Windsor Sacramento Estates, LLC dba Windsor Care Center of Sacramento

National Labor Relations Board - Board Decisions

Jul 30, 2020

369 N.L.R.B. 146 (N.L.R.B. 2020)

369 NLRB No. 146
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.
Windsor Sacramento Estates, LLC d/b/a Windsor
Care Center of Sacramento and Service Employ-
ees International Union, Local 2015. Case 20–
CA–196183
July 30, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The Charging Party seeks summary judgment in this
case on the grounds that the Respondent’s Alternative Dis-
pute Resolution Policy (Policy) is unlawful and that the
Board should find, as a matter of law, that the Respondent
violated Section 8(a)(1) of the National Labor Relations
Act by maintaining the Policy, portions of which would
reasonably be read by employees to prohibit or restrict
them from filing or pursuing unfair labor practice charges
with the Board. The General Counsel and the Respondent
also each seek summary judgment, arguing that the Board
should dismiss the complaint and find, as a matter of law,
that the Respondent did not violate Section 8(a)(1) of the
Act by maintaining the Policy.
Pursuant to a charge filed on March 31, 2017, and a first
amended charge filed on August 15, 2018, by the Service
Employees International Union, Local 2015, the General
Counsel issued a complaint on October 31, 2018. The
complaint alleges that at all material times, the Respond-
ent has maintained the Policy, portions of which would
reasonably be read by employees to prohibit or restrict
them from filing or pursuing unfair labor practice charges
with the Board. On November 14, 2018, the Respondent
filed an answer to the complaint.
On January 22, 2019,1 the Charging Party filed a motion
for summary judgment, arguing that the Board should find
the Policy unlawful. On February 13, the General Counsel
filed an opposing motion for summary judgment, arguing
that the Policy is lawful and employees would not reason-
ably read it to prohibit them from filing or pursuing unfair
labor practice charges before the Board. On February 21,
the Charging Party filed an opposition to the General
1 Dates hereafter are in 2019 unless otherwise indicated.
2 In its motion for summary judgment, opposition to the General
Counsel’s and Respondent’s motions for summary judgment, and re-
sponse to the Notice to Show Cause, the Charging Party argues that the
Board should find that the Policy is unlawful because portions of it would
reasonably be read by employees to prohibit or restrict them from filing
or pursuing unfair labor practice charges with the Board. However, also
in those same filings, the Charging Party argues that the Board should
Counsel’s motion. On February 25, the Respondent filed
a motion for summary judgment, arguing for the dismissal
of the complaint on two grounds: first, that the Policy is
not unlawful, and second, that “forcing [it] to endure the
burden and expense of a hearing when even the General
Counsel does not support the allegations of the Complaint
is a violation of [its] due process rights.” On February 28,
the Charging Party filed an opposition to the Respondent’s
motion.
On June 25, the Board issued an Order Transferring the
Proceeding to the Board and Notice to Show Cause why
summary judgment should not be granted in favor of any
of the parties. On July 9 and July 23, the General Counsel
and the Respondent, respectively, each filed a response to
the Notice to Show Cause, arguing, among other things,
that the Charging Party’s arguments lack merit and that
the Board should find the Policy lawful and dismiss the
complaint as a matter of law. Also on July 23, the Charg-
ing Party filed a response to the notice, arguing that the
Board should grant its motion and find the Respondent’s
Policy unlawful and, alternatively, that the Board should
deny the General Counsel’s and the Respondent’s motions
and send the case to a hearing before an administrative law
judge. The Charging Party also argues that the General
Counsel’s pursuit of a dismissal of the complaint is pro-
hibited by the Act.
Ruling on Motions for Summary Judgment
The General Counsel and the Respondent argue, and we
find, that there are no issues of material fact warranting a
hearing.2 The only issue therefore is whether, as a matter
of law, the Respondent violates Section 8(a)(1) of the Act
because portions of its Policy would reasonably be read by
employees to prohibit or restrict them from filing or pur-
suing unfair labor practice charges with the Board. For
the reasons discussed below, we grant the Respondent’s
motion for summary judgment and dismiss the complaint.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California lim-
ited liability company with an office and place of business
in Sacramento, California, has been operating a skilled
nursing facility providing inpatient medical care.
remand the case to an administrative law judge because a hearing is nec-
essary to determine the Respondent’s business justifications for the Pol-
icy. As discussed below, because we find that the Policy is a lawful Cat-
egory 1(a) rule under Boeing Co., 365 NLRB No. 154 (2017) (Boeing),
an analysis of the Respondent’s business justifications is not required.
See below at fns. 3 & 6. We therefore agree with the General Counsel
and the Respondent that there are no issues of material fact warranting a
hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
During the calendar year ending December 31, 2016,
the Respondent, in conducting its operations described
above, derived gross revenues in excess of $100,000 and
purchased and received goods valued in excess of $5000
which originated outside the State of California.
The Respondent admits, and we find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, a health care institution
within the meaning of Section 2(14) of the Act, and sub-
ject to the Board’s jurisdiction.
We also find that the Charging Party is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a skilled nursing facility.
Since at least about September 2015, it has maintained the
three-page Policy, which includes the following provi-
sions (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:
The ADR Policy will be mandatory for ALL
DISPUTES ARISING BETWEEN EMPLOYEES . . .
AND [THE RESPONDENT]. 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,” states:
Nothing 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 in the
middle of the second page 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.
Approximately one-page later at the end of the three-
page document, in a section headed “SEVERABILITY,”
the Policy provides:
In the event that any provision of this ADR Policy is de-
termined by a court of competent jurisdiction to be ille-
gal, invalid or unenforceable to any extent, such term or
provision shall be enforced to the extent permissible un-
der 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
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.
WINDSOR SACRAMENTO ESTATES, LLC D/B/A WINDSOR CARE CENTER OF SACRAMENTO 3
A. Contentions of the Parties
In its motion for summary judgment and subsequent fil-
ings, the Charging Party argues, among other things, that
the Policy should be found unlawful because portions of it
would reasonably be read by employees to prohibit or re-
strict them from filing or pursuing unfair labor practice
charges with the Board. The Charging Party argues that
the Policy’s savings clause is inadequate, in part because
it is contained in the section headed “SEVERABILITY.”
Conversely, in their motions for summary judgment and
subsequent filings, the General Counsel and the Respond-
ent argue, among other things, that the Policy should be
found lawful because it would not be reasonably read by
employees to prohibit them from filing or pursuing unfair
labor practice charges. Specifically, the General Counsel
and the Respondent argue that because the Policy does not
prohibit conduct protected by the Act, it is lawful under
Boeing. 365 NLRB No. 154, slip op. at 3–4.3
B. Analysis
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).4
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, supra,
slip op. at 2.
Subsequently, the Board addressed the lawfulness of an
arbitration agreement that required employees to arbitrate
3 Under Boeing, supra, the Board first determines whether a chal-
lenged rule or policy, reasonably interpreted, would potentially interfere
with the exercise of rights under Sec. 7 of the Act. If not, the rule or
policy is lawful and placed in Category 1(a). 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 justifications 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, po-
tentially interferes with the exercise of Sec. 7 rights, the interference is
outweighed by legitimate employer interests. Category 3, in contrast,
consists of rules that are unlawful to maintain because their potential to
federal statutory claims but also included “savings” lan-
guage that clearly and prominently informed employees
that they were free to file charges with the Board. See
Briad Wenco, LLC d/b/a Wendy’s Restaurant, 368 NLRB
No. 72, slip op. at 2 (2019) (Briad Wenco) (finding that
employees could not reasonably interpret the arbitration
agreement to prohibit them from filing Board charges or
participating in Board proceedings because the savings
clause explicitly informed employees that they retained
the right to file charges with the Board and access its pro-
cesses).
More recently, the Board found lawful an alternative
dispute resolution policy which contained, at the end of its
three-page agreement, a savings clause permitting the fil-
ing of charges with the Board. See San Rafael Healthcare
& Wellness, LLC, 369 NLRB No. 105, slip op. at 1–2
(2020) (San Rafael). In San Rafael, the alternative dispute
resolution policy required arbitration of all disputes be-
tween employees and the employer, and therefore, when
reasonably interpreted, included claims arising under the
Act within the scope of its arbitration mandate. Id., slip
op. at 3. However, the agreement also contained a savings
clause providing that “[n]othing in this [a]lternative [d]is-
pute [p]olicy is intended to preclude any employee from
filing a charge with . . . the National Labor Relations
Board.” Id. The Board found that the savings clause af-
firmatively and specifically stated that employees may file
charges with the Board and was sufficiently prominent
within the agreement. Id. The Board also found that a
reasonable employee would not easily overlook or disre-
gard the savings clause, even though it was at the end of
the three-page arbitration agreement. Id. (“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 [p]olicy.”).
Here, like the arbitration agreements in Briad Wenco
and San Rafael, the Policy initially requires arbitration of
all disputes between employees and the Respondent,
which would include claims arising under the Act. How-
ever, at the end of the Policy is a savings clause stating
interfere with the exercise of Sec. 7 rights outweighs the legitimate in-
terests 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 Cat-
egory 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 require case-by-case analysis under Boe-
ing’s balancing framework. These rules are placed in Category 2. See
id., slip op. at 3–4; LA Specialty Produce Co., 368 NLRB No. 93, slip
op. at 2–3 (2019) (LA Specialty).
4 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
that “[n]othing in this Alternative Dispute Policy is in-
tended to preclude any employee from filing a charge with
. . . the National Labor Relations Board.” This savings
clause, like the ones in Briad Wenco and San Rafael, spe-
cifically and affirmatively states that employees may file
charges with the Board, and it is also sufficiently promi-
nent.5 The Policy is only three pages long, and a reasona-
ble employee would not easily overlook or disregard the
savings clause, which is set apart from other provisions in
a separate paragraph. See San Rafael, supra, slip op. at 3.
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. The Policy is there-
fore lawful under Boeing Category 1(a). See Boeing, su-
pra, slip op. at 4 (describing how 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”) (footnote omitted).6 Thus, we will grant the
Respondent’s motion for summary judgment and dismiss
the complaint.
Accordingly, we deny the Charging Party’s motion for
summary judgment. In view of the disposition of this
case, we find it unnecessary to pass upon the General
Counsel’s motion for summary judgment and the other ar-
guments raised in the Charging Party’s, the General Coun-
sel’s, and the Respondent’s filings.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. July 30, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
5 We disagree with the Charging Party’s argument that the placement
of the savings clause in a section headed “SEVERABILITY” would
cause employees confusion. See San Rafael, supra, slip op. at 3 fn. 3.
As we stated in San Rafael, the terms may be used interchangeably, and,
regardless, 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. Id.
We note that a savings clause in an arbitration agreement may suffi-
ciently preserve employees’ right to file charges with the Board even if
it does not expressly refer to the National Labor Relations Board, the
NLRB, or the Board. See Hobby Lobby Stores, Inc., 369 NLRB No. 129,
slip op. at 3 (2020) (finding legally sufficient to preserve employees’
right of access to the Board savings-clause language stating that
employees who sign arbitration agreement “are not giving up . . . the
right to file claims with federal . . . government agencies”). Necessarily,
then, there can be no question of the legal sufficiency of a savings clause
like the one at issue here, which expressly and prominently refers to em-
ployees’ right to file charges with the National Labor Relations Board.
6 As discussed in fn. 2, above, and contrary to the Charging Party’s
arguments, a hearing is not necessary to determine the Respondent’s
business justifications because employees would not interpret the Policy
as potentially interfering with the exercise of any Sec. 7 right. Under
Boeing, an employer’s business justifications for maintaining a rule
should be considered only if the rule, when reasonably interpreted, would
prohibit or interfere with the exercise of rights protected by the Act. See
LA Specialty, supra, slip op. at 4 fn. 8.