Enloe Medical Center v. N.L.R.B., 04-1388.

• Decision Date: 23 December 2005
• Docket Number: No. 04-1419.,No. 04-1388.,04-1388.,04-1419.
• Citation: 433 F.3d 834
• Parties: ENLOE MEDICAL CENTER, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

433 F.3d 834

ENLOE MEDICAL CENTER, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 04-1388.

No. 04-1419.

United States Court of Appeals, District of Columbia Circuit.

Argued November 17, 2005.

Decided December 23, 2005.

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 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 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 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 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

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, 111 S.Ct. 2215, 115 L.Ed.2d 177 (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 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...