Nat'l Nurses Org. Comm. v. Midwest Div. MMC, LLC

70 F.4th 1315

NATIONAL NURSES ORGANIZING COMMITTEE,MISSOURI & KANSAS/NATIONAL NURSES UNITED, Plaintiff - Appellant, v. MIDWEST DIVISION MMC, LLC,d/b/a Menorah Medical Center, Defendant - Appellee.

No. 21-3146

United States Court of Appeals, Tenth Circuit

FILED June 13, 2023

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:20-CV-02571-JAR-JPO)

Micah L. Berul, National Nurses Organizing Committee/National Nurses United (Jason R. McClitis and Quinlan B. Moll, Blake & Uhlig, P.A, Kansas City, Kansas, with him on the brief), Oakland, California, for Plaintiff-Appellant National Nurses Organizing Committee-Missouri & Kansas/National Nurses United.

Corey L. Franklin, FordHarrison, LLP, Clayton Missouri, for Defendant-Appellee Midwest Division MMC, LLC, d/b/a Menorah Medical Center.

Before TYMKOVICH, CARSON, and ROSSMAN, Circuit Judges.

CARSON, Circuit Judge.

The Supreme Court regularly reminds us of the federal policy favoring arbitration. Although this policy results in a presumption of arbitrability, a party may rebut that presumption. We cannot require a party to arbitrate a dispute that it has not agreed to arbitrate. Today we face such a situation. Plaintiff National Nurses Organizing Committee, Missouri & Kansas/National Nurses United filed a grievance and sought arbitration under the grievance procedure set forth in the parties' collective bargaining agreement ("CBA"). Defendant Midwest Division MMC, LLC refused to arbitrate. Although Plaintiff and Defendant agreed to arbitrate disputes under many provisions of their CBA, we can say with positive assurance that they did not intend to arbitrate disagreements related to staffing plans. And, at its core, the dispute between Plaintiff and Defendant is about a staffing plan. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Plaintiff, a union, represents a bargaining unit of registered nurses Defendant employs. Defendant implemented new staffing grids that Plaintiff alleges displaced bargaining-unit nurses with supervisory nurses in the performance of bargaining-unit work. While implementing the new staffing grids, Plaintiff and Defendant operated under a CBA. The arbitration provision of the CBA—Article 3—allows Plaintiff to advance grievances not resolved under the Article 14 grievance procedure to final and binding arbitration. Article 3 also provides "[t]he arbitrator shall have no power to: (A) Add or subtract from, or modify any of the terms of this Agreement; (B) Hear or decide any dispute as to the exercise of the Hospital's management rights as set out in Article 19 (Management Rights) of this Agreement." Article 14 defines a grievance as an "alleged breach of the terms and provisions of this Agreement."

Plaintiff filed a grievance, asserting that Defendant violated Article 4 of the CBA by implementing the new staffing grids. Article 4—"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. It is understood, however, that nothing in this Agreement shall preclude members of management from performing bargaining unit work when such work occurs during the course of training, in the event of an emergency, due to scheduled or unscheduled employee absences, due to an increase in patient census or workload, consistent with past practice and/or when such work or assistance is otherwise necessary for the timely provision of quality patient care.

Plaintiff requested Defendant "cease + desist from utilizing these staffing grids [it] proposed [and] then implemented on 6/28/2020[;] [h]old staffing committee per the CBA [and] amend the proposed grids to conform [with] the CBA[;] [and] [r]eturn the RNs you have removed." Defendant told Plaintiff that it would not process the grievance because the grievance failed to allege a violation of the CBA and the allegations challenged the Hospital's implementation of staffing plans, which is not arbitrable under the CBA.

In refusing to process the grievance, Defendant relied on two articles of the CBA—Articles 34 and 19. Article 34—"Staffing Committee"—states that the "Hospital shall have a staffing system based on the assessment of patient needs," and 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." Article 34 also states that:

[d]isagreements among the Committee members or between the Hospital 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, any dispute resolution process other than mediation, as set forth in Paragraph G below, or administrative or other legal challenge.

Article 19—management rights—states:

Except as specifically and clearly abridged by an express provision of this Agreement, nothing in this Agreement shall be interpreted as interfering in any way with the Hospital's right to determine and direct the policies, modes and methods of performing the work or providing patient care, including but not limited to: . . . (F) To determine the number, location, and types of facilities, if any, it will maintain to decide the staffing levels and/or ratios, the types of patients, and the classifications and qualifications of employees that may be assigned to any unit shift, procedure, group of patients, or job[.]

Article 19, Section 2, also specifically states that Defendant's:

exercise of its reserved [management] rights described in [Article 19] Section 1 above shall not be subject to the grievance and arbitration provisions of this Agreement. Further, there shall be no duty to bargain over the Hospital's decision to exercise, or the effects of the exercise of, the management rights described in Section 1 above.

Plaintiff requested a panel of arbitrators, but Defendant continued to refuse to process the grievance. Thus, Plaintiff filed a complaint in the district court to compel Defendant to arbitrate the grievance under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The district court denied Plaintiff's motion for summary judgment to compel arbitration, granted Defendant's cross-motion for summary judgment, and held Plaintiff's grievance was not arbitrable under the CBA.¹ Plaintiff appeals.

II.

A.

We review a grant of summary judgment de novo, applying the legal standard the district court employed. BNSF Ry. Co. v. Hiett, 22 F.4th 1190, 1193 (10th Cir. 2022) (citing US Airways, Inc. v. O'Donnell, 627 F.3d 1318, 1324 (10th Cir. 2010)). We also review de novo whether a particular grievance is arbitrable under a collective bargaining agreement. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union & Its Local 13-857 v. Phillips 66 Co., 839 F.3d 1198, 1203 (10th Cir. 2016) (citing Local 5-857 Paper, Allied-Indus., Chem. & Energy Workers Int'l Union v. Conoco, Inc., 320 F.3d 1123, 1125 (10th Cir. 2003)). A court—not an arbitrator—typically determines whether the parties intended to arbitrate a particular dispute. Id. at 1204 (citing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010)). Arbitration is "strictly a matter of consent." Id. (citing Granite Rock Co., 561 U.S. at 299, 130 S.Ct. 2847). Axiomatically, for a court to order arbitration, the parties must have consented to arbitrate the dispute at issue. Id. At the same time, however, we acknowledge the federal policy favoring arbitration of labor disputes. Id. (citing Granite Rock Co., 561 U.S. at 301, 130 S.Ct. 2847).

We recognize that these are competing principles. But we strike a balance between them "by applying a presumption that a dispute is arbitrable unless we may say 'with positive assurance' that the parties intended otherwise." Id. We thus apply the presumption of arbitrability "only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand." Id. (citing Granite Rock Co., 561 U.S. at 301, 130 S.Ct. 2847). And we adhere to the presumption and order arbitration only when the party opposing arbitration does not rebut the presumption. Id. To rebut the presumption, "the party opposing arbitration must provide 'forceful evidence' that the parties intended to exclude the dispute from arbitration." Id. (citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Indeed, with no express provision excluding a particular grievance from arbitration, "only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where . . . the arbitration clause [is] quite broad." Id. (quoting United Steelworkers, 363 U.S. at 584-85, 80 S.Ct. 1347).

B.

Plaintiff contends on appeal that the CBA covers the dispute because Plaintiff's grievance asserts a displacement of bargaining-unit work in violation of Article 4. Article 3, the arbitration clause, provides that Plaintiff may advance unresolved grievances to arbitration. Article 4 addresses supervisory employees performing bargaining-unit work. Remember that Plaintiff's grievance, an alleged violation of Article 4 of the CBA, involves Defendant displacing bargaining-unit nurses: "currently and ongoing, the Hospital intends to displace bargaining unit RNs in the performance of bargaining unit work as expressed in the hospital staffing grids . . . implemented on 6/28/2020 in which they removed the Registered Nurses in the bargaining unit." And Article 4 provides that "[i]t is not the intent of the Hospital to displace bargaining unit employees with supervisory employees in the performance of...