Wilkes-Barre Hospital Co., LLC v. National Labor Relations Board
2017 U.S. App. LEXIS 8791
| D.C. Cir. | 2017Background
- Wilkes-Barre General Hospital’s nurses were covered by a 2011 collective bargaining agreement (CBA) that provided two distinct wage adjustments: across-the-board raises (dated increases) and longevity-based step increases tied to individual anniversary dates and reflected in Appendix A.
- The 2011 CBA expired April 30, 2013; parties negotiated without impasse thereafter. The Hospital did not pay longevity increases in January 2014 and did not notify or bargain with the Union before ceasing payments.
- The Union filed unfair labor practice charges; the NLRB Regional Director (Walsh) issued a consolidated complaint alleging violations of NLRA §§ 8(a)(1) and (a)(5) for unilateral change after expiration of the CBA.
- The ALJ found the across-the-board and longevity raises were distinct, the longevity increases continued as part of the statutory post-expiration status quo, and the Hospital violated its bargaining duty; the NLRB adopted the ALJ’s decision.
- The Hospital challenged (1) the merits (arguing longevity increases were tied to across-the-board raises and thus ended with the CBA, or that the Union waived/contract-covered the change) and (2) Regional Director Walsh’s authority under Noel Canning.
- The D.C. Circuit held that a properly constituted Board later ratified Walsh’s actions (and Walsh’s self-ratification was adequate here) and upheld the NLRB’s finding that the Hospital unlawfully ceased longevity-based increases.
Issues
| Issue | Plaintiff's Argument (Hospital) | Defendant's Argument (NLRB/Union) | Held |
|---|---|---|---|
| Validity of Regional Director Walsh’s actions | Walsh appointed during period of invalid Board quorum (Noel Canning), so his issuance of the complaint was ultra vires | Subsequent properly constituted Board and Walsh ratified the prior actions, curing the defect | Ratification by properly constituted Board and Walsh remedied any appointment defect; motion to dismiss denied |
| Post-expiration status quo: whether longevity increases survive CBA expiration | Longevity increases are payable only in conjunction with across-the-board raises (which are limited to the CBA term), so no post-expiration obligation | Longevity increases are distinct, tied to anniversaries, and thus part of the post-expiration status quo under the Act | Longevity-based increases were distinct and continued after expiration; employer had duty to maintain them absent impasse |
| Contract coverage: whether 2011 CBA covers Hospital’s decision to stop longevity increases | The durational clause and Appendix A show wage scheme ended "during the term," so the change is covered by the contract | The durational clause governs contractual rights only and does not negate statutory post-expiration obligations under the unilateral-change doctrine | The decision to stop longevity increases was not covered by the CBA; durational clause alone insufficient to negate statutory duty |
| Waiver / past practice defense | Union’s prior silence (failure to challenge nonpayment in 2011) and contract text show clear and unmistakable waiver of post-expiration longevity rights | No clear and unmistakable contractual waiver; one-time silence does not establish established practice or waiver | No clear and unmistakable waiver shown; one prior unchallenged instance does not establish past practice or waiver; Hospital’s waiver/past-practice defenses fail |
Key Cases Cited
- Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (establishes obligation to maintain status quo on mandatory subjects after CBA expiration)
- NLRB v. Katz, 369 U.S. 736 (unilateral changes during negotiations equated to refusal to bargain)
- NLRB v. Noel Canning, 134 S. Ct. 2550 (recess appointments can be invalid, affecting Board quorum)
- Honeywell Int’l, Inc. v. NLRB, 253 F.3d 125 (D.C. Cir.) (distinct treatment of post-expiration rights and unilateral-change doctrine)
- More Truck Lines, Inc. v. NLRB, 324 F.3d 735 (D.C. Cir.) (post-expiration status quo principles)
- Laborers Health & Welfare Trust Fund for N. Cal. v. Advanced Lightweight Concrete Co., 484 U.S. 539 (status quo obligations after contract expiration)
- Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir.) (ratification principles for correcting defective agency acts)