Kellogg Brown & Root, LLC

National Labor Relations Board - Board Decisions

Aug 2, 2018

366 NLRB No. 153 (N.L.R.B. 2018)

366 NLRB No. 153
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.
Kellogg Brown & Root LLC and Molycorp, Inc. and
David L. Totten. Cases 31–CA–140948 and 31–
CA–145896
August 2, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On April 4, 2016, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Re-
spondents filed exceptions and a supporting brief. The
General Counsel filed an answering brief. The Respond-
ents filed a reply 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, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy
Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in rel-
evant part 808 F.3d 1013 (5th Cir. 2015), that Respond-
ent Kellogg Brown & Root, LLC (Kellogg) violated Sec-
tion 8(a)(1) of the National Labor Relations Act by main-
taining a Dispute Resolution Program Plan and Rules,
incorporated in its Dispute Resolution Agreement (col-
lectively, the “Policy”), that requires employees, as a
condition of employment, to waive their right to pursue
class or collective actions involving employment-related
claims in all forums, whether arbitral or judicial. The
judge also found that Respondents Kellogg and
Molycorp, Inc. violated Section 8(a)(1) by enforcing the
Policy.
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 decision 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. August 2, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Nikki N. Cheaney, Esq., for the General Counsel.
Howard S. Linzy, Esq. & Thomas J. Woodford, Esq. (The Kull-
man Firm, PLC), for the Respondents.
Leonard H. Sansanowicz, Esq. (Feldman Browne Olivares,
APC), for the Charging Party.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. This is
another case involving an alleged unlawful mandatory individ-
ual arbitration provision. On December 31, 2015, the General
Counsel, the Charging Party (David Totten), and the Respond-
ents (Kellogg Brown & Root LLC and Molycorp, Inc.) filed a
joint motion and stipulation of facts requesting that the allega-
tions be decided without a hearing based on the stipulated rec-
ord. The motion was granted, and the General Counsel and the
Respondents thereafter filed briefs on March 25, 2016.1 Based
on those briefs and the entire stipulated record, for the reasons
set forth below I find that the Respondents unlawfully main-
tained and/or enforced the subject arbitration provision as al-
leged.
Kellogg Brown & Root provides engineering, procurement,
and construction services, and maintains an office and place of
business in Houston, Texas. Molycorp manufactures custom
rare earth and metal products, and has an office and place of
business in Greenwood Village, Colorado, and a facility in
Mountain Pass, California.2

1 We therefore find no need to address other issues raised by the Re-
spondents’ exceptions.
1 See Sec. 102.35(a)(9) of the Board’s rules. Totten did not file a
brief. However, like the General Counsel and the Respondents, he
attached a short statement of position to the joint motion and stipulation
of facts.
2 Respondents do not dispute, and the record establishes, that they
satisfy the Board’s jurisdictional commerce standards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Totten was employed by Kellogg until June 2013, when he
was terminated pursuant to a reduction in force. A year later, in
July 2014, he filed a class-action lawsuit in California superior
court against both Kellogg and Molycorp, which he alleged was
his joint employer, seeking unpaid wages and other relief under
various California statutes.Respondents subsequently removed
the action to federal district court. A month later, on September
25, 2014, they jointly moved the district court to compel arbi-
tration of Totten’s individual wage claims and to dismiss the
purported class and representative claims. They did so pursuant
to a provision in Kellogg’s Dispute Resolution Program Plan &
Rules, which is incorporated into a Dispute Resolution Agree-
ment that Kellogg has required all employees, including Totten,
to sign as a condition of employment. The provision states that
all disputes3 shall be resolved through individual arbitration,
thereby prohibiting employees from asserting claims in a class
or representative capacity in either judicial or arbitral forums.
