Bloomingdales, Inc.

National Labor Relations Board - Unpublished Board Decisions

Oct 24, 2018

31-CA-071281 (N.L.R.B. Oct. 24, 2018)

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

BLOOMINGDALE’S, INC.

and Case 31-CA-071281

FATEMEH JOHNMOHAMMADI

NOTICE TO SHOW CAUSE

On April 29, 2016, the National Labor Relations Board issued a Decision and Order, 363
NLRB No. 172, finding that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act by both (1) maintaining and enforcing 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 Jeffrey D.
Wedekind’s June 25, 2013 decision that the Board affirmed in relevant part, the issue whether
maintenance of a policy that did not expressly restrict employee access to the Board violated
Section 8(a)(1) would be resolved based on the prong of the analytical framework set forth in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), that held 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 at slip op. 14-17 (2017).
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Accordingly, the Board hereby issues the following notice to show cause why this issue
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 November 7, 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.

By direction of the Board:

/s/ Farah Z. Qureshi

Associate Executive Secretary