AFSCME COUNCIL 5, LOCAL 3558 (ST. LUKE'S HOSPITAL OF DULUTH, INC. D/B/A ST. LUKE'S HOME CARE)

National Labor Relations Board - Board Decisions

Jun 10, 2016

364 NLRB No. 25 (N.L.R.B. 2016)

364 NLRB No. 25
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.
AFSCME Council 5, Local 3558 and St. Luke’s Hos-
pital of Duluth, Inc. d/b/a St. Luke’s Home
Care. Case 18–CB–149410
June 10, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
Upon a charge filed April 3, 2015,1 by St. Luke’s Hos-
pital of Duluth, Inc. d/b/a St. Luke’s Home Care (the
Employer), the General Counsel issued a complaint and
notice of hearing on May 28 alleging that AFSCME
Council 5, Local 3558 (the Respondent) has been violat-
ing Section 8(b)(3) of the Act by failing and refusing to
bargain collectively and in good faith with the Employer.
On June 10, the Respondent filed an answer in which it
denied the commission of any unfair labor practices and
asserted various affirmative defenses.
On August 26, the Respondent, the Employer, and the
General Counsel filed a joint motion to waive a hearing
by an administrative law judge and to submit this case to
the Board for a decision based on a stipulated record. On
February 5, 2016, the Board granted the parties’ joint
motion. Thereafter, the Respondent, the Employer, and
the General Counsel filed briefs, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a corporation with an office and place
of business in Duluth, Minnesota, has been engaged in
the operation of an acute care hospital and has provided a
variety of other health care services, including home
health care. In conducting its operations during the cal-
endar year ending December 31, 2014, the Employer
purchased and received at its Duluth, Minnesota facility
goods and services valued in excess of $50,000 directly
from points outside the state of Minnesota. The Employ-
er has been 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 Sec-
tion 2(14) of the Act.

1 All subsequent dates are in 2015 unless otherwise noted.
At all material times, the Respondent has been a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
The Employer and the Respondent had been parties to
successive collective-bargaining agreements, most re-
cently from January 1, 2012, to December 31, 2014, in
which the Employer recognized the Respondent as the
exclusive bargaining agent for a unit composed of all
homemakers and technicians who work, or are anticipat-
ed to work, an average of 4 or more hours per week over
a 13-week period.2 This agreement contained a provision
for arbitration of contracts, which read in relevant part:
ARTICLE 21
Arbitration of Contracts
Section 21.1. Interest Arbitration
In the event the parties are unable to reach agreement
as to the terms of a succeeding Labor Agreement, any
unsettled issue shall, upon the request of either party,
be submitted to the determination of a board of arbitra-
tors, whose determination shall be final and binding
upon the parties. . . .
Section 21.2. Selection of Arbitrators
. . .
The parties recognize that by custom an arbitrator is not
ordinarily given power to add to or vary from the pre-
viously written contract of the parties. In this case,
however, the parties expect the arbitrator to supply
agreement and language of agreement in a new contract
in those areas where the parties themselves have been
unable to come to express agreement.
. . .
Section 21.3. Continuation of Interest Arbitration
The provisions of this Article (XXI) shall be in full
force and effect during the entire term of this agreement
and shall apply and be utilized by the parties to reach
agreement as to the terms of a succeeding Labor

2 The unit consists of:
All homemakers and technicians employed by the Employer at or
out of its 810 East 4th Street, Duluth, Minnesota facility who work
an average or are anticipated to work an average of four or more
hours per week over a 13-week period; excluding RNs and LPNs,
Office Clerical Employees, Therapists, Therapist Assistants,
Guards and Supervisors, as defined in the National Labor Relations
Act.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Agreement in the event the parties are otherwise unable
to reach agreement through negotiations. The arbitra-
tion panel in rendering its decision shall incorporate
therein a provision that this arbitration clause (Article
XXI) shall be a part of the succeeding contract, unmod-
ified, except the arbitration panel may impose an expi-
ration date on the provisions of this Article XXI for any
Labor Agreement expiring during or after the calendar
year 2005.
After the expiration of this contract, the parties negoti-
ated for a new collective-bargaining agreement and
agreed on all provisions except for whether to include
interest arbitration (Article 21). The Employer proposed
removing the interest arbitration provision, but the Re-
spondent insisted on its inclusion in the new agreement.
Following the parties’ last bargaining session on March
11, the Respondent sought to invoke Article 21 of the
expired agreement and submit its proposed inclusion of
the interest arbitration clause to an arbitrator. On March
31, the Respondent confirmed by email to the Employer
that interest arbitration was the only remaining issue.
B. Discussion
Under Section 8(d) of the Act, an employer and em-
ployee representative are required to bargain in good
faith over wages, hours, and other terms and conditions
of employment. There is no statutory duty to bargain
over other subjects, however, and it is a violation of the
Act “to refuse to enter into agreements on the ground that
they do not include some proposal which is not a manda-
tory subject of bargaining.” NLRB v. Wooster Div. of
Borg-Warner Corp., 356 U.S. 342, 349 (1958). For
permissive subjects of bargaining, “each party is free to
bargain or not to bargain, and to agree or not to agree.”
Id.
The Board has long held that an interest arbitration
provision “does not come within the classification of a
mandatory subject of bargaining [as] . . . [i]t does not
vitally affect the terms of wages, hours, or other condi-
tions of employment in the contract being negotiated.”
Columbus Printing Pressmen & Assistants’ Union No.
252, 219 NLRB 268, 279 (1975), enfd. 543 F.2d 1161
(5th Cir.1976).3 Because interest arbitration is a permis-
sive subject of bargaining, it is a violation of the Act to
bargain to impasse over interest arbitration. Id. at 282.4

3 Accord Connecticut State Conference Board, Amalgamated Transit
Union (H.N.S. Management Co.), 339 NLRB 760, 767 (2003) (interest
arbitration is permissive bargaining subject); Laidlaw Transit Inc., 323
NLRB 867, 869 (1997); Tampa Sheet Metal Co. Inc., 288 NLRB 322,
325 (1988); Sheet Metal Workers Local 38 (Elmsford Sheet Metal
Works), 231 NLRB 699, 701 (1977), enfd. 575 F.2d 394 (2d Cir. 1978).
4 Accord Connecticut State Conference Board, above at 768 (union
insisted to impasse on interest arbitration provision in violation of Sec.
Here, the Respondent acknowledged that interest arbi-
tration is a permissive subject of bargaining and admitted
that it bargained to impasse solely over its inclusion in a
successor contract. Accordingly, we find that by insist-
ing to impasse over a permissive subject of bargaining,
the Respondent failed and refused to bargain in good
faith, in violation of Section 8(b)(3).
CONCLUSIONS OF LAW
1. The Employer has been 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 with-
in the meaning of Section 2(14) of the Act.
2. The Respondent has been a labor organization with-
in the meaning of section 2(5) of the Act.
3. The Respondent has been failing and refusing to
bargain in good faith with the Employer by insisting on
the inclusion of an interest arbitration provision as a con-
dition of reaching a collective-bargaining agreement, in
violation of Section 8(b)(3) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(b)(3)
of the Act, we shall order it to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, AFSCME Council 5, Local 3558, Duluth,
Minnesota, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
St. Luke’s Hospital of Duluth, Inc. d/b/a St. Luke’s
Home Care (the Employer) by insisting on the inclusion
of an interest arbitration provision as a condition of
reaching a collective-bargaining agreement.
(b) In any like or related manner restraining or coerc-
ing employees in 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) On request, bargain in good faith with the Em-
ployer over terms and conditions of employment in the
following appropriate bargaining unit, and, if an under-
standing is reached, embody the understanding in a
signed agreement.

8(b)(3)); Sheet Metal Workers’ International Association, Local Union
No. 359, 319 NLRB 668, 670 (1995); Sheet Metal Workers Local 263
(Sheet Metal Contractors), 272 NLRB 43, 45 (1984) (“[I]nterest arbi-
tration is a nonmandatory subject of bargaining which, even if agreed
to, is unenforceable insofar as it purports to resolve the inclusion of. . .
interest arbitration in a successor collective-bargaining agreement.”).
AFSCME COUNCIL 5, LOCAL 3558 (ST. LUKE’S HOSPITAL OF DULUTH, INC.) 3
All homemakers and technicians employed by the Em-
ployer at or out of its 810 East 4th Street, Duluth, Minne-
sota facility who work an average or are anticipated to
work an average of 4 or more hours per week over a 13-
week period; excluding RNs and LPNs, Office Clerical
Employees, Therapists, Therapist Assistants, Guards and
Supervisors, as defined in the National Labor Relations
Act.
(b) Notify the Employer that the Respondent Union
will not fail and refuse to bargain in good faith by insist-
ing on the inclusion of an interest arbitration provision as
a condition of reaching a collective-bargaining agree-
ment.
(c) Within 14 days after service by the Region, post at
its Duluth, Minnesota facility copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 18, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to members 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 members by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Within 14 days after service by the Region, deliver
to the Regional Director for Region 18 signed copies of
the notice in sufficient number for posting by the Em-
ployer at its Duluth, Minnesota facility, if it wishes, in all
places where notices to employees are customarily post-
ed.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 18 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. June 10, 2016
______________________________________
Mark Gaston Pearce, Chairman

5 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.”
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain in good faith
with St. Luke’s Hospital of Duluth, Inc. d/b/a St. Luke’s
Home Care (the Employer) by insisting on the inclusion
of an interest arbitration provision as a condition of
reaching a collective-bargaining agreement with the Em-
ployer.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of their rights guaran-
teed to them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Employer over terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
WE WILL notify the Employer that we will not fail and
refuse to bargain in good faith by insisting on the inclu-
sion of an interest arbitration provision as a condition of
reaching a collective-bargaining agreement with the Em-
ployer.
AFSCME COUNCIL 5, LOCAL 3558
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
www.nlrb.gov/case/18–CB–149410 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.