Southside Hospital v. New York State Nurses Association
MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Petitioner's Objections (Docket Entry 23) are OVERRULED and the R&R (Docket Entry 21) is ADOPTED in its entirety. Petitioner's motion for summary judgment (D ocket Entry 15) is DENIED. Respondent's cross motion for summary judgment (Docket Entry 14) is GRANTED to the extent that it seeks an award of summary judgment and the confirmation of the Arbitration Award and DENIED WITHOUT PREJUDICE to the extent it seeks an Order directing Southside to pay NYSNA's litigation costs. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/3/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
NEW YORK STATE NURSE’S ASSOCIATION,
Peter D. Stergios, Esq.
McCarter & English LLP
245 Park Avenue, 27th Floor
New York, NY 10167
Joshua John Ellison, Esq.
Richard M. Seltzer, Esq.
Cohen, Weiss and Simon LLP
330 West 42nd Street
New York, NY 10036
SEYBERT, District Judge:
Presently pending before the Court is: (1) Magistrate
Judge Gary R. Brown’s Report and Recommendation dated January 26,
2017, (the “R&R,” Docket Entry 21) with respect to petitioner
Southside Hospital’s (“Petitioner” or “Southside”) motion for
summary judgment, (Pet’r’s Mot., Docket Entry 15) and respondent
New York State Nurse’s Association’s (“Respondent” or “NYSNA”)
Petitioner’s objections are OVERRULED and the R&R is ADOPTED in
The Court assumes familiarity with the facts of this
matter, which are set forth in detail in Judge Brown’s R&R.
Briefly, NYSNA is a labor organization that represents a bargaining
unit of registered nurses at Southside.
Docket Entry 14-3, ¶ 1.)
(Resp’t’s 56.1 Stmt.,
Southside and NYSNA are parties to a
collective bargaining agreement (the “CBA”), which provides, in
relevant part, that “nurses should not be required to perform nonnursing functions on a regular basis as part of their assigned
(CBA, Pet’r’s Mot. Ex. B, Docket Entry 16-2, at 10,
The CBA notes that non-nursing functions include, but
are not limited to, “transporting patients for routine tests,”
orders/delivery to the unit.”
(CBA at 10, ¶ 3.10.)
Article 14 of the CBA sets forth a grievance procedure.
(CBA at 39-40.)
To the extent a grievance is not adjusted after
Nursing, and the Personnel Director, any grievance that involves
the “application or interpretation” of the CBA “may be submitted
to arbitration by [Southside] or [NYSNA].”
(CBA at 39-40.)
The CBA also provides that NYSNA shall establish a
recommendations with respect to the philosophy of nursing practice
specific to the Hospital and methods to foster adherence to that
(CBA at 4, ¶ 3.01(A).)
The Committee analyzes
services essential to the practice of nursing.”
(CBA at 4,
Additionally, recommendations of the Committee
“shall be referred in writing to the Director of Nursing and
Administration’s decision is final and not subject to the grievance
and arbitration procedure set forth in Article 14 of the CBA. (CBA
at 4, ¶ 3.01(B)(3).)
alleging that Southside violated the CBA because registered nurses
in the “Labor and Delivery Unit (“L&D”) were routinely leaving the
unit to make pharmacy runs, lab runs, transporting patients, and
quotation marks and citation omitted).)
After Southside denied
the grievance, the parties participated in arbitration hearings.
(Pet’r’s 56.1 Stmt. ¶¶ 5-6.)
On December 17, 2014, the arbitrator
issued an award finding that Southside violated the CBA (the
(Resp’t’s 56.1 Stmt. ¶ 8.)
Southside commenced this action seeking an Order vacating the
(Pet., Docket Entry 1-3, at 1; ¶ 5.)
On July 8, 2016, NYSNA moved for summary judgment.
On August 8, 2016, Southside cross-moved for
(See Pet’r’s Mot.)
Southside argued, inter
alia, that the parties’ dispute was excluded by the CBA as the
Committee was “designed to address the very issues raised in this
(Pet’r’s Br., Docket Entry 17, at 5.)
Southside argued that the arbitrator exceeded his power and “went
far outside the scope of the CBA, including his own power to
interpret the labor agreement, creating a remedy that required
[Southside] to provide nonbargaining unit staff when it had never
agreed to do so and never agreed to allow an arbitrator to order
it to do so.”
(Pet’r’s Br. at 7-8.)
On October 13, 2016, the Court referred the pending
motions for summary judgment to Judge Brown for a report and
(Referral Order, Docket Entry 20.)
recommending that NYSNA’s motion be granted, and Southside’s cross
motion be denied.
(R&R at 14-15.)
Judge Brown found that the
Southside’s proposed grounds for vacatur.
(See generally R&R at
Particularly, Judge Brown rejected Southside’s contention
that the CBA excluded the underlying dispute from arbitration.
(R&R at 11.)
Judge Brown found that the CBA’s incorporation of
the rules of an arbitration association evidenced that the issue
of arbitrability was referred to the arbitrator, and noted that
Southside’s arguments regarding arbitrability were “considered and
rejected by the arbitrator.”
(R&R at 11-12.)
Judge Brown further
determined that Southside’s reliance on “limited exclusionary
recommendations of the Committee did not demonstrate that the
parties’ dispute was excluded from arbitration, as that language
grievance/arbitration process enacted in the CBA: that of making
recommendations concerning nursing philosophies and practices.”
(R&R at 12-13.)
Judge Brown also rejected Southside’s argument that the
