United States District Court, Southern District of New York
February 27, 1990
CABRINI MEDICAL CENTER, PLAINTIFF,
LOCAL 1199, DRUG, HOSPITAL AND HEALTH CARE EMPLOYEES UNION, RWSDU, AFL-CIO, DEFENDANT. LOCAL 1199, DRUG, HOSPITAL AND HEALTH CARE EMPLOYEES UNION, RWSDU, AFL-CIO, PLAINTIFF, V. CABRINI MEDICAL CENTER, DEFENDANT.
The opinion of the court was delivered by: Haight, District Judge:
These are cross-motions for summary judgment to vacate and to
confirm an arbitrator's award directing a hospital to reinstate
without back pay an employee discharged for alleged abuse of a
patient. The hospital seeks vacatur on both statutory and
public policy grounds.
In February 1984 Innis Achong was hired as a nursing
attendant at the Cabrini Medical Center (hereinafter the
"Hospital"). He is a member of Local 1199, Drug, Hospital and
Health Care Employees Union, RWSDU, AFL-CIO (the "Union"),
which entered into a collective bargaining agreement with the
Hospital. Achong had an unblemished record of performance until
November 4, 1986, when the underlying incident occurred.
It is common ground that on that date, while Achong walked by
a stretcher on which lay a disoriented and distraught female
patient, the patient kicked Achong in the back. It is also
common ground that Achong responded to the patient's kick
physically and verbally. The parties dispute the nature of
Achong's responses. The case for the Hospital is that after the
patient kicked Achong, Achong cursed at her and struck her on
the leg. The case for Achong is that he gently placed the
patient's leg back on the stretcher and with equal gentleness
admonished her not to kick him.
On November 10, 1986, the Hospital discharged Achong for
striking and cursing at the patient.
The collective bargaining agreement provides in Article XXIX
that "[t]he Employer shall have the right to discharge,
suspend, or discipline any employee for cause." The agreement
does not undertake to define "cause." It provides that where
the Hospital and Union disagree on whether an employee was
discharged for just cause, the dispute will be resolved by an
arbitrator whose award "shall be final, conclusive and
binding upon the Employer, the Union and the Employee." Article
The dispute concerning the circumstances surrounding Achong's
discharge came before an arbitrator, Daniel F. Brent, selected
in accordance with the procedures of the American Arbitration
Association as provided in the collective bargaining agreement.
The parties submitted the following specific issues to the
Was there just cause for the discharge of Innis
Achong? If not, what shall be the remedy?
The arbitrator conducted a hearing at which witnesses
including Achong (but not the patient) testified in support of
the varying versions of events. The arbitrator then issued a
written award concluding that just cause did not exist for
Achong's discharge; and that the proper remedy was
reinstatement without back pay (amounting to a nine-month
suspension without pay) and a warning against future conduct.
In view of the parties' differing perceptions of what the
arbitrator did and why he did it, it is useful to quote his
award at some length. As to the conflicting accounts, the
arbitrator summarized the evidence and then said:
The Hospital has established persuasively that an
incident occurred and that it more closely
resembled the version offered by the Hospital's
chief witness than the version offered by the
grievant. Award at 6.
The arbitrator then said this:
The Hospital clearly has a valid interest in
preventing patient abuse, not only because of the
obvious breach of the Hospital's duty of care to
its patients, but also because of the deleterious
effect on the Hospital's reputation. The potential
liability incurred when employees breach their
duty of care to the patients with whose well being
they are entrusted justifies the imposition of
serious discipline. Professional health care
employees, such as the grievant, must exercise
self-restraint, even if caught off guard by an
unprovoked attack. When credible evidence
establishes persuasively that a physical attack on
a patient has occurred, the harshest penalty,
summary discharge, is warranted.
However, a serious flaw exists in the Hospital's
case, because the Hospital was unable to establish
exactly how hard the grievant allegedly slapped
the patient's leg. Inasmuch as the grievant
admitted having touched the leg in order to return
it to the stretcher, the degree of force becomes
material in proving patient abuse sufficient to
discharge summarily an employee with an otherwise
unblemished record. Although the degree of force
used by the grievant was such that the complaining
employee immediately broached the matter with the
grievant and soon thereafter reported the incident
to a supervisor, in order to sustain a summary
discharge the Hospital must establish clearly and
convincingly that the grievant struck the patient
rather than grabbed or reached out quickly towards
her leg to deflect another possible kick.
The grievant's conduct was not heinous, nor can it
be unambiguously be characterized as severe abuse.
Nevertheless, the Hospital cannot reasonably be
expected to condone such conduct, and the grievant
knew or should have known that such a lapse,
however momentary, would subject him to the
imposition to severe discipline, up to and
It was the clear thrust of the credible evidence
that the grievant did verbally abuse and touch a
patient in an unprofessional manner in the
Emergency Room on November 4, 1986. However, the
momentary nature of the incident and the
inconclusive testimony as to the degree of force
of the touching render the penalty of summary
discharge unduly harsh. Award at 7-9.
In these circumstances, the arbitrator made the following
Consequently, there was not just cause for the
discharge of Innis Achong. The grievant shall be
reinstated forthwith to his former position with
uninterrupted seniority, but without back pay. In
the event the grievant commits any future
act of abuse against a patient, the penalty
assessed in the instant case should be given great
weight in imposing discipline for any such future
Award at 9.
The Hospital commenced an action in this Court to set aside
and vacate the award. Federal jurisdiction derives from the
Labor Management Relations Act, 29 U.S.C. § 185, and the
Federal Arbitration Act, 9 U.S.C. § 1 et seq. The Union
commenced an action in the Supreme Court of the State of New
York, County of New York, for an order and judgment confirming
the award. The Hospital removed that action to this Court. The
two actions were consolidated for all purposes. The parties now
cross-move for summary judgment.
The Hospital asserts two grounds for vacating the award.
First, it argues that the award violates public policy declared
in a New York statute protecting hospital patients from abuse.
Second, the Hospital contends that the arbitrator exceeded his
authority under the collective bargaining agreement and the
parties' submission of disputes.
If the Hospital is correct that the arbitrator exceeded his
powers, that is a sufficient bases for vacatur, and I need not
reach the broader issue of public policy. Accordingly I first
consider that contention, which arises out of the statutory
grounds for setting aside arbitration awards.
The Federal Arbitration Act, 9 U.S.C. § 9, provides that a
court "must" confirm an arbitration award "unless the award is
vacated, modified, or corrected as proscribed in sections 10
and 11 of this title." Section 10 contains the grounds for
vacating an award. The full text appears in the margin.*fn1 In
the case at bar the Hospital must bring itself within § 10(d),
which provides for vacatur:
Where the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final,
and definite award upon the subject matter
submitted was not made.
Only the first phrase of this provision is arguably applicable.
But there is no substance to the Hospital's argument. An
arbitrator's powers are derived generally from the parties'
contractual agreement to arbitrate, and particularly from the
parties' written submission of issues. The collective
bargaining agreement entitles the Hospital to discharge a Union
member for "cause", but nowhere undertakes to define
circumstances constituting cause. The Hospital in its
negotiations with the Union might have attempted to secure a
more precise definition — for example, in the sensitive area
of patient care — but it did not do so. Instead the parties
agreed that arbitration would resolve whether or not a
particular employee was discharged for just cause. The parties
further agreed that if the arbitrator answered that question in
the negative, the arbitrator would determine the wrongfully
discharged employee's appropriate remedy. Those are precisely
the issues the parties submitted to Arbitrator Brent in the
case at bar.
The Hospital argues, in a series of Points from whose
captions I quote, that the arbitrator
exceeded his authority "by disregarding his own finding of
facts in granting his award"; "by deciding the question of
penalty after finding just cause for [Achong's] discharge"; and
"by denying the hospital's right to discharge [Achong] after
finding [Achong's] conduct constituted just cause for
discharge." These are all variations on the same flawed theme.
The parties' briefs quote those passages from the award most
favorable to their respective arguments. But the Hospital, in
order to make its arguments, is required to isolate comments
made by the arbitrator and disregard the general context. It is
for example idle for the Hospital to argue that the arbitrator
exceeded his powers "by deciding the question of penalty after
finding just cause for Achong's discharge." The arbitrator
specifically found that "there was not just cause for the
discharge of Innis Achong." Award at 9.
The fact is that the arbitrator, while describing Achong's
conduct as abusive toward a patient (although specifically
declining to brand his conduct as "severe abuse"), went on to
consider other mitigating factors and concluded that discharge
was not the appropriate remedy. One New York court has upheld
an arbitrator's authority to engage in precisely the same
analysis and arrive at precisely the same conclusion in a case
of discharge for patient abuse. Grace Plaza of Great Neck, Inc.
v. Turner, 130 A.D.2d 746, 515 N.Y. So.2d 842 (2nd Dept. 1987).
As for federal law, the Supreme Court and the circuit courts of
appeals have traditionally limited attacks upon arbitrators'
awards, thereby manifesting federal public policy in favor of
arbitration. A recent statement appears in United Paper Workers
International Union AFL-CIO v. Misco, Inc. 484 U.S. 29, 38, 108
S.Ct. 364, 371, 98 L.Ed.2d 286 (1987):
. . the arbitrator's award settling a dispute
with respect to the interpretation or application
of a labor agreement must draw its essence from
the contract and cannot simply reflect the
arbitrator's own notions of industrial justice.
But as long as the arbitrator is even arguably
construing or applying the contract and acting
within the scope of his authority, that a court is
convinced he committed serious error does not
suffice to overturn his decision.
There is no substance to the Hospital's contention, however
variously stated, that the arbitrator exceeded his authority
under the collective bargaining agreement or the submission of
Public Policy Grounds
Alternatively the Hospital attacks the award as contrary to
New York's statutorily expressed public policy that "[e]very
patient shall be free from mental and physical abuse. . . ."
N Y Public Health Law § 2803-c(3)(h).
Federal law recognizes contravention of public policy as a
basis for vacating an arbitration award. In Misco, supra, the
Court said generally at 484 U.S. 42, at 108 S.Ct. 373:
A court's refusal to enforce an arbitrator's award
under a collective-bargaining agreement because it
is contrary to public policy is a specific
application of the more general doctrine, rooted
in the common law, that a court may refuse to
enforce contracts that violate law or public
But the doctrine is a limited one. In Misco the Court did not
need to address that most narrow of concepts urged by the union
"that a court may refuse to enforce an award on public policy
grounds only when the award itself violates a statute,
regulation, or other manifestation of positive law, or compels
conduct by the employer that would violate such a law." Id. at
45 n. 11, 108 S.Ct. at 374 n. 11. However, the Court did say:
. . 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 ascertained 'by
reference to the laws and legal precedents and not
from general considerations of supposed public
Id. at 43, 108 S.Ct. at 373 (emphasis in original)
(quoting W.R. Grace & Co. v.
Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177,
2183, 76 L.Ed.2d 298 (1983).
In Misco an employee was discharged and issues identical to
those at bar submitted to an arbitrator under a collective
bargaining agreement, namely, "whether the company had 'just
cause' to discharge the [employee]" and, "[i]f not, what if any
should be the remedy." 484 U.S. at 33-34, 108 S.Ct. at 368.
After a hearing the arbitrator found that the employee was
"apprehended on company premises in an atmosphere of marijuana
in another's car and that marijuana was found in his own car on
the company's lot." Id. at 35, 108 S.Ct. at 369. While the
employer argued that this conduct violated its rules against
employees bringing narcotics on to plant property or consuming
them there, thereby justifying discharge, the arbitrator
"refused to accept into evidence the fact that marijuana had
been found in [the employee's] car on company premises because
the company did not know of this fact when [the employee] was
discharged and therefore did not rely on it as a basis for the
discharge." Id. at 34, 108 S.Ct. at 369 (footnote omitted). The
arbitrator in his award ordered the employer to reinstate the
employee with backpay and full seniority.
The district court and the Fifth Circuit vacated the award on
the ground that "to reinstate a person who had brought drugs
onto the property was contrary to the public policy 'against
the operation of dangerous machinery by persons under the
influence of drugs or alcohol.'" Id. at 42, 108 S.Ct. at 373,
quoting the court of appeals' majority opinion, 768 F.2d 739 at
743. The Supreme Court reversed and enforced the award. It held
that the court of appeals failed to review existing laws or
legal precedents to demonstrate that they established a
"well-defined and dominant" policy against the operation of
dangerous machinery while under the influence of drugs. As an
alternative ground, the Court held that the lower court's
inference from the arbitrator's findings that the employee
actually used drugs in the work place was "tenuous at best" and
in any event was for the arbitrator to draw. Id. at 44, 108
S.Ct. at 374. The court's conclusion emphasizes the narrow
limits of the public policy ground for vacatur:
Had the arbitrator found that [the employee] had
possessed drugs on the property, yet imposed
discipline short of discharge because he found as
a factual matter that [the employee] could be
trusted not to use them on the job, the Court of
Appeals could not upset the award because of its
own view that public policy about plant safety was
Id. at 45, 108 S.Ct. at 374 (footnote omitted).
Following Misco the public policy exception to enforcement of
arbitration awards came before the Eighth Circuit in Iowa
Electric Light and Power Company v. Electrical Workers Local
204, 834 F.2d 1424 (8th Cir. 1987). The worksite in Iowa
Electric Light and Power was a nuclear power plant. The Company
discharged an employee who worked in the machine shop. The shop
was "within the plant's secondary containment area — a buffer
zone designed to arrest the spread of any radiation that might
escape from the primary containment area at the core of the
reactor." 834 F.2d at 1425. A series of interlock doors were
designed to maintain pressure to insure that any leakage
remained inside the plant. The discharged employee, desiring to
leave early for lunch, "deliberately defied the control room
engineer, defeated the interlock system, and flouted federally
mandated safety regulations." Id. at 1426. The employee's union
grieved the discharge. The arbitrator ordered reinstatement.
