ETS OILFIELD SERVICES, L.P.

National Labor Relations Board - Board Decisions

Oct 25, 2018

367 NLRB No. 26 (N.L.R.B. 2018)

367 NLB No. 26
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.
ETS Oilfield Services, L.P. and Lloyd W. Oster Case 16–
CA–172847
October 25, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On December 23, 2016, Administrative Law Judge
Sharon Levinson Steckler issued the attached bench de-
cision. The Respondent filed exceptions and a support-
ing brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found, applying the Board’s decisions in D.
R. Horton, 357 NLRB 2277 (2012), enf. denied in rele-
vant 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), that the Respondent
violated Section 8(a)(1) of the National Labor Relations
Act by maintaining and enforcing a Mutual Agreement to
Arbitrate that requires employees, as a condition of em-
ployment, to waive their rights to pursue class or collec-
tive actions involving employment-related claims in all
forums, whether arbitral or judicial.
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 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). Epic Sys-
tems concerned the issue, common to all three cases,
whether employer-employee agreements that contain
class- and collective-action waivers and stipulate that
employment disputes are to be resolved by individual-
ized 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 vio-
late 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.
The Board has considered the decision and the record
in light of the exceptions and briefs. In light of the Su-
preme Court’s ruling in Epic Systems, which overrules
the Board’s holding in Murphy Oil, we conclude that the
complaint must be dismissed.1
ORDER
The complaint is dismissed.
Dated, Washington, D.C. October 25, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Roberto Perez, Esq., for the General Counsel.
Mike S. Moore and Mitchell Clark, Esqs., for the Respondent.
BENCH DECISION AND CERTIFICATION
SHARON LEVINSON STECKLER, Administrative Law Judge. I
heard this case on December 5, 2016, in Corpus Christi, Texas.
On the same day, after the parties rested, I heard oral argument
and issued a bench decision, pursuant to Section 102.35(a)(10)
of the Board’s Rules and Regulations, setting forth findings of
fact and conclusions of law. In the complaint, the General
Counsel alleged that ETS Oilfield Services (Respondent) vio-
lated Section 8(a)(1) of the National Labor Relations Act (the
Act) by maintaining an overly broad arbitration agreement.
For the reasons stated by me on the record, I found that Re-
spondent violated Section 8(a)(1) of the Act as alleged. In my
bench decision, I included Conclusions of Law and my Order.
I also attach an appropriate posting to the oral decision.
In accordance with Section 102.45 of the Board’s Rules and
Regulations, I certify the accuracy of, and attach hereto as
“Appendix,” the portion of the transcript containing this deci-
sion.1
Dated, Washington, D.C. December 23, 2016.
APPENDIX
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge.
This case was tried in Corpus Christi, Texas today, December
5, 2016. Charging Party Lloyd W. Oster, an Individual, (Oster)

1 We find no need to pass on the General Counsel’s motion to re-
mand this case for dismissal, which is moot in light of this decision.
1 The bench decision appears in uncorrected form at pp. 36 through
48 of the transcript. The final version, after correction of oral and
transcriptional errors, is attached as “Appendix” to this certification.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
filed the charge on March 29, 2016, and the General Counsel
issued the complaint on August 23, 2016. The issue presented
is narrow and requires no credibility determinations: Whether
Respondent’s arbitration agreement, on its face, violates Sec-
tion 8(a)(1) of the Act.
The parties presented their cases this morning and followed
with their oral arguments. I have carefully considered these
arguments. Therefore, upon the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent has been a limited partner-
ship doing business as ETS Oilfield Services, L.P. ETS Ser-
vices Management, LLC has been the general partner and
Devin W. Nevilles has been the limited partner. Respondent
has maintained a principal office and place of business in Rob-
stown, Texas, and shop in Seguin, Poteet, Laredo, Marshall,
and Odessa, Texas, well as Watford, North Dakota, and Rock
Springs, Wyoming. Its services include testing fluids and mo-
tors for oil companies. In conducting its operations for the 12-
month period ending April 1, 2016, Respondent performed
services valued in excess of $50,000 in states other than the
State of Texas. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ARBITRATION AGREEMENT
I am attaching a copy of Respondent’s Mutual Agreement to
Arbitration at Appendix A to this decision. The arbitration
agreement was entered into evidence as General Counsel’s
Exhibit 3. Respondent and General Counsel stipulated that all
employees are required to sign the Mutual Agreement to Arbi-
trate and it has been in effect since August 2014. (GC Exh. 4.)