Citing D. R. Horton, 357 NLRB 2277 (2012), and Murphy
Oil USA, Inc., 361 NLRB No. 72 (2014), the General Counsel
alleges that Kellogg and Molycorp thereby violated Section
8(a)(1) of the National Labor Relations Act. Specifically, the
General Counsel alleges that Kellogg violated the Act by main-
taining the individual arbitration provision as a condition of
employment, and that both Kellogg and Molycorp violated the
Act by seeking to enforce the provision against Totten in his
class-action suit.
Respondents dispute the allegations, arguing that D. R. Hor-
ton and Murphy Oil were wrongly decided and rejected in rele-
vant part on appeal by the Fifth Circuit, 4 the jurisdiction where
Kellogg maintains its principal place of business. However, the
Board fully explained in Murphy Oil why it continued to adhere
to D. R. Horton notwithstanding the Fifth Circuit’s refusal to
enforce that decision. And while the Fifth Circuit subsequently
refused to enforce Murphy Oil as well, it acknowledged the
Board’s right not to acquiesce to the circuit court’s decision in
light of the multiple venue options for obtaining review of
Board orders under Section 10(f) of the Act.5 In any event,
administrative law judges must follow Board precedent unless
and until it is overruled by the Supreme Court. Pathmark
Stores, Inc., 342 NLRB 378 fn. 1 (2004).
Respondents also argue that the General Counsel’s allega-
tions should be dismissed for several other reasons. As dis-
cussed below, however, these arguments are likewise contrary
to Board precedent.
(1) Timing of Totten’s charges. Respondents argue that the
complaint should be dismissed because Totten did not file the
8(a)(1) charges with the Board until November 2014 and Feb-
ruary 2015, well over 6 months after he initially signed the
dispute resolution agreement in January 2012. However, the
Board has repeatedly rejected this argument in previous D. R.
Horton/Murphy Oil cases, holding that an 8(a)(1) violation may

3 NLRB unfair labor practice charges and proceedings are excepted.
4 D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir 2013); and
Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
5 808 F.3d at 1018. See also Murphy Oil, 361 NLRB No. 72, slip
op. at 2 fn. 17; and D. L. Baker, Inc., 351 NLRB 515, 529 fn. 42 (2007)
(discussing the Board’s nonacquiescence policy).
be found where, as here, an unlawful policy has been main-
tained and/or enforced within 6 months of the charge, regard-
less of when the policy became effective or was acknowledged
by the employee. See Cowabunga, Inc., 363 NLRB No.133,
slip op. at 2 (2016); Fuji Food Products, Inc., 363 NLRB No.
118, slip op. at 1 fn. 1, 7 (2016); and Employer’s Resource, 363
NLRB No. 59, slip op. at 1 fn. 2, 5 fn.3 (2015), and cases cited
there.
(2) Totten’s employee status. Respondents also argue that
the complaint should be dismissed because Totten was termi-
nated for reasons unrelated to any current labor dispute or un-
fair labor practice, and was therefore not an “employee” of
Kellogg within the meaning of Section 2(3) of the Act when
they sought to enforce the arbitration provision in his class-
action suit. However, the Board has repeatedly rejected this
argument in prior cases too, holding that former employees are
protected by the Act and may file unfair labor practice charges
over their former employer’s posttermination maintenance and
enforcement of an individual arbitration policy, even if they
were terminated for reasons unrelated to any labor dispute or
unfair labor practice. See Cowabunga, slip op. at 2; Fuji Food
Products, slip op. at 1 fn. 1, 7; Employer’s Resource, slip op. at
1 fn. 2, 6; and Cellular Sales of Missouri, 362 NLRB No. 27,
slip op. at 6–7 (2015).
Respondents assert that Totten was not an employee when he
worked for Kellogg, but was instead employed as a supervisor.
See Respondents’ answer, General Counsel Exhibit 1(n), par. 3
(Totten “is not now and was not an employee of [Kellogg]
within the meaning of the Act during any relevant time peri-
ods”), and par. 6 (“when [Totten] was last employed by [Kel-
logg] in June 2013 he was a supervisor with the meaning of the
Act”); and Respondents’ brief at 3. However, Respondents,
which have the burden of proving supervisory status under
Section 2(11) of the Act (see NLRB v. Kentucky River Commu-
nity Care, 532 U.S. 706, 710–713 (2001)), have failed to estab-
lish that Totten worked as a supervisor throughout his employ-
ment. Indeed, Respondents’ August 27, 2014 statement in
support of removing Totten’s class action complaint to federal
court stated that Totten “worked as a rigger and rigging fore-
man at the Molycorp Mountain Pass rare earth facility in
Mountain Pass, California from January 16, 2012 through June
17, 2013,” earning $26–$33 per hour (Jt. Exh. 5, at 8). Thus,
by Respondents’ own admission, Totten worked as a rigger part
of the time he was employed.6 In any event, even if Totten was
designated a “rigging foreman” throughout his employment, it
is well settled that an individual’s job title alone is insufficient
to establish supervisory status. Heritage Hall, 333 NLRB 458,
458–459 (2001). See also du Pont, E.I., de Nemours & Co., 89
NLRB 119 (1950) (finding that the employer’s rigger foreman
was an employee rather than a supervisor).

6 Respondents’ August 27, 2014 statement to the district court,
which the parties made part of the stipulated record in this proceeding,
may properly be considered as an evidentiary admission under FRE
801(d)(2). See generally 30B Fed. Prac. & Proc. Evid. sec. 7026 (2014
ed., database updated April 2015); and Spurlino Materials, LLC, 357
NLRB 1510 fn. 1, 1516 n. 20 (2011), enfd. 805 F.3d 1131 (D.C. Cir.
2015).
KELLOGG BROWN & ROOT LLC AND MOLYCORP, INC. 3
Respondents’ brief also argues that the General Counsel
failed to allege and prove that Totten continues to seek paid
employment, citing Chemical Workers Local 1 v. Pittsburgh
Plate Glass, 404 U.S. 157 (1971) (retirees who have abandoned
the workforce are not employees under the Act); and WBAI
Pacifica Foundation, 328 NLRB 1273 (1999) (unpaid staff are
not employees under the Act). However, Respondents did not
raise this issue in either their answer to the complaint or their
statement of position filed with the parties’ stipulation. Nor is
the issue, or any fact relevant to it, set forth in the stipulation
itself. Respondents cite no Board precedent requiring the Gen-
eral Counsel in such circumstances to present evidence or prove
that a former employee continued to seek paid employment.
And what precedent there is indicates otherwise. See Fuji Food
Products, slip op. at 7 fn. 8 (noting, in rejecting the employer’s
argument that the charging party was no longer an employee
under 2(3) of the Act, that the employer did not contend that
she had abandoned the workforce after her employment ended);
Toering Electric Co., 351 NLRB 225, 233 (2007) (holding that,
in hiring discrimination cases, the General Counsel does not
have to prove the applicant had a genuine interest in working
for the employer unless the employer puts it at issue by present-
ing evidence that creates a reasonable question regarding the
applicant’s actual interest); and Central Transport, Inc., 247
NLRB 1482, 1482–1483, JD fn. 1 (1980) (finding, in a hiring
discrimination case, that the General Counsel did not have to
present evidence that the alleged discriminatee was an employ-
ee rather than an independent contractor, as the employer had
not raised this issue in its answer or at the hearing), cited with
approval in BKN, Inc., 333 NLRB 143, 144 fn. 3 (2001), reaf-
firmed FedEx Home Delivery, 361 NLRB No. 55, slip op. at 2
(2014) (as with supervisory status, the burden is on the party
asserting that an individual is an independent contractor rather
than an employee to prove it). See also Boeing Company, 362
NLRB No. 195, slip op. at 1 fn. 1 (2015) (finding, in a stipulat-
ed-record case, that the employer waived its right to challenge
the authority of the General Counsel to prosecute the case, as
the employer failed to raise the argument in its answer or plead-
ings, and the stipulation identified only three issues in dispute,
none of which questioned the General Counsel’s authority).
(3) Totten’s concerted activity. Respondents also argue that
the allegations should be dismissed because Totten did not
engage in any concerted activity protected by the Act. Howev-
er, again, the Board in prior cases has repeatedly rejected this
argument, holding that the filing of an employment-related
class or collective action by an individual constitutes concerted
activity under the Act. See Cowabunga, slip op. at 2; Fuji
Food Products, slip op. at 1 fn. 1; and Employer’s Resource,
slip op. at 1 fn. 2, 7, and cases cited there.
(4) Molycorp’s employer status. Finally, Respondents argue
that the allegations against Molycorp should be dismissed be-
cause Totten was never actually employed by Molycorp. How-
ever, the Board in prior cases has repeatedly rejected this argu-
ment as well, holding that an employer may properly be held
accountable for restricting or interfering with an employee’s
rights under the Act regardless of whether it is or was an em-
ployer of that employee. See Employer’s Resource, slip op. at
1 fn. 2, 6 (2015); and Countrywide Financial Corp., 362 NLRB
No. 165, slip op. at 1 fn. 2 (2015), citing New York New York
Hotel & Casino, 356 NLRB 907, 911 (2011), enfd. 676 F.3d
193 (D.C. Cir. 2012), cert. denied 133 S.Ct. 1580 (2013). Un-
der that precedent, Molycorp’s alleged enforcement violation
under D. R. Horton and Murphy Oil is sufficiently established
by the stipulated facts that it is an employer engaged in com-
merce generally and that it joined in Kellogg’s motion to dis-
miss Totten’s class and representative claims pursuant to the
unlawful dispute resolution provision.7
CONCLUSIONS OF LAW
1. Respondent Kellogg has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act by:
a. Maintaining, as a condition of employment, a mandatory
individual arbitration policy that prohibits employees from
pursuing claims in a class or representative capacity in both
judicial and arbitral forums; and
b. Seeking to enforce the foregoing arbitration policy
against Totten since September 2014.
2. Respondent Molycorp has likewise engaged in an unfair
labor practice affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act by seeking to
enforce the foregoing arbitration policy against Totten since
September 2014.
REMEDY
Consistent with D. R. Horton and Murphy Oil, Respondent
Kellogg will be required to rescind or revise the Dispute Reso-
lution Program Plan & Rules and the Dispute Resolution
Agreement containing the unlawful mandatory arbitration pro-
vision, and to notify Totten and other current and former em-
ployees who signed or were subject to the plan or agreement
that it has done so.
With respect to Totten’s class action suit, I take judicial no-
tice under FRE 201 that the following events occurred after the
parties filed their joint motion and stipulation of facts in this
proceeding:
(1) On January 22, 2016, the federal district court (Dolly M.
Gee, J.) granted the Respondents’ motion to compel arbitration
to the extent Totten asserted individual claims, but denied their
motion to dismiss Totten’s class claims (Totten v. Kellogg
Brown & Root, LLC et al., --- F.Supp.3d --- 2016 WL 316019
(C.D. Cal. Jan. 22, 2016)); and
(2) On February 22, 2016, Respondents filed an appeal from
the district court’s order with the Ninth Circuit (Docket No. 16–
55260), which remains pending.
Respondents Kellogg and Molycorp will therefore be re-
quired to notify the appeals court that Kellogg has revised or
rescinded the dispute resolution plan and agreement, and that
Respondents no longer oppose Totten’s class or representative
claims on the basis that they are barred by the mandatory indi-

7 It is therefore unnecessary to address Totten’s contention that he
was jointly employed by Kellogg and Molycorp. Although the position
statement he filed with the parties’ joint motion and stipulation cites
several facts supporting a joint-employer finding, none of those facts
are included in the parties’ stipulation or properly the subject of judicial
notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
vidual arbitration provision therein. See Ross Stores, 363
NLRB No. 79 (2015).
