[00:00:01] Speaker 00: Case number 15-1318 at L. Wilkes-Barre Hospital Company, LLC, doing business as Wilkes-Barre General Hospital Petitioner versus National Labor Relations Board. [00:00:12] Speaker 00: Ms. [00:00:12] Speaker 00: Cassetta for the petitioner, Ms. [00:00:14] Speaker 00: Isbell for the respondent. [00:00:48] Speaker 04: Good morning, Your Honors, may it please the court, Caitlin Cassetta for Wilkes-Barre Hospital Company, LLC, doing business as Wilkes-Barre General Hospital. [00:00:56] Speaker 04: The hospital appears before this court today challenging a board decision in order that required the hospital to continue the payment of longevity-based wage increases to represented bargaining unit members after the expiration of the party's 2011 to 2013 collective bargaining agreement. [00:01:16] Speaker 04: There are three grounds upon which the hospital challenges the board's decision in order. [00:01:20] Speaker 04: The first is a threshold matter dealing with the regional director's authority to issue the underlying consolidated complaint and notice of hearing. [00:01:28] Speaker 04: And I'd like to briefly address that at the end of my argument, because I believe it's important that we address the merits of this case, which is the board's improper interpretation of the party's collective bargaining agreement, which, pursuant to the clear precedent of this case, is not entitled to deference. [00:01:45] Speaker 04: And in order to do that, we should look first at the collective bargaining agreement at issue in this case. [00:01:51] Speaker 04: I would refer you to the appendix where the collective bargaining agreement exists or resides, page 223 of the appendix. [00:02:02] Speaker 04: The article in question is article 25, which is on page 269 of the appendix. [00:02:09] Speaker 04: This article, it's really the first five sections that are at issue in this case. [00:02:15] Speaker 04: The board reads this article to require the statutory obligation to continue the payment of longevity-based increases. [00:02:24] Speaker 04: They do that based solely on a reading of sections four and five that is not supported by the contract as an integrated whole. [00:02:32] Speaker 04: And by that, I'm really referencing sections one through three, which the board discards as irrelevant because the board claims that sections one through three deal only with [00:02:43] Speaker 04: across the board increases due to employees over the three years of the contract. [00:02:49] Speaker 04: That's simply inaccurate. [00:02:50] Speaker 04: If you look at section one, for example, it is just placing employees into the proper longevity categories. [00:02:58] Speaker 04: There is actually no across the board increase required by section one. [00:03:03] Speaker 04: And then sections two and three are an integrated wage increase [00:03:09] Speaker 04: set for a specific date certain, January 27th of 2012 in Section 2, and January 27th of 2013 in Section 3. [00:03:19] Speaker 04: And as was explained during the underlying hearing for the administrative law judge, these wage increases are a combination of an across-the-board increase and a longevity-based increase. [00:03:32] Speaker 04: You're supposed to, if you're an employee who moves up in the longevity scale, [00:03:35] Speaker 04: you would move up and you might be entitled to an additional across the board increase, or you may not, depending on the percentage of increase that you receive. [00:03:44] Speaker 04: So it's clear that the increases contemplated by the party's collective bargaining agreement were given [00:03:50] Speaker 04: on three dates certain. [00:03:52] Speaker 04: The first really just puts you onto the scale, and the next two are a combination integrated wage increase due on specific contract dates. [00:04:02] Speaker 04: The board's attempt to extrapolate that sections four and five require the ongoing payment of longevity-based increases to maintain the status quo is simply inaccurate. [00:04:14] Speaker 04: There's truly nothing in section four that would arguably support the board's contract interpretation, which I again stress is not entitled to deference from this court. [00:04:24] Speaker 04: And section five includes one line relating to when longevity increases will be paid. [00:04:30] Speaker 04: And not coincidentally, that date is January 27th, the same date upon which they received the integrated wage increase set forth on the three specific dates. [00:04:42] Speaker 04: Next, I'd like to take you to Appendix A, which is the other portion of this contract that's relevant to this court's interpretation. [00:04:48] Speaker 04: Appendix A is on page 296 of this court's appendix. [00:04:55] Speaker 04: In Appendix A refers to simply wages as set forth by Article 25, not wages as set forth by Article 25, Sections 1 through 3, not wages [00:05:08] Speaker 04: only referring to across the board increases, but truly an integrated reading of Article 25 is set forth by Appendix A. The first thing that's notable about Appendix A is the specific durational language that it contains. [00:05:23] Speaker 04: And I quote, during the term of this agreement, [00:05:27] Speaker 04: the initial wage scale and subsequent applicable increases to the same shall be in accordance with the following. [00:05:34] Speaker 04: And just as is set forth in sections one through three of Article 25, here the appendix sets forth the three dates certain [00:05:42] Speaker 04: specifies month and year, upon which wage increases will be granted to these bargaining unit employees. [00:05:50] Speaker 02: That really begs the question that the board decided here. [00:05:53] Speaker 02: The board determined that under the agreement, this was the regime, and then we know by operation of law if a new agreement isn't [00:06:03] Speaker 02: promptly entered that the same terms for longevity raises pertain unless and until a new agreement is put into place. [00:06:10] Speaker 02: So the fact that this speaks in terms of this agreement with the assumption that a new agreement would promptly follow doesn't really prove anything one way or another about whether these are terms that should continue. [00:06:23] Speaker 04: I respectfully disagree because the use of limiting language is actually precisely what would prevent the board from saying this is a [00:06:31] Speaker 04: part of the status quo that needs to be maintained. [00:06:34] Speaker 02: But the term of the agreement overall has been held not to be limiting language. [00:06:37] Speaker 04: That's correct. [00:06:38] Speaker 04: But the term of the agreement specifically has been held to be limiting language by the Eighth Circuit in Finley Hospital. [00:06:45] Speaker 04: So there you actually have another court looking at almost the identical language, I believe, to quote Finley hospitals during the term of this agreement as applied in the wage article. [00:06:55] Speaker 04: And while that's Eighth Circuit precedent, and I recognize it's not controlling on this court, the Supreme Court precedent from which the Eighth Circuit derives its decision is controlling and does moderate the same outcome here. [00:07:07] Speaker 04: And the question really is about whether these longevity-based increases can be said to be continued beyond this contract. [00:07:15] Speaker 04: That bumps us back to interpreting the contract, and the board's not entitled to deference there. [00:07:21] Speaker 04: I noted already the limiting language from Finley that the Eighth Circuit found to be controlling there. [00:07:27] Speaker 04: I note that it's the same language as was used here. [00:07:30] Speaker 04: I also note that both the board and its underlying decision [00:07:34] Speaker 04: and the board's appellate counsel relied heavily on the board's decision in Finley to support the underlying board decision in order here. [00:07:43] Speaker 04: And since Finley's been struck down by the Eighth Circuit, it's only appropriate here, too, that this court review. [00:07:49] Speaker 05: But what does Appendix A have to do with longevity pay? [00:07:53] Speaker 05: It doesn't say anything about longevity pay. [00:07:55] Speaker 04: It actually, it would. [00:07:56] Speaker 04: If you read down the review. [00:07:58] Speaker 05: I realize it could, but it doesn't. [00:08:01] Speaker 04: Well, if you read the columns vertically, the years... I'm looking at them. [00:08:04] Speaker 05: That doesn't say anything about longevity pay. [00:08:07] Speaker 04: Flipping you, referencing you back to Article 25. [00:08:10] Speaker 04: Yeah. [00:08:12] Speaker 04: It's Sections 1 through 3 that reference Appendix A. Yeah. [00:08:16] Speaker 04: And in Appendix, let me just get there myself, in Sections 1 through 3, [00:08:24] Speaker 04: the minimum base hourly rates being paid are set at minimum levels of minimum service levels. [00:08:32] Speaker 04: So that would be the longevity that the board is referencing is these various service levels, zero to two years, three to four years. [00:08:42] Speaker 04: But clearly the references to the extent appendix A speaks to longevity based increases, [00:08:48] Speaker 04: It does so in connection with sections one through three of Article 25, which is a fact that the board has just dismissed out of hand. [00:08:57] Speaker 05: I'm really not following if there are two different things. [00:09:03] Speaker 04: I believe that they are references to the level of service or the service level is the number of years. [00:09:10] Speaker 04: And when the board references longevity based increases [00:09:14] Speaker 04: it's referencing changes in the number of years of service and employee accrues from year to year. [00:09:19] Speaker 05: Yeah. [00:09:19] Speaker 05: And you move on some grid based on longevity, right? [00:09:23] Speaker 04: The only grid that exists is the grid in Appendix A, which is a combined grid that sets forth the minimums as set forth in sections one through three, which also discusses the across-the-board increases that would be due. [00:09:37] Speaker 05: Right. [00:09:38] Speaker 05: So I mean, all you're really saying is, [00:09:42] Speaker 05: that the grid remain holds until you have a new agreement, but the longevity you still move within that grid. [00:09:49] Speaker 04: I would disagree on the basis of the specific durational language set forth not only by appendix A, but also the dates certain set forth by sections one through three. [00:09:59] Speaker 04: If you're going to be looking at the grid in appendix A, you're doing so pursuant to sections one through three and sections one through three are very clear. [00:10:06] Speaker 04: They say you get an increase on [00:10:09] Speaker 04: In May of 2011, one in January of 2012, one of January 2013, and that's it. [00:10:15] Speaker 04: And that's, in fact, why the board doesn't find that there's any violation by the ceasing of the payment. [00:10:20] Speaker 05: But there are two kinds of increases that you can get, right? [00:10:23] Speaker 04: There's two kinds, but they're integrated together. [00:10:25] Speaker 05: Well, I mean, that's just a self-serving term. [00:10:27] Speaker 05: They didn't look terribly integrated to me. [00:10:29] Speaker 05: They just looked like two different. [00:10:30] Speaker 05: One, you're arguing with some force is fixed, because you haven't gotten an increase in the boxes. [00:10:37] Speaker 05: But my longevity keeps going. [00:10:40] Speaker 05: And so if I'm now up to three years, I move down to that 2107 box. [00:10:45] Speaker 05: And then if you still are fighting over a contract for longer and I'm up to five years, I move down to 2205. [00:10:51] Speaker 04: But only in 2011, 2012, and 2013. [00:10:53] Speaker 02: Well, you stick with the 2013 under your theory, but you still have the longevity. [00:10:59] Speaker 02: So the overall wage doesn't necessarily increase. [00:11:04] Speaker 02: That's a separate question. [00:11:05] Speaker 02: But the nurses here are claiming that the longevity is a general premise [00:11:11] Speaker 02: And indeed, they get longevity pay for service that they didn't even have with this employer. [00:11:16] Speaker 02: So there's just a logic to it that extends beyond the particular agreement. [00:11:21] Speaker 02: And there's nothing in the agreement that seems to limit it according to the board. [00:11:24] Speaker 02: And we obviously give substantial deference to the board. [00:11:28] Speaker 04: Not with regard to contract interpretation. [00:11:31] Speaker 04: And if I may briefly respond, I know I'm over my time. [00:11:33] Speaker 04: But I do think it's the case that Appendix A is [00:11:37] Speaker 04: quite limited in nature. [00:11:39] Speaker 04: And if the board found that sections one through three established that the across the board increases are on date certain, and it is sections one through three that create appendix A, then the logic must follow. [00:11:52] Speaker 04: And certainly there's nothing here that suggests the longevity increases were intended to continue. [00:11:58] Speaker 04: The operation of the status quo is not [00:12:02] Speaker 04: does not trump the express contract language utilized by the parties, which here clearly limited wage increases. [00:12:10] Speaker 04: And I know that I'm out of time. [00:12:11] Speaker 04: I'll briefly mention that this is consistent with the parties past practice in 2010 and 2011 as well, which should go both to the interpretation of the contract language as well as the question of to the extent there would have been a status quo that would have continued, whether under the contract coverage doctrine that should have [00:12:31] Speaker 04: the union had waived its right to insist upon the continuation. [00:12:35] Speaker 04: I didn't address the regional director arguments, but certainly those are briefed thoroughly by my client. [00:12:42] Speaker 04: Thank you. [00:12:52] Speaker 03: Mrs. Bell. [00:12:53] Speaker 03: May it please the court. [00:12:53] Speaker 03: Kelly Isbell here on behalf of the National Labor Relations Board. [00:12:59] Speaker 03: While we're still looking at the joint appendix and the contract, let's look at sections four and five of Article 25. [00:13:07] Speaker 03: Sections four and five say that minimum wage minimums shall be based on the employee's length of continuous service. [00:13:13] Speaker 03: Section five says that scale increases according to longevity shall become due on January 27th of the following year. [00:13:20] Speaker 03: Sections four and five refer to longevity pay [00:13:25] Speaker 03: That's not limited by a date certain sections one through three do talk about annual increase across the board increases for nurses. [00:13:33] Speaker 03: And those are limited to date certain longevity pay is discussed in sections four and five. [00:13:37] Speaker 03: It is not so limited. [00:13:41] Speaker 03: The board has never found that language such as during the term of this agreement ends [00:13:49] Speaker 03: mandatory term and condition of employment at the time of contract expiration. [00:13:53] Speaker 03: It takes some clear and unmistakable waiver to show that a mandatory term and condition of bargaining has expired with the contract. [00:14:06] Speaker 03: Language such as shall terminate in this court's decision in Cawthorn, for example. [00:14:12] Speaker 03: That kind of language will terminate it. [00:14:14] Speaker 02: Ms. [00:14:14] Speaker 02: Cassetta relies heavily on Finley Hospital and your response. [00:14:17] Speaker 03: Finley hospital before in that case found that it was a one year contract and the language in that contract [00:14:28] Speaker 03: led the court to believe that there was, it was not intended, that it was a 3% across the board wage increase that would have been annual. [00:14:36] Speaker 03: And the court found that under a one-year contract, in the language of that contract, the parties did not intend to have continuous 3% annual increases. [00:14:45] Speaker 03: In that case, there were also other wage provisions. [00:14:48] Speaker 03: So there was a, there were set wages, but the actual issue about what was going to continue past contract expiration were regular annual 3% increases. [00:14:59] Speaker 02: All right. [00:15:01] Speaker 02: Unless you have something further, I think that's fine. [00:15:08] Speaker 02: You may have one minute. [00:15:15] Speaker 04: I will try not to even take the whole minute. [00:15:17] Speaker 04: I simply want to point out the board's reliance on the clear and unmistakable waiver doctrine, which, as this circuit knows, has not been accepted in the DC circuit. [00:15:26] Speaker 04: rather the DC circuit relies on the contract coverage doctrine, a standard under which the court would look to the party's contract and interpret the party's contract, which brings us back to where I was before. [00:15:39] Speaker 04: And with regard to Findlay, counsel for the board is correct that there is discussion of the one-year term of the contract, but there is separate [00:15:47] Speaker 04: language, discussing the specific durational language, identical to the language in this case. [00:15:53] Speaker 01: What is your language here? [00:15:55] Speaker 04: During the term of this agreement, as set forth in Appendix A. It's in Appendix A, not back in Article 25 in the body, but in Appendix A. I would say that the specific language in 25 is articles, or sections 1 through 3, has the dates certain. [00:16:11] Speaker 04: Okay. [00:16:12] Speaker 04: Thank you very much. [00:16:13] Speaker 02: Is it submitted?