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 ...