The Eighth Circuit vacated the award on public policy grounds.
The court regarded its decision as "in keeping with the line of
cases vacating arbitrators' awards that direct the
reinstatement of employees whose deliberate acts have
jeopardized public health or safety." Id. at 1428. The Eighth
Circuit distinguished Misco on the ground that the safety rules
involved in that case were "designed to protect employees
inside the paper converting plant" while the safety rules the
employee violated at Iowa Electric were designed to protect not
only employees, but
also the general public." Id. at 1427 n. 2. Addressing the
question left open by the Supreme Court in Misco, the Eighth
Circuit held it was "not required to find that the award itself
is illegal before we overrule the arbitrator on public policy
grounds." Id. at 1427 n. 3.
The New York rule is that "the court will not intervene in
the arbitration process for reasons of public policy unless the
policy 'prohibit[s] in an absolute sense, particular matters
being decided or certain relief being granted by an
arbitrator.'" Grace Plaza of Great Neck, Inc. v. Turner, supra,
at 515 N.Y.S.2d 843, citing and quoting Matter of Town of
Haverstraw [Rockland County Patrolman's Benevolent Assn.], 65
N Y2d 677, 678, 491 N.Y.S.2d 616, 481 N.E.2d 248 (1985). See
also Board of Education of the Mount Sinai Union Free School
District v. Mount Sinai Teachers Association, 139 A.D.2d 733,
527 N.Y.S.2d 484 (2nd Dept. 1988). Arguably these cases apply
the more stringent standard whose validity the Supreme Court
did not reach in Misco and the Eighth Circuit rejected in Iowa
Electric Light. The parties have not cited and I have not found
Second Circuit authority on the point.
Assuming for the discussion that the federal and New York
standards are different, with the former giving courts somewhat
more latitude in overturning arbitration awards on the ground
of public policy, this court is required to apply the federal
standards. Nonetheless I reject the contention in the case at
New York public policy declared in the public health law is
that patients "shall be free from mental and physical abuse."
No one would quarrel with that salutary policy, but it is
stated in general terms. The statute does not undertake to
define "abuse." Whether acts or words constitute mental or
physical abuse, as well as its degree of severity, are issues
of legitimate dispute. This broadly stated state policy
contrasts with the precise safety regulation involved in
Iowa Electric Light, which said in substance: "Do not open this
door." Misco requires that public policy sufficient to vacate
an arbitration award must be both "well defined and dominant."
It is difficult to conclude that New York's policy declaration
against "abuse" of patients satisfies the first of these
Indeed, the disputed issues of abuse and its severity were
squarely placed before the arbitrator in the parties'
submission agreement. As noted, the arbitrator did not fully
accept either party's version of the facts. He found that
Achong "did verbally abuse and touch a patient in an
unprofessional manner", but stressed the Hospital's inability
"to establish exactly how hard" the touching was, and regarded
summary discharge as "unduly harsh" because of "the momentary
nature of the incident and the inclusive testimony as to the
degree of force of the touching . . ." If careful and detailed
findings and conclusions such as these may be set aside as
violative of the state's general prohibition of patient abuse,
a significant area of potential disputes is withdrawn from the
collective bargaining agreement's provision that disputed
discharges for "cause" be resolved by arbitration. But the
thwarting or narrowing of broadly drawn contractual agreements
to arbitrate implicate public policy problems of their own.
In Grace Plaza of Great Neck, Inc. v. Turner, supra, the
Second Department rejected the same public policy argument
based on patient abuse in affirming an arbitrator's award
indistinguishable in principle from that at bar. That result is
clearly correct, whether federal or state concepts of the
public policy exception apply, assuming there is a difference
between the two.
Of course it does not follow from the result reached in
Grace Plaza or in the case at bar that arbitrators may
consistent with public policy direct reinstatement of employees
guilty of proven serious abuse. The Grace Plaza court
distinguished Matter of Ford v. Civil Service Employees Assn.,
94 A.D.2d 262, 464 N.Y.S.2d 481 (1st Dept. 1983), appeal
dismissed, 62 N.Y.2d 799, 477 N.Y.S.2d 331, 465 N.E.2d 1267
(1984), where the court vacated an arbitration award
reinstating a mental hygiene therapy aid who had sexually
female patient. But the case at bar is quite different, and I
cannot conclude that the arbitrator's award was so against the
public policy of the state as to require vacatur.
For the foregoing reasons, the Hospital's motion for summary
judgment vacating the award is denied and the Union's
cross-motion for summary judgment confirming the award is
Settle Order and Judgment on five (5) days' notice.
It is SO ORDERED.