Cowabunga, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 2018

10-CA-151454 (N.L.R.B. Oct. 31, 2018)

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RKE
Alpharetta, GA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
COWABUNGA, INC.
and Case 10-CA-151454
CHADWICK HINES
ORDER DENYING MOTION AND REMANDING
On February 26, 2016, the National Labor Relations Board granted the General
Counsel’s motion for summary judgment in a Decision and Order, 363 NLRB No. 133,
finding that the Respondent violated Section 8(a)(1) of the Act by (1) maintaining and
enforcing a mandatory arbitration agreement that requires employees, as a condition of
employment, to waive the right to maintain class or collective actions in all forums, and
(2) maintaining an arbitration agreement that employees reasonably would believe
interferes with their ability to access the Board. On June 26, 2018, the United States
Court of Appeals for the Eleventh Circuit denied enforcement of the Board’s Order on
the first of these findings in light of Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct.
1612 (2018). As to the second finding, the court vacated the Board’s grant of summary
judgment and remanded the allegation to the Board.
At the time of the Board’s decision, the issue whether maintenance of an
arbitration agreement that does not expressly restrict employee access to the Board
violates 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 Village-Livonia, 343 NLRB 646 (2004), that held an employer’s
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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).
Under the standard announced in Boeing, the General Counsel has not established
in his motion for summary judgment that there are no genuine issues of material fact or
that he is entitled to judgment as a matter of law. Accordingly, we deny without
prejudice the General Counsel’s motion, and we will remand this issue to the Regional
Director for Region 10 for further action as he deems appropriate.
ORDER
IT IS ORDERED that the General Counsel’s motion for summary judgment is
denied, and this proceeding is remanded to the Regional Director for Region 10 for
further appropriate action.
Dated, Washington, D.C. October 31, 2018.
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John F. Ring, Chairman
________________________________
Marvin E Kaplan, Member
________________________________
William E. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD