Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Bank of America Corporation (he

National Labor Relations Board - Unpublished Board Decisions

Oct 15, 2018

31-CA-072916 (N.L.R.B. Oct. 15, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
COUNTYWIDE FINANCIAL CORPORATION,
COUNTRYWIDE HOME LOANS, INC., AND
BANK OF AMERICA CORPORATION
and Case 31-CA-072916
JOSHUA D. BUCK AND MARK THIERMAN,
THIERMAN LAW FIRM
and Case 31-CA-072918
PAUL CULLEN, THE CULLEN LAW FIRM
NOTICE TO SHOW CAUSE
On August 14, 2015, the National Labor Relations Board issued a Decision and Order, 362
NLRB No. 165, finding that the Respondent violated Section 8(a)(1) of the Act by both (1) maintaining or
enforcing/applying a mandatory arbitration agreement that requires employees to waive the right to
maintain class or collective actions in all forums; and (2) maintaining a mandatory arbitration agreement
that employees would reasonably believe bars or restricts their access to the Board. On June 29, 2018, the
United States Court of Appeals for the Ninth Circuit denied enforcement, in light of Epic Systems Corp.
v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), of the Board’s Order on the first finding and remanded the
second finding back to the Board.
At the time of the Board’s decision, and Administrative Law Judge William G. Kocol’s
February 13, 2013 decision that the Board affirmed in relevant part as to (2), above, the issue
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 would be
resolved based on the prong of the analytical framework set forth in Lutheran Heritage Village-
2
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, the Board hereby issues the following notice to show cause why this issue
should not be remanded to a 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 October 29, 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 15, 2018.
By direction of the Board:
/s/ Roxanne L. Rothschild
Executive Secretary