2019 NLRB LEXIS 351; 2019 L.R.R.M. 223840; 2018-19 NLRB Dec. (CCH) P16,552; 368 NLRB No. 10; 2019 WL 2525342

2019 NLRB LEXIS 351; 2019 L.R.R.M. 223840; 2018-19 NLRB Dec. (CCH) P16,552; 368 NLRB No. 10; 2019 WL 2525342

Opinion

SUPPLEMENTAL DECISION AND ORDER

Prime Healthcare Paradise Valley, LLC, above, slip op. at 1On April 22, 2016, the National Labor Relations Board issued a Decision and Order finding that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing its Mediation and Arbitration Agreement (M & AA) and Mutual Agreement to Arbitrate (MAA). Prime Healthcare Paradise Valley, LLC, 363 NLRB No. 169 (2016). Applying 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), the Board found that the M & AA and MAA unlawfully required employees, as a condition of their employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. Prime Healthcare Paradise Valley, LLC, above, slip op. at 1. The Board also found that the M & AA violated the Act on the basis that employees reasonably would construe it to restrict their access to the Board's processes. Id., slip op. at 1 fn. 3.

The Respondent filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit. The Board filed a cross-application for enforcement and, subsequently, a motion to hold the appeal in abeyance pending the Supreme Court's resolution of [*2]  the issue presented 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)--namely, whether employer-employee agreements that contain class- and collective-action waivers and require individualized arbitration violate Section 8(a)(1) of the Act. On May 21, 2018, the Supreme Court held that such agreements do not violate the Act and should be enforced as written pursuant to the Federal Arbitration Act (FAA). Epic Systems Corp. v. Lewis, 584 U.S. , 138 S. Ct. 1612, 1632, 200 L. Ed. 2d 889 (2018).

On July 3, 2018, the D.C. Circuit granted the Board's motion to remove this case from abeyance, granted the Respondent's petition for review and denied the cross-application for enforcement with respect to the portion of the Board's Order governed by Epic Systems, and remanded the remainder of the case for further proceedings before the Board. Prime Healthcare Paradise Valley, LLC v. NLRB, No. 16-1132, -1173, 2018 U.S. App. LEXIS 18465 (D.C. Cir. July 3, 2018) (unpublished per curiam order). On July 13, 2018, the Board notified the parties that it had accepted the remand and invited them to file statements of position with respect to the issues raised by the remand. Thereafter, the General Counsel and the Respondent filed statements of position. The AFL-CIO filed an amicus brief. ¹ 

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