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CABRINI MEDICAL CENTER v. LOCAL 1199

February 27, 1990

CABRINI MEDICAL CENTER, PLAINTIFF,
v.
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.

BACKGROUND

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 XXXII.

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 arbitrator:

  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 ...

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