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National Labor Relations Board - Board Decisions

Oct 26, 2018

367 NLRB No. 13 (N.L.R.B. 2018)

367 NLRB No. 13
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Denovo Legal LLC d/b/a Epiq Document Review So-
lutions and Timothy Tanner. Case 02–CA–
182019
October 26, 2018
DECISION AND ORDER REMANDING1
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
Pursuant to a charge and an amended charge filed by
Timothy Tanner, an individual, the General Counsel is-
sued a complaint on November 30, 2016. The complaint
alleges, in part, that the Respondent has maintained un-
lawful workplace policies in its Employment, Confiden-
tial Information and Arbitration Agreement and Release
(Employment Agreement) in violation of Section 8(a)(1)
of the Act. The complaint also alleges that the Respond-
ent violated Section 8(a)(1) by discharging Tanner for
refusing to sign the Employment Agreement. On Janu-
ary 17, 2017, the General Counsel filed a Motion for
Summary Judgment, arguing, among other things, that
the arbitration provision in the Employment Agreement
violates the Act pursuant to the Board’s decisions D. R.
Horton, 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).
On February 13, 2017, the National Labor Relations
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed an answer
to the Notice to Show Cause and cross-motion for Sum-
mary Judgment.
1. Recently, the Supreme Court issued its decision in
Epic Systems Corp. v. Lewis, 584 U.S. ˍˍˍˍˍ, 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, 834 F.3d 975 (9th Cir. 2016), and Murphy Oil USA,
Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). Epic Sys-
tems 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 individual-
ized 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 vio-
late this Act and that the agreements must be enforced as
written pursuant to the Federal Arbitration Act. Id. at

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
___, 138 S.Ct. at 1619, 1632. 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 provi-
sion in the Employment Agreement is unlawful based on
Murphy Oil must be dismissed.
2. In the pending motions, the parties take conflicting
positions regarding the lawfulness of other of the Re-
spondent’s challenged rules under the “reasonably con-
strue” prong of the standard set forth in Lutheran Herit-
age Village-Livonia, 343 NLRB 646 (2004). On De-
cember 14, 2017, the Board issued its decision in Boeing
Co., 365 NLRB No. 154, slip op. at 14–17 (2017), in
which it overruled the Lutheran Heritage “reasonably
construe” test and announced a new standard that applies
retroactively to all pending cases. Under the standard
announced in Boeing, the parties’ motions do not estab-
lish that there are no genuine issues of material fact and
that either party is entitled to judgment as a matter of law
as to these complaint allegations.
Accordingly, we deny without prejudice the Motions
for Summary Judgment with respect to these complaint
allegations, and we will remand this proceeding to the
Regional Director for Region 2 for further action as she
deems appropriate.
ORDER
The complaint allegation that the maintenance of the
arbitration provision in the Employment Agreement un-
lawfully restricts employees’ statutory rights to pursue
class or collective actions is dismissed.
IT IS FURTHER ORDERED that the parties’ Motions for
Summary Judgment are denied without prejudice in all
other respects, and these proceedings are remanded to the
Regional Director for Region 2 for further appropriate
action.
Dated, Washington, D.C. October 26, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD