              United States Court of Appeals
                       For the First Circuit



No. 05-2799

                 MASSACHUSETTS NURSES ASSOCIATION,

                       Plaintiff, Appellant,

                                 v.

                   NORTH ADAMS REGIONAL HOSPITAL,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Kenneth P. Neiman, U.S. Magistrate Judge]


                               Before

                        Boudin, Chief Judge,
                     Selya, Circuit Judge, and
                 Schwarzer,* Senior District Judge.




     Mark A. Hickernell, with whom Alan J. McDonald and McDonald,
Lamond & Canzoneri were on brief, for appellant.
     Robert B. Gordon, with whom David C. Potter and Ropes & Gray
LLP were on brief, for appellee.



                          October 26, 2006

__________
*Of the Northern District of California, sitting by designation.
            SELYA, Circuit Judge.       This appeal requires us to mull

the circumstances in which a union, having successfully arbitrated

a grievance, may leverage the award to bypass procedures prescribed

by a collective bargaining agreement and obtain direct federal

court   relief    for   subsequent      episodes     of    alleged    employer

misconduct.     In the case at hand, the district court thwarted the

union's attempt to short-circuit the grievance process, finding too

great   a   disparity   between   the      facts   underlying   the   initial

complaints and those giving rise to the subsequent complaints.

After careful consideration, we affirm.

                                     I.

                               Background

            North Adams Regional Hospital (the Hospital) employs

nurses represented by the Massachusetts Nurses Association (MNA).

This dispute arises out of a collective bargaining agreement (CBA)

between the two organizations.       Article 18.07 of the CBA contains

a   provision    entitled   "Standards      of   Nursing   Practice,"   which

requires the Hospital to "only keep and admit the number of

patients that registered nurses can safely care for" and to "take

measures such as adding nurses [and] stopping admissions . . . to

ensure that this occurs." The CBA further provides a stereotypical

grievance procedure, culminating in binding arbitration, to resolve

covered disputes.




                                     -2-
            In    2002,      nurses   employed     by    the    Hospital    filed

approximately     nine      reports   alleging   inadequate      staffing   on   a

particular floor (Three North) in violation of Article 18.07.                 The

MNA converted these complaints into formal grievances. Arbitration

hearings took place in 2003 and 2004.             On February 21, 2005, the

arbitrator, Michael Stutz, found that the Hospital had transgressed

the CBA and issued a remedial order.             We need not recount all the

particulars      of   the     arbitrator's    entire      decision   and    order

(collectively, the Stutz Award); for now, it suffices to repeat the

order alone:

            a) The Hospital shall cease and desist
            violating Article 18.07 of the Agreement;

            b) The Hospital shall pay the MNA an amount of
            money equal to the pay of one RN for each of
            the nine shifts grieved; and

            c) The Hospital shall pay the RN's working the
            nine shifts time and one half for those nine
            shifts, i.e. the difference between time and
            one half pay and what they actually were paid.

            In the spring of 2005 — some three years after the events

that gave rise to the initial grievances — nurses at the Hospital

reported what they believed to be additional violations of Article

18.07.    While at least one of these reports dealt with an event on

Three North, the vast majority of them involved events occurring in

other    areas   of   the    Hospital.       Rather     than   converting   these

complaints into one or more formal grievances, the MNA attempted a

short-cut; it filed a direct action in the federal district court,


                                       -3-
seeking enforcement of the cease-and-desist portion of the Stutz

Award.1   That action rested on section 301 of the Labor-Management

Relations Act, 29 U.S.C. § 185, which authorizes federal district

courts to enforce collective bargaining pacts and, thus, to enforce

labor arbitration awards issued pursuant to such pacts.2                    See

Textile Workers v. Lincoln Mills, 353 U.S. 448, 451 (1957).               This

means that where, as here, a collective bargaining agreement

contains an arbitration clause, an arbitral award is akin to a

contractual obligation that can be enforced through a civil action

under section 301.     See Local 2322, Int'l Bhd. of Elec. Workers v.

Verizon New Engl., Inc., ___F.3d ___, ___ (1st Cir. 2006) [No. 06-

1169, slip op. at 5].

