NNOC, etc. v. Midwest Division-RMC, LLC ( 2022 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 21-2200
    ___________________________
    National Nurses Organizing Committee-Missouri & Kansas/National Nurses United
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Midwest Division-RMC, LLC, doing business as Research Medical Center
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: January 12, 2022
    Filed: February 17, 2022
    ____________
    Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
    ____________
    WOLLMAN, Circuit Judge.
    After Midwest Division-RMC, LLC (RMC), implemented new staffing grids
    for registered nurses at its acute-care hospital, the National Nurses Organizing
    Committee-Missouri & Kansas (Union) filed a grievance under the parties’ collective
    bargaining agreement (CBA) and later sought arbitration. RMC refused to process
    the grievance, claiming that the CBA did not cover the Union’s allegations of
    wrongdoing. The Union thereafter filed a complaint in federal district court, seeking
    to compel arbitration. Ruling on the parties’ cross-motions for summary judgment,
    the district court1 granted the Union’s motion, denied RMC’s, and ordered arbitration.
    We affirm.
    The CBA defines “grievance” as “[a]n alleged breach of the terms and
    provisions of this Agreement.” The CBA sets forth the process for submitting
    grievances to RMC and provides that if the grievance is not resolved by the parties,
    “the Union may advance the grievance to arbitration.” Article 38(1)(F) exempts from
    arbitration certain disputes.
    RMC implemented new staffing grids in June 2020. The Union filed a
    grievance on July 15 for an alleged violation of Article 3 of the CBA, entitled
    “Bargaining Unit Work.” The grievance alleged that “the hospital intends to displace
    bargaining unit (BU) RNs [with] supervisory RNs in the performance of BU work as
    expressed in the hospital’s staffing grids” that were implemented in June 2020 and
    that “removed RNs in the BU.” The Union requested that RMC “cease + desist from
    utilizing these staffing grids,” “[h]old staffing committee per the CBA & amend the
    proposed grids to conform [with] the CBA,” and “[r]eturn the RNs [RMC] ha[s]
    removed.” After RMC refused to process the grievance or arbitrate, the Union filed
    this lawsuit.
    We review de novo a district court’s decision to grant summary judgment and
    compel arbitration. Crown Cork & Seal Co. v. Int’l Ass’n of Machinists, 
    501 F.3d 912
    , 914 (8th Cir. 2007). We apply the following principles in deciding whether to
    compel arbitration:
    1
    The Honorable Stephen R. Bough, United States District Judge for the
    Western District of Missouri.
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    (1) arbitration is a matter of contract and may not be ordered unless the
    parties agreed to submit the dispute to arbitration; (2) unless the parties
    provide otherwise, courts decide the issue of whether the parties agreed
    to arbitrate; (3) courts cannot weigh the merits of the grievance in
    determining whether the claim is subject to arbitration; and (4) when an
    arbitration clause exists in a contract, there is a presumption of
    arbitrability unless it is clear that the arbitration clause is not susceptible
    of an interpretation that covers the dispute.
    UAW Loc. 716 v. Trane U.S. Inc., 
    946 F.3d 1031
    , 1033 (8th Cir. 2020) (quoting
    Teamsters Loc. Union No. 688 v. Indus. Wire Prods., Inc., 
    186 F.3d 878
    , 881 (8th
    Cir. 1999)). The parties agree that they are bound by the CBA’s arbitration provision.
    The issue before us is whether the grievance alleged a subject matter subject to that
    provision. See Int’l Ass’n of Bridge, Struct., Ornamental, & Reinforcing
    Ironworkers, Shopman’s Loc. 493 v. EFCO Corp. & Constr. Prods., Inc., 
    359 F.3d 954
    , 956 (8th Cir. 2004) (stating that it is for the court to decide “whether a valid
    arbitration agreement applies to the subject matter at hand”).
    The Union maintains that the grievance alleges a dispute over “the performance
    of bargaining unit work by supervisory employees.” Article 3, entitled “Bargaining
    Unit Work,” states: “It is not the intent of the Hospital to displace bargaining unit
    employees with supervisory employees in the performance of bargaining unit work.”
    The Union points to the grievance’s allegations that RMC violated Article 3 and that
    RMC intended to displace bargaining unit registered nurses with supervisory
    registered nurses “in the performance of BU work.”
