Briad Wenco, LLC d/b/a Wendy's Restaurant

National Labor Relations Board - Unpublished Board Decisions

Oct 3, 2018

29-CA-165942 (N.L.R.B. Oct. 3, 2018)

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RMcE
Livingston, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BRIAD WENCO, LLC, D/B/A
WENDY’S RESTAURANT
and Case No. 29–CA–165942
FAST FOOD WORKERS COMMITTEE
DECISION, ORDER, and
NOTICE TO SHOW CAUSE
On July 6, 2016, Administrative Law Judge Joel P. Biblowitz issued a decision in this
case. The Respondent filed exceptions and a supporting brief, the General Counsel filed an
answering letter brief, and the Charging Party field an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
1. The judge found, applying the Board’s decisions in D. R. Horton, Inc., 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), that the
Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining
mandatory arbitration agreements in New York, New Jersey, and Pennsylvania that require
employees, as a condition of employment, to waive their rights to pursue class or collective
actions involving employment-related claims in all forums, whether arbitral or judicial.
Recently, the Supreme Court issued a 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,
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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.
The Board has considered the decision and the record in light of the exceptions and
briefs. 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 arbitration
agreements are unlawful based on Murphy Oil must be dismissed.1
2. There remains the separate issue whether the Respondent’s arbitration agreements
independently violate Section 8(a)(1) of the Act because they interfere with employees’ ability to
access the Board. The Respondent excepts to the judge’s finding that the arbitration agreements
are unlawful because employees would reasonably believe they bar or restrict them from filing
unfair labor practice charges with the Board and/or restrict their access to the Board’s processes.
See U-Haul Co. of California, 347 NLRB 375, 377-378 (2006), enfd. 255 Fed. Appx. 527 (D.C.
Cir. 2007).
At the time of the judge’s decision and the Respondent’s exceptions, the issue whether
maintenance of a work rule or 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

1 We therefore find no need to address other issues raised by the Respondent’s exceptions
to the judge’s decision regarding this allegation.
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Village-Livonia, 343 NLRB 646 (2004), that held 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).
Accordingly, we sever and retain this complaint allegation, and we issue below a notice
to show cause why the allegation that the arbitration agreements unlawfully restrict employee
access to the Board should not be remanded to the judge for further proceedings in light of
Boeing, including, if necessary, the filing of statements, reopening the record, and issuance of a
supplemental decision.
ORDER
The complaint allegation that the maintenance of the arbitration agreements unlawfully
restricts employees’ statutory rights to pursue class or collective actions is dismissed.
Further,
NOTICE IS GIVEN that any party seeking to show cause why the issue whether the
Respondent’s mandatory arbitration agreements unlawfully restrict employee access to the Board
should not be remanded to the administrative law judge must do so in writing, filed with the
Board in Washington, D.C., on or before October 17, 2018 (with affidavit of service on the
parties to this proceeding). Any briefs or statements in support of the motion shall be filed on
the same date.
Dated, Washington, D.C. October 3, 2018.
____________________________________
JOHN F. RING, CHAIRMAN
____________________________________
LAUREN McFERRAN, MEMBER
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____________________________________
WILLIAM J. EMANUEL, MEMBER
(SEAL) NATIONAL LABOR RELATIONS BOARD