Cordua Restaurants, Inc.

National Labor Relations Board - Unpublished Board Decisions

Aug 15, 2018

16-CA-160901 (N.L.R.B. Aug. 15, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CORDUA RESTAURANTS, INC.
and Cases 16-CA-160901
STEVEN RAMIREZ
and 16-CA-161380
ROGELIO MORALES
and 16-CA-170940
16-CA-173451
SHEARONE LEWIS
ORDER VACATING DECISION AND ORDER
On April 26, 2018, the National Labor Relations Board issued a Decision and Order
in this proceeding, reported at 366 NLRB No. 72, in which it found that certain unfair labor
practices had been committed, and severed and held in abeyance other unfair labor
practice allegations. Thereafter, a petition for review was filed in the United States Court
of Appeals for the Fifth Circuit, but the administrative record has not yet been filed with the
court.
On May 21, 2018, the Supreme Court issued its decision in Epic Systems Corp. v.
Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018). In view of the Court’s decision, the Board has
sua sponte decided to vacate its Decision and Order pursuant to Section 10(d) of the
National Labor Relations Act, to reconsolidate those allegations with the severed
allegations, and to reconsider the entire proceeding.1

1 Section 10(d) states that “[u]ntil the record in a case shall have been filed in a court, as
hereinafter provided, the Board may at any time, upon reasonable notice and in such
manner as it shall deem proper, modify or set aside, in whole or in part, any finding or
order made or issued by it.” See also In re NLRB, 304 U.S. 486 (1938).
2
Dated, Washington, D.C., August 15, 2018
JOHN F. RING, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Members Pearce and McFerran, dissenting.
We disagree with our colleagues that Epic Systems warrants reopening the issues
previously decided in this case. Epic Systems resolved the question whether an
employer’s maintenance of an arbitration agreement barring employees from bringing a
collective action violated the Act. By contrast, in the present case the Board found that the
Respondent violated the Act by discharging employee Steven Ramirez in response to his
filing of a collective wage-and-hour lawsuit against the Respondent. It is well-settled that
the filing of such a lawsuit constitutes protected concerted activity, and the Respondent
has not contended otherwise. Thus, the Board’s finding of the unlawful discharge of
Ramirez is not affected by the holding of Epic Systems.
Dated, Washington, D.C., August 15, 2018
MARK GASTON PEARCE, MEMBER
LAUREN MCFERRAN, MEMBER