Visiting Nurse Services of Western Massachusetts, Inc. v. N.L.R.B., AFL-CI

• Decision Date: 03 May 1999
• Docket Number: I,AFL-CI,No. 98-1993,CL,98-1993
• Citation: 177 F.3d 52
• Parties: 161 L.R.R.M. (BNA) 2326 VISITING NURSE SERVICES OF WESTERN MASSACHUSETTS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and Local 285, Service Employees International Union,ntervenor. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 52

177 F.3d 52

161 L.R.R.M. (BNA) 2326

VISITING NURSE SERVICES OF WESTERN MASSACHUSETTS, INC. Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner and Local 285, Service Employees International Union, AFL-CIO CLC, Intervenor.

No. 98-1993.

United States Court of Appeals First Circuit.

Heard May 3, 1999.

Decided May 24, 1999.

Albert R. Mason for petitioner, cross-respondent.

Julie B. Broido, with whom Margaret A. Gaines was on brief, for respondent, cross-petitioner.

Before TORRUELLA, Chief Judge, STAHL, LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

This petition by the Visiting Nurse Services of Western Massachusetts, Inc. ("VNS") seeks review of an order by the National Labor Relations Board dated July 20, 1998. The NLRB has filed a cross-petition for enforcement of its order. Local 285 of the Service Employees International Union ("the Union"), was permitted to intervene on the side of the Board. Of most significance here is VNS's attempt to read the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. § 158 (1994), as permitting an employer who has not reached general impasse on the package of collective-bargaining issues to nonetheless take unilateral action on particular issues after declaring there was impasse on those specific issues. The Board has rejected that argument, as do we.

I

VNS is a corporation based in Holyoke, Massachusetts, which provides home-based nursing home services. The last collective bargaining agreement between VNS and the Union expired on October 31, 1992; between July 1995 and March 1997, the parties attempted to negotiate a successor agreement. ¹ We recite the facts as taken from the stipulated facts before the Board. See Visiting Nurse Servs. of W. Mass., Inc., 325 N.L.R.B. No. 212, 159 L.R.R.M. (BNA) 1298, 1998 WL 414982, at * 15 n. 2 (July 20, 1998) (hereinafter "Visiting Nurse Servs.").

The parties met to negotiate on November 2, 1995. VNS then presented a written proposal which stated, in pertinent part, that:

All proposals are and will be set forth based on a package bargaining basis. This means that if any portion of the package is unacceptable then the whole package is subject to revision. In this respect ... if there are tentative agreements in a package but the whole package is not accepted then the tentative agreements are also subject to revision, deletion, addition, change etc.... [A]ll agreements will be subject to an acceptable total "final package" agreement ....

(Emphasis in original.) VNS's package proposal provided for a two-percent wage increase and for a change from a weekly to a bi-weekly payroll system, to become effective on November 6, 1995. The Union did not accept the proposal but expressed a willingness to bargain about various proposed alterations to the job classifications for employee nurses. VNS presented a "substantially identical" proposal on December 6, 1995, but this proposal also granted VNS "the sole and unqualified right to designate [job] classifications as it deemed necessary based on operational needs." Visiting Nurse Services, 1998 WL 414982, at * 4.

On February 29, 1996, VNS again offered the Union a two-percent wage increase, effective retroactively to November 6, 1995, in return for the Union's agreement to its proposals for a bi-weekly payroll system and the job classification changes. The Union, acknowledging the broad opposition (within its membership) to the bi-weekly payroll system, rejected the proposal. See id. Nevertheless, on March 21, 1996, VNS notified the Union that "based on operational and economic realities [VNS] intend[ed] to implement 'both' the wage increase and the bi-weekly pay proposals that, to date, [VNS and the Union had] been unable to agree on." Five days later, the Union replied: "We oppose the unilateral implementation of the bi-weekly payroll system.... You have decided to tie your proposed two percent increase in employee wages to the implementation of a bi-weekly payroll system and we have rejected that combined proposal." VNS implemented the wage increase on April 7, 1996, and the bi-weekly payroll system on May 3, 1996.

On June 18, 1996, VNS presented another "package proposal." This proposal retained the earlier proposed job classification changes and included a second two-percent wage increase (to become effective July 7, 1996). The proposal also added three new provisions: 1) the transformation of three holidays into "floating" holidays to be taken at a time requested by the employee; 2) the implementation of a "clinical ladders" program; ² and 3) the adoption of an enterostomal therapist classification and program. ³ On the same day, VNS also proposed a smaller, alternative package (the "mini package") which also included a second two-percent wage increase along with the above proposals on floating holidays and the clinical ladders and enterostomal therapist and classification programs.

The parties did not reach agreement on either proposal. In a letter dated August 20, 1996, VNS advised the Union that as of September 6, 1996, it was contemplating implementing the "mini package" and that "all of the above items [were] the 'positives' that [the parties] discussed that could be implemented while bargaining for a successor agreement continued." The Union responded on September 5, 1996: "We oppose the unilateral implementation of these proposals. The Union request[s] that you not make any changes to wages, hours or working conditions. Please do not hesitate to call me to arrange a meeting as soon as possible to discuss this and other outstanding issues." (Emphasis in original.)

VNS then sent a memorandum, dated September 13, 1996, to the bargaining unit employees (but not to the Union) informing them that it had implemented the mini package with the wage increase to be applied retroactively to July 7, 1996. Ten days later, VNS advised the Union that the wage increase had already been implemented and that the other programs (floating holidays, clinical ladders, and enterostomal therapist and classification) were "already in process." After emphasizing its view that these were "only 'positive items' " meant to enhance the staff's economic conditions while bargaining continued, VNS declared that "it [was] the Agency's position that the mini package involved ha[d] been properly implemented."

The Union filed a charge with the NLRB on September 30, 1996; it amended that charge on November 12, 1996. Based on these charges, the General Counsel of the NLRB issued a complaint against VNS on December 31, 1996, and amended that complaint on April 24, 1997.

II

The NLRB order found that VNS violated §§ 8(a)(1) and (5) of the Act by unilaterally implementing 1) a bi-weekly payroll system on or about May 3, 1996; 2) changes in holidays on or about September 6, 1996; 3) a clinical ladder program on or about September 6, 1996; 4) an enterostomal therapist classification and program on or about September 6, 1996; and 5) changes in job classifications at some time subsequent to May 3, 1996. VNS made these changes while it was still bargaining with the Union and had not yet reached general impasse. See Visiting Nurse Services, 1998 WL 414982, at * 11. There is no dispute that all of these are mandatory subjects of bargaining under § 8(d) of the Act.

Before the NLRB, the parties stipulated that they had not reached impasse in their bargaining on the agreement as a whole. Thus, under controlling law, because impasse had not been reached, the employer could take unilateral action on a mandatory subject of bargaining only under a narrow range of circumstances. See N.L.R.B. v. Katz, 369 U.S. 736, 741-43, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). No economic exigencies or business emergencies existed here which would warrant unilateral action. See Visiting Nurse Services, 1998 WL 414982, at * 9; see also N.L.R.B. v. Triple A Fire Protection, Inc., 136 F.3d 727, 739 (11th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 795, 142 L.Ed.2d 657 (1999) (noting that "[a] situation of economic necessity requires either a showing of extenuating circumstances or a compelling business justification" (internal quotation marks omitted)). The NLRB found that the usual rule applied and there were no exceptions. See Visiting Nurse Services, 1998 WL 414982, at * 9-10. The NLRB issued a broad remedial order based on a finding that VNS has a proclivity to violate the Act. ⁴ See id. at * 13-14. One member dissented, finding the stipulated record insufficient, and would have remanded the matter to an administrative law judge for a full hearing. See id. at * 16.

III

We review the Board's conclusions of law de novo, see N.L.R.B. v. Beverly Enterprises-Massachusetts, Inc., 1999 WL 179667, at * 3 (1st Cir. Apr. 6, 1999) (citing the Administrative Procedure Act, 5 U.S.C. § 706), and take the Board's findings of fact to be "conclusive if supported by substantial evidence on the record considered as a whole." Id. (citing 29 U.S.C. § 160(e)).

VNS makes four arguments. First, it argues that the rule adopted by the Fifth Circuit in N.L.R.B. v. Pinkston-Hollar Construction Services, Inc., 954 F.2d 306 (5th Cir.1992), should be adopted here and that this rule would excuse VNS's unilateral actions.

Second, VNS says the NLRB's determination that VNS in fact implemented the clinical ladders program and enterostomal therapist classification and program is not supported by substantial evidence. Accordingly, the issue was not ripe and should not have been the subject of an order.

Third, VNS says it was error for the Board to accept as an amendment to the complaint any claims about the earlier implementation of the bi-weekly payroll. VNS says this is barred by the applicable limitations period in § 10(b) of the Act. The original unfair labor practice charge was filed by the Union on September 30, 1996, and included all the items at issue in this case save for the May 1996 installation...