Kenai Drilling Limited

National Labor Relations Board - Board Decisions

Mar 31, 2016

363 NLRB No. 158 (N.L.R.B. 2016)

363 NLRB No. 158
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.
Kenai Drilling Limited and Eddie Stewart III. Case
31–CA–128266
March 31, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On April 13, 2015 Administrative Law Judge Dickie
Montemayor issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions with supporting argument, and the Respond-
ent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Applying the Board’s decision in D. R. Horton, 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), the judge found that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing and enforcing an arbitration policy that requires em-
ployees, as a condition of employment, to waive their
rights to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial. The judge also found that maintaining the arbi-
tration policy violated Section 8(a)(1) because employees
reasonably would believe that it bars or restricts their
right to file unfair labor practice charges with the Board.
The Board has considered the decision and the record
in light of the exceptions and briefs, and we affirm the
judge’s rulings, findings, and conclusions1 and adopt the

1 The Respondent has excepted to some of the judge’s credibility
findings, although it does not identify any specific finding. We find it
unnecessary to resolve this issue, as the parties stipulated to the materi-
al facts of the case.
The Respondent argues that D. R. Horton, 357 NLRB 2277 (2012),
and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), were wrongly
decided and should be overruled. We disagree and adhere to the find-
ings and rationale in those cases.
The Respondent argues that the complaint is time-barred by Sec.
10(b) because the initial unfair labor practice charge was filed and
served more than 6 months after the Charging Party signed and became
subject to the arbitration policy. We reject this argument, as did the
judge, because the Respondent continued to maintain the arbitration
policy during the 6-month period preceding the filing of the initial
charge. The Board has consistently held under these circumstances that
maintenance of an unlawful workplace rule, such as the Respondent’s
arbitration policy, constitutes a continuing violation that is not time-

barred by Sec. 10(b). See PJ Cheese, Inc., 362 NLRB No. 177, slip op.
at 1 (2015); The Neiman Marcus Group, Inc., 362 NLRB No. 157, slip
op. at 2 & fn. 6 (2015); Cellular Sales of Missouri, LLC, 362 NLRB
No. 27, slip op. at 2 & fn. 7 (2015). It is equally well established that
an employer’s enforcement of an unlawful rule, like the arbitration
policy here, independently violates Sec. 8(a)(1). See Murphy Oil,
supra, slip op. at 19–21. The Respondent enforced its arbitration policy
on February 19, 2014, within the relevant 6-month period before the
charge was filed and served in May 2014.
The Respondent contends that the opt-out provision in its arbitration
policy places it outside the scope of the prohibition against mandatory
individual arbitration agreements under Murphy Oil, supra, and D. R.
Horton, supra. We reject this argument for the reasons given in On
Assignment Staffing Services, 362 NLRB No. 189 (2015). As the
Board explained, an opt-out procedure still imposes an unlawful man-
datory condition of employment that falls squarely within the rule of D.
R. Horton and Murphy Oil. Id., slip. op. at 1, 4–5. Further, even as-
suming an opt-out provision renders an arbitration policy not a condi-
tion of employment (or nonmandatory), an arbitration policy precluding
collective action in all forums is unlawful even if entered into volun-
tarily because it requires employees to prospectively waive their Sec. 7
right to engage in concerted activity. Id., slip op. at 1, 5–8. See also
Pama Management, 363 NLRB No. 38, slip op. at 2 (2015).
Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, above, slip op. at 22–35, would find that the Respondent’s
arbitration policy does not violate Sec. 8(a)(1), especially because the
policy contains an opt-out provision. He observes that the Act does not
“dictate” any particular procedures for the litigation of non-NLRA
claims and “creates no substantive right for employees to insist on
class-type treatment” of such claims. This is all surely correct, as the
Board has previously explained in Murphy Oil, above, slip op. at 2, and
Bristol Farms, 363 NLRB No. 45, slip op. at 2 & fn. 2 (2015). But
what our colleague ignores is that the Act “does create a right to pursue
joint, class, or collective claims if and as available, without the interfer-
ence of an employer-imposed restraint.” Murphy Oil, above, slip op. at
2 (emphasis in original). The Respondent’s policy is just such an un-
lawful restraint, even considering its opt-out provision. See On As-
signment Staffing Services, above, slip op. at 4, 8–9 & fns. 28, 29, 31.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the arbitra-
tion policy unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 3. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
For the reasons stated by the judge, we agree that employees reason-
ably would construe the arbitration policy to restrict their access to the
Board’s processes. See U-Haul Co. of California, 347 NLRB 375,
377–378 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007). See also
Cellular Sales, above, slip op. at 1 fn. 4. We do not, however, rely on
the judge’s citation to Dish Network Corp., 358 NLRB 174 (2012). We
reject the Respondent’s assertion that the policy language stating that
“[t]he Arbitrator shall not entertain any statutory claim unless the em-
ployee has satisfied any duties to exhaust administrative remedies as
required by that statute” expressly permits the filing of unfair labor
practice charges with the Board. The quoted language cannot reasona-
bly be read to inform employees of their right to file charges with the
Board, especially in light of the policy’s broad requirement that “any
controversy, dispute or claim” arising out of an employee’s employ-
ment be submitted to arbitration. The Respondent also asserts that
employees reasonably would believe they are permitted to file charges
with the Board because Jennifer Phoutrides, the Respondent’s Human
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recommended Order as modified and set forth in full
below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Kenai Drilling Limited, Bakersfield, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that
employees reasonably would believe bars or restricts the
right to file charges with the National Labor Relations
Board.
(b) Maintaining and/or enforcing a mandatory arbitra-
tion policy that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.

Resources/Training Coordinator, told employees they could go to gov-
ernment agencies with questions about the arbitration policy. We reject
this assertion as well. The policy itself does not contain this infor-
mation, and even if it did, the ability to ask a question about the policy
does not mean that employees retain the ability to file a charge. Alt-
hough our colleague concurs in our finding that employees would rea-
sonably believe that the arbitration policy limited their right to access
the Board’s processes, we note his view that an individual arbitration
agreement lawfully may require the arbitration of unfair labor practice
claims, if the agreement reserves to employees the right to file charges
with the Board. We disagree with that view for the reasons stated in
Ralph’s Grocery Co., 363 NLRB No. 128, slip op. at 3 (2016).
We reject the position of the Respondent and our dissenting col-
league that the Respondent’s petition to compel arbitration and dismiss
class claims was protected by the First Amendment’s Petition Clause.
In Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 747 (1983), the
Court identified two situations in which a lawsuit enjoys no such pro-
tection: where the action is beyond a state court’s jurisdiction because
of federal preemption, and where “a suit . . . has an objective that is
illegal under federal law.” Id. at 737 fn. 5. Thus, the Board may
properly restrain litigation efforts such as the Respondent’s motion to
compel arbitration that have the illegal objective of limiting employees’
Sec. 7 rights and enforcing an unlawful contractual provision, even if
the litigation was otherwise meritorious or reasonable. See Murphy
Oil, above, slip op. at 20–21; Convergys Corp., 363 NLRB No. 51, slip
op. at 2 fn. 5 (2015).
2 Consistent with our decision in Murphy Oil, above, slip op. at 21,
we clarify the judge’s remedy by ordering the Respondent to reimburse
Stewart and any other plaintiffs for all reasonable expenses and legal
fees, with interest, incurred in opposing the Respondent’s unlawful
petition in state court to compel individual arbitration and dismiss class
claims. See Bill Johnson’s Restaurants, above, at 747 (“If a violation is
found, the Board may order the employer to reimburse the employees
whom he had wrongfully sued for their attorneys’ fees and other ex-
penses” as well as “any other proper relief that would effectuate the
policies of the Act.”). Interest shall be computed in the manner pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991)
(“[I]n make-whole orders for suits maintained in violation of the Act, it
is appropriate and necessary to award interest on litigation expenses.”),
enfd. 973 F.2d 230 (3d Cir. 1992).
Finally, we shall modify the judge’s recommended Order to conform
to the violations found and to the Board’s standard remedial language.
We shall substitute a new notice to conform to the Order as modified.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the mandatory arbitration policy in all of
its forms, or revise it in all of its forms to make clear to
employees that the arbitration policy does not constitute
a waiver of their right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not bar or restrict employees’ right to file charges
with the National Labor Relations Board.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the man-
datory arbitration policy in any form that it has been re-
scinded or revised and, if revised, provide them a copy of
the revised policy.
(c) Notify the Superior Court of California, County of
Los Angeles, in Case BC523209 that it has rescinded or
revised the mandatory arbitration policy upon which it
based its petition to compel binding arbitration, dismiss
class claims, and stay action seeking to enforce the arbi-
tration policy in Eddie Stewart III’s class action lawsuit
and inform the court that it no longer opposes the lawsuit
on the basis of the arbitration policy.
(d) In the manner set forth in this decision, reimburse
Eddie Stewart III and any other plaintiffs in the class
action lawsuit filed against the Respondent in California
Superior Court, Case No. BC523209, for any reasonable
attorneys’ fees and litigation expenses that they may
have incurred in opposing the Respondent’s petition to
compel individual arbitration and dismiss class claims.
(e) Within 14 days after service by the Region, post at
its Bakersfield, California facility copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
KENAI DRILLING LIMITED 3
ered 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 em-
ployees and former employees employed by the Re-
spondent at any time since November 7, 2013, and any
former employees against whom the Respondent has
enforced its mandatory arbitration agreement since No-
vember 7, 2013.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 31, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting
in part.
In this case, my colleagues find that the Respondent’s
arbitration policy—comprised of its Binding Arbitration
Agreement (Agreement), Notice of Binding Arbitration
Agreement, Written Acknowledgment of Training, and
Binding Arbitration Program Opt-Out Notice—violates
Section 8(a)(1) of the National Labor Relations Act (the
Act or NLRA) because it waives the right to participate
in class or collective actions regarding non-NLRA em-
ployment claims. Charging Party Eddie Stewart III
signed the Written Acknowledgment of Training, ac-
knowledging that he understood he could opt out of the
Agreement by signing and returning the Opt-Out Notice
to the Respondent within 30 days. Stewart did not sub-
mit the Opt-Out Notice within 30 days (or at any other
time), and later he filed a class action lawsuit against the
Respondent in state court alleging violations of the Cali-
fornia Labor Code and Business and Professions Code.
In reliance on the Agreement, the Respondent filed a
petition to compel arbitration and dismiss class claims,
which the court granted. My colleagues find that the
Respondent thereby unlawfully enforced its Agreement.
I respectfully dissent from these findings for the reasons
explained in my partial dissenting opinion in Murphy Oil
USA, Inc.1
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.2 How-
ever, I disagree with my colleagues’ finding that Section
8(a)(1) of the NLRA prohibits agreements that waive
class and collective actions, and I especially disagree
with the Board’s finding here, similar to the Board ma-
jority’s finding in On Assignment Staffing Services,3 that
class-waiver agreements violate the NLRA even when
they contain an opt-out provision. In my view, Sections
7 and 9(a) of the NLRA render untenable both of these
propositions. As discussed in my partial dissenting opin-
ion in Murphy Oil, NLRA Section 9(a) protects the right
of every employee as an “individual” to “present” and
“adjust” grievances “at any time.”4 This aspect of Sec-
tion 9(a) is reinforced by Section 7 of the Act, which
protects each employee’s right to “refrain from” exercis-
ing the collective rights enumerated in Section 7. Thus, I
believe it is clear that (i) the NLRA creates no substan-
tive right for employees to insist on class-type treatment

1
361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
2 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting).
3 362 NLRB No. 189, slip op. at 1, 4–5 (2015).
4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of non-NLRA claims;5 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;6 (iii) en-
forcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA);7 and (iv) for the reasons stated in my
dissenting opinion in Nijjar Realty, Inc. d/b/a Pama
Management, 363 NLRB No. 38, slip op. at 3–5 (2015),
the legality of such a waiver is even more self-evident
when the agreement contains an opt-out provision, based
on every employee’s Section 9(a) right to present and
adjust grievances on an “individual” basis and each em-
ployee’s Section 7 right to “refrain from” engaging in
protected concerted activities. Although questions may
arise regarding the enforceability of particular agree-
ments that waive class or collective litigation of non-
NLRA claims, I believe these questions are exclusively
within the province of the court or other tribunal that,
unlike the NLRB, has jurisdiction over such claims.
Because I believe the class-waiver agreement provi-
sions of the Respondent’s Agreement were lawful under
the NLRA, I would find it was similarly lawful for the
Respondent to file a petition in state court seeking to

5 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
6 The Fifth Circuit has twice denied enforcement of Board orders in-
validating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil USA, Inc. v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v.
Adecco USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to
certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal.
June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12-cv-
00062-BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA); but see Totten v. Kellogg Brown & Root,
LLC, No. ED CV 14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal.
Jan. 22, 2016).
7 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
enforce the Agreement.8 It is relevant that the state court
that had jurisdiction over the non-NLRA claims granted
the Respondent’s petition to compel arbitration. That the
Respondent’s petition was reasonably based is also sup-
ported by court decisions that have enforced similar
agreements.9 As the Fifth Circuit recently observed after
rejecting (for the second time) the Board’s position re-
garding the legality of class-waiver agreements: “[I]t is a
bit bold for [the Board] to hold that an employer who
followed the reasoning of our D. R. Horton decision had
no basis in fact or law or an ‘illegal objective’ in doing
so. The Board might want to strike a more respectful
balance between its views and those of circuit courts
reviewing its orders.”10 I also believe that any Board
finding of a violation based on the Respondent’s merito-
rious state court petition to compel arbitration would
improperly risk infringing on the Respondent’s rights
under the First Amendment’s Petition Clause. See Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983);
BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002);
see also my partial dissent in Murphy Oil, above, 361
NLRB No. 72, slip op. at 33–35. Finally, for similar
reasons, I believe the Board cannot properly require the
Respondent to reimburse the Charging Party and other
plaintiffs for their attorneys’ fees in the circumstances
presented here. Murphy Oil, above, 361 NLRB No. 72,
slip op. at 35.
Accordingly, as to these issues,11 I respectfully dissent.

8 As I explain below, I concur in my colleagues’ finding that the
Agreement unlawfully interfered with the right of employees to allege a
violation of the NLRA through the filing of an unfair labor practice
charge with the NLRB. However, the unlawfulness of the Agreement
in this regard is not material to the merits of the Respondent’s state-
court petition to compel the Charging Party to arbitrate his non-NLRA
claims. See Fuji Food Products, Inc., 363 NLRB No. 118, slip op. at 4,
4–5 fn. 13 (2016) (Member Miscimarra, concurring in part and dissent-
ing in part) (finding that employer lawfully enforced class-waiver
agreement by filing motion to compel arbitration of non-NLRA claims,
notwithstanding additional finding that agreement unlawfully interfered
with Board charge filing).
9 See, e.g., Murphy Oil USA, Inc. v. NLRB, above; Johnmohammadi
v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D. R. Horton, Inc. v.
NLRB, above; Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir.
2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
10 Murphy Oil USA, Inc. v. NLRB, 808 F.3d at 1021.
11 I agree with my colleagues that the complaint is not time-barred
under Sec. 10(b) of the Act. Additionally, for the following reasons, I
concur in my colleagues’ finding that the Agreement unlawfully inter-
feres with NLRB charge filing in violation of Sec. 8(a)(1). The
Agreement requires employees to resolve by binding arbitration “any
controversy, dispute or claim arising out of or relating to Employee’s
employment.” For the reasons stated in my separate opinion in The
Rose Group d/b/a Applebee’s Restaurant, 363 NLRB No. 75, slip op. at
3–5 (2015) (Member Miscimarra, concurring in part and dissenting in
part), I believe that an agreement may lawfully provide for the arbitra-
tion of NLRA claims, and such an agreement does not unlawfully inter-
fere with Board charge filing, at least where the agreement expressly
KENAI DRILLING LIMITED 5
Dated, Washington, D.C. March 31, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

preserves the right to file claims or charges with the Board or, more
generally, with administrative agencies. Here, however, the Agreement
does not qualify in any way the requirement that “any controversy,
dispute or claim arising out of or relating to Employee’s employment”
must be resolved in binding arbitration and in this manner only, which
appears to preclude the filing of an NLRB charge regarding an alleged
violation of the NLRA. See, e.g., GameStop Corp., 363 NLRB No. 89,
slip op. at 7 (2015) (Member Miscimarra, concurring in part and dis-
senting in part). In this regard, I agree with my colleagues that lan-
guage in the Agreement stating that “[t]he Arbitrator shall not entertain
any statutory claim unless the employee has satisfied any duties to
exhaust administrative remedies as required by that statute” fails to
adequately preserve the right to file charges with the Board. It is true
that the filing of an NLRB charge is a prerequisite for the Board itself
to investigate and resolve alleged NLRA violations. Chamber of
Commerce v. NLRB, 721 F.3d 152, 154 (4th Cir. 2013) (“Indeed, there
is no function or responsibility of the Board not predicated upon the
filing of an unfair labor practice charge or a representation petition.”).
However, unlike discrimination charges filed with the EEOC or a state
agency—where the claims may subsequently be litigated independently
by the claimant(s) in federal or state court—employees have no private
right to engage in court litigation after the “exhaustion” of NLRB pro-
ceedings (except for a party’s right to appeal from an adverse NLRB
ruling to the U.S. courts of appeals). See NLRA Sec. 10(f). Moreover,
rather than expressing in a reasonably understandable manner that an
employee has the right to file an agency or NLRB charge, the above-
quoted language merely appears to limit the authority of an arbitrator to
resolve statutory claims (if there has been no exhaustion of “administra-
tive remedies”). The possibility of filing an “administrative” charge
might be inferred, at least by an attorney, from the reference to exhaust-
ing “administrative remedies,” but as noted above, an exhaustion of
“administrative remedies” requirement does not even appear applicable
to NLRB proceedings. Finally, although the record contains evidence
that the Respondent’s Human Resources/Training Coordinator indicat-
ed that employees could go to government agencies with questions
about the Agreement, this type of advice does not change the scope of
the Agreement itself. Therefore, because the breadth of the Agreement
appears to preclude the filing of an NLRB charge and nothing in the
Agreement appears to indicate otherwise, I join my colleagues in find-
ing that the Agreement violates the Act by unlawfully restricting the
filing of charges with the Board. See U-Haul Co. of California, 347
NLRB 375, 377 (2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir.
2007); Murphy Oil, above, slip op. at 22 fn. 4 (Member Miscimarra,
dissenting in part); GameStop Corp., above, slip op. at 6–7 (Member
Miscimarra, concurring in part and dissenting in part); The Rose Group
d/b/a Applebee’s Restaurant, above (Member Miscimarra, concurring
in part and dissenting in part); Fuji Food Products, above, slip op. at 4
fn. 13 (2016) (Member Miscimarra, concurring in part and dissenting in
part).
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 notice.
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Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration policy
that our employees reasonably would believe bars or
restricts their right to file charges with the National La-
bor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration policy that requires our employees, as a condi-
tion of employment, to waive the right to maintain em-
ployment-related class or collective actions in all forums,
whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the mandatory arbitration policy in
all its forms, or revise it in all its forms to make clear that
the arbitration policy does not constitute a waiver of your
right to maintain employment-related joint, class, or col-
lective actions in all forums, and that it does not restrict
your right to file charges with the National Labor Rela-
tions Board.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory arbitration policy in any of its forms that the
arbitration policy has been rescinded or revised and, if
revised, WE WILL provide them a copy of the revised pol-
icy.
WE WILL notify the court in which Eddie Stewart III
filed his class action lawsuit that we have rescinded or
revised the mandatory arbitration policy upon which we
based our petition to compel binding arbitration, dismiss
class claims, and stay action seeking to enforce the arbi-
tration policy, and WE WILL inform the court that we no
longer oppose Eddie Stewart III’s class action lawsuit on
the basis of that policy.
WE WILL reimburse Eddie Stewart III and any other
plaintiffs in the class action lawsuit filed against us in
California Superior Court, Case No. BC523209, for any
reasonable attorneys’ fees and litigation expenses that
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they may have incurred in opposing our petition to com-
pel individual arbitration and dismiss class claims.
KENAI DRILLING LIMITED
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-128266 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.
Nicole Pereira, Esq., for the General Counsel.
Robert M. Stone, Esq. and Charles N. Hargraves, Esq.
(Muisick, Peeler & Garrett, LLP), of Costa Mesa, Califor-
nia, for the Respondent.
DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case
was tried in Los Angeles, California, on January 12, 2015. The
charge in this matter was filed by Eddie Stewart, III, an indi-
vidual (the Charging Party) on May 7, 2014, against Kenai
Drilling Limited (the Respondent). A complaint issued on Sep-
tember 25, 2014. The sole issue is whether Respondent’s
maintenance and enforcement of an arbitration agreement
and/or rule requiring employees to arbitrate their work-related
complaints in an individual capacity, unless they opt-out within
30 days of receiving an employer provided opt-out notice, is
unlawful under Section 8(a)(1) of the Act. This case therefore
raises issues related to the Board’s decisions in D. R. Horton,
Inc., 357 NLRB 2277 (2012), enf. granted in part and denied in
part 737 F.3d 433 (5th Cir. 2013), and Murphy Oil USA, Inc.,
361 NLRB No. 72 (2014).
Respondent filed an answer denying the material allegations
of the complaint and raised certain affirmative defenses, as
discussed below. A hearing in this matter was held before me
and the parties filed posthearing briefs. After considering the
record and the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent has been a corporation
with an office and place of business in Bakersfield, California.
Respondent has been engaged as a drilling contractor for the
oil, gas, and geothermal industries. During the 12-month peri-
od ending June 2, 2014, Respondent in conducting its opera-
tions purchased and received at its Bakersfield, California facil-
ity, goods and services valued in excess of $50,000 directly
from points outside State of California. I find that at all materi-
al times, Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Background Facts
At the hearing, the parties entered into a stipulation of facts
which they identified as Joint Exhibit 1. Paragraphs 1 and 2, of
the stipulation included the joint request that General Counsel
Exhibits 1(a) through 1(p) and Joint Exhibits 2 though 5 will
be admitted into evidence without objection. Joint Exhibit 1
page 2–6 beginning at paragraph 3 provides as follows:
3. (a) The charge in this proceeding was filed by the Charg-
ing Party on May 7, 2014, and a copy was served on Re-
spondent by U.S mail on May 9, 2014.
(b) The first amended charge in this proceeding was filed by
the Charging Party on July 21, 2014, and a copy was served
on Respondent by U.S. mail on July 22, 2014.
(c) The second amended charge in this proceeding was filed
by the Charging Party on August 28, 2014, and a copy was-
served on Respondent by U.S. mail on September 2, 2014.
4. (a) At all material times, Respondent has been a corpora-
tion with an office and place of business in Bakersfield, Cali-
fornia, and has been engaged as a drilling contractor in the oil,
gas, and geothermal industries.
(b) During the 12-month period ending June 2, 2014, Re-
spondent in conducting its operations described above in par-
agraph 4(a), purchased and received at its Bakersfield, Cali-
fornia facility, goods and services valued in excess of $50,000
directly from points outside the State of California.
5. At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
6. On September 25, 2014, the Acting Regional Director of
Region 31 issued a complaint and notice of hearing com-
plaint) (GC Exh. 10)). On October 8, 2014, Respondent filed
its answer to the complaint and affirmative defenses (answer)
(GC Exh. 1(1)). On December 17, 2014, the Regional Direc-
tor of Region 31 issued an amendment to complaint amending
paragraph 4(b) of the complaint (GC Exh. 1(m)). On Decem-
ber 24, 2014, Respondent filed its answer to amended com-
plaint and affirmative defenses. (GC Exh. l(o)). The com-
plaint and amendment to complaint allege that Respondent
engaged in acts and conduct that constitute unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the National Labor Relations Act. 29 U.SC. § 151
et seq. (the Act). Specifically, the complaint and amendment
to complaint allege that Respondent interfered with, re-
strained, and coerced employees in the exercise of their Sec-
KENAI DRILLING LIMITED 7
tion 7 activities as set forth below:
(a) Since at least January 2007 and at all material times, Re-
spondent has maintained an arbitration policy comprised of
the binding arbitration agreement (agreement) (GC Exh. 1(j),
Appendix A); the notice of binding arbitration agreement
(notice) (GC Exh. IG, Appendix B); the written
acknowledgement of training (acknowledgement) (GC
Exh. 10, AppendixC) and the binding arbitration pro-
gram Opt-Out Notice (Opt-Out Notice) (GC Exh l(j),
Appendix D) (collectively the “arbitration Policy”). The
Parties agree to the authenticity and relevancy of these
documents, and their admission into evidence, without
objection.
(b) At all material times, Respondent has required em-
ployees to sign a Written Acknowledgement of Training,
which provides that employees would be bound to the
Arbitration Policy described in the documents set forth
above in paragraph 6(a), unless they opt out within 30
days of receiving the Opt-Out Notice.
7. At no time did Charging Party sign or return the opt-out
notice attached to the complaint (GC Exh. 10 as Appendix D),
or the opt out notice provided to him during orientation.
8. On February 19, 2014, Respondent asserted its arbitration
policy described above in paragraph 6(a), in litigation brought
against Respondent by Charging Party in Eddie Stewart III,
individually, and on behalf of other members of the general
public similarly situated, Plaintiff vs. Kenai Drilling Limited,
a Delaware corporation, and DOES 1 through 10, inclusive,
Defendant, Case No. BC 523209 (class action complaint)
filed in Superior Court of California, County of Los Angeles
(Superior Court). A copy of the class action complaint is at-
tached as Joint Exhibit 2. Specifically:
(a) About February 19, 2014, Respondent filed a petition
to compel binding arbitration, dismiss class claims, and
stay action (motion to compel) and related documents in-
cluding the following: Memorandum of points and au-
thorities in support of petition to compel binding arbitra-
tion; declaration of Jennifer Phoutrides in support [of]
Kenai Drilling Limited’s petition for an order compelling
arbitration and staying proceedings; declaration of Charles
N. Hargraves in support of petition to compel binding ar-
bitration, dismiss class claims and stay action; declaration
of Kathy Sbimizu in support of petition to compel bind-
ing arbitration; declaration of David A. Uhler in support
of Kenai Drilling Limited’s petition for an order compel-
ling arbitration and motion to stay proceedings pending
arbitration (declaration). A copy of the petition to compel
and related documents are attached as Joint Exhibit 3.
(b) About March 12, 2014, Charging Party filed Plain-
tiff’s opposition to Defendant’s petition to compel arbitra-
tion, dismiss class claims, and stay action (“Opposition’’)
and declaration of Eddie Stewart III in support of plain-
tiff’s opposition to Defendant’s petition to compel arbitra-
tion, dismiss class claims, and stay action. A copy of
Charging Party’s opposition and declaration is attached as
Joint Exhibit 4.
(c) About March 21, 2014, Respondent filed a reply brief
in support of the petition to compel binding arbitration.
Dismiss class claims and stay action (reply brief) and re-
lated documents including the following: Declaration of
Jennifer Phoutrides in Support of Kenai Drilling Lim-
ited’s reply brief in support of petition for an order com-
pelling arbitrate on and staying proceedings; Kenai Drill-
ing Limited’s objections to declaration of Eddie Stewart
submitted in support of plaintiff’s opposition to Kenai
Drilling Limited’s petition to compel binding arbitration.
dismiss class claims, and stay action; Declaration of
Christine Tadd in support of Kenai Drilling Limited’s re-
ply brief in support of petition of an order compelling ar-
bitration and staying proceedings; a copy of Respondent’s
reply brief and related documents is attached as Joint Ex-
hibit 5.
(d) About May 2, 2014, the Honorable Jane Johnson,
Judge of the Los Angeles County Superior Court, held a
hearing and granted Respondent’s petition to compel
binding arbitration dismiss class claims, and stay action
seekingto enforce thearbitration agreement.1
The arbitration agreement in its entirety provided as follows:
BINDING ARBITRATION AGREEMENT
A. The following agreement sets forth the binding arbitration
agreement between ________ (“Employee”) and Kenai Drill-
ing Ltd. (“Kenai”) (collectively referred to as “the Parties”).
B. Employee understands this binding arbitration pro-
gram is OPTIONAL. However if Employee chooses not
to participate in the binding arbitration program, Em-
ployee must send the Opt-Out Notice to Kenai by
_____. Opt-Out Notice must be sent to David Uhler,
Kenai Drilling Ltd., P.0. Box 2248, Orcutt, CA 93457
and must be received by Kenai by _____________. Em-
ployee’s failure to send in the Opt-Out Notice as set
forth in this paragraph will be deemed acceptance of this
Binding Arbitration Agreement.
TERMS OF THE BINDING ARBITRATION
AGREEMENT
C. By participating in the Binding Arbitration Program,
Employee and Kenai agree that any controversy, dispute
or claim arising out of or relating to Employee’s em-
ployment with Kenai Drilling Ltd. (“Kenai”), including
the termination of employment all be settled through
binding arbitration to be administered by the American
Arbitration Association(“AAA”).
D. The Parties understand that if the Employee does not
opt-out as set forth above in Section B, Employee and
Kenai are both giving up all rights to a trial by jury or
judge relating to any dispute or controversy arising of
Employee’s employment with Kenai.

1 At the risk of some redundancy the entire stipulation is set forth
above for the sake of completeness.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. Unless otherwise specified in this Agreement, the ar-
bitration proceedings shall be governed by AAA’s Em-
ployment Arbitration Rules (“Rules”).
F. Notwithstanding any provision or term set forth in the
Rules, the following rules shall apply to all arbitrations
conducted under this Agreement:
(1) The arbitrator shallnot and doesnot have the authori-
ty to consolidate the claims of different Employees, en-
tertain class actions or representative actions of any
kind, or permit joinder.
(2) Summary disposition motions must be enter-
tained by the arbitrator even through the Rules
may give discretion to the Arbitrator to hear such
motions if any party to this agreement seeks to
bring such motion in good faith.
(3) The California Evidence Code shall apply in
the arbitration proceedings and any resulting
award notwithstanding any provision in the Rules.
In issuing the arbitration award or in making a de-
cision relevant to any issue in the arbitration, the
arbitrator shall not rely on any evidence that is in-
admissible pursuant to the California Evidence
Code.
(4) Notwithstanding any provision set forth in the
Rules, Employee shall be responsible for all fees
and costs that he would normally be responsible
for had the action been filed in state court includ-
ing, but not limited to, filing fees and costs for
court reporting services, etc. Each party will be
responsible for his or her own attorney fees and
costs, unless otherwise ordered by the arbitrator in
compliance with statutory law.
(5) The arbitration hearing shall be conducted in
Bakersfield, California.
(6) The Arbitrator shall not entertain any statutory
claim unless the employee has satisfied any duties to
exhaust administrative remedies as required by that
statute examples including right to sue letters from the
Department of Fair Employment and Housing and the
Equal Employment Opportunity Commission. (Jt.
Exh. 1).
The “Agreement” does not provide for any exceptions for
types of claims filed. More specifically, there are no express
exceptions for claims filed with the NLRB and/or brought un-
der the specific statutory framework of the NLRA. Nor is there
any mention in the agreement regarding how an employee goes
about actually initiating an action covered by the arbitration
agreement.
Jenifer Phoutrides, Respondent’s human resources/training
coordinator, described the on-boarding process as it relates to
new employees and the arbitration agreement as follows:
Q. Okay. When do you do the training for the new
hires?
A. During their new hire enrollment training day; their
very first day with Kenai.
Q. Okay. And can you explain to us how you go about
giving this training to get employees?
A. I give them the packet, the acknowledgment packet,
regarding arbitration along with many other new hire pa-
pers. I tell them to read the packet thoroughly and put it to
the side because we’ll talk about it later. And then I’ll go
back and then I’ll ask everybody if they read the packet. If
I have people that say no, I make sure they read it. And
then we go forth and answer questions and talk about the
policies.
Q. Okay. What documents are included in the packet?
A. It is the acknowledgment training for arbitration
and the opt-out form. That’s behind it. Acknowledgment
form. Yeah.
Q. Is there also some—
A. That’s --
Q. —type of a notice?
A. A notice to employees, yes.
Q Okay. So—
A. The first page is the acknowledgment, then it’s the
notice and then it’s the opt-out form.
Q. And also— is there also a copy of the agreement
there as well?
A. Yes.
Q. Okay. So it’s four documents?
A. Yes. Sorry.
Q. Okay. That’s all right. So you’ll ask them to read
the four documents?
A. Correct.
Q. And once you see that they have read the docu-
ments, do you ask them any questions about them?
A. Yeah. I generally start—I ask them so what do they
think arbitration is. People will give me their views your
what they think. And then I’ll start out with, you know,
basically explaining what arbitration is and how to go
about it or how to proceed with our procedures—or policy.
With arbitration I tell them that they have 30 days to
decide if they want to opt out or not. It’s purely voluntary.
We talk about arbitration. Let’s see, I try to break it to
them in a not simple form, but I tell them that, “Arbitra-
tion’s another way of settling disputes that they may have
with their employment with Kenai. It’s purely optional.
You have 30 days to decide and you’re going to have
many remainders in the mail about it with your paycheck
stubs up until your opt-out date.”
I make them fill their name out on the very first page
of the acknowledgment and their new hire date and their
opt-out date. They physically fill those dates in them-
selves. And then throughout the packet, it asks for them to
fill in other—or there’s other areas on the form where they
fill in the opt-out dates, and I make them fill it out as well
with their own writing.
Q. Do you discuss the pros and cons of arbitration with
them?
A. I do. And I also suggest for them to look it up out-
side of work if it— on their own if they don’t understand it
KENAI DRILLING LIMITED 9
completely. Pros and cons would be—you know, pros
would be, you know—well, pros and cons would be—I
guess class action suits are not part of it. So if you choose
to be part of the arbitration program, you don’t do class
actions. And then it’s another just way of settling dis-
putes, like—I don’t know how to you want me to explain
it or how I tell them. I don’t—
Q. As best you—
A. Okay. I’m getting nervous. Sorry. So I’ll start
from the beginning. Okay, “So what is arbitration? Arbi-
tration is another way of settling disputes with your em-
ployment”— “about your employment with Kenai. If you
go through arbitration, you don’t go through normal court
settings; you go in front of an arbitrator. The arbitrator’s
not affiliated with Kenai. It’s chosen by a third-party
company, AAA, Arbitrators of America and Association
(sic),” I believe. “You would plead your side, Kenai
pleads its side and the arbitrator makes a decision. The
decision’s final. You cannot appeal the verdict in arbitra-
tion like you can in normal court. So there’s plenty of
pros and cons that”—“if it’s important to you as a personal
level, then you need to make a decision on if you want to
opt out or not.”
Q. You mentioned class actions. Do you tell the em-
ployees about any other rights they’re giving up if they
don’t opt out of the arbitration agreement?
A. I touch on the class action suits, I touch on the ver-
dict. You know, you can’t appeal it like you can—and
that’s—that’s about it.
Q. Do you tell them whether they have a right to go to
a jury trial?
A. As part of arbitration? No. They—they waive that.
Q. Okay. And do you tell them whether they would
have a right to a judge—a trial before a judge?
A. Correct. If they choose not to opt out. If they
choose—yeah, if they choose to opt out. Sorry.
Q. Then they would. So if they agree— if they don’t
opt out and they agree to the arbitration agreement—
A. Uh-huh.
Q. —what are they giving up? What do you tell them
they’re giving up?
A. Oh. Their rights to a judge and jury through—they
would have to use arbitration if they choose to use the
program.2 (Tr. 14–18.)
After the training was completed, employees were required
to sign a written acknowledgement of training, which advised
that employees would be bound by the Arbitration Policy un-
less they chose to opt out within 30 days of receiving the Opt-
Out Notice. (Jt. Exh. 1.) Charging Party signed the acknowl-
edgment of receipt form but did not sign and return the opt-out
form within 30 days. (Jt. Exh. 1.) Thereafter, as noted above,

