Enloe Medical Center v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2005 Decided December 23, 2005

No. 04-1388

ENLOE MEDICAL CENTER,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

04-1419

On Petition for Review and Cross-Application for

Enforcement of an Order of the National

Labor Relations Board

Laurence R. Arnold argued the cause for petitioner. With

him on the briefs were John H. Douglas and Jennifer B.

Hochschild.

David S. Habenstreit, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the brief

were Arthur F. Rosenfeld, General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy

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Associate General Counsel, and Elizabeth A. Heaney, Attorney.

Joan E. Hoyte-Hayes, Attorney, entered an appearance.

Before: SENTELLE and ROGERS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge:

The National Labor Relations Board and this court have a

fundamental and long-running disagreement as to the

appropriate approach with which to determine whether an

employer has violated section 8(a)(5) of the National Labor

Relations Act when it refuses to bargain with its union over a

subject allegedly contained in a collective bargaining agreement.

Petitioner Enloe Medical Center claims that it presents a case

once again implicating this disagreement, as well as raising

some ancillary issues. We agree with Enloe and grant its

petition.

I

The California Nurses Association (the Union) has been the

certified collective bargaining representative of the registered

nurses at Enloe’s facilities in Chico, California since September

2000, and Enloe and the Union are parties to a collective

bargaining agreement that runs from January 2002 to January

2006. The dispute in this case stems from a change in Enloe’s

policy for staffing on-call nurses at its Women’s Center. Prior

to May 2003, on-call staffing was entirely voluntary. At staff

meetings in March and April of that year, Jennifer Eddlemon,

the clinical coordinator of the Women’s Center, announced that

Enloe would be adopting a mandatory on-call policy. Starting

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in May, each nurse would be required to work one four-hour on-

call shift every four weeks, in addition to his or her regular

shifts, and nurses would be permitted no more than thirty

minutes to report when on call. Eddlemon indicated that if any

nurse had a problem complying with the time requirement, that

nurse should come to her, and Eddlemon would work out

something. Eddlemon also left a message on the white board in

the nurses’ break room stating that if nurses had any questions

about the new policy, they should come speak to her.

In early April, Union representative Kevin Baker learned of

the on-call policy change and contacted Pam Sime, Enloe’s vice-

president of human resources. Baker told Sime that Enloe could

not make the proposed change without first negotiating with the

Union. Sime replied that Enloe had not done anything yet, but

then e-mailed Baker on May 7 advising him that Enloe would be

implementing the new policy on May 12. As announced, days

later Enloe implemented the new on-call policy.

There is no disagreement between the Board and Enloe that

the agreement authorized the adoption of the mandatory on-call

policy. The collective bargaining agreement includes provisions

spelling out Enloe’s rights to manage the schedules of its

employees, compensate nurses for on-call and call-back work,

assign duties and hours to nurses, and establish standards related

to patient care. It contains a broad “management rights” article,

pursuant to which Enloe “retains the sole and exclusive right to

exercise all the authority, rights and/or functions of

management” and “expressly retains the complete and exclusive

authority, right and power to manage its operations and to direct

its Nurses except as the terms of [the] [a]greement specifically

limit said authority, right and powers.” And a separate provision

allows Enloe to revise, withdraw, supplement, promulgate, and

implement policies during the term of the agreement “as it

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deems appropriate,” provided that such actions do not conflict

with the express provisions of the agreement.

Also in 2003, but unrelated to the new on-call policy,

Eddlemon made a change in the patient “Rand Card,” a written

record used by nurses to pass patient information between shifts.

In mid-April, nurses Cathe Lawson and Cindy Smith met with

Eddlemon to discuss the changes in the card and expressed their

dissatisfaction with the new system and their concerns for

patient safety.

At an April charge nurses1 meeting, the charge nurses

alerted Eddlemon that some nurses were expressing negative

attitudes and were complaining at the nurses’ station. They

named four nurses, including Smith and Lawson, and Eddlemon

decided that she and Peggy Chelgren-Smith, Director of Enloe’s

Women’s Center, would “coach” Smith and Lawson. They

called them in separately, and in each meeting Eddlemon read

an identical prepared statement. She explained that the nurse’s

co-workers had complained to her about the nurse’s continued

griping, negative attitude, and lack of team spirit. Eddlemon

stated that she expected the negative behavior to change and

asked each how she could help the nurse through the process.

Eddlemon also told Smith that if she had future complaints, she

should complain directly to Eddlemon. As a result of these

conversations, both Smith and Lawson agreed to refrain from

their negative behavior.

Based on the imposition of the new on-call policy and the

circumstances regarding Smith’s and Lawson’s complaints,

Union representative Baker filed a charge with the Board – on

May 5, even before Enloe’s May 7 response – alleging

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Charge nurses are responsible for scheduling, directing, and

evaluating the registered nurses.

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violations of sections 8(a)(1) and 8(a)(5) of the National Labor

Relations Act, 29 U.S.C. § 158(a)(1), (a)(5).2 The Board, in

turn, issued a complaint against Enloe.

After a hearing, the ALJ issued a decision determining that

Enloe had violated section 8(a)(5) because, although the

agreement authorized petitioner to adopt the new mandatory on-

call policy, Enloe was required to bargain with the Union

regarding the effects of that policy. And the Union had not

“waived” its right to bargain over the effects in a “clear and

unmistakable” manner. The ALJ also determined that, given

this obligation to bargain over effects, Enloe had engaged in

unlawful direct dealing with represented employees when

Eddlemon instructed nurses who had questions about the new

policy or concerns regarding the thirty-minute response time

requirement to come to her directly.

The ALJ also concluded that Enloe had violated section

8(a)(1) by interfering with the nurses’ protected activity, that is,

discussing their grievances with fellow employees. While the

ALJ conceded that Eddlemon’s statements to Smith and Lawson

appeared innocuous on their face, he pointed out that the only

specific examples of the nurses’ negative attitudes involved their

discussions of the Rand Cards and the new on-call policy. This

led the ALJ to conclude that the coaching must have been

related to Smith and Lawson’s protected activity.

A three-member panel of the Board agreed with the ALJ’s

decision and adopted it with minor modifications.

II

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Although the collective bargaining agreement contained an

arbitration clause, the Union did not invoke that procedure.

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The Board’s approach to determine whether a union has

given up its right to bargain over a mandatory subject of

bargaining is to ask whether the union’s “waiver” of those rights

is “clear and unmistakable.” See, e.g., United Techs. Corp., 274

N.L.R.B. 504, 507 (1985). That proposition is not challenged by

this court; it falls within the Board’s legitimate policy ambit in

interpreting the National Labor Relations Act. The difficulty

arises when the Board applies this general doctrine to the

interpretation of the scope of a collective bargaining agreement.

The Board’s doctrine imposes an artificially high burden on an

employer who claims its authority to engage in an activity is

granted by such an agreement. But the normal deference we

must afford the Board’s policy choices does not apply in this

context because the federal judiciary does not defer to the

Board’s interpretation of a collective bargaining agreement. See

NLRB v. U.S. Postal Serv., 8 F.3d 832, 837 (D.C. Cir. 1993); see

also Exxon Chem. Co. v. NLRB, 386 F.3d 1160, 1164 (D.C. Cir.

2004). This is so because under section 301 of the Labor

Management Relations Act, parties to a collective bargaining

agreement are entitled to bring a dispute as to the interpretation

of the contract directly to a federal district court. See Litton Fin.

Printing Div. v. NLRB, 501 U.S. 190, 202-03 (1991) (citing

Local Union 1395, International Brotherhood of Electrical

Workers v. NLRB, 797 F.2d 1027, 1030-31 (D.C. Cir. 1986));

see also BP Amoco Corp. v. NLRB, 217 F.3d 869, 873 (D.C. Cir.

2000).

We accordingly have held that “questions of ‘waiver’

normally do not come into play with respect to subjects already

covered by a collective bargaining agreement.” U.S. Postal

Serv., 8 F.3d at 836-37; see also Regal Cinemas, Inc. v. NLRB,

317 F.3d 300, 312 (D.C. Cir. 2003). Instead, the proper inquiry

is simply whether the subject that is the focus of the dispute is

“covered by” the agreement. U.S. Postal Serv., 8 F.3d at 836.

The Board refuses to acquiesce in our analysis of this issue – as

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it has every right to do – but since any employer faced with a

section 8(a)(5) holding predicated on the Board’s “clear and

unmistakable waiver” doctrine as applied to the interpretation of

an agreement can file a petition in this court, see 29 U.S.C. §

160(f), the Board’s implementation of its policy is stalemated.

The Board is, of course, always free to seek certiorari.

In this case, the Board’s counsel has sought to convince us

that the section 8(a)(5) portion of the Board’s order should be

affirmed notwithstanding doctrinal differences. The Board

acknowledged that petitioner’s decision to adopt the mandatory

on-call policy was authorized by the collective bargaining

agreement; it is only Enloe’s refusal to bargain over the

effects of the new on-call policy that is the gravamen of the

Board’s section 8(a)(5) finding.

The Board’s analysis follows the theory it first announced

in Natomi Hospitals of California, Inc. (Good Samaritan

Hospital), 335 N.L.R.B. 901 (2001). There it held that even if

a collective bargaining agreement gives an employer the right to

make a decision on a particular issue, if the agreement is silent

as to the effects of that decision, the employer must agree to

bargain with its union over those effects. Id. at 902. The Board

announced that the union must have “waived” its right to

bargain over the effects in the same clear and unmistakable

terms it requires for a waiver to bargain over the decision itself.

See id. The Board developed this approach to contract

interpretation by analogy from a case in a different context. In

First National Maintenance Corp. v. NLRB, 452 U.S. 666, 681-

82 (1981), the Supreme Court held that when an employer is

authorized by the National Labor Relations Act to make a

certain decision without bargaining with its union, it still may be

obligated to bargain over the effects of that decision. The Board

in Good Samaritan Hospital actually suggested that its position

followed a fortiori from the principle recognized in First

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National Maintenance, see 335 N.L.R.B. at 902, and the ALJ, of

course, followed Good Samaritan Hospital in this case.

Petitioner contends, although without much analysis, that

this analogy does not hold – that the collective bargaining

agreement context is different from the statutory one. And, in

any event, it argues that its agreement with the Union justifies

its refusal to bargain over effects because the agreement

authorized Enloe to “implement” its mandatory on-call policy.

We agree with petitioner. Whether the parties contemplated that

the collective bargaining agreement would treat the effects of a

decision separately from the decision itself is just as much a

matter of ordinary contract interpretation as is the initial

determination of whether the agreement covers the matter

altogether. It would be rather unusual, moreover, to interpret a

contract as granting an employer the unilateral right to make a

particular decision but as reserving a union’s right to bargain

over the effects of that decision. This is not to say that such an

interpretation is inconceivable, but it would seem that there

would have to be some language or bargaining history to support

the proposition that the parties intended to treat the issues

separately. In the First National Maintenance situation, the

Board is entitled to draw a distinction between a non-

bargainable decision and its effects because it is creating the

dichotomy itself as an interpretation of the National Labor

Relations Act. In the collective bargaining context, however,

the question is not whether the Board’s policy is consistent with

the Act, but rather what is the appropriate interpretation of a

contract – i.e., did the parties intend the dichotomy?

The ALJ paradoxically reasoned that since the agreement

did not specifically mention effects bargaining, petitioner

“cannot rely on the generalized right to promulgate and

implement new policy to refuse to engage in effects bargaining

over the on-call policy.” (Emphasis added). He even

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distinguished implementation, which he conceded means

“putting into effect,” from effects bargaining. This sort of

artificial contractual interpretation, which we easily reject, is a

product of the Board’s continued insistence on requiring clear

and unmistakable waivers – in this case an ancillary waiver

connected to a waiver – of a union’s bargaining rights rather

than engaging in a straightforward reading of the contract.3

The fact that the parties to the collective bargaining

agreement in this case never contemplated a dichotomy between

the management rights granted Enloe and the effects of those

rights is amply demonstrated by the Union’s behavior when

Enloe announced the new mandatory on-call policy. The Union

never identified any particular discrete effect about which it was

seeking bargaining. Instead, the May 9 e-mail from Union

representative Baker asserted that the contract “[did] not give

Enloe the right to unilaterally change [a registered nurse’s]

working conditions.” This suggests that the Union was

objecting to the on-call policy change itself, and the concluding

sentence of the May 9 e-mail – stating that “Enloe does not have

the ‘right’ to change one’s working conditions without first

bargaining the impacts with the union” – merges the effects with

the policy change. (Indeed, the Union had already filed an

unfair labor practices charge on May 5.) Even if a contract

distinguished a policy decision from its effects, it would unlikely

be interpreted to require the employer to delay the decision

while it bargained over effects. Cf. First Nat’l Maint. Corp.,

452 U.S. at 681-83.

We therefore conclude that petitioner’s actions, including

its refusal to bargain with the Union over the effects of its

3

Even without the term “implement,” it seems to us that the

agreement would not easily be interpreted to reserve to the Union

effects bargaining.

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mandatory on-call policy change, were sanctioned by its

collective bargaining agreement and consequently could not be

the basis of a section 8(a)(5) violation.4

Since petitioner did not violate section 8(a)(5) when it

announced and implemented its new on-call policy without

bargaining with the Union, it follows that petitioner did not

violate the same provision when Eddlemon told employees to

speak with her directly about concerns with the new policy or its

thirty-minute response time requirement. If, as we conclude, the

collective bargaining agreement gave the employer the right to

adopt and implement its new policy without bargaining with the

Union, Enloe would perforce have the authority to ameliorate or

make individual exceptions to the policy without discussing

those ancillary matters with the Union.

III

There remains the matter of the Board’s determination that

petitioner violated section 8(a)(1) (interference with protected

activity) when it “coached” Smith and Lawson as to their

negative attitudes. The ALJ recognized that Eddlemon’s

statements “appear[ed] innocuous,” but he concluded that they

“must” have been directed at the Rand Card and on-call policy

4

It might be thought that since we reject the Board’s waiver

theory, we should stop our analysis and remand to the Board. But this

is not the ordinary administrative law case in which we determine that

an agency’s decision is arbitrary and capricious or contrary to law and

remand to the agency to allow it to reconsider its approach. Since we

interpret collective bargaining agreements de novo, if we were to

agree that – despite doctrinal differences – the agreement did reserve

to the Union the authority to bargain over effects, it would make little

sense to remand. And if, as we conclude here, the agreement did not

reserve that right, it also is futile to remand.

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issues and “could” have led to discipline. We think that the

ALJ’s recommended finding on this point is based only on sheer

speculation and therefore lacks substantial evidence that the

coaching sessions interfered with the employees’ protected

activity.

***

Accordingly, the petition for review is granted, and the

cross-petition for enforcement is denied.