In the meantime, on November 21, 2016, Charging Party, who
is no longer employed by Respondent, filed a Motion for Con-
ditional Collective Action Certification for misclassification of
employees pursuant to the Fair Labor Standards Act; he claims
employees were required to work hours without overtime pay
due to the misclassification. (See R Exh. 1.)
The Agreement contains the following language that is in
question:
As such, I agree that I am waiving my right to file, partici-
pate or proceed in class or collective actions (including a
Fair Labor Standards Act (“FLSA”) collective action) in
any civil court or arbitration proceeding, including but not
limited to receiving or requesting notice from a pending col-
lective action. Therefore, I agree that I cannot file or opt-in to
a collective action under this Agreement unless agreed up-
on by me and the Company in writing.
In short, employees may not join together in any forum to
pursue certain actions involving wages, hours and terms and
conditions of employment, including but not limited to, statuto-
ry claims such as wage claims under the FLSA. The agreement
also permits employees to file charges under the National Labor
Relations Act.
Respondent ETS’ affirmative defense is that the arbitration
agreement is consonant with current Fifth Circuit precedence.
The Fifth Circuit has held that a class action waiver in arbitra-
tion agreements does not violate Section 8(a)(1) of the Act.
Murphy Oil USA v. NLRB, 808 F.3d 1013 (5th Cir. 2015); D. R.
Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying
enforcement in relevant part 357 NLRB 2277 (2012). With all
due respect to the Fifth Circuit, I am required to apply the
Board’s current case law regarding class action waivers in arbi-
tration agreements until if and when the Board or the Supreme
Court holds otherwise. Waco Inc., 273 NLRB 746, 749 fn. 14
(1984); Iowa Beef Packers, 144 NLRB 615, 616–617 (1973).
No Supreme Court decision has directly addressed this issue.
Chesapeake Energy Corp., 362 NLRB 681 (2015), enf. denied
in rel. part 633 Fed.Appx. 613 (5th Cir. 2016). So let’s talk
about what current Board law states.
Section 7 of the Act states that employees have the right to
engage in certain rights, or refrain from them. Those rights
include the right:
. . . to self-organization, to form, join or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid and
protection.
“In determining whether a work rule violates Section 8(a)(1),
the appropriate inquiry is whether the rule would reasonably
tend to chill employees in the exercise of their Section 7
rights.” Hyundai America Shipping Agency, 357 NLRB 860
(2011). “Where the rules are likely to have a chilling effect on
Section 7 rights, the Board may conclude that their mainte-
nance is an unfair labor practice, even absent evidence of en-
forcement.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998)
(footnote omitted), enfd. 203 F.3d 52 (D.C. Cir. 1999). “In
determining whether a challenged rule is unlawful, the Board
must, however, give the rule a reasonable reading. It must re-
frain from reading particular phrases in isolation.” Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004).
If the rule explicitly restricts Section 7 rights, it is unlawful.
Id. at 646. If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would reasona-
bly construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647. Ambiguous rules are construed against the
drafter of the rule. Flex Frac Logistics, LLC, 358 NLRB 1131,
1132 (2012), remanded on other grounds 360 NLRB 1004
(2014), enfd. 746 F.3d 205 (5th Cir. 2014).2
The Board does not wait until chill is apparent but instead
acts to dispel the rule before chill occurs. Hooters of Ontario
Mills, 363 NLRB No. 2, slip op. at 21 (2015), citing Flex Frac,

2 The first Flex Frac decision was issued by a Board panel whose
members included two persons whose appointments to the Board were
eventually considered invalid. NLRB v. Noel Canning, __ U.S. __, 134
S.Ct. 2550 (2014). Before Noel Canning issued, the United States
Court of Appeals for the Fifth Circuit enforced the Board’s Order. No
question exists about the validity of the court’s judgment. See Lily
Transportation Corp., 362 NLRB 406, 406 fn. 2 (2015).
ETS OILFIELD SERVICES, L.P. 3
supra. An ambiguous rule can chill employees’ Section 7 pro-
tected activities by creating “a cautious approach” to the activi-
ties because of fears of employer retaliation. Whole Foods
Market, Inc., 363 NLRB No. 87, slip op. at 3 fn. 11 (2015).
Therefore, all rules are examined to determine whether an em-
ployee would reasonably construe the language to prohibit
Section 7 activities. Lily Transportation Corp., 362 NLRB 406
(2015). The test for Section 8(a)(1) violations is not subjective,
but objective: “[W]hether [it] would reasonably have a tenden-
cy to interfere with, restrain or coerce employees in the exercise
of their Section 7 rights . . . .” See generally Multi-Ad Services,
Inc., 331 NLRB 1226, 1227–1228 (2000), enfd. 255 F.3d 363
(7th Cir. 2001). Also see Whole Foods Market, 363 NLRB No.
87, slip op. at 2, citing Triple Play Sports Bar, 361 NLRB 308,
314 (2014), enfd. 629 Fed.Appx. 33 (2d Cir. 2015).
The Board recently affirmed Administrative Law Judge Tra-
cy’s decision in California Commerce Club, Inc., 364 NLRB
No. 31 (2016). Her words are instructive about arbitration
agreements and collective action pursuant to the Act:
The Board’s majority reaffirmed in Murphy Oil, “the NLRA
does not create a right to class certification or the equivalent,
but as the D. R. Horton Board explained, it does create a right
to pursue joint, class, or collective claims if and as available,
without the interference of an employer-imposed restraint.”
Murphy Oil, supra, slip op. at 2 (citing D. R. Horton, supra,
slip op. at 10 fn. 24). Here, Respondent's Agreement, as a
condition of employment, precludes employees from pursuing
claims concertedly and thus “amounts to a prospective waiver
of a right guaranteed by the NLRA.” Murphy Oil, supra, slip
op. at 9 (citing National Licorice Co. v. NLRB, 309 U.S. 350,
361 (1940), and J.I. Case Co. v. NLRB, 321 U.S. 332, 337
(1944)).
In addition, she elaborated that the Board set forth reasons
within its decision in Murphy Oil when the Act and Federal
Arbitration Act work together, but we are reminded by that
decision that the FAA allows arbitration as a matter of consent,
but not coercion. Requiring employees to waive their rights to
act collectively acts as a prospective waiver of a right guaran-
teed by Section 7 of the Act and the Board consistently finds
unlawful agreements that require employees to prospectively
waive their Section 7 rights. The requirement that Respondent
agree to a possible joinder means any efforts to do remain
squarely within Respondent’s control; it therefore would pre-
clude employees from pursuing such claims, which also makes
the agreement unlawful. 24 Hour Fitness, 363 NLRB No. 84,
slip op. at 2 (2015).
At least three cases are now pending review for certiorari
with the Supreme Court. Only one of these cases is a Board
case, Lewis v. Epic System Corp., 823 F.3d 1147 (7th Cir.
2016), petition for cert. No. 16-285 September 2, 2016; Morris
v. Ernst & Young, 834 F.3d 975 (9th Cir. 2016), petition for
cert. No. 16-300 September 8, 2016. 24 Hour Fitness USA Inc.
v. NLRB, 2016 WL 3668038 (5th Cir. 2016), reviewing 363
NLRB No. 84 (2015), petition for cert. No. 16-701 filed No-
vember 23, 2016.
Lewis v. Epic System Corp. also provides guidance for find-
ing that requirement an arbitration agreement requiring waiver
of class and collective claims was unenforceable.
General Counsel correctly cites the arguments about use of
agencies instead of employees having a separate judicial forum
from Solarcity Corp., 363 NLRB No. 83 (2015). With the
Board so holding, I am again bound by the Board’s reasoning.
Respondent contends that it has been prejudiced by Charging
Party’s failure to attend the hearing. As previously noted, the
standard for reviewing an agreement, on its face, is objective
instead of subjective. Respondent also suggests that, Charging
Party may be waiving its rights under the NLRA because it
filed a Motion of Conditional Class Action Certification. How-
ever, examination of the Motion reveals that Charging Party in
no way has reversed its position that the agreement in unlawful
as it raises the same issue in the Motion. (See R. Exh. 2 at 18–
26.)
Lastly, Respondent contends that proceedings regarding the
unlawful arbitration provisions are designed to incur costs to
employers and undermines the policy of the Act. The policy of
the Act is to promote industrial peace, as stated in Section 1 of
the Act. True, the Agency does wish to expedite as much as
possible. However, the Board also incurs costs to enforce the
Act. I am unaware of any policy or procedure of the Board to
inflict costs on respondents, whether employer or union.
This preclusion infringes on employees' Section 7 rights, and
thus violates Section 8(a) (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent ETS Oilfield Services, L.P. is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by main-
taining its Mutual Agreement to Arbitrate which requires em-
ployees to resolve employment-related disputes exclusively
through individual arbitration proceedings and relinquish their
rights to resolve such disputes through class or collective ac-
tion.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Act has not been violated in any other way.
REMEDY
When an arbitration agreement violates Section 8(a)(1), the
agreement must be rescinded.
All employees who have been required to sign such an
agreement must be notified that the agreement is no longer in
effect and, if Respondent revises or replaces the agreement,
given lawful copies of the new agreement.
I shall also order a posting at all locations where the agree-
ment has been in effect.
ORDER
The National Labor Relations Board orders that the Re-
spondent, ETS Oilfield Services, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining a Mutual Agreement to Arbitrate that re-
quires employees, as a condition of employment, to waive the
right to maintain employment-related class or collective actions
in all forums, whether arbitral or judicial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Rescind the Mutual Agreement in all of its forms or re-
vise it in all of its forms to make clear to employees that the
Mutual Agreement to Arbitrate does not constitute a waiver of
their right to maintain employment-related joint, class, or col-
lective actions in all forums.
(b) Notify all current and former employees employed since
October 29, 2015, who were required to sign or otherwise be-
come bound to the unlawful Mutual Agreement to Arbitrate in
any form that it has been rescinded or revised and, if revised,
provide them a copy of the revised agreement.
(c) Within 14 days after service by the Region, post at its fa-
cilities where the Mutual Agreement to Arbitrate has been in
effect, copies of the attached notice marked “Appendix. B.”
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 16, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has gone out
of business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 29,
2015.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 16 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
When the transcript of this proceeding has been prepared, I
will issue a certification which attaches as an appendix the
portion of the transcript reporting this bench decision. When
the certification is served upon the parties, the time period for
filing exceptions will begin to run. I direct your attention to the
Board’s Rules and Regulations regarding the time period for
filing exceptions. I want to thank counsel for the General
Counsel and counsel for Respondent for your professionalism
in presenting this case. With that, the trial is now closed and
we are off the record.
APPENDIX A
MUTUAL AGREEMENT TO ARBITRATE
This Mutual Agreement to Arbitrate (Agreement) is for the pur-
pose of resolving claims by arbitration and is mutually bind-
ing upon both me and my employer ETS Oilfield Services,
LP (Company) and any other entity owned, controlled, or
managed by the Company. The following contains the terms
and conditions of the binding Agreement which I agree to en-
tirely.
Introduction:
I agree to arbitrate and resolve any and all employment-
related disputes between the Company and affiliate entities
and myself. I understand that the consideration for this
Agreement is my employment, or continued employment,
with the Company and the different benefits that go along
with employment with the Company, including the promises
and commitment [sic] made in this Agreement. I understand
that the purpose of this Agreement is to provide both the
Company and myself a way in which claims or disputes may
be resolved by binding arbitration rather than litigation in
recognition of the fact that resolution of any differences in
the courts is rarely time or cost effective for either party, the
Company and I have entered into this Agreement to establish
and gain the benefits of a speedy, impartial, and cost-
effective dispute resolution procedure. I understand that
arbitration is for the purpose of resolving disputes between
me and the Company. As such, I agree that I am waiving my
right to file, participate or proceed in class or collective ac-
tions (including a Fair Labor Standards Act (FLSA) collec-
tive action) in any civil court or arbitration proceeding, includ-
ing but not limited to receiving or requesting notice from a
pending collective action. Therefore, I agree that I cannot file
or opt-in to a collective action under this Agreement unless
agreed upon by me and the Company in writing. In no way
does this Agreement serve to preclude me from bringing an
unfair labor practices claim against the Company pursuant
to the National Labor RelationsAct.
Disputes Covered:
Any matter covered under this Agreement or concerning the
legality or interpretation of this Agreement shall be heard and
decided under the provisions and authority of the Federal Arbi-
tration Act, 9 U.S.C. § 1 as applicable. For purposes of this
Agreement, an employment-related dispute includes, but is not
limited to, all disputes, including statutory and common-law
claims, whether under state federal or local law, including, but
not limited to, theories arising from breach of implied or ex-
press contract, implied covenant of good faith and fair dealing,
constructive discharge, wrongful discharge, negligence, gross
negligence, false imprisonment, fraudulent concealment, work-
er's compensation retaliation, intentional infliction of emotional
distress, misrepresentation, personal injury, claims arising from
work-related activities, unsafe workplace, unlawful discrimina-
tion, retaliation or harassment, sexual harassment violations of
Title VII of the Civil Rights Act of 1964, as amended, Age
Discrimination in Employment Act (ADEA), Americans With
Disabilities Act (ADA), Family and Medical Leave Act
(FMLA), Fair Labor Standards Act, (FLSA), whistle blowing,
wrongful termination in violation of public policy, and defama-
tion. [sic] I acknowledge that any employment dispute directly
or indirectly affecting my Company shall be subject to binding
arbitration, including disputes against supervisors and managers
that involve my employment. Notwithstanding, either party
may seek temporary injunctive relief through a court of compe-
tent jurisdiction, pending final resolution of the dispute in Arbi-
tration.
ETS OILFIELD SERVICES, L.P. 5
In the event that I execute a separate written binding and en-
forceable contract with the Company to govern any particular
aspect of my employment relationship, including but not lim-
ited to confidentiality or non-competition agreements, I agree
that, to the extent of any conflict with this Agreement, the ex-
press terms regarding the resolution of disputes contained in the
separate written binding and enforceable contract shall control.
I also acknowledge that this Agreement applies to all employ-
ment disputes, regardless of when it [sic] arises, including dis-
putes that arise or are asserted after I leave the Company. Fur-
thermore, I understand that this Agreement applies to any dis-
pute that occurred before or after I sign this Agreement.
Under this Agreement, I understand that the arbitrator may
grant any remedy or relief that the arbitrator deems just and
equitable, including any remedy or relief that would have been
available to me or the Company, had the matter been heard in
court. This authority includes the right to award compensatory
and exemplary damages attorney's fees, costs, and other reme-
dies to the extent those remedies would be available under ap-
plicable law in court. Additionally, I acknowledge that under
this Agreement, while I may not file a lawsuit to resolve a dis-
pute against the Company, that I may file a complaint with a
federal, state, or other governmental administrative agency
regarding legally protected rights. For Claims covered by this
Agreement, arbitration is the Parties' exclusive remedy.
Arbitration Procedure:
For purposes of this Agreement, arbitration shall be conducted
before a neutral arbitrator agreed upon by the Parties, inde-
pendent from any organization; such arbitration shall be con-
ducted under the American Arbitration Association ("AAA")
National Rules for the Resolution of Employment Disputes,
unless the Parties agree to use other rules or procedures. Should
the Parties be unable to agree upon a neutral arbitrator for
whatever reason, then the Parties shall agree upon a neutral
organization (AAA, JAMS, or National Arbitration Forum) to
ensure that the Parties' commitment to binding and final arbitra-
tion of their employment disputes is fulfilled; such an arbitra-
tion shall be conducted under the rules of that neutral organiza-
tion, unless the Parties agree to use other rules or procedures.
The Party seeking to arbitrate a dispute must submit written
notice of the claim to the mutually selected arbitrator or to a
neutral arbitration organization (in the event the Parties have
not agreed on a neutral arbitrator) within the time period Pre-
scribed by the statute or common law cause of action under
which the claim is brought. The Parties under this Agreement
will have full rights to legal representation in the arbitration
process.
Discovery:
The parties shall be entitled to engage in discovery in the form
of request for documents, interrogatories, requests for admis-
sions, physical and/or mental examinations and depositions;
however, each side shall be limited to three depositions and an
aggregate of 30 discovery requests of any kind, including sub
parts, except as mutually agreed to by the parties. Physical
and/or mental examinations must be justified under the stand-
ards set forth by the Federal or Texas Rules of Civil Procedure.
A deposition of a corporate representative shall be limited to no
more than four designated subjects. At a mutually agreeable
date, the parties will exchange lists of experts who will testify
at arbitration. Each side may depose the other side's experts,
and obtain the documents they reviewed and relied upon, and
these depositions will not be charged to the parties' aggregate
limit on discovery requests or the three deposition limit. Any
disputes concerning discovery shall be resolved by the arbitra-
tor, with a presumption against increasing the aggregate limit of
requests; additional discovery requests shall be granted only
upon a showing of good cause.
Arbitration Fees & Costs:
Each party will pay for their attorney if a party wishes to be
represented by an attorney. Pursuant to this Agreement, the
Company will pay costs associated with the arbitration except
for any filing fees(s) associated with the initiation of arbitra-
tion. The Parties will pay for their share of the filing fee to
initiate arbitration.
Miscellaneous:
This Arbitration Agreement includes all of the foregoing recit-
als, statements and acknowledgements relating to the Parties'
intention and agreement to arbitrate all employment disputes. If
any of the foregoing terms or clauses of this Agreement are
determined to be in violation of any law, rule or regulation or
otherwise unenforceable, that determination shall not affect any
of the remaining terms or clauses of this Agreement. All other
clauses shall remain in full force and effect. In the event that
any provision of this Agreement shall finally be determined to
be unlawful, there shall be substituted a provision of similar
import reflecting the original intent of the Parties to resolve
their disputes through binding arbitration. This Agreement shall
survive the termination of my employment and can only be
revoked or modified by a writing signed by the Parties. This
Agreement does not alter the at-will employment relationship
between the Company and me.
I UNDERSTAND THAT THIS AGREEMENT IS
EFFECTIVE FROM THE DATE OF MY EMPLOYMENT
OR WHEN I SIGN IT (WHICHEVER IS EARLIER). I ALSO
UNDERSTAND THAT IT RESTRICTS MY RIGHT TO SUE
MY EMPLOYER AND APPLIES TO ANY EMPLOYMENT
DISPUTE(S) INCLUDING THOSE THAT OCCURRED
BEFORE THE DATE I SIGN BELOW.
I HAVE READ THE AGREEMENT ABOVE
CAREFULLY AND HAVE BEEN GIVEN THE
OPPORTUNITY TO CONSIDER THE TERMS AND
EFFECT ON ME. BY MY SIGNATURE BELOW, I
KNOWINGLY AND VOLUNTARILY AGREE TO BE
BOUND BY THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain and/or enforce a mandatory arbitra-
tion program that requires our employees, as a condition of
employment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the following rules in our employee hand-
book that unlawfully prohibit you from:
WE WILL furnish you with inserts for the current employee
handbook that (1) advise(s) that the unlawful provisions have
been rescinded, or (2) provide lawfully worded provisions on
adhesive backing that will cover the unlawful provisions; or WE
WILL publish and distribute revised employee handbooks that
(1) do not contain the unlawful provisions, or (2) provide law-
fully worded provisions.
ETS OILFIELD SERVICES, L.P.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/16-CA-172847 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.