Chippewa County War Memorial Hospital v. Michigan Nurses Association
Filing
32
OPINION; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, cpl)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CHIPPEWA COUNTY WAR
MEMORIAL HOSPITAL,
Plaintiff,
v.
Case No. 2:11-cv-10
HON. TIMOTHY P. GREELEY
MICHIGAN NURSES ASSOCIATION,
Defendant.
__________________________________/
OPINION
The events that form the basis of this complaint occurred at the Behavioral Health
Center (“BHC”) at Chippewa County War Memorial Hospital. The incident that occurred on
March 12, 2009, demonstrates the stressful nature of employment in a mental health facility. Shortly
before 8:00 a.m., a patient (“TG”) in BHC became agitated and one of the nurses in the facility
attempted to calm her down. Unfortunately, the patient’s behavior did not improve and the patient
began screaming. Bridget Nodurft, a registered nurse, was assigned patient TG on that day. TG’s
behavior escalated and she was screaming and pulling her hair. Other nurses attempted to
de-escalate the situation. Greg Wolf, early in his first day as Interim Nurse Manager at BHC, heard
the commotion and came to assist in the efforts to de-escalate the situation. Wolf initially spoke to
TG, but was unsuccessful in his efforts to calm her down. He then assisted in taking TG to a sitting
position on the floor. TG’s behavior did not improve and Wolf, with the assistance of other nurses,
forced TG to a prone position. One of the nurses called for an injection of Haldol, which was
prepared and administered to TG while she was being restrained on the floor. During the incident,
Wolf called out for additional help, specifically calling for Nodurft to provide assistance. Nodurft
testified that when she arrived, she attempted to assist with the administration of the medication by
securing an alcohol swab for the injection. The injection was apparently made without an alcohol
swab. Nodurft indicated that she and another nurse stood over TG and saw that TG was fully
restrained with a staff member holding each limb. Nodurft suggested to Wolf that he let TG get up.
According to Nodurft, Wolf refused, stating that TG “hasn’t earned the right, she has to learn my
boundaries.” Wolf initially indicated that he wanted TG taken to a seclusion room, which was about
75 feet down the hall. Nodurft left to unlock the door to the seclusion room. When Nodurft
returned, she indicated that she did not believe there were enough people to take TG to the seclusion
room. At this time, another patient stepped into the hallway where the incident was occurring and
Nodurft took this patient out of the area. When she returned, “TG was standing in the doorway of
her room screaming at Wolf, ‘get away, I hate men’ and Wolf was yelling back at her. (TG was a
young woman with mild retardation, other psychiatric problems, and a history of sexual abuse, and
it had been reported that a few days previously a male patient had been found in her bed having sex
with her.)” Docket #19, Exhibit 1 at 4-5.
Apparently a video recording was made of the events, but unfortunately some of the
portions of this video recording, including the take down and several minutes immediately after,
were missing. Don Hendershot, Assistant Director of Plant and Environmental Services, had
preserved some, but not all, of the video recording pursuant to instructions received from his
supervisors.
The events on the morning of March 12, 2009, were undoubtedly stressful for all
those involved. Following the incident with TG, there was a heated exchange between Wolf and
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Nodurft. Nodurft’s employer reviewed the incident of March 12, 2009, and concluded that Nodurft’s
conduct was insubordinate for failing to provide assistance to Wolf. In addition, the Hospital
maintained that Nodurft had falsely stated that she did not know Wolf was the nurse manager at the
time. The Hospital concluded that Nodurft’s conduct during the incident was just cause for her
discharge and thus the decision was made to terminate Nodurft’s employment with BHC.
Nodurft was a member of a collective bargaining association which had negotiated
a collective bargaining agreement with the Hospital. This agreement provided Nodurft with the
ability to file a grievance regarding her discharge. Pursuant to the negotiated contract, this grievance
procedure provided for resolution of disputes through arbitration. The parties agreed:
The arbitrator shall be empowered to rule only in a grievance, which
involves an interpretation or application of this agreement.
He shall not add to, subtract from, ignore or change any of the
provisions of this agreement.
The arbitrator’s decision shall be final and binding.
Docket #1, Exhibit 1, at 10. Nodurft’s grievance proceeded to arbitration and arbitration hearings
were held on December 8, 2009, January 5, 2010, and July 8, 2010. The parties filed comprehensive
briefs on September 8, 2010, and on October 11, 2010, arbitrator Paul E. Glendon issued an award
sustaining the grievance and ordering that Nodurft be reinstated to her position with back pay.
Arbitrator Glendon issued a comprehensive 16-page award, a copy of which is attached. In the
award, the arbitrator resolves disputed issues of fact as to what occurred on March 12, 2009. The
arbitrator concludes that the facts, as found by the arbitrator, did not establish just cause for
Nodurft’s discharge.
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The Hospital was deeply disappointed by the decision of the arbitrator and filed the
instant complaint, seeking an order from this Court vacating the arbitrator’s award. According to
the Hospital,
The Arbitrator’s award is contrary to public policy because it requires
the Hospital to reinstate an employee, who through her undisputed
refusals to assist with tasks that are a basic and fundamental part of
an RN's job, engaged in patient neglect, and placed patient and BHC
staff safety at risk. Reinstating Ms. Nodurft under such circumstances
would have a detrimental impact upon patient care and undermine the
Hospital's ability to provide a safe environment and competent
nursing care to mental health patients at the BHC as required by the
Michigan Mental Health Code. For the reasons set forth below and in
the attached Exhibits, the Hospital respectfully requests the Court to
vacate the Arbitrator’s October 11, 2010 award because it violates
public policy.
Docket #19 at 2. The parties fully briefed the matter and a hearing was held before the undersigned
on August 23, 2011.
The Michigan Nurses Association (“MNA”) maintains that the Hospital’s motion to
vacate the award was not timely served on MNA and was therefore filed outside the statute of
limitations. Both parties agree that for this matter to have been timely filed, the Hospital was
required to serve the MNA within three months of the award, or by January 11, 2011. According
to the Hospital:
The applicable rules for serving motions in federal court is Federal
Rule of Civil Procedure 5 which states that service must be made
upon a party’s attorney and “[a] paper is served under this rule by
mailing it to the person’s last known address—in which event service
is complete upon mailing.” FRCP 5(b)(1), 5(b)(2)(E). That was done
in this case since the Hospital mailed a copy of its Motion to Vacate
to the MNA’s attorney, Anita Szczepanski, on January 11, 2011. The
Proof of Service filed with the Court, along with a letter mailed to
Ms. Szczepanski on January 11, 2011, confirms service of the Motion
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to Vacate on that date in accordance with Federal Rule of Civil
Procedure 5.
Docket #25 at 3-4.
MNA has submitted the affidavit of Anita Szczepanski. In the affidavit, Ms.
Szczepanski indicates that she received the complaint to vacate the arbitration award in this matter
at her office on January 13, 2011, “in an envelope postmarked January 12, 2011 . . . I did not receive
any documents related to this case from Mr. Graham’s office with a January 11, 2011, postmark.”
The proof of service filed by the Hospital on January 11, 2011, states “I served via U.S. Mail a copy
of the Complaint to Vacate Arbitration Award and Proof of Service to Anita Szczepanski, Esq.” See
Docket #2.
In Webster v. A.T. Kearney, Inc., 507 F.3d 568 (7th Cir. 2007), the court concluded
that filing a complaint to vacate an arbitration award within the three-month limitation period
satisfied the service requirements of Section 12 of the Federal Arbitration Act. The parties do not
dispute that MNA was on notice that the Hospital was seeking to vacate the arbitrator’s award and
that on January 11, 2011, Szczepanski and Kurt Graham, attorney for the Hospital, had telephone
discussions regarding the complaint that was filed that day. MNA now relies upon the fact that the
materials received on January 13, 2011, bore a postmark of January 12, 2011, and thus were not filed
on or before January 11, 2011. The proof of service in this matter indicates that the Complaint to
Vacate Arbitration Award was mailed on January 11, 2011. Accordingly, the undersigned concludes
that the complaint was timely and properly served by U.S. Mail. See Escobar v. Shearson Lehman
Hutton, Inc., 762 F.Supp. 461 (D. Puerto Rico, 1991).
The Court now turns to the Hospital’s request that the arbitration award be vacated
and MNA’s competing request that summary judgment be issued enforcing the award. In reaching
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this decision, the Court is guided by the extremely well written opinion of Judge Sutton in Michigan
Family Resources, Inc. v. Service Employees International Union Local 517M, 475 F.3d 746 (6th
Cir. 2007). In that case, the Court explained:
Our decision in Cement Divisions of course does not reflect these
refinements of the Steelworkers Trilogy because the court had no
reason to know they existed. Accordingly, instead of continuing to
apply Cement Divisions’ four-part inquiry, a test we now overrule, we
will consider the questions of “procedural aberration” that Misco and
Garvey identify. Misco, 484 U.S. at 40 n. 10, 108 S.Ct. 364. Did the
arbitrator act “outside his authority” by resolving a dispute not
committed to arbitration? Did the arbitrator commit fraud, have a
conflict of interest or otherwise act dishonestly in issuing the award?
And in resolving any legal or factual disputes in the case, was the
arbitrator “arguably construing or applying the contract”? So long as
the arbitrator does not offend any of these requirements, the request
for judicial intervention should be resisted even though the arbitrator
made “serious,” “improvident” or “silly” errors in resolving the
merits of the dispute.
These relatively straightforward inquiries, we acknowledge, mask a
harder question: What role, if any, still remains for a court to consider
the arbitrator’s resolution of the merits in determining whether he was
“arguably construing” the contract? The union, supported by the
national AFL-CIO, argues that the court’s view of the merits has
nothing to do with this process-driven question. So long as the
arbitrator purported to construe the contract, that is the end of the
matter. MFR argues by contrast that federal courts always must
consider the merits of a dispute to determine whether the arbitrator
was arguably construing the contract.
We respectfully disagree with both of them. The Court’s repeated
insistence that the federal courts must tolerate “serious” arbitral errors
suggests that judicial consideration of the merits of a dispute is the
rare exception, not the rule. At the same time, we cannot ignore the
specter that an arbitration decision could be so “ignor[ant]” of the
contract’s “plain language,” Misco, 484 U.S. at 38, 108 S.Ct. 364, as
to make implausible any contention that the arbitrator was construing
the contract. An interpretation of a contract thus could be “so
untethered to” the terms of the agreement, to borrow a phrase from
our Circuit Justice, Garvey, 532 U.S. at 512, 121 S.Ct. 1724 (Stevens,
J., dissenting), that it would cast doubt on whether the arbitrator
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indeed was engaged in interpretation. Such an exception of course is
reserved for the rare case. For in most cases, it will suffice to enforce
the award that the arbitrator appeared to be engaged in interpretation,
and if there is doubt we will presume that the arbitrator was doing just
that. Cf. Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. 1347 (“An
order to arbitrate the particular grievance should not be denied unless
it may be said with positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage.”).
This view of the “arguably construing” inquiry no doubt will permit
only the most egregious awards to be vacated. But it is a view that
respects the parties’ decision to hire their own judge to resolve their
disputes, a view that respects the finality clause in most arbitration
agreements, see JA 27 (stating that “the arbitrator shall have full
authority to render a decision which shall be final and binding upon
both parties”), and a view whose imperfections can be remedied by
selecting better arbitrators.
Id. at 753-754.
The Hospital does not maintain that the arbitrator acted outside his authority or that
the arbitrator committed fraud, had a conflict of interest, or otherwise acted dishonestly. The
Hospital maintains that the arbitration award should be vacated because the decision of the arbitrator
violates well-defined and dominant public policy. This argument is based on the assertion of the
Hospital that Nurse Nodurft intentionally refused to assist with the restrain and seclusion of TG, that
Nurse Nodurft engaged in neglect of a patient, and that Nurse Nodurft’s actions resulted in a failure
to provide safe and competent nursing care. Unfortunately for the Hospital, there is no support for
its argument that the arbitrator’s decision violates public policy. More importantly, application of
the test enunciated in Michigan Family Resources, Inc. mandates enforcing the arbitration award.
The parties to the collective bargaining agreement at issue in this case negotiated a contract which
provided that no employee could be discharged absent just cause. Furthermore, the contract
provided for final and binding arbitration of disputes regarding whether or not just cause for
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discharge existed. It is without dispute that the arbitrator was asked to determine, based on the facts
presented, whether or not there was just cause to support the discharge. In a thorough award, the
arbitrator discussed the arguments presented by the Hospital which it believed supported just cause
for discharge. The arbitrator rejected those arguments.
Importantly, the arbitrator found that the conduct of Nurse Nodurft on the day in
question was not insubordinate and was motivated by her desire to do that which she believed was
in the best interest of TG. The Hospital’s arguments in support of their motion to vacate the award
are nothing more than an effort to reargue the facts presented to the arbitrator. The facts as found
by the arbitrator cannot be said to contain serious, improvident or silly errors. The Hospital
maintains that the arbitration award ignores the fact that Nodurft’s conduct violated the Michigan
Mental Health Code. The arbitrator did not, however, find that Nodurft’s conduct violated the
Michigan Mental Health Code. The arbitrator did not find that Nodurft’s actions resulted in a public
policy violation. Furthermore, the arbitrator found that Nodurft did not refuse to assist Wolf in his
efforts to deal with TG. In fact, the arbitrator found that “it is undisputed that she did assist.” The
Hospital consistently argues that the arbitrator ignored evidence presented at the arbitration hearing.
A thorough review of the arbitration award establishes that the arbitrator did not ignore this evidence.
The arbitrator rejected the evidence. As both parties recognize, the arbitrator was tasked with
determining whether or not there was just cause to support the discharge. There are competing
factual views as to what occurred on March 12, 2009. The Hospital maintained that Nodurft was
an insubordinate nurse who took actions that risked the safety of the patient. The MNA presented
evidence that Wolf was an unqualified nursing supervisor whose actions were responsible for the
escalating problems with TG. According to the MNA, Nodurft’s actions were in the best interest
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of the patient, were not insubordinate, and were not in violation of public policy. The arbitrator
thoroughly discussed the arguments made by the Hospital and rejected many of the factual assertions.
The arbitration decision is consistent with the facts presented by the MNA. It was the arbitrator’s
duty to judge the credibility of witnesses and make findings as to disputed factual issues.
One argument made by the Hospital is that the arbitrator ignored the testimony and
orders of Dr. von Greiff. According to the Hospital, “the arbitrator did not discuss any of
Dr. von Greiff’s testimony, or evidence in his award.” This is a misstatement. A review of the
arbitration award establishes that the arbitrator did not accept the facts that formed the basis of
Dr. von Greiff’s opinions and, thus, did not accept Dr. von Greiff’s opinions. The arbitrator is not
required to discuss every argument and the testimony of every witness presented at an arbitration
hearing. The arbitration hearing in the instant case took three days. The arbitrator cannot be faulted
for not discussing the testimony of each and every witness.
Obviously, the Hospital was very upset with the decision of the arbitrator. Morever,
the Hospital certainly believes that Nodurft was insubordinate and took actions which endangered
a patient. The position of the Hospital, however, is not supported by the factual findings of the
arbitrator. Applying the standards set forth in Michigan Family Resources, Inc., this Court must
uphold the arbitration award.
The most difficult issue presented to this Court is whether the MNA is entitled to
attorney fees. In Monroe Auto Equipment Co. v. International Union, United Automotive, Aerospace
and Agricultural Implement Workers of America (UAW), 981 F.2d 261 (6th Cir. 1992), in reversing
an award of attorney fees to the Union, the court explained:
A district court’s award or denial of attorney fees is reviewed for
abuse of discretion. Black v. Ryder/P.I.E. Nationwide, Inc., 970 F.2d
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1461, 1472 (6th Cir.1992). The general rule in the United States is
that a prevailing party may not ordinarily recover attorney fees in the
absence of a statute or enforceable contract providing for a fee award.
