Alexandria Care Center, LLC

National Labor Relations Board - Board Decisions

Jun 2, 2020

369 N.L.R.B. 94 (N.L.R.B. 2020)

369 NLRB No. 94
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.
Alexandria Care Center, LLC and Rosalinda Zuniga.
Case 31–CA–140383
June 2, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On December 14, 2017, Administrative Law Judge Jef-
frey D. Wedekind issued a decision in this case. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respondent
filed a reply brief.
On November 21, 2018, the Board issued a Notice to
Show Cause why the issue of whether the Respondent’s
Employment Dispute Resolution (EDR) Program violates
Section 8(a)(1) of the National Labor Relations Act should
not be remanded to the judge for further proceedings in
light of the Board’s decision in Boeing Co., 365 NLRB
No. 154 (2017).1 The Respondent and the General Coun-
sel each filed a response opposing remand. Because the
only issue in this case is the facial lawfulness of the EDR
Program, which is already part of the record before us, we
agree with the parties that a remand is unnecessary.
The National Labor Relations Board2 has considered the
decision and the record in light of the exceptions and
1 In Boeing, the Board overruled the “reasonably construe” prong of
the Lutheran Heritage standard that governed whether maintenance of a
policy that does not expressly prohibit Sec. 7 activity nevertheless vio-
lates Sec. 8(a)(1) of the Act. Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004) (Lutheran Heritage). Under Boeing, the Board
first determines whether a challenged rule or policy, reasonably inter-
preted, would potentially interfere with the exercise of rights under Sec.
7 of the Act. If not, the rule or policy is lawful. If so, the Board deter-
mines whether an employer violates Sec. 8(a)(1) of the Act by maintain-
ing the rule or policy by evaluating two things: “(i) the nature and extent
of the potential impact on NLRA rights, and (ii) legitimate justifications
associated with the rule.” Boeing, slip op. at 3 (emphasis omitted). In
conducting this evaluation, the Board will strike a proper balance be-
tween the asserted business justifications and the invasion of employee
rights in light of the Act and its policies, viewing the rule or policy from
the employees’ perspective. Id. As a result of the Boeing analysis, “the
Board will delineate three categories” of work rules:
Category 1 will include rules that the Board designates as lawful to
maintain, either because (i) the rule, when reasonably interpreted, does
not prohibit or interfere with the exercise of NLRA rights; or (ii) the
potential adverse impact on protected rights is outweighed by justifica-
tions associated with the rule. . . .
Category 2 will include rules that warrant individualized scrutiny in
each case as to whether the rule would prohibit or interfere with NLRA
rights, and if so, whether any adverse impact on NLRA-protected con-
duct is outweighed by legitimate justifications.
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
Facts
Since at least October 2011, the Respondent has main-
tained its EDR Program. The EDR Program broadly sub-
jects to binding arbitration employment-related disputes
between the Respondent and any of its employees who are
not covered by a collective-bargaining agreement. How-
ever, the EDR Program also specifically provides that em-
ployees do not waive their rights under the National Labor
Relations Act and that employees retain the right to pursue
disputes before federal administrative agencies. In rele-
vant part, the EDR Program provides as follows:
Covered Disputes
The EDR Program covers disputes arising out of or re-
lating to your employment with [ ] us (including your
application for employment), except as expressly set
forth below. Disputes covered under the EDR Program
pertain to, among other things, claims related to disci-
pline, discrimination, fair treatment, harassment, termi-
nation and other legally protected rights. The EDR Pro-
gram also covers all employment-related disputes be-
tween you and all of our other employees, managers and
affiliates, both in their individual and representative ca-
pacities, and as a result all employment-related disputes
between you and any of those persons and/or entities
Category 3 will include rules that the Board will designate as unlawful
to maintain because they would prohibit or limit NLRA-protected con-
duct, and the adverse impact on NLRA rights is not outweighed by jus-
tifications associated with the rule.
Id., slip op. at 3–4 (emphasis in original). The subdivisions of Category 1
were subsequently redesignated 1(a) and 1(b). See LA Specialty Produce Co.,
368 NLRB No. 93, slip op. at 2 fn. 2 (2019). Placement of a rule or policy in
Category 1(a) does not result from balancing NLRA rights and legitimate jus-
tifications. See id., slip op. at 2 (noting that, for a Category 1(a) rule, “there
is no need for the Board to take the next step in Boeing of addressing any
general or specific legitimate interests justifying the rule”). Other aspects of
Lutheran Heritage remain intact, including the question of whether a chal-
lenged rule or policy explicitly restricts activities protected by Sec. 7. 343
NLRB at 646.
2 Member Emanuel, who is recused, is a member of the panel but did
not participate in this decision on the merits.
In New Process Steel v. NLRB, 560 U.S. 674 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a two-
member quorum when one of the panel members has recused himself.
Under the Court’s reading of the Act, “the group quorum provision [of
Sec. 3(b)] still operates to allow any panel to issue a decision by only
two members if one member is disqualified.” New Process Steel, 560
U.S. at 688; see also, e.g., NLRB v. New Vista Nursing & Rehabilitation,
870 F.3d 113, 127–128 (3d Cir. 2017); D. R. Horton, Inc., 357 NLRB
2277, 2277 fn. 1 (2012), enfd. in relevant part 737 F.3d 344 (5th Cir.
2013); 1621 Route 22 West Operating Co., 357 NLRB 1866, 1866 fn. 1
(2011), enfd. 725 Fed. Appx. 129 (3d Cir. 2018).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
must be resolved through the EDR Program if and to the
extent that the dispute would be required to be resolved
through the EDR Program if it were between you and us.
Disputes not covered under the EDR Program are claims
for or related to workers’ compensation (this does not
apply to Texas Occupational Injury), unemployment
benefits, health, welfare and retirement benefits and
claims by us for injunctive relief to protect trade secrets
and confidential information, and any other claims that,
under applicable state or federal statutory law (including
regulations promulgated thereunder) and/or case law,
expressly cannot be subject to arbitration or similar al-
ternative dispute resolution procedures (however, you
and we may nonetheless voluntarily choose to resolve
those claims under the EDR Program). The EDR Pro-
gram does not constitute a waiver of your rights under
the National Labor Relations Act, but [ ] we may seek to
enforce the EDR Program (including its class and col-
lective action provisions) and seek dismissal of any law-
suit filed under the National Labor Relations Act.
You retain the right to pursue employment disputes be-
fore federal or state administrative agencies. Nothing in
the EDR Program prevents you from filing a claim with
a federal or state administrative agency or from cooper-
ating in a federal or state agency investigation.
Discussion
Applying the “reasonably construe” prong of Lutheran
Heritage, the judge found that the Respondent violated
Section 8(a)(1) because employees would reasonably read
the EDR Program to interfere with their right to file unfair
labor practice charges with the Board.3 The same day, the
Board issued its decision in Boeing, in which it overruled
the “reasonably construe” prong of Lutheran Heritage, an-
nounced a new standard for evaluating the lawfulness of
facially neutral rules and policies, and decided to apply the
new standard retroactively to all pending cases. 365
NLRB No. 154, slip op. at 2–3, 16–17.
Subsequently, in Prime Healthcare Paradise Valley,
LLC, we held that “an arbitration agreement that explicitly
prohibits the filing of claims with the Board or, more gen-
erally, with administrative agencies must be found unlaw-
ful” because “[s]uch an agreement constitutes an explicit
prohibition on the exercise of employee rights under the
Act.” 368 NLRB No. 10, slip op. at 5 (2019). We further
stated that where an arbitration agreement does not con-
tain such an explicit prohibition but, rather, is facially
3 The judge did not find, and the General Counsel does not argue, that
the EDR Program is unlawful on the ground that its prohibition of class
or collective actions applies to charges filed with the Board. Accord-
ingly, we do not address that issue. See generally Briad Wenco, LLC
neutral, the standard set forth in Boeing applies. Id. Under
that standard, the Board determines whether the arbitra-
tion agreement at issue, “when reasonably interpreted,
would potentially interfere with the exercise of NLRA
rights.” Boeing, 365 NLRB No. 154, slip op. at 3. The
“when reasonably interpreted” standard, which is objec-
tive, considers how the wording of the rule, policy, or
other provision at issue would be interpreted from the per-
spective of an objectively reasonable employee, who does
not view every employer policy through the prism of the
NLRA. See LA Specialty Produce, 368 NLRB No. 93,
slip op. at 2.
Recently, in Anderson Enterprises, Inc. d/b/a Royal
Motor Sales, we addressed the lawfulness of an employer
policy that required employees to arbitrate employment-
related disputes but also included “savings” language that
informed employees that they are free to file charges with
the Board. 369 NLRB No. 70 (2020). The coverage lan-
guage of the policy at issue in Anderson Enterprises, when
reasonably interpreted, included claims arising under the
Act. However, the policy’s savings clause provided,
“Claims may be brought before an administrative agency
but only to the extent applicable law permits access to
such an agency notwithstanding the existence of an agree-
ment to arbitrate. Such administrative claims include
without limitation claims or charges brought before . . . the
National Labor Relations Board.” Id., slip op. at 1. We
found that the savings clause was sufficiently prominent
within the policy, as it immediately followed the sentence
providing for arbitration of “any” claims. Id., slip op. at
3. Further, the savings clause specifically and affirma-
tively stated that employees may bring claims and charges
before the Board. Accordingly, we concluded that the pol-
icy could not be reasonably understood to potentially in-
terfere with employees’ access to the Board and its pro-
cesses and that it was lawful under Boeing Category 1(a).
Id., slip op. at 4 (stating that Boeing Category 1(a) consists
of “rules that are lawful because, when reasonably inter-
preted, they would have no tendency to interfere with Sec-
tion 7 rights”).
Here, the Respondent’s EDR Program requires arbitra-
tion of employment-related disputes, which would cer-
tainly include claims arising under the Act. However, like
the savings clause in Anderson Enterprises, the EDR Pro-
gram savings clause makes clear that employees retain the
right to file unfair labor practice charges with the Board,
stating that “[t]he EDR Program does not constitute a
waiver of your rights under the National Labor Relations
d/b/a Wendy’s Restaurant, 368 NLRB No. 72, slip op. at 2 fn. 4 (2019)
(class- and collective-action waiver in arbitration agreement was lawful
where it did not require employees to pursue claims that were not being
arbitrated, such as a Board charge, in an individual capacity).
ALEXANDRIA CARE CENTER, LLC 3
Act . . . .” Further, the sentence immediately following
the savings clause reiterates employees’ right to pursue
claims before federal administrative agencies.4 Finally,
we note that the EDR Program’s savings clause is set forth
prominently within the policy, in the section entitled
“Covered Disputes.”
In finding the rule unlawful, the judge, in part, pointed
to the language stating that the Respondent “may seek to
enforce the EDR Program (including its class and collec-
tive action provisions) and seek dismissal of any lawsuit
filed under the National Labor Relations Act.” He agreed
with the General Counsel that employees would reasona-
bly conclude that filing unfair labor practice charges with
the Board would be futile because the Respondent could
seek to have them dismissed pursuant to the EDR Pro-
gram. The judge reasoned that, “if the Company itself, as
the author of the EDR Program, believes the provisions
afford it a right to have any unfair labor practice charges
dismissed, certainly employees would reasonably inter-
pret them the same way.”
We disagree with the judge. The savings clause clearly
states that employees do not waive their rights under the
Act and that they retain the right to pursue employment
disputes before federal administrative agencies. Further,
objectively reasonable employees would understand that
if they file charges with the Board, the Respondent may
defend itself with various procedural and substantive ar-
guments, the merits of which will be decided by the Board.
We do not find that the Respondent’s vaguely worded ref-
erence to potential future litigation would, in the context
of the savings clause, lead employees to believe that filing
Board charges would be futile.
Further, in Anderson Enterprises, we overruled several
pre-Boeing decisions holding that certain savings clauses
provided only illusory rights to access the Board when
they were contained in agreements that broadly required
employees to arbitrate all employment-related claims,
e.g., Ralph’s Grocery Co., 363 NLRB No. 128 (2016), and
Lincoln Eastern Management Corp., 364 NLRB No. 16
(2016), both of which the judge relied on here.5 The sav-
ings clause in Lincoln Eastern Management provided that
employees may file charges with the Board, but that
4 Several pages later, under a section entitled “Frequently Asked
Questions,” the EDR Program document states:
Q: Will I be able to go to the Equal Employment Opportunity Com-
mission (EEOC) or the appropriate state Human Rights Commission
with this program in effect?
A: Yes. You are still free to consult the appropriate state Human Rights
Commission, the EEOC, or any other regulatory body regarding your
workplace problem as provided under “Covered Disputes” above. We
have designed the EDR Program to help employees resolve their con-
cerns and disputes fairly and quickly and hope that the EDR Program
will resolve all disputes to everyone’s satisfaction. However, we
“following the appropriate administrative processes . . . is
a prerequisite to the filing of any related arbitration.” Id.,
slip op. at 2–3. The Board interpreted that language to
suggest that it would be futile to file a charge because all
disputes are ultimately resolved through arbitration. In
Anderson Enterprises, we overruled Lincoln Eastern
Management, explaining that, where a savings clause ex-
plicitly states that employees may bring charges or claims
to the Board,
objectively reasonable employees would understand that
the inclusion of such language in a legal document is in-
tended to, and does, describe their legal rights in pre-
cisely the manner that the text explicitly states: employ-
ees have the right to file charges with the Board. And of
course, once an employee exercises that right, the
Board’s power to act is unaffected by any agreement, in-
cluding arbitration agreements.
369 NLRB No. 70, slip op. at 4–5. The Board further noted
that “[s]ection 10(a) of the Act makes clear that the Board’s
authority to prevent unfair labor practices ‘shall not be af-
fected by any other means of adjustment or prevention that
has been or may be established by agreement, law, or other-
wise.’” Id. (citing 29 U.S.C. § 160(a)) (emphasis added).
The same principles apply here. Because the EDR ex-
pressly states that employees retain their rights under the
National Labor Relations Act, we do not believe that a rea-
sonable employee would interpret the Respondent’s state-
ment about arguments it might make to the Board as inter-
fering with the exercise of those rights. Accordingly, we
conclude that the EDR Program is lawful under Boeing
Category 1(a).
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 2, 2020
______________________________________
John F. Ring, Chairman
respect every employee’s personal right to utilize government programs
in instances where the employee has a legal right to do so.
5 The judge also relied on Professional Janitorial Service of Houston,
363 NLRB No. 35 (2015). That decision is inapposite because it con-
cerned the adequacy of an exclusion clause (which carves out or excludes
certain claims from the scope of the arbitration agreement), whereas the
clause at issue here is a savings clause (which provides that employees
retain the right to file charges with the Board even if the agreement oth-
erwise includes claims arising under the Act within its scope). See An-
derson Enterprises, Inc., 369 NLRB No. 70, slip op. at 5 fn. 11.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
_____________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Joelle Mervin & Steven Wyllie, Esqs., for the General Counsel.
Gordon A. Letter, Esq. (Littler Mendelson, PC), for the Respond-
ent Company.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. This is
another case involving employer mandatory arbitration provi-
sions. The Respondent Company, a California skilled nursing fa-
cility, has maintained such provisions in its Employment Dispute
Resolution (EDR) Program since at least October 2011, and has
required its unrepresented employees, including Charging Party
Zuniga, to sign and become bound by it as a condition of em-
ployment.1 The General Counsel alleges that, by doing so, the
Company has violated Section 8(a)(1) of the National Labor Re-
lations Act because the provisions would reasonably be read by
employees as prohibiting or restricting their right to file unfair
labor practice charges with the Board.2
In relevant part, the EDR Program states as follows:
Introduction
. . . .
Our Employment Dispute Resolution (EDR) Program provides
a process and the resources for finding solutions to employ-
ment-related disputes. . . . [T]he EDR Program incorporates
four steps: (1) Open Door, (2) Facilitation, (3) Mediation and
(4) Arbitration. If the parties cannot mutually resolve the dis-
pute in the first three steps, you and we have agreed to submit
the dispute to an outside, impartial arbitrator and to accept the
decision of the arbitrator as final and binding.
. . . .
Your decision to apply for, accept or continue employment
with the Company or, as applicable, accept bonus or other dis-
cretionary payments or awards in conjunction with your em-
ployment, constitutes your agreement to be bound by the EDR
Program. Likewise, we agree to be bound by the EDR Pro-
gram in return for your agreement to be bound. This mutual
agreement means that both you and we are bound to use the
EDR Program as the only means of resolving employment-re-
lated disputes on issues covered by the EDR Program. How-
ever, no remedies that otherwise would be available to you or
us in a court of law for claims or disputes that you or we may
have against one another will be forfeited by virtue of the
agreement to use and be bound by the EDR Program.
1 There is also no dispute, and the record establishes, that the Board
has jurisdiction.
2 On June 2, 2017, the General Counsel and the Company filed a joint
motion requesting that this issue be decided based on an attached stipu-
lated record. (According to the motion, Charging Party Zuniga is not
. . . .
Employment Dispute Resolution
● Provides four steps for resolving work-related disputes.
. . . .
Effective Date, Duration and Impact of the EDR Program
Upon Your Employment
The EDR Program is the process for resolving most work-re-
lated disputes between you and us, including, but not limited
to, disputes concerning legally protected rights such as freedom
from discrimination, retaliation or harassment. It remains ef-
fective for the entire length of your employment and continues
in effect should your employment end. For job applicants, the
EDR Program remains effective during and after the applica-
tion process. All employees and job applicants must use the
EDR Program as the sole means of resolution of disputes cov-
ered by the EDR Program.
. . . .
Employees Covered by the EDR Program
The EDR Program covers all management and non-union em-
ployees, as well as all job applicants. The EDR Program does
not apply to employees who are covered by a collective-bar-
gaining agreement.
Covered Disputes
The EDR Program covers disputes arising out of or relating to
your employment with [ ] us (including your application for
employment), except as expressly set forth below. Disputes
covered under the EDR Program pertain to, among other
things, claims related to discipline, discrimination, fair treat-
ment, harassment, termination and other legally protected
rights. The EDR Program also covers all employment-related
disputes between you and all of our other employees, managers
and affiliates, both in their individual and representative capac-
ities, and as a result all employment-related disputes between
you and any of those persons and/or entities must be resolved
through the EDR Program if and to the extent that the dispute
would be required to be resolved through the EDR Program if
it were between you and us.
Disputes not covered under the EDR Program are claims for or
related to workers’ compensation (this does not apply to Texas
Occupational Injury), unemployment benefits, health, welfare
and retirement benefits and claims by us for injunctive relief to
protect trade secrets and confidential information, and any
other claims that, under applicable state or federal statutory law
(including regulations promulgated thereunder) and/or case
law, expressly cannot be subject to arbitration or similar alter-
native dispute resolution procedures (however, you and we
may nonetheless voluntarily choose to resolve those claims
participating in this proceeding.) The motion was granted on September
8, and the General Counsel and the Company subsequently filed briefs
on November 3. The case was originally assigned to another adminis-
trative law judge, but was reassigned on December 7.
ALEXANDRIA CARE CENTER, LLC 5
under the EDR Program). The EDR Program does not consti-
tute a waiver of your rights under the National Labor Relations
Act, but [ ] we may seek to enforce the EDR Program (includ-
ing its class and collective action provisions) and seek dismis-
sal of any lawsuit filed under the National Labor Relations Act.
You retain the right to pursue employment disputes before fed-
eral or state administrative agencies. Nothing in the EDR Pro-
gram prevents you from filing a claim with a federal or state
administrative agency or from cooperating in a federal or state
agency investigation.
. . . .
Frequently Asked Questions
. . . .
Q. Will I be able to go to the Equal Employment Opportunity
Commission (EEOC) or the appropriate state Human Rights
Commission with this program in effect?
A. Yes. You are still free to consult the appropriate state Hu-
man Rights Commission, the EEOC, or any other regulatory
body regarding your workplace problem as provided under
“Covered Disputes” above. We have designed the EDR Pro-
gram to help employees resolve their concerns and disputes
fairly and quickly and hope that the EDR Program will resolve
all disputes to everyone’s satisfaction. However, we respect
every employee’s personal right to utilize government pro-
grams in instances where the employee has a legal right to do
so. . . . .
The General Counsel contends that the Company’s unrepre-
sented employees would reasonably conclude that the foregoing
provisions preclude them from filing unfair labor practice
charges with the Board because: (1) the first paragraph under
“covered disputes” states that the EDR Program covers “among
other things, claims related to discipline, discrimination, fair
treatment, harassment, termination and other legally protected
rights” and “all employment-related disputes between” employ-
ees and other employees, managers and affiliates; and (2) alt-
hough the subsequent two paragraphs state that the EDR Pro-
gram “does not constitute a waiver” of employee rights under the
National Labor Relations Act, and that employees “retain the
right to pursue employment disputes before” and to “fil[e] a
claim with,” federal or state administrative agencies, the Com-
pany reserves the right to “seek to enforce the EDR Program . . .
and seek dismissal of any lawsuit filed under the National Labor
Relations Act.” The General Counsel argues that employees
would reasonably conclude from these provisions that filing un-
fair labor practice charges with the Board would be futile be-
cause the Company could seek to have them dismissed pursuant
3 The Company does not argue that the word “lawsuit” was intended,
or would reasonably be construed by employees, to mean something
other than an unfair labor practice charge filed with the Board. Indeed,
the Company’s brief concedes that employees “are likely to understand
‘lawsuit’ in its general meaning of going to a government office and fil-
ing a complaint.”
4 The Company alternatively argues that the “reasonably construe”
test should be abandoned for the reasons set forth in the dissenting
to the mandatory dispute resolution provisions of the EDR Pro-
gram.
The General Counsel’s argument is generally supported by
Board precedent. See Lincoln Eastern Management Corp., 364
NLRB No. 16, slip op. at 2–3 (2016); Ralph’s Grocery Co., 363
NLRB No. 128, slip op. at 1–2 (2016); and Professional Janito-
rial Service of Houston, Inc., 363 NLRB No. 35, slip op. at 3
(2015) (mandatory arbitration provisions are unlawful if employ-
ees would reasonably conclude from the language that filing a
charge with the Board would be futile because the charge would
ultimately have to be arbitrated). Further, the Company fails to
offer any real or genuine response to it. The Company argues
that the provisions “merely convey the thought that if [the Com-
pany] is sued, it will try to prevail in the case.” However, this
argument mischaracterizes the plain language of the provisions.
The provisions do not indicate that the Company could seek dis-
missal on the merits; rather, they indicate that it could seek dis-
missal pursuant to the mandatory dispute resolution provisions
of the EDR Program. And if the Company itself, as the author of
the EDR Program, believes the provisions afford it a right to
have any unfair labor practice charges dismissed, certainly em-
ployees would reasonably interpret them the same way.3
The Company also argues that Zuniga’s unfair labor practice
charges in this case, which she filed in October 2014 and Febru-
ary 2015 notwithstanding her previous agreement to be bound by
the EDR Program, show that employees would not reasonably
construe the provisions to prohibit or restrict filing charges.
However, the “reasonably construe” test is an objective one;
whether a particular employee was actually restrained from fil-
ing charges is irrelevant. See, e.g., Conagra Foods, Inc., 361
NLRB 944, 960 (2014), enfd. in relevant part 813 F.3d 1079,
1090–1091 (8th Cir. 2016).4
Finally, the Company also argues that Zuniga’s charges are
barred by Section 10(b) of the Act because they were not filed
and served within 6 months of either the date she signed the EDR
Program in October 2011 or the date she was terminated in De-
cember 2012. However, this argument is meritless as well. The
Board has consistently held that the maintenance of an unlawful
workplace rule or policy is a continuing violation. See Bloom-
ingdale’s, Inc., 363 NLRB No. 172, slip op. at 1 fn. 1 (2016);
and cases cited there.
Accordingly, the Company violated Section 8(a)(1) of the Act
by maintaining the EDR Program, as alleged.
ORDER5
The Respondent, Alexandria Care Center, LLC, Los Angeles,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
opinion in William Beaumont Hospital, 363 NLRB No. 162, slip op. at 7
(2016). However, administrative law judges must follow current Board
precedent unless and until it is rejected by the Supreme Court. Western
Cab Co., 365 NLRB No. 78, slip op. at 1 fn. 4 (2017).
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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 purposes.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Maintaining a mandatory arbitration policy that employ-
ees reasonably would believe bars or restricts them from filing
charges with the National Labor Relations Board.
(b) In any like or related manner interfering with, restraining,
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 effectu-
ate the policies of the Act.
(a) Rescind its Employment Dispute Resolution (EDR) Pro-
gram or revise it to make clear to employees that it does not bar
or restrict them from filing charges with the National Labor Re-
lations Board.
(b) Notify all current and former employees who were re-
quired to sign or otherwise become bound to the EDR Program
that it has been rescinded or revised, and provide them with a
copy of the revised policy, if any.
(c) Within 14 days after service by the Region, post the at-
tached notice marked “Appendix” at its facility in Los Angeles,
California and all other facilities where the EDR Program is or
has been maintained in effect.6 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, 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 this proceeding, Respondent
has gone out of business or closed the facilities where the EDRP
has been unlawfully maintained, Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current and
former employees employed by Respondent at any time since
August 24, 2014.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification 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., December 14, 2017
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 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 a mandatory arbitration policy that our
employees reasonably would believe bars or restricts them from
filing charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind our Employment Dispute Resolution (EDR)
Program or revise it to make clear that it does not bar or restrict
you from filing 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 EDR Program
that it has been rescinded or revised, and provide them with a
copy of the revised policy, if any.
ALEXANDRIA CARE CENTER, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-140383 or by using the QR code be-
low. 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
6 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 National
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.”