             The Hospital answered the complaint.           It then moved for

judgment on the pleadings, see Fed. R. Civ. P. 12(c), arguing that

the   2005   reports   arose   out   of    a   variegated    set   of   factual

predicates materially different from the factual predicate on which

the earlier grievances reposed and that, therefore, enforcement

constituted an inappropriate avenue for relief.              The MNA opposed

the motion.    By consent of the parties, the matter was entrusted to

a magistrate judge for decision.          See 28 U.S.C. § 636(c); Fed. R.


      1
      The MNA also sought to adjudge the Hospital in violation of
another portion of the Stutz Award.       That dispute has been
resolved.
      2
      The parties speak, interchangeably, of both "confirming" and
"enforcing" the Stutz Award. Because enforcement seems more apt in
the context of this case, we use that terminology.

                                     -4-
Civ. P. 73.    After a comprehensive analysis of the Stutz Award and

the   applicable   law,   the   judge      agreed     with      the   Hospital's

characterization    and   allowed    the    motion.      This    timely   appeal

followed.

                                    II.

                                Analysis

            Both parties rely heavily on our prior pronouncements

regarding the enforcement of arbitral awards.                Consequently, we

start there.

            In previous cases, we have recognized that, at least

since the Supreme Court decided the so-called Steelworkers trilogy,

see United Steelworkers v. Am. Mfg. Co., 363 U.S. 564 (1960);

United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574

(1960); United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S.

593 (1960), the federal courts are to play a narrowly circumscribed

role in the administration of labor arbitration. See, e.g., Boston

Shipping Ass'n, Inc. v. Int'l Longshoremen's Ass'n, 659 F.2d 1, 3

(1st Cir. 1981).      We have been particularly loath to take too

expansive a view of the precedential effect of arbitration awards,

emphasizing that this phenomenon is primarily a matter for the

arbitrator, not for a court.        See Courier-Citizen Co. v. Boston

Electrotypers Union No. 11, 702 F.2d 273, 280 (1st Cir. 1983).

This does not denote, however, that unions invariably must be

consigned   to   Sisyphean   labors,      forced    to   arbitrate     the   same


                                    -5-
grievance again and again.          See Locals 2222, 2320-2327, Int'l Bhd.

of Elec. Workers v. New Engl. Tel. & Tel. Co., 628 F.2d 644, 649

(1st Cir. 1980).       In appropriate circumstances, a court may order

the   enforcement      of   a   prior    arbitration     award    as     a    means   of

resolving a subsequent labor dispute.            See, e.g., Boston Shipping,

659 F.2d at 4.

           The trick, of course, is discerning what circumstances

are   sufficient       to   warrant       bypassing     the   normal         grievance

procedures. Even though we enforced the original arbitral award in

Boston Shipping, we made clear that this result was the exception

rather than the rule; such an anodyne is available only if "it is

beyond argument that there is no material factual difference

between   the    new    dispute     and    the   one    decided     in       the   prior

arbitration." Id. We fleshed out that commentary two years later,

stating that:

           Only where an arbitral award is both clearly
           intended to have a prospective effect and
           there is no colorable basis for denying the
           applicability of the existing award to a
           dispute at hand, will a court order compliance
           with the award rather than require the parties
           to proceed anew through the contract grievance
           procedure.

Derwin v. Gen. Dynamics Corp., 719 F.2d 484, 491 (1st Cir. 1983).

           Read carefully, these two decisions illustrate the proper

application of the standard.            In the former case, the new dispute

was identical to the original dispute except for the intervening

renewal   of    the    collective       bargaining     agreement;      accordingly,

                                          -6-
enforcement was an available remedy.        Boston Shipping, 659 F.2d at

4.   In the latter case, we refused to follow that course because

the union had failed to show a new and identical dispute.                See

Derwin, 719 F.2d at 491 (warning that this court would not "put its

imprimatur upon an arbitral award in a vacuum").              This cautious

approach toward the hopscotch enforcement of arbitration awards

vis-á-vis new grievances is solidly within the mainstream of labor

law as elucidated by other courts of appeals.              See, e.g., Local

1545, United Mine Workers v. Inland Steel Coal Co., 876 F.2d 1288,

1295-97 (7th Cir. 1989) (requiring that facts underlying prior

award and those underlying subsequent violation be "substantially

identical" in order to warrant enforcement); United Mine Workers,

Dist. 5 v. Consol. Coal Co., 666 F.2d 806, 811 (3d Cir. 1981)

(explaining that enforcement of a prior award requires a court to

say with "positive assurance" that the award was intended to cover

the new dispute); Oil, Chem. & Atomic Workers Int'l Union v. Ethyl

Corp.,   644   F.2d   1044,   1050   (5th   Cir.   1981)    (delineating   a

substantial similarity standard).

           Mindful    of   this   well-manicured   legal    landscape,   our

primary task here is to determine whether the Stutz Award was

intended to have a prospective effect, and if so, whether there is

any colorable basis for denying its applicability to the new

incidents.     We turn now to that task.




                                     -7-
           To its credit, the MNA attempts to meet the Hospital's

challenge head-on.      It does not question the applicability of

Derwin and Boston Shipping but, rather, contends that the current

dispute qualifies for enforcement under our historic standard. Its

thesis is that because the prior and current disputes share a

common factual nucleus — all of them involve alleged violations of

Article 18.07 — there is no material factual difference and,

therefore, enforcement is appropriate. To justify this result, the

MNA notes that the first page of the Stutz Award — the three-

paragraph remedial order quoted above — contains no specific

reference to Three North.       Building on that foundation, it argues

that the Stutz Award applies hospital-wide.         Its fallback position

is that it should at least have been allowed to proceed in the

district court with the alleged violations that occurred on Three

North.

           The Hospital counters that context is crucial and that,

taking context into account, there is at least an arguable basis

for   rejecting   the   claim   that   the   new   dispute   is   materially

indistinguishable from the old dispute (and, thus, for rejecting

the applicability of the Stutz Award).         In mounting this counter-

argument, the Hospital goes beyond the remedial order and points to

the arbitrator's statement, in the body of the decision, that "the

most important goal of remedy in this case is [to] assure that

there is no repetition of the circumstances that prevailed on at


                                    -8-
least       nine   occasions    in   May   and   June    2002   on    Three   North"

(emphasis supplied).           It also adverts to the arbitrator's singular

focus on Three North in his descriptions of staffing violations.

Finally, it directs our attention to facts properly before us

evidencing that it has made significant staffing changes, on Three

North and elsewhere throughout the institution, since the emergence

of the grievances that spawned the original arbitration.                          In

conclusion,        the   Hospital     posits     that,    given      these    changed

circumstances, the new complaints cannot conceivably be thought to

mimic the grievances that formed the basis for the Stutz Award.

               The district court resolved the MNA's enforcement action

on a Rule 12(c) motion.           The guidelines applicable to judgment on

the pleadings require the court to accept all the well-pleaded

facts as true, draw all reasonable inferences in favor of the

nonmovant (here, the MNA), and grant the motion only if it appears

that the nonmovant could prove no set of facts that would entitle

it to relief.         See Rivera-Gomez v. de Castro, 843 F.2d 631, 635

(1st Cir. 1988).         As the CBA, the Stutz Award, and four of the new

incident reports were annexed to the pleadings,3 so the court could

consider them in conducting its tamisage.                 See Centro Medico del

Turabo, Inc., v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir.




        3
      While the remaining reports were not so annexed, the parties
have made persistent references to them during the course of this
appeal.

                                           -9-
2005); In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st

Cir. 2003).

          In hewing to this protocol, the district court chose to

look beyond the isthmian confines of the remedial order to the body

of the arbitrator's decision and the facts contained therein.     In

the end, it concluded that material factual differences marked the

two disputes.   Accordingly, it granted the Hospital's motion for

judgment on the pleadings.

          We review the district court's entry of judgment on the

pleadings de novo, subject to the same ground rules that were

applicable in the lower court.    See Gulf Coast Bank & Trust Co. v.

Reder, 355 F.3d 35, 37 (1st Cir. 2004); Feliciano v. Rhode Island,

160 F.3d 780, 788 (1st Cir. 1998).      Even when scrutinized through

the prism of this plaintiff-friendly standard of review, the MNA's

argument falters.

          To be sure, the MNA fulfills the first prong of the

Derwin test: the Stutz Award plainly satisfies Derwin's requirement

that the original award be prospective. Indeed, the very nature of

cease-and-desist orders is to provide prospective relief. See P.R.

Mar. Shipping Auth. v. Fed. Mar. Comm'n, 75 F.3d 63, 65 (1st Cir.

1996).

          The MNA does less well with Derwin's second prong.       On

its side of the decisional scales is the fact that here, unlike in

Derwin, the complaint alleges specific new violations and does not


                                 -10-
ask us to place our imprimatur upon the earlier arbitral award in

a vacuum.    Yet the allegations of the complaint do not show, as

Derwin demands, that it is "beyond argument that there is no

material factual difference between the new dispute and the one

decided in the prior arbitration." Derwin, 719 F.2d at 491 (citing

Boston Shipping, 659 F.2d at 4).

            The Stutz Award is annexed to and therefore incorporated

by reference in the complaint. Accordingly, the district court had

the obligation to go behind the bare bones of the remedial order

and look at the whole of the Stutz Award.       See Boston Shipping, 659

F.2d at 4 (relying upon supporting rationale of arbitrator in

affirming enforcement of award).        Taking into account the tenor of

the arbitrator's decision and the available descriptions of the

various incidents (new and old), it is perfectly plain that, even

if all of the new disputes had taken place on Three North — and the

bulk of them did not — that spatial coincidence, standing alone,

would be insufficient to show the requisite similitude.                   The

additional fact that all the complaints invoked Article 18.07 of

the CBA does not suffice to remedy this shortcoming.4              On these

facts, the intervening passage of time and the changed nature of

hospital    staffing   patterns   and   practices   combine   to   form   an



     4
      It appears that at least one of the new complaints may not
implicate Article 18.07 at all. For our purposes, nothing turns on
this fact; accordingly we assume, favorably to the MNA, that all
the new complaints implicate Article 18.07.

                                   -11-
insurmountable barrier to the applicability of the earlier award.

We explain briefly.

           The MNA's complaint makes no meaningful effort to show

the requisite similitude beyond the fact that several of the

incidents transpired on Three North and came under the aegis of

Article 18.07.    Its argument does not fairly suggest identicality:

as the Stutz Award and the incident reports reflect, staffing at

the Hospital — like hospital staffing generally — is not a matter

of simple arithmetic. To the contrary, it requires a sophisticated

algorithm with many variables.

           The   nature    of   this   complex   endeavor   is   such     that

reasonable minds may differ as to the most salutary ratios in

particular circumstances.       See generally Julie Marie Bessette, An

Analysis   in    Support   of   Minimum    Nurse-to-Patient      Ratios    in

Massachusetts, 9 Quinnipiac Health L.J. 173, 207 (2006) (noting the

view that staffing involves "much more than arbitrary numbers,

including judgment and critical thinking by nurse administrators

and consideration of the patient's needs").         As documented in the

Stutz Award, staffing at the Hospital involves variables such as

patient acuity and nurses' skill sets.       Common sense suggests that

a host of other variables (say, case mix, volume, availability of

para-professional aides, overtime policies) will influence nurse-

staffing needs.    See generally Kyndaron Reinier et al., Measuring

the Nursing Workforce, 62 Med. Care Res. & Rev. 741, 743 (2005)


                                   -12-
(listing numerous "hospital-level factors" that affect the need for

nurses).      In   such   a   dynamic     environment,   it   is   surpassingly

difficult to imagine a situation in which no material factual

differences would exist between staffing inadequacies arising in

2002 and kindred incidents occurring nearly three years later.

             The proof of the pudding can be found in the text of the

Stutz Award.       There, the arbitrator — conscious of the time lag

between the occurrence of the underlying incidents and the date of

decision — acknowledged that the violations he had found might not

be ongoing.        He noted that, even then, the Hospital had begun

addressing staffing concerns by raising patient care hours, adding

nursing hours on Three North, and instituting a formal system for

assessing patient acuity. These particular systemic changes, along

with   the   ordinary     changes    in   personnel   and   patient   mix   that

inevitably occur over time in any acute-care hospital, present a

more than colorable basis for concluding that the original award,

issued to remedy conditions existing in a particular area of the

Hospital three years earlier, rested on a factual predicate that is

(or, at least, may be) materially different from the factual

predicate underlying the MNA's latest litany of complaints.

                                      III.

                                    Conclusion

             We need go no further. The upshot is that the district

court did not err in refusing woodenly to apply and enforce the


                                        -13-
prior arbitral award to the MNA's subsequent misgivings with the

Hospital.



Affirmed.




                              -14-
