Victory II, LLC d/b/a Victory Casino Cruises II

National Labor Relations Board - Board Decisions

Apr 22, 2016

363 NLRB No. 167 (N.L.R.B. 2016)

363 NLRB No. 167
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.
Victory II, LLC d/b/a Victory Casino Cruises II and
Donald Morgan. Case 12–CA–146110
April 22, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA
AND MCFERRAN
The General Counsel seeks summary judgment in this
case on the grounds that there are no genuine issues of
material fact as to the allegations of the complaint, and
that the Board should find, as a matter of law, that the
Respondent violated Section 8(a)(1) of the Act by main-
taining three different policies: a Confidentiality/Non-
Disclosure rule in its employee handbook, a Confidenti-
ality Agreement that employees signed as a condition of
employment, and an Arbitration Agreement, signed as a
condition of employment, that prohibits its employees
from participating in collective or class litigation in all
forums.
Pursuant to an original charge and an amended charge
filed by Donald Morgan on, respectively, February 9,
2015, and March 30, 2015, the General Counsel issued
the complaint on June 30, 2015. The complaint alleges
that since on or before July 1, 2011, the Respondent has
maintained a Confidentiality/Non-Disclosure rule in its
employee handbook. The complaint further alleges that
since on or before June 23, 2014, the Respondent has
maintained both a Confidentiality Agreement and an
Arbitration Agreement, and required its employees to
execute both agreements as a condition of employment.
The confidentiality policy in the handbook states in
full:
“Confidentiality/Non-Disclosure.” The protection of
confidential business information and trade secrets is
vital to the interest and success of Victory Casino
Cruises. Such confidential information includes, but is
not limited to, the following examples:
Attorney/client information
Compensation data
Personnel Information
Disciplinary Actions
Compensation and bonus [sic]
Computer programs and codes
Customer lists
Financial information
Labor relations strategies
Marketing strategies
Medical information
New materials research
Pending projects and proposals
Proprietary production processes
Research and development strategies
Scientific data
Technological data
Casino business strategies
Trade secrets of Victory Casino Cruises
Other confidential information regarding Victory
Casino Cruises and/or its employees
All employees are required to sign a non-disclosure
agreement as a condition of employment. Employees
who improperly use or disclose confidential business
information will be subject to disciplinary action, up to
and including termination and legal action, even if they
do not actually benefit from the disclosed information.
The Confidentiality Agreement, as set forth in the Re-
spondent’s brief in opposition to the motion for summary
judgment, states:
Employees of the company are prohibited from reveal-
ing company business and employee information to
anyone outside the company unless given specific per-
mission to do so by senior management. This includes
all information regarding company operations, budgets
and expenses and individuals or groups of employees.
The company considers all information about present
or past employees to be confidential. No employee is
allowed to divulge information about current or past
employees without prior approval of senior manage-
ment. Information regarding any employee’s address,
telephone number, or other personal information is to
be considered highly confidential and not to be shared
with anyone.
Anyone divulging confidential information is subject to
discipline up to and including termination.
The Arbitration Agreement, which is appended to the
employee handbook, states in relevant part:
It is the policy of The Company to require arbitration
agreement [sic] to address claims arising out of or re-
lated to your employment that shall be settled by bind-
ing arbitration administered by the American Arbitra-
tion Association.
Any controversy or claim arising out of your employ-
ment with Victory Casino shall be settled by binding
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
arbitration . . . . There shall be no right or authority for
claims to be arbitrated on a class action basis.
The complaint alleges that, by maintaining these policies,
the Respondent has interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights.
On July 13, 2015, the Respondent filed an answer ad-
mitting all of the factual allegations in the complaint but
denying the legal conclusions and asserting several af-
firmative defenses.
On August 7, 2015, the General Counsel filed a Mo-
tion for Summary Judgment. On September 17, 2015,
the Respondent filed an opposition to the General Coun-
sel’s motion. On October 20, 2015, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The General Counsel and the Respondent each filed
a response on November 2, 2015.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
As stated above, the Respondent’s answer admits all of
the factual allegations in the complaint. Specifically, the
Respondent’s answer admits that it has maintained the
Confidentiality/Non-Disclosure rule since on or before
July 1, 2011; the Confidentiality Agreement since on or
before June 23, 2014; and the Arbitration Agreement
since on or before June 23, 2014. We therefore find that
there are no material issues of fact; nor has the Respond-
ent raised any other issues warranting a hearing.1
A. The Arbitration Agreement
In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014),
enf. denied in relevant part 808 F.3d 1013 (5th Cir.
2015), the Board reaffirmed the relevant holdings in D.
R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), and found
unlawful the maintenance and enforcement of a manda-
tory arbitration agreement requiring employees to waive
the right to participate in class or collective actions in all
forums, whether arbitral or judicial. The Respondent in

1 To the extent that the Respondent’s answer argues that the unfair
labor practices alleged in the complaint are barred by the 6-month
statute of limitations set forth in Sec. 10(b) of the Act, we find no merit
to this contention. The Respondent did not renew this argument in its
response to the General Counsel’s Motion for Summary Judgment. In
any event, it is well settled that the Board will find a violation where an
unlawful rule was maintained during the 6-month period prior to the
filing of a charge, regardless of when it was first promulgated. See,
e.g., On Assignment Staffing Services, 362 NLRB No. 189, slip op. at 2
fn. 6 (2015); PJ Cheese, Inc., 362 NLRB No. 177, slip op. at 1 (2015);
Cellular Sales of Missouri, 362 NLRB No. 27, slip op. at 2 fn. 7 (2015).
Here, the policies at issue were in effect at all relevant times, and there-
fore we reject the Respondent’s 10(b) argument.
its answer admits that it has maintained its Arbitration
Agreement and required its employees to sign it as a
condition of employment since at least June 23, 2014.
By its terms, the agreement requires that all employment-
based claims be resolved through individual, binding
arbitration. The Respondent argues solely that Murphy
Oil and D. R. Horton were wrongly decided by the
Board, and raises no material issues of fact or other ar-
guments in support of its Arbitration Agreement. Ac-
cordingly, we find that the Respondent’s maintenance of
the agreement requiring employees’ class action waiver
in all forums violates Section 8(a)(1) of the Act.2 See,
e.g., Ross Stores, Inc., 363 NLRB No. 79 (2015); Apple-
bee’s Restaurant, 363 NLRB No. 75 (2015); Toyota
Sunnyvale, 363 NLRB No. 52 (2015).3
We further find that the Respondent’s maintenance of
its Arbitration Agreement violates Section 8(a)(1) be-
cause employees would reasonably believe that it bars or
restricts the right to file charges with the National Labor
Relations Board and to access the Board’s processes.
The Agreement, which contains no exceptions or limiting
language, expressly requires employees to pursue “[a]ny
controversy or claim arising out of or related to your em-
ployment” solely through individual arbitration. We

2 Our dissenting colleague, relying on his dissenting position in
Murphy Oil, supra, 361 NLRB No. 72, slip op. at 22–35, would find
that the Respondent’s Arbitration Agreement does not violate Sec.
8(a)(1). 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 and 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 interference of an
employer-imposed restraint.” Murphy Oil, supra, slip op. at 2 (empha-
sis in original). The Respondent’s Arbitration Agreement is just such
an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, supra, there is no merit to our colleague’s view that finding the
Arbitration Agreement 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.
3 The Respondent’s answer further asserts that its Arbitration
Agreement is voluntary and therefore does not fall under the proscrip-
tions of D. R. Horton and Murphy Oil, supra. The Respondent did not
renew this argument in its response to the General Counsel’s Motion
for Summary Judgment, and, in any event, the argument lacks merit.
The Board has held that an arbitration agreement that precludes collec-
tive or class 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. See Bristol Farms, 363 NLRB
No. 45 (2015); On Assignment Staffing Services, supra, slip op. at 1, 5–
8 (2015).
VICTORY CASINO CRUISES II 3
have consistently held that employees would reasonably
read such policies to preclude the filing of unfair labor
practice charges. See, e.g., SolarCity Corp., 363 NLRB
No. 83, slip op. at 4–6 (2015); Chesapeake Energy
Corp., 362 NLRB No. 80, slip op. at 2 (2015); U-Haul
Co. of California, 347 NLRB 375, 377–378 (2006), enfd.
255 Fed. Appx. 527 (D.C. Cir. 2007).
The dissent’s contention that this latter issue was not
fully and fairly litigated is at odds with our case law. As
noted above, the complaint alleges that the Respondent,
by maintaining the Arbitration Agreement and the two
confidentiality policies, is interfering, restraining, and
coercing employees in the exercise of their Section 7
rights. Contrary to the dissent’s assertion, in Citi Trends,
Inc., 363 NLRB No. 74, slip op. at 1 (2015), the Board
did not find that identical complaint language, taken
alone, was insufficient to put the respondent on notice
that the right to file Board charges was at issue. Rather,
the Board found this language insufficient because, in
addition, the General Counsel’s brief to the administra-
tive law judge “made no argument regarding how em-
ployees would understand the [arbitration policy’s] im-
pact on their ability to file charges with the Board” and
instead “focused exclusively” on the infringement of
employees’ rights to engage in collective action. Id.
Here, unlike in Citi Trends, the General Counsel pro-
vided the Respondent with written notice in response to
the Notice to Show Cause, arguing that the Arbitration
Agreement was overbroad “to the extent that [it] pre-
cludes filing of Board charges . . . .” The General Coun-
sel further contended that an agreement reasonably inter-
preted as prohibiting the filing of unfair labor practice
charges would unlawfully deny employees their rights
under the NLRA, and immediately followed the latter
statement by asserting that “[f]or these reasons, the
Board should find the Respondent’s Arbitration Agree-
ment violates Section 8(a)(1) of the Act.” In contrast, in
the cases cited by our colleague, the General Counsel
failed to treat access to the Board as a live issue.4

4 24 Hour Fitness USA, Inc., 363 NLRB No. 84, slip op. at 2 fn. 5
(2015) (General Counsel mentioned the alternative argument only in
passing at the hearing and did not brief it); RGIS, LLC, 363 NLRB No.
132, slip op. at 2 fn. 3 (2016) (General Counsel included only a single,
conclusory sentence on access to the Board in his brief, and did not
controvert the respondent’s argument that the policy did not unlawfully
limit access to the Board); Citi Trends, Inc., supra (General Counsel
made no argument); GameStop Corp., 363 NLRB No. 89, slip op. at 1
fn. 1 (2015) (legality of confidentiality provision was untimely raised
for first time in brief to the judge).
The dissent contends that, even if the General Counsel sufficiently
articulated this argument, it did so in a response to the Board’s Notice
to Show Cause, and the Board’s Rules did not put the Respondent on
notice of a right to reply. That argument is meritless. Where, as here,
the Rules neither specifically provide for nor specifically prohibit a
B. The Confidentiality/Non-Disclosure Rule and
Confidentiality Agreement
We find that the Respondent’s maintenance of its Con-
fidentiality/Non-Disclosure handbook rule and Confiden-
tiality Agreement also violate Section 8(a)(1) of the Act.
It is settled that Section 7 of the Act grants employees
the right to discuss information about other employees,
such as wages and other terms and conditions of em-
ployment, and the Board has repeatedly found confiden-
tiality rules unlawful if employees would reasonably
construe the rules to prohibit those protected discussions.
See, e.g., Battle’s Transportation, Inc., 362 NLRB No.
17, slip op. at 1–2 (2015); Fresh & Easy Neighborhood
Market, 361 NLRB No. 8, slip op. at 2 (2014); Cintas
Corp., 344 NLRB 943, 943 (2005), enfd. 482 F.3d 463
(D.C. Cir. 2007). It is likewise settled that employees
have a Section 7 right to discuss their conditions of em-
ployment with third parties, such as union representa-
tives, Board agents, and the public in general, and the
Board has invalidated rules prohibiting such third-party
communication. See, e.g., DirecTV U.S. DirecTV Hold-
ings, LLC, 359 NLRB No. 54, slip op. at 3 (2013), reaf-
firmed and incorporated by reference, 362 NLRB No. 48
(2015); Hyundai America Shipping, 357 NLRB 860, 872
(2011), enfd. in part 805 F.3d 309 (D.C. Cir. 2015);
Kinder-Care Learning Centers, Inc., 299 NLRB 1171,
1171–1172 (1990).5
The Respondent contends that we must look at the
confidentiality rule in its entirety in order to determine
whether it is unlawful. Indeed, an important part of our
inquiry is to find a violation only where “the reach of the
challenged rule is not adequately limited by context.”
Fresh & Easy Neighborhood Market, supra, slip op. at 2.
See Lutheran Heritage Village-Livonia, 343 NLRB 646,
646 (2004) (in analyzing work rules, the Board “re-
frain[s] from reading particular phrases in isolation”).
Here, however, a plain reading of the handbook rule lan-
guage expressly prohibits the exercise of Section 7
rights. The rule’s examples of confidential information
that may not be disclosed include “compensation data,”
“compensation and bonus,” and “disciplinary actions,”
which explicitly encompass the discussion of key terms
and conditions of employment. See, e.g., Advanced Ser-

party from responding to an opposing party’s filing, Board practice has
always permitted the party to request the opportunity. Having not
sought that opportunity, the Respondent cannot argue that it was barred
from being heard.
5 In recognizing the longstanding principle that employees generally
have a Sec. 7 right to discuss information about other employees, and to
share information with third parties regarding their terms and condi-
tions of employment, we do not, as our concurring colleague suggests,
erase the requirement that such discussion must involve concerted
activity to be protected by the Act.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vices, 363 NLRB No. 71, slip op. at 2 (2015) (employees
have a Section 7 right to discuss discipline involving
their fellow employees); Scientific-Atlanta, Inc., 278
NLRB 622, 624–625 (1986) (discussion of wages is pro-
tected concerted activity because wages are a vital term
and condition of employment). Moreover, the rule ex-
plicitly prohibits the disclosure of “personnel infor-
mation,” which the Board has held reasonably includes
protected discussion of wages and other employment
terms. See Hyundai America Shipping, supra at 871.
Further, the rule does not exempt employees’ protected
communication with third parties. That the rule includes
several examples of proprietary information prohibited
from disclosure does nothing to save the rule from its
express prohibition of employees’ protected Section 7
rights to discuss employment terms such as wages and
discipline. The reach of the challenged rule is thus not
limited by the context of the overall language of the rule,
and does not reasonably inform employees that the rule’s
scope is not as broad as explicitly stated.6 Because the
plain language of the confidentiality rule expressly pro-
hibits discussion of wages, discipline, and personnel in-
formation, and absent meaningful contextual limitation
to its broad scope, the maintenance of the rule violates
Section 8(a)(1) of the Act. See Double Eagle Hotel &
Casino, 341 NLRB 112, 115 (2004) (confidentiality rule
unlawful where it specifically defines confidential infor-
mation to include wages and disciplinary information),
enfd. 414 F.3d 1249 (10th Cir. 2005), cert. denied 546
U.S. 1170 (2006); Fresh & Easy Neighborhood Market,
supra, slip op. at 2–3.
We additionally find the Respondent’s Confidentiality
Agreement unlawful because employees would reasona-
bly construe it to prohibit protected discussion of terms
and conditions of employment. The proscription set
forth in the Confidentiality Agreement is even broader
than the Confidentiality/Non-Disclosure rule, extending
to “all information about present or past employees” and
“individuals or groups of employees.” Confidentiality
rules that by their terms forbid disclosure of “information
concerning employees” are unlawful. See Cintas Corp.
v. NLRB, supra, 482 F.3d at 468–469. Unlike the Confi-
dentiality/Non-Disclosure handbook rule, the Confiden-
tiality Agreement includes no examples that even purport

6 The Respondent’s additional assertion that its other handbook rules
provide context limiting the plain language of the confidentiality rule is
meritless. The policies at issue and the Respondent’s employee hand-
book, in its entirety, are attached to the Respondent’s opposition to the
General Counsel’s motion, and we have reviewed them. The Respond-
ent does not identify any specific handbook provisions that provide
limiting context; rather, it cites only general assertions in its handbook
that the Respondent seeks to foster a positive environment for its em-
ployees and to comply with applicable employment laws.
to limit or clarify its expansive scope.7 In addition, the
agreement requires employees to gain permission from
senior management before disclosing “information about
current or past employees.” As the Board explained in
Brunswick Corp., “any rule that requires employees to
secure permission from their employer as a precondition
to engaging in protected concerted activity on an em-
ployee’s free time and in nonwork areas is unlawful.” Id.,
282 NLRB 794, 795 (1987) (citing Enterprise Products
Co., 265 NLRB 544, 554 (1982)). Accord DirecTV U.S.
DirecTV Holdings, LLC, supra, 359 NLRB No. 54, slip
op. at 2. Finally, the rule prevents employees from re-
vealing employee information to “anyone outside the
company,” expressly infringing upon the employees’
Section 7 right to discuss conditions of employment with
third parties. See Double Eagle Hotel & Casino, supra,
341 NLRB at 121 (invalidating a rule that stated, “You
are not, under any circumstances, permitted to communi-
cate any confidential or sensitive information concerning
the Company or any of its employees to any non-
employee without approval from the General Manager or
the President”). We thus find that the Respondent’s
maintenance of its Confidentiality Agreement violates
Section 8(a)(1) of the Act.
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
JURISDICTION
At all material times, the Respondent, a Delaware lim-
ited liability corporation with a place of business in Jack-
sonville, Florida, has been engaged in the business of
operating casino cruises.
During the 12-month period ending June 30, 2015, the
Respondent, in conducting its operations described
above, derived gross revenues in excess of $500,000 and
purchased and received goods valued in excess of
$50,000 directly from points outside the State of Florida.
At all material times, Lester Bullock has held the posi-
tion of chief executive officer of the Respondent, and
Dezarae Fuste has held the position of director of human
resources, and each of them has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the meaning
of Section 2(13) of the Act.

7 For the reasons stated above in our discussion of the Confidentiali-
ty/Non-Disclosure rule, we find meritless the Respondent’s contention
that its employee handbook as a whole, including the Confidentiali-
ty/Non-Disclosure rule, provides context establishing that the Confi-
dentiality Agreement is lawful.
VICTORY CASINO CRUISES II 5
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
Since on or before June 23, 2014, the Respondent has
maintained a binding arbitration agreement that requires
employees to bring all disputes arising out of or related
to their employment to individual binding arbitration.
Since on or before July 1, 2011, the Respondent has
maintained a confidentiality/non-disclosure rule in its
employee handbook that prohibits employees from dis-
cussing with nonemployees or among themselves infor-
mation relating to their wages, hours, and other terms
and conditions of employment. Since on or before June
23, 2014, the Respondent has maintained, as a condition
of employment, a confidentiality agreement which pro-
hibits employees from discussing with nonemployees or
among themselves, wages, hours, and other terms and
conditions of employment.
CONCLUSIONS OF LAW
1. The Respondent, Victory II, LLC, is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By maintaining a mandatory arbitration agreement
under which employees are required, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial,
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act and has violated Section 8(a)(1) of the
Act.
3. By maintaining a mandatory arbitration agreement
that employees would reasonably believe bars or restricts
the right to file charges with the National Labor Rela-
tions Board, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and has violated Section
8(a)(1) of the Act.
4. By maintaining a confidentiality/non-disclosure
handbook rule that prohibits employees from discussing
with nonemployees or among themselves information
relating to their wages, hours, and other terms and condi-
tions of employment, the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act and has vio-
lated Section 8(a)(1) of the Act.
5. By maintaining a mandatory confidentiality agree-
ment that prohibits employees from discussing with
nonemployees or among themselves wages, hours, and
other terms and conditions of employment, the Respond-
ent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act and has violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to rescind or revise its Arbitration Agree-
ment, Confidentiality Agreement, and Confidentiali-
ty/Non-Disclosure employee handbook rule. With re-
spect to the handbook rule, the Respondent may comply
with our order of rescission by rescinding the unlawful
provision and republishing its employee handbook with-
out it. We recognize, however, that republishing the
handbook could be costly. Accordingly, the Respondent
may supply the employees either with handbook inserts
stating that the unlawful rule has been rescinded, or with
a new and lawfully worded rule on adhesive backing that
will correct or cover the unlawfully broad rule, until it
republishes the handbook without the unlawful provi-
sions. Any copies of the handbook that include the un-
lawful rules must include the inserts before being distrib-
uted to employees. See Guardsmark, LLC, 344 NLRB
809, 812 fn. 8 (2005), enfd. in rel. part 475 F.3d 369
(D.C. Cir. 2007).
ORDER
The National Labor Relations Board orders that the
Respondent, Victory II, LLC d/b/a Victory Casino Cruis-
es II, Jacksonville, Florida, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement
that employees reasonably would believe bars or restricts
the right to file charges with the National Labor Rela-
tions Board.
(b) Maintaining a mandatory arbitration agreement
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.
(c) Maintaining a confidentiality/non-disclosure hand-
book rule that prohibits employees from discussing with
nonemployees or among themselves, information relating
to their wages, hours, and other terms and conditions of
employment.
(d) Maintaining a mandatory confidentiality agree-
ment that prohibits employees from discussing with
nonemployees or among themselves, wages, hours, and
other terms and conditions of employment.
(e) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Arbitration Agreement in all of its
forms, or revise it in all of its forms to make clear to em-
ployees that the Arbitration Agreement does not consti-
tute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not 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 Arbi-
tration Agreement in any form that it has been rescinded
or revised and, if revised, provide them a copy of the
revised agreement.
(c) Rescind the mandatory Confidentiality Agreement,
or revise it to make clear to employees that it does not
prohibit employees from discussing with nonemployees
or among themselves, wages, hours, and other terms and
conditions of employment.
(d) Notify all current and former employees who were
required to sign or otherwise become bound to the man-
datory Confidentiality Agreement that it has been re-
scinded or revised and, if revised, provide them a copy of
the revised agreement.
(e) Within 14 days of the Board’s Order, rescind the
rule set forth in its employee handbook entitled “Confi-
dentiality/Non-Disclosure.”
(f) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful confidentiality/non-disclosure rule has been re-
scinded, or (2) provide the language of a lawful policy;
or publish and distribute to all current employees a re-
vised employee handbook that (1) does not contain the
unlawful policy, or (2) provides the language of a lawful
policy.
(g) Within 14 days after service by the Region, post at
its facility in Jacksonville, Florida, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 12,
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, the 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

8 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.”
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 9, 2014.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 12 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. April 22, 2016
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, 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 Agreement violates Section 8(a)(1) of the
National Labor Relations Act (the Act or NLRA) be-
cause the Agreement waives the right to participate in
class or collective actions regarding non-NLRA em-
ployment claims. I respectfully dissent from this finding
for the reasons explained in my partial dissenting opinion
in Murphy Oil USA, Inc.1 I further dissent from the ma-
jority’s finding that the Agreement unlawfully restricts
access to the Board because that issue was not fully and
fairly litigated. Finally, I concur with my colleagues’
finding that the Respondent’s Confidentiality Rule and
Confidentiality Agreement violate Section 8(a)(1) of the
Act, but I reject their erroneous statements concerning
the scope of Section 7 protection—statements that pur-
port to erase the distinction between speech that consti-
tutes concerted activity for the purpose of mutual aid or

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).
VICTORY CASINO CRUISES II 7
protection on the one hand, and on the other, mere grip-
ing.
1. Legality of the Class Action Waiver
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, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”3 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;4 (ii) a class-waiver agreement per-

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 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 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)
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;5 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-
tion Act (FAA).6 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
2. Interference with NLRB Charge Filing
My colleagues find that the Arbitration Agreement al-
so violates the Act by unlawfully restricting employees
from filing unfair labor practice charges with the Board.
I believe that the Board is precluded from finding a vio-
lation of the Act on this basis because the issue was not
fully and fairly litigated.
First, the complaint does not allege unlawful interfer-
ence with Board charge filing. It simply alleges that by
maintaining the Arbitration Agreement, “Respondent has
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8(a)(1) of the Act.” I
believe it is unreasonable to read this allegation to allege
not one, but two violations of the Act. Moreover, the
Board has found identical complaint language insuffi-
cient to put an employer on notice that interference with
the right to file Board charges was at issue. See Citi
Trends, Inc., 363 NLRB No. 74, slip op. at 1 (2015).

(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
5 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, Inc., USA 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).
6 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).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Second, after issuing the complaint, the General Coun-
sel proposed a settlement.7 That settlement would have
required the Respondent to cease requiring employees (i)
to “agree to arbitrate all claims arising out of or related to
[their] employment,” (ii) to “relinquish [their] right to
file class action claims,” and (iii) to “repeal the policy
and remove such policy letters on that subject from
[their] personnel files.” The proposed settlement did not
include any remedy for interference with employees’
right to file charges with the Board.8 Like the complaint,
the proposed settlement failed to put the Respondent on
notice that such interference was at issue.
Third, the General Counsel’s response to the Board’s
Notice to Show Cause further confirms the absence of
any allegation regarding interference with Board charge
filing. Summarizing the allegations as to which sum-
mary judgment is sought, counsel for the General Coun-
sel states: “In sum, Respondent’s policies unlawfully
tend to chill employees’ Section 7 protected activities
undertaken for their mutual aid and protection by ex-
pressly prohibiting employees from discussing their
terms and conditions of employment, and expressly pro-
hibiting their undertaking collective legal action against
Respondent to vindicate their rights relative to their em-
ployment” (emphasis added). In a section of the brief
entitled “The Board is Not Required to Acquiesce to the
Fifth Circuit’s Murphy Oil Decision,” counsel states, in
passing, that “to the extent that Respondent’s Arbitration
Agreement precludes filing of Board charges, it is over-
broad even in the eyes of the Fifth Circuit [decision in
Murphy Oil].” I believe this is far too flimsy a basis on
which to find that the General Counsel has alleged that
the Arbitration Agreement violated the Act in this addi-
tional respect, much less to put the Respondent on notice
of any such allegation as due process requires.
Moreover, Section 102.24(b) of the Board’s Rules and
Regulations, which addresses motions for summary
judgment, does not provide for the filing of a reply to a
response to a notice to show cause. Thus, even assuming
counsel for the General Counsel’s passing remark were
otherwise sufficient to put interference with Board
charge filing at issue, that remark was inserted in counsel
for the General Counsel’s response to the Notice to Show
Cause, and nothing in the Board’s Rules puts the Re-

7 The proposed settlement is disclosed in the Respondent’s Memo-
randum in Opposition to Summary Judgment. The General Counsel
does not dispute that a settlement was offered, nor does he dispute that
the document attached to the Respondent’s brief in support of this
contention is an accurate copy of the proposed settlement.
8 As the majority’s order in this case illustrates, when the Board
finds that an employer has unlawfully restricted access both to class or
collective litigation and to the Board’s processes, it provides separate
remedies for those separate violations.
spondent on notice of a right to reply.9 Counsel for the
General Counsel’s passing remark was literally too little,
too late. By finding a violation in these circumstances,
the majority has denied the Respondent due process of
law. See RGIS, LLC, 363 NLRB No. 132, slip op. at 2
fn. 3 (2016) (finding that interference with employees’
access to the Board was not at issue, where the General
Counsel alluded to that theory in his statement of posi-
tion but offered no supporting argument); Citi Trends,
Inc., above; GameStop Corp., 363 NLRB No. 89, slip op.
at 1 fn. 1 (2015) (reversing judge’s finding that confiden-
tiality provision in arbitration agreement violated the
Act, where neither the complaint nor the stipulated rec-
ord placed that provision at issue, and where the General
Counsel raised and argued the issue for the first time in
his brief to the judge, which meant “the [r]espondents
had no opportunity to counter the General Counsel’s ar-
gument”); 24 Hour Fitness USA, Inc., 363 NLRB No. 84,
slip op. at 2 fn. 5 (2015) (rejecting General Counsel’s
exception to the judge’s failure to find that nondisclosure
provision in arbitration agreement violated the Act,
where complaint contained no such allegation and the
issue was only mentioned at the hearing in passing).
3. Respondent’s Confidentiality Rule and
Confidentiality Agreement
I concur with my colleagues’ finding that the Re-
spondent’s Confidentiality Rule and Confidentiality
Agreement violate Section 8(a)(1). The Rule prohibits
employees from disclosing “compensation data,” “com-
pensation and bonus [sic],” and “disciplinary actions.”
The Confidentiality Agreement is even broader. It pro-
hibits employees from revealing “all information regard-
ing . . . individuals or groups of employees,” states that
“[t]he company considers all information about present
or past employees to be confidential,” and prohibits the
disclosure of such information without prior approval
from senior management. Although the Act does not
protect every disclosure of information concerning em-
ployees’ compensation, discipline, and other terms and
conditions of employment, a blanket prohibition is un-
lawful because it encompasses situations when such dis-
closures would be protected. See Waco, Inc., 273 NLRB
746, 747–748 (1984). Moreover, the right to engage in
protected concerted activity involving the disclosure of
such information is central to the Act, and the record
reveals no reasonable limitations on or justifications for
the Respondent’s categorical prohibition of such disclo-

9 My colleagues assert that nevertheless, the Board has a “practice”
of permitting parties “to request the opportunity” to file a reply in these
circumstances. Assuming this is so, I reject, as contrary to due process,
the implication that the Respondent may properly be charged with
notice of an unwritten Board practice.
VICTORY CASINO CRUISES II 9
sures. Cf. Banner Estrella Medical Center, 362 NLRB
No. 137, slip op. at 13–19 (2015) (Member Miscimarra,
dissenting in part) (describing requirement that the Board
strike a proper balance between asserted business justifi-
cations and potential impact on NLRA rights).
However, I take exception with my colleagues’ erro-
neous statements regarding the scope of the protection
afforded by Section 7 of the Act. Section 7 protects,
among other rights, the right to engage in concerted ac-
tivity for the purpose of mutual aid or protection. Speech
may constitute concerted activity, but only where it is
“‘engaged in with the object of initiating or inducing or
preparing for group action or . . . [where it] ha[s] some
relation to group action in the interest of the employ-
ees.’”10 In other words, “[a]ctivity which consists of
mere talk must, in order to be protected, be talk looking
toward group action . . . . [I]f it looks forward to no ac-
tion at all, it is more than likely to be mere ‘griping.’”11
Thus, precedent dating back more than 50 years draws a
distinction between speech about terms and conditions of
employment that constitutes concerted activity protected
under Section 7, and speech about terms and conditions
of employment that is nothing more than mere griping
and is not protected by Section 7. Yet my colleagues
mistakenly declare that “[i]t is settled that Section 7 of
the Act grants employees the right to discuss information
about other employees,” and that “[i]t is likewise settled
that employees have a Section 7 right to discuss their
conditions of employment with third parties.” These
overbroad statements purport to sweep away a distinction
that has stood for half a century. The distinction re-
mains, but we should take care not to erode it.
Accordingly, I respectfully concur in part with and dis-
sent in part from my colleagues’ decision.
Dated, Washington, D.C. April 22, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

10 Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988) (quoting Mushroom Transportation Co. v. NLRB,
330 F.2d 683, 685 (3d Cir. 1964)).
11 Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964).
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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
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 agree-
ment that employees reasonably would believe bars or
restricts the right to file charges with the National Labor
Relations Board.
WE WILL NOT maintain a mandatory arbitration agree-
ment that requires employees, as a condition of employ-
ment, to waive the right to maintain class or collective
actions for employment-related claims in all forums, ar-
bitral or judicial.
WE WILL NOT maintain a confidentiality/non-
disclosure handbook rule that prohibits employees from
discussing with nonemployees or among themselves,
information relating to their wages, hours, and other
terms and conditions of employment.
WE WILL NOT maintain a mandatory confidentiality
agreement that prohibits employees from discussing with
nonemployees or among themselves, wages, hours, and
other terms and conditions of employment.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of rights
listed above.
WE WILL rescind the Arbitration Agreement in all of its
forms or revise it in all of its forms to make clear that the
Arbitration Agreement does not constitute a waiver of
your right to maintain employment-related joint, class, or
collective actions in all forums, and that it does not re-
strict employees’ right to file charges with the National
Labor Relations Board.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
Arbitration Agreement in all of its forms that it has been
rescinded or revised and, if revised, WE WILL provide
them a copy of the revised agreement.
WE WILL rescind the mandatory Confidentiality
Agreement, or revise it to make clear to employees that it
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not prohibit employees from discussing with
nonemployees or among themselves wages, hours, and
other terms and conditions of employment.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
mandatory Confidentiality Agreement that it has been
rescinded or revised and, if revised, WE WILL provide
them a copy of the revised agreement.
WE WILL within 14 days of the Board’s Order, rescind
the rule set forth in our employee handbook entitled
“Confidentiality/Non-Disclosure.”
WE WILL furnish all current employees with inserts for
the current employee handbook that (1) advise that the
unlawful confidentiality/non-disclosure rule has been
rescinded, or (2) provide the language of a lawful policy;
or WE WILL publish and distribute to all current employ-
ees a revised employee handbook that (1) does not con-
tain the unlawful policy, or (2) provides the language of
a lawful policy.
VICTORY II, LLC D/B/A VICTORY CASINO
CRUISES II
The Board’s decision can be found at
www.nlrb.gov/case/12–CA–146110 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.