    RMC contends that the grievance effectively challenges the hospital’s staffing
    plans, which are not subject to arbitration under the terms of the CBA. RMC points
    to the grievance’s allegations about “the hospital’s staffing grids” and to its request
    that RMC “cease + desist” its use of the grids and amend the grids to conform with
    the CBA. Article 38, entitled “Staffing Committee,” Section (1)(F), states that
    -3-
    disagreements between RMC and the Union “regarding issues covered by this Article,
    including disagreements related to staffing plans and the methods to monitor
    compliance with the plans, that cannot be resolved mutually by the parties shall not
    be subject to the grievance and arbitration procedures of this Agreement.” RMC
    contends that this excludes “all disputes concerning or even just ‘relating to’ hospital
    staffing plans” from arbitration. Moreover, RMC asserts that Article 19 reserves to
    RMC several “sole, exclusive, and unilateral rights” related to staffing, disputes over
    which the CBA exempts from the arbitrator’s power.
    Even assuming the dispute relates to staffing plans, we conclude that it is not
    covered by Article 38 and thus is subject to the CBA’s grievance and arbitration
    procedures.2 Article 38 establishes a Nurse Staffing Committee, the goal of which
    is “to review, monitor and, where appropriate adjust the applicable Nurse-to-patient
    staffing levels set forth in the Hospital Staffing Plan for Nurses.” Article 38 explains
    that “the Hospital’s Staffing Plan provides the basis for acuity based staffing
    decisions within the Hospital by providing guidance on Nurse-to-patient staffing
    levels for staffing coverage in patient care units at the Hospital.” Article 38 further
    explains what constitutes a deviation from the Plan, how the Staffing Committee
    functions, and how disputes over staffing levels must be resolved. Read as a whole,
    Article 38 addresses nurse-to-patient staffing levels and establishes the means to
    monitor and resolve disputes regarding those staffing levels. It does not address the
    subject matter of this dispute, i.e., which nurses perform the work or the displacement
    of bargaining unit nurses. Article 38(1)(F)’s reference to “disagreements related to
    staffing plans” relates only to staffing-plan disputes that fall under “issues covered
    2
    We do not find persuasive RMC’s cited case that raised a similar grievance.
    See Nat’l Nurses Org. Comm.-Mo. & Kan. v. Midwest Div.-MMC, LLC, No. 2:20-
    CV-2571, 
    2021 WL 3376415
     (D. Kan. July 16, 2021). The court determined that,
    compared to the CBA before us, the collective bargaining agreement before it
    “appear[ed] to further limit and exclude certain disputes from arbitration.” 
    Id.
    -4-
    by” Article 38. Because the grievance alleges displacement of bargaining unit nurses,
    which is covered by Article 3, and not issues related to nurse-to-patient staffing
    levels, which are covered by Article 38, Article 38(1)(F)’s arbitration exemption does
    not apply. Article 19 does not alter this analysis.
    We do not accept RMC’s argument that compelling arbitration will nullify
    Articles 38 and 19. Those provisions create an arbitration exemption that is simply
    narrower than RMC would like. Moreover, adopting RMC’s position would render
    Article 3 of no effect. See MidAmerican Pension & Emp. Benefits Plan Admin.
    Comm. v. Cox, 
    720 F.3d 715
    , 719 (8th Cir. 2013) (explaining that “an interpretation
    which gives a reasonable, lawful, and effective meaning to all the terms is preferred
    to an interpretation which leaves a part unreasonable, unlawful, or of no effect”
    (quoting Restatement (Second) of Contracts § 203(a) (1981))).
    RMC also argues that the district court failed to determine whether the
    grievance met the CBA’s definition of grievance or its requirements for arbitration
    under Articles 2 and 14. RMC contends that only allegations of actual breaches are
    arbitrable and that because the Union used the phrase “intends to,” it did not allege
    an actual breach of the CBA. Assuming that the Union must allege an actual breach,
    we conclude that it has adequately done so. Compare Article 3 (“It is not the intent
    of the Hospital to displace bargaining unit employees with supervisory employees in
    the performance of bargaining unit work.”) with grievance (“Currently + ongoing the
    hospital intends to displace bargaining unit (BU) RNs w/ supervisory RNs in the
    performance of BU work”). It is undisputed that RMC implemented the changes
    more than two weeks before the Union filed its grievance. The grievance specifically
    alleged that the staffing grids had “removed RNs in the BU.” We thus conclude that
    the grievance alleged an actual breach.
    We decline to consider RMC’s argument that Article 38 covers the issue of
    which nurses perform the work, which it raised for the first time in its reply brief. See
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    Jenkins v. Winter, 
    540 F.3d 742
    , 751 (8th Cir. 2008) (“This court does not consider
    issues raised for the first time on appeal in a reply brief ‘unless the appellant gives
    some reason for failing to raise and brief the issue in his opening brief.’” (quoting
    Neb. Plastics, Inc. v. Holland Colors Ams., Inc., 
    408 F.3d 410
    , 421 n.5 (8th Cir.
    2005))).
    The judgment is affirmed.
    ______________________________
    -6-