2 It is clear from the testimony of Ms. Phoutrides that she is not a le-
gal expert in the arbitration process, has only a very rudimentary under-
standing of arbitration in general, and would be unable to advise em-
ployees regarding the full panoply of state and federal rights and reme-
dies a person might give up by failing to opt out of the arbitration pro-
cess.
Charging Party filed a class action complaint and Respondent’s
efforts to enforce the arbitration were granted via a motion to
compel Charging Party to individual arbitration. (Jt. Exh. 1).
III. ANALYSIS AND CONCLUSIONS
The General Counsel and the Charging Party argue that this
matter is controlled by the Board’s holding in D. R. Horton,
357 NLRB 2277 (2012), denied enforcement in relevant part
737 F.3d 344 (5th Cir. 2013). See also Murphy Oil USA, Inc.,
361 NLRB No. 72 (2014). In those cases, the Board recog-
nized that, “collective efforts to redress workplace wrongs or
improve workplace conditions are at the core of what Congress
intended to protect by adopting the broad language of Section 7
[of the National Labor Relations Act].” D. R. Horton, supra,
slip op. at 3. The Board found collective redress in legal or
administrative settings are “not peripheral but central to the
Act’s purposes.” Id. The Board further found that an employer
violates the Act by maintaining a prohibition on the mainte-
nance of class or collective actions. The General Counsel as-
serts that, “Respondent requires employees to sign the
Acknowledgement as a condition of employment. By signing
the Acknowledgement, employees become bound to Respond-
ent’s Arbitration Policy unless they take affirmative action to
opt-out in the manner and time-frame dictated by Respondent.
It is undisputed that Respondent’s arbitration policy prohibits
collective or class claims in both judicial and arbitral forums.”
(GC Br. at p. 6.) The General Counsel therefore reasons that
Respondent’s policy is “unlawful on its face” and violates Sec-
tion 8(a)(1) of the Act.
Respondent asserts that the charge in the matter was untime-
ly filed and therefore Charging Party is barred from pursuing
the claim. Respondent also asserts that the Board’s decision in
D. R. Horton was wrongly decided, that the Board lacks author-
ity to interpret the Federal Arbitration Act, and nevertheless the
rationale of D. R. Horton should not apply to the facts present-
ed because it contends that its arbitration agreement is “volun-
tary.” Respondent further asserts that the remedies sought by
the General counsel are improper. (R. Br. at 10.)
A. D. R. Horton and Murphy Oil Are Controlling
Respondent, relying in part on the Supreme Court’s decision
in AT&T Mobility LLC v. Concepcion, 131, S.Ct. 1740, 1746
(2011), and CompuCredit v. Greenwood, 132 S.Ct. 665, 669
(2012), argues that D. R. Horton and Murphy Oil were both
wrongly decided and should not be controlling in this matter.
Respondent further argues that because the Fifth Circuit and
other Circuit court’s have disagreed with the Board, the reason-
ing set forth in those cases should control. It must be noted that
I am bound by D. R. Horton and Murphy Oil until either the
Board or the Supreme Court overturns them.3 Waco Inc., 273
NLRB 746, 749 fn. 14 (1984) (it is the judge’s duty to apply
established Board precedent which the Supreme Court has not
reversed.” and “for the Board, not the judge, to determine
whether precedent should be varied.”) (citation omitted); Los

