Private National Mortgage Acceptance Company, LLC, “Pennymac”

Sacramento, CA, November 16, 2018.  The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint allegation that the Respondent’s maintenance of its Mutual Arbitration Policy violated Section 8(a)(1) must be dismissed.  As to the separate issue whether the Respondent’s Mutual Arbitration Policy independently violates Section 8(a)(1) because it interferes with employees’ ability to access the Board, the Board observed that, at the time of the Administrative Law Judge’s decision and the parties’ exceptions, the issue whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would be resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).  The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154, in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases.  Accordingly, the Board issued a Notice to Show Cause why the allegation that the Mutual Arbitration Policy unlawfully restricts employee access to the Board should not be remanded to the judge for further proceedings in light of Boeing.  Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on November 29, 2016.  Chairman Ring and Members McFerran and Kaplan participated.

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