Hunton Employment & Labor Perspectives

The National Labor Relations Board (“Board”) has taken the first step to potentially reshape labor law since the May 21, 2018 Epic Systems case, in which the Supreme Court held that class waivers in arbitration agreements do not violate the National Labor Relations Act (“Act”).

On August 15, 2018, the Board vacated its decision and order in Cordúa Restaurants, Inc., 366 NLRB No. 72 (April 26, 2018), where a three-member panel of the Board held that an employee engaged in concerted, protected activity by filing a class action wage lawsuit against his employer.

The Board’s recent vacating of this order is noteworthy for two reasons.

First, the Board’s action in Cordúa was sua sponte, meaning on its own accord.  While the Board has rescinded or dismissed over a dozen orders or Board complaints based on Epic Systems since July 31, 2018, its action in each of those was based on a party’s motion.  Cordúa appears to be the first such action taken on account of Epic Systems on a sua sponte basis.

Second, while the Board’s order vacating Cordúa explicitly referenced Epic Systems, class action waivers were not at issue in the underlying April 26, 2018 decision.  The case’s primary holding involved a restaurant server, Steven Ramirez, whom the panel determined was terminated for engaging in protected activities in violation of Section 8(a)(1) of the Act.  Mr. Ramirez’s specific protected activities were filing a class action wage lawsuit against his employer, answering questions from other employees about the lawsuit, and asking another employee to obtain payroll information about employees for the lawsuit.

The Board’s August 15, 2018 Order does not state which of the issues in Cordúa it wishes to reconsider, but that it will “reconsider the entire proceeding.”  However, it is possible, even likely, that the Board will readdress the scope of Section 7’s “catchall term,” which was a substantial but overlooked part of Epic Systems.   Specifically, the Supreme Court in Epic Systems cabined the catchall term “other concerted activities” to mean activities similar to the specific activities listed in the same statute, which essentially limits the catchall term’s application to activities aimed at collective bargaining.  Epic Systems is the most substantive case to date on Section 7’s catchall term and the Supreme Court’s first comment on the term since 1984.

Applying the Supreme Court’s narrow interpretation of the catchall term, it is difficult to conclude that Section 7 of the Act protects Mr. Ramirez’s activities in Cordúa.  Though it remains to be seen what the Board will do, Cordúa seems unusually well-placed for a potential reshape of federal labor law.