Exeter Finance Corp.

National Labor Relations Board - Board Decisions

Aug 2, 2018

366 NLRB No. 151 (N.L.R.B. 2018)

366 NLRB No. 151
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Exeter Finance Corp. and Bradley Goldowsky. Case
03–CA–158382
August 2, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations of the complaint and
that the Board should find, as a matter of law, that the
Respondent violated Section 8(a)(1) of the National La-
bor Relations Act by maintaining and enforcing a manda-
tory arbitration agreement that prohibits its employees
from engaging in class or collective litigation in all fo-
rums.
Pursuant to a charge filed by Bradley Goldowsky on
August 20, 2015, the General Counsel issued the com-
plaint on November 27, 2015, and an amended complaint
on December 3, 2015. The amended complaint alleges
that, at all material times, the Respondent has maintained
the Mutual Arbitration Agreement (the Agreement) that
all of its employees are required to sign as a condition of
employment. It further alleges that by maintaining the
Agreement, the Respondent has been interfering with,
restraining, and coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act, thereby
violating Section 8(a)(1) of the Act. Finally, the com-
plaint further alleges that the Respondent violated Sec-
tion 8(a)(1) of the Act when it sought to enforce the
Agreement on August 11, 2015, by filing a motion to
compel arbitration and stay the Charging Party’s class-
action lawsuit alleging violations of the Fair Labor
Standards Act in the United States District Court for the
Western District of New York.1
On December 17, 2015, the Respondent filed an an-
swer to the amended complaint admitting all of the mate-
rial factual allegations in the complaint, but denying the
legal conclusions.

1 Bradley Goldowsky v. Exeter Finance Corp., Case No. 1:15-CV-
00632 (United States District Court, Western District of New York).
On January 12, 2016, the General Counsel filed a Mo-
tion to Transfer Proceedings to the Board for summary
judgment and issuance of a Decision and Order, along
with a memorandum of law in support of its motion. On
January 20, 2016, the Respondent filed a response to the
General Counsel’s motion, consenting to the transfer of
proceedings to the Board but opposing the General
Counsel’s request for summary judgment.
On February 10, 2016, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Gen-
eral Counsel and the Respondent both filed responses on
March 25, 2016. The Respondent filed its reply on April
25, 2016.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The General Counsel and the Respondent agree, and
we find, that there are no issues of material fact warrant-
ing a hearing. In support of the motion for summary
judgment on 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 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 participate in class or
collective actions in all forums, whether arbitral or judi-
cial, violate Section 8(a)(1) of the Act.
Recently, the Supreme Court issued its decision in Ep-
ic 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, 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 con-
cerned the issue, common to all three cases, whether em-
ployer-employee agreements that contain class- and col-
lective-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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Accordingly, in light of the Supreme Court’s decision
in Epic Systems, which overrules the Board’s holding in
Murphy Oil USA, Inc., we deny the General Counsel’s
Motion for Summary Judgment and we will dismiss the
complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 2, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD