PRIME HEALTHCARE PARADISE VALLEY, LLC

National Labor Relations Board - Board Decisions

Apr 22, 2016

363 NLRB No. 169 (N.L.R.B. 2016)

363 NLRB No. 169
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.
Prime Healthcare Paradise Valley, LLC and Richard
Cardona and Stephene Ortega. Cases 21–CA–
133781 and 21–CA–133783
April 22, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 8, 2015, Administrative Law Judge William
Nelson Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Applying the Board’s decisions in D. R. Horton, 357
NLRB 2277 (2012), enf. denied in relevant part 737 F.3d
344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361
NLRB No. 72 (2014), enf. denied in relevant part 808
F.3d 1013 (5th Cir. 2015), the judge found that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing and enforcing mandatory arbitration agreements—
first, the Mediation and Arbitration Agreement; subse-
quently, the Mutual Agreement to Arbitrate—that require
employees, as a condition of employment, to waive their
rights to pursue class or collective actions involving em-
ployment-related claims in all forums, whether arbitral or
judicial. The judge also found that maintaining the Medi-
ation and Arbitration Agreement violated Section 8(a)(1)
because employees reasonably would believe that it bars
or restricts their right to file unfair labor practice charges
with the Board.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and

1 The Respondent argues that D. R. Horton, 357 NLRB 2277
(2012), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), were
wrongly decided and should be overruled. We disagree and adhere to
the findings and rationale in those cases.
Our dissenting colleague, relying on his dissenting position in Mur-
phy Oil, above, slip op. at 22–35, would find that the Respondent’s
arbitration agreements do not violate Sec. 8(a)(1). He observes that the
Act does not “dictate” any particular procedures for the litigation of
non-NLRA claims, and “creates no substantive right for employees to
insist on class-type treatment” of such claims. This is all surely correct,
as the Board has previously explained in Murphy Oil, above, slip op. at
2, and Bristol Farms, 363 NLRB No. 45, slip op. at 2 & fn. 2 (2015).
But what our colleague ignores is that the Act “does create a right to
pursue joint, class, or collective claims if and as available, without the
interference of an employer-imposed restraint.” Murphy Oil, above,
to adopt the recommended Order as modified and set
forth in full below.2
The parties stipulated that the Respondent maintained
the Mediation and Arbitration Agreement3 until approx-
imately May 13, 2014, and that since May 13, 2014, the
Respondent has required all employees to sign the Mutu-
al Agreement to Arbitrate. Although the Respondent’s
Mediation and Arbitration Agreement does not explicitly
restrict activities protected by Section 7, we agree with

slip op. at 2 (emphasis in original). The Respondent’s arbitration
agreements are just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the arbitra-
tion agreements unlawful runs afoul of employees’ Sec. 7 right to “re-
frain from” engaging in protected concerted activity. See Murphy Oil,
above, slip op. at 18; Bristol Farms, above, slip op. at 3. Nor is he
correct in insisting that Sec. 9(a) of the Act requires the Board to permit
individual employees to prospectively waive their Sec. 7 right to en-
gage in concerted legal activity. See Murphy Oil, above, slip op. at 17–
18; Bristol Farms, above, slip op. at 2.
2 Consistent with our decision in Murphy Oil, above, slip op. at 21,
we shall order the Respondent to reimburse the Charging Parties and
any other plaintiffs for all reasonable expenses and legal fees, with
interest, incurred in opposing the Respondent’s unlawful petitions in
state court to compel individual arbitration and strike class claims. See
Bill Johnson’s Restaurants, 461 U.S. 731, 747 (1983) (“If a violation is
found, the Board may order the employer to reimburse the employees
whom he had wrongfully sued for their attorneys’ fees and other ex-
penses” as well as “any other proper relief that would effectuate the
policies of the Act.”). Interest shall be computed in the manner pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 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).
Finally, we shall modify the judge’s recommended Order to conform
to our findings, the amended remedy, the Board’s standard remedial
language, and Excel Container, Inc., 325 NLRB 17 (1997). We shall
substitute a new notice to conform to the Order as modified.
3 For the reasons stated by the judge, we agree that employees rea-
sonably would construe the Mediation and Arbitration Agreement to
restrict their access to the Board’s processes. In his analysis, the judge
cited Flex Frac Logistics, LLC, 358 NLRB 1131 (2012), a case decided
by a panel that included two persons whose appointments to the Board
were not valid. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
We find the judge’s reliance on this case appropriate, however, because
the panel’s decision was enforced by the Fifth Circuit Court of Appeals.
See 746 F.3d 205 (5th Cir. 2014). Although our colleague concurs in
our finding that employees would reasonably believe that the Mediation
and Arbitration Agreement limited their right to access the Board’s
processes, we note his view that an individual arbitration agreement
lawfully may require the arbitration of unfair labor practice claims, if
the agreement reserves to employees the right to file charges with the
Board. We disagree with that view for the reasons stated in Ralph’s
Grocery, 363 NLRB No. 128, slip op. at 3 (2016).
The General Counsel does not allege that, because employees would
reasonably construe that the Mutual Agreement to Arbitrate restricted
their access to the Board’s processes, the Mutual Agreement to Arbi-
trate violated the Act. Accordingly, we do not decide whether the
Mutual Agreement to Arbitrate is unlawful for that reason. See Citi
Trends, Inc., 363 NLRB No. 74, slip op. at 1 (2015).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the judge in finding, based upon the parties’ stipulation,
that the Mediation and Arbitration Agreement has been
enforced to compel arbitration on an individual rather
than a class or collective basis. Consistent with our deci-
sion in Countrywide Financial Corp., 362 NLRB No.
165, slip op. at 3–5 (2015), we find that the Respondent’s
filing of the petition to compel individual arbitration and
strike Charging Party Richard Cardona’s claims effec-
tively denied Cardona his Section 7 right to all other fo-
rums where he could seek to litigate his collective
claims, and that such conduct is precisely what the Board
envisioned in D. R. Horton and Murphy Oil.4 See also
Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004) (a rule that does not expressly restrict protected
activity is nevertheless unlawful if it has been applied to
restrict protected activity).5
ORDER
The National Labor Relations Board orders that the
Respondent, Prime Healthcare Paradise Valley, LLC,
National City, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from

4 We also reject the position of our dissenting colleague that the Re-
spondent’s petitions to compel individual arbitration were protected by
the First Amendment’s Petition Clause. In Bill Johnson’s Restaurants
v. NLRB, 461 U.S. 731 (1983), the Court identified two situations in
which a lawsuit enjoys no such protection: where the action is beyond
a state court’s jurisdiction because of Federal preemption, and where “a
suit . . . has an objective that is illegal under federal law.” 461 U.S. at
737 fn. 5. Thus, the Board may properly restrain litigation efforts such
as the Respondent’s petitions to compel individual arbitration that have
the illegal objective of limiting employees’ Sec. 7 rights and enforcing
an unlawful contractual provision, even if the litigation was otherwise
meritorious or reasonable. See Convergys Corp., 363 NLRB No. 51,
slip op. at 2 fn. 5 (2015); Murphy Oil, above, slip op. at 20–21.
5 While the Respondent asserts that the Mediation and Arbitration
Agreement is no longer operative, it filed its petition to compel individ-
ual arbitration of Cardona’s claims based on the Mediation and Arbitra-
tion Agreement. Thus, it appears that the Respondent still views the
Mediation and Arbitration Agreement as valid and enforceable, at least
with respect to former employees, such as Cardona, who did not sign
the Mutual Agreement to Arbitrate because they were not employed by
the Respondent on or after May 13, 2014. Accordingly, we shall order
the Respondent to rescind the Mediation and Arbitration Agreement to
the extent it has not already done so, or to revise it to make clear to
employees that it does not constitute a waiver of their right to maintain
employment-related joint, class, or collective actions in all forums and
does not bar or restrict employees’ right to file charges with the Board.
We shall also order the Respondent to notify former employees who
signed the Mediation and Arbitration Agreement and were not em-
ployed by the Respondent on or after May 13, 2014, that the Mediation
and Arbitration Agreement has been rescinded or revised and, if re-
vised, to provide them a copy of the revised agreement. To be clear,
the revised agreement we refer to is a lawful revised agreement, not the
unlawful Mutual Agreement to Arbitrate. We shall further order the
Respondent to notify former employees that the agreement will not be
enforced in a manner that deprives them of their right to maintain em-
ployment-related joint, class or collective actions in all forums.
(a) Maintaining a Mediation and Arbitration Agree-
ment that employees reasonably would believe bars or
restricts the right to file charges with the National Labor
Relations Board.
(b) Maintaining and/or enforcing a Mediation and Ar-
bitration Agreement or a Mutual Agreement to Arbitrate
that requires employees, as a condition of employment,
to waive the right to maintain class or collective actions
in all forums, whether arbitral or judicial.
(c) Enforcing or applying a Mediation and Arbitration
Agreement in a manner that deprives employees of the
right to maintain class or collective actions in all forums,
whether arbitral or judicial.
(d) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) To the extent it has not already done so, rescind
the Mediation and Arbitration Agreement in all its forms,
or revise it in all its forms to make clear to employees
that the Mediation and Arbitration Agreement does not
constitute a waiver of their right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums and does not bar or restrict employees’ right to file
charges with the National Labor Relations Board.
(b) Notify all former employees who were required to
sign or otherwise become bound to the Mediation and
Arbitration Agreement in any form, and who were not
employed by the Respondent on or after May 13, 2014,
that the Mediation and Arbitration Agreement has been
rescinded or revised, and, if revised, provide them a copy
of the revised agreement, and further notify them that the
Mediation and Arbitration Agreement will not be en-
forced in a manner that deprives them of their right to
maintain employment-related joint, class or collection
actions in all forums.
(c) Rescind the Mutual Agreement to Arbitrate in all
its forms, or revise it in all its forms to make clear to em-
ployees that the Mutual Agreement to Arbitrate does not
constitute a waiver of their right to maintain employ-
ment-related joint, class, or collective actions in all fo-
rums.
(d) Notify all current and former employees who were
required to sign or otherwise become bound to the Mutu-
al Agreement to Arbitrate in any form that it has been
rescinded or revised and, if revised, provide them a copy
of the revised agreement.
(e) In the manner set forth in this decision, reimburse
Richard Cardona, Stephene Ortega, and any other plain-
tiffs in the class action lawsuit filed against the Respond-
ent in California Superior Court, Case No. 37–2014–
PRIME HEALTHCARE PARADISE VALLEY, LLC 3
00011240–CU–OECTL, for any reasonable attorneys’
fees and litigation expenses that they may have incurred
in opposing the Respondent’s petition to compel individ-
ual arbitration and dismiss class claims.
(f) Within 14 days after service by the Region, post at
its National City, California facility copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, 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 employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice marked
“Appendix” to all current employees and former employ-
ees employed by the Respondent at any time since Janu-
ary 29, 2014, and any former employees against whom
the Respondent has enforced the Mediation and Arbitra-
tion Agreement or Mutual Agreement to Arbitrate since
January 29, 2014.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. April 22, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, my colleagues find that the Respondent’s
Mediation and Arbitration Agreement (M&AA) violates
Section 8(a)(1) of the National Labor Relations Act (the
Act or NLRA) because the Respondent has applied the
M&AA to require individual arbitration of non-NLRA
employment claims.1 My colleagues also find that the
Respondent’s Mutual Agreement to Arbitrate (MAA)
violates Section 8(a)(1) because the MAA waives the
right to participate in class or collective actions regarding
non-NLRA employment claims. Charging Party
Stephene Ortega signed the MAA, and later she filed a
class action lawsuit against the Respondent in state court
alleging violations of the California Labor Code and the
California Business and Professions Code. Charging
Party Richard Cardona signed the M&AA and later
joined Ortega’s state court class action lawsuit as a
named plaintiff. In reliance on the M&AA and the
MAA, the Respondent filed petitions to compel individu-
al arbitration and strike Cardona’s and Ortega’s class
claims, which the court granted. My colleagues find that
the Respondent thereby unlawfully enforced the M&AA
and the MAA. I respectfully dissent from these findings
for the reasons explained in my partial dissenting opinion
in Murphy Oil USA, Inc.2
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.3 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in
Murphy Oil, NLRA Section 9(a) protects the right of

1 The M&AA requires that employment claims be resolved through
arbitration, but it does not expressly prohibit class or collective arbitra-
tion.
2 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part). The Board majority’s holding in Murphy Oil inval-
idating class-action waiver agreements was denied enforcement by the
Court of Appeals for the Fifth Circuit. Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013 (5th Cir. 2015).
3 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, above, slip op. at 23–25 (Member Miscimarra,
dissenting in part). However, the existence or absence of Sec. 7 protec-
tion does not depend on whether non-NLRA claims are pursued as a
class or collective action, but on whether Sec. 7’s statutory require-
ments are met—an issue separate and distinct from whether an individ-
ual employee chooses to pursue a claim as a class or collective action.
Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5 (2015)
(Member Miscimarra, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”4 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;5 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;6 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-

4 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or se-
lected for the purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the exclu-
sive representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That any
individual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
5 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12–60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
6 The Fifth Circuit has repeatedly denied enforcement of Board or-
ders invalidating a mandatory arbitration agreement that waived class-
type treatment of non-NLRA claims. See, e.g., Murphy Oil, Inc., USA
v. NLRB, above; D.R. Horton, Inc. v. NLRB, above. The overwhelming
majority of courts considering the Board’s position have likewise re-
jected it. See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., Inc., 96 F. Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v.
Adecco USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to
certify for interlocutory appeal denied 2015 WL 4035072 (N.D. Cal.
June 30, 2015); Brown v. Citicorp Credit Services, Inc., No. 1:12–cv–
00062–BLW, 2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting
reconsideration of prior determination that class waiver in arbitration
agreement violated NLRA); but see Totten v. Kellogg Brown & Root,
LLC, No. ED CV 14–1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal.
Jan. 22, 2016).
tion Act (FAA).7 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.
Because I believe the Respondent’s MAA was lawful
and the class-waiver agreement provisions of the M&AA
were similarly lawful under the NLRA, I would find it
was similarly lawful for the Respondent to file petitions
in state court seeking to enforce the M&AA and MAA.8
It is relevant that the state court that had jurisdiction over
the non-NLRA claims granted the Respondent’s peti-
tions to compel arbitration. That the Respondent’s peti-
tions were reasonably based is also supported by the
multitude of court decisions that have enforced similar

7 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
8 The M&AA, which was signed by Charging Party Cardona, was
silent as to whether arbitration may be conducted on a class or collec-
tive basis. In finding the Respondent’s petition to compel individual
arbitration of Cardona’s claims unlawful, my colleagues rely on Coun-
trywide Financial Corp., 362 NLRB No. 165 (2015). In Countrywide
Financial, a Board majority decided that the employer violated the Act
by moving to compel individual arbitration based on an arbitration
agreement that, like the Respondent’s M&AA, was silent regarding the
arbitrability of class and collective claims. For the reasons stated in
Member Johnson’s dissent in Countrywide Financial, however, id., slip
op. at 8–10, the Board’s decision in that case is in conflict with the
FAA and Supreme Court precedent construing that statute. The Court
has held that a “party may not be compelled under the FAA to submit
to class arbitration unless there is a contractual basis for concluding that
the party agreed to do so.” Stolt-Nielsen S.A. v. Animal Feeds Interna-
tional Corp., 559 U.S. 662, 684–685 (2010) (emphasis in original).
Obviously, where an arbitration agreement is silent regarding class
arbitration, there is no such contractual basis. Thus, Respondent’s
petition to compel individual arbitration of Cardona’s claims was “well
founded in the FAA as authoritatively interpreted by the Supreme
Court.” Philmar Care, LLC d/b/a San Fernando Post Acute Hospital,
363 NLRB No. 57, slip op. at 4 fn. 11 (2015) (Member Miscimarra,
dissenting); see also Employers Resource, 363 NLRB No. 59, slip op.
at 3 fn. 9 (2015) (Member Miscimarra, dissenting); Countrywide Fi-
nancial, above, slip op. at 9 (Member Johnson, dissenting).
As explained in fn. 11 below, I concur in my colleagues’ finding that
the M&AA unlawfully interfered with the right of employees to allege
a violation of the NLRA through the filing of an unfair labor practice
charge with the NLRB. However, the unlawfulness of the M&AA in
this regard is not material to the merits of the Respondent’s state-court
petition to compel Charging Party Cardona to arbitrate his non-NLRA
claims. See Fuji Food Products, Inc., 363 NLRB No. 118, slip op. at 4,
4–5 fn. 13 (2016) (Member Miscimarra, concurring in part and dissent-
ing in part) (finding that employer lawfully enforced class-waiver
agreement by filing motion to compel arbitration of non-NLRA claims,
notwithstanding additional finding that agreement unlawfully interfered
with Board charge filing).
PRIME HEALTHCARE PARADISE VALLEY, LLC 5
agreements.9 As the Fifth Circuit recently observed—
after rejecting (for the second time) the Board’s position
regarding the legality of class waiver agreements—”[I]t
is a bit bold for [the Board] to hold that an employer who
followed the reasoning of our D.R. Horton decision had
no basis in fact or law or an ‘illegal objective’ in doing
so. The Board might want to strike a more respectful
balance between its views and those of circuit courts
reviewing its orders.”10 I also believe that any Board
finding of a violation based on the Respondent’s merito-
rious state court petitions to compel arbitration would
improperly risk infringing on the Respondent’s rights
under the First Amendment’s Petition Clause. See Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983);
BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002);
see also my partial dissent in Murphy Oil, above, 361
NLRB No. 72, slip op. at 33–35. Finally, for similar
reasons, I believe the Board cannot properly require the
Respondent to reimburse the Charging Parties and other
plaintiffs for their attorneys’ fees in the circumstances
presented here. Murphy Oil, above, 361 NLRB No. 72,
slip op. at 35.
Accordingly, as to these issues,11 I respectfully dissent.

9 See, e.g., Murphy Oil, Inc., USA v. NLRB, above;
Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D.
R. Horton, Inc. v. NLRB, above; Sutherland v. Ernst & Young LLP, 726
F.3d 290 (2d Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th
Cir. 2013).
10 Murphy Oil, Inc., USA v. NLRB, 808 F.3d at 1021.
11 For the following reasons, I concur in my colleagues’ finding that
the M&AA unlawfully interfered with NLRB charge filing in violation
of Sec. 8(a)(1). All new employees from at least July 25, 2012 until
May 13, 2014 were required to sign the M&AA, which in pertinent part
required employees to resolve by binding arbitration “all claims or
controversies for which a federal . . . court would be authorized to grant
relief,” including “claims for violation of any federal . . . statute.” For
the reasons stated in my separate opinion in Rose Group d/b/a Apple-
bee’s Restaurant, 363 NLRB No. 75, slip op. at 3–5 (2015) (Member
Miscimarra, concurring in part and dissenting in part), I believe that an
agreement may lawfully provide for the arbitration of NLRA claims,
and such an agreement does not unlawfully interfere with Board charge
filing, at least where the agreement expressly preserves the right to file
claims or charges with the Board or, more generally, with administra-
tive agencies. Here, however, the Agreement does not qualify in any
way the requirement that “all claims or controversies for which a feder-
al . . . court would be authorized to grant relief,” including “claims for
violation of any federal . . . statute,” must be resolved in binding arbi-
tration and in this manner only. Although the Board is not a federal
“court” (which might support an argument that this language does not
apply to Board proceedings), the enforcement of all Board orders is
effectuated by the federal courts of appeals. See Sec. 10(e). Moreover,
a paragraph in the M&AA headed “Claims Not Covered by This
Agreement” makes no mention of claims arising under the National
Labor Relations Act, and the M&AA affirmatively states that “[f]or
Claims covered by this Agreement, arbitration is the parties’ exclusive
legal remedy.” These provisions of the M&AA, taken together, appear
to preclude the filing of a Board charge, and nothing in the M&AA
states otherwise. For these reasons, I join my colleagues in finding that
Dated, Washington, D.C. April 22, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a Mediation and Arbitration
Agreement that our employees reasonably would believe
bars or restricts their right to file charges with the Na-
tional Labor Relations Board.
WE WILL NOT maintain and/or enforce a Mediation and
Arbitration Agreement or a Mutual Agreement to Arbi-
trate that requires our employees, as a condition of em-
ployment, to waive the right to maintain employment-
related class or collective actions in all forums, whether
arbitral or judicial.
WE WILL NOT enforce or apply a Mediation and Arbi-
tration Agreement in a manner that deprives our employ-
ees of the right to maintain class or collective actions in
all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.

the M&AA violates the Act by unlawfully restricting the filing of
charges with the Board. See U-Haul Co. of California, 347 NLRB 375,
377 (2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007); Murphy
Oil, above, slip op. at 22 fn. 4 (Member Miscimarra, dissenting in part);
GameStop Corp., 363 NLRB No. 89, slip op. at 6–7 (2015) (Member
Miscimarra, concurring in part and dissenting in part); Rose Group
d/b/a Applebee’s Restaurant, above (Member Miscimarra, concurring
in part and dissenting in part); Fuji Food Products, above, slip op. at 4
fn. 13 (2016) (Member Miscimarra, concurring in part and dissenting in
part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL, to the extent we have not already done so,
rescind the Mediation and Arbitration Agreement in all
its forms, or revise it in all its forms to make clear that
the Mediation and Arbitration Agreement does not con-
stitute a waiver of your right to maintain employment-
related joint, class, or collective actions in all forums and
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all former employees who were re-
quired to sign or otherwise become bound to the Media-
tion and Arbitration Agreement in any form and who we
stopped employing before May 13, 2014, that the Media-
tion and Arbitration Agreement has been rescinded or
revised and, if revised, WE WILL provide them a copy of
the revised agreement, and WE WILL further notify them
that the Mediation and Arbitration Agreement will not be
enforced in a manner that deprives them of their right to
maintain employment-related joint, class or collective
actions in all forums.
WE WILL rescind the Mutual Agreement to Arbitrate in
all its forms, or revise it in all its forms to make clear that
the Mutual Agreement to Arbitrate does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
Mutual Agreement to Arbitrate in any form that the Mu-
tual Agreement to Arbitrate has been rescinded or re-
vised and, if revised, WE WILL provide them a copy of the
revised agreement.
WE WILL reimburse Richard Cardona, Stephene Orte-
ga, and any other plaintiffs in the class action lawsuit
filed against us in California Superior Court, Case No.
37–2014–00011240–CU–OECTL, for any reasonable
attorneys’ fees and litigation expenses that they may
have incurred in opposing our petition to compel indi-
vidual arbitration and dismiss class claims.
PRIME HEALTHCARE PARADISE VALLEY, LLC
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-133781 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Jean C. Libby, Esq., for the General Counsel.1
Robert Mussig, Esq., for the Respondent.2
Janette C. Lee, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM NELSON CATES, Administrative Law Judge. These
cases were tried before me in San Diego, California, on Febru-
ary 23, 2015.3 The charge initiating Case 21–CA–133781 was
filed by Richard Cardona (Cardona) on July 29, and the charge
initiating Case 21–CA–133783 was filed by Stephene Ortega
(Ortega) that same date. After its investigation, the Govern-
ment, on November 20, issued an order consolidating cases,
consolidated complaint and notice of hearing, (the complaint).
The complaint alleges the Hospital, since at least January 31,
has maintained as a condition of employment for all its em-
ployees at its National City, California facility, an agreement
entitled “Mediation and Arbitration Agreement” (Arbitration
Agreement) that contains provisions requiring employees to
resolve employment-related disputes exclusively through medi-
ation and arbitration proceedings. Additionally, it is alleged
that, since at least January 31, employees would reasonably
conclude the provisions of the Arbitration Agreement would
restrict access to the Board and its processes. It is alleged that,
on or about July 25, 2012, Cardona, as a condition of his em-
ployment with the Hospital at its National City facility, signed
the Arbitration Agreement. Further, it is alleged the Hospital,
since April, has maintained as a condition of employment for
all its National City facility employees, a revised arbitration
agreement, entitled “Mutual Agreement to Arbitrate” (Updated
Agreement) that contains provisions requiring employees to
resolve employment-related disputes exclusively through indi-
vidual arbitration proceeding and to relinquish any rights they
have to resolve disputes through collective or class action. It is
also alleged that since April, employees would reasonably con-
clude that the provisions of the Updated Agreement would
preclude them from engaging in conduct protected by Section 7
of the National Labor Relations Act (the Act). On April 16,
Ortega, as a condition of her employment with the Hospital, at
its National City facility, signed the Updated Agreement. It is
alleged that since on or about July 9, the Hospital has sought to
enforce the Arbitration Agreement and the Updated Agreement
by filing Petitions to Compel Arbitration on an Individual Basis

1 I shall refer to counsel for the General Counsel as counsel for the
Government and to the General Counsel as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Hos-
pital and to the Respondent as the Hospital.
3 All dates are 2014, unless indicated otherwise.
PRIME HEALTHCARE PARADISE VALLEY, LLC 7
in San Diego County California Superior Court. It is alleged the
actions set forth above constitute violations of Section 8(a)(1)
of the Act.
The Hospital in its answer to the complaint, at trial and in its
posttrial brief denies having violated the Act in any manner
alleged in the complaint.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. The parties entered into a written 9
page, 19 paragraphs (with certain subparagraphs and attach-
ments) stipulation of facts which was received into the record
as an exhibit (Government Exh. 2) after which the Government
and the Charging Parties rested. The Hospital called one wit-
ness and rested. I have studied the whole record, the posttrial
briefs, and the authorities cited. I conclude and find the Hospi-
tal violated the Act substantially as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION AND SUPERVISORY/AGENCY STATUS
It is stipulated the Hospital is a Delaware limited liability
company, with an office and place of business located in Na-
tional City, California, where it is engaged in the business of
operating an acute care hospital located at 2400 East 4th Street.
During the 12-month period ending on September 19, a repre-
sentative period, the Hospital, in conducting its operations de-
rived gross revenues in excess of $250,000 and purchased and
received at its National City, California facility goods valued in
excess of $50,000 directly from points outside the State of Cali-
fornia. The parties stipulate and I find the Hospital is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and a health care institution within
the meaning of Section 2(14) of the Act.
The parties stipulated Lorraine Villegas is, and since 2008
has been, the Hospital’s regional human resources manager
(HR Manager Villegas) and is a supervisor and agent of the
Hospital within the meaning of Section 2(11) and (13) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts
The operative facts, by stipulation of the parties and testimo-
ny of the one witness called, are not in dispute and are set forth
below. In the stipulation of facts the parties provided, as at-
tachments, the actual documents described in the stipulations,
which documents were received in evidence.
The Hospital has, from at least July 25, 2012, until May 13,
maintained, as a condition of employment, at the National City
facility for all of its employees an agreement entitled “Media-
tion and Arbitration Agreement,” that contains provisions re-
quiring employees to resolve employment-related disputes as
set forth in the “Mediation and Arbitration Agreement” exclu-
sively through mediation and arbitration proceedings. The
provisions in question follow:
2 Agreement to Arbitrate; Designated Claims
. . . . . Except as otherwise provided in this Agreement, the
Company and the Employee hereby consent to the resolution
by binding arbitration of all claims or controversies for which
a federal or state court would be authorized to grant relief,
whether or not arising out of, relating to or associated with the
Employee's employment with the Company.
Claims covered by this Agreement include, but are not limited
to, claims for wages or other compensation due; claims for
breach of any contract or covenant, express or implied; tort
claims; claims for discrimination or harassment on bases
which include but are not limited to race, sex, sexual orienta-
tion, religion, national origin, age, marital status, disability or
medical condition; claims for benefits, (except as excluded in
paragraph 9), and claims for violation of any federal, state or
other governmental constitution, statute, ordinance, regula-
tion, or public policy including but not limited to Title VII of
the Civil Rights Act, Age Discrimination in Employment Act,
The Americans with Disabilities Act, Family and Medical
Leave Act, Equal Pay Act and their state equivalents. The
purpose and effect of this Agreement is to substitute arbitra-
tion as the forum for resolution of the Claims; all responsibili-
ties of the parties under the statutes applicable to the Claims
shall be enforced.
The Hospital’s employment complement has been approxi-
mately 1200 with an employee turnover rate of 01.8 percent
annually. All new employees from 2010 until May 2014 have,
as a condition of their employment, signed the Hospital’s Arbi-
tration Agreement. In 2014 the Hospital stopped using the
Arbitration Agreement form and commenced using the Updated
Agreement. Villegas stated Cardona was required to sign the
Arbitration Agreement at the time he was hired in July 2012.
The human resources department handles all legal claims
filed at the Hospital involving administrative charges. HR
Manager Villegas never knew of the Hospital attempting to use
the Arbitration Agreement to compel arbitration of a charge
filed with the National Labor Relations Board (the Board) nor
to discourage employees from filing such charges. The Hospital
has never sought, during Villegas’ tenure, to use the Arbitration
Agreement to compel arbitration of any charge filed with ad-
ministrative agency. According to HR Manager Villegas, there
were six charges filed with administrative agencies, namely the
Equal Employment Opportunity Commission (EEOC) and
California’s Department of Fair Employment and Housing,
from 2010 until May 2014. Villegas was not sure if all six em-
ployees had signed the Arbitration Agreement, as it depended
on when the employees were hired, but some had. Cardona and
Ortega were not included in the six persons filing administra-
tive charges; however, when they are included, four were repre-
sented by counsel and four were not. HR Manager Villegas
testified the Hospital never posted any notices to employees at
the Hospital informing them they were not forbidden from fil-
ing charges with the Board nor did the Hospital post anything
about Board charges.
Cardona was employed as a patient account registrar by the
Hospital at its National City facility from July 31, 2012, until
he resigned effective March 8, and as a condition of his em-
ployment with the Hospital, on or about July 25, 2012, received
and signed the “Mediation and Arbitration Agreement.”
Since at least May 13, the Hospital has required all of its
employees at the National City facility to sign, and has main-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
tained as a condition of employment for all of its employees at
the National City facility, a revised arbitration agreement, enti-
tled “Mutual Agreement to Arbitrate [Updated Agreement],”
requiring employees to resolve employment-related disputes as
set forth in the “Mutual Agreement to Arbitrate” exclusively
through individual arbitration proceedings and to waive any
right they have to file, maintain or seek to resolve such disputes
through class or collective action. The provisions in question
follow:
Section 4: Claims Subject to Arbitration The “Claims”
covered by this Agreement include, but are not limited to. . . .
the California Labor Code, and the California Wage Orders…
Section 5 Arbitration of Individual Claims Only
All Claims covered by this Agreement must be submitted on
an individual basis. No claims may be arbitrated on a class,
representative, or collective basis. The Parties expressly waive
any right with respect to any covered Claims to submit, initi-
ate, or participate in a representative capacity, or as a plaintiff,
claimant or member in a class action, collective action or oth-
er representative or joint action, regardless of whether the ac-
tion is filed in arbitration or in court.
Section 5.1: No Class Or Collective Action Claims
By signing this agreement, the parties agree that each may
bring and pursue claims against the other only in their indi-
vidual capacities, and may not bring, pursue, or act as a plain-
tiff or class member, in any purported class or collective pro-
ceeding.
Section 5.2: No Representative Action Claims
The parties further agree that neither party may bring, pursue,
or act as a plaintiff or representative in any purported repre-
sentative proceeding or action, including any claims under the
California private attorneys general act, or otherwise partici-
pate in any such representative proceeding or action other
than on an individual basis.
Section 5.3: NLRA Claims
Notwithstanding the unavailability of class, representative, or
collective arbitration under this Agreement, nothing herein is
intended to limit your rights under Section 7 of the National
Labor Relations Act and you will not experience any retalia-
tion for exercising such rights.
Since about 2007, Ortega has been employed as a respiratory
care practitioner by the Hospital at the National City facility.
About May 13, Ortega, as a condition of her employment with
the Hospital, signed the “Mutual Agreement to Arbitrate.”
About April 14, Ortega filed a class action complaint against
the Hospital in San Diego County Superior Court, in the case
Stephene Ortega vs. Prime Healthcare Paradise Valley, LLC,
Civil Case No. 37–2014–00011240–CU–OECTL, alleging,
inter alia, wage-and-hour claims under the California Labor
Code, on behalf of herself and on behalf of a class or classes of
purportedly similarly-situated current and former employees of
the Hospital.
About June 20, Ortega and Cardona filed an amended com-
plaint in the action described above which added Cardona as a
named plaintiff and added other causes of action under the
California Labor Code.
About July 10, the Hospital filed Petitions to Compel Indi-
vidual Arbitration of the claims asserted by Ortega and Cardona
in the first amended class action complaint, described above, in
San Diego County Superior Court, Case No. 37–2014–
00011240–CU–0E–CTL.
On November 6, Ortega and Cardona filed Oppositions to
the Hospital’s Petitions to Compel Individual Arbitration.
On November 14, the Hospital filed Reply Briefs in support
of its Petitions to Compel Individual Arbitration.
On November 21, the San Diego County Superior Court is-
sued a tentative ruling, granting Respondent's Petitions to
Compel Individual Arbitration.
On November 21, the San Diego County Superior Court con-
firmed the tentative ruling described above in a minute order.
The parties also stipulated to the following brief position
statements with additional positions covered in their posttrial
briefs:
The Government takes the position the Hospital enforced the
provisions of the “Mediation and Arbitration Agreement” and
the “Mutual Agreement to Arbitrate,” described above, by fil-
ing the Petitions and supporting documents, alluded to above,
in order to compel Cardona and Ortega to arbitrate their
claims not on a class or collective basis but individually, and,
in doing so violated Section 8(a)(1) of the Act, because it pro-
hibited employees from filing, maintaining or seeking to re-
solve employment-related disputes through class or collective
action.
The Hospital takes the position that the “Mediation and Arbi-
tration Agreement” and the “Mutual Agreement to Arbitrate”
are lawful under AT&T Mobility LLC V. Concepcion (2011),
131 S. Ct. 174; Am. Express Co. v. Italian Colors Rest. (2013),
133 S. Ct. 2304, D.R. Horton, Inc. v. NLRB (5th Cir. 2013), 737
F.3d 344; Owen v. Bristol Care, Inc., 702 F.3d 1050, 1055, (8th
Cir. 2013); Sutherland v. Ernst & Young LLP 726 F.3d 290 (2d
Cir. 2013), and a host of other authorities, and that its actions
taken to enforce these agreements in connection with Cardona
and Ortega's lawsuit, including its filing of the Petitions and
supporting documents described above, were not unlawful.
Additionally, the Government takes the position that the
“Mediation and Arbitration Agreement” described above also
violates Section 8(a)(1) of the Act because employees would
reasonably believe it restricts their access to the Board and its
processes.
The Hospital’s position is that employees would not reason-
ably believe the “Mediation and Arbitration Agreement” re-
stricts their access to the Board and/or its processes because it
specifically states it only applies to claims and disputes that
would otherwise be “litigated in a court or by jury trial,” and
therefore does not apply to administrative agency proceedings.
STATEMENT OF THE ISSUES
The Parties stipulate the following issues be decided by the
Judge. Usually, the issues to be decided by the trial judge are
framed by the pleadings; however, the Parties stipulated issues
closely track those raised by the pleadings and I therefore will
decide the issues that follow:
PRIME HEALTHCARE PARADISE VALLEY, LLC 9
1. Whether the Hospital’s maintenance of the “Mediation
and Arbitration Agreement,” as a condition of employment
from at least January 31, until approximately May 13, violates
Section 8(a)(1) of the Act because it prohibits employees from
filing, maintaining, or seeking to resolve employment-related
disputes through class or collective action.
2. Whether the Hospital’s maintenance of the “Mediation
and Arbitration Agreement,” as a condition of employment
from at least January 31, until approximately May 13, violates
Section 8(a)(1) of the Act because employees would reasonably
believe that it restricts their access to the Board and its process-
es.
3. Whether the Hospital’s maintenance of the “Mutual
Agreement to Arbitrate,” as a condition of employment and
continued employment from at least May 13, violates Section
8(a)(1) of the Act because it prohibits employees from filing,
maintaining or seeking to resolve employment-related disputes
through class or collective action.
4. Whether the Hospital violated Section 8(a)(1) of the Act
by filing Petitions to Compel Arbitration in San Diego County
Superior Court on July 9, so as to preclude Cardona and Ortega
from pursuing, on a class or collective action basis, the claims
alleged in their first amended class-action complaint filed in
San Diego County Superior Court.
Analysis
As indicated elsewhere here, the Government alleges the
Hospital violated Section 8(a)(1) of the Act by maintenance of
its Arbitration Agreement, as a condition of employment, from
at least July 25, 2012, to May 2014, because it prohibits em-
ployees from filing, maintaining, or seeking to resolve em-
ployment-related claims through class or collective action; and,
separately that the Hospital’s maintenance of its Arbitration
Agreement violates Section 8(a)(1) of the Act, during the appli-
cable period, because employees would reasonably believe it
restricts their access to the Board and its processes. I agree,
and find, both violations with respect to the Arbitration Agree-
ment.
It is clear, from at least July 25, 2012, to May 2014, the Hos-
pital maintained, as a condition of employment, its Arbitration
Agreement. Patient account registrar employee Cardona signed
the Arbitration Agreement on July 25, 2012.
Whether the Hospital’s Arbitration Agreement violates Sec-
tion 8(a)(1) of the Act involves an application of the Board’s
decisions in D. R. Horton, Inc., 357 NLRB 2277 (2012), enf.
denied in relevant part 737 F.3d 344 (5th Cir. 2013), petition
for rehearing en banc denied (5th Cir. No. 12–60031, April 16,
2014); Murphy Oil USA, Inc., 361 NLRB No. 72 (2014); and
Cellular Sales of Missouri, LLC, 362 NLRB No. 27 (2015). In
these cases, and, as specifically stated in D. R. Horton (the
Board reaffirmed the relevant holdings of D. R. Horton in Mur-
phy Oil) the Board concluded an employer violates Section
8(a)(1) of the Act by maintaining and enforcing a mandatory
and binding arbitration policy that waives the rights of employ-
ees to maintain class or collective actions in all forums, whether
arbitral or judicial because “the right to engage in collective
action—including collective legal action—is the core substan-
tive right protected by the NLRB and is the foundation on
which the Act and Federal labor policy rests” D. R. Horton,
357 NLRB 2277, 2286 (emphasis in original). The Board in
Murphy Oil clearly explained it was protecting a substantive
right:
For almost 80 years, Federal labor law has protected the right
of employees to pursue their work-related legal claims togeth-
er, i.e., with one another, for the purpose of improving their
working conditions. The core objective of the National Labor
Relations Act is the protection of workers’ ability to act in
concert, in support of one another. Section 7 of the Act im-
plements that objective by guaranteeing employees the “right
. . . to engage in . . . concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.” Our na-
tional labor policy—aimed at averting “industrial strife and
unrest” and “restoring equality of bargaining power between
employers and employees”—has been built on this basic
premise. In protecting a substantive right to engage in collec-
tive action—the basic premise of Federal labor policy—the
National Labor Relations Act is unique among workplace
statutes.
Murphy Oil. at 2277 [footnotes omitted].
Section 7 of the Act protects the right of employees to file
charges with the Board or otherwise access the Board’s pro-
cesses. Bill’s Electric, Inc., 350 NLRB 292, 296 (2007); U-
Haul Co. of California, 347 NLRB 375, 377 (2006), enfd.
mem. 255 Fed. Appx. 527 (D.C. Cir 2007); D. R. Horton, 357
NLRB 2277, 2278. Although the Arbitration Agreement here
does not specifically state employees may not file charges with
the Board, a rule which does not explicitly restrict Section 7
rights may, nevertheless, violate the Act if employees would
reasonably construe the language to prohibit Section 7 activity.
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004).
I find the language of the Arbitration Agreement prohibits
employees from filing, maintaining or seeking to resolve em-
ployment-related claims through class or collective action and
also would reasonably be construed by employees to prohibit or
restrict their Section 7 right to file an unfair labor practice
charge. The language broadly mandates arbitration of “all
claims or controversies for which a federal or state court would
be authorized to grant relief” and includes, but is not limited to,
“claims for wages or other compensation due,” “claims for
discrimination,” and “claims for violation of any federal, state
or other governmental constitution, statute, ordinance, regula-
tion, or public policy including but not limited to Title VII of
the Civil Rights Act, Age Discrimination in Employment Act,
the Americans with Disabilities Act, Family and Medical Leave
Act, Equal Pay Act and their state equivalents.” I note, in
agreement with the Government, that its reach is not limited to
claims that originate or arise in Federal or State court, but, ra-
ther applies to all claims for which a Federal or State court is
authorized to grant relief notwithstanding where the claims
were originally filed.
Board decisions are enforced by United States courts of ap-
peal and that fact alone places employees in a position where
they could construe the Arbitration Agreement as precluding
them from filing charges with the Board. Further, it is from the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
all-inclusive language of the Arbitration Agreement, that em-
ployees reasonably could construe it to cover unfair labor prac-
tice claims arising from their employment relation. Cellular
Sales of Missouri, LLC, 362 NLRB No. 27, slip op. at 1 fn. 4
(2015) (work rule reasonably construed to interfere with ability
to file charges with Board even if rule did not expressly prohib-
it access to Board). The Board noted, in Flex Frac Logistics,
LLC, 358 NLRB 1131, 1132 (2012), long before it restated
same in Murphy Oil, slip op. at 19, that Board law is settled that
ambiguous employer rules, including those in arbitration
agreements, are construed against the employer that crafted the
rules.
The Hospital’s contention the Arbitration Agreement does
not apply to administrative charges filed with an agency, such
as the Board, because it “only applies to claims that would be
asserted in a court” and “[a]ny suggestion that a ‘reasonable
person’ would not know the difference [between a court and an
administrative agency] insults the intelligence of the Hospital’s
employees and contradicts the facts established at trial” does
not save the Arbitration Agreement rule here. The Board does
not assume employees have specialized legal knowledge which
could be employed in understanding such clauses, to exclude
NLRB claims. For instance, the Board found language limiting
a compulsory arbitration rule to claims “that may be lawfully
resolve[d] by arbitration” would not be reasonably understood
by employees to exclude unfair labor practice charges from the
scope of the agreement. 2 Sisters Food Group, 357 NLRB
1816, 1816–1817, 22 (2011); see also U-Haul, supra, 347
NLRB at 377–378.
The fact HR Manager Villegas never knew of the Hospital
attempting to compel arbitration of a charge filed with the
Board, nor, knew of the Hospital attempting to discourage em-
ployees from filing charges with the Board does not save the
rule. The issue is whether a reasonable employee would con-
strue the rule as prohibiting access to the Board. The fact some
employees filed charges with the Equal Employment Oppor-
tunity Commission and California’s Department of Fair Em-
ployment and Housing does not require a different conclusion
than I reach here. The fact the Hospital may never have intend-
ed its Arbitration Agreement to apply to administrative pro-
ceedings does, in no way, save the rule as there is no evidence
such was ever communicated to the employees.
In summary, I find the Hospital violated Section 8(a)(1) of
the Act by maintenance of its Arbitration Agreement, as a con-
dition of employment, from at least July 25, 2012, to May
2014, because it prohibits employees from filing, maintaining,
or seeking to resolve employment-related claims through class
or collective action; and, separately the Hospital’s maintenance
of its Arbitration Agreement violates Section 8(a)(1) of the Act
because employees would reasonably believe it restricts access
to the Board and its processes. I will hereinafter address more
fully the Hospital’s defenses to the class action portion of its
agreements, rather than doing so twice—once here—and again
in the next section of my decision.
As indicated elsewhere here, the Government alleges the
Hospital is in violation of Section 8(a)(1) of the Act by main-
taining, from at least May to the present, its Updated Agree-
ment, as a condition of employment for all its employees, be-
cause it prohibits employees from filing, maintaining, or seek-
ing to resolve employment-related claims through class or col-
lective action.
Respiratory care practitioner employee Stephene Ortega, as a
condition of her employment, signed, on May 13, the Updated
Agreement. As demonstrated by the provisions of the Updated
Agreement, set forth elsewhere here, the agreement expressly
prohibits class or collective litigation. Additionally, the parties
stipulated the Updated Agreement requires “employees to re-
solve employment related disputes as set forth in the ‘Mutual
Agreement to Arbitrate’ exclusively through individual arbitra-
tion proceedings and to waive any right they have to file, main-
tain or seek to resolve such disputes through class or collective
action.”
Again a brief summary of portions of the parties’ positions
on this specific issue is helpful at this point.
The Hospital contends that the Federal Arbitration Act
(FAA), 9 U.S.C. § 1 et seq., preempts any National Labor Rela-
tions Act rule prohibiting class or collective action waivers in
arbitration agreements such as at issue here. The Hospital
notes, citing CompuCredit Corp. v. Greenwood, 132 S.Ct. 665,
669 (2012), the FAA proclaims a strong policy in favor of arbi-
tration, and quotes the Supreme Court in AT&T Mobility LLC v.
Concepcion, 131 S.Ct. 1740, 1749 (2011), that “the FAA was
designed to promote arbitration.” The Hospital contends the
FAA requires enforcement of arbitration agreements according
to their terms citing Dean Witter Reynolds, Inc. v. Byrd, 470
U.S. 213, 221 (1985). The Hospital further contends where the
FAA’s goals clash with those of another Federal statute the
FAA’s mandate in favor of arbitration prevails unless it “has
been overridden by a contrary congressional command.” Amer-
ican Express v. Italian Colors Rest., 133 U.S. S.Ct. 2304
(2013). The Hospital notes the U.S. Court of Appeals for the
Fifth Circuit rejected the Board’s Horton decision, D. R. Hor-
ton, Inc. v. NLRB, 737 F 3d 344 (5th Cir. 2013), and the
Board’s Horton decision has been viewed as unpersuasive, in
decisions of the Second (Sutherland v. Ernst & Young, LLP,
726 F.3d 290 (2d Cir. 2013)), and Eighth (Owens v. Bristol
Care, Inc., 702 F.3d 1050 (8th Cir, 2013)), circuits. The Hospi-
tal references more than 40 other cases of courts across the
nation which have examined the same issue as here and “virtu-
ally all” concluded class or collective action waivers enforcea-
ble. The Hospital urges “class action waivers are entirely per-
missible under binding U.S. Supreme Court authority” and the
Board’s D. R. Horton and Murphy Oil decisions are incon-
sistent with that authority and must be disregarded. The Hospi-
tal urges I find the arbitration agreements here valid and bind-
ing.
The Government contends the Hospital’s requiring its em-
ployees, as a condition of employment, to waive filing joint,
class, or collective claims addressing their wages, hours, or
other working conditions in any forum, such as the case here,
violates Section 8(a)(1) of the Act. The Government asserts, for
the reasons explained in D. R. Horton, Inc. and Murphy Oil, the
Board has concluded there is no conflict between the Federal
Arbitration Act and the National Labor Relations Act because §
2 of the FAA “provides that arbitration agreements may be
invalidated in whole or in part” for the same reason any con-
PRIME HEALTHCARE PARADISE VALLEY, LLC 11
tract may be invalidated, including they are unlawful or contra-
ry to public policy. The Government urges the arbitration
agreements here are unlawful under the Act, against public
policy, and, should not be enforceable under the FAA. The
Government contends the Board, in its two-above cases, em-
phasized that an arbitration policy which prohibits collective or
class action is unlawfully, does not conflict with the FAA, be-
cause the “intent of the FAA was to leave substantive rights
undisturbed.” Thus the Government urges the arbitration
agreements here, as enforced, are unlawful because they pro-
hibit employees from exercising their Section 7 right to engage
in concerted activity, a substantive right, which the Supreme
Court in Eastex, Inc. v. NLRB, 437 U.S. 556, 567 (1978), held
includes “seek[ing] to improve working conditions through
resort to administrative and judicial forums.”
The Government specifically notes the concern here is not
with the FAA or with arbitration. The Government points out
Board rulings neither evince nor or they motivated by any hos-
tility to arbitral resolution of disputes, nor does the Government
take the position employees cannot be required to arbitrate their
work-related disputes. The Government contends the illegality
here is that such work-related claims must be arbitrated indi-
vidually, and when such a requirement is insisted upon, as a
condition of employment, it contravenes substantive rights
protected by Section 7 of the Act.
Further guidance from the Board’s Murphy Oil case is ap-
propriate at this point. In its decision the Board concluded “an
employer violates the National Labor Relations Act ‘when it
requires employees covered by the Act, as condition of their
employment, to sign an agreement that precludes them from
filing joint, class, or collective claims addressing their wages,
hours, or other working conditions against the employer in any
forum, arbitral or judicial’” [footnote omitted]. The Board
held:
The Board reached this result relying on the substantive right,
at the core of the Act, to engage in collective action to im-
prove working conditions. It did so “notwithstanding the
Federal Arbitration Act (FAA), which generally makes em-
ployment related arbitration agreements judicially enforcea-
ble,” finding no conflict, under the circumstances, between
Federal labor law and the FAA. “Arbitration [under the FAA]
is a matter of consent, not coercion,” and a valid arbitration
agreement may not require a party to prospectively waive its
“right to pursue statutory remedies.” But arbitration agree-
ments that are imposed as a condition of employment, and
that compel NLRA-covered employees to pursue workplace
claims against their employer individually, do require those
employees to forfeit their substantive right to act collective-
ly—and so nullify the foundational principle that has consist-
ently informed national labor policy as developed by the
Board and the courts. To be clear, the NLRA does not create a
right to class certification or the equivalent, but as the D. R.
Horton Board explained, it does create a right to pursue joint,
class, or collective claims if and as available, without the in-
terference of an employer-imposed restraint. This case turns
on the issue decided in D. R. Horton. The Respondent urges
us to overrule that decision, which has been rejected by the
U.S. Court of Appeals for the Fifth Circuit and viewed as un-
persuasive in decisions of the Second and Eighth Circuits
(although the analysis by those courts was abbreviated).
Scholarly support for the Board’s approach, by contrast, has
been strong. We have independently reexamined D. R. Hor-
ton, carefully considering the Respondent’s arguments, ad-
verse judicial decisions, and the views of our dissenting col-
leagues. Today we reaffirm that decision. Its reasoning and its
result were correct, as we explain below, and no decision of
the Supreme Court speaks directly to the issue we consider
here. “The substantive nature of the right to group legal re-
dress is what distinguishes the NLRA from every other statute
the Supreme Court has addressed in its FAA jurisprudence,”
and the Fifth Circuit itself acknowledged the “force of the
Board’s efforts to distinguish the NLRA from all other stat-
utes that have been found to give way to requirements of arbi-
tration.” Having reaffirmed the D. R. Horton rationale, we
apply it here to find that the Respondent has violated Section
8(a)(1) of the Act by requiring its employees to agree to re-
solve all employment-related claims through individual arbi-
tration, and by taking steps to enforce the unlawful agree-
ments in Federal district court when the Charging Party and
three other employees filed a collective claim against the Re-
spondent under the Fair Labor Standards Act. [footnotes omit-
ted]
As can be seen from the above, the Board, in card parlance,
“doubled down” on its D. R. Horton, supra, case rationale. The
Board in Murphy Oil, supra, clearly and expressly reaffirmed
D. R. Horton, concluding it’s decision was straightforward,
clearly articulated and well supported and noted, with due re-
spect to the courts that have rejected its D. R. Horton rationale,
it would adhere to it and protect workers’ core substantive
rights under the Act. The Board in Murphy Oil expressly con-
cluded an employer violates Section 8(a)(1) of the Act by re-
quiring, as is the case here, employees to waive their substan-
tive right to collectively pursue employment-related claims in
all forums, arbitral and judicial. The Board also concluded its
views and rationale were consistent with well-established inter-
pretation of the Act and not in conflict with the Federal Arbitra-
tion Act. The Board specifically explained its rationale in light
of the decision of the Fifth Circuit, the only Federal appellate
court to have examined D. R. Horton directly on review, and, to
have articulated its view the Board erred in D. R. Horton. The
Board opined the Fifth Circuit understood D. R. Horton as
simply another in a series of cases to be decided under the es-
tablished framework of the Supreme Court’s Federal Arbitra-
tion Act jurisprudence, and not as a case presenting novel ques-
tions. The Board expressed it could not accept the Fifth Cir-
cuit’s conclusion that the pursuit of legal claims concertedly
under Section 7 of the Act is not a protected substantive right.
The Board stated “we think the D. R. Horton Board was clearly
correct when it observed that the ‘right to engage in collective
action—including collective legal action—is the core substan-
tive right protected by the NLRA and is the foundation on
which the Act and Federal labor policy rest.’”
In summary, I find the Hospital has violated and continues to
violate Section 8(a)(1) of the Act by maintaining its arbitration
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
agreements that requires all its employees to waive their sub-
stantive right to collectively pursue employment-related claims
in all forums, arbitral and judicial.
I also find the Hospital violated Section 8(a)(1) of the Act by
filing petitions to compel individual arbitration by Ortega and
Cardona in response to class action claims filed on April 14 by
Ortega and Cardona in San Diego County Court alleging wage-
and-hour claims against the Hospital under the California Labor
Code. It is well established an employer’s enforcement of an
unlawful rule, such as the mandatory arbitration agreement
rules at issue here, independently violates the Act. Cellular
Sales of Missouri, LLC, 362 NLRB No. 27, slip op at 2 (2015)
(an employer’s enforcement of an unlawful rule, including a
mandatory arbitration policy independently violates Section
8(a)(1) ).
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By maintaining a mandatory arbitration agreement that
employees reasonably would believe bars them from filing
charges with the National Labor Relations Board, and by main-
taining and/or enforcing its mandatory arbitration agreements
under which employees are compelled, as a condition of em-
ployment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial, the Hospital
has engaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act, and has vio-
lated Section 8(a)(1) of the Act.
REMEDY
Having found the Hospital has engaged in certain unfair la-
bor practices, I recommend it be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. Consistent with the Board’s usual practice
in cases involving unlawful litigation, I recommend the Hospi-
tal be ordered to reimburse Cardona and Ortega for all reasona-
ble expenses and legal fees, with interest, incurred in opposing
the Hospital’s unlawful motion to dismiss their collective
wage-and-hour claims under the California Labor Code and to
compel individual arbitration. See Bill Johnson’s Restaurants,
Inc. v. NlRB, 461 U.S. 731, 747 (1983) (“If a violation is found,
the Board may order the employer to reimburse the employees
whom he had wrongfully sued for their attorneys’ fees and
other expenses” as well as “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 6 (2010). See Teamsters Local 776
(Rite Aid Corp.), 305 NLRB 832, 835 fn. 10 (1991), enfd. 973
F.2d 230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993) (“[I]n
make-whole orders for suits maintained in violation of the Act,
it is appropriate and necessary to award interest on litigation
expenses.”), I recommend the Hospital also be ordered to re-
scind or revise its Mediation and Arbitration Agreement and its
Mutual Agreement to Arbitrate and to notify employees and the
San Diego California Superior Court that it has done so, and to
inform the Court that it no longer opposes Cardona’s and Orte-
ga’s claims on the basis of either or both of the arbitration
agreements.
ORDER
The Hospital, Prime Healthcare Paradise Valley, LLC, Na-
tional City, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that em-
ployees reasonably would believe bars or restricts the right to
file charges with the Board.
(b) Maintaining and/or enforcing mandatory arbitration
agreements that require employees, as a condition of employ-
ment, to waive the right to maintain class or collective actions
in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the Mediation and Arbitration Agreement and
the Mutual Agreement to Arbitrate in all of its forms, or revise
all of its forms to make clear to employees that the Mediation
and Arbitration Agreement and/or the Mutual Agreement to
Arbitrate do not constitute waivers of their right to maintain
employment related joint, class, or collective actions in all fo-
rums, and that it does not restrict employees’ right to file
charges with the Board.
(b) Notify all applicants and current and former employees
who were required to sign the Mediation and Arbitration
Agreement and/or the Mutual Agreement to Arbitrate that the
agreements have been rescinded or revised and, if revised, pro-
vide them a copy of the revised agreement.
(c) Notify the San Diego County California Superior Court,
in the case Stephene Ortega and Richard Cardona vs. Prime
Healthcare Paradise Valley LLC, Case No. 37–2014–
00011240–CU–OE–CTL, that it has rescinded or revised its
Mediation and Arbitration Agreement and its Mutual Agree-
ment to Arbitrate upon which it based its motion to compel
arbitration on an individual rather than classwide basis of Orte-
ga’s and Cardona’s claims, including their wage-and-hour
claims under the California Labor Code, and inform the Court
that it no longer opposes Ortega’s and Cardona’s actions on the
basis of one or both of those arbitration agreements.
(d) In the manner set forth in the remedy section of this de-
cision, reimburse Ortega and Cardona for any reasonable attor-
neys’ fees and litigation expenses they may have incurred in
opposing the Hospital’s motion to compel arbitration on an
individual rather than classwide basis.
(e) Within 14 days after service by the Region, post at its
National City, California facility, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
PRIME HEALTHCARE PARADISE VALLEY, LLC 13
the Hospital’s authorized representative, shall be posted by the
Hospital and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, or other elec-
tronic means, if the Hospital customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Hospital 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, the Hospital has gone out of
business or closed the facility involved in these proceedings,
the Hospital shall duplicate and mail, at its own expense, a copy
of the notice marked “Appendix” to all current employees and
former employees employed by the Hospital at any time since
January 31, 2014.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 21 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Hospital has taken to comply.
Dated, Washington, D.C. May 8, 2015
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain a mandatory arbitration agreement
that our employees would reasonably believe bars or restricts
their right to file charges with the Board.
WE WILL NOT maintain and/or enforce our Mediation and Ar-
bitration Agreement and/or the Mutual Agreement to Arbitrate
that requires our 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 in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind our Mediation and Arbitration Agreement
and the Mutual Agreement to Arbitrate in all of its forms, or
revise it in all of its forms to make clear that the Mediation and
Arbitration Agreement and the Mutual Agreement to Arbitrate
do not constitute a waiver of your right to maintain employ-
ment-related joint, class, or collective actions in all forums, and
that it does not restrict your right to file charges with the Board.
WE WILL notify all applicants and current and former em-
ployees who were required to sign our Mediation and Arbitra-
tion Agreement and/or our Mutual Agreement to Arbitrate
forms that the forms have been rescinded or revised and, if
revised, provide them a copy of the revised agreement.
WE WILL notify the San Diego County California Superior
Court, in the case Stephene Ortega and Richard Cardona vs.
Prime Healthcare Paradise Valley LLC, Case No. 37–2014–
00011240–CU–OE–CTL, that we have rescinded or revised our
Mediation and Arbitration Agreement and our Mutual Agree-
ment to Arbitrate, upon which we based our motion to compel
arbitration on an individual rather than a class-wide basis the
claims therein, including the wage-and-hour claims under the
California Labor Code, and WE WILL inform the court we no
longer oppose Ortega’s and Cardona’s claims based on those
arbitration agreements.
WE WILL reimburse Ortega and Cardona for any reasonable
attorneys’ fees and litigation expenses they may have incurred
in opposing our motion to compel arbitration on an individual
rather than a classwide basis their claims, including their wage-
and-hour claims under the California Labor Code.
PRIME HEALTHCARE PARADISE VALLEY, LLC