3 It is important to note that D. R. Horton was not affected by the
Supreme Court’s decision in Noel Canning v. NLRB, 134 S.Ct. 2550
(2014), because D. R. Horton was not issued by the same Board mem-
bers whose appointments were held to be invalid.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd.
640 F.2d 1017 (9th Cir. 1981); Pathmark Stores, 342 NLRB
378 fn. 1 (2004). In view of this obligation, Respondent’s dis-
agreement with the legitimacy of the Board’s holding in D. R.
Horton and Murphy Oil, and its assertions that the Board’s
actions were misguided, do not fit within the FAA savings
clause, that there is no “Contrary Congressional Command”
and/or that the Board exceeded its authority are more appropri-
ately addressed to the Board itself.
Nevertheless, Respondent asserts that even if D. R. Horton
were properly decided it still would not compel a finding that
its arbitration agreement interfered with Charging Party’s Sec-
tion 7 rights. I disagree.
B. The Charge is Not Barred by the Statute of Limitations in
Section 10 (b).
As will be discussed in more detail below, many of the is-
sues raised herein by Respondent are the same or similar to
those raised and addressed by administrative law judges in
numerous other cases. This is a road that has been well trav-
eled. Respondent’s timeliness argument is a familiar example.
Respondent asserts that, “the conduct at issue occurred long
ago and is clearly time barred.” (R. Br. at 19.) Respondent’s
theory is that since the arbitration agreement itself dates back to
2011 and the charge was not filed until May 6, 2014, it is well
beyond the 6 months period contemplated by Section 10(b).4
This argument ignores well established Board precedent.
The complaint alleged that Respondent maintained and en-
forced its arbitration agreement. (GC Exh. 1 (j), complaint
paragraphs 4(a) and 6.) Respondent in its answer openly admits
to both the maintenance and enforcement of the agreement
within 6 months of the filing of the charge. (GC Exh. 1(o), R.
answer paras. 2 and 5.) The Board has long held that Section
10(b) does not bar an allegation of unlawful conduct that began
more than 6 months before a charge was filed but has continued
within the 6-month period since, “[t]he maintenance during the
10(b) period of a rule that transgresses employee rights is itself
a violation of Sec. 8(a)(1).” Register-Guard, 351 NLRB 1110,
1110 fn. 2 (2007), enfd. in part 571 F.3d 53 (D.C. Cir. 2009),
citing Eagle-Picher Industries, Inc., 331 NLRB 169, 174 fn. 7
(2000). See also Lafayette Park Hotel, 326 NLRB 824, 825
(1998).” See also, Control Services, Inc., 305 NLRB 435 fn. 2
(1991) (holding that Section 10(b) does not bar finding of vio-
lation of continually maintained rules), see also Cellular Sales
of Missouri, LLC 362 NLRB No. 27 (2015). In view of the
above longstanding applicable Board precedent and Respond-
ent’s admissions that it both maintained and enforced the arbi-
tration agreement, I find that the allegations are not time barred.

4 Respondent relies on Ledbetter v. Goodyear Tire & Rubber Co.,
Inc. 550 U.S. 618 (2007), which arose in the context of Title VII. Re-
spondent’s reliance on Ledbetter is misplaced as the Court’s analysis
was openly rejected and superceeded by passage of the Lilly Ledbetter
Fair Pay Act of 2009 Pub. L. No. 111–2, 123 Stat.5, which amended
Title VII to define an unlawful employment practice to occur when an
individual is affected by the application of a discriminatory practice.
Simply put, Ledbetter is no longer good law and hasn’t been since at
least January 29, 2009.
C. Respondent’s Violated Section 8(a)(1) by Maintaining and
Enforcing its Arbitration Policy
The Board has long held that concerted legal action address-
ing wages, hours, and working conditions, whether, in a civil
suit, before an administrative agency, or through arbitration, all
constitute concerted protected activities under Section 7 of the
Act. D. R. Horton, supra slip op. at 2–3. In Eastex Inc. v.
NLRB, 437 U.S. 556, 565–566 (1978), the Supreme Court held
that the ‘mutual protection’ clause protects employees from
retaliation by their employers when they seek to improve work-
ing conditions through resort to administrative and judicial
forums.” In Le Madri Restaurant, 331 NLRB 269, 275 (2000),
the Board held that the filing of civil suit by employees is pro-
tected activity.
There can be no dispute that the Act unambiguously gives
employees the right to engage in protected concerted activities
without interference from the employer. Respondent’s policy
on its face prohibits collective or class claims not only in judi-
cial but also in arbitral forms and specifically and unambigu-
ously precludes consolidation of claims, representative actions
of any kind, and specifically precludes joinder.5 In a nutshell,
the arbitration policy by its own terms seeks to deprive em-
ployees of the very right to engage in collective activity that
Section 7 seeks to protect. The Board has found that if a rule
explicitly restricts activities protected by Section 7 of the Act,
the rule is unlawful and violates Section 8(a)(1). See U-Haul
Company of California, 347 NLRB 375, 377 (2006), enfd. 255
Fed. Appx. 527 (D.C. Cir 2007). I therefore find the policy
unlawfully restricts and interferes with the employees Section 7
rights to engage in concerted action for mutual aid or protection
and on its face violates Section 8(a)(1).
Similarly, I find that since the agreement in question pro-
vides that “any, controversy, dispute or claim arising out of or
relating to Employee’s employment . . . shall be settled through
binding arbitration,” given the all inclusive nature of the lan-
guage and without any clear exception for filing a charge with
the Board, employees would reasonably conclude that they
were precluded from filing an unfair labor practice with the
Board.6 (GC1(j) Appendix A.) Accordingly, a separate finding
of a violation of Section 8(a)(1) predicated on the test and ra-
tionale set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), is also warranted. See also, Bill’s Electric,
Inc., 350 NLRB 292, 296 (2007); Dish Network Corp., 358
NLRB 174, 180–181 (2012); University Medical Center, 335
NLRB 1318, 1320–1322 (2001), enf. denied in pertinent part,
335 F.3d 1079 (D.C. Cir. 2003).

5 Member Johnson in his dissent in Murphy Oil noted that a policy
that didn’t permit joinder in and of itself would constitute a violation of
the Act. He specifically stated while referring to joinder that, “a prohi-
bition on joint litigation imposed as a condition of employment pre-
vents the exercise of this Section 7 right and does not serve any of the
legitimate employer interests.” I am in agreement that the prohibition
of the joinder of claims in and of itself rises to the level of a separate
violation of Sec. 8(a)(1).
6 It is important to note that even when the employees are on-
boarded no attempt is made by Ms. Phoutrides to specifically advise
them regarding whether or not their rights to proceed to the NLRB are
affected by the arbitration agreement. (Tr. 14–18.)
KENAI DRILLING LIMITED 11
I also find, as did the Board in Murphy Oil, that Respond-
ent’s efforts to enforce the arbitration agreement constituted a
separate violation of 8(a)(1). In Murphy Oil the Board held
that, “it is well settled that an employer violates Section 8(a)(1)
by enforcing a rule that unlawfully restricts Section 7 rights.”
See, e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9, 16–
17 (1962); Republic Aviation Corp., v. NLRB 324 U.S. 793
(1945). That is precisely what the Respondent did through its
motion to dismiss.” The identical reasoning is applicable to
Respondent’s motion to dismiss in this case.
Respondent attempts to distinguish D. R. Horton from the in-
stant matter arguing because its opt-out provision renders the
agreement “voluntary” it does not violate the standards set forth
by the Board in D. R. Horton. At the outset, I disagree with
Respondent’s characterization of the agreement as “voluntary”
or “optional.” Voluntary is defined in the Webster’s Third New
International Dictionary (1986) 2564, as “proceeding from the
will or from one’s own free choice or consent; unconstrained
by interference . . . without legal obligation.” The agreement
doesn’t meet even the most basic and understood definition of
the term “voluntary.” If the agreement was truly “voluntary,”
the employees would be afforded the opportunity (upon giving
the employer reasonable notice), to change their minds (after
they had a full and fair opportunity to develop some real
knowledge of the working conditions), and notify the employer
of their intention to no longer be covered by the agreement if
they so desired. The employer’s efforts to enforce the agree-
ment make clear that this is simply not the case. If the employ-
ees do not affirmatively opt-out they are forever locked into the
arbitration agreement regardless of any change in their choice
or consent.
Moreover, as noted above, other Administrative Law Judges
have addressed the identical issues raised in this case in so far
as they relate to the question of whether the maintenance of an
arbitration policy with an opt-out provision insulates Respond-
ent from liability. In 24 Hour Fitness USA, Inc. (Case 20–CA–
035419, Nov. 6, 2012), Securitas Security Services USA, Inc.,
2013 WL 5984335 (NLRB Div. of Judges Nov. 8, 2013), Dom-
inos Pizza, LLC, 2014 WL 1267122(NLRB Div. of Judges,
March 27, 2014), and RPM Pizza, 2014 WL 3401751(NLRB
Division of Judges, July 11, 2014), each found that an opt-out
provision similar to that presented in this case violated Section
8(a)(1), and constituted an unlawful restriction of core rights
granted to employees under Section 7. While these decisions
are not binding precedent, I find the reasoning and rationale
presented within each to be in line with the Board’s rationale
set forth in Murphy Oil and persuasive. In particular, I agree
with my colleagues who have previously held that arbitration
policies similar to that in this case were unlawful because the
opt-out provision gives employees only a short time (30 days)
to irrevocably consider (often times without representation)
complex legal rights and consequences, many of which cannot
be foreseen by a new employee, and it places upon employees
the unreasonable burden of affirmatively making a decision to
waive future rights protected under the Act. See Ishikawa Gas-
ket America, Inc., 337 NLRB 175–176 (2001); Mandel Security
Bureau, Inc., 202 NLRB 117 (1973).7
General Counsel supplements this list with its own assertions
that:
(1) The arbitration policy unreasonably imposes upon em-
ployees a waiver at a time when employees are unlikely to
have notice of employment issues and/or where employees
have no notice of their Section 7 right to engage in class or
collective activity or that a prohibition on such activity vio-
lates Section 8(a)(1) of the Act;
(2) Even if employees do opt out they are precluded from act-
ing in concert with those who do;8