Respondents will also be required to reimburse Totten for all
reasonable expenses and legal fees, with interest, incurred in
opposing both their motion to dismiss the class and representa-
tive claims and their appeal from the district court’s adverse
ruling on the motion. Interest shall be computed and com-
pounded daily as set forth in New Horizons, 283 NLRB 1173
(1987) and Kentucky River Medical Center, 356 NLRB 6
(2010).
Finally, as requested in the General Counsel’s complaint,
Respondents will be required to post a notice to employees;
Kellogg at all locations where the dispute resolution plan and/or
agreement have been in effect, and Molycorp at its facility in
Mountain Pass, California. Respondents will also be required
to distribute the notice electronically, including by email, if
they customarily communicate with employees by such means.
See J. Picini Flooring, 356 NLRB 11, 14 (2010). And they
will be required to mail the notice in the event they have gone
out of business or have closed or ceased providing services at a
particular facility covered by the order. See, e.g., SBM Man-
agement Services, 362 NLRB No. 144, slip op. at 1 n. 3 (2015).
The General Counsel’s complaint requests an unconditional
notice-mailing remedy, i.e. that Respondents be required to
mail the notice to their employees regardless of whether Re-
spondents have gone out of business or have closed or ceased
providing services at a particular facility. However, the Board
considers this to be an extraordinary remedy. See J. Picini
Flooring, above. And the General Counsel cites no extraordi-
nary circumstances justifying it here. Although the General
Counsel’s brief (pp. 10–11) addresses why the other remedies
requested in the complaint are appropriate, it conspicuously
fails to address the requested notice-mailing remedy. The
Board has not routinely included this remedy in other cases
under D. R. Horton and Murphy Oil (notwithstanding that it
would be a relatively simple matter for respondents to include a
copy of the Board’s notice when they notify their employees
that the unlawful arbitration provision has been rescinded or
revised). Nor has the Board routinely included the remedy in
cases arising in the construction industry. See Six Star Janito-
rial, 28–CA–023491, 2014 WL 28670 (Jan. 2, 2014), cit-
ing Engineering Contractors, 357 NLRB 1553 (2011), and
McCarthy Construction Co., 355 NLRB 50, 53–54 (2010),
incorporated by reference 355 NLRB 365 (2010).
Accordingly, based on the foregoing and the record as a
whole, I issue the following order.8
ORDER
A. The National Labor Relations Board orders that Re-
spondent Kellogg Brown & Root LLC, Houston, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or enforcing a mandatory arbitration

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
provision that requires employees, as a condition of employ-
ment, to waive the right to maintain class or collective actions
in all forums, whether arbitral or judicial.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the mandatory arbitration provision in all of its
forms, or revise it in all of its forms to make clear to employees
that the arbitration provision 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 who were re-
quired to sign or otherwise become bound to the mandatory
arbitration provision in any form that it has been rescinded or
revised and, if revised, provide them a copy of the revised pro-
vision.
(c) Notify the U.S. Court of Appeals for the Ninth Circuit in
Totten v. Kellogg Brown & Root, LLC et al., Docket No. 16–
55260, that it has rescinded or revised the mandatory arbitration
provision upon which it based its motion to dismiss Totten’s
class and representative claims, and inform the court that it no
longer opposes the claims on the basis of the arbitration provi-
sion.
(d) Reimburse Totten for any reasonable attorneys' fees and
litigation expenses that he may have incurred in the above ac-
tion in opposing the Respondent's motion to dismiss his class
and representative claims and Respondents’ appeal of the dis-
trict court’s denial of that motion.
(e) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix A” at all of its facili-
ties where the arbitration provision has been maintained.9 Cop-
ies of the notice, on forms provided by the Region, after being
signed by the Respondent's authorized representative, shall be
posted and maintained 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 notic-
es, 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 Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or has closed or ceased doing business at a
facility covered by this order, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice marked “Ap-
pendix A” to all current employees and former employees em-
ployed by the Respondent at those facilities at any time since
April 17, 2014.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices 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.”
KELLOGG BROWN & ROOT LLC AND MOLYCORP, INC. 5
(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.
B. The National Labor Relations Board orders that Re-
spondent Molycorp, Inc., Greenwood Village, Colorado, and
Mountain Pass, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Enforcing a mandatory arbitration provision that requires
employees, as a condition of employment, to waive the right to
maintain class or collective actions in all forums, whether arbi-
tral or judicial.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Inform the U.S. Court of Appeals for the Ninth Circuit in
Totten v. Kellogg Brown & Root, LLC et al., Docket No. 16–
55260, that it no longer opposes Totten’s class and representa-
tive claims on the basis of the mandatory arbitration provision
maintained by Kellogg Brown & Root LLC.
(b) Reimburse Totten for any reasonable attorneys' fees and
litigation expenses that he may have incurred in the above ac-
tion in opposing the Respondent's motion to dismiss his class
and representative claims and Respondents’ appeal of the dis-
trict court’s denial of that motion.
(c) Within 14 days after service by the Region, post at its
Mountain Pass, California facility copies of the attached notice
marked ““Appendix B.” Copies of the notice, on forms provid-
ed by the Region, after being signed by the Respondent's au-
thorized representative, shall be posted and maintained for 60
consecutive 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 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 Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or has
closed or ceased doing business at the facility covered by this
order, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice marked “Appendix B” to all current
employees and former employees employed by the Respondent
at that facility at any time since September 25, 2014.
(d) 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 4, 2016
APPENDIX A
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 and/or enforce a mandatory arbitra-
tion provision that requires employees, as a condition of em-
ployment, 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 guaranteed
you by Section 7 of the Act.
WE WILL rescind the unlawful mandatory arbitration provi-
sion in all of its forms, or revise it in all of its forms to make
clear that the arbitration provision does not constitute a waiver
of your right to maintain employment-related joint, class, or
collective actions in all forums.
WE WILL notify all current and former employees who were
required to sign or otherwise become bound to the mandatory
arbitration provision in any form that it has been rescinded or
revised and, if revised, WE WILL provide them a copy of the
revised provision.
WE WILL notify the U.S. Court of Appeals for the Ninth Cir-
cuit in Totten v. Kellogg Brown & Root, LLC et al., Docket No.
16–55260, that we have rescinded or revised the mandatory
arbitration provision upon which we based our motion to dis-
miss David Totten’s class and representative claims against us,
and inform the court that we no longer oppose the claims on the
basis of the arbitration provision.
WE WILL reimburse Totten for any reasonable attorneys' fees
and litigation expenses that he may have incurred in the above
court proceeding in opposing our motion to dismiss his class
and representative claims and our appeal of the district court’s
denial of that motion, with interest.
KELLOGG BROWN & ROOT LLC
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
The Administrative Law Judge's decision can be found at
www.nlrb.gov/case/31-CA-140948 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.
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.
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 enforce a mandatory arbitration provision that
requires 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 guaranteed
you by Section 7 of the Act.
WE WILL notify the U.S. Court of Appeals for the Ninth Cir-
cuit in Totten v. Kellogg Brown & Root, LLC et al., Docket No.
16–55260, that we no longer oppose David Totten’s class and
representative claims against us on the basis of the mandatory
arbitration provision maintained by Kellogg Brown & Root
LLC.
WE WILL reimburse Totten for any reasonable attorneys' fees
and litigation expenses that he may have incurred in the above
court proceeding in opposing our motion to dismiss his class
and representative claims and our appeal of the district court’s
denial of that motion, with interest.
MOLYCORP, INC.
The Administrative Law Judge's decision can be found at
www.nlrb.gov/case/31-CA-140948 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. i