IIG WIRELESS, INC. F/K/A UNLIMITED PCS, INC.; and UPCS CA RESOURCES, INC.

National Labor Relations Board - Unpublished Board Decisions

Oct 25, 2018

21-CA-152170 (N.L.R.B. Oct. 25, 2018)

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McK(P)E
Garden Grove, CA
Irvine, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
IIG WIRELESS, INC. f/k/a UNLIMITED PCS,
INC.; and UPCS CA RESOURCES, INC.
and Case 21–CA–152170
JOANNA ROSALES
DECISION, ORDER, and NOTICE TO SHOW CAUSE
On April 14, 2016, Administrative Law Judge Jeffrey D. Wedekind issued the attached
decision. The Respondents filed exceptions and a supporting brief, the General Counsel filed an
answering brief, and the Respondents filed a reply brief.
The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
1. The judge found, applying 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), that the
Respondents violated Section 8(a)(1) of the National Labor Relations Act by maintaining and
enforcing a Mutual Arbitration Agreement (the “MAA”) that requires employees, as a condition
of employment, to waive their rights to pursue class or collective actions involving employment-
related claims in all forums, whether arbitral or judicial.
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Recently, the Supreme Court issued a 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 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 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.
The Board has considered the decision and the record in light of the exceptions and
briefs. 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 allegations that the MAA is
unlawful based on Murphy Oil must be dismissed.1
2. There remains the separate issue whether the Respondents’ MAA independently
violated Section 8(a)(1) of the Act because it would reasonably be construed by employees to
restrict their ability to file unfair labor practice charges with the Board.
At the time of the judge’s decision and the Respondents’ exceptions, the issue of whether
the maintenance of a work rule or 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 an employer’s maintenance of a facially

1 We therefore find no need to address other issues raised by the Respondents’ exceptions
to the judge’s decision regarding this allegation.
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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, we sever and retain this complaint allegation, and we issue below a notice
to show cause why the allegation that the MAA would reasonably be construed by employees to
restrict employees’ ability to file unfair labor practice charges with the Board 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.
ORDER
The complaint allegation that the maintenance and enforcement of the MAA unlawfully
restricts employees’ statutory rights to pursue class or collective actions is dismissed.
Further,
NOTICE IS GIVEN that any party seeking to show cause why the issue whether the
Respondents’ MAA violated Section 8(a)(1) of the Act because it would reasonably be construed
by employees to restrict employees’ ability to file unfair labor practice charges with the Board
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 November 8. 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., October 24, 2018.
______________________________________
Lauren McFerran, Member
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_____________________________________
Marvin E. Kaplan, Member
____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD