Philmar Care, LLC d/b/a San Fernando Post Acute Hospital

National Labor Relations Board - Administrative Judge Opinions

May 6, 2015

31-CA-133242 (N.L.R.B. May. 6, 2015)

JD(SF)–20–15
San Fernando, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
PHILMAR CARE, LLC D/B/A SAN FERNANDO
POST ACUTE HOSPITAL
and Case 31–CA–133242
JUAN CORTES, an Individual
Rudy L. Fong Sandoval, Esq.,
for the General Counsel.
Jeffrey S. Ranen, Esq.,
and William C. Sung, Esq., for the Respondent.
Daniel J. Bass, Esq.,
and Matthew J. Matern, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, ADMINISTRATIVE LAW JUDGE. This case is before me on the
parties’ March 6, 2015 joint motion to transfer proceedings to the division of judges and
stipulation of the facts and issues presented (hereinafter, Joint Motion), which I approved on
March 9, 2015 (Jt. Exh. 1).1 Juan Cortes (Charging Party or Cortes) filed the charge, first-
amended charge, and second-amended charge in case number 31–CA–133242 on July 21, 2014,
September 9, 2014, and November 5, 2014, respectively. The General Counsel issued the
complaint (the complaint) on November 25, 2014.
The complaint alleges that Philmar Care, LLC d/b/a San Fernando Post Acute Hospital
(Respondent or the Facility) violated Section 8(a)(1) of the National Labor Relations Act (the
Act) by requiring its employees, as a condition of employment, since at least September 2011 to
sign agreements that compel the employees to mandatory binding arbitration. The complaint

1 Abbreviations used in this decision are as follows: “Jt. Exh.” for Joint Exhibit; “Exh.” for
exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br.” for the Respondent’s brief.
JD(SF)–20–15
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further alleges that Respondent violated Section 8(a)(1) of the Act since at least May 9, 2014,
when it asserted the mandatory arbitration agreement in litigation the Charging Party brought
against it.
Respondent filed a timely answer on December 9, 2014.5
On the stipulated record, and after considering the briefs filed by the General Counsel
and Respondent,2 I make the following.3
FINDINGS OF FACT10
I. JURISDICTION
At all times material, Respondent, a California limited liability company, operates a
skilled nursing facility providing inpatient medical care in the State of California from its office 15
and place of business in Sylmar, California, where it annually derives gross revenues in excess of
$250,000. Respondent purchased and received goods at its facility in California valued in excess
of $5,000 directly from sources outside the State of California. Respondent admits and I find
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and has been a health care institution within the meaning of Section 2(14) of the Act.20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Arbitration Provision
25
Since at least September 2011, Respondent maintains a policy at its Facility titled
“Employee Acknowledgment and Agreement.” The “Employee Acknowledgment and
Agreement” begins by an acknowledgment that the employee has received a copy of the
Facility’s handbook and will familiarize himself with the content. Along with acknowledging
the terms and conditions of employment, the “Employee Acknowledgment and Agreement” 30
contain a provision that require employees’ employment-related claims to be submitted to
binding arbitration (hereinafter, “arbitration provision”), which in relevant part states:
I also understand that the Facility utilizes a voluntary system for alternative dispute
resolution, which involves binding arbitration to resolve all disputes, which may arise out 35
of the employment context. Because of the mutual benefits (such as reduced expenses
and increased efficiency) which private binding arbitration can provide both the Facility
and myself, I voluntarily agree that any claim, dispute, and/or controversy[…] which
would otherwise require or allow resort to any court of other governmental dispute
resolution forum between myself and the Facility […] arising from, related to, or having 40
any relationship or connection whatsoever with my seeking employment with,
employment by, or other association with the Facility, whether based on tort, contract,

2 The Charging Party filed a notice of joinder supporting the General Counsel’s positions in
his brief, and therefore, did not file a separate brief in this matter.
3 Although I have included several citations to the record to highlight particular stipulations
or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited, but rather are based on my review and consideration of the entire record.
JD(SF)–20–15
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statutory, or equitable law, or otherwise (with the sole exception of claims arising under
the National Labor Relations Act which are brought before the National Labor Relations
Board […]) shall be submitted to and determined exclusively by binding arbitration under
the Federal Arbitration Act […].
5
[…]
I UNDERSTAND BY VOLUNTARILY AGREEING TO THIS BINDING
ARBITRATION PROVISION, BOTH I AND THE FACILITY GIVE UP OUR RIGHTS
TO TRIAL BY JURY.10
I understand that this voluntary alternative dispute resolution program covers claims of
discrimination and harassment under Title VII of the Civil Rights Act of 1964, as
amended. By marking the box to the right, I elect to waive the benefits of arbitrating
Title VII claims. [.]15
[…]
MY SIGNATURE BELOW ATTESTS TO THE FACT THAT I HAVE READ,
UNDERSTAND, AND AGREE TO BE LEGALLY BOUND TO ALL OF THE ABOVE 20
TERMS.
(Jt. Exh.1 at Exh. A).
From September 2, 2011, through October 30, 2012, as a condition of employment, 25
Respondent instructed employees to sign the “Employee Acknowledgment and Agreement,”
including the arbitration provision (Jt. Exh. 1).
B. The Charging Party’s Employment with Respondent
30
Respondent employed the Charging Party from September 7, 2011 until October 30,
2012. On or about September 7, 2011, the Charging Party signed the “Employee
Acknowledgment and Agreement” as part of Respondent’s application process. By signing the
“Employee Acknowledgment and Agreement,” the Charging Party became bound by its terms.
35
C. The Class Action Lawsuit
On April 18, 2013, the Charging Party filed a class action complaint against Respondent
in the Superior Court of California, City of Los Angeles, in “Juan Cortes, an individual, on
behalf of himself and all others similarly situated, Plaintiff,” Case No. BC 506333 (the lawsuit) 40
(Jt. Exh. 1 at Exh. B).
Since at least May 9, 2014, Respondent maintained and enforced the arbitration provision
in its “Employee Acknowledgment and Agreement” by filing in response to the lawsuit a
“Motion to Compel Arbitration and to Dismiss Class Action Claims” (Motion to Compel). The 45
Motion to Compel moves the Superior Court of California to compel the Charging Party to
individually arbitrate the class action wage and hour claims against Respondent (Jt. Exh. 1 at
Exh. C). Respondent, since at least May 9, 2014, interprets its “Employee Acknowledgment and
JD(SF)–20–15
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Agreement,” which is silent on class and representative actions, as requiring individual
arbitration and does not permit class wide arbitration (Jt. Exh. 1 at Exh. C).
On July 18, 2014, the Charging Party filed an Opposition to Respondent’s Motion to
Compel (Jt. Exh. 1 at Exh. D). On August 15, 2014, the Superior Court granted Respondent’s 5
Motion to Compel and stayed the Charging Party’s class-wide claims (Jt. Exh. 1 at Exh. E).
III. ANALYSIS
In the Joint Motion, the parties agreed to the following issues:10
(1)(a) Did Respondent violate Section 8(a)(1) by maintaining and enforcing its
mandatory arbitration provision, which it required employees to sign as a condition of
employment, as alleged in the complaint, by filing its May 9, 2014 Motion to Compel Charging
Party Cortes to individually arbitrate class wage and hour claims?15
(1)(b) Did Respondent violate Section 8(a)(1) by maintaining and enforcing its
mandatory arbitration provision, as alleged in the complaint, by filing its May 9, 2014 Motion to
Compel Charging Party Cortes to individually arbitrate class wage and hour claims, even if
employees were not required to sign the arbitration provision as a condition of employment?20
A. From September 2, 2011, through October 30, 2012, Respondent’s Arbitration Provision
Violated Section 8(a)(1) of the Act.
The complaint alleges, at paragraph 5, that since at least early September 2011, 25
Respondent has required employees, as a condition of employment, to be bound by the
mandatory arbitration provision within the “Employee Acknowledgment and Agreement” which
Respondent interprets to require individual arbitration in violation of Section 8(a)(1).
In contrast to paragraph 5 in the complaint, the parties stipulated that from 30
September 2, 2011 through October 30, 2012, as a condition of employment, Respondent
required employees to sign the “Employee Acknowledgment and Agreement” which also
contains the arbitration provision (Jt. Exh. 1). I find that even though the arbitration provision
states that it is “voluntary,” from September 2, 2011 through October 30, 2012, it was a
mandatory rule imposed by Respondent, and as such the arbitration provision should be 35
evaluated in the same manner as any workplace rule. See D.R. Horton, 357 NLRB No. 184, slip
op. at 15. Although Respondent continues to maintain the “Employee Acknowledgment and
Agreement” with the arbitration provision, from October 30, 2012 to the present, the General
Counsel failed to present sufficient evidence as to whether the arbitration provision continued to
be a mandatory condition of employment imposed on Respondent’s employees, and thus, I do 40
not find a violation of maintenance of the arbitration provision after October 30, 2012.
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right “to form, join or assist labor 45
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection . . .”. The Board has consistently held that collective legal action involving wages,
JD(SF)–20–15
5
hours, and/or working conditions is protected concerted activity under Section 7. See, e.g.,
Spandsco Oil & Royalty Co., 42 NLRB 942, 949–950 (1942); United Parcel Service, 252 NLRB
1015, 1018, 1022 fn. 26 (1980), enfd. 677 F.2d 421 (6th Cir. 1982); D.R. Horton, Inc., 357
NLRB No. 184 (2012), enfd. denied in part 737 F.3d 344 (5th Cir. 2013), petition for rehearing
en banc denied (5th Cir. No. 12–60031, April 16, 2014). In Murphy Oil USA, Inc., 361 NLRB 5
No. 72 (2014), the Board reaffirmed its ruling in D. R. Horton, where they held that mandatory
arbitration agreements which preclude the filing of joint, class, or collective claims addressing
wages, hours, or other working conditions in any forum, arbitral or judicial, is protected
concerted activity and unlawfully restrict employees’ Section 7 rights, which violates Section
8(a)(1) of the Act. See also Cellular Sales of Missouri, LLC, 362 NLRB No. 27 (2015) (work 10
rule reasonably construed to interfere with ability to file charges with the Board even if rule did
not expressly prohibit access to the Board); Chesapeake Energy Corporation, 362 NLRB No. 80
(Apr. 30, 2015).
Since the Board’s issuance of D.R. Horton there have been several decisions issued by 15
the Federal courts of appeal disagreeing with the Board’s analysis regarding mandatory
arbitration agreements. Sutherland v. Ernst & Young, 726 F.3d 290 (2d Cir. 2013); Owen v.
Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013); Richards v. Ernst & Young, LLP, 744 F.3d
1072 (9th Cir. 2013). However, the Board in Murphy Oil reexamined D.R. Horton, and
determined that its reasoning and results were correct. The Board found that Section 8(a)(1) of 20
the Act is violated when an employer requires its employees to agree to resolve all employment-
related claims through individual arbitration. Mandatory arbitration agreements which bar
employees from bringing joint, class, or collective actions regarding the workplace in any forum
restrict employees’ substantive right established by Section 7 of the Act to improve their working
conditions through administrative and judicial litigation.25
When evaluating whether a rule, including a mandatory arbitration provision, violates
Section 8(a)(1), the Board applies the test set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004). See U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255
Fed.Appx. 527 (D.C. Cir. 2007); D.R. Horton, Inc.; Murphy Oil; Cellular Sales. Under Lutheran 30
Heritage, the first inquiry is whether the rule explicitly restricts activities protected by Section 7.
If it does, the rule is unlawful. If it does not, the violation is dependent upon a showing of one of
the following: (1) employees would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to [Section 7] activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights. Lutheran Heritage, 343 NLRB at 647. The 35
Board in D.R. Horton, Murphy Oil, Cellular Sales and Chesapeake Energy Corp. found that
mandatory arbitration policies expressly violate employees’ rights to engage in protected
concerted activity under the Lutheran Heritage analysis. The Board held that if an arbitration
policy is required as a condition of employment, then that rule violates Section 8(a)(1) of the Act
if employees would reasonably believe the policy or rule interferes with their ability to file a 40
Board charge or access to the Board’s processes, even if policy or rule does not expressly
prohibit access to the Board. Cellular Sales, supra, slip op. at fn. 4.
Here, it is undisputed that Respondent’s arbitration provision had been maintained as a
condition of employment from September 2, 2011 through October 30, 2012, as stipulated in the 45
Joint Motion. On or about September 7, 2011, the Charging Party per Respondent’s instructions
signed the “Employee Acknowledgment and Agreement” which included the arbitration
provision as part of Respondent’s application process. Thus, I find that the arbitration provision
JD(SF)–20–15
6
was a mandatory rule imposed by Respondent as a condition of employment violating Section
8(a)(1) of the Act from September 2, 2011 to October 30, 2012. See D.R. Horton, supra, slip op.
at 5; Murphy Oil, supra, slip op. at 24.
Turning to the period after October 30, 2012, the General Counsel argues that because the 5
“Employee Acknowledgment and Agreement” has remained in effect since September 2011, the
evidence clearly shows that Respondent has required employees to sign it as a condition of
employment (GC Br. at 10). I disagree. After October 30, 2012, although this same “Employee
Acknowledgment and Agreement,” with the arbitration provision, continues to be in effect per
the Joint Motion, the record is vague as to whether Respondent continues to require employees to 10
sign the “Employee Acknowledgment and Agreement” as a condition of employment.
Moreover, although the arbitration policy states that it is “voluntary,” the record is silent as to
how Respondent conveys to employees how they may option out of the arbitration provision. It
is possible that the “voluntariness” of Respondent’s arbitration policy after October 30, 2012, is
illusory but the Joint Motion fails to provide necessary details to make this determination. In 15
fact, in D.R. Horton, supra, slip op. at fn. 28, the Board declined to reach the more “difficult”
issue of “whether, if arbitration is a mutually beneficial means of dispute resolution, an employer
can enter into an agreement that is not a condition of employment with an individual employee to
resolve either a particular dispute or all potential employment disputes through non-class
arbitration rather than litigation in court.” Thus, because the Joint Motion lacks specificity and 20
because the General Counsel maintains the burden of proof, I cannot find a violation after
October 30, 2012. However, I find that the arbitration provision was a mandatory rule imposed
by Respondent as a condition of employment violating Section 8(a)(1) of the Act from
September 2, 2011 to October 30, 2012. See D.R. Horton, supra, slip op. at 5; Murphy Oil,
supra, slip op. at 24. 25
Respondent argues that since its arbitration policy specifically excludes claims under the
Act that its arbitration policy does not violate Section 7 of the Act (R. Br. at 8–11).4
Respondent’s arbitration provision permits limited exceptions to which disputes must be
resolved by binding arbitration including claims under the National Labor Relations Act and the 30
California Workers’ Compensation Act, and Employment Development Office claims (Jt. Exh. 1
at Exh. A). Despite the arbitration provision permitting Board charges, the arbitration provision
creates an ambiguity as to whether an employee could file or join a class or collective action, and
such ambiguity must be construed against Respondent as the drafter of the arbitration provision.
See Murphy Oil, supra, slip op. at 26. Employees subject to the arbitration provision would 35
reasonably construe it as waiving their right to pursue employment-related claims concertedly in
all forums or that their right to file an unfair labor practice with the Board is restricted. Indeed,
although the arbitration provision is silent as to whether class and/or collective actions are
permitted, Respondent interprets its arbitration provision to require individual arbitration (Jt.
Exh. 1; Jt. Exh. 1 at Exh. C), thereby precluding class or collective action in both judicial and 40
arbitral forums. Moreover, Respondent’s arbitration policy covers all disputes arising out of the
employment context. It does not leave open any judicial forum, as required by the Board in D.R.
Horton, nor does Respondent permit collective or class arbitration as evidenced by its Motion to
Compel. D.R. Horton, supra, slip op. at 12.

4 Respondent inappropriately raised this theory of the case for the first time in its brief.
However, because the General Counsel prevails on this theory, the General Counsel is not
prejudiced by not having the opportunity to brief the matter.
JD(SF)–20–15
7
Respondent cites to several Board decisions upholding workplace rules, none of which
concern arbitration policies, and argues that its arbitration policy when narrowly construed
should similarly be upheld (R. Br. at 8–11). However, the Board has repeatedly stated that broad
language in defining the issues subject solely to arbitration is reasonably interpreted by 5
employees to encompass and preclude the filing of unfair labor practice charges even if explicitly
permitted. See U-Haul Co. of California, supra at 377–378 (agreement requiring arbitration of
“all disputes relating to or arising out of an employee’s employment […] or the termination of
that employment,” including “any other legal or equitable claims and causes of action recognized
by local, state, or federal law or regulations” violated Section 8(a)(1)). Recently, in Cellular 10
Sales, the Board stated that Section 8(a)(1) is violated if the rule or policy interferes with
employees’ rights to file Board charges even if the rule or policy does not expressly prohibit
Board charges. 362 NLRB No. 27, slip op. at fn. 4. Likewise, even permitting claims before the
Board, I find that Respondent’s arbitration policy violates section 8(a)(1) of the Act due to its
broad scope in subjecting all employment disputes to binding arbitration. Murphy Oil, supra, 15
slip op. at 26.
Respondent argues I should not follow Murphy Oil and D.R. Horton. Respondent failed
to provide valid arguments distinguishing its arbitration policy with the ones found in D.R.
Horton and Murphy Oil. Because Murphy Oil and D.R. Horton are Board precedents that have 20
not been overturned by the Supreme Court, I must follow them. Manor West, Inc., 311 NLRB
655, 667, fn. 43 (1993); see also Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) (“We emphasize
that it is a judge’s duty to apply established Board precedent which the Supreme Court has not
reversed. It is for the Board, not the judge, to determine whether precedent should be varied.”).
The arguments made by Respondent as to why D.R. Horton and Murphy Oil were wrongly 25
decided, including its rejection by the courts, must be made directly to the Board.
Respondent alleges that the Board’s rationale in Murphy Oil and D.R. Horton conflict
with the FAA, 9 U.S.C. §§ 1 et. seq. However, the Board clearly set forth its reasons why the
National Labor Relations Act does not conflict with or undermine the FAA. See Murphy Oil, 30
supra, slip op. at 6. First, the Board found that mandatory arbitration agreements are unlawful
under the FAA’s savings clause because they extinguish rights guaranteed by Section 7. Second,
Section 7 amounts to a “contrary congressional command” overriding the FAA. Finally, the
Board found that the Norris-LaGuardia Act indicates that the FAA should yield to accommodate
Section 7 rights. The Norris-LaGuardia Act prevents enforcement of private agreements that 35
prohibit individuals from participating in lawsuits arising out of labor disputes.
Furthermore, Respondent argues that AT & T Mobility v. Concepcion, 131 S.Ct. 1740,
1746 (2011), a Supreme Court decision issued after D.R. Horton, and other related case law,
support the argument that D.R. Horton must be rejected. Again, the Board in Murphy Oil40
addressed those arguments, distinguishing that Section 7 of the Act substantively guarantees
employees the right to engage in collective action, including collective legal action, for mutual
aid and protection concerning wages, hours, and working conditions. See Murphy Oil, supra, slip
op. at 7–9; Chesapeake Energy Corp., supra, slip op. at 3.
45
Accordingly, I find that from September 2, 2011 through October 30, 2012, Respondent’s
maintenance of the arbitration provision, as a mandatory condition of employment, prohibited
employees from bringing forth claims against Respondent in a concerted manner which thereby
JD(SF)–20–15
8
violates Section 8(a)(1) of the Act as set forth in D.R. Horton and Murphy Oil. I do not find a
violation after October 30, 2012 since the record is lacing sufficient evidence proving that
Respondent continues to impose the arbitration provision as a mandatory rule.
B. Respondent’s Enforcement of its Arbitration Provision Violates Section 8(a)(1) of the Act.5
The complaint alleges, at paragraph 6, that Respondent enforced its arbitration provision
in the Superior Court of California by moving the State court to dismiss the Charging Party’s
class action lawsuit. The arbitration provision is a condition of employment, and is therefore
treated in the same manner as other unlawfully implemented workplace rules. As set forth 10
previously, when evaluating whether a rule, including a mandatory arbitration provision, violates
Section 8(a)(1), the Board applies the test set forth in Lutheran Heritage Village-Livonia, supra.
See U-Haul Co. of California, supra at 377 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007);
D.R. Horton, Inc.; Murphy Oil; Cellular Sales. In undertaking this analysis, the Board must
refrain from reading particular phrases in isolation, and must not presume improper interference 15
with employee rights. MCPc, Inc., 360 NLRB No. 39, slip op. at 7 (2014).
The inquiry here is whether the third prong of the Lutheran Heritage test, if the rule has
been applied to restrict the exercise of Section 7 rights, is met. As set forth above, Respondent
violated Section 8(a)(1) when it imposed the mandatory arbitration provision which the Charging 20
Party was required to sign as a condition of employment. Respondent stipulated that it interprets
the arbitration provision only to permit individual arbitration. Respondent further stipulated that
it filed a Motion to Compel in response to the lawsuit filed by the Charging Party arguing that
the arbitration provision only permits individual arbitration, thereby precluding class or
collective action. Thereafter, the Superior Court of California granted Respondent’s Motion to 25
Compel and stayed the Charging Party’s class-wide claims. It is well-settled that lawsuits which
attempt to enforce contract provisions or policies which violate the Act constitute independent
statutory violations. Bill Johnson’s Restaurants, 461 U.S. 731, 737–738, fn. 5 (1983), citing
Granite State Joint Board, Textile Workers Union, 187 NLRB 636, 637 (1970), enfd. denied, 446
F. 2d 369 (1st Cir. 1971), revd., 409 U.S. 213 (1972). Accordingly, I find that Respondent’s 30
enforcement of the arbitration provision violates the Act since Respondent interprets its
arbitration provision to preclude class or collective action. In doing so, I find that Respondent
restricted the exercise of employees’ Section 7 rights in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW35
1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. By requiring employees to sign and maintain, from September 2, 2011 through
October 30, 2012, an arbitration provision within the “Employee Acknowledgment and 40
Agreement” under which employees are compelled, as a condition of employment, to waive the
right to maintain class or collective actions in all forums, whether arbitral or judicial, 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.
45
3. By enforcing the arbitration provision on May 9, 2014, at the Facility by moving to
compel individual arbitration of the Charging Party’s class action lawsuit filed in State court,
Respondent violated Section 8(a)(1) of the Act.
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REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist there from and to take certain affirmative action designed to effectuate the
policies of the Act.5
As I have concluded that the mandatory arbitration provision is unlawful from September
2, 2011 through October 30, 2012, the recommended Order requires that Respondent revise or
rescinds it, and advises its employees in writing that the mandatory arbitration provision has
been revised or rescinded. 10
Respondent shall post a notice in all locations where the mandatory arbitration policy, or
any portion of it requiring all and/or enumerated employment-related disputes to be submitted to
individual arbitration, was in effect. See, e.g., U-Haul of California, supra, fn. 2; D.R. Horton,
supra, slip op. at 17; Murphy Oil, supra, slip op. at 22. Respondent is also ordered to distribute 15
appropriate remedial notices to its employees electronically, such as by email, posting on an
intranet or internet site, and/or other appropriate electronic means, if it customarily
communicates with its employees by such means. J. Picini Flooring, 356 NLRB No. 9 (2010).
I recommend Respondent be required to reimburse the Charging Party and any other 20
plaintiffs for all reasonable expenses and legal fees, with interest, incurred in opposing the
lawsuit and related expenses, with interest, to date and in the future, directly related to the
Motion to Compel filed by Respondent related to the plaintiff’s class action lawsuit in Juan
Cortes, an individual, on behalf of himself and all others similarly situated, Case No. BC
506333. See Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731, 747 (1983) (“If a violation is 25
found, the Board may order the employer to reimburse the employees whom he had wrongfully
sued for their attorney’s fees and other expenses” and “any other proper relief that would
effectuate the policies of the Act.”). Interest shall be computed in the manner prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010). See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 30
10 (1991) (“[I]n make whole orders for suits maintained in violation of the Act, it is appropriate
and necessary to award interest on litigation expenses.”), enfd. 973 F.2d 230 (3d Cir. 1992), cert.
denied 507 U.S. 959 (1993).
I recommend that Respondent be required to ensure that the Charging Party has a forum 35
to litigate his class action lawsuit by either: (1) withdrawing its Motion to Compel and requesting
the State court to rescind its order staying the class action portion of the Charging Party’s
lawsuit; or (2) withdrawing its argument to the arbitrator that the arbitration provision precludes
class or collective action, and that it will proceed with class-wide arbitration.
40
On these findings of fact and conclusions of law and the entire record, I issue the
following recommended5

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order 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.
JD(SF)–20–15
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ORDER
Respondent, Philmar Care, LLC d/b/a San Fernando Post Acute Hospital, Sylmar,
California, its officers, agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Maintaining an arbitration provision that requires employees, as a mandatory
condition of employment, to waive the right to maintain class or collective actions in all forums,
whether arbitral or judicial.10
(b) Enforcing (or attempting to enforce) the mandatory arbitration provision to prohibit
class or collective action in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, restraining, or coercing employees in 15
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind or revise the arbitration provision in all of its forms to make clear to 20
employees that the provision does not require them, as a condition of employment, to waive their
right to maintain employment-related joint, class, or collective actions in all forums, whether
arbitral or judicial.
(b) Notify all current and former employees who were required to sign the “Employee 25
Acknowledgment and Agreement” which included the arbitration provision, of the rescinded, or
revised, arbitration provision, to include providing them with a copy of any revised provisions,
acknowledgment forms, or other related documents, or specific notification that the arbitration
provision has been rescinded.
30
(c) Notify the Superior Court of California, City of Los Angeles, in Juan Cortes, an
individual, on behalf of himself and all others similarly situated, Case No. BC 506333, or an
arbitrator, that it has rescinded or revised the arbitration provision upon which it based its Motion
to Compel Juan Cortes’ collective action, and inform the court or arbitrator that it no longer
opposes the action on the basis of the arbitration provision.35
(d) In the manner set forth in this decision, reimburse Juan Cortes for any reasonable
attorneys’ fees and litigation expenses that he may have incurred in opposing Respondent’s
Motion to Compel individual arbitration.
40
(e) Within 14 days after service by the Region, post at its facility in Sylmar, California,
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being signed by Respondent’s authorized

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.”
JD(SF)–20–15
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representative, shall be posted by Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if
Respondent customarily communicates with its employees by such means. Reasonable steps 5
shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, Respondent has
gone out of business or closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by Respondent at any time since September 1, 2011.10
(f) 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
Respondent has taken to comply.
15
3. It is further ordered that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
20
Dated, Washington, D.C. May 6, 2015

Amita Baman Tracy25
Administrative Law Judge
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and/or enforce an arbitration provision that requires employees, as a
condition of employment, to waive the right to maintain class or collective actions in all forums,
whether arbitral or judicial.
WE WILL NOT enforce an arbitration provision by requiring the Charging Party Juan Cortes to
agree to the arbitration provision.
WE WILL NOT enforce an arbitration provision by asserting it in litigation the Charging Party
Juan Cortes brought against us.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL rescind the requirement that employees enter into or sign the arbitration provision
that is currently in effect, as a condition of employment, and expunge all such provisions at all of
Respondent’s facilities where Respondent has required employees to sign such provisions.
WE WILL rescind or revise the arbitration provision in all its forms to make clear to employees
that the provision does not constitute a waiver of their right to initiate or maintain employment-
related collective or class actions in arbitrations and in the courts, and that it does not restrict the
employees’ right to file charges with the National Labor Relations Board.
WE WILL notify all current and former employees who were required to sign the arbitration
provision in any of its forms that the arbitration provision has been rescinded or revised and, if
revised, provide them a copy of the revised agreement.
WE WILL notify the court or the arbitrator in which Juan Cortes filed his collective action
claim that we have rescinded or revised the arbitration provision upon which we based our
JD(SF)–20–15
Motion to Compel individual arbitration, and WE WILL inform the court or the arbitrator that
we no longer oppose Juan Cortes’ collective claim on the basis of that agreement.
WE WILL reimburse Charging Party Juan Cortes for all reasonable attorneys’ fees and
litigation expenses that he may have incurred in opposing our Motion to Compel individual
arbitration in his collective claim.
Philmar Care, LLC D/B/A San Fernando Post
Acute Hospital
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
11500 West Olympic Boulevard, Suite 600
Los Angeles, California 90064
Hours: 8:30 a.m. to 5 p.m.
310-235-7352
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-133242 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 310-235-7123.