Children's Hospital & Research Center at Oakland d/b/a Children's Hospital of Oakland

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 114 (N.L.R.B. 2016)

364 NLRB No. 114
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.
Children’s Hospital and Research Center of Oakland
d/b/a Children’s Hospital of Oakland and Ser-
vice Employees International Union, United
Healthcare Workers-West. Case 32–CA–086106
August 26, 2016
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On February 28, 2014, the National Labor Relations
Board issued a decision and order, 360 NLRB No. 56
(2014), adopting Administrative Law Judge William G.
Kocol’s decision that the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act) by refusing to arbitrate pending grievances with the
Charging Party Union after the Union was superseded by
a new union. The United States Court of Appeals for the
District of Columbia Circuit denied enforcement of the
decision and remanded the case to the Board to explain
how imposing an obligation on the employer to arbitrate
grievances with a superseded union can be reconciled
with the exclusive representation rights of the newly cer-
tified union. Children’s Hospital & Research Center of
Oakland, Inc. v. NLRB, 793 F.3d 56 (D.C. Cir. 2015).
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We have accepted the court’s remand, and, after careful-
ly considering the record and the Respondent’s position
statement, we reaffirm the conclusion that the Respond-
ent violated Section 8(a)(5) and (1) because it had a con-
tinuing duty to arbitrate grievances that arose during its
bargaining relationship with the Union.
Consistent with the court’s remand decision, we con-
clude that Congress has not directly spoken to the precise
question at issue in this case. Next, we find that the pur-
poses of the Act are best effectuated by requiring em-
ployers to arbitrate pending grievances arising under a
collective-bargaining agreement with the union that was
party to that agreement, even if the union has been super-
seded by another union. In reaching this conclusion, we
emphasize that the duty to arbitrate only applies to dis-
putes that arose at the time that the former union was the
exclusive representative. The arbitration of pending
grievances with the former union, then, is best under-
stood not as an improper imposition on the newly-
certified union’s exclusivity, but rather as the fulfillment
of a previously bargained-for obligation to use a statuto-
rily favored dispute resolution mechanism. Holding that
an employer could repudiate its contractual obligation to
arbitrate pending disputes upon a change in representa-
tive would frustrate employees’ ability to vindicate their
contractual rights, threaten new labor disputes, and create
an undesirable impediment to employees’ exercise of
their Section 7 right to freely change union representa-
tives. Accordingly, we reaffirm the Board’s prior finding
that the Respondent violated Section 8(a)(5) and (1)
when it refused to arbitrate pending grievances with the
Union subsequent to the Union’s replacement, and we
will issue an appropriate supplemental Order.
I.
The Respondent operates a pediatric hospital in Oak-
land, California. Until May 23, 2012, Service Employ-
ees International Union, United Healthcare Workers-
West (SEIU or Union) was the exclusive bargaining rep-
resentative for a bargaining unit consisting of most of the
Respondent’s service, maintenance, and technical em-
ployees. The Respondent and the Union negotiated a
series of collective-bargaining agreements, the most re-
cent of which was to be effective from December 8,
2010, to April 30, 2014, and contained a two-step griev-
ance procedure, after which either party could request
arbitration.
In early 2009, the National Union of Healthcare Work-
ers (NUHW) filed a petition seeking to represent the unit
employees. On May 16, 2012, after a protracted and
contested organizing effort, the bargaining unit employ-
ees elected NUHW as their bargaining representative. At
the time, the Union and the Respondent had three out-
standing grievances based on incidents that had occurred
under their collective-bargaining agreement.1 On May
23, 2012, the Union requested that all three grievances be
submitted to arbitration. The next day, May 24, 2012,
the Board certified NUHW. On July 16, 2012, the Re-
spondent declined to arbitrate the grievances on the

1 The first grievance involved a part-time employee who applied for
a full-time position in April 2011. The Respondent awarded her the
position effective June 12, 2011, but before she started the new role, the
Respondent reassigned the work to a more senior employee. On De-
cember 1, 2011, pursuant to an agreement with the Union, the Re-
spondent awarded her the next available full-time position. The Union
sought backpay for her for the period of June 12 to December 1, 2011.
In September or October 2011, the Union filed a second grievance,
alleging that the Respondent should pay five respiratory therapists at a
higher step level. The parties resolved the matter with respect to three
of those employees, but the Respondent maintained that the remaining
two were not entitled to higher pay because they had not received train-
ing for transport duties. Several months later, the two therapists began
that training, and the Respondent began paying them a “transport dif-
ferential.” The Union alleged that the Respondent owed them addition-
al pay. The third grievance involved the April 24, 2012 discharge of an
employee, which the Respondent contended was due to her failure to
comply with the terms of a “Last Chance Agreement.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
grounds that NUHW had replaced the Union as the ex-
clusive bargaining representative. On July 26, 2012, the
Union filed an unfair labor practice charge. The General
Counsel issued a complaint that alleged that the Re-
spondent violated Section 8(a)(5) and (1) by refusing to
arbitrate the grievances with the Union.
II.
Adopting the decision of the administrative law judge,
the Board found that the Respondent violated Section
8(a)(5) and (1) by refusing to arbitrate the grievances
with the Union, notwithstanding the fact that NUHW had
superseded the Union. The Board began from the estab-
lished propositions that an employer must arbitrate
grievances that arose under an expired contract even if
arbitration of new disputes cannot be compelled2 and that
this duty survives even if the union no longer represents
employees3—although the employer cannot be com-
pelled to arbitrate old grievances with a new union.4 360
NLRB No. 56, slip op. at 3. The Board viewed these
case law holdings, taken together, as “compelling sig-
nals” that an employer must arbitrate old grievances with
the old union. Id. at 3–4. In turn, the Board rejected the
Respondent’s argument that it had no duty to arbitrate
with the Union because it could “only negotiate with the
exclusive bargaining representative of the unit employees
and the Union [was] no longer that representative.” Id. at
4.
As explained, the court of appeals granted the Re-
spondent’s petition for review and denied the Board’s
cross-petition for enforcement. The court recognized
that Section “8(a)(5) requires an employer to arbitrate
unfinished business with an old union even after their
collective bargaining agreement expires,” but noted that,
“[o]n the other hand, [S]ection 9(a) requires an employer
to ‘treat with no other’ union once a new union is certi-
fied.” 793 F.3d at 58–59 (quoting Medo Photo Supply
Corp. v. NLRB, 321 U.S. 678, 684 (1944)). The court
stated that the Act “does not identify where the duty to
resolve unfinished business with the old union ends and
the duty to bargain exclusively with the new union be-
gins.” Id. at 59. The court observed that the “interplay
of section 8(a)(5) and section 9(a) is a question of statu-
tory interpretation . . . that the [Act] does not unambigu-
ously resolve.” Id. Under the Supreme Court’s Chevron

2 Indiana & Michigan Electric Co., 284 NLRB 53 (1987). See also
Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionary Workers
Union, 430 U.S. 243 (1977) (addressing contractual duty to arbitrate
grievances following contract expiration).
3 Missouri Portland Cement Co., 291 NLRB 1043 (1988).
4 Arizona Portland Cement Co., 302 NLRB 36 (1991).
decision,5 the court explained, this was a task for the
Board—but the Board had failed to complete that task.
The Board’s decision “discussed only section 8(a) of the
Act,” and “[n]one of the precedent it cited dealt with the
precise situation here”; instead, the Board “relied on cas-
es that did not implicate the exclusivity principle of sec-
tion 9(a).” Id. “[W]e are left wondering,” the court
said, “how the Board in these circumstances interprets
section 9(a).” Id. “[B]ecause the Board failed to address
the relevant statutory provisions,” the court remanded the
case to the Board for further proceedings. Id.
We have accepted the court’s remand decision as the
law of the case.
III.
We now take up the task that the court of appeals has
set for us in remanding the case: to address the “interplay
of [S]ection 8(a)(5) and [S]ection 9(a)” (in the court’s
words) and to explain why interpreting Section 8(a)(5) to
require employers to arbitrate pending grievances with a
superseded union, notwithstanding the exclusivity prin-
ciple of Section 9(a), represents the best resolution of the
statutory ambiguity presented here. Section 8(a)(5)
makes it an unfair labor practice for an employer to “re-
fuse to bargain collectively with the representatives of
his employees, subject to the provisions of [S]ection
9(a).” 29 U.S.C. § 158(a)(5) (emphasis added). Section
9(a), in turn, provides that unions chosen by the majority
of employees in a bargaining unit “shall be the exclusive
representatives of all the employees in such unit for the
purposes of collective bargaining.” 29 U.S.C. § 159(a)
(emphasis added). The Act’s text frames the issue in this
case but does not resolve it. Certainly, the statutory lan-
guage suggests that if requiring an employer to arbitrate
pending grievances with the old union violated the exclu-
sivity principle of Section 9(a), then the duty to bargain
under Section 8(a)(5)—which is “subject to” Section
9(a)—could not encompass such an obligation. But, as
we will explain, the rule we reaffirm today both is con-
sistent with the exclusivity principle and promotes im-
portant statutory policies.
A.
To show why this is so, we first consider how the pre-
sent case fits into the legal landscape described in the
Board’s original decision. Under existing Board prece-
dent applying the Act, an employer is required to arbi-

5 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842–43 (1984). As the court noted, “[t]he resolution of
any statutory ambiguity latent in the [National Labor Relations Act] is a
task that the Congress, in the first instance, has entrusted to the Board,”
subject to deferential judicial review. 793 F.3d at 59, citing Lechmere,
Inc. v. NLRB, 502 U.S. 527, 536 (1992).
CHILDREN’S HOSPITAL AND RESEARCH CENTER OF OAKLAND D/B/A CHILDREN’S HOSPITAL OF OAKLAND 3
trate grievances arising under the expired contract with a
decertified union, as distinguished from a union that has
been superseded by a new union.6 The decisions of the
Federal appellate courts involving an employer’s con-
tractual duty to arbitrate (enforceable by the union in
Federal court under Section 301 of the Labor Manage-
ment Relations Act) are in accord. They, too, hold that
the employer has a duty to arbitrate, even though the
union has been decertified.7
The Supreme Court, meanwhile, held in John Wiley &
Sons that an employer may be required to arbitrate griev-
ances arising under a collective-bargaining agreement
between a union and a company with which the employ-
er merged, even though the union that represented the
merged company’s employees was not the majority rep-
resentative of any bargaining unit comprising the em-
ployer’s employees.8 The Court observed that the union
did “not assert that it ha[d] any bargaining rights inde-
pendent of the [prior] agreement; it [sought] to arbitrate
claims based on that agreement, now expired, not to ne-
gotiate a new agreement.”9

6 See, e.g., Antioch Building Materials Co., 316 NLRB 647, 647 fn.
1 (1995) (citing Missouri Portland Cement, supra, and Arizona Port-
land Cement, supra); Union Switch & Signal, 316 NLRB 1025, 1025
fn. 1 (1995) (citing Missouri Portland Cement).
7 See Auto Workers Local 1369 v. Telex Computer Products, 816
F.2d 519, 523–524 (10th Cir. 1987); United States Gypsum Co. v.
Steelworkers, 384 F.2d 38, 44–46 (5th Cir. 1967), cert. denied 389 U.S.
1042 (1968).
8 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550–551
(1964).
9 Id. at 551 (footnote omitted). The Court noted:
The fact that the Union does not represent a majority of an appropriate
bargaining unit in Wiley [the employer] does not prevent it from rep-
resenting those employees who are covered by the agreement which is
in dispute and out of which Wiley’s duty to arbitrate arises. . . . There
is no problem of conflict with another union, cf. L.B. Spear & Co.,
106 NLRB 687 [(1953)], since Wiley had no contract with any union
covering the unit of employees which received the former Interscience
[merged company] employees.
Id. at 551 fn. 5.
The Court cited a Board decision, L.B. Spear, supra, holding that as
the result of the merger between two companies, with employees repre-
sented by different unions, a particular bargaining unit had ceased to
exist and that a collective-bargaining agreement covering that unit thus
did not bar a representation petition for employees of the merged entity.
106 NLRB at 689. In that case, the Board had noted the employer’s
argument that it was difficult to bargain with two unions “repre-
sent[ing] identical categories of employees working in one group, at the
same place” and to administer separate collective-bargaining agree-
ments covering the one group. 106 NLRB at 689.
Here there is also “no problem of conflict with another union,” in the
words of the John Wiley & Sons Court, because the employer’s duty to
arbitrate grievances arising under the old contract runs only to the old
union. The employer, in other words, does not have potentially con-
flicting contractual obligations to two unions.
The question here, of course, is whether the employ-
er’s duty to arbitrate grievances arising under the prior
collective-bargaining agreement survives if the old union
has not simply been decertified but has been superseded
by a new union that enjoys majority support among em-
ployees. In this situation, addressed by Arizona Portland
Cement, supra, the Board has held that the employer
cannot be required to arbitrate with the new union, absent
the employer’s “clear consent” to do so.10 The Board
relied on the well-established principle of Federal labor
policy that, in the Supreme Court’s words, “arbitration is
a matter of contract and a party cannot be required to
submit to arbitration any dispute which he has not agreed
so to submit.”11 Thus, if we held today that the employer
had no statutory duty to arbitrate with the old union, then
the Act would provide no mechanism at all by which
arbitration of employees’ grievances arising under the
old contract could be required. That result, as we will
explain, runs counter to important statutory policies.
B.
The decisions we have examined did not explicitly
discuss the exclusivity principle of Section 9(a), to which
we turn now.
The relevant statutory language—that a union chosen
by a majority of employees shall be their “exclusive rep-
resentative[]”—originated with the Wagner Act of 1935,
which, as enacted, rejected proposals that would have

10 302 NLRB at 37.
11 Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574,
582 (1960). See also Litton Financial Printing Division v. NLRB, 501
U.S. 190, 201 (1991) (“[U]nder the [National Labor Relations Act]
arbitration is a matter of consent, and . . . it will not be imposed upon
parties beyond the scope of their agreement.”).
Under the principle that arbitration is a matter of consent, the Board
held in Arizona Portland Cement that an employer has no duty to arbi-
trate with a newly certified union grievances arising under the employ-
er’s collective-bargaining agreement with a prior bargaining representa-
tive. 302 NLRB at 37. Before reaching that conclusion, the Board
observed in passing that “it would hardly be conducive to industrial
peace to have two unions simultaneously representing the employees,
albeit with respect to different time periods.” Id. In a later decision,
the Board correctly described this statement as “dictum.” Government
Employees Local 888 (Bayley-Seton Hospital), 323 NLRB 717, 721 fn.
28 (1997). In Arizona Portland Cement, the issue of the employer’s
duty to arbitrate with the old union was not presented because that
union had not filed an unfair labor practice charge (see 302 NLRB at
36), and the Board’s rationale in any case was based on the consensual
nature of arbitration, not on the potential for conflict between the old
and the new unions.
For similar reasons, we give no weight to the statement in Arizona
Portland Cement that the result there “did not mean that the employees
ha[d] no recourse as to the unresolved earlier grievances” because those
grievances might be resolved through collective bargaining between the
new union and the employer. 302 NLRB at 37 fn. 6. We do not inter-
pret that statement to suggest that the employer could not have been
compelled to arbitrate with the old union had that union filed a charge.
Such a suggestion would have been dictum in any case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
permitted employees to be represented by multiple un-
ions even when there was a majority representative.12 In
endorsing the exclusivity principle, the Senate Report
noted:
The object of collective bargaining is the making of
agreements that will stabilize business conditions and
fix fair standards of working conditions. . . . [I]t is
wellnigh universally recognized that it is practically
impossible to apply two or more sets of agreements to
one unit of workers at the same time[] . . . .
Majority rule makes it clear that the guaranty of the
right of employees to bargain collectively through rep-
resentatives of their own choosing must not be misap-
plied so as to permit employers to interfere with the
practical effectuation of that right by bargaining with
individuals or minority groups in their own behalf after
representatives have been picked by the majority to
represent all.
S. Rep. No. 573, 74th Cong., 1st Sess., p. 13, reprinted in 2
Leg. Hist. of the NLRA 2313.13
The exclusive status of the chosen representative “ex-
acts ‘the negative duty [on the employer] to treat with no
other,’” as the Supreme Court observed in Medo Photo
Supply, a decision cited by the court of appeals in its re-
mand decision.14 This “negative duty” is also reflected
in Section 8(a)(2) of the Act, which makes it an unfair

12 See 1 Leg. Hist. 1323 (NLRB 1935).
13 Similarly, Senator Wagner, the Act’s chief sponsor, stated:
Majority rule makes it clear that the guaranty of the right of employees
to bargain collectively through representatives of their own choosing
must not be misapplied so as to permit employers to interfere with the
practical effectuation of that right by bargaining with individuals or
minority groups in their own behalf after representatives have been
picked by the majority to represent all.
79 Cong. Rec. at 7571 (statement of Sen. Wagner) (1935).
14 321 U.S. at 684 (quoting NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 44 (1937)). The situation presented in Medo Photo Supply
was different from that presented here. In that case, the employer vio-
lated Sec. 8(a)(1) of the Act—which prohibits employers from interfer-
ing with employees’ Sec. 7 right to bargain collectively through their
chosen representative—when it bypassed the majority union, “negotiat-
ing with its employees concerning wages at a time when wage negotia-
tions with the union were pending,” as part of an effort to induce em-
ployees to abandon the union. 321 U.S. at 684.
The Supreme Court also has held that the exclusivity principle effec-
tively applies to employees who seek to bypass the union, finding that
an employer was free to discharge minority employees who, bypassing
the collectively-bargained grievance procedure, sought to bargain sepa-
rately with their employer over racially discriminatory employment
practices. Emporium Capwell Co. v. Western Addition Community
Organization, 420 U.S. 50 (1975).
labor practice for an employer to, among other things,
“contribute . . . support”15 to a labor organization, includ-
ing (as interpreted by the Board and the courts) by rec-
ognizing and bargaining with a union that lacks majority
support.16 An employer violates Section 8(a)(2) when it
recognizes and bargains with one union when it has a
pre-existing duty to bargain with another instead.17
As we will explain, neither the exclusivity principle
embodied in Section 9(a) nor the corresponding “nega-
tive duty” not to bypass the majority representative by
dealing with another union in violation of Section 8(a)(2)
preclude the rule that we adopt today.
C.
Requiring employers to arbitrate pending grievances
arising under an expired collective-bargaining agreement
with the union that was party to that agreement, even if
the union has been superseded by another union, serves
important statutory policies. This is especially clear in
light of the Board’s parallel rule, adopted in Arizona
Portland Cement, that the new union may not compel the
employer to arbitrate. “The object of the National Labor
Relations Act,” as the Supreme Court has observed, “is
industrial peace and stability, fostered by collective-
bargaining agreements providing for the orderly resolu-
tion of labor disputes between workers and employers.”18
To begin, compelling arbitration at the behest of the
old union vindicates the Section 7 right of employees to
“bargain collectively through representatives of their
own choosing.”19 A collective-bargaining agreement, the
contractual terms and conditions of employment it cre-
ates, and the grievance-and-arbitration procedure it estab-
lishes to resolve contractual disputes are all products of
employees’ exercise of Section 7 rights in selecting a
union to represent them. That the union, in cases like
this one, was superseded by a different representative
authorized to negotiate and enforce future agreements,
does not diminish this fact.20 Only the superseded union

15 29 U.S.C. § 158(a)(2).
16 See, e.g., International Ladies’ Garment Workers’ Union v. NLRB
(Bernhard-Altmann Texas Corp.), 366 U.S. 731, 737–738 (1961).
17 See, e.g., Shortway Suburban Lines, 286 NLRB 323, 329 (1987)
(successor employer unlawfully recognized and bargained with outside
union, refusing to recognize union representing predecessor’s employ-
ees), enfd. 862 F.2d 309 (3d Cir. 1988).
18 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996).
19 29 U.S.C. § 157. See generally NLRB v. City Disposal Systems,
Inc., 465 U.S. 822, 835–836 (1984) (Sec. 7 protects employee’s invoca-
tion of grievance procedure to enforce collective-bargaining agree-
ment).
20 Cf. Telex Computer Products, supra, 816 F.2d at 523
(“[D]ecertification does not retroactively obliterate contract rights.
Events which may change relations between and among employer,
union, and employees may impact but do not destroy the right to re-
dress arising under and relating to a valid preexisting contract.”); Unit-
CHILDREN’S HOSPITAL AND RESEARCH CENTER OF OAKLAND D/B/A CHILDREN’S HOSPITAL OF OAKLAND 5
has the authority to compel arbitration, at least under
Board precedent. Moreover, that union is more likely to
be able to effectively pursue arbitration, based on its ex-
perience in negotiating and administering the agreement,
than either individual employees or the new union (as-
suming, in contrast to the situation here, that the employ-
er were to agree to arbitrate).21
Second, today’s rule advances the strong Federal poli-
cy in favor of arbitration to resolve labor disputes and
preserve industrial peace. That policy is reflected both in
the decisions of the Supreme Court22 and in the statute.23
In cases like this one, an employer has agreed to arbitrate
certain disputes with the superseded union. The new
union, in turn, may not, under the Act, compel the em-
ployer to arbitrate. To hold that the employer lawfully
may refuse to arbitrate disputes under the old agreement,
with the old union, increases the odds that those disputes
will not be resolved through arbitration—the preferred
dispute-resolution mechanism—but instead through
means such as strikes that disrupt industrial peace. In-
deed, finding no duty to arbitrate in cases like this one
threatens industrial peace more broadly. Where a rival
union was on the scene and displacement of the incum-
bent seemed likely, employers would have an incentive
to delay the processing of existing grievances, and even
to breach the contract, in the hope of escaping liability

ed States Gypsum, supra, 384 F.2d at 45 (“[T]o take the easy, almost
mechanical doctrinaire approach that loss of majority status extin-
guishes the union’s power (duty) to act ignores other vital interests—
indeed, interests which need protection and which will be lost unless an
ardent advocate of them is available.”).
21 See Telex Computer Products, supra, 816 F.2d at 523–524; United
States Gypsum, 384 F.2d at 45–46. The Tenth Circuit in Telex Com-
puter Products and the Fifth Circuit in United States Gypsum each
noted that the decertified union there had not been superseded by an-
other union, and thus employees had no other representative to pursue
arbitration. Arizona Portland Cement, decided afterwards, makes clear
that even had employees chosen a new union, that union would have
lacked the power to compel arbitration under the Act.
22 In Warrior & Gulf Navigation, supra, for example, the Supreme
Court explained that:
The present federal policy is to promote industrial stabilization
through the collective bargaining agreement. . . . A major factor in
achieving industrial peace is the inclusion of a provision for arbitration
of grievances in the collective bargaining agreement.
363 U.S. at 578 (footnotes and citations omitted). See also Steelworkers v.
American Mfg. Co., 363 U.S. 564 (1960); Steelworkers v. Enterprise Wheel
& Car Corp., 363 U.S. 593 (1960). The John Wiley & Sons Court cited
Warrior & Gulf Navigation and similarly “recognized the central role of
arbitration in effectuating national labor policy.” 376 U.S. at 549.
23 Sec. 203(d) of the Labor Management Relations Act provides that
“[f]inal adjustment by a method agreed upon by the parties is declared
to be the desirable method for settlement of grievance disputes arising
over the application or interpretation of an existing collective-
bargaining agreement.” 29 U.S.C. § 173(d).
imposed through arbitration. Such behavior would pro-
long existing disputes and create new ones.
Third, the rule adopted today promotes the Section 7
interest of employees in freely choosing a new union to
represent them by ensuring that pending grievances will
be resolved through arbitration with the old union and
not left open to complicate forward-looking negotiations
between the new union and the employer. Once employ-
ees replace one union with another, any existing collec-
tive-bargaining agreement is no longer in effect—but the
employer must maintain the terms and conditions of em-
ployment established by the agreement until a new
agreement (or a bargaining impasse) is reached with the
new union.24 The new union, in other words, is entitled
to have the terms and conditions of the old agreement
serve as the starting point for negotiations. If the em-
ployer has previously violated the agreement, and those
violations have not been remedied, then the new union is
unfairly handicapped in bargaining: existing terms and
conditions are not those established by the old agreement
but (at least in part) those unilaterally determined by the
employer, forcing the new union to win back benefits to
which employees were already entitled. That prospect
might deter employees from choosing a new union. This
is especially so for those employees who stood to benefit
from the pending grievances under the old contract. For
them, choosing a new union threatens the loss of vested
rights and benefits, perhaps even the right to reinstate-
ment if the grievance involved a discharge.25
D.
These policy arguments for adopting today’s rule are
strong, but we must carefully consider whether and to
what extent the rule is inconsistent with the status of the
new union as the exclusive representative of employees.
As already suggested, the exclusivity principle of Sec-
tion 9(a) actually cuts both ways in this case. In finding
a duty to arbitrate pursuant to Section 8(a)(5), we proper-
ly vindicate the role of the old union as the exclusive
representative of employees during the period before it
was superseded—which, of course, is when the griev-
ances involved here arose. And under our precedent, the
new union has no authority to compel the employer to
arbitrate the pending grievances: in this very limited re-
spect, the new union cannot represent employees at all,
much less exclusively.
Given this fact, the Congressional concern underlying
the exclusivity principle is largely absent here. As we

24 More Truck Lines, 336 NLRB 772, 772–773 (2001), enfd. 324
F.3d 735 (D.C. Cir. 2003).
25 In this case, one of the pending grievances involved a dispute over
whether two employees were entitled to several months’ worth of a
contractual pay differential for transportation duties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
have explained, the legislative history demonstrates that
Section 9(a) was designed to prevent employers from
interfering with employees’ effectuation of their right to
choose a majority representative and to preclude bargain-
ing instability caused by the application of two or more
contracts to one group of workers at the same time.
There is no suggestion in the legislative history that
Congress contemplated a situation like this one, involv-
ing the transition from one exclusive representative to
another and the need to resolve pre-existing labor dis-
putes in a manner consistent with Section 7 and the Fed-
eral labor policy favoring arbitration. Given the very
limited representative role played by the old union in
arbitrating grievances under the old agreement and the
fact that the new union may not compel arbitration of
those grievances in any case, requiring an employer to
arbitrate grievances with the old union would not reason-
ably cause employees to believe that their choice of a
new representative has been interfered with.26 Indeed, as
suggested, foreclosing the old union’s role might even
tend to inhibit employees from choosing a new union.
Meanwhile, the Supreme Court’s decision in John
Wiley & Sons, supra, helps demonstrate why the Con-
gressional concern about the simultaneous application of
multiple collective-bargaining agreements to a single
employee unit is not genuinely implicated. In cases like
this one, only the application of a single agreement is
involved: the expired agreement upon which the employ-
er’s duty to arbitrate with the old union is predicated.
SEIU here, like the union in John Wiley & Sons, “does
not assert that it has any bargaining rights independent of

26 Indeed, in Missouri Portland Cement, the Board distinguished the
resolution of past grievances from bargaining over the employees’
current terms and conditions of employment, finding that the former,
unlike the latter, did not amount to imposing a bargaining agent on
employees who had not selected that agent. 291 NLRB at 1044. We
further note that the distinction between the duty to arbitrate pursuant to
a collective-bargaining agreement and the statutory duty to bargain is
well established in Supreme Court cases that address the effects of
successorship (a succession of employers) on each. Compare John
Wiley & Sons, supra, and Howard Johnson Co. v. Detroit Local Joint
Executive Board, 417 U.S. 249 (1974), with NLRB v. Burns Interna-
tional Security Services, 406 U.S. 272 (1972), and Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27 (1987). As the Fifth Circuit
aptly explained, the Federal labor law policies concerning a successor’s
duty to bargain are “analytically distinct” from those involving a suc-
cessor’s duty to arbitrate under § 301. Boeing Co. v. Machinists, 504
F.2d 307, 320 (5th Cir. 1974). The court stated:
The majority requirement in duty to bargain cases is premised upon
notions of majority selection of organized employees’ collective bar-
gaining agents. In the duty to arbitrate cases under § 301, however,
the incumbent employees fulfill no such representative function in the
filing of their grievances.
Id.
the [prior] agreement; it seeks to arbitrate claims based
on that agreement, now expired, not to negotiate a new
agreement.”27 NUHW, the union that superseded SEIU,
in turn has no authority under the Act to compel arbitra-
tion under the old agreement. To the extent that an arbi-
tration award in a case like this one would alter existing
terms and conditions of employment, that result would
merely remedy the employer’s violation of the prior col-
lective-bargaining agreement and restore the lawful sta-
tus quo, from which the new union would be entitled to
bargain with the employer.28 Securing the arbitration
award, in other words, does not amount to bargaining
over new terms and conditions of employment, but rather
to effective restoration of the old.29
In sum, we conclude that any conflict with the exclu-
sivity principle is more apparent than real and that the
Act and its policies, as a whole, are best read to support
finding a duty to bargain in the circumstances here.
IV.
We have carefully considered the issues raised by the
court’s remand decision, and we conclude that the result
reached by the Board in its original decision was the cor-
rect one. Accordingly, we find that the Respondent vio-
lated Section 8(a)(5) and (1) by refusing to arbitrate
grievances with the Union, and we shall order the Re-
spondent to arbitrate the grievances.30

27 376 U.S. at 551 (footnote omitted).
28 For the reasons stated above, we believe that requiring the em-
ployer to arbitrate grievances with the old union after a new union has
been certified poses little or no risk to the new union’s ability to effec-
tively carry out its representative function. To the contrary, the resolu-
tion of outstanding grievances under the old union’s collective-
bargaining agreement would tend to restore the status quo and thus
benefit the new union as it moves forward in collective bargaining with
the employer. To the extent that such a risk materialized in any particu-
lar case, the Board could address it in that case. In this case, we do not
perceive any risk of conflict, let alone a degree of risk that would out-
weigh the disadvantages discussed herein of failing to require the Re-
spondent to arbitrate with the Union outstanding grievances that arose
under their collective-bargaining agreement.
29 For essentially the same reasons that we find no significant con-
flict with the exclusivity principle of Sec. 9(a), we also see no obstacle
to today’s rule in Sec. 8(a)(2). To arbitrate a dispute arising under a
collective-bargaining agreement with the union that was party to the
agreement and that was, at all relevant times, the majority representa-
tive does not amount to providing the union with prohibited support.
With respect to Sec. 8(a)(2), notably, dealing with a decertified union is
no different than dealing with a union that has been superseded by
another union. In each situation, what matters is simply that the em-
ployer is dealing with a union that lacks majority status. But the Feder-
al appellate courts have rejected the argument that requiring an em-
ployer to arbitrate grievances with a decertified union compels a viola-
tion of Sec. 8(a)(2), see, e.g., Telex Computer Products, supra, 816 F.2d
at 524, and the Board’s case law, as we have seen, is in accord.
30 Member Miscimarra and Member McFerran express no views on
the additional rationale articulated by our colleague in his concurrence
CHILDREN’S HOSPITAL AND RESEARCH CENTER OF OAKLAND D/B/A CHILDREN’S HOSPITAL OF OAKLAND 7
CONCLUSION OF LAW
By refusing to arbitrate the grievances that arose under
the December 8, 2010 collective-bargaining agreement
with the Union, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in un-
fair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found
that the Respondent unlawfully refused to arbitrate
grievances with the Union, we shall order the Respond-
ent to comply with the Union’s request dated May 23,
2012 to process the grievances to arbitration under the
terms of the December 8, 2010 collective-bargaining
agreement with the Union.
ORDER
The Respondent, Children’s Hospital and Research
Center of Oakland d/b/a Children’s Hospital of Oakland,
Oakland, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to arbitrate the grievances that arose un-
der the December 8, 2010 collective-bargaining agree-
ment with Service Employees International Union, Unit-
ed Healthcare Workers-West.
(b) 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) Comply with the Union’s request dated May 23,
2012, to process the grievances to arbitration under the
terms of the December 8, 2010 collective-bargaining
agreement with the Union.
(b) Within 14 days after service by the Region, post at
its facility in Oakland, California, copies of the attached
notice marked “Appendix.”31 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places

and rely only on the analysis included in this opinion in deciding this
case.
31 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.”
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its 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. In the event that, during
the pendency of these proceedings, 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 to all cur-
rent employees and former employees employed by the
Respondent at any time since May 23, 2012.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER HIROZAWA, concurring.
In this decision, the Board interprets Section 8(a)(5) of
the Act, which makes it unlawful for an employer to re-
fuse to bargain with representatives of its employees, to
explain that provision’s reference to Section 9(a), which
makes a representative selected by a majority of the unit
employees the exclusive representative of the employees.
The Board then applies its interpretation to find that the
Respondent violated Section 8(a)(5) by refusing to arbi-
trate a grievance with a superseded representative of its
employees that arose during the effective term of its col-
lective-bargaining agreement with the superseded union.
I concur in the Board’s decision in all respects. I write
separately to address a related issue that, in my view,
provides additional support for the Board’s conclusion.
Section 8(a)(5) provides that it is an unfair labor prac-
tice for an employer “to refuse to bargain collectively
with the representatives of [its] employees, subject to the
provisions of section 9(a).” Section 9(a), in turn, pro-
vides that “[r]epresentatives designated or selected for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
the purposes of collective bargaining by the majority of
the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the employ-
ees in such unit . . . . .” The Board’s decision in this case
explains what the subject-to-Section-9(a) clause means
and marshals powerful arguments in support of its inter-
pretation of the statute. That holding alone fully justifies
the result in this case.
I think it is also useful, however, to consider what the
subject-to-Section-9(a) clause does not mean. It does not
mean that for an employer to have a duty to bargain with
a union on behalf of its employees, the union must be a
Section 9(a) exclusive representative. This reading finds
ample support in the text of the Act. I offer two exam-
ples.
First, the Section 8(a)(5) clause at issue here simply
says, “subject to the provisions of section 9(a).” It does
not say, if such representative is “the representative of
the employees as provided in section 9(a).” Clearly, the
Wagner Act Congress, which drafted the language of
Section 8(a)(5), knew how to impose such a requirement
if it so intended. It imposed precisely that requirement,
using precisely that language, in a parallel subsection of
the same section of the Act, Section 8(a)(3). The ab-
sence of such a requirement from Section 8(a)(5) is a
strong indication that no such requirement was intended
by Congress.
Second, the Act’s statement of the right enforced by
Section 8(a)(5) is unencumbered by any requirement of
Section 9(a) status. That statement appears, of course, in
Section 7: “Employees shall have the right . . . to bargain
collectively through representatives of their own choos-
ing . . . .” Again, there is no requirement that the repre-
sentatives through which employees exercise their right
to bargain have attained Section 9(a) status or otherwise
demonstrated majority support. In my view, these provi-
sions, in the light they shed on the intended scope of Sec-
tion 8(a)(5), reinforce the Board’s finding of a violation
of that section for refusal to bargain with a superseded
union, which by definition was no longer a Section 9(a)
exclusive representative.
Dated, Washington, D.C. August 26, 2016
______________________________________
Kent Y. Hirozawa, 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 refuse to arbitrate grievances that arose
under the December 8, 2010 collective-bargaining
agreement with the Service Employees International Un-
ion, United Healthcare Workers-West.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL comply with the request of the Service Em-
ployees International Union, United Healthcare Workers-
West, dated May 23, 2012, to process the grievances to
arbitration under the terms of the December 8, 2010 col-
lective-bargaining agreement with that Union.
CHILDREN’S HOSPITAL AND RESEARCH CENTER
OF OAKLAND D/B/A CHILDREN’S HOSPITAL OF
OAKLAND
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-086106 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.
CHILDREN’S HOSPITAL AND RESEARCH CENTER OF OAKLAND D/B/A CHILDREN’S HOSPITAL OF OAKLAND 9
Jennifer D. Kaufman and Fred B. Jacob, Esqs., for the General
Counsel.
Bonnie Glatzer and David A. Kolek, Esqs. (Nixon Peabody,
LLP), of San Francisco, California, for the Respondent.
Manuel A. Boigues, Esq. (Weinberg, Roger & Rosenfeld), of
Alameda, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was presented to me based on a stipulated record that I ap-
proved on July 1, 2013. The Service Employees International
Union, United Healthcare Workers-West (the Union) filed the
charge on July 26, 2012, and the General Counsel issued the
complaint on March 29, 2013. The complaint alleges that
Children’s Hospital and Research Center of Oakland d/b/a
Children’s Hospital of Oakland (the Hospital) violated Section
8(a)(5) and (1) by refusing to arbitrate grievances that arose
under a collective-bargaining agreement between the Union and
the Hospital. The Hospital filed a timely answer that admitted
the allegations of the complaint concerning the filing and ser-
vice of the charge, interstate commerce and jurisdiction, the
Union’s labor organization, as well as that of the National Un-
ion of Healthcare Workers (NUHW). The Hospital also admit-
ted the agency status of Brenda Husband, the Hospital’s em-
ployee and labor relations manager, the appropriate unit, and
that the Union represented the employees in that unit until May
16, 2012, at which time the Union was decertified and replaced
by the NUHW. The Hospital also admits that during the time
that the Union represented the unit employees the Union had a
collective-bargaining agreement with the Hospital that included
grievance-arbitration procedures, that during that same time
period three grievances were filed, and after the NUHW re-
placed the Union as the collective-bargaining representative the
Union demanded that the Hospital arbitrate those grievances,
but the Hospital refused to do so. The Hospital refused to do so
even after the NUHW advised that it did not oppose the Un-
ion’s demand to arbitrate. In its answer, the Hospital pleads a
number of affirmative defenses; none of them are meritorious
under Board law.
On the entire record and after considering the briefs filed by
the General Counsel1 and the Hospital, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Hospital, a corporation, operates a “non-profit” pediatric
hospital at its facility in Oakland, California, where it annually
derives gross revenues in excess of $250,000 and purchases and
receives at its facility goods and services valued in excess of
$5000. The Hospital admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union and the NUHW are labor
organizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As indicated, the Hospital operates a pediatric hospital and

1 The Union adopted the brief of the General Counsel as its own.
research center whose main facility is located in Oakland, Cali-
fornia, where it employs more than 2800 people. Until
May 23, 2012, the Union was the exclusive bargaining repre-
sentative for a bargaining unit consisting of most o f R e -
s p o n d e n t ’ s s e r v i c e , maintenance, and technical em-
ployees. The Hospital and the Union negotiated a series of
collective-bargaining agreements that governed the terms
and conditions of employment for the employees in the
Hospital’s bargaining unit represented by the Union. The most
recent contract was to be effective from December 8, 2010 to
April 30, 2014; it contained a two-step grievance procedure,
after which either party could request arbitration.
The NUHW was formed in or about early 2009. On Febru-
ary 2, 2009, NUHW filed a representation petition with Region
3 2, which sought an election to have NUHW certified as the
exclusive bargaining representative of the Respondent em-
ployees who were then represented by the Union. The NLRB
conducted an election on August 16, 2011, but the results of
the August 16, 2011 election were set aside after an admin-
istrative law judge found that certain conduct of NUHW inter-
fered with the employees’ exercise of a free and reasoned
choice. The NLRB conducted a second election on May 16,
2012. A majority of the voting employees selected the NUHW
as their bargaining representative. On May 24, 2012, Region
32 certified NUHW as the winner of the representation elec-
tion. As a result, NUHW is now the certified a n d exclusive
bargaining representative for the Hospital’s employees in the
unit previously represented by the Union.
On April 24, 2012,2 the Hospital terminated Sharon Brown’s
employment. It contended that Brown failed to comply with
the terms of a Last Chance Agreement mandated by a Joint
Adjustment Board, which consisted of an equal number of
Hospital and Union representatives. Thereafter, the Union
continued to pursue a grievance over Brown’s termination. On
May 23, Brown also filed an unfair labor practice charge
with Region 32 in Case 32–CA–081636 alleging that her
termination and the failure to reinstate her were for discrimina-
tory reasons. On May 30, the Union also filed an unfair
labor practice charge with Region 32 in Case 32–CA–
082033 alleging that Brown’s termination was because of her
protected concerted activities. Following an investigation,
the Region dismissed all charges related to Brown on July
30. On November 6, the Region’s dismissals of the
Brown charges were affirmed following an appeal to the
NLRB’s General Counsel.
In April 2011, Yolanda Montoya, a part-time patient care as-
sistant, applied for a full-time patient care assistant position.
The Hospital initially awarded the full-time position to
Montoya effective June 12, 2011, but subsequently learned
that the position should have been awarded to a more senior
employee under the terms of the contract. Before Montoya
started in the new position, the Hospital rectified the error,
and the more senior employee received the position. On De-
cember 1, 2011, pursuant to an agreement with the Union, the
Hospital awarded Montoya the next available full-time position.
The Union continued to pursue a grievance seeking back-

2 All dates are in 2012, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
pay for Montoya from June 12, 2011 until December 2011,
when Montoya started in her full-time position.
In or about September or October 2011, the Union filed
a grievance alleging that five respiratory therapists should
have been paid at a higher step level under the terms of the
contract. The parties resolved all of the individual cases, except
for two. The two unresolved cases concerned two therapists
who the Hospital alleged were not entitled to higher pay be-
cause they had not yet begun their training for transport duties.
Several months later, when the therapists began their
transport training, the Hospital began paying them the transport
differential pay per the contract. The Union continued pursuing
its grievance alleging these employees are still owed additional
pay per the terms of the contract.
On May 23, 2012, Union Business Agent Sharrion Mar-
shall emailed the Hospital’s Labor Relations Manager, Brenda
Husband. Marshall requested that all three of the grievances
described above be moved to arbitration in accordance with the
contract’s grievance procedures. On June 19, the Union
renewed its request for arbitration of the grievances.
On July 16, the Hospital declined to arbitrate the grievances
because NUHW had replaced the Union as the exclusive
bargaining representative. The Hospital also requested that
the Union withdraw its request to arbitrate the grievances no
later than the close of business on July 20. The Hospital
stated that if the Union did not withdraw its request to arbitrate
the grievances by the close of business on July 20 it would
seek injunctive relief. The Union did not communicate with
the Hospital’s counsel before the close of business on July
20 indicating intent to withdraw its arbitration request or in
any other manner. On July 24, the Union declined the Hospi-
tal’s request to withdraw arbitration demands regarding the
grievances.
On July 24, the Hospital filed a complaint against the Union
in the U.S. District Court, Northern District of California, Case
No. C 12–03862 Sl. The Hospital’s complaint sought an in-
junction permanently restraining the Union from requesting or
compelling it to arbitrate the grievances and a declaratory
judgment that the Union had no legal right to compel it to
arbitrate the grievances. On August 23, the Union filed an
opposition to t h e Hospital’s motion for injunctive relief.
On August 29, the Union filed a cross-petition to compel the
Hospital to arbitrate the grievances. On October 5, the Honor-
able U.S. District Judge Susan Illston held a hearing on the
Hospital’s motion for preliminary injunction and the Union’s
cross- petition to compel arbitration. On October 12, the
Court denied the Union’s motion to compel arbitration of the
grievances and, in light of this denial, denied the Hospital’s
motion for preliminary injunction and declaratory judgment as
moot. See Children’s Hosp. & Research Ctr. Oakland v.
SEIU (N.D. Cal. Oct. 12, 2012), 2012 U.S. Dist. LEXIS
17461. The Court entered judgment consistent with its Octo-
ber 12 order on October 31. The parties did not appeal the
Court’s judgment.
On July 26, the Union filed the instant unfair labor practice
charge with the Region. As a part of its investigation of the
charge, the Region solicited positions from the Hospital and
NUHW regarding the Union arbitrating the grievances. The
Hospital informed the Region that it declined to arbitrate the
grievances with the Union. On January 17, 2013, NUHW, by
its counsel, informed the Region that it did not oppose the
Union’s arbitrating the grievances. On February ·13, 2013,
the Region informed the Hospital that NUHW’s counsel
had advised the Region that NUHW did not oppose the Un-
ion’s arbitrating the grievances. On February 19, 2013, the
Hospital informed the Region that it still declined to arbitrate
the grievances with the Union. Between February 13 and 19,
2013, NUHW Business Agent Faye Roe informed the Hos-
pital’s Employee and Labor Relations Manager Brenda Hus-
band that NUHW has never g i v e n the Union any indica-
tion that NUHW wishes the Hospital to bargain or arbitrate
with the Union with respect to any of the Hospital’s work-
ers, given that it no longer represents these workers.
III. ANALYSIS
The issue is whether the Hospital violated Section 8(a)(5) by
refusing to arbitrate grievances that arose under an expired
contract under circumstances where the union that was a party
to the contract is no longer the representative of the employees
and has been replaced by another union as the representative of
the employees. The starting point is that the settled proposition
that an employer must arbitrate grievances that arose under an
expired contract. Nolde Bros., Inc., v. Bakery Workers, 430
U.S. 243 (1977). If it refuses to do so, it violates Section
8(a)(5). Indiana & Michigan Electric Co., 284 NLRB 53
(1987). An employer must arbitrate such grievances even if the
union no longer represents any employees of the employer.
Missouri Portland Cement Co., 291 NLRB 1043 (1988). And
it is clear that a replacement union may not seek to arbitrate
grievances that arose under the contract between its predecessor
union and the employer. Arizona Portland Cement Co., 302
NLRB 36 (1991). These cases, taken together, are compelling
signals that the Hospital’s conduct here also violated the Act.
The Hospital, however, makes several arguments as to why
those decisions should not dictate the result in this case. First,
the Hospital argues that it may only negotiate with the exclu-
sive bargaining representative of the unit employees and the
Union no longer is that representative. But this argument has
been rejected by the Board. Missouri Portland Cement, supra.
Next, it argues that if it processes the grievance under the ex-
pired agreement with the Union it may be charged with an
8(a)(2) unfair labor practice. But this fear is unfounded, at least
on the facts of this case. The grievances in this case involve
nothing more that reinstatement and backpay. All that the Hos-
pital is required to do is complete the unfinished business aris-
ing from the expired contract and expired collective-bargaining
relationship. Nothing need spill over into determining current
conditions of employment for the unit employees; that must be
done exclusively with the NUHW. The Hospital then argues
that processing the grievances with the Union would destabilize
its relationship with the NUHW. I see no merit in this argu-
ment. However, the grievances are resolved, whether through
negotiation and settlement or in arbitration their resolution
merely becomes part of the history of the Hospital’s past rela-
tionship with the Union. The Hospital is required to do nothing
more than sew up the loose ends of its past relationship with the
CHILDREN’S HOSPITAL AND RESEARCH CENTER OF OAKLAND D/B/A CHILDREN’S HOSPITAL OF OAKLAND 11
Union. The Hospital and the NUHW are free to chart their own
course. Next, as the Hospital points out, there is some language
in the prior cases that seems to indicate that those holdings
might not apply when a predecessor union has been replaced,
but the Board has made clear that such language is dicta and
should not be interpreted in that manner. Local 888, American
Fed. Of Gov’t Employees (Bayley-Seton Hosp.) 323 NLRB 717,
721 (1997). Finally, the General Counsel and the Hospital
disagree as to the significance of the statements made by the
NUHW regarding the grievances. I find that those statements
are irrelevant. NUHW has no say whatsoever concerning the
processing of those grievances just as the Union can play no
part in determining conditions of employment since its decerti-
fication. By refusing to arbitrate the grievances that arose un-
der the expired collective-bargaining agreement, the Hospital
violated Section 8(a)(5) and (1).
CONCLUSIONS OF LAW
By refusing to arbitrate the grievances that arose under the
December 8, 2010, collective-bargaining agreement with the
Union, the Hospital has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Children’s Hospital and Research Center of
Oakland d/b/a Children’s Hospital of Oakland, Oakland, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to arbitrate the grievances that arose under the
December 8, 2010 collective-bargaining agreement with the
Union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Comply with the Union’s request dated May 23, 2012, to
process the grievances to arbitration under the terms of the
December 8, 2010 collective-bargaining agreement with the
Union.
(b) Within 14 days after service by the Region, post at its fa-
cility in Oakland, California, copies of the attached notice

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, 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 to all current employees and
former employees employed by the Respondent at any time
since May 23, 2012.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. August 1, 2013
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 refuse to arbitrate grievances that arose under
the December 8, 2010 collective-bargaining agreement with the
Service Employees International Union, United Healthcare
Workers-West.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL process grievances to arbitration under the terms of
the December 8, 2010 collective-bargaining agreement with the
Service Employees International Union, United Healthcare

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Workers-West.
CHILDREN’S HOSPITAL AND RESEARCH CENTER OF
OAKLAND D/B/A CHILDREN’S HOSPITAL OF OAKLAND