KENDALL HEALTHCARE GROUP, LTD., a limited partnership, and COLUMBIA HOSPITAL CORPORATION OF KENDALL,

372 NLRB No. 88 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. Kendall Healthcare Group, LTD., a limited partner- ship, and Columbia Hospital Corporation of Kendall, general partner, d/b/a HCA Florida Kendall Hospital Northwest Medical Center, Inc. d/b/a HCA Florida Northwest Hospital Largo Medical Center, Inc. d/b/a HCA Florida Largo Hospital Galen of Florida, Inc. d/b/a HCA Florida St. Peters- burg Hospital Galencare, Inc. d/b/a HCA Florida Northside Hospital New Port Richey Hospital, Inc. d/b/a HCA Florida Trinity Hospital HCA Health Services of Florida, Inc. d/b/a HCA Flor- ida Blake Hospital Osceola Regional Hospital, Inc. d/b/a HCA Florida Os- ceola Hospital Sarasota Doctors Hospital, Inc. d/b/a HCA Florida Sarasota Doctors Hospital JFK Medical Center Limited Partnership, a limited partnership, and Columbia Palm Beach GP, LLC, general partner, d/b/a JFK Medical Center - North Campus HCA Health Services of Florida, Inc. d/b/a HCA Flor- ida Oak Hill Hospital Fawcett Memorial Hospital, Inc. d/b/a HCA Florida Fawcett Hospital University Hospital, LTD, a limited partnership, and Columbia Hospital Corporation of Tamarac, general partner d/b/a HCA Florida Woodmont Hospital HCA Health Services of Florida, Inc. d/b/a HCA Flor- ida St. Lucie Hospital and 1199SEIU, United Healthcare Workers East, Service Employees 1 The General Counsel argues in her exceptions that the judge erred in refusing to permit her to present her case-in-chief. The General Coun- sel also excepts to the judge’s finding that the first factor of the test set forth in Detroit Medical Center, 369 NLRB No. 41, slip op. at 1 (2020), regarding whether the dispute arose within the confines of a long and productive collective-bargaining relationship, supported deferral of this case to arbitration. Because the General Counsel presents no argument in support of these exceptions, consistent with the Board’s rules, we dis- regard them. See Board Rules and Regulations, Sec. 102.46(a)(1)(ii) (“Any exception which fails to comply with the foregoing requirements [including providing argument in support of the exception] may be dis- regarded.”); accord St. Paul Park Refining Co., LLC d/b/a Western Re- fining, 366 NLRB No. 83, slip op. at 1 fn. 3 (2018), enfd. 929 F.3d 610 (8th Cir. 2019); Natural Life, Inc. d/b/a Heart & Weight Institute, 366 NLRB No. 53, slip op. at 1 fn. 3 (2018), enfd. 827 Fed. Appx. 724 (9th Cir. 2020). International Union. Cases 12–CA–282408, 12– CA–282411, 12–CA–282417, 12–CA–282420, 12– CA–282425, 12–CA–282432, 12–CA–284830, 12– CA–284838, 12–CA–284846, 12–CA–284855, 12– CA–284857, 12–CA–284872, 12–CA–284898, 12– CA–285205 May 18, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On October 28, 2022, Administrative Law Judge Kelt- ner W. Locke issued the attached decision. The General Counsel and the Union each filed exceptions and a sup- porting brief,1 the Respondents filed an answering brief to each, and the Charging Party filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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,2 and conclusions, and to adopt the recommended Order as modified and set forth in full below.3 ORDER IT IS ORDERED that the complaint is dismissed, provided that the Board retains jurisdiction over this proceeding for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Order, either been re- solved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act. Dated, Washington, D.C. May 18, 2023 2 We adopt the judge’s finding that deferral to the parties’ grievance arbitration procedure is warranted pursuant to Detroit Medical Center, supra. We do not rely on the judge’s discussion of the potential merits of the dispute, including his application of the sound arguable basis standard. Whether Respondents had a “sound arguable basis” for their interpretation of the contract goes to the ultimate question of whether Respondents unlawfully modified the contract—not to the threshold is- sue of deferral. See Bath Iron Works Corp., 345 NLRB 499 (2005), affd. sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007). Additionally, we find it unnecessary to pass on the judge’s statement that the Board is not authorized to supply a definition of the term “elec- tronic dues authorization.” 3 We shall modify the judge’s recommended Order to retain the Board’s limited jurisdiction over the proceedings dismissed for the pur- pose of deferral. See, e.g., Detroit Medical Center, supra, slip op. at 2; United Hoisting & Scaffolding, Inc., 360 NLRB 1258, 1258 (2014). 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Rafael Aybar, Esq., for the General Counsel. Patricia P. Griffith, Esq. and Tammie L. Rattray, Esq. (Ford & Harrison LLP), for the Respondent. Kathleen M. Phillips, Esq. (Phillips, Richards & Rind, P.A.), for the Charging Party. DECISION Keltner W. Locke, Administrative Law Judge: A single en- tity, HCA Management Services, LLC, controls the labor rela- tions policies of all of the Respondents and negotiates on their behalf with the Union, 1199SEIU, United Healthcare Workers East, Service Employees International Union. All the collective- bargaining agreements resulting from these negotiations have similar terms. The complaint alleges that each of the 14 Respondents has failed to continue in effect a contract term which is the same in all 14 agreements. Each of the Respondents denies the alleged breach. In each of the contracts, the Union and the signatory Respond- ent have agreed to the same procedure, culminating in binding arbitration, to resolve claims of breach. Because all unfair labor practice allegations turn on whether contractual terms have been breached and because both Board precedent and Federal policy favor deferral to arbitration, this matter should be deferred to the agreed-upon arbitral process. Therefore, the complaint is dis- missed. Background On May 2, 2022, the Regional Director for Region 12 of the National Labor Relations Board issued an order consolidating cases, consolidated complaint and notice of hearing (referred to below as the complaint) which, inter alia, consolidated the above-captioned cases for hearing. On August 29, 2022, the Re- gional Director amended the complaint. On August 30, 2022, the hearing opened before me by videoconference. As noted above, HCA Management Services, LLC, negotiates on behalf of all 14 of these Respondents. Each of these Respond- ents has a separate collective-bargaining agreement with the Charging Party, but all of these contracts have similar language. The union-security article of each agreement includes the fol- lowing provision: “The Hospital agrees to recognize electronic dues authorizations completed by the Employer and submitted by the Union, under the same terms and conditions as apply to other dues authorizations.” The complaint alleges that, since on about April 10, 2021, each of the Respondents has failed to continue this contract term in effect, “by failing to recognize electronic dues authorizations completed by bargaining unit employees and submitted by the Union under the same terms and conditions as apply to other dues authorizations . . .” The complaint alleges that the Respond- ents thereby violated Section 8(a)(5) and (1) of the Act, but the complaint does not allege any other unfair labor practice. Both before and at the beginning of the hearing, the Respond- ents took the position that the issue to be decided turns on the meaning of the contractual language, which is properly the prov- ince of an arbitrator rather than the Board, and that each of the collective-bargaining agreements includes a provision for bind- ing arbitration. In arguing for deferral to arbitration, the Re- spondents further stated that they would agree to have one arbi- trator, in a single proceeding, decide how the contractual lan- guage would be interpreted. The General Counsel and Charging Party opposed deferral. Resolution of the deferral issue thus would determine whether further proceedings would be necessary. Accordingly, I asked the parties to present first their evidence on the arbitration issue, and then to argue that issue orally, so that it could be resolved before proceeding further. After hearing testimony and oral argument, I recessed the hearing to review the case authority cited by counsel, and to eval- uate the facts in accordance with the analytical framework set forth in Detroit Medical Center, 369 NLRB No. 41, slip op. at 1 (2020). This analysis led me to conclude that the matter should be deferred to arbitration and the complaint dismissed. Resuming the hearing, I summarized the Detroit Medical Cen- ter analysis, stated that I would be issuing a written order dis- missing the complaint, and closed the hearing. Thereafter, I is- sued the written order. attached hereto as an appendix, dismiss- ing the complaint. Reason For This Decision In dismissing the complaint, I exercised authority delegated by the Board in Section 102.35(a)(8) of the Board’s Rules and Regulations. This subsection empowers the administrative law judge to “dispose of procedural requests” and “also to dismiss complaints or portions thereof. . .” The word “dismiss” carries a sense of finality, so it might be asked why the judge should also issue a decision. In the present case, it appears that the General Counsel may consider the order dismissing the complaint to fall within the category of rulings that may not be appealed directly to the Board except by seeking and obtaining the Board’s special permission to file such an ap- peal. To explain that concern, the following background may be helpful. The Rules divide unfair labor practice proceedings into stages, depending on who, at a particular time, has immediate responsi- bility and authority to act. In general terms, during the investi- gative stage the Regional Director has responsibility, which passes to the judge when the hearing has opened and testimony taken. After the judge issues a decision, the Board, through an order, assumes direct control over the case and entertains any KENDALL HEALTHCARE GROUP, LTD. 3 appeal a party may take by filing timely exceptions to the deci- sion. When a case is before a judge, the parties ordinarily do not have an automatic right to appeal a ruling or order but first must seek and obtain special permission from the Board.1 In the pre- sent case, it appears that one of the parties opposing dismissal of the complaint assumes that this order may be appealed only if the Board grants special permission or if the judge issues a deci- sion. However, although Section 102.26 articulates the general principle that a judge’s rulings may be appealed only when the Board grants special permission, Section 102.27 provides an ex- press exception allowing the appeal of an order dismissing the entire complaint. Section 102.27 states: If any motion in the nature of a motion to dismiss the complaint in its entirety is granted by the administrative law judge before filing his decision, any party may obtain a review of such action by filing a request therefor with the Board in Washington, D.C., stating the grounds for review, and immediately on such filing shall serve a copy thereof on the Regional Director and on the other parties. Unless such request for review is filed within 28 days from the date of the order of dismissal, the case shall be closed. It appears possible to interpret this language in two different ways. On the one hand, because a party need not seek special permission to appeal the dismissal of a complaint in its entirety but may do so as of right, and in view of the fact that, absent a timely appeal, the case is closed, it would be reasonable to con- clude that the order dismissing the complaint ends the judge’s involvement in the case and that no further decision would be necessary. On the other hand, Section 102.27 appears to contemplate that, notwithstanding the issuance of an order dismissing the com- plaint, the judge nonetheless will file a decision. Thus, the rule refers to the judge granting a motion to dismiss “before filing his decision.” Moreover, Section 102.45(a) of the Board’s Rules provides, in part: “After hearing for the purpose of taking evidence upon a complaint, the administrative law judge shall prepare a deci- sion.” This requirement does not include an exception for cases in which the judge dismisses the complaint. Section 102.45(a) further provides that upon “the filing of the decision, the Board shall enter an order transferring the case to the Board . . .” Because the Board has plenary authority, I hesi- tate to view the judge’s filing of a decision as a necessary condi- tion precedent to an order transferring the case. Certainly, an administrative law judge has no power to stymie the Board’s consideration of a case if it wishes to assert control over it. How- ever, in the normal course, the Board does not issue an order transferring the case until it receives the judge’s decision, and it 1 Sec. 102.26 of the Rules states, in part, that “[u]nless expressly au- thorized by the Rules and Regulations, rulings by the Regional Director or by the administrative law judge on motions and/or by the administra- tive law judge on objections, and orders in connection therewith, shall not be appealed directly to the Board except by special permission of the Board, but shall be considered by the Board in reviewing the record if has issued no such order in this case. Therefore, I will assume that it waits expectantly and will proceed to the merits of the case. FINDINGS OF FACT Complaint subparagraphs 1(a) through (f) allege that certain of the unfair labor practice charges were filed on September 2, 2021, and served by United States mail on September 3, 2021. Complaint subparagraphs 1(g) through (n) allege that the re- maining charges were filed on October 19, 2021, and served by United States mail on October 20, 2021. The Respondents’ answer admits both the filing of the charges and their receipt but states that the Respondent lacks knowledge as to when the charges were mailed. Based on these admissions, and the charges and associated documents themselves, and not- ing the presumption of administrative regularity, I find that the General Counsel has proven the allegations raised in complaint subparagraphs 1(a) through (n). Complaint paragraphs 2 through 19, and their subparagraphs, allege that the Respondents are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, as well as facts to support that those legal conclusions. Based upon the admissions in the Respondents’ answer, I conclude that the General Counsel has proven these allegations. Further, I con- clude that each of the Respondents is subject to the Board’s ju- risdiction and meets the Board’s discretionary standards for the assertion of jurisdiction. The Respondent admits, and I find, that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. Moreover, based on admissions in the Respondents’ answer and the collective-bargaining agreements which are in evi- dence.,2 For example, the collective-bargaining agreement be- tween the Union and Respondent Blake Medical Center de- scribes three bargaining units—a “combined unit” of technical employees and service and maintenance employees, a “profes- sional unit” and a “business office clerical” unit—and provides that the Respondent recognizes the Union as the exclusive bar- gaining representative of the employees in each unit. I find that the Union is the exclusive bargaining representative, within the meaning of Section 9(a) of the Act, of the employees in the var- ious bargaining units described in the complaint, and has been recognized as such by the respective Respondents. Further, I conclude that each of the bargaining units is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Although the bargaining unit descriptions in the various col- lective-bargaining agreements differ, in other respects the agree- ments are similar. All have a union-security clause which in- cludes the following language: This Article will become effective the first pay period exception to the ruling or order is included in the statement of exceptions filed with the Board pursuant to section 102.46.” (Emphasis added.) 2 The most recent agreements between the Union and the various Re- spondents are in evidence. Each such contract describes one or more bargaining units and includes the signatory Respondent’s recognition of the Union as the exclusive bargaining representative of the Respondent’s employees in that unit. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD beginning thirty (30) days after ratification of this Agreement and terminate upon expiration of this Agreement. Upon receipt of a properly executed written authorization from an Em- ployee, the Hospital agrees to deduct from the Employee’s bi-weekly pay a charge equal to the dues Union members pay, regardless of the Employee’s status in the Union, and to remit that charge to the Union within fourteen (14) calendar days from the date of deduction, together with an electronic list of all Employees for whom deductions have been made and the amount of said deductions. In the event that no wages are due to an Employee, or the Employee’s wages are insufficient to cover the authorized deductions, the deductions shall be made from the first wages of adequate amount next due the Em- ployee. The Hospital agrees to recognize electronic dues au- thorizations completed by the Employee and submitted by the Union, under the same terms and conditions as apply to other dues authorizations. [Emphasis added.] Thus, a dues authorization allows a Respondent to deduct an authorizing employee’s union dues from his pay and send that amount to the Union. As the italicized language provides, the Respondent has agreed to recognize electronic dues authoriza- tions “under the same terms and conditions as apply to other dues authorizations.” Whether or not the Respondents have refused to give effect to this contract provision depends on the meaning of these words. The parties don’t agree on what constitutes the “same terms and conditions” that apply to other dues authorizations. More spe- cifically, no one disputes the principle that a dues authorization must be signed to be valid, but the parties disagree about what constitutes an acceptable signature. The Respondents essentially take the position that a person signs a document by writing his name. What makes the author- ization “electronic” is the means of delivery. As a practical matter, this interpretation means that an em- ployee would have to sign a form in the traditional way and then the signature would be scanned and transmitted to a Respondent as an email attachment or by fax. Presumably, someone also could produce a valid signature using a stylus or finger on a touch screen. An argument in favor of this interpretation might note that the tradition of signing long has carried both ceremonial and legal significance. The manual rite both solemnizes the act and pro- vides an exemplar which, by comparison with past signatures, assures authenticity. Each person’s signature is said to reflect that individual’s unique personality, so inscribing it on a docu- ment physically symbolizes the signer’s personal commitment to the document’s text. In effect, the soul of a signature is in the scrawl. To this, the General Counsel might answer, “Don’t be so 20th 3 Sec. 302(d) states, in part: (1) Any person who participates in a transaction involving a payment, loan, or delivery of money or other thing of value to a labor organization in payment of membership dues. . . which transaction does not satisfy all the applicable requirements of subsections (c)(4) through (c)(9) of this section, and willfully and with intent to benefit himself or to benefit other persons he knows are not permitted to receive a payment, loan, money, or other thing of value under subsections (c)(4) through (c)(9) violates Century.” Actually, the General Counsel expresses the argument more politely, but the underlying idea is that the law, keeping pace with technology, recognizes that there are better, more modern ways to assure authenticity than by comparing wavy lines of ink. More than that, the General Counsel cites specific statutes which, the government claims, define what is a valid electronic signature. Before discussing the General Counsel’s position, it may be well to note that both sides are advancing their respective argu- ments in good faith. The Respondents and the Union are not disagreeing about the meaning of the contractual language just for the thrill of semantic sparring. Each side’s interpretation of the clause in question carries significant consequences. If the Union’s interpretation is correct, authorizing the deduc- tion of dues becomes more convenient. An employee could ex- ecute a valid authorization by visiting the Union’s website online, which the employee could do almost anywhere. No un- ion agent would have to bring a paper form or a touchscreen to the employee and no one would have to scan a document before transmitting it electronically. However, the Respondent does not wish to accept a form that does not bear an actual signature, or the image of a signature, because it fears incurring criminal liability. Section 302 of the Act makes it unlawful for an employer to accept “any money or other thing of value” from a labor organization. But the law makes an exception for money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner . . . See Sec. 302(c), 29 U.S.C. § 186(c). Section 302(d) provides significant criminal penalties for violations. See 29 U.S.C. § 186(d). Although the law does not specifically state what suf- fices as a “written assignment,” the penalties for violation are so severe329 U.S.C, § 186(d)(emphasis added), that the Respondent understandably would wish to err, if at all, on the side of caution. Thus, both the Respondents and the Union have good-faith rea- sons to maintain their respective positions tenaciously. The General Counsel contends that existing laws have already resolved what constitutes a valid electronic signature. The dis- cussion below will focus on that argument, but first it should be noted that the central question—whether the Respondents have failed to give effect to part of the collective-bargaining agree- ments—does not turn on the definition of “electronic signature,” a term not found in the contractual language. The actual issue which must be decided, either here or by an this subsection, shall, upon conviction thereof, be guilty of a felony and be subject to a fine of not more than $15,000, or imprisoned for not more than five years, or both; but if the value of the amount of money or thing of value involved in any violation of the provisions of this section does not exceed $1,000, such person shall be guilty of a misdemeanor and be subject to a fine of not more than $10,000, or imprisoned for not more than one year, or both. [Emphasis added.] KENDALL HEALTHCARE GROUP, LTD. 5 arbitrator, is whether the Respondents have failed to recognize electronic dues authorizations “under the same terms and condi- tions as apply to other dues authorizations.” (Emphasis added.) Therefore, the analysis must begin by determining the terms and conditions which apply to non-electronic dues authorizations. Only after ascertaining those terms and conditions can we deter- mine whether the terms and conditions for recognizing an elec- tronic dues authorization are the same. The Respondent accepts a paper dues authorization form as valid when that form bears the employee’s physical signature. Clearly, a term and condition of receiving a nonelectronic dues authorization is that the form be signed. It is far from frivolous to argue that the manual act of signing the form—with fingers guiding a pen making cursive lines—is itself a condition to make the dues deduction authorization valid and, in fact, a very important one. For centuries, a document without a signature has been considered naked and ineffectual. Moreover, from at least 1622, when Camillo Baldi wrote: How to Judge the Nature and the Character of a Person From His Letter, a person’s signature has been associated with the in- dividual’s defining traits. This widespread public belief, what- ever its scientific validity, endows the physical signature with a gravitas not duplicated by mouse clicks on a computer screen. So does the long legal tradition that a person’s signature on a document binds him to its terms. Because of its historical importance, the Respondents’ nego- tiators reasonably could believe that a physical signature on an authorization form was one of the “terms and conditions” which would not change. The Respondents certainly would not assume that, by agreeing to the same “terms and conditions,” they were actually agreeing to a change. The present record does not indicate that the Union’s negotia- tors told the Respondents that “although the language refers to the same terms and conditions that’s not true; you really are agreeing to accept authorizations which don’t meet your existing requirements.” The Respondents have a sound arguable basis to assert that the word “same” in the contract should be accorded its normal, eve- ryday meaning, that is, the “opposite of different.” They have a sound arguable basis to note that the General Counsel is ignoring the word “same” and instead insisting that they must abandon the way they have authenticated the authorization forms in the past and instead resort to a method never mentioned in the agreement. Conceivably, the negotiators discussed and agreed upon what the phrase “same terms and conditions” meant. However, at this point, the record does not reflect what was said when the Re- spondents and the Union negotiated the language in question. Before examining that bargaining history, a threshold question must be answered: Who should be doing the examining? 4 In Bath Iron Works Corp., above, the Board discussed the differ- ences between an allegation that an employer had made an unlawful uni- lateral change in working conditions and an allegation that an employer had unlawfully modified the collective–bargaining agreement. The Board also held that, in a contract modification case, it was not appropri- ate to judge the lawfulness of the respondent’s action by asking whether the union clearly and unmistakably had waived its right to bargain. In the present case, the General Counsel argues that “the Board’s de- cision in Bath Iron Works, 345 NLRB 499, decided in 2005, should be To respect the parties’ right to determine what their contract will say and what it means, the Board first asks if a respondent has a “sound arguable basis” for its position. If so, the Board stops short of telling the parties that “here’s what you really meant,” and instead defers to their agreed-upon arbitration pro- cedure. Bath Iron Works Corp., 345 NLRB 499 (2005).4 Obvi- ously, an administrative law judge has no authority to overturn Board precedent. Therefore, I will presume that the General Counsel raised these arguments to preserve them for Board con- sideration. However, the General Counsel would argue that even if the Respondents would have a sound arguable basis for their inter- pretation in the absence of Federal and State laws defining “elec- tronic signature,” these laws make their argument unsound. Dur- ing opening argument, the General Counsel quoted both the fed- eral and Florida5 statutes: Indeed, the employee’s authorization form was at once elec- tronically signed in compliance with existing federal law per- taining to commerce and trade, at 15 U.S.C. Section 7006, which defines an electronic signature as follows: “The term, electronic signature, means an electronic sound, symbol or pro- cess, attached to or logically associated with a contract or other record, and executed or adopted by a person with the intent to sign the record.” Likewise, Florida law is also consistent with the federal act. Florida Statute 668.50, the Uniform Electronic Transaction Act, defines an electronic signature in the same manner as the federal statute. The Florida statute further states, “Attribution and effect of electronic record and electronic signature: (a) An electronic record or electronic signature is attributable to a person if the record or signature was the act of the person. The act of the per- son may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the per- son to which the electronic record or electronic signature was attributable,” and “(b) The effect of an electronic record or an electronic signature attributed to a person under paragraph (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the par- ties’ agreement, if any, and otherwise as provided by law.” The Federal law cited by the General Counsel is found in Title 15, Chapter 96, Electronic Signatures in Global and International Commerce, Subchapter I - Electronic Records and Signatures In Commerce. That chapter begins with a “general rule of validity” which states: (a) In general Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II of this overturned and replaced by the clear and unmistakable waiver standard regarding midterm modifications, under which standard there is a mid- term modification in these cases.” Similarly, the General Counsel argues that the Board should overrule the “contract coverage” standard it adopted in MV Transportation, Inc., 368 NLRB No. 66 (2019), and apply instead the “clear and unmistakable waiver” test. 5 All of the Respondents have facilities and do business in the State of Florida. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chapter), with respect to any transaction in or affecting inter- state or foreign commerce— (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or en- forceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely be- cause an electronic signature or electronic record was used in its formation. 15 U.S.C. § 7001(a). As always when considering laws other than the Act, it is help- ful to keep in mind the contours of the Board’s jurisdiction and authority. Obviously, the government cannot be arguing that the Board should enforce some statute other than the Act because the General Counsel has cited no precedent stating that the Board would have power to do so. Likewise, it seems doubtful that the Board would have the authority to rewrite a portion of a collec- tive-bargaining agreement even if the reason were to bring the agreement into compliance with a law other than the Act. Perhaps the General Counsel is contending that the Board can- not entertain an interpretation of a collective-bargaining agree- ment which would conflict with another statute or that the Re- spondents cannot be heard to advance such an interpretation. That would make the Respondent’s position, however sound, un- arguable. However, the negotiators may have been unaware of the laws which, according to the General Counsel, force the Respondents to accept electronic documents not signed in the traditional way. The Respondents cannot be silenced from telling the truth about what the bargainers intended. It is not clear that an authorization for deduction of union dues is a “transaction in or affecting interstate or foreign commerce within the meaning of the Federal law cited by the General Coun- sel. But assuming, for the sake of analysis, that this law is rele- vant, it should be considered in its entirety. The statute includes, after the portion quoted above, a statement that it does not “re- quire any person to agree to use or accept electronic records or electronic signatures, other than a governmental agency with re- spect to a record other than a contract to which it is a party.” 15 U.S.C. § 7001(b)(2). It is significant that the terms “electronic records” and “elec- tronic signatures” are in the disjunctive, separated by “or” rather than by “and.” Both the fact that the statute’s text uses two phrases—“electronic records” and “electronic signature”—and that it uses the disjunctive “or,” suggests that the drafters took pains to keep the concepts distinct. An agreement to use “elec- tronic records” would not necessarily imply agreement to use “electronic signatures.” The collective-bargaining agreements do not refer to either “electronic records” or “electronic signatures” but rather to “electronic means.” This term, too, is separate and distinct from “electronic signatures.” Therefore, even taking into account the Federal law cited by the General Counsel, it does not compel the 6 The term “dues checkoff card” typically refers to a form, printed on cardstock, which an employee signs to authorize the dedication of union conclusion that the Respondents agreed to “electronic signa- tures.” Just as likely, by using the term “electronic means,” the Respondents were referring only to the means of transmission. All of the Respondents operate facilities in Florida, and the General Counsel also has cited the definition of “electronic sig- natures” in Florida’s Uniform Electronic Transaction Act. The government’s argument presumably rests on the assumption that an employee signing a dues-deduction authorization thereby en- gages in a “commercial transaction” subject to the Florida law. However, such a conclusion is not self-evident. An authorization to deduct dues from pay and to send that amount directly to the Union does not entail buying, selling, bor- rowing or lending. Absent a precedent holding that a dues de- duction is, in fact, a commercial transaction, I conclude that the cited Florida law is not relevant. The General Counsel also appears to suggest that the Board itself define, or already has defined, what constitutes an “elec- tronic signature.” The General Counsel argued as follows during the hearing: The Board should—is in the best position to make the determi- nation of whether the electronic dues checkoff cards6 that have been submitted comply with the standards established by the Board for determining when the cards, in this case, are valid under the Act. The words “with the standards established by the Board” suggest that the Board already has defined what constitutes a valid elec- tronic signature, or at least that it contemplates doing so. How- ever, the General Counsel cited no specific standards for what would constitute a valid electronic signature. The General Counsel’s argument may be referring to guide- lines for assessing the validity of electronic signatures used to make a “showing of interest” in a representation case. When a union asks the Board to conduct an election, it must present valid signatures proving that at least 30 percent of the workers in an appropriate bargaining unit seek union representation. Traditionally, unions have satisfied this showing of interest requirement by submitting to the Board authorization cards signed by employees. In 2014, the Board concluded that its ex- isting regulations allowed unions to submit a showing of interest with electronic signatures. On October 26, 2015, the General Counsel issued GC Memo 15-08, providing guidelines for deter- mining which electronic signatures would be deemed acceptable to support a showing of interest. It appears that, in the argument quoted above, the General Counsel may be suggesting that these guidelines should be used in the present case to define what constitutes an electronic dues- deduction authorization which the Respondents, by contract, are required to accept. For reasons discussed below, it would not be appropriate to import the “electronic showing of interest stand- ards” into the parties’ collective-bargaining agreements. How- ever, even if the law allowed use of these guidelines as a standard here, doing so would present serious problems. For example, the guidelines in GC 15-08 include, among a number of other requirements, the following: dues. Therefore, I understand the General Counsel’s reference to “elec- tronic dues checkoff cards” to mean electronic dues authorizations. KENDALL HEALTHCARE GROUP, LTD. 7 A party submitting either electronic or digital signatures must submit a declaration (1) identifying what electronic or digital signature technology was used and explaining how its controls ensure: (i) that the electronic or digital signature is that of the signatory employee, and (ii) that the employee herself signed the document; and (2) that the electronically transmitted infor- mation regarding what and when the employees signed is the same information seen and signed by the employees. [Footnote omitted.] Taking these guidelines out of their representation case con- text and applying them here would raise significant questions about the elements necessary to establish a violation and about allocating the burden of proof. For example, would the General Counsel, as an element of proving that a Respondent’s refusal to accept a document with an electronic signature violated Section 8(a)(5), have to establish that the Union did not furnish the Re- spondent with the declaration described above? Or would it be an affirmative defense, with the Respondent bearing the burden of proving that the Union had furnished it with this declaration? However, an even greater problem arises should the General Counsel seek to impose either this standard or a definition of “electronic signature” from either of the statutes the General Counsel cites. Imposing such a standard adds to the contract lan- guage they did not agree to and did not include. But the Supreme Court has stated that “the Board may not, either directly or indi- rectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.” NLRB v. American Insurance Co., 343 U.S. 395, 404 (1952); H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970). It may well be that, when the Union and the Respondents ne- gotiated the dues-deduction authorization language, they had dif- ferent ideas about the definition of submission by “electronic means.” But they agreed upon a grievance/arbitration procedure and defined “grievance” as “any complaint submitted in writing by an Employee or the Union against the hospital for breach of a specific provision of this Agreement . . .” (Emphasis added.)7 The present case turns on whether a specific provision of the collective-bargaining agreement has been breached. It falls squarely within the purview of the contractual grievance/arbitra- tion procedure. The Board has stated that it “strongly favors deferral to arbi- tration as a means of encouraging parties to voluntarily resolve unfair labor practice issues . . .” Kvaerner Philadelphia Ship- yard, 347 NLRB 390, 391 (2006). Although Kvaerner con- cerned deferral to a decision resulting from an arbitration already conducted, the underlying rationale—encouraging parties to vol- untarily resolve unfair labor practices—applies with similar force when parties have agreed to an arbitration procedure but have not yet used it to decide the issue in question. Moreover, as the Supreme Court has recognized in other con- texts, there is a federal policy favoring arbitration. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)(“questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration”), citing 7 The language goes on to exclude certain provisions “which are not subject to this Article.” However, the language in question, concerning Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983). The General Counsel contends that the arbitrator may lack au- thority to provide a complete remedy. However, based upon the collective-bargaining agreements, I conclude that the arbitrator has full authority to remedy a breach of the agreement and the consequences of such a breach. If a breach would, in fact, also constitute an unfair labor practice, then a remedy for any harm caused by the breach also would remedy the unfair labor prac- tice. The General Counsel also notes that there are 14 different Re- spondents. However, the language in question is the same in all of the contracts these Respondents have entered with the Union. Moreover, the Respondents have agreed to submit the dispute to a single arbitrator. As noted in the order dismissing the com- plaint, attached to this decision as an appendix, the Board will retain sufficient jurisdiction to reinstate the complaint in the event an arbitration does not take place or the arbitration fails to meet the Board’s standards for deferral. In Detroit Medical Center, 369 NLRB No. 41, slip op. at 1 (2020), the Board discussed the criteria to be applied in deter- mining whether deferral to arbitration is appropriate. In the order dismissing the complaint, attached to this decision as an appen- dix, I applied those criteria to the facts of this case. Adopting that analysis in this decision, I conclude that the matter should be deferred to arbitration and the complaint dismissed. CONCLUSIONS OF LAW 1. Each of the Respondents named in the case caption above is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union, 1199SEIU, United Healthcare Workers East, Service Employees International Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. Each of the Respondents has recognized the Union as the exclusive bargaining representative of certain of its employees and has entered into a collective-bargaining agreement which embodies that recognition and describes the bargaining unit or units which the Union represents. The unit descriptions in these collective-bargaining agreements with the Respondents also ap- pear in the complaint. 4. Each of the units described in paragraph 3 above is an ap- propriate unit for collective bargaining within the meaning of Section 9(b) of the Act. 5. At all material times, the Union has been the exclusive bar- gaining representative, within the meaning of Section 9(a) of the Act, of the employees in the bargaining units described in para- graph 3, above. 6. Each of the collective-bargaining agreements described in paragraph 3 above, includes a union- security clause with lan- guage identical to that in the union-security clauses in the other collective-bargaining agreements. The following language ap- pears in each of the union security clauses: “The Hospital agrees to recognize electronic dues authorizations completed by the Employee and submitted by the Union, under the same terms and the submission of dues-deduction authorization forms by “electronic means,” is not excluded. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conditions as apply to other dues authorizations.” This term and condition of employment is a mandatory subject of collective bargaining. 7. The complaint alleges that the Respondents, since about April 10, 2021, have failed to continue in effect the language de- scribed in paragraph 6, above, and that this failure constitutes a failure and refusal to bargain in good faith, in violation of Sec- tion 8(a)(5) and (1) of the Act. 8. Each of the collective-bargaining agreements described in paragraph 3, above, includes a provision for final and binding arbitration to resolve allegations that a provision of the agree- ment has been breached. All of the allegations described in par- agraph 7, above, fall within the scope of the arbitration clauses in the Respondents’ collective-bargaining agreements with the Union. All of the Respondents are willing to submit the disputes described in paragraph 7 to a single arbitrator for resolution at the same time. 9. Under the Board’s precedents, this case is appropriate for deferral to arbitration. On these findings of fact and conclusions of law and on the entire record in this case, and noting that the Board shall retain sufficient jurisdiction to reinstate the complaint should arbitra- tion fail to resolve the allegations in the complaint, I issue the following recommended ORDER8 The complaint is dismissed. APPENDIX UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES Kendall Healthcare Group, LTD., a lim- ited partnership, and Columbia Hospital Corporation of Kendall, general partner, d/b/a HCA Florida Kendall Hospital 12–CA–282408 Northwest Medical Center, Inc. d/b/a HCA Florida Northwest Hospital 12–CA–282411 Largo Medical Center, Inc. d/b/a HCA Florida Largo Hospital 12–CA–282417 Galen of Florida, Inc. d/b/a HCA Flor- ida St. Petersburg Hospital 12–CA–282420 Galencare, Inc. d/b/a HCA Florida Northside Hospital 12–CA–282425 New Port Richey Hospital, Inc. d/b/a HCA Florida Trinity Hospital 12–CA–282432 HCA Health Services of Florida, Inc. 12–CA–284830 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, these findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the d/b/a HCA Florida Blake Hospital Osceola Regional Hospital, Inc. d/b/a HCA Florida Osceola Hospital 12–CA–284838 Sarasota Doctors Hospital, Inc. d/b/a HCA Florida Sarasota Doctors Hospital 12–CA–284846 JFK Medical Center Limited Partner- ship, a limited partnership, and Colum- bia Palm Beach GP, LLC, general part- ner, d/b/a JFK Medical Center - North Campus 12–CA–284855 HCA Health Services of Florida, Inc. d/b/a HCA Florida Oak Hill Hospital 12–CA–284857 Fawcett Memorial Hospital, Inc. d/b/a HCA Florida Fawcett Hospital 12–CA–284872 University Hospital, LTD, a limited partnership, and Columbia Hospital Corporation of Tamarac, general partner d/b/a HCA Florida Woodmont Hospital 12–CA–284898 HCA Health Services of Florida, Inc. d/b/a HCA Florida St. Lucie Hospital 12–CA–285205 and 1199SEIU, United Healthcare Workers East, Service Employees International Union. ORDER On May 2, 2022, the Regional Director for Region 12 of the National Labor Relations Board, acting pursuant to authority del- egated by the Board’s General Counsel, issued an Order Consol- idating Cases, Consolidated Complaint and Notice of Hearing (the consolidated complaint). All parties, through counsel, par- ticipated in a hearing before me, by videoconference, on August 30, 2022. Because the Respondents argue, contrary to the General Counsel and the Charging Party, that this matter be deferred to arbitration, I requested that the parties first present evidence ad- dressing this issue. After calling witnesses and introducing doc- uments, counsel offered argument in support of their respective positions. For the following reasons, I conclude that the matter should be deferred to arbitration and the consolidated complaint dismissed. A management entity, HCA Management Services, LLC, con- trols the labor relations policies of the 14 Respondents in this Board, and all objections to them shall be deemed waived for all pur- poses. KENDALL HEALTHCARE GROUP, LTD. 9 consolidated case.9 Based upon the Respondents’ answer and the record as a whole, I find that each of the unfair labor practice charges was filed and served as alleged in the consolidated com- plaint. All of the Respondents are represented by the same coun- sel and filed a joint answer to the allegations in the consolidated complaint.10 Each of these Respondents has recognized the Charging Party, 1199 SEIU, United Healthcare Workers East, Service Employ- ees International Union,11 as the exclusive collective-bargaining representative of one or more units of that Respondent’s employ- ees.12 For each such unit, a separate collective-bargaining agree- ment, presently in effect, sets the terms and conditions of em- ployment of the employees in that bargaining unit. All of these agreements have similar terms. The contractual language rele- vant to this case appears in the union-security article of each agreement and is identical in all 14 agreements. It states: The Hospital agrees to recognize electronic dues authorizations completed by the Employee and submitted by the Union, under the same terms and conditions as apply to other dues authori- zations. The consolidated complaint alleges that each of the 14 Re- spondents has, since April 10, 2021, failed to continue in effect this term of the agreement and that such failure breached the duty to bargain in good faith and thereby violated Section 8(a)(5) and (1) of the Act. The consolidated complaint does not allege that any of the Respondents committed any other unfair labor prac- tice. The record indicates that some of the Respondents rejected certain electronic dues authorizations which had been submitted by employees but had not rejected all electronic dues authoriza- tions. According to the Respondents, the rejected authorizations had failed to meet the standards necessary for an electronic doc- ument to be deemed “signed.” The Respondents informed the Union, and argued at hearing, that they rejected the proffered authorizations because of Section 302 of that Act. That provision makes it unlawful for an em- ployer to pay money to a labor organization but makes an excep- tion with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Pro- vided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner. . . 9 During the hearing, the General Counsel amended the consolidated complaint to reflect more accurately the names of the Respondents. The respondents’ correct names appear in the caption above. 10 Based upon admissions in their answer and the record as a whole, I find that each of the Respondents is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. 11 Based upon the Respondents’ answer and the record as a whole, I find that the Charging Party is a labor organization within the meaning of Sec. 2(5) of the Act. 29 U.S.C. § 186(c)(italics added). Violating Section 302 is a crime: Any person who participates in a transaction involving a pay- ment, loan, or delivery of money or other thing of value to a labor organization in payment of membership dues. . .which transaction does not satisfy all the applicable requirements of subsections (c)(4) through (c)(9) of this section, and willfully and with intent to benefit himself or to benefit other persons he knows are not permitted to receive a payment, loan, money, or other thing of value under subsections (c)(4) through (c)(9) vi- olates this subsection, shall, upon conviction thereof, be guilty of a felony and be subject to a fine of not more than $15,000, or imprisoned for not more than five years, or both; but if the value of the amount of money or thing of value involved in any violation of the provisions of this section does not exceed $1,000, such person shall be guilty of a misdemeanor and be subject to a fine of not more than $10,000, or imprisoned for not more than one year, or both. 29 U.S.C. § 186(d)(italics added). In light of the severity of the penalty for violating Section 802, noting that the term “electronic dues authorization” is a recent term, and further noting that the Respondents’ collective-bargaining agreements with the Charg- ing Party provide neither a definition of the term nor standards to be applied, I conclude that the Respondents had a sound argu- able basis for their position. The record does not reflect whether the management and un- ion representatives who negotiated the contracts tried unsuccess- fully to reach agreement on the meaning of the term “electronic dues authorization” or whether it simply did not occur to them that a definition was necessary. In either case, to supply a defi- nition at this juncture would bring the Board perilously close to adding language to the parties’ collective-bargaining agree- ments, which the Board is not authorized to do. H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970). Congress vested in courts, not the Board, primary authority to interpret collective-bargaining agreements. Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 202 (1991). See also NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 (1967). The parties themselves have provided the means for determin- ing the meaning and application of the language they negotiated. Each of the agreements has a clause providing for an arbitrator to resolve such disputes. Additionally, the language to be inter- preted is the same in each of the collective-bargaining agree- ments. Moreover, the Respondents have stated their willingness to resolve the issue in a single arbitration. In determining whether it is appropriate to defer this case to arbitration, I apply the standards set forth by the Board in Detroit Medical Center, 369 NLRB No. 41, slip op. at 1 (2020). 12 The consolidated complaint describes each of the bargaining units. Based upon the Respondents’ answer and the record as a whole, I find that each of these units is an appropriate unit for collective–bargaining within the meaning of Sec. 9(b) of the Act. Further, I find that the Charg- ing Party is the exclusive bargaining representative, within the meaning of Sec. 9(a) of the Act, of the employees in each of these units. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The first criterion concerns whether the dispute arose within the confines of long and productive collective-bargaining rela- tionships. The record indicates that the relationships are well- established and have resulted in collective-bargaining agree- ments. Second, the Board asks whether there is a claim of animosity to the employees’ exercise of protected rights. The consolidated complaint does not allege that any of the Respondents engaged in conduct, or made any statements, indicative of animus. Like- wise, there is no evidence of animus in the record. The third factor to be considered concerns the scope of the arbitration clause: Does it provide for arbitration in a very broad range of disputes? The arbitration clause applies to an alleged “breach of a specific provision of this agreement,” with certain exceptions not relevant here. Obviously, an arbitration clause could be broader, for instance, by applying to issues outside the scope of the contract. However, the issue in the present case concerns an alleged breach of a specific provision of the agreement. Thus, it clearly encompasses the dispute at issue, thereby meeting the fourth cri- terion. The fifth factor concerns whether the Respondents clearly have asserted their willingness to resolve the grievance through arbitration. They have. The final criterion concerns whether the dispute is “eminently well suited to resolution by arbitration.” An arbitrator, selected through the procedure agreed upon by the parties, clearly acts with their consent to give meaning and dimension to the contract they negotiated. Deferring the issue to such an arbitrator clearly furthers the purposes and policies of the Act, which entrusts to employers and unions the work of setting terms and conditions of employment through bargaining, and reserves to courts and arbitrators the authority to interpret the resulting agreements. All but one of the factors discussed above clearly weigh in favor of arbitration and even the third criterion, whether the ar- bitration clause covers a “very broad range of disputes,” does not weigh against it. Accordingly, I conclude that deferral to arbi- tration is appropriate. Noting that the Board retains jurisdiction should the parties fail to resolve the issues herein through arbitration. IT IS ORDERED, pursuant to Section 102.35(a)(8) of the Board’s Rules and Regulations, that the consolidated complaint be, and hereby is, dismissed. IT IS FURTHER ORDERED that this proceeding is closed.