United States District Court, M.D. Pennsylvania
ROBERT D. MARIANI, District Judge.
I. Procedural History
In this Opinion, the Court addresses an issue which remained unresolved after this Court's Memorandum (Doc. 22) and Order (Doc. 23) of January 12, 2015, which granted in part and denied in part the Motion for Judgment on the Pleadings (Doc. 15) of Plaintiff, SEIU Healthcare Pennsylvania, CTW, CLC (UUnion"). The Court granted the Union's Motion as to the second, third and fourth affirmative defenses of Defendant, Regional Hospital of Scranton ("Hospital"), and entered judgment in favor of the Union and against the Hospital as to those affirmative defenses, which had been raised in opposition to the Union's Complaint (Doc. 1) to enforce an arbitration award reinstating an employee of the Hospital.
The Union's Motion was denied as to the first affirmative defense of the Hospital which submitted that "[t]he award of reinstatement is contrary to Pennsylvania public policy which precludes its enforcement." (Ans. and Aff. Defenses, Doc. 9, at 5).
The Court's Order of January 12, 2015 directed the parties to file cross-motions for summary judgment "limited to the issue of whether the reinstatement of the Grievant by the Buchheit Arbitration Award is or would be contrary to Pennsylvania public policy." (Doc. 23). Further, this Court ordered the parties to "separately brief the issue of whether this Court has jurisdiction to determine the amount, if any, of back pay owing to the Grievant should this Court find the Buchheit Arbitration Award to be enforceable." Id.
The Union and Hospital have each moved for summary judgment (Docs. 24, 25) and all briefing has been completed with respect to the cross-motions. For the reasons that follow, the Hospital's Motion for Summary Judgment, which asserts that the Buchheit Arbitration Award of reinstatement "is void as contrary to well-defined public policy of the Commonwealth of Pennsylvania" (Doc. 25, ¶ 6), will be denied and the Union's Motion For Summary Judgment (Doc. 24), insofar as it seeks to confirm and enforce the Buchheit Labor Arbitration Award, will be granted. The issue of the Grievant's entitlement to back pay, if any, will be remanded to Arbitrator Buchheit. The Union's Motion for Summary JUdgment, insofar as it seeks pre-judgment interest, will be deferred until Arbitrator Buchheit issues his Award on remand to him of the issue of the Grievant's entitlement to back pay. The Union's Motion for attorney's fees will be held in abeyance pending the Arbitrator's award on remand.
The procedural history of this case is otherwise recounted in this Court's Memorandum Opinion of January 12, 2015 (Doc. 22, at 1-6).
It suffices at this juncture to again note that the Union and the Hospital were parties to a Collective Bargaining Agreement ("CBA") for the period of November 10, 2011 through February 28, 2013. (Doc. 1, Ex. A). The CBA contained agrievance procedure which provided for the submission of unresolved disputes between the Union and the Hospital to arbitration. The CBA, in Section 4.6, provided that U[t]he award of an arbitrator hereunder shall be final, conclusive and binding upon the Hospital, the Union and the employees including all disputes regarding Management's application of the Americans With Disabilities Act." (Id. at 7). On February 3, 2012, the Hospital terminated the employment of employee, Roberta Robbins, on the claim that she had been sleeping on duty during the night of February 1, 2012. The Union filed a Grievance on behalf of Ms. Robbins, which asserted that she had been discharged without just cause and their discipline was imposed without the interview provided for in Section 5.2 of the Collective Bargaining Agreement.
When the parties were unable to resolve the Robbins Grievance, it was submitted to arbitration. Arbitrator Scott E. Buchheit was selected by the parties to serve as a Neutral Arbitrator to hear and decide the Grievance.
Arbitrator Buchheit conducted a hearing on December 11, 2012, and on April 26, 2013, he issued his Opinion and Award in which he sustained in part and denied in part the Robbins Grievance and issued the following Award:
The grievance is sustained in part and denied in part. For the sustained portion of the grievance, the Employer shall reinstate the Grievant to her former position with full seniority, but without back payor other benefits lost as aresult of her termination.
(Doc. 1, Ex. B, at 37).
When the Hospital did not reinstate the Grievant, the Union brought this action to enforce the Buchheit Arbitration Award.
II. Statement of Undisputed Material Facts
In addition to the facts which have been alleged in the Union's Complaint and admitted in the Hospital's Answer as set forth in this Court's Memorandum granting in part the Union's Motion For Judgment On the Pleadings (Doc. 22, at 1-12), the Union submitted a Statement of Material Facts in accordance with Local Rule 56.1. (Doc. 24-1). All of the Union's statements of material fact identified herein have been admitted by the Hospital. ( See Def.'s Resp. to Pl, 's Statement of Mat. Facts, Doc. 29-2).
The paragraphs of the Union's Statement of Material Facts recite the identities of the parties to this case; the existence of a Collective Bargaining Agreement between them; the inclusion in the Collective Bargaining Agreement of agrievance and arbitration procedure which defines a "grievance" and sets forth the procedure for addressing grievances and for the submission of unresolved grievances to final and binding arbitration; and further providing that the award of an arbitrator under the grievance-arbitration procedure "shall be final, conclusive and binding upon the Hospital, the Union and the employees...." (Doc. 24-1, ¶¶ 3-7). The Union's Statement of Material Facts also recites the Union's ability to contest the discharge or suspension of any employee through the grievance procedure, but also notes that under Section 5.1 of the GBA, the Hospital "shall have the right to discharge, suspend or discipline any employee for just cause." (Id. at 1MJB-9). Paragraph 10 of the Union's Statement of Material Facts sets forth Section 5.2 of the GBA:
Where an employee is to be suspended or discharged, and the employee is required to attend a disciplinary interview, no disciplinary action shall be imposed until after the interview. The parties recognize that while a disciplinary interview normally precedes a suspension or discharge, there are circumstances which reasonably require immediate disciplinary action prior to such interview. Any employee required to attend a disciplinary interview or meeting shall be notified of their right to have a Union Delegate present at such interview or meeting and shall be given reasonable advanced notice of the time, place and nature of the meeting and shall be provided the right to have a Union representative accompany them. All disCipline shall be carried out as soon as is reasonably possible after the Employer becomes aware of the facts giving rise to the discipline in question.
(Id. at ¶¶ 10).
Paragraph 11 of the Union's Statement cites Section 5.3 of the GBA, which provides:
The Hospital and the Union agree that progressive discipline should not be imposed where the previous disciplinary action was more than one (1) year ago.
(Id. at ¶ 11).
The Union's Statement asserts that "Roberta Robbins was an employee of the Hospital from November 2002 to February 2012. She worked as a GT Scan Technician. Robbins was in a unit of employees represented by SEIU and covered by the GBA between the parties." (Id. at ¶ 12). The Statement then recites that on or about February 1, 2012, the Hospital suspended Roberta Robbins for sleeping on duty and terminated her on February 3, 2012. (Id. at ¶¶ 13-14). The Union then filed a Grievance protesting the termination of Ms. Robbins, which stated that the Employer "in violation of, but not limited to, Article 5.1, 5.2, 5.3 - just cause, and the employee was not present at any disciplinary interview, and termination was imposed without the interview. The employee was not given advanced notice of meeting/interview." (Doc. 24-1, ¶ 15).
When the Grievance was not resolved pursuant to the grievance procedure, the Union referred the Grievance to arbitration. In accordance with the provisions of the CBA, Arbitrator Scott E. Buchheit was appointed to serve as the Neutral Arbitrator to decide the Union's Grievance. Ahearing was held before Arbitrator Buchheit on December 11, 2012, at which the Union and the Hospital were permitted to present evidence and testimony with respect to the Grievance and, thereafter, to submit briefs in support of their respective positions. (Id. at ¶¶ 16-18).
On April 26, 2013, Arbitrator Buchheit issued his Opinion and Award with respect to the Union's Grievance over the termination of Roberta Robbins. The Arbitrator's Opinion and Award was submitted with the Union's Motion for Summary Judgment (Doc. 24-3). The Arbitrator's Award states:
The grievance is sustained in part and denied in part. For the sustained portion of the grievance, the Employer shall reinstate the Grievant to her former position with full seniority but without back payor other benefits lost as aresult of her termination.
(Id. at 37).
Arbitrator Buchheit wrote in support of his Award:
In short, the Grievant's termination occurred in the absence of the Employer making proper compliance with Section 5.2. The Grievant should have been afforded a "disciplinary interview", with all rights attached to such an interview, including the right to be informed that she could have a Union Delegate present during the interview, and to have such a Delegate present during the interview.
I reject the Employer's assertion that my finding that the Grievant was entitled to a disciplinary interview is a determination beyond my authority, as it results from my rewriting of the Contract. To the contrary, my conclusion results from the application of the clear and unambiguous language contained in Section 5.2. All I do is enforce the rights the Grievant had in this provision, nothing more and nothing less.
Given that the Grievant was not afforded the procedural rights to which she was entitled under Section 5.2, I cannot find that just cause existed for the Grievant's termination. It follows that the Union has won the Grievant the right to be reinstated to her former position with full seniority.
I cannot, however, reinstate the Grievant with any back payor other benefits suffered as a result of her termination. As stressed by the Employer, sleeping on duty is a serious offense. It is particularly serious in this instance, as the Employer has a specific rule against sleeping on duty, and the Grievant had within the previous year been suspended for sleeping on duty.
It is also notable that the Grievant's sleeping was witnessed and adversely commented on by a member of the public. More specifically, when Young brought a child and his grandfather down to the Imaging Department for a scan, all of them saw the Grievant sleeping. The grandfather then made a comment to the effect of this might be the reason it had taken so long to get his grandson scanned.
Accordingly, notwithstanding the Employer and Union making every possible argument that the grievance should be denied or sustained in its entirety, the proper outcome of this case is that the grievance be sustained in part, and denied in part, as set forth above.
(Id. at 35-36).
The Arbitrator's Opinion and Award was issued to the parties through the American Arbitration Association by letter dated May 1, 2013. The Hospital received the Arbitrator's Opinion and Award prior to June 5, 2013 and, on that date, the Hospital asked Arbitrator Buchheit to reconsider his Award with respect to the reinstatement of the Grievant. The Union opposed the Hospital's Motion for Reconsideration and, by letter dated June 13, 2013, the Arbitrator denied the Hospital's Motion for Reconsideration. (Doc. 24-1, W21-25). The Hospital did not file, in any court, any action seeking to vacate, modify, or correct the Award of Arbitrator Buchheit. (Id. at ¶ 26). The Union made ademand that the Hospital comply with the Buchheit Award by reinstating the Grievant to her former position with full seniority. The Hospital has not reinstated Ms. Robbins to her former position as aCT Scan Technician. (Id. at ¶¶ 27-28).
The Hospital, in its own Statement of Material Facts (Doc. 25-1), has set forth 49 paragraphs, each of which cites to some portion of the Buchheit Arbitration Award.
The Union, in its Response to the Hospital's Statement of Material Facts, admits the existence of the CBA between it and the Hospital but otherwise denies all of the paragraphs of the Hospital's Statement, asserting that "[u]nder the applicable standard of review, the findings of the Arbitrator are conclusive as are any inferences to be drawn there from, " while further asserting that "[t]he Buchheit Arbitration Award is a writing and speaks for itself, and, therefore no response is required." (Doc. 28-6, ¶¶ 2-25). The Union adds that "[t]o the extent that the Hospital attempts to characterize the contents, the findings or the inferences from the Arbitration Award, such characterizations are denied." (Id. ).
There is no genuine dispute of material fact in this case. The narrow issue before this Court is whether the Buchheit Arbitration Award, directing as it does the reinstatement of Roberta Robbins who was found to have been sleeping on the job, violates awell defined and dominant public policy to be found within existing laws and legal precedents. The findings of fact made by the Arbitrator, while before the Court in the text of the Arbitration Award itself, are not to be second-guessed. In United Paper Workers International Union, AFL-CIO v. Misco, Inc., the United States Supreme Court, in reaffirming the exceedingly narrow standard of review of a labor arbitrator's award, emphasized:
Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. To resolve disputes about the application of a collective-bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them. The same is true of the arbitrator's interpretation of the contract. The arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, acourt should not reject an award on the ground that the arbitrator misread the contract. [ Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)]. So, too, where it is contemplated that the arbitrator will determine remedies for contract violations that he finds, courts have no authority to disagree with his honest judgment in that respect. 484 U.S. 29, 36-37, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987).
The Third Circuit, in United States Postal Service v. National Association of Letter Carriers, explained that:
Misco specifically rejected, as exceeding the Court's reviewing authority, techniques employed by adistrict court in: (1) asserting a public policy without substantiating its existence within existing laws and legal precedents, and thereby failing to distinguish its pedigree as a "well defined and dominant" policy as opposed to a "general consideration of supposed public interests"; (2) second-guessing the arbitrator's fact-finding, particularly insofar as the conclusion that the asserted public policy would be violated by the employee's reinstatement depends on drawing factual inferences not made by the arbitrator; (3) second-guessing the arbitrator's reasonable construction of the "just cause" clause, and the rules of evidence and procedure appropriate to a "just cause" determination, under the collective-bargaining agreement.
839 F.2d 146, 148 (3d Cir. 1988) (internal citations omitted).
Thus, as the Court noted in G.B. Goldman Paper Co. v. United Paperworkers International Union, 957 F.Supp. 607, 610 (E.D. Pa. 1997), "I must take the facts as found by the arbitrator" (citing Misco, 484 U.S. at 36).
For these reasons, the Court finds there are no disputes of material fact in this case and its inquiry is limited to the facts as found by Arbitrator Buchheit in his Opinion and Award.
III. Standard of Review
Through summary adjudication, the court may dispose of those claims that do not present a "genuine issue as to any material fact." FED. R. CIV. P. 56(a). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as amatter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). "As to materiality, ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Uberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party moving for summary judgment bears the burden of showing the absence of agenuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such ashowing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that afactual issue exists. Anderson, 477 U.S. at 248. Rather, the opposing party must point to afactual dispute requiring trial and the district court "may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030-1031 (9th Cir. 2001); see also Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).
Further, both the Hospital and Union agree that, for summary judgment purposes, the Court is required to accept the facts as found by the arbitrator. "In reviewing arbitral awards on public policy grounds, a court is obligated to accept the facts as found by the arbitrator, but may review his conclusions de novo." (Def.'s Sr. in Support of Mot. for Summ. J., Doc. 27, at 2) (collecting cases).
Similarly, the Union acknowledges that: "Findings of fact and inferences to be drawn therefrom are the exclusive province of the arbitrator." (PI.'s Sr. in Opp. to Def.'s Mot. for Summ. J., Doc. 28, at 2) (citing Misco, 484 U.S. at 36, 44).
A. Applicable Law
Ever since the Supreme Court issued its decisions in the "Steelworkers Trilogy, "  it has been an established principle of federal labor law that "[t]he refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards." Enterprise Wheel, 363 U.S. at 596. "As long as the arbitrator's award draws its essence from the collective bargaining agreement, ' and is not merely his own brand of industrial justice, ' the award is legitimate." Misco, 484 U.S. at 37 (citing Enterprise Wheel, 363 U.S. at 597).
These principles have been reaffirmed repeatedly by the Supreme Court, notably in United Paperworkers International Union v. Misco, Inc., supra, and in Eastern Associated Coal Corporation v. United Mine Workers of America, 531 U.S. 57, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000).
The Supreme Court, however, in W. R. Grace & Co. v. Rubber Workers, ruled that a court may refuse to enforce acollective bargaining agreement as well as an arbitration award issued pursuant to the CSA when the CSA or the award issued pursuant to it violates public policy. 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983).
Misco explained its decision in W. R. Grace, as follows:
In W.R. Grace, we recognized that "a court may not enforce a collective-bargaining agreement that is contrary to public policy, " and stated that "the question of public policy is ultimately one for resolution by the courts." 461 U.S., at 766, 103 S.Ct., at 2183. We cautioned, however, that a court's refusal to enforce an arbitrator's interpretation of such contracts is limited to situations where the contract as interpreted would violate "some explicit public policy" that is "well defined and dominant, and is to be ...