Minnesota Nurses Association v. Allina Health

Filing 26

MEMORANDUM OPINION AND ORDER. IT IS HEREBY ORDERED that Plaintiff's Motion for a Temporary Restraining Order and/or Preliminary Injunction #7 is DENIED. (Written Opinion) Signed by Judge Michael J. Davis on 7/16/2021. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Minnesota Nurses Association,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER
Civil No. 21-1364 (MJD/KMM)

Allina Health,
Defendant.

Christopher K. Wachtler, Wachtler Law Office, Counsel for Plaintiff.
Dominic J. Cecere and Joel E. Abrahamson, Stinson LLP, Counsel for
Defendant.

Plaintiff Minnesota Nurses Association (“Union”) filed this action in order
to remedy Defendant Allina Health’s (“Allina”) failure to comply with the
Arbitration Award dated April 20, 2021 that directed Allina to reinstate the
grievant, Cliff Willmeng (“Willmeng”), but without any backpay. The Union
seeks to confirm the Arbitration Award, and seeks immediate reinstatement of
Willmeng’s job with backpay, seniority, and benefits retroactive to the date of the
Arbitration Award.

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Currently before the Court is the Union’s motion for a temporary
restraining order and/or preliminary injunction directing Allina to comply with
the Arbitration Award. In response to this motion, Allina has filed a cross
motion to vacate the Arbitration Award. 1
I.

Background
The Union is a labor organization that represents over 20,000 registered

nurses throughout the Upper Midwest. Willmeng was employed in the
Emergency Department at United Hospital (“United”), which is owned by
Allina, from October 2019 through May 8, 2020. (Willmeng Aff. ¶ 2; Comp. Ex. B
(Arbitration Award at 7).)
United adopted a Dress Code Policy in 2012 that provides for a colorcoded system by which employees are required to wear the color designated for
their respective departments. (Comp. Ex. B (Arbitration Award at 7).)
Registered nurses with direct patient care such as Willmeng are to wear their
own personal navy blue-colored scrubs for which they are responsible for
laundering. (Id.) The Dress Code provides that if the employee works in a
restricted invasive care procedure area or if the employee’s scrubs are

The parties agreed they would not address the merits of the motion to vacate at this time. (See
Doc. No. 22 (Reply at 1, n.1).)
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contaminated with blood or bodily fluids, the employee may substitute hospitalprovided and laundered ceil blue scrubs . (Id.) The Emergency Department is
not considered a restricted or semi-restricted invasive care procedure area. (Id.)
When the COVID-19 pandemic reached Minnesota in March 2020,
hospitals were considered essential and the emergency room at United continued
to provide patient care. (Id.) United’s response to the pandemic was led by its
Infection Prevention and Control Committee, which reviewed scientific research
and recommendations and developed a system-wide response plan. (Id. at 8.)
The plan was continuously monitored and updated and employees could access
the plan on a dedicated internet site, and e-mail communications were frequently
sent to employees highlighting key developments and recommendations. (Id.)
At the Arbitration hearing, many employees testified that the volume of
COVID-19 related communications were overwhelming and that many nurses
were confused and fearful of their safety. (Id.) A key concern was the personal
scrubs, which some believed could be contaminated at work and would pose a
risk of infection to employee family members when the scrubs were brought
home for laundering. (Id.) The Union brought these concerns to Allina’s

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attention by letter in late March 2020, and filed a grievance related to health and
safety concerns on April 9, 2020. (Id.)
Willmeng believed that Allina was not doing enough to maintain a safe
workplace, and as a Union steward, he reviewed numerous scientific articles to
enhance his ability to advocate appropriate safeguards. (Id.) Willmeng testified
that his research led him to believe the virus could remain infectious on clothing
for a long period of time, and that Allina’s Dress Code could potentially expose
his family to the virus. (Id. at 8-9.)
On March 24, 2020, Willmeng donned hospital-provided scrubs to wear
during his shift rather than his personal scrubs. (Id. at 9.) He continued this
practice for two weeks, prompting Allina to hold two educational meetings and
one counseling session with Willmeng. (Id.) During these meetings, the Dress
Code was discussed and Willmeng was informed that Allina’s policy was
consistent with the recommendations of the leading health agencies, including
the CDC and the World Health Organization. (Id.)
On April 15, 2020, Allina issued Willmeng a verbal warning as he
continued to wear the hospital-provided scrubs and for violating United’s Use of

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Personal Electronic Equipment policy when he took “selfies” in patient care
rooms and posting them to social media. (Id.) The next day, United issued
Willmeng a written warning when he again wore the hospital-provided scrubs
during his shift. (Id.)
During this time, at least five other registered nurses who worked in
United’s Emergency Department also wore hospital-provided scrubs and were
subject to non-disciplinary counseling. (Id.)
United paused its enforcement of the Dress Code in order to take another
look into the concerns of the nurses. (Id.) United’s Infection Prevention and
Control Committee reviewed the scientific literature and the recommendations
of leading health agencies to determine whether there was a need to change the
Dress Code. (Id. at 10.) This Committee concluded that the scientific research
did not support a change in the Dress Code. United also looked into whether the
hospital-wide provision of hospital-laundered scrubs was feasible as a matter of
logistics, and determined that United would run the risk of running out of
hospital-provided scrubs for employees working in the restricted invasive
procedures areas if it expanded the provision of these scrubs to staff working
outside of the restricted areas. (Id.)
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On April 24, 2020, Willmeng donned the hospital-provided scrubs during
his shift and was approached by the Nursing Supervisor who asked him to
change into his personal navy blue scrubs. (Id.) Willmeng instead pulled out his
phone and began reading an e-mail to the supervisor. (Id.) The supervisor did
not pursue the conversation and walked to the charge nurse desk. (Id.)
Willmeng followed her and began a loud, heated exchange with the supervisor
and a charge nurse. The supervisor and charge nurse claimed that Willmeng
pointed a finger at each of their faces and yelled angry comments, accusing them
of not protecting staff and that the supervisor was harassing him. (Id.)
Willmeng concedes he may have been loud, but denied yelling at them. (Id.)
This incident was investigated and it was decided that Willmeng had violated
United’s Respectful Workplace Policy and Code of Conduct. (Id.)
Willmeng continued to wear hospital-provided scrubs and United
resumed its enforcement of the Dress Code policy. (Id. at 11.) United issued
Willmeng a written warning, followed by a final warning on May 5, 2020. (Id.)
When Willmeng started his shift on May 8, 2020 wearing hospital-provided
scrubs, he was given a termination letter. (Id.) The termination letter stated he

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was being terminated for his continued violation of the Dress Code and for
violating the Respectful Workplace Policy and Code of Conduct. (Id.)
The Union brought a grievance claiming Allina violated the parties’ CBA
by discharging Willmeng without just cause. The grievance proceeded to
arbitration, where the following issues were presented: whether the employer
had just cause to discharge Willmeng, and if not, what is the proper remedy;
whether the employer’s actions relating to Willmeng violated Articles 17, 20 or
22 of the CBA, and whether Kelly Johnson, by informing Willmeng on March 25,
2020 that he was not allowed to conduct Union business in a patient care area,
violated the NLRA. (Id. at 2.)
In a decision dated April 20, 2021, the Arbitrator granted the Union’s
discharge grievance in part and denied in part. The Arbitrator directed Allina to
reinstate Willmeng, but without any obligation for back pay. The Arbitrator
denied the Union’s workforce safety grievance and the unfair labor practice
grievance. (Id. at 19.)
On May 5, 2021, Allina submitted a partial motion for reconsideration of
the Arbitration Award to the Arbitrator, and a motion to stay reinstatement

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pending a motion to vacate the Arbitration Award. (Comp. Ex. D.) The
Arbitrator denied Allina’s motion by Order dated May 18, 2021. (Comp. Ex. F.)
II.

Temporary Restraining Order/Preliminary Injunction
The Union has moved for a temporary restraining order and/or an order

for preliminary injunctive relief under Rule 65 of the Federal Rules of Civil
Procedure. The legal standards for a temporary restraining order and a
preliminary injunction are the same. See S.B. McLaughlin & Co., Ltd. V. Tudor
Oaks Condominium Project, 877 F.2d 707, 708 (8th Cir. 1989).
When determining whether preliminary injunctive relief is warranted, a
district court considers the following four factors: (1) the probability that the
movant will succeed on the merits, (2) the threat of irreparable harm to the
movant, (3) the balance between this harm and the injury that an injunction
would inflict on other parties, and (4) the public interest. Dataphase Sys., Inc. v.
C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The Union bears the burden of
establishing that each factor favors granting such relief. 3M Company v.
Nationwide Source Inc., 2021 WL 141539 (D. Minn. Jan. 15, 2021)
(citing Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 705 (8th Cir.
2011)).
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In balancing the equities no single factor is determinative. The likelihood
that the plaintiff ultimately will prevail is meaningless in isolation. In
every case, it must be examined in the context of the relative injuries to the
parties and the public. If the chance of irreparable injury to the movant
should relief be denied is outweighed by the likely injury to other parties
litigant should the injunction be granted, the moving party faces a heavy
burden of demonstrating that he is likely to prevail on the merits.
Conversely, where the movant has raised a substantial question and the
equities are otherwise strongly in his favor, the showing of success on the
merits can be less.
Dataphase, 640 F.2d at 113.
A.

Irreparable Harm

The basis of injunctive relief in the federal courts has always been
irreparable harm and inadequacy of legal remedies. Failure to show
irreparable harm is an independently sufficient ground upon which to
deny a preliminary injunction. It is well established that “[i]rreparable
harm occurs when a party has no adequate remedy at law, typically
because its injuries cannot be fully compensated through an award of
damages.”
Grasso Enterprises, LLC. v. Express Scripts, Inc., 809 F.3d 1033, 1039-40 (8th Cir.
2016) (internal citations omitted).
The Union argues that it is bringing this motion as Willmeng’s personal
representative, and that it is the Union’s charge to defend the CBA and to
challenge terminations which lack just cause. The Union argues that Allina’s
refusal to comply with the Arbitration Award strikes at the core of its ability to
represent its members. Further, Willmeng has suffered harm as he has not been
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able to obtain employment since he was terminated in May 2020. In support,
Willmeng has submitted an affidavit in which he asserts he has not been able to
obtain new employment, despite regularly submitting applications. (Willmeng
Aff. ¶ 4.) He further states that while employed by Allina, he was the primary
source of health insurance for the family, which includes his wife and two
children. (Id. ¶ 5.) The family is currently insured under his wife’s health care
plan that has a high deductible and provides far weaker coverage. (Id.) As a
result, he has had to delay non-emergent procedures and has been forced to
forego mental health counseling. (Id.) His children have not been able to obtain
orthodonture. (Id.) Willmeng further asserts his daughter had to go to urgent
care once and the emergency room twice for an undisclosed health issue, and
will likely be billed thousands of dollars. (Id. ¶ 7.) His son also suffers from a
benign but serious heart malformation and while he concedes the necessary tests
“would be partially or completely covered by insurance” he is concerned that the
exams will have to be postponed because he will be unable to pay for them
because of his employment status. (Id. ¶ 8.) Willmeng further asserts his
retirement benefits are not accruing which will delay his eventual retirement.
(Id. ¶ 9.)

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Financial hardship is not enough to establish irreparable harm. Local
Union No. 884, United Rubber, Cork, Linoleum & Plastic Workers of Am. v.
Bridgestone/Firestone, Inc., 61 F.3d 1347, 1355 (8th Cir. 1995); see also Packard
Elevator v. ICC, 782 F.2d 112, 115 (8th Cir. 1986) (“It is . . . well settled that
economic loss does not, in and of itself, constitute irreparable harm.”) Further, a
claim that an employee incurred medical bills as a result of substandard health
insurance coverage is not irreparable harm, as such harm is compensable
through the provision of money damages. Central Missouri Paving Co., Inc. v.
United Mine Workers of America, Dist. 14, 749 F. Supp. 973, 978 (E.D. Mo. 1990).
In this case, the harm allegedly suffered by Willmeng is compensable by
money damages. Further, the Union has provided no support for its claim that
Allina’s refusal to comply with the Arbitration Award strikes at the core of its
ability to represent its members.
Accordingly, the Court finds that the Union has failed to demonstrate it
will suffer irreparable harm if the requested injunctive relief is not granted.
Because “[f]ailure to show irreparable harm is an independently sufficient
ground upon which to deny a preliminary injunction”, the Court need not
address the remaining factors. Grasso Enterprises, LLC., 809 F.3d at 1039-40.

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IT IS HEREBY ORDERED that Plaintiff’s Motion for a Temporary
Restraining Order and/or Preliminary Injunction [Doc. No. 7] is DENIED.
Date: July 16, 2021
s/Michael J. Davis
Michael J. Davis
United States District Court

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