Shimman v. International Union of Operating Engineers, Local 18,
744 F.2d 1226, 1229 (6th Cir.1984) (en banc), cert. denied, 469 U.S.
1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985). Neither party contends
there is any specific statutory authority or contract right in the present
case. The only exception to the American rule that could possibly
apply to this case is the “bad faith” exception. We can find no basis
for applying it. This court in Ray A. Scharer and Co. v. Plabell
Rubber Products, 858 F.2d 317, 320 (6th Cir.1988), explained that
exception by stating that the “normal [American] rule does not apply,
however, where a party or counsel have acted in bad faith in the
instigation or conduct of litigation, and in those circumstances, the
court has the inherent authority to assess an award of attorney’s fees
against either the litigant or his attorney.” (citations omitted). The
court went on to say that “[a]n award of attorney’s fees ... is an
extreme sanction, and must be limited to truly egregious cases of
misconduct.” Id. (citation omitted).
***
These facts distinguish the present case from the cases cited by the
UAW in which attorney fee awards were approved. For example, in
Dreis & Krump Mfg. v. International Ass’n of Machinists &
Aerospace Workers, 802 F.2d 247, 249 (7th Cir.1986), the court
awarded fees after concluding that the “company had no ground for
challenging the [arbitrator’s] decision in court; also, it filed this suit
after the statute of limitations had run.”
Id. at 269-270.
The Sixth Circuit’s decision in Monroe Auto Equipment Company referred to Judge
Posner’s decision in Dreis & Krump Mfg. Co. v. International Ass’n of Machinists & Aerospace
Workers, District No. 8, 802 F.2d 247, 249 (7th Cir.1986), in which the court explained:
[T]he company’s attack on the award was frivolous, thus entitling the
union to attorney’s fees both in the district court and in this court. The
company should have realized that the suit was barred by the statute
of limitations, barred by its having submitted to arbitration without
any reservations, and barred by the arbitrator’s opinion which made
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clear that he was interpreting the collective bargaining agreement whether correctly or not could make no difference in court.
***
No competent attorney who made a reasonable inquiry into the state
of the law when this suit was filed . . . could have thought the suit had
any possible merit. He should have known it was time-barred and in
any event did not come within the limited scope of suits to set aside
a labor arbitrator’s award.
Id. at 254-255.
A thorough review of the materials filed by the parties and consideration of the
arguments made to this Court leads to the conclusion that the Hospital’s decision to seek to vacate
the arbitration award was made without regard to the law of this Circuit. The Hospital was
concerned that it had an insubordinate nurse who had taken action that was contrary to patient safety
being reinstated by an arbitration award. The question presented, however, is whether “a competent
attorney who had made a reasonable inquiry into the state of the law when this suit was filed . . .
could have thought the suit had any possible merit.” This is a close question. The Hospital argues
that its efforts to vacate the arbitration award were based “upon a reasonable interpretation of the
Michigan Public Health Code.” Docket #25 at 9. The Hospital’s effort to vacate the arbitration
award, however, was really an effort to reargue the facts presented to the arbitrator. The parties had
bargained for final and binding arbitration. The arbitrator held three days of hearings and issued an
award rejecting the Hospital’s version of the facts. This case does not present the “rare case”1
justifying a challenge to the arbitrator’s decision in this Court. The arbitrator’s award was not
“egregious.” The Hospital knew or should have known that an action to vacate the award found no
1
See Michigan Family Resources, Inc.
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support in the law of this Circuit. This case simply did not come within the limited scope of suits
where a challenge to the award was appropriate.
Accordingly, for the reasons set forth above, Plaintiff’s Motion to Vacate Arbitration
Award (Docket #19) is denied and Defendant/Counter-Plaintiff’s Motion for Summary Judgment
(Docket #17) is granted. Finally, Defendant/Counter-Plaintiff’s request for attorney fees will is
granted.
A Judgment consistent with this Opinion will issue.
/s/ Timothy P. Greeley
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
Dated: September 7, 2011
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