National Nurses Organizing Committee-Missouri & Kansas/National Nurses United v. Midwest Division-RMC, LLC, doing business as Research Medical Center

United States Court of Appeals
For the Eighth Circuit
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No. 21-2200
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National Nurses Organizing Committee-Missouri & Kansas/National Nurses United
lllllllllllllllllllllPlaintiff - Appellee
v.
Midwest Division-RMC, LLC, doing business as Research Medical Center
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 12, 2022
Filed: February 17, 2022
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Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
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WOLLMAN, Circuit Judge.
After Midwest Division-RMC, LLC (RMC), implemented new staffing grids
for registered nurses at its acute-care hospital, the National Nurses Organizing
Committee-Missouri & Kansas (Union) filed a grievance under the parties’ collective
bargaining agreement (CBA) and later sought arbitration. RMC refused to process
the grievance, claiming that the CBA did not cover the Union’s allegations of
wrongdoing. The Union thereafter filed a complaint in federal district court, seeking

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to compel arbitration. Ruling on the parties’ cross-motions for summary judgment,
the district court1 granted the Union’s motion, denied RMC’s, and ordered arbitration.
We affirm.
The CBA defines “grievance” as “[a]n alleged breach of the terms and
provisions of this Agreement.” The CBA sets forth the process for submitting
grievances to RMC and provides that if the grievance is not resolved by the parties,
“the Union may advance the grievance to arbitration.” Article 38(1)(F) exempts from
arbitration certain disputes.
RMC implemented new staffing grids in June 2020. The Union filed a
grievance on July 15 for an alleged violation of Article 3 of the CBA, entitled
“Bargaining Unit Work.” The grievance alleged that “the hospital intends to displace
bargaining unit (BU) RNs [with] supervisory RNs in the performance of BU work as
expressed in the hospital’s staffing grids” that were implemented in June 2020 and
that “removed RNs in the BU.” The Union requested that RMC “cease + desist from
utilizing these staffing grids,” “[h]old staffing committee per the CBA & amend the
proposed grids to conform [with] the CBA,” and “[r]eturn the RNs [RMC] ha[s]
removed.” After RMC refused to process the grievance or arbitrate, the Union filed
this lawsuit.
We review de novo a district court’s decision to grant summary judgment and
compel arbitration. Crown Cork & Seal Co. v. Int’l Ass’n of Machinists, 501 F.3d
912, 914 (8th Cir. 2007). We apply the following principles in deciding whether to
compel arbitration:
1The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
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(1) arbitration is a matter of contract and may not be ordered unless the
parties agreed to submit the dispute to arbitration; (2) unless the parties
provide otherwise, courts decide the issue of whether the parties agreed
to arbitrate; (3) courts cannot weigh the merits of the grievance in
determining whether the claim is subject to arbitration; and (4) when an
arbitration clause exists in a contract, there is a presumption of
arbitrability unless it is clear that the arbitration clause is not susceptible
of an interpretation that covers the dispute.
UAW Loc. 716 v. Trane U.S. Inc., 946 F.3d 1031, 1033 (8th Cir. 2020) (quoting
Teamsters Loc. Union No. 688 v. Indus. Wire Prods., Inc., 186 F.3d 878, 881 (8th
Cir. 1999)). The parties agree that they are bound by the CBA’s arbitration provision.
The issue before us is whether the grievance alleged a subject matter subject to that
provision. See Int’l Ass’n of Bridge, Struct., Ornamental, & Reinforcing
Ironworkers, Shopman’s Loc. 493 v. EFCO Corp. & Constr. Prods., Inc., 359 F.3d
954, 956 (8th Cir. 2004) (stating that it is for the court to decide “whether a valid
arbitration agreement applies to the subject matter at hand”).
The Union maintains that the grievance alleges a dispute over “the performance
of bargaining unit work by supervisory employees.” Article 3, entitled “Bargaining
Unit Work,” states: “It is not the intent of the Hospital to displace bargaining unit
employees with supervisory employees in the performance of bargaining unit work.”
The Union points to the grievance’s allegations that RMC violated Article 3 and that
RMC intended to displace bargaining unit registered nurses with supervisory
registered nurses “in the performance of BU work.”
RMC contends that the grievance effectively challenges the hospital’s staffing
plans, which are not subject to arbitration under the terms of the CBA. RMC points
to the grievance’s allegations about “the hospital’s staffing grids” and to its request
that RMC “cease + desist” its use of the grids and amend the grids to conform with
the CBA. Article 38, entitled “Staffing Committee,” Section (1)(F), states that
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disagreements between RMC and the Union “regarding issues covered by this Article,
including disagreements related to staffing plans and the methods to monitor
compliance with the plans, that cannot be resolved mutually by the parties shall not
be subject to the grievance and arbitration procedures of this Agreement.” RMC
contends that this excludes “all disputes concerning or even just ‘relating to’ hospital
staffing plans” from arbitration. Moreover, RMC asserts that Article 19 reserves to
RMC several “sole, exclusive, and unilateral rights” related to staffing, disputes over
which the CBA exempts from the arbitrator’s power.
Even assuming the dispute relates to staffing plans, we conclude that it is not
covered by Article 38 and thus is subject to the CBA’s grievance and arbitration
procedures.2 Article 38 establishes a Nurse Staffing Committee, the goal of which
is “to review, monitor and, where appropriate adjust the applicable Nurse-to-patient
staffing levels set forth in the Hospital Staffing Plan for Nurses.” Article 38 explains
that “the Hospital’s Staffing Plan provides the basis for acuity based staffing
decisions within the Hospital by providing guidance on Nurse-to-patient staffing
levels for staffing coverage in patient care units at the Hospital.” Article 38 further
explains what constitutes a deviation from the Plan, how the Staffing Committee
functions, and how disputes over staffing levels must be resolved. Read as a whole,
Article 38 addresses nurse-to-patient staffing levels and establishes the means to
monitor and resolve disputes regarding those staffing levels. It does not address the
subject matter of this dispute, i.e., which nurses perform the work or the displacement
of bargaining unit nurses. Article 38(1)(F)’s reference to “disagreements related to
staffing plans” relates only to staffing-plan disputes that fall under “issues covered
2We do not find persuasive RMC’s cited case that raised a similar grievance.
See Nat’l Nurses Org. Comm.-Mo. & Kan. v. Midwest Div.-MMC, LLC, No. 2:20-
CV-2571, 2021 WL 3376415 (D. Kan. July 16, 2021). The court determined that,
compared to the CBA before us, the collective bargaining agreement before it
“appear[ed] to further limit and exclude certain disputes from arbitration.” Id.
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by” Article 38. Because the grievance alleges displacement of bargaining unit nurses,
which is covered by Article 3, and not issues related to nurse-to-patient staffing
levels, which are covered by Article 38, Article 38(1)(F)’s arbitration exemption does
not apply. Article 19 does not alter this analysis.
We do not accept RMC’s argument that compelling arbitration will nullify
Articles 38 and 19. Those provisions create an arbitration exemption that is simply
narrower than RMC would like. Moreover, adopting RMC’s position would render
Article 3 of no effect. See MidAmerican Pension & Emp. Benefits Plan Admin.
Comm. v. Cox, 720 F.3d 715, 719 (8th Cir. 2013) (explaining that “an interpretation
which gives a reasonable, lawful, and effective meaning to all the terms is preferred
to an interpretation which leaves a part unreasonable, unlawful, or of no effect”
(quoting Restatement (Second) of Contracts § 203(a) (1981))).
RMC also argues that the district court failed to determine whether the
grievance met the CBA’s definition of grievance or its requirements for arbitration
under Articles 2 and 14. RMC contends that only allegations of actual breaches are
arbitrable and that because the Union used the phrase “intends to,” it did not allege
an actual breach of the CBA. Assuming that the Union must allege an actual breach,
we conclude that it has adequately done so. Compare Article 3 (“It is not the intent
of the Hospital to displace bargaining unit employees with supervisory employees in
the performance of bargaining unit work.”) with grievance (“Currently + ongoing the
hospital intends to displace bargaining unit (BU) RNs w/ supervisory RNs in the
performance of BU work”). It is undisputed that RMC implemented the changes
more than two weeks before the Union filed its grievance. The grievance specifically
alleged that the staffing grids had “removed RNs in the BU.” We thus conclude that
the grievance alleged an actual breach.
We decline to consider RMC’s argument that Article 38 covers the issue of
which nurses perform the work, which it raised for the first time in its reply brief. See
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Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008) (“This court does not consider
issues raised for the first time on appeal in a reply brief ‘unless the appellant gives
some reason for failing to raise and brief the issue in his opening brief.’” (quoting
Neb. Plastics, Inc. v. Holland Colors Ams., Inc., 408 F.3d 410, 421 n.5 (8th Cir.
2005))).
The judgment is affirmed.
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