iSummarized Board Decision
Beena Beauty Holding, Inc. d/b/a Planet Beauty (31-CA-144492; 364 NLRB No. 3) Studio City, CA, May 23, 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 No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by: (1) maintaining an arbitration agreement that required 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; (2) maintaining an arbitration agreement that employees reasonably would construe as restricting their access to file unfair labor practice charges with the Board; and (3) enforcing its unlawful arbitration agreement by filing in state court a motion to compel individual arbitration of a wage and hour class action suit filed by the Charging Party.
Although he believed it is a close question, Member Miscimarra concurred in his colleagues’ finding that the Respondent’s arbitration agreement unlawfully interferes with NLRB charge filing in violation of 8(a)(1). However, consistent with his partial dissenting opinion in Murphy Oil, Member Miscimarra dissented from the majority’s finding that maintenance of the agreement violated the Act because the agreement requires employees to waive their rights to pursue class or collective actions regarding non-NLRA claims. Because he would find that the arbitration agreement’s class-waiver provision is lawful, Member Miscimarra would also find it lawful for the Respondent to seek enforcement of the agreement in state court.
Charge filed by an individual. Administrative Law Judge Mary Miller Cracraft issued her decision on March 3, 2016. Chairman Pearce and Members Miscimarra and Hirozawa participated.
