San Rafael Healthcare and Wellness, LLC

National Labor Relations Board - Board Decisions

Jun 12, 2020

369 N.L.R.B. 105 (N.L.R.B. 2020)

369 NLRB No. 105
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.
San Rafael Healthcare and Wellness, LLC and Na-
tional Union of Healthcare Workers. Case 20‒
CA‒204948
June 12, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On February 14, 2018, Administrative Law Judge Jef-
frey D. Wedekind issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
I. BACKGROUND
The Respondent operates a skilled nursing facility.
Since at least November 2012, it has required employees
to agree to its 3-page Alternative Dispute Resolution Pol-
icy (Policy) as a condition of employment. The Policy in-
cludes the following provisions (emphasis in original).
In the middle of the first page of the Policy, under the
heading “WHO IS COVERED BY THE ADR POLICY,”
it provides in relevant part that
[t]he ADR Policy will be mandatory for ALL
DISPUTES ARISING BETWEEN EMPLOYEES . . .
AND [THE COMPANY]. Any disputes which arise
and which are covered by the ADR Policy must be sub-
mitted to final and binding resolution through the proce-
dures of the Company’s ADR Policy.
For parties covered by this Alternative Dispute Resolu-
tion Policy, alternative dispute resolution, including fi-
nal and binding arbitration, is the exclusive means for
resolving covered disputes (as defined below); no other
action may be brought in court or in any other forum.
This agreement is a waiver of all rights to a civil court
action for a covered dispute; only an arbitrator, not a
Judge or Jury, will decide the dispute.
The next section of the Policy, spanning the bottom of
the first page to the middle of the second page and headed
“COVERED DISPUTES,” instructs in part that
[n]othing in this Alternative Dispute Resolution Policy
is intended to require arbitration of any claim or dispute
which the courts of this jurisdiction have expressly held
are not subject to mandatory arbitration.
. . . .
Covered disputes include any dispute arising out of or
related to my employment, the terms and conditions of
my employment and/or the termination of your employ-
ment, including, but not limited to, the following:
 Alleged violations of federal, state and/or local con-
stitutions, statutes or regulations;
 Claims of unlawful harassment, discrimination, re-
taliation or wrongful termination that cannot be re-
solved by the parties or during an investigation by
an administrative agency . . . .
 Claims of unfair demotion, transfer, reduction in
pay, or any other change in the terms and conditions
of employment;
. . . .
 Claims of defamation, pre and post-termination[.]
. . . .
The following types of disputes are expressly excluded
and are not covered by this ADR Policy:
 Disputes related to workers’ compensation and un-
employment insurance;
 Disputes or claims that are expressly excluded by
statute or are expressly required to be arbitrated un-
der a different procedure pursuant to the terms of a
team member benefit plan.
. . . .
Next, a “CLASS ACTION WAIVER” section states
that employees
understand and agree this ADR Program prohibits me
from joining or participating in a class action or repre-
sentative action, acting as a private attorney general or
representative of others, or otherwise consolidating a
covered claim with the claim of others. Under this Pol-
icy, no arbitrator shall have the authority to order any
such class action or representative action.
Approximately one page later, in a section headed
“SEVERABILITY” at the end of the Policy, it provides
that
[i]n the event that any provision of this ADR Policy is
determined by a court of competent jurisdiction to be il-
legal, invalid or unenforceable to any extent, such term
or provision shall be enforced to the extent permissible
under the law and all remaining terms and provisions of
this ADR Policy shall continue in full force and effect.
Nothing in this Alternative Dispute Policy is intended to
preclude any employee from filing a charge with . . . the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
National Labor Relations Board or any similar federal or
state agency seeking administrative resolution. How-
ever, any claim that cannot be resolved through admin-
istrative proceedings shall be subject to the procedures
of this ADR Policy.
The judge found that the Respondent’s maintenance of
the Policy violated Section 8(a)(1) of the National Labor
Relations Act because employees would reasonably con-
strue the Policy to prohibit or restrict their right to file
Board charges. He agreed with the General Counsel that
the “WHO IS COVERED BY THE ADR POLICY,”
“COVERED DISPUTES,” and “CLASS ACTION
WAIVER” sections state or strongly suggest that all po-
tential employment disputes are subject to mandatory ar-
bitration. He also found that the statement at the end of
the Policy that “[n]othing [herein] is intended to preclude
any employee from filing a charge with . . . the National
Labor Relations Board” does not mitigate the earlier lan-
guage because it “does not appear until the very end of the
three-page policy, after several additional sections, and is
not highlighted by either a separate section heading (it has
no apparent relation to ‘Severability’) or by capitalizing or
italicizing the statement.”
In the judge’s view, this interpretation of the Policy is
consistent with Lincoln Eastern Management Corpora-
tion, 364 NLRB No. 16 (2016), and SolarCity Corp., 363
NLRB No. 83 (2015), cases in which similar arbitration
policies were found unlawful under the “reasonably con-
strue” prong of Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004) (Lutheran Heritage). He acknowl-
edged that in Boeing Co., 365 NLRB No. 154 (2017) (Boe-
ing), the Board overruled that part of Lutheran Heritage
and announced a new balancing standard, which applies
retroactively, for evaluating the lawfulness of a facially
neutral policy. Id., slip op. at 2‒3.1 Nonetheless, he found
the Policy unlawful under Boeing, emphasizing the im-
portance of preserving employees’ right to file unfair labor
practice charges, and the Board’s decision in Boeing not
to address the continuing viability of most cases decided
1 Under Boeing, the Board first determines whether a challenged rule
or policy, reasonably interpreted, would potentially interfere with the ex-
ercise of rights under Sec. 7 of the Act. If not, the rule or policy is lawful.
If so, the Board determines whether an employer violates Sec. 8(a)(1) of
the Act by maintaining the rule or policy by balancing “the nature and
extent of the potential impact on NLRA rights” against “legitimate justi-
fications associated with the rule,” viewing the rule or policy from the
employees’ perspective. Id. slip op. at 3. As a result of this balancing,
the Board places a challenged rule into one of three categories. Category
1(b) consists of rules that are lawful to maintain because, although the
rule, reasonably interpreted, potentially interferes with the exercise of
Sec. 7 rights, the interference is outweighed by legitimate employer in-
terests. Category 3, in contrast, consists of rules that are unlawful to
maintain because their potential to interfere with the exercise of Sec. 7
under Lutheran Heritage at that time. See id., slip op. at
12 fn. 51.
II. DISCUSSION
Unlike the judge, we find that the Policy, when reason-
ably interpreted, does not interfere with employees’ right
to file Board charges and participate in Board proceedings.
In Prime Healthcare Paradise Valley, LLC, the Board
held that “an arbitration agreement that explicitly prohib-
its the filing of claims with the Board or, more generally,
with administrative agencies must be found unlawful” be-
cause “[s]uch an agreement constitutes an explicit prohi-
bition on the exercise of employee rights under the
Act.” 368 NLRB No. 10, slip op. at 5 (2019). Where an
arbitration agreement does not contain such an explicit
prohibition but rather is facially neutral, the Board deter-
mines whether the agreement, “when reasonably inter-
preted, would potentially interfere with the exercise of
NLRA rights.” Id. (quoting Boeing, supra, slip op. at 3).2
This standard is an objective one and looks solely to the
wording of the rule, policy, or other provision at issue in-
terpreted from the perspective of an objectively reasona-
ble employee, who does not view every employer policy
through the prism of the NLRA. See LA Specialty Pro-
duce, 368 NLRB No. 93, slip op. at 2.
In Briad Wenco, LLC d/b/a Wendy’s Restaurant, 368
NLRB No. 72 (2019) (Briad Wenco), the Board addressed
the lawfulness of an arbitration agreement that required
employees to arbitrate federal statutory claims but also in-
cluded “savings” language that clearly and prominently
informed employees that they were free to file charges
with the Board. The first paragraph of the arbitration
agreement at issue in Briad Wenco, when reasonably in-
terpreted, included claims arising under the Act within the
scope of its arbitration mandate. Id., slip op. at 1. But the
agreement also contained a savings clause providing that
“[n]othing in this Agreement shall be construed to prohibit
any current or former employee from filing any charge or
complaint or participating in any investigation or proceed-
ing conducted by an administrative agency, including . . .
rights outweighs the legitimate interests they serve. Categories 1(a),
1(b), and 3 designate types of rules; once a rule is placed in one of these
categories, rules of the same type are categorized accordingly without
further case-by-case balancing (for Category 1(b) and 3 rules; balancing
is never required for rules in Category 1(a)). Some rules, however, resist
designation as either always lawful or always unlawful and instead re-
quire case-by-case analysis under Boeing’s balancing framework. These
rules are placed in Category 2. See id., slip op. at 3‒4; LA Specialty Pro-
duce Co., 368 NLRB No. 93, slip op. at 2‒3 (2019).
2 A challenged rule may not be found unlawful merely because it
could hypothetically be interpreted to potentially limit Sec. 7 activity or
because the employer failed to eliminate all ambiguities from the rule.
See Boeing, supra, slip op. at 9.
SAN RAFAEL HEALTHCARE AND WELLNESS, LLC 3
the National Labor Relations Board,” and the Board found
the savings clause sufficiently prominent within the agree-
ment. Id., slip op. at 1‒2. Because the savings clause ex-
plicitly informed employees that they retained the right to
file charges with the Board and access its processes, the
Board concluded that employees could not reasonably in-
terpret the agreement to prohibit them from filing Board
charges or participating in Board proceedings. Id., slip op.
at 2.
Here, like the arbitration agreement in Briad Wenco, the
Policy initially requires arbitration of all disputes between
employees and the Respondent, which would include
claims arising under the Act. However, at the end of the
Policy is a savings clause stating that “[n]othing in this
Alternative Dispute Policy is intended to preclude any em-
ployee from filing a charge with . . . the National Labor
Relations Board.” This savings clause, like the one in
Briad Wenco, specifically and affirmatively states that
employees may file charges with the Board.
We also find the savings clause sufficiently prominent.
We disagree with the judge that its placement at the end
of the Policy and without special emphasis negates its ef-
fectiveness. The Policy is only three pages long, and a
reasonable employee would not easily overlook or disre-
gard the savings clause, which is set apart from other pro-
visions in a separate paragraph.3 Indeed, the clause’s
placement at the end of the document enhances rather than
detracts from its conspicuousness: it is literally the last
word in the Policy. Finally, to the extent the cases the
judge relied on—Lincoln Eastern Management Corpora-
tion, supra, and SolarCity, supra—could be read to require
a different result here, we recently overruled those cases
in Anderson Enterprises, Inc. d/b/a Royal Motor Sales,
369 NLRB No. 70, slip op. at 4‒5 (2020).
For these reasons, employees would not reasonably in-
terpret the Policy to potentially interfere with their right of
access to the Board and its processes. It is therefore lawful
under Boeing Category 1(a). See Boeing, supra, slip op.
at 4 (holding that Category 1(a) consists of “rules that are
lawful because, when reasonably interpreted, they would
have no tendency to interfere with Section 7 rights”)
3 The judge’s reliance on the supposed incongruity of placing the sav-
ings clause in a section headed “Severability” is misplaced. For one
thing, the terms may be used interchangeably. See, e.g., Anders v.
Hometown Mortgage Services, Inc., 346 F.3d 1024, 1027 (11th Cir.
2003) (noting that arbitration agreement “include[d] a severabil-
ity or savings clause”); Black’s Law Dictionary (10th ed. 2014) (recog-
nizing similarity of “saving[s] clause” and “severability clause”). Re-
gardless, we see no reason why the “Severability” heading would lead
employees to ignore the clause and its clear acknowledgment of their
right to file Board charges.
1 There is no dispute, and the record establishes, that the Board has
jurisdiction.
(footnote omitted). Accordingly, we will dismiss the com-
plaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 12, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Joseph D. Richardson, Esq., for the General Counsel.
Adam C. Abrahms and Christina C. Rentz, Esqs. (Epstein Becker
& Green, P.C.), for the Respondent Company.
Florice Hoffman, Esq., for the Charging Party Union.
DECISION
JEFFREY D. WEDEKIND, ADMINISTRATIVE LAW JUDGE. This is
another case involving employer mandatory arbitration provi-
sions. The Respondent Company, a California skilled nursing
facility, has maintained such provisions in its Alternative Dis-
pute Resolution (ADR) Policy since at least November 2012, and
has required its employees to enter into and sign the policy as a
condition of employment.1 The General Counsel contends that,
by doing so, the Company has violated Section 8(a)(1) of the
National Labor Relations Act because the provisions, as they
would reasonably be construed by employees or otherwise rea-
sonably interpreted, prohibit or restrict employees from filing
unfair labor practice charges with the Board.2
The ADR Policy is three pages long and is set forth in the Em-
ployee Handbook. In relevant part, it states as follows:
ALTERNATIVE DISPUTE RESOLUTION POLICY
In any organization, employment disputes will arise, some-
times requiring resolution through a formal proceeding.
2 On November 29, 2017, the parties filed a joint motion requesting
that the case be decided based on an attached stipulated record. The mo-
tion was granted on November 30, and the General Counsel and the
Company thereafter filed briefs on January 26 and 29, 2018, respectively.
As discussed infra, the briefs argue the case under both the “reasonably
construe” standard set forth in Lutheran Heritage, 343 NLRB 646
(2004), which applied at the time the complaint issued and the stipulation
was approved, and the new balancing test recently announced in Boeing
Co., 365 NLRB No. 154 (Dec. 14, 2017), which the Board majority held
would apply retroactively to all pending cases at whatever stage.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Traditionally, this proceeding has been conducted through our
court system. However, our court system too often has proven
to be an exceedingly costly and time consuming process, thus
failing to provide the parties involved with an acceptable reso-
lution of the dispute.
With this in mind, your employer has developed and imple-
mented this Alternative Dispute Resolution Policy (“ADR Pol-
icy”). We believe that the procedures set forth in this ADR Pol-
icy will result in a fair and equitable means for resolving those
types of employment disputes that all too often become unnec-
essarily protracted. These procedures ensure that all parties
have an opportunity to meet and see if there is a mutually sat-
isfactory basis for resolving their dispute. Failing to reach an
amicable resolution, these procedures provide for a fair hearing
before an impartial, objective individual who has been selected
by both sides. The neutral arbitrator will have the full authority
to resolve this matter protecting the rights of all parties.
We hope that you will never find the need to utilize these pro-
cedures and that your employment will be free of major dis-
putes or issues. However, in the event a dispute should arise,
these procedures are there to ensure that the dispute is handled
fairly and efficiently.
WHO IS COVERED BY THE ADR POLICY
The ADR Policy will be mandatory for ALL DISPUTES
ARISING BETWEEN EMPLOYEES, ON THE ONE
HAND, AND YOUR EMPLOYER, AND/OR ITS
EMPLOYEES AND OFFICERS (HEREINAFTER
COLLECTIVELY THE “COMPANY”), ON THE OTHER
HAND. Any disputes which arise and which are covered by
the ADR Policy must be submitted to final and binding resolu-
tion through the procedures of the Company’s ADR Policy.
For parties covered by this Alternative Dispute Resolution Pol-
icy, alternative dispute resolution, including final and binding
arbitration, is the exclusive means for resolving covered dis-
putes (as defined below); no other action may be brought in
court or in any other forum. This agreement is a waiver of all
rights to a civil court action for a covered dispute; only an arbi-
trator, not a Judge or Jury, will decide the dispute.
Nothing in this ADR Policy precludes the parties from discuss-
ing a mutually acceptable resolution of the dispute without the
necessity of formal arbitration proceedings. Additionally, the
parties may agree to engage in mediation prior to arbitration.
COVERED DISPUTES
Nothing in this Alternative Dispute Resolution Policy is in-
tended to require arbitration of any claim or dispute which the
courts of this jurisdiction have expressly held are not subject to
mandatory arbitration.
Nothing in this agreement is designed to compel arbitration of
any claims or causes of action expressly excluded by the pro-
visions of the 2010 Defense Appropriations Act (H.R. 3326).
Covered disputes include any dispute arising out of or related
to my employment, the terms and conditions of my
employment and/or the termination of your employment, in-
cluding, but not limited, to, the following:
 Alleged violations of federal, state and/or local constitutions,
statutes or regulations;
 Claims of unlawful harassment, discrimination, retaliation
or wrongful termination that cannot be resolved by the par-
ties or during an investigation by an administrative agency
(such as the Equal Employment Opportunity Commission);
Covered claims include, but are not limited to, claims under
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Age Discrimination in Employment
Act, the Equal Pay Act, and any other statutory scheme cov-
ering claims of discrimination or harassment on the basis of
race, color, age, religious creed, national origin, ancestry,
disability, sexual orientation, gender identity, sex or any
other characteristic protected by law;
 Claims based on any purported breach of contract (including
breach of the covenant of good faith and fair dealing, claims
of wrongful termination or constructive termination);
 Claims of unfair demotion, transfer, reduction in pay, or any
other change in the terms and conditions of employment;
 Claims alleging failure to compensate for all hours worked,
failure to pay overtime, failure to pay minimum wage, fail-
ure to reimburse expenses, failure to pay wages upon termi-
nation, failure to provide accurate, itemized wage state-
ments, failure to provide meal and/or rest breaks, entitlement
to waiting time penalties and/or other claims involving em-
ployee wages, including, but not limited to, claims brought
under the Fair Labor Standards Act and any other statutory
scheme related to wages or working hours;
 Claims based on any purported breach of duty arising in tort,
including alleged violations of public policy and for emo-
tional distress;
 Claims of defamation, pre and post-termination; and
 Any claim the Company may enjoy against employees, re-
gardless of the nature, arising from the employment relation-
ship.
The following types of disputes are expressly excluded and are
not covered by this ADR Policy:
 Disputes related to workers’ compensation and unemploy-
ment insurance;
 Disputes or claims that are expressly excluded by statute or
are expressly required to be arbitrated under a different pro-
cedure pursuant to the terms of a team member benefit plan.
If you, or the Company, file a lawsuit in court involving both
claims that are subject to arbitration in accordance with this
ADR Policy as well as claims that are not subject to arbitration,
the court will stay, or place on hold, any litigation of the claims
in the case that are not subject to arbitration and require arbitra-
tion of the claims that are subject to arbitration proceed before
SAN RAFAEL HEALTHCARE AND WELLNESS, LLC 5
any litigation in court of claims that are not subject to arbitra-
tion. In that event, the arbitrator’s decision as to the claims that
are subject to arbitration, including any determinations as to
disputed factual or legal issues, will be entitled to full force and
effect, and be binding, in any later court proceedings related to
claims that are not subject to arbitration.
CLASS ACTION WAIVER
I understand and agree this ADR Program prohibits me from
joining or participating in a class action or representative ac-
tion, acting as a private attorney general or representative of
others, or otherwise consolidating a covered claim with the
claim of others. Under this Policy, no arbitrator shall have the
authority to order any such class action or representative action.
INITIATING THE ALTERNATIVE DISPUTE
RESOLUTION PROCEDURES
* * * *
THE ARBITRATION
* * * *
FEES AND COSTS
* * * *
SEVERABILITY
* * * *
Nothing in this Alternative Dispute Policy is intended to pre-
clude any employee from filing a charge with the Equal Em-
ployment Opportunity Commission, the National Labor Rela-
tions Board or any similar federal or state agency seeking ad-
ministrative resolution. However, any claim that cannot be re-
solved through administrative proceedings shall be subject to
the procedures of this ADR Policy.3
The General Counsel argues that employees would reasonably
construe the foregoing mandatory arbitration policy to prohibit
or restrict filing Board charges for several reasons. First, the
opening section titled “Who is Covered by the ADR Policy” em-
phasizes that “ALL DISPUTES” arising between the employer
and employees are covered. Second, the following section titled
“Covered Disputes” specifically states that covered disputes in-
clude, inter alia, “any dispute arising out of or related to . . . em-
ployment, the terms and conditions of . . . employment and/or
the termination of . . . employment,” including, among other
disputes, “alleged violations of federal . . . statutes” and
“[c]laims of unfair demotion, transfer, reduction in pay, or any
other change in the terms and conditions of employment.” Third,
3 The foregoing policy appears to be very similar if not identical to
that in Montecito Heights Healthcare & Wellness Centre, LP, 31–CA–
129747, ALJD issued Nov. 30, 2016 (2016 WL 7011128), currently
pending before the Board on cross-exceptions. There is no contention
that the Charging Party Union here agreed to the policy or waived the
right to bargain over it.
4 The General Counsel does not argue that the policy is also unlawful
because of the last paragraph of the “Covered Disputes” section.
the following section titled “Class Action Waiver” broadly pro-
hibits “joining or participating” in a class or representative action
“or otherwise consolidating a covered claim with the claim of
others,” which on its face would encompass a Board charge filed
by an employee with or on behalf of other employees. Fourth
and finally, although the policy later states that the nothing
therein is intended to preclude “any employee from filing a
charge with . . . the National Labor Relations Board . . . seeking
administrative resolution,” this statement does not appear until
the very end of the three-page policy, after several additional sec-
tions, and is not highlighted by either a separate section heading
(it has no apparent relation to “Severability”) or by capitalizing
or italicizing the statement.4
The General Counsel’s argument is consistent with past Board
decisions. See, for example, Lincoln Eastern, 364 NLRB No. 16
(2016), where the Board found the employer’s mandatory arbi-
tration policy unlawful in part because the exclusion of unfair
labor practice charges did not appear until well into the 3 ½-page
policy after repeated statements that the policy applied to all em-
ployment disputes and prohibited pursuing any claim as a mem-
ber or representative of a class. See also SolarCity, 363 NLRB
No. 83 (2015), where the Board likewise found the employer’s
policy unlawful in part because it contained language prohibiting
“class, collective, or representative action” that on its face would
encompass an unfair labor practice charge that alleged a group
or collective violation.
The Company argues (Br. 4–5) that its mandatory arbitration
policy is different because it “clearly” applies only to claims
raised in lawsuits in court. In support, the Company cites the
preamble and subsequent sections indicating that the policy ap-
plies to employment disputes that traditionally have been re-
solved in the “court system” and claims “that cannot be resolved
. . . during an investigation by an administrative agency” or
“through administrative proceedings.” However, the policy is
not as clear as the Company contends. The second paragraph of
the “Who is Covered by the ADR Policy” section—which the
Company’s brief entirely omits and ignores—states that no cov-
ered disputes may be brought in court “or in any other forum.”5
Further, unfair labor practice charges are not always finally re-
solved at the administrative agency level, but often end up before
a federal court of appeals for review and enforcement of a Board
decision. See U-Haul of California, 347 NLRB 375, 377–378
(2006) (rejecting the respondent employer’s similar argument in
that case), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007).6
The Company also argues (Br. 9, 11, 13) that its mandatory
arbitration policy is distinguishable from those in Lincoln East-
ern and SolarCity and other similar cases because the sentence
preserving the right to file Board charges is “strategically” and
“conspicuously” placed near the end rather than in the middle of
5 The same paragraph goes on to state that the “agreement” waives
the right to a “civil court action for a covered dispute.” However, as
indicated above, the previous sentence indicates that the policy also pre-
cludes bringing actions “in any other forum.”
6 A charging party employee has the right to seek federal appellate
court review of an adverse Board decision dismissing all or some of the
administrative complaint allegations. See Sec. 10(f) of the Act (29
U.S.C. Sec. 160(f)); and Auto Workers v. Scofield, 382 U.S. 205, 210
(1965).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the policy. However, as indicated by the General Counsel, there
is nothing conspicuous about the placement of the sentence. Nor
is there any other record or rational basis to conclude that the
Company’s strategy was to emphasize or highlight the right of
employees to file unfair labor practice charges.
Finally, the Company argues (Br. 9) that cases such as U-
Haul, SolarCity, and Lincoln Eastern were “effectively over-
ruled” by the Board’s recent decision in Boeing Co., 365 NLRB
No. 154 (2017). In that case, which involved a no-camera rule,
a majority of the five-member Board overruled the “reasonably
construe” standard that had been set forth in Lutheran Heritage,
343 NLRB 646 (2004) and generally applied in subsequent cases
evaluating facially neutral workplace rules and policies, includ-
ing mandatory arbitration provisions. Instead, the majority
stated that the Board would apply a “balancing” test in evaluat-
ing such workplace rules or policies. Specifically, two members
of the majority (then-Chairman Miscimarra and Member Em-
manuel) stated that they would examine whether, “as reasonably
interpreted,” “focusing on the employees’ perspective,” the rule
or policy “would potentially interfere with the exercise of NLRA
rights”; “the nature and extent of the potential impact on NLRA
rights”; and “legitimate justifications associated with” the rule or
policy. Slip op. at 3 and 16. The third member (then-Member
Kaplan) stated that he “agree[d]” that the Board must “strike the
balance between employees’ [NLRA rights] and employers’
business justifications” in evaluating workplace rules and poli-
cies. He noted, “however,” that, in his view,
the threshold inquiry of whether the rule, when reasonably in-
terpreted, prohibits or interferes with [NLRA rights] should be
determined by reference to the perspective of an objectively
reasonable employee who is “aware of his legal rights but who
also interprets work rules as they apply to the everydayness of
his job. The reasonable employee does not view every em-
ployer policy through the prism of the NLRA.
Slip op. at fn. 14 (quoting T-Mobile USA, Inc. v. NLRB, 865 F.3d
265, 271 (5th Cir. 2017)). See also fn. 16 (emphasizing that he
would apply an “objective standard, and that the reasonable in-
terpretation of the rule is conducted from the perspective of a
reasonable employee”).
As the Company’s argument implicitly acknowledges, how-
ever, the Boeing majority did not specifically address or ex-
pressly overrule U-Haul, SolarCity, and Lincoln Eastern or sim-
ilar cases involving mandatory arbitration provisions. See slip
op. at 12 fn. 51 (“Other than the cases addressed specifically in
this opinion, we do not pass on the legality of the rules at issue
in past Board decisions that have applied the Lutheran Heritage
7 See Sec. 10(b) of the Act (29 U.S.C. Sec. 160(b)); and NLRB v.
Scrivener, 405 U.S. 117, 121 (1972). See also Sec. 8(a)(4) of the Act (29
U.S.C. Sec. 158(a)(4)) (making it an unfair labor practice for an em-
ployer to discriminate against an employee for filing a charge with the
Board).
8 See also Stolt-Nielsen S.A. v. AnimalFeeds International Group, 559
U.S. 662, 685 (2010).
9 Indeed, citing Scrivener, above, the General Counsel argues (Br. 8)
that “[n]o legitimate justification could be offered for interfering with
Congress’ intent to secure complete freedom for employees to access or
participate in the Board’s processes.”
‘reasonably construe’ standard.”). Nor, as indicated by the Gen-
eral Counsel, does the majority’s balancing test dictate a differ-
ent result, either in those cases or here. As discussed above, re-
gardless of whether the plurality or concurring statement of the
threshold inquiry is applied, the mandatory arbitration policies,
as reasonably interpreted, prohibit or restrict the right of employ-
ees to file charges with the Board. Further, that right is central
to the federal nationwide labor policy and enforcement contem-
plated by the NLRA; no Board complaint can issue, no matter
how serious or extensive the alleged violations, without a
charge.7 Finally, while the benefits of arbitrating disputes are
generally well recognized—as indicated by the Company, arbi-
tration may substantially benefit employers and employees by
providing an “expedient, cost-effective resolution of disputes”
(Br. 14)8—there is insufficient basis in current law and precedent
to conclude that this justification is sufficient to outweigh such
potentially pervasive interference with employees’ fundamental
rights and protections under the Act.9
Accordingly, the Company’s ADR Policy violates Section
8(a)(1) of the Act, as alleged.
ORDER10
The Respondent, San Rafael Healthcare and Wellness, LLC,
San Rafael, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration policy that, as rea-
sonably interpreted, bars or restricts employees 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 ADR Policy or revise it to so that, as reasona-
bly interpreted, it does not bar or restrict employees from filing
charges with the National Labor Relations Board.
(b) Notify all current and former employees who were re-
quired to sign or otherwise become bound to the ADR Policy 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 San Rafael,
California.11 Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
10 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.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
SAN RAFAEL HEALTHCARE AND WELLNESS, LLC 7
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 customarily communicates with its em-
ployees 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 pen-
dency of this proceeding, Respondent has gone out of business
or closed the facility, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current and former em-
ployees employed by Respondent at any time since February 23,
2017.
(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., February 14, 2018