Baptist Hospital of East Tennessee

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 249 (N.L.R.B. 2002)

BAPTIST HOSPITAL OF EAST TENNESSEE 249
Baptist Hospital of East Tennessee and Office and
Professional Employees International Union,
Local 179. Case 10–CA–33684
September 30, 2002
ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The Respondent’s Motion for Summary Judgment is
denied on the ground that it raises genuine issues of ma-
terial fact, which would better be resolved after a hearing
before an administrative law judge.1

MEMBER BARTLETT, concurring.
I join in denying the Respondent’s Motion for Sum-
mary Judgment. I agree that the pleadings raise genuine
issues of material fact that warrant a hearing. However, I
agree with my dissenting colleague that 8(a)(5) allega-
tions of the type raised in this case1 present issues of con-
tract interpretation that Congress and the Supreme Court
have indicated are meant primarily for resolution through
the parties’ own agreed-upon dispute resolution proce-
dures, i.e., contractual grievance and arbitration systems,
or, in the absence of applicable procedures for arbitrable
resolution, Section 301 of the Act.2 Thus, in my view,
the Board should sua sponte stay its hand and defer fur-
ther processing of such allegations until after the parties
have exhausted the possibility of resolving their contrac-
tual dispute through these alternative dispute resolution
procedures.
Although this approach would expand the Board’s cur-
rent deferral policies, it is entirely consistent with the
stated purposes of those policies.3 It is also consistent

1 The Respondent has also filed with the Board a motion for con-
tinuance. Members Liebman and Bartlett find that this motion properly
should have been filed with the administrative law judge. See Secs.
102.16 and 102.24 of the Board’s Rules and Regulations. In any event,
our denial of the Respondent’s Motion for Summary Judgment has
rendered moot the Respondent’s motion for a continuance.
1 The complaint alleges that the Respondent unilaterally changed its
earned time policy as applied to the inpatient radiology unit by assign-
ing employees to holiday work schedules without regard to employee
preference or seniority. The complaint alleges that this unilateral
change was contrary to the terms of the parties’ collective-bargaining
agreement, and therefore violated Sec. 8(a)(5) and (1) and Sec. 8(d) of
the Act.
2 See NLRB v. Strong Roofing Co., 393 U.S. 357, 361 fn. 5 (1961)
(citing H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41–42).
3 See Spielberg Mfg., 112 NLRB 1080 (1955), Dubo Mfg. Corp., 142
NLRB 431 (1963), and Collyer Insulated Wire, 192 NLRB 837 (1971).
See also IBEW Local 13 (Collier Electric), 296 NLRB 1095 (1989).
with the General Counsel’s current deferral policy with
respect to so-called “collection cases,” which concern
allegations that an employer has failed to make contrac-
tually-required contributions to benefit funds.4 Finally,
such an expanded deferral policy would better effectuate
the statutory scheme by utilizing the greater expertise
and discretionary authority of arbitrators and courts to
interpret collective-bargaining agreements and fashion
appropriate remedies for their breach, and by preserving
the limited resources of the Board for unfair labor prac-
tice issues over which it has exclusive jurisdiction.
In fact, it is hard to imagine a case better suited for
resolution in grievance and arbitration or in a judicial
contract enforcement action. The parties’ pleadings be-
fore us frame an issue that turns on application and inter-
pretation of detailed contract provisions, which must be
evaluated in the context of past practices. This type of
claim is “grist in the mill of arbitrators.” Steelworkers v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 584
(1960). It bears little relation to issues at the heart of the
Act, which the Board itself must decide.

MEMBER COWEN, dissenting.
Contrary to my colleagues, I would grant the Respon-
dent’s Motion for Summary Judgment on the ground that
the issues presented in this case are merely matters of
contract interpretation and enforcement that are best left
to the parties’ dispute resolution procedures. The issues
in this case are based on the interpretation and applica-
tion of the management rights and earned time schedul-
ing provisions of the collective-bargaining agreement. In
my view, the Board should not be involved in such ques-
tions, and the parties should be left to resolve their dis-
pute through traditional contract enforcement mecha-
nisms. See United Telephone Co. of the West, 112
NLRB 779, 782 (1955) (“The Board is not the proper
forum for parties seeking to remedy an alleged breach of
contract or to obtain specific enforcement of its terms.”).
Thus, for the reasons I have stated elsewhere (see, e.g.,
Scapino Steel Erectors, Inc., 337 NLRB 992 (2002)
(Member Cowen, dissenting), I would grant the Respon-
dent’s Motion and dismiss the complaint.

4 See GC Memorandum 95–8 (June 6, 1995), reaffirmed in GC
Memorandum 02-05 (July 19, 2002), 2002 WL 1730517.

338 NLRB No. 26