Century Fast Foods, Inc.

National Labor Relations Board - Unpublished Board Decisions

Oct 29, 2018

31-CA-116102 (N.L.R.B. Oct. 29, 2018)

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Chatsworth, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CENTURY FAST FOODS, INC.
and Case 31-CA-116102
WILLIAM LUJAN
NOTICE TO SHOW CAUSE
On January 20, 2016, the Board issued a Decision and Order finding that the Respondent
violated Section 8(a)(1) of the Act by: (1) maintaining and enforcing an Agreement to Arbitrate
(Agreement) that requires employees, as a condition of employment, to waive their right to file
class or collective actions in all forums; (2) maintaining an Agreement that leads employees to
reasonably believe that they barred or restricted from filing charges with the Board; and (3)
maintaining an Agreement that requires employees to keep confidential any arbitration
proceedings undertaken under the Agreement. 363 NLRB No. 97. On June 29, 2018, the United
States Court of Appeals for the Ninth Circuit issued an Order, in light of Epic Systems Corp. v.
Lewis, 585 U.S. ___, 138 S. Ct. 1612 (2018), vacating the Board’s first finding, and remanding
findings (2) and (3) to the Board.
At the time of the Board’s decision, and Administrative Law Judge Ariel L. Sotolongo’s
decision, issue (2), whether 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, was resolved based on the prong of the analytical framework set forth in Lutheran
Heritage 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
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language to prohibit Section 7 activity.” Id. at 647. Issue (3), whether the Agreement’s
confidentiality requirement violated Section 8(a)(1), was similarly analyzed under Lutheran
Heritage. 363 NLRB No. 97, slip op. at 1 fn. 4.1 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, the Board hereby issues the following notice to show cause why this case
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.
NOTICE IS GIVEN that any party seeking to show cause why this case 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 November 13, 2018 (with affidavit of service on the parties to
this proceeding). Any briefs or statements in support of the motion shall be file don the same
date.
Dated, Washington, D.C., October 29, 2018.
By direction of the Board:
/s/ Roxanne L. Rothschild
Executive Secretary

1 The Board found the confidentiality requirement unlawful under Lutheran Heritage’s prong
one “reasonably construed” analysis, and also under prong three because the rule was unlawfully
applied to restrict employees’ Sec. 7 rights.