Mas Tec North America, Inc.

National Labor Relations Board - Unpublished Board Decisions

Oct 15, 2018

34-CA-090246 (N.L.R.B. Oct. 15, 2018)

RMcK
East Hartford, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MASTEC NORTH AMERICA, INC.
and Case 34-CA-090246
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 488,
AFL-CIO
DECISION, ORDER, AND NOTICE TO SHOW CAUSE
On May 23, 2013, the General Counsel, through the Regional Director for Region
1, Subregion 34, issued a complaint alleging that the Respondent has been violating
Section 8(a)(1) of the National Labor Relations Act by maintaining certain work rules or
policies. The complaint also alleges that the Respondent has violated Section 8(a)(1) by
maintaining its Dispute Resolution Policy. On June 19, 2014, 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
refiled the joint motion on September 26, 2014. On November 17, 2014, 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. The parties thereafter filed briefs.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.1

1 Member Emanuel is recused and took no part in the consideration of this case.
2
1. In support of the complaint’s allegation that the Respondent unlawfully
maintained its Dispute Resolution Policy, the General Counsel 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, violate Section 8(a)(1) of the National Labor Relations Act.
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. 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 Dispute Resolution Policy is unlawful based on Murphy
Oil must be dismissed.
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2. In support of the complaint’s allegations that the Respondent unlawfully
maintained the disputed work rules, the General Counsel relies on the “reasonably
construe” prong of the Board’s decision in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004) (Lutheran Heritage). 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 these complaint allegations, and we issue
below a notice to show cause why they should not be remanded to the Regional Director
for further proceedings in light of Boeing.
ORDER
The complaint allegation that the maintenance of the Dispute Resolution Policy
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 remaining
complaint allegations should not be remanded to the Regional Director for Region 1,
Subregion 34, must do so in writing, filed with the Board in Washington, D.C., on or
4
before October 29, 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 15, 2018.
______________________________________
JOHN F. RING, Chairman
______________________________________
LAUREN McFERRAN, Member
______________________________________
MARVIN E. KAPLAN, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD