E.A. Renfroe & Company, Inc

National Labor Relations Board - Unpublished Board Decisions

Oct 4, 2018

10-CA-171072 (N.L.R.B. Oct. 4, 2018)

RMcK
Birmingham, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
E.A. RENFROE & COMPANY, INC.
and Case 10-CA-171072
KIMANI ADAMS
DECISION, ORDER, AND NOTICE TO SHOW CAUSE
On August 17, 2016, Administrative Law Judge Keltner W. Locke issued the attached
decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an
answering brief, and the Respondent 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
Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining the
“Mutual Agreement to Arbitrate Employment Related Disputes” (MAA), which 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.
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).
2
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 allegation that the MAA is
unlawful based on Murphy Oil must be dismissed.1
2. The judge found that the MAA independently violated Section 8(a)(1) of the Act
because it interfered with employees’ ability to access the Board, as set forth in U-Haul Co. of
California, 347 NLRB 375, 377-378 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007). In
finding the U-Haul violation, the judge applied the “reasonably construe” prong of the Board’s
decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (Lutheran Heritage). The
judge also addressed another alleged unfair labor practice.
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 the U-Haul
complaint allegation and issue a notice to show cause why it 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.

1 We therefore find no need to address other issues raised by the Respondent’s exceptions
regarding this allegation.
3
ORDER
The complaint allegation that the maintenance of the Mutual Agreement to Arbitrate
Employment Related Disputes unlawfully restricts employees’ statutory rights to pursue class or
collective actions is dismissed.
Further,
NOTICE IS GIVEN that cause be shown in writing, filed with the Board in Washington,
D.C., on or before October 18, 2018 (with affidavit of service on the parties to this proceeding),
why the complaint allegation that the Respondent’s MAA unlawfully restricts employee access
to the Board should not be remanded to the administrative law judge for further proceedings
consistent with the Board’s decision in Boeing. Any response should address whether a remand
would affect the Board’s ability to resolve the remaining complaint allegation that Charging
Party Kimani Adams was unlawfully constructively discharged, including whether it should be
severed and retained or instead included in the remand. Any briefs or statements in support of
the motion shall be filed on the same date.
Dated, Washington, D.C., October 4, 2018.
_________________________________
John F. Ring, Chairman
_________________________________
Lauren McFerran, Member
_________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD