Kenai Drilling Limited

National Labor Relations Board - Unpublished Board Decisions

Oct 24, 2018

31-CA-128266 (N.L.R.B. Oct. 24, 2018)

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

KENAI DRILLING LIMITED

and Case 31–CA–128266

EDDIE STEWART III

NOTICE TO SHOW CAUSE

On March 31, 2016, the National Labor Relations Board issued a Decision and Order,
363 NLRB No. 158, finding that the Respondent violated Section 8(a)(1) of the Act by both (1)
maintaining and enforcing a mandatory individual arbitration policy and (2) interfering, through
the arbitration policy, with employees’ ability to access the Board. On June 29, 2018, the United
States Court of Appeals for the Ninth Circuit denied enforcement, in light of Epic Systems Corp.
v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), of the Board’s Order on the first finding and
remanded the second finding back to the Board.
At the time of the Board’s decision, and Administrative Law Judge Dickie Montemayor’s
April 13, 2015 decision that the Board affirmed in relevant part, the issue whether maintenance
of a policy that did not expressly restrict employee access to the Board violated Section 8(a)(1)
on the basis that employees would reasonably believe it did would be resolved based on the
prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004), that held an employer’s maintenance of a facially neutral work rule would be
unlawful “if employees would reasonably construe the language to prohibit Section 7 activity.”
Id. at 647. Recently, the Board overruled the Lutheran Heritage “reasonably construe” test and
announced a new standard that applies retroactively to all pending cases. The Boeing Co., 365
NLRB No. 154 at slip op. 14-17 (2017).
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Accordingly, the Board hereby issues the following notice to show cause why this
proceeding should not be remanded to the judge for further proceedings in light of Boeing,
including, if necessary, the filing of statements, reopening the record, and issuance of a
supplemental decision.
NOTICE IS GIVEN that any party seeking to show cause why this case should not be
remanded to the administrative law judge must do so in writing, filed with the Board in
Washington, D.C., on or before November 7, 2018. (with affidavit of service on the parties to
this proceeding). Any briefs or statements in support of the motion shall be filed on the same
date.
Dated, Washington, D.C., October 24, 2018.

By direction of the Board:

Farah Z. Qureshi
Associate Executive Secretary