7 I am mindful that other Administrative Law Judges have reached
contrary results. See for example, Bloomingdale’s Inc., WL 3225945
(June 25, 2013), see also Valley Health System LLC, 28–CA–123611,
28–CA–127147 (March 18, 2015). The decisions appear to be contrary
to the clear authority set forth by the Board in Murphy Oil. In particu-
lar, they run afoul of Murphy Oil’s holding that an arbitration agree-
ment that prevents employees from exercising Section 7 rights,
“amounts to a prospective waiver of a right guaranteed by the NLRA.”
So too, I disagree with the notion in Valley Health System LLC that
endorses a requirement that new employees shoulder the burden of
paying for and seeking out counsel to preserve the very rights that are
guaranteed under federal law. It is this very burden that interferes with
the exercise of Section 7 rights.
8 One example of such interference comes when concerted activity
takes the form of disparate impact cases. In Griggs v. Duke Power, 401
U.S. 24 (1971), the Supreme Court held that employment practices that
are neutral on their face but have a discriminatory impact can violate
Title VII. A plaintiff in such cases need not prove discriminatory intent
but rather can establish through the use of statistics the discriminatory
impact of the practice or policy. If a policy is neutral on its face and
can only be discovered through the use of statistical analysis which
requires some extensive investigation and/or discovery of the practices
in question, it is highly unlikely that any new employee would meet the
30-day deadline to make an informed decision regarding whether to
opt-out or not. Secondly, assuming the individual who discovered a
neutral but discriminatory practice had opted-out, he/she may still be
precluded from engaging in collective action and obtaining class wide
relief to remedy class wide wrongs. In this hypothetical, although class
wide discrimination might be present, other affected potential class
members are presumably precluded from participating in the class thus
defeating numerosity. This would clearly conflict with Section 7’s and
Title VII’s purposes. The Supreme Court has held that, “race discrimi-
nation cases are by their very nature class suits involving class wide
wrongs.” East Texas Motor Freight Systems, Inc. v. Rodriguez, 431
U.S. 395, 405 (1977). It has even been noted that 23(b)(2) was specifi-
cally drafted to facilitate the vindication of civil rights through the class
action device. See 5 Moore’s Federal Practice Section 23.43[1][b], at
23–192(3rd Ed. 2005), see also, Barefield v. Chevron, 1899 WL
188433 (N.D. CA 1988). As the Supreme Court implicitly recognized
in Rodriguez individual relief in many cases is simply inadequate to
remedy class wrongs.
It should also be noted that the arbitration agreement, if enforced,
would serve to dismantle the private attorney general scheme envi-
sioned by Congress to encourage the effective public enforcement of
statues designed to remedy class wide or systemic wrongs in the em-
ployment setting. The fee shifting provisions of these statutes were
specifically meant to bridge the gap between the desire of an individual
who has been deprived a federal right to see that right vindicated and
the financial ability to do so. As noted by Justice Brennan in Newman
v. Piggie Park Enterprises Inc., 390 U.S. 400, 401 (1968), by utilizing
the private attorney general framework, “Congress sought to capitalize
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(3) Requiring employees to preserve their Section 7 rights in
an unlawful burdening of their Section 7 rights; and
(4) The opt out procedure by its nature requires new employ-
ees to self identify at a time when they are particularly vulner-
able as new employees and thus the agreement significantly
burdens the right to engage in collective action.
I concur with General Counsel that all of the above consid-
ered individually and together offer valid and compelling ra-
tionale from which to conclude that the arbitration agreement
unlawfully restricts core rights. General Counsel asserts and I
agree that requiring employees to “self identify” burdens em-
ployee’s rights. This is especially true when as in this case the
person notified of the decision is a high ranking company offi-
cial. See Special Touch Home Care Services, 357 NLRB 4
(2011), holding that permitting an employer to compel employ-
ees to provide individual notice of participation in collective
action would impose a significant burden on the right.
In my view, the issue runs deeper than simply “self identifi-
cation.” One of the two pillars of concerted activity is the
recognition that there is strength in numbers and with this
strength comes the balancing of power between employers and
employees. Judge Dawson in RPM Pizza, 2014 WL
3401751(NLRB Division of Judges, July 11, 2014), eloquently
touched upon this when she noted that a similar opt-out provi-
sion, “creates a smokescreen and serves to restore the inequity”
the Act intended to address. The second pillar of concerted
activity revolves around the notion that that along with strength
in numbers there is the perception of safety in numbers. In-
deed, the Act specifically references the right to engage in con-
certed activities for “protection.” It is no doubt much easier for
an employer to take an adverse action against a single “self
identified” employee who complains about terms and condi-
tions of employment or opposes an unlawful employment prac-
tice than it is to terminate a whole class of employees. Member
Miscimara in HTH, Pacific Beach Corp., 361 NLRB No. 65, 69
(2014), observed that, “the NLRA is unique among federal
employment statutes. The core focus of the NLRA relates al-
most exclusively to the manner in which employees interact
collectively and in support of one another.” He further ob-
served that, “all of these protections have meaning only if em-
ployees have support from other employees” Id.
The arbitration agreement by its very nature compels em-
ployees to act alone and strips them of the very support and
“protection” that the Act intends to provide. It essentially de-
prives them of the core right to act in concert with others for
“protection.” The chilling effect on the exercise of an employ-
ee’s rights by requiring that the employee act alone and without
the “protection” of banding together with his or her fellow em-

