The Law @ Work

Arbitrator Went Too Far in Ordering Violent Nurse Back to Work

by Timothy F. Murphy

Arbitration is the preferred means of resolving disputes in unionized workplaces. And arbitrators have a good deal of latitude in deciding such disputes. Courts rarely overturn arbitrators’ decisions, as the scope of judicial review is “among the narrowest known in the law.” However, it does happen, as this case illustrates.

Spoiler Alert: In this case, a Massachusetts federal judge ruled that an arbitrator exceeded his authority under the collective bargaining agreement (CBA) by ordering the reinstatement of a nurse discharged for assaulting a co-worker at the hospital where both were employed.

The Incident

After allegedly calling her co-worker at home five times to pressure her to cancel a time off request that conflicted with her own, that nurse allegedly entered the hospital’s breakroom, grabbed the co-worker by the face, and shook her head. During which she was allegedly laughing and saying, “Did you get your vacation all straightened out?”

The nurse had previously received verbal warnings for allegedly pulling a co-worker’s hair and another in which she allegedly used profane language in defying a supervisor’s orders.

The hospital investigated the assault and determined that termination was appropriate given the nurse’s history and the severity of the incident. The union representing the nurse filed a grievance challenging the hospital’s decision.

The CBA

The CBA requires any discipline imposed on nurses be for just cause. In addition, the CBA requires “reasonable efforts to utilize progressive discipline,” defined as counseling, verbal warnings and written warnings, to suspension and/or termination. The CBA also states that the employer “may utilize whatever level of discipline it believes is appropriate depending on the circumstances.”

Further, the CBA makes clear that the hospital retains the exclusive right “to discipline and discharge Employees for just cause … [and] to issue, amend and enforce reasonable work rules and policies.” In this case, hospital policy authorized immediate termination from employment on the first offense for employees who engage in “threatening, intimidating, or coercing fellow employees,” identified as “Group III” offenses. Similarly, the hospital adopted a “Zero Tolerance for Disrespect Policy,” which among other things prohibits “disruptive” conduct, including physical and verbal intimidation.

Finally, the CBA contained two other provisions that were key to the outcome in this case. First, it provided that “[n]o arbitrator shall have the authority to add to, subtract from, or modify the agreement in any respect.” Second, the CBA stated that arbitrator shall not “substitute his/her discretion or judgment for that of the Hospital.”

The Arbitration Decision

The arbitrator found that the nurse violated hospital policy but that she had not committed a “violent act” justifying summary termination without progressive discipline. Thus, the arbitrator found there was just cause for only a written warning – rather than termination – and ordered the hospital to reinstate her with back pay.

The Appeal

The hospital filed an appeal in federal court to set aside the arbitration award on the grounds that the arbitrator’s decision was contrary to its disciplinary policies and violated the terms of the CBA: (1) permitting the hospital to exercise whatever level of discipline it deems appropriate; and (2) prohibiting the arbitrator from substituting his own judgment for that of the employer. The union countered that the arbitrator acted within his authority because the CBA called for progressive discipline.

Arbitration Decision Vacated

In vacating the arbitrator’s decision, the judge concluded that the arbitrator exceeded the scope of his authority under the CBA by substituting his own judgment for that of the Hospital. The judge wrote “[o]nce the arbitrator determined that [the nurse] had engaged in the specific alleged misconduct in violation of the Hospital’s policy, his role was fulfilled.” “By going further and reducing the discipline imposed by the Hospital to what he believed was more appropriate, the arbitrator was prescribing his own brand of industrial justice in violation of the plain terms of the contract,” according to the judge.

The judge found that the hospital and the union effectively agreed to an automatic discharge provision for the conduct the nurse engaged in so that when the arbitrator found just cause to discipline his finding was consistent with the Hospital’s determination that the nurse “had engaged in a Group III offense for which immediate termination was justified under its disciplinary policy.”

This case is unique because the CBA was unique. Most labor contracts do not have language vesting the same level of discretion in disciplining employees that the hospital had here. But stay tuned because the union lawyer has indicated that the union intends to appeal this ruling. A different court may reach a different conclusion.

The case is Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association.

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