FRY'S ELECTRONICS, INC.

National Labor Relations Board - Board Decisions

Oct 18, 2018

367 NLRB No. 24 (N.L.R.B. 2018)

367 NLRB No. 24
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.
Fry’s Electronics, Inc. and Alexander Warner. Case
32–CA–156938
October 18, 2018
DECISION AND ORDER REMANDING 1
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
Pursuant to a charge filed by Alexander Warner, the
General Counsel issued a complaint on November 24,
2015, an amended complaint on December 7, 2015, and a
second amended complaint on January 25, 2016. The
second amended complaint alleges that the Respondent
has maintained and/or enforced a mandatory arbitration
agreement2 that unlawfully restricts employees’ statutory
rights to pursue class or collective actions in violation of
Section 8(a)(1) of the National Labor Relations Act. The
second amended complaint also alleges that the mandato-
ry arbitration agreement includes language that employ-
ees would reasonably conclude prohibits or restricts their
right to file unfair labor practice charges with the Board.
On January 29, 2016, the General Counsel filed a motion
for summary judgment. On February 25, 2016, the Na-
tional 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. On March 9,
2016, the Respondent filed a response to the General
Counsel’s motion and a cross-motion for summary
judgment. On March 23, 2016, the General Counsel
filed a reply.
1. Recently, the Supreme Court issued its decision in
Epic Systems Corp. v. Lewis, 584 U.S. __, 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-

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The second amended complaint identifies two versions of the
Agreement, one that the Respondent required its employees to sign
from approximately September 2012 to February 2014 and one that the
Respondent required its employees to sign from approximately Febru-
ary 2014 to the date of the second amended complaint. In his motion
for summary judgment, the General Counsel notes that the Respondent
changed the language of the agreement in February 2014 in ways that
are not determinative to this proceeding. In its response to General
Counsel’s motion for summary judgment, the Respondent refers to a
single arbitration agreement. Therefore, we too refer to the 2012 and
2014 agreements in the singular.
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 __,
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 mandatory arbitration
agreement is unlawful based on Murphy Oil must be
dismissed.
2. There remains the separate issue whether the Re-
spondent’s arbitration agreement independently violates
Section 8(a)(1) of the Act because it interferes with em-
ployees’ ability to access the Board. When the parties
filed their pending motions, the issue whether mainte-
nance of a facially neutral work rule or policy violated
Section 8(a)(1) would be resolved based on the “reason-
ably construe” prong of the analytical framework set
forth in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004). On December 14, 2017, the Board issued its
decision in The Boeing Co., 365 NLRB No. 154, 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 this complaint allegation.
Accordingly, we deny without prejudice the motions
for summary judgment with respect to this complaint
allegation, and we will remand this proceeding to the
Regional Director for Region 32 for further action as she
deems appropriate.
ORDER
The complaint allegations that the maintenance and en-
forcement of the mandatory arbitration agreement unlaw-
fully restricts employees’ statutory rights to pursue class
or collective actions are 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 32 for further appropriate
action.
Dated, Washington, D.C. October 18, 2018
______________________________________
John F. Ring, Chairman
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD