World-
link, LLC filed a motion for summary judgment. On April
19, 2016, the General Counsel filed a response to the mo-
tion and a cross-motion for summary judgment.
On July 25, 2016, the National Labor Relations Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why either motion should not
be granted. Respondent ADI Worldlink, LLC, Respond-
ent Samsung Electronics America, Inc., and the Charging
Parties filed a response to the Notice to Show Cause.
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

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel. Chairman Ring, who is
recused, is a member of the panel but took no part in the consideration
of this case on the merits. Member Emanuel is also recused and took no
part in the consideration of this case. In New Process Steel, L.P. v. NLRB,
560 U.S. 674 (2010), the Supreme Court left undisturbed the Board’s
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., we conclude that the complaint allegations
that the mandatory arbitration agreement is unlawful
based on Murphy Oil must be dismissed.
2. There remains the separate issue whether the Re-
spondent’s arbitration agreement independently violates
Section 8(a)(1) of the Act because it interferes with em-
ployees’ ability to access the Board. When the parties
filed their pending motions, the issue whether mainte-
nance of a facially neutral work rule or policy violated
Section 8(a)(1) would be resolved based on the “reasona-
bly construe” prong of the analytical framework set forth
in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). On December 14, 2017, the Board issued its de-
cision in The Boeing Company, 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 an-
nounced 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
this complaint allegation.
Accordingly, we deny without prejudice the motions for
summary judgment with respect to this complaint allega-
tion, and we will remand this proceeding to the Regional
Director for Region 7 for further action as she deems ap-
propriate.
ORDER
The complaint allegations that the maintenance and en-
forcement of the mandatory arbitration agreement unlaw-
fully 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
practice of deciding cases with a two-member quorum of a panel when
one of the panel members has recused himself. Under the Court’s read-
ing of the Act, “the group quorum provision [of Sec. 3(b)] still operates
to allow any panel to issue a decision by only two members if one mem-
ber is disqualified.” New Process Steel, 560 U.S. at 688; see also Cor-
rectional Medical Services, Inc., 356 NLRB 277, 277 fn. 1 (2010).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Regional Director for Region 7 for further appropriate ac-
tion.
Dated, Washington, D.C. October 2, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD