WALNUT CREEK ASSOCIATES 2, INC., D/B/A WALNUT CREEK HONDA

National Labor Relations Board - Board Decisions

Oct 31, 2018

32-CA-176353 (N.L.R.B. Oct. 31, 2018)

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RMcK
Oakland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
WALNUT CREEK ASSOCIATES 2, INC. d/b/a
WALNUT CREEK HONDA
and Case 32-CA-176353
ELY LANDEN
DECISION AND ORDER REMANDING 1
Pursuant to charges filed by Ely Landen, the General Counsel issued a complaint
on September 30, 2016. The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act by maintaining and enforcing a mandatory
arbitration agreement. The complaint also alleges that the mandatory arbitration
agreement includes an overbroad provision prohibiting or restricting employee access to
the Board in violation of Section 8(a)(1). Finally, the complaint alleges that the
mandatory arbitration agreement includes an overbroad confidentiality provision that
prohibits employees from disclosing the “existence, content, or results” of an arbitration
without the consent of all parties in violation of Section 8(a)(1). On November 4, 2016,
the General Counsel filed a motion to transfer the case to the Board and a motion for
summary judgment. On November 7, 2016, the Respondent filed a cross-motion for
summary judgment.

1 The National Labor Relations Board has delegated its authority in this
proceeding to a three-member panel. Member Emanuel is recused and took no part in
the consideration of this case.
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On November 8, 2016, the National Labor Relations Board issued an order
transferring the proceeding to the Board and a Notice to Show Cause why the General
Counsel’s motion for summary judgment should not be granted. The General Counsel
filed a response to the Notice to Show Cause, and the Respondent filed an opposition
to the General Counsel’s motion for summary judgment.
1. 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 1619–21, 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 allegations that the mandatory arbitration
agreement is unlawful based on Murphy Oil must be dismissed.
2. There remain the separate issues whether the arbitration agreement
independently violates Section 8(a)(1) of the Act because it prohibits or restricts
employee access to the Board and because it prohibits employees from disclosing
anything about an arbitration without the consent of all parties. When the parties filed
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their pending motions, the issue whether maintenance of a facially neutral work rule or
policy violated Section 8(a)(1) would be resolved based on the “reasonably construe”
prong of the standard set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). On December 14, 2017, the Board issued its decision in The Boeing Company,
365 NLRB No. 154, slip op. at 14-17 (2017), in which it overruled the Lutheran Heritage
“reasonably construe” test and announced a new standard that applies retroactively to
all pending cases. Under the standard announced in Boeing, the parties’ motions do
not establish that there are no genuine issues of material fact and that either party is
entitled to judgment as a matter of law as to these complaint allegations.
Accordingly, we deny without prejudice the motions for summary judgment with
respect to these complaint allegations, and we will remand this proceeding to the
Regional Director for Region 32 for further action as she deems appropriate.
ORDER
The complaint allegations that the maintenance and enforcement of the
mandatory arbitration agreement unlawfully restricts employees’ statutory rights to
pursue class or collective actions are dismissed.
IT IS FURTHER ORDERED that the parties’ motions for summary judgment are
denied without prejudice in all other respects, and these proceedings are remanded to
the Regional Director for Region 32 for further appropriate action.
Dated, Washington, D.C., October 31, 2018.
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____________________________________
JOHN F. RING, CHAIRMAN
____________________________________
LAUREN McFERRAN, MEMBER
____________________________________
MARVIN E. KAPLAN, MEMBER
(SEAL) NATIONAL LABOR RELATIONS BOARD