Opinion
No. CV 04 4004477
May 24, 2005
MEMORANDUM OF DECISION ON APPLICATION TO VACATE AND MOTION TO CONFIRM ARBITRATION AWARD
The plaintiff Hospital of St. Raphael has filed an application to vacate an arbitration award ordering the reinstatement to employment of a member of the defendant union, Teamsters Local 443. The defendant union has filed a motion to confirm the award.
The arbitration award arises out of the following incident as found by the arbitrator:
Walter Joffre [the grievant/union member] had worked at the hospital in two positions, as an EMT and an Emergency Room Technician. On the evening in question, January 18, 2004, the Hospital had treated an intoxicated gentleman who was giving staff a hard time and refused to leave the Hospital. Security was called and the grievant was asked to accompany Security to be sure the patient left the Hospital. As the patient was leaving the Emergency/Ambulance area he was yelling at the grievant who was speaking in Spanish trying to get the patient to leave the Hospital. After the patient had exited the door he turned and spat at the grievant, striking the grievant in the face with saliva. At that point the grievant lost his cool and allegedly pushed the patient.
The Hospital terminated the grievant and the union demanded arbitration as provided in the collective bargaining agreement. In addition to hearing testimony at the grievance hearing, the arbitrator was able to review videotapes of the incident, recorded by video cameras mounted around the hospital doorway. Considering all of the evidence, the arbitrator concluded that
the grievant left the area of the emergency room door and proceeded toward the patient with his arms extended, after which the patient fell to the ground. One might say that the grievant was provoked after the patient spat at him[;] however, the grievant was a trained EMT and should have been able to walk away from the incident without using physical force.
The arbitrator found that the grievant had a clean work record and had been a good employee up to that point. The arbitrator found that there was just cause to discipline the grievant, but that "the discipline should not be as severe as a discharge." The arbitrator converted the discharge into a suspension with no back pay and benefits up to the point of the award, and ordered reinstatement of the grievant within the week thereafter. By then the grievant had been separated from his job for eight months.
The plaintiff has applied to vacate the award on the grounds that the arbitrator's award violates an explicit, well-defined, and dominant public policy of this state, namely the policy against violence in the workplace, particularly in regards to those persons who may find themselves in a health care facility. The defendant argues that (1) no such public policy was implicated in this case, and (2) if there were such a violation of public policy, there is an equally competing public policy of permitting those who have engaged in such conduct to be re-employed if they do not present a danger of repeating the offense.
THE STANDARD OF REWEW
Matters involving decisions to enforce an arbitral award arising out of a collective bargaining agreement between a union and a private employer are preempted by federal law. Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, governs "[s]uits for violation of contracts between an employer and a labor organization in an industry affecting commerce as defined in this chapter . . ." Section 301 dictates that federal law shall apply to claims founded directly on rights created by collective bargaining agreements and also claims substantially dependent on analysis of a collective bargaining agreement. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Barbieri v. United Technologies, Corp., 255 Conn. 708, 722 (2001). The Superior Court retains jurisdiction to hear the case, but state law is preempted by federal labor law.
Federal law is identical to Connecticut state law as applied to the scope of court review of an arbitration award. Courts play only a limited role when asked to review the decision of an arbitrator. United Paperworkers Int'l Union v. Misco, 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). A court may not overrule an arbitrator simply because the court believes that the arbitrator has committed an error in interpreting the collective bargaining agreement; a court may not substitute its own interpretation of the law or the facts for those of the arbitrator. Misco, supra.
That said, federal law mirrors Connecticut law in recognizing the violation of public policy exception to the deferential review of an arbitration award, that is, in determining whether an arbitration award must be set aside on grounds that an arbitrator's interpretation of the collective bargaining agreement violates public policy. Misco, supra, 484 U.S. at 43. Under federal law, a court is required to look to whether the interpretation would violate "some explicit public policy" that is "well-defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." W.R. Grace Co. v. Local 759, Int'l Union of United Rubber Workers, 461 U.S. 757, 766 (1983); Eastern Associated Coal Corp. v. United Mine Workers of America, District, 531 U.S. 57, 62 (2000). In making this determination, the court is directed to the laws and legal precedents of the forum, and must decide whether the award itself, as distinct from the analysis underlying the award, creates an "explicit conflict" with other laws and legal precedents and thus clearly violates an identifiable public policy. Local 97, Int'l Brotherhood of Electrical Workers v. Niagara Mohawk Power Corp., 196 F.3d 117, 125 (2d Cir. 1999).
THE PUBLIC POLICY REGARDING ASSAULTS IN THE WORKPLACE
The plaintiff urges the court to take notice of the statutes that proscribe violent behavior, citing to sections of the Connecticut penal code beginning with Conn. Gen. Stat. § 53a-59a (assault on an elderly, blind, disabled, pregnant or mentally retarded person), a class B felony with a mandatory minimum sentence of five years not suspendable, through § 53a-64 (reckless endangerment), a class B misdemeanor.
The plaintiff also urges the court to find that there is a public policy in Connecticut against violence in the workplace. While the court has no particular difficulty in endorsing such a concept as a general principle, the plaintiff has not cited any statute or regulation that specifically enacts such a policy. As stated supra, the court cannot rely on "general considerations of supposed public interests" in determining the public policy at issue here. W.R. Grace Co., supra, 461 U.S. at 766.
The plaintiff also refers to Conn. Gen. Stat. § 19-495 that mandates that the Department of Public Health adopt regulations to promote the "safe, humane, and adequate care and treatment of individuals in institutions." Without citing to any specific regulation, the plaintiff argues that it is "implicit" in all of the statutes and regulations governing health care institutions that patients not be subjected to gratuitous abuse by health care staff. Plaintiff's Brief, p. 9. The problem with this argument is that the public policy exception that the plaintiff seeks to invoke must be rooted in explicit, not implicit, commands. See W.R. Grace Co., supra.
While there are indeed penal and health-related statutes and regulations that define a public policy of special attentiveness to the safety of vulnerable individuals, such as those who are elderly, disabled, or confined to health care institutions, see, e.g. Conn. Gen. Stat. §§ 53a-59a and 19a-550(b)(8), there appears to be no such policy implicated in the instant case. The grievant intentionally pushed with his hands an ambulatory, unruly patient who was being escorted off the hospital premises. Such conduct undoubtedly violates the criminal code, constituting the class B misdemeanor of reckless endangerment in the second degree at least, or, depending upon whether there was an injury to the victim, the class A misdemeanor of assault in the third degree.
There is no question that there is an explicit well-defined public policy against the behavior in which the grievant engaged. That does not end the inquiry, however. The parallel question is whether the reinstatement to employment of one who has engaged in such behavior has the effect of violating public policy. Asked another way, does the arbitrator's award of only a suspension rather than a dismissal of the employee contravene an explicit, well-defined and dominant public policy. The court cannot say that it does.
Nowhere in the plaintiff's papers is there a reference to well-defined public policy against the reinstatement, after a ten-month suspension without pay or benefits, of an employee who engaged in the type of conduct in which the arbitrator found the grievant to have engaged. The grievant used his open hands to push an unruly patient, who was already being escorted to the hospital exit because of disruptive behavior. This case does not have facts that are parallel to those of Highlands Hospital and Health Center v. AFSCME, District Council 84, 1996 WL163947 151 L.R.R.M. (BNA) 2629 (W.D. Pa.), an unreported case cited by the plaintiff, in which the federal district court denied reinstatement to a patient care assistant who, in response to being spat upon, put her hand in the face of and pushed an eighty-three-year-old institutionalized patient who was suffering from Alzheimer's disease.
This court can discern no blanket rule that a one-size-fits-all disciplinary measure must apply to the type of conduct in which this grievant engaged. That is particularly so when the findings of the arbitrator, indeed among the concessions of the plaintiff in the arbitration, were that, except for this incident, the grievant had a "clean record" and was a "good employee." Arbitration Award, p. 4.
Moreover, despite the fact that the plaintiff urges the court to find the existence of an explicit, well-defined and dominant policy against the reinstatement of the grievant, the court notes here, as the court did in Saint Mary Home, Inc. v. Service Employees Intl. Union, District 1192, 116 F.3d 41 (2nd Cir. 1997), that there is not even a provision of the collective bargaining agreement that describes what discipline must be utilized in these circumstances.
[I]f they had wanted, the parties could have added a provision in the [collective bargaining agreement] that one or more crimes would automatically be just cause for dismissal. Instead, they agreed to let the arbitrator decide the question. See Local 453, Int'l Union of Elec., Radio Mach. Workers v. Otis Elevator Co., 314 F.2d 25, 28 (2d Cir. 1963) (Marshall, J.) (finding that in similarly broad CBA, which failed to define "just cause," that "the parties intended to leave such definition to the arbitrator is made plain . . . by the `plenary grant' of power made to him"). It is not for us to second-guess that choice or to judicially rewrite the agreement because one party now wishes it were different. See, e.g., Burns Intl Sec. Servs., Inc. v. International Union, United Plant Guard Workers of Am., 47 F.3d 14, 17 (2d Cir. 1995).
Id. at 45.
This court does not condone the behavior of the grievant, but neither does this court discern a public policy that automatically calls for the grievant's termination from employment, given the important factors of this incident as found by the arbitrator: (1) an intentional shove of an a unruly patient, who was being walked by security staff out the door of the hospital, (2) provocation by the patient in that he spat at the grievant, and (3) no past conduct by the grievant of a similar nature nor other conduct giving rise to discipline by the plaintiff. The plaintiff's suggestion that the arbitrator and the court must ignore the latter two factors in favor of the former is unpersuasive.
The arbitrator's award reinstating the grievant after a lengthy suspension without pay or benefits did not violate an explicit, well-defined, and dominant public policy. Accordingly, the application to vacate the arbitration award is denied and the application to confirm the award is granted.
Patty Jenkins Pittman, Judge