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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2004 Decided June 11, 2004

No. 03-1161

STANFORD HOSPITAL AND CLINICS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 715,

INTERVENOR

Consolidated with

03-1192

On Petition for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

Laurence R. Arnold argued the cause for petitioner. With

him on the briefs was John H. Douglas.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
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Kira Dellinger Vol, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and David Habenstreit,

Supervisory Attorney.

David A. Rosenfeld was on the brief for intervenor. John

H. Douglas and Laurence R. Arnold entered appearances.

Before: GINSBURG, Chief Judge, and RANDOLPH and

ROBERTS, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Stanford Hospital and Clinics petitions for review of an order of the National Labor Relations

Board, which held the petitioner violated §§ 8(a)(1) and (5) of

the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and

(5), by refusing to provide information to the Service Employees International Union, Local 715, and by refusing to bargain with the Union regarding 11 housekeepers working at a

facility not specifically identified in the collective bargaining

agreement (CBA) as part of the bargaining unit. The Board

cross-petitions for enforcement of the order, which was predicated upon its prior order granting the Union’s petition for

unit clarification and accreting the 11 housekeepers to the

bargaining unit. Because the Board should have dismissed

the unit clarification petition as untimely pursuant to Wallace–Murray Corp., 192 NLRB 1090 (1971), we grant Stanford Hospital’s petition for review and vacate the Board’s

order.

I. Background

Stanford Hospital and Clinics (Stanford Hospital) operates

the Stanford Hospital, the Lucile Packard Children’s Hospital, and several inpatient and outpatient clinics. The Housekeeping Department of Stanford Hospital provides housekeeping services not only at Stanford Hospital’s own facilities,
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but also at facilities operated by Stanford Medical School,

which is a separate legal entity.

In August 1998 the Union filed a petition with the Board

seeking certification as the bargaining representative of ‘‘all

full-time, and regular part-time Service and Maintenance

employees of [Stanford Hospital] employed at the Stanford

Hospital facility TTT and the Lucille [sic] S. Packard Children’s Hospital facility.’’ The next month Stanford Hospital

and the Union entered into a Stipulated Election Agreement

in which they defined the bargaining unit to include all

housekeepers (among others) at the Employer’s ‘‘Stanford

Hospital, Lucile Salter Packard Children’s Hospital, Welch

Road, and Blake–Wilbur Drive, Palo Alto, California locations, TTT excluding TTT all other employees.’’

As required by Excelsior Underwear, Inc., 156 NLRB 1236

(1966), Stanford Hospital provided the Union with the names

and addresses of all eligible voters in the bargaining unit.

Stanford Hospital inadvertently included in the Excelsior list

several housekeepers who did not work at a listed facility and

were therefore not in the bargaining unit; those employees

voted in the representation election as a result of this. The

Union won the election, and the Board certified the Union as

the collective bargaining representative of all housekeepers at

the locations listed in the Stipulated Election Agreement,

again ‘‘excluding TTT all other employees.’’

Stanford Hospital and the Union began to bargain in

March 1999. The Union proposed in March and again in

June that the bargaining unit be defined in the CBA to

include ‘‘all employees who are employed at the Employer’s

existing and future facilities, to the extent permitted by law.’’

Both times Stanford Hospital rejected this proposal.

In November 1999 Stanford Hospital and the Union entered into a CBA with a term of two years. In the recognition clause Stanford Hospital recognized the Union ‘‘as the

sole and exclusive representative for the purpose of collective

bargaining’’ for all housekeepers employed at the same list of

locations as appeared in the Stipulated Election Agreement,

again ‘‘excluding all other employees.’’
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In April 2000 Stanford Medical School opened the Center

for Clinical Science and Research (CCSR). Stanford Medical

School contracted for Stanford Hospital to provide housekeeping services at the CCSR, and in May Stanford Hospital

hired 11 housekeepers to work at the new facility.

In August the Union filed with the Board a unit clarification petition seeking to include within the bargaining unit the

CCSR 11. The Regional Director of the Board granted the

Union’s petition and the Board affirmed his decision in September 2002.

The Union then asked Stanford Hospital to bargain, and to

provide information, regarding the 11 newly accreted housekeepers. Stanford Hospital refused both requests, and the

Union filed an unfair labor practices charge against it. The

Board held Stanford Hospital had violated §§ 8(a)(1) and (5)

of the NLRA by unlawfully refusing to provide information

to, and to bargain with, the Union concerning the 11 housekeepers at the CCSR. The Employer now seeks review, and

the Board seeks enforcement, of that decision.

II. Analysis

Stanford Hospital argues the Board should have (1) dismissed the unit clarification petition as untimely, or (2) if it

was not untimely, then denied the petition for want of substantial evidence the CCSR housekeepers met the criteria for

accretion to the bargaining unit. Our review is limited to

determining whether the Board’s findings of fact are supported by substantial evidence and, if so, whether the Board

acted arbitrarily or otherwise erred in applying established

law to the facts of the case. See Cmty. Hosps. of Cent. Ca. v.

NLRB, 335 F.3d 1079, 1082–83 (D.C. Cir. 2003). Although

we defer to the Board’s judgment regarding the proper scope

of a bargaining unit, see South Prairie Constr. Co. v. Int’l

Union of Operating Eng’rs, Local 627, 425 U.S. 800, 805–06

(1976), we do not owe any deference to the Board’s interpretation of a CBA. See Commonwealth Communications v.

NLRB, 312 F.3d 465, 468 (D.C. Cir. 2002).
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* * *

Stanford Hospital argues that under the long-standing

Wallace–Murray doctrine the Board should not have entertained the Union’s petition to clarify the bargaining unit. See

Wallace–Murray, 192 NLRB at 1090. In that case the Board

held that during the term of a CBA, ‘‘it will not serve the

purposes of the Act to use TTT the unit clarification petition to

modify a unit which is clearly defined in the current bargaining agreement.’’ Id. The Wallace–Murray doctrine is based

upon ‘‘the rationale that, where the parties have reached a

contract, it would be disruptive for the Board to change that

contract midterm.’’ Edison Sault Elec. Co., 313 NLRB 753,

754 (1994). Because the Union’s petition for unit clarification

was filed during the term of the CBA, the lawfulness of the

Board’s decision to entertain the petition depends upon

whether the CBA ‘‘clearly defined’’ the bargaining unit.

The Board argues the representation clause of the CBA is

‘‘facially ambiguous with respect to the unit status of employees in future facilities,’’ such as the 11 housekeepers employed at the CCSR. More specifically, the Board maintains

the CBA is ‘‘silent regarding employees at future facilities’’

because the phrase ‘‘excluding all other employees’’ does not

indicate whether it ‘‘encompasses possible future employees

or refers only to those in then-existing jobs.’’ (Emphasis in

original). For its part, Stanford Hospital argues the representation clause is not ambiguous because it ‘‘explicitly described the few Stanford Hospital locations’’ at which employees were included in the bargaining unit and ‘‘explicitly

excluded ‘all other employees’ ’’; in other words, ‘‘all other

employees’’ means ‘‘all other employees, present and future.’’

As we read it, the representation clause of the CBA clearly

excludes the 11 housekeepers from the bargaining unit. Although the parties to the CBA did not give the representation

clause an explicit temporal dimension by using terms such as

‘‘future’’ or ‘‘present,’’ they did ‘‘exclud[e from the unit] TTT

all other employees’’ than those employed in the listed facilities; the 11 employees in dispute do not work at a listed

facility. Q.E.D.
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The only temporal limitation upon the scope of the bargaining unit as defined is the two-year term of the CBA: For two

years ‘‘all other employees’’ — present and future — if not

explicitly included, were excluded from the bargaining unit;

thereafter the scope of the bargaining unit was subject to

negotiation.

Turning from the temporal to the spatial dimension, the

Board argues the ‘‘mere mention of a specific location in the

recognition clause of a [CBA,] without more, does not constitute an unambiguous geographic limitation precluding accretion of employees from new locations into the unit.’’ See

Westwood Imp. Co., 251 NLRB 1213, 1223 (1980). This

would be a telling point in the appropriate case; an employer

cannot escape its contractual commitments to a union merely

by changing its address. That was the nub of the issue in

Westwood Import and the cases cited therein. Here, however, the reference in the representation clause was not to the

Employer’s business at a single facility at a specific address

or in a general geographic area, such as ‘‘San Pedro, California, and vicinity’’; it was to three facilities specifically selected from the several inpatient and outpatient clinics operated

by Stanford Hospital. Those three facilities were listed in

the representation clause while others — such as the Hoover

Pavilion facility — were not listed, with the clear and express

purpose of including within the bargaining unit only the

eligible employees working at the named facilities and excluding ‘‘all other employees.’’

Finally, the Board argues the parties’ application of the

CBA to the housekeepers who were erroneously allowed to

vote in the representation election, but were not employed at

a facility within the bargaining unit as defined in the representation clause of the CBA, ‘‘undermines any reading of the

clause’s enumeration of the three hospital facilities as delineating the geographic scope of the unit.’’ See Colon Velez v.

Puerto Rico Marine Mgmt., Inc., 957 F.2d 933, 939 (1st Cir.

1992) (parties may include employees in bargaining unit by de

facto practice as well as through contractual language). Stanford Hospital responds that apart from the inadvertent accretion of those errant voters ‘‘purely by mistake on [its] part,’’
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the ‘‘geographic limitations of the unit have been observed’’

and, therefore, the representation clause of the CBA still

governs the scope of the bargaining unit.

The inclusion in the bargaining unit of the individual employees who were inadvertently allowed to vote in the representation election does not undermine the clear exclusion of

‘‘all other employees’’ from the bargaining unit in the representation clause. A single deviation — undisputedly inadvertent — does not constitute a course of dealing sufficient to

render the representation clause ambiguous. See Quick v.

NLRB, 245 F.3d 231, 247 (3d Cir. 2001) (evidence of one

occasion ‘‘is not evidence of ‘past practice’ ’’); see also Dallas

Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 783 (2d Cir.

2003) (single act ‘‘is not a course of performance sufficient to

demonstrate mutual assent’’ to modification of agreement);

U.C.C. § 2–208 cmt. 4 (‘‘single occasion of conduct’’ does not

establish course of performance); RESTATEMENT (SECOND) OF

CONTRACTS § 202(4) cmt. g. In this regard we think it

significant that non-voting employees who worked in otherwise eligible classifications at the very locations where the

grandfathered employees worked were not included in the

bargaining unit.

We conclude the order accreting the 11 housekeepers at

the CCSR was arbitrary and capricious because it contravened the Board’s established policy against entertaining a

petition for unit clarification where the bargaining unit is

‘‘clearly defined’’ in the CBA. Instead of entertaining the

Union’s petition, the Board should have dismissed it as untimely. See Consol. Papers, Inc. v. NLRB, 670 F.2d 754, 757

(7th Cir. 1982).

III. Conclusion

For the foregoing reasons, we grant Stanford Hospital’s

petition for review and deny the Board’s cross-petition for

enforcement.

So ordered.