NLRB Must Resolve Conflict Over Dealing With Old or New Union, D.C. Cir. Rules

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By Jay-Anne Casuga

July 7 — The National Labor Relations Board must resolve a conflict between federal labor law provisions to determine whether a California pediatric hospital has a duty to arbitrate outstanding employee grievances with a decertified union that was replaced by a new union, the U.S. Court of Appeals for the District of Columbia Circuit ruled July 7.

The D.C. Circuit explained that Section 8(a)(5) of the National Labor Relations Act requires employers to arbitrate grievances with a prior union even after the expiration of a collective bargaining agreement. However, Section 9(a) requires employers to bargain exclusively with a newly certified union.

The D.C. Circuit said Section 8(a)(5) of the National Labor Relations Act requires employers to arbitrate grievances with a prior union even after the expiration of a bargaining agreement, but Section 9(a) requires employers to bargain exclusively with a newly certified union.

The NLRB failed to resolve this statutory conflict when it decided that the Children's Hospital and Research Center of Oakland must arbitrate three outstanding employee grievances with the Service Employees International Union, which had been replaced by the National Union of Healthcare Workers, the appeals court said. Therefore, the court granted the hospital's petition to review the NLRB's ruling, denied the board's cross-petition for enforcement of its order, and remanded the case for further proceedings.

Judge Karen LeCraft Henderson wrote the opinion, joined by Judges David S. Tatel and Thomas B. Griffith.

NUHW Replaced SEIU at Hospital

According to the court, the SEIU served as the bargaining representative for most of the service, maintenance and technical workers at the hospital. In 2009, the NUHW filed election petitions with the NLRB to represent health care workers in several medical centers in California, including Children's Hospital.

The NUHW ultimately won a representation election over the SEIU and was certified as the exclusive bargaining representative in May 2012.

Around this time, the SEIU and the hospital had unresolved employee grievances. The hospital declined to arbitrate those disputes because the SEIU no longer represented the employees at issue.

The SEIU filed an unfair labor practice charge with the NLRB and the board's general counsel issued a complaint against the hospital.

An NLRB administrative law judge ruled that arbitrating old grievances “amounted to nothing more than completing ‘unfinished business' and ‘sew[ing] up…loose ends,'” and that the hospital violated NLRA Section 8(a)(5) by refusing to arbitrate with the SEIU. The board affirmed in February 2014 (360 N.L.R.B. No. 56, 198 LRRM 1709 (2014)), and the hospital appealed.

Court Remands for Further Interpretation

The D.C. Circuit ruled that the case must be remanded to the NLRB for further statutory interpretation.

Section 8(a)(5) makes it unlawful for an employer “to refuse to bargain collectively with the representatives of his employees,” the court explained. The right to arbitrate employee grievances also falls within that provision, and the U.S. Supreme Court has held that Section 8(a)(5) “requires an employer to arbitrate unfinished business with an old union even after their collective bargaining agreement expires,” the court said.

However, Section 9(a) obligates employers to bargain “only with the majority union” and no other, the court said.

“The interplay of section 8(a)(5) and section 9(a) is a question of statutory interpretation—one that the NLRA does not unambiguously resolve,” the court said. “The NLRA 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 begins.”

The appeals court said the case presents a “classic scenario” for administrative interpretation under Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984), but the NLRB never cited Chevron. Additionally, the board discussed only Section 8(a)(5) in its ruling below and didn't consider Section 9(a)'s exclusivity provision, the court said.

“[W]e are left wondering how the Board in these circumstances interprets section 9(a),” the D.C. Circuit said. “When an agency fails to wrestle with the relevant statutory provisions, we cannot do its work for it.”

Nixon Peabody represented the hospital. Weinberg, Roger & Rosenfeld represented the SEIU. The NLRB represented itself.

To contact the reporter on this story: Jay-Anne Casuga in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at

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