GC Services Limited Partnership, a limited partnership, and GC Financial Corp., general partner

National Labor Relations Board - Unpublished Board Decisions

Oct 31, 2018

28-CA-166389 (N.L.R.B. Oct. 31, 2018)

NOT INCLUDED IN RKE
BOUND VOLUMES Tucson, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GC SERVICES LIMITED PARTNERSHIP
and
BRADLEY NELSON
Case 28-CA-166389
ORDER RESCINDING ORDER APPROVING STIPULATION,
GRANTING MOTION, AND TRANSFERRING PROCEEDING
TO THE BOARD
This matter came before the National Labor Relations Board pursuant to a Board Order
granting a joint motion by the parties to transfer this proceeding directly to the Board for a
decision based on the stipulated record. For the reasons that follow, the Board has now decided
to rescind its prior Order and to deny the joint motion.
On March 30, 2016, the General Counsel, through the Regional Director for Region 28,
issued a complaint alleging that, beginning about December 15, 2015, the Respondent
maintained and required employees to sign, as a condition of employment, its Mutual Agreement
for Dispute Resolution and a Code of Business Ethics and Conduct including GC Services’
Dispute Resolution Program. On September 26, 2016, the parties filed a joint motion to waive a
hearing and a decision by an administrative law judge and to transfer this proceeding to the
Board for a decision based on a stipulated record. The parties stipulated that the issue to be
resolved is whether the Respondent’s maintenance of its Mutual Agreement for Dispute
Resolution and GC Services’ Dispute Resolution Program (hereafter “Arbitration Agreement”)
interferes with, restrains, and coerces employees in the exercise of the rights guaranteed under
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Section 7 of the Act in violation of Section 8(a)(1) of the Act. On January 9, 2017, the Board
issued an Order Approving Stipulation, Granting Motion, and Transferring Proceeding to the
Board. Pursuant to that Order, the Board transferred the case to the Board for the purpose of
issuing findings of fact, conclusions of law, and a Decision and Order, and set a briefing
schedule. On February 7, 2017, the Board granted the Respondent’s request for an extension of
time in which to file briefs and set the due date for initial briefs at 35 days after the Supreme
Court issued its decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018).
On June 4, 2018, the General Counsel filed a request for extension of time to file briefs. On June
5, 2018, the Board granted the request. A due date for filing of briefs has not been set. No briefs
have been filed.
The stipulated issue—that the Respondent, by maintaining its Arbitration Agreement, has
been violating Section 8(a)(1) of the Act—relies on the Board’s decisions in D. R. Horton, Inc.,
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),
holding that the maintenance and enforcement of an arbitration agreement requiring employees
to waive the right to commence or participate in class or collective actions in all forums, whether
arbitral or judicial, violates Section 8(a)(1).
Recently, the Supreme Court issued its decision in Epic Systems, 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 Systems 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
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individualized 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 violate 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., the Board now rescinds its January 9, 2017 Order and denies
the parties’ September 26, 2016 joint motion without prejudice.
Dated, Washington D.C., October 31, 2018.
By Direction of the Board:
/s/
____________________________
Farah Qureshi
Associate Executive Secretary