Hoot Winc, LLC and Ontario Wings, LLC dba Hooters of Ontario Mills, Joint Employers

National Labor Relations Board - Board Decisions

Nov 20, 2018

31-CA-104872 (N.L.R.B. Nov. 20, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
HOOT WINC, LLC and ONTARIO
WINGS, LLC D/B/A HOOTERS OF
ONTARIO MILLS
and
ALEXIS HANSON 31-CA-104872
31-CA-104874
and
JAMIE WEST 31-CA-104877
31-CA-104892
and
CHANELLE PANITCH 31-CA-107256
31-CA-107259
NOTICE TO SHOW CAUSE
On September 1, 2015, the National Labor Relations Board issued a Decision and Order,
363 NLRB No. 2, finding that the Respondent violated Section 8(a)(1) of the Act by both (1)
maintaining a mandatory individual arbitration policy and (2) interfering, through the arbitration
policy, with employees’ ability to access the Board. On June 28, 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 Nelson
Cates’ May 19, 2014 decision that the Board affirmed, the issue of whether the 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-Livonia, 343 NLRB 646 (2004),
which held that 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
proceeding should not be remanded to the 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 December 4, 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., November 20, 2018
By direction of the Board:
/s/ Roxanne L. Rothschild
Acting Executive Secretary