on the happy coincidence that encouraging private actions would, in the
long run provide effective public enforcement.” As the Court also noted
in Amchem Products Inc. v. Windsor, 521 U.S. 591, 617 (1997), “the
policy at the very core of the class action mechanism is to overcome the
problem that small recoveries do not provide the incentive for any
individual to bring a solo action prosecuting his or her rights. A class
action solves this problem by aggregating the relatively paltry recover-
ies into something worth someone’s (usually an attorney’s) labor”
(citations omitted).
ployees is unquantifiable and immeasurable but very real. See
Lafayette Park Hotel, 326 NLRB 824, 825 (1998) (wherein the
Board held that the mere maintenance of work rule by employ-
er will violate Act where the rule is likely to have a chilling
effect), enfd. 203 F.3d 52 (D.C. Cir. 1999). A perfect example
arises repeatedly in cases of sexual harassment wherein a vic-
tim endures harassment because of fear.9 Oftentimes, these
victims can find the courage to complain about the harassment
only when others who have also been victimized are willing to
stand with them to face the harasser. This is the very kind of
support intended by the Act when it guaranteed employees the
right to engage in concerted activities for “mutual aid or protec-
tion” and the very kind of support the arbitration agreement
removes.
For the foregoing reasons, I find that Respondent’s mainte-
nance of and requirement that employees enter into its arbitra-
tion agreement, as set forth above, as a condition of employ-
ment, unlawfully restricts core rights granted to employees
under Section 7 of the Act and violates of Section 8(a)(1) as
alleged in the complaint.
CONCLUSIONS OF LAW
(1) The Respondent, Kenai Drilling Limited, is an employ-
er within the meaning of Section 2(2), (6), and (7) of the Act.
(2) At all material times, the Respondent has violated Sec-
tion 8(a)(1) of the Act by maintaining and enforcing an arbitra-
tion policy that waives the rights of its employees to file and
maintain class and collective actions in all forums, arbitral and
judicial, and is applicable to all employees who fail to opt out
of coverage under the arbitration policy during a one-time ini-
tial opt out period permitted to each employee.
(3) The above violations are unfair labor practices within the
meaning of the Act.
(4) The unfair labor practices committed by Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that the Respondent’s
arbitration policy is unlawful, the Respondent shall be ordered
to rescind or revise it to make clear to employees (in all of its
facilities in which the arbitration policy has been implemented)
that the policy does not constitute or require a waiver in all
forums of their right to maintain or participate in collective
and/or class actions, and shall notify employees of the rescind-
ed or revised policy by providing them a copy of the revised
policy or specific notification that the policy has been rescind-
ed. Respondent is also ordered to distribute appropriate reme-
dial notices to its employees electronically, such as by email,
posting on an intranet or internet site, and/or other appropriate
electronic means, if it customarily communicates with its em-

9 See for example, Fresh & Easy Neighborhood Market Inc., 361
NLRB No. 12 (2014), which held that that an employee seeking the
assistance or support of his or her coworkers in raising a sexual har-
assment allegation is acting for the purpose of mutual aid or protection.
KENAI DRILLING LIMITED 13
ployees by such means. J. Picini Flooring, 356 NLRB 11
(2010).
Respondent shall also notify any tribunal, arbitral or judicial
where it has pursued the enforcement of the arbitration agree-
ment that the underlying basis of its objection to the pursuit of
any class or collective action was found to be violative of Sec-
tion 8(a)(1) of the NLRA, and as such, the request to enforce or
compel arbitration was void ab initio. It shall also notify the
tribunal that in order to comply with federal law, Respondent
desires to withdraw and/or vacate any such motion or request to
compel arbitration and that Respondent no longer objects to the
participation of its employees in such class or collective ac-
tions.
The General Counsel asks that Charging Party be reimbursed
for any litigation expenses directly related to opposing Re-
spondent’s action to enforce its arbitration agreement. Re-
spondent argues that the award of litigation expenses is im-
proper. The Board in Murphy Oil directly considered the issue
and stating, “consistent with the Board’s usual practice in cases
involving unlawful litigation, we shall order the Respondent to
reimburse the plaintiffs for all reasonable expenses and legal
fees, with interest, incurred in opposing the Respondent’s un-
lawful motion to dismiss their collective FLSA action and
compel individual arbitration. See Bill Johnson’s, 461 U.S. at
747 (“If a violation is found, the Board may order the employer
to reimburse the employees whom he had wrongfully sued for
their attorneys’ fees and other expenses” and “any other proper
relief that would effectuate the policies of the Act.”).” In view
of the Board having directly addressed the issue, and in reliance
upon the Board’s decision, I find that the award of litigation
expenses with interest is appropriate. The applicable rate of
interest on the reimbursement shall be determined as outlined in
New Horizons, 283 NLRB 1173 (1987) (adopting the Internal
Revenue Service rate for underpayment of Federal taxes). In-
terest on all amounts due shall be computed on a daily bases as
prescribed in Kentucky River Medical Center, 356 NLRB 8
(2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Kenai Drilling Limited, Bakersfield, Cali-
fornia , its officers, agents and representatives shall
1. Cease and desist from
(a) Maintaining, enforcing, seeking to enforce any arbitra-
tion agreement (the agreement) or policy that waives the right
of employees to file and maintain class or collective actions in
all forums, arbitral and judicial, and which applies irrevocably
to those employees who fail to opt out.
(b) Requiring employees to sign binding arbitration agree-
ments that prohibit collective and class litigation in all arbitral
or judicial forums.
(c) In any like or related manner interfering with, restrain-

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purpos-
es.
ing, or coercing employees in the exercise of their rights under
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind or revise the agreement, in all forms and places,
to make clear to employees that the agreement does not consti-
tute or require a waiver in all arbitral or judicial forums of their
right to maintain employment-related class or collective ac-
tions.
(b) Reimburse Charging Party, Eddie Stewart, III for all rea-
sonable expenses and legal fees, with interest incurred in op-
posing Respondent’s unlawful motion to dismiss and compel
arbitration.
(c) Notify employees of the rescinded or revised policy by
providing them a copy of the new revised policy and/or specific
written notification that the policy has been rescinded.
(d) Notify any tribunal, arbitral or judicial where it has pur-
sued the enforcement of the arbitration agreement that the un-
derlying basis of its objection to the pursuit of any class or
collective action was found to be violative of federal law, and
as such, the request to enforce or compel arbitration was void
ab initio. Notify the tribunal that in order to comply with fed-
eral law, Respondent desires to withdraw and/or vacate any
such motion or request to compel arbitration and that Respond-
ent no longer objects to the participation of its employees in
such class or collective actions.
(e) Within 14 days after service by the Region, post at its fa-
cilities where the Agreement has been or is in effect, copies of
the attached notice marked Appendix. Copies of this notice, on
forms provided by the Region Director for Region 31, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including 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 or intranet or an inter-
net site, and/or other electronic means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since July 1, 2011.11
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 31 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.
Dated, Washington, D.C. April 13, 2015

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Nation-
al Labor Relations Board shall read “posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
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.
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 or enforce a binding arbitration agree-
ment (the agreement) that waives the right of employees to
maintain or engage in class or collective actions in all forums
arbitral or judicial.
WE WILL NOT require employees to sign binding arbitration
agreements that waive the right to maintain or engage in class or
collective actions in all arbitral or judicial forums.
WE WILL NOT in any manner enforce and/or seek to en-
force any arbitration agreement found to be in violation of
the National Labor Relations Act by filing motions to dis-
miss and/or motions seeking to compel individual arbitra-
tions.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in their rights guaranteed them by
Section 7 of the Act.
WE WILL rescind or revise the agreement at all facilities
where it has been implemented and is currently in effect and
make it clear to employees that the agreement does not consti-
tute a waiver of their right to maintain or engage in employ-
ment-related class or collective actions.
WE WILL notify our employees of the rescinded or revised
agreement by providing to them a copy of the revised agreement
or specific notification that it has been rescinded.
WE WILL reimburse Charging Party, Eddie Stewart, III for all
reasonable expenses and legal fees, with interest incurred in
opposing Respondent’s unlawful motion to dismiss and compel
arbitration.
WE WILL notify any tribunal where we have pursued the en-
forcement of our arbitration agreement that the underlying basis
of our objection to the pursuit of any class or collective action
was found to be violative of federal law, and as such, our re-
quest to enforce or compel arbitration was void ab initio. Fur-
ther, we will advise the tribunal that in order to comply with
federal law, we desire to withdraw and/or vacate any such mo-
tion or request to compel arbitration and that we no longer ob-
ject to the participation of our employees in such class or col-
lective actions.
KENAI DRILLING LIMITED