THE BRIAD RESTAURANT GROUP, LLC

National Labor Relations Board - Unpublished Board Decisions

Aug 6, 2018

22-CA-165746 (N.L.R.B. Aug. 6, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BRIAD RESTAURANT GROUP, LLC
and Case 22-CA-165746
OUTTEN & GOLDEN, L.L.P.
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 28, 2016, the General Counsel, through the Regional Director for Region 22,
issued a complaint alleging that the Respondent has been violating Section 8(a)(1) of the
National Labor Relations Act by promulgating and maintaining individual arbitration agreements
entitled “Employment At-Will and Arbitration Agreement, Non-California States – Hourly
Employees” (Arbitration Agreement). On September 7, 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. On October 26, 2016, 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
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findings of fact, conclusions of law, and a Decision and Order, and set a briefing schedule. The
parties thereafter filed briefs.
In support of the complaint’s allegations, 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 744 (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 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 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.
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In light of the Supreme Court’s decision in Epic Systems, which overrules the Board’s
holding in Murphy Oil USA, Inc., supra, the Board now rescinds its October 26, 2016 Order and
denies the parties’ September 30, 2015 joint motion without prejudice.
Dated, Washington, D.C., August 6, 2018.
By Direction of the Board:
/s/ Farah Z. Qureshi
____________________________
Associate Executive Secretary