Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
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.
2
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 peti-
tions 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 Employ-
ees International Union, Local 715, and by refusing to bar-
gain 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 predi-
cated 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 Wal-
lace–Murray Corp., 192 NLRB 1090 (1971), we grant Stan-
ford 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 Hospi-
tal, and several inpatient and outpatient clinics. The House-
keeping Department of Stanford Hospital provides house-
keeping services not only at Stanford Hospital’s own facilities,
3
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 Chil-
dren’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 loca-
tions, 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 en-
tered into a CBA with a term of two years. In the recogni-
tion 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.’’
4
In April 2000 Stanford Medical School opened the Center
for Clinical Science and Research (CCSR). Stanford Medical
School contracted for Stanford Hospital to provide house-
keeping 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 clarifica-
tion 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 Sep-
tember 2002.
The Union then asked Stanford Hospital to bargain, and to
provide information, regarding the 11 newly accreted house-
keepers. 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 house-
keepers 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) dis-
missed the unit clarification petition as untimely, or (2) if it
was not untimely, then denied the petition for want of sub-
stantial 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 sup-
ported 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 interpre-
tation of a CBA. See Commonwealth Communications v.
NLRB, 312 F.3d 465, 468 (D.C. Cir. 2002).
5
* * *
Stanford Hospital argues that under the long-standing
Wallace–Murray doctrine the Board should not have enter-
tained 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 bargain-
ing 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 employ-
ees in future facilities,’’ such as the 11 housekeepers em-
ployed 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 repre-
sentation clause is not ambiguous because it ‘‘explicitly de-
scribed the few Stanford Hospital locations’’ at which employ-
ees 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. Al-
though 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 facili-
ties; the 11 employees in dispute do not work at a listed
facility. Q.E.D.
6
The only temporal limitation upon the scope of the bargain-
ing 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 consti-
tute an unambiguous geographic limitation precluding accre-
tion 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, howev-
er, 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, Califor-
nia, and vicinity’’; it was to three facilities specifically select-
ed 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 exclud-
ing ‘‘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 repre-
sentation clause of the CBA, ‘‘undermines any reading of the
clause’s enumeration of the three hospital facilities as delin-
eating 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). Stan-
ford Hospital responds that apart from the inadvertent accre-
tion of those errant voters ‘‘purely by mistake on [its] part,’’
7
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 em-
ployees who were inadvertently allowed to vote in the repre-
sentation election does not undermine the clear exclusion of
‘‘all other employees’’ from the bargaining unit in the repre-
sentation clause. A single deviation — undisputedly inadver-
tent — 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 other-
wise 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 contra-
vened 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 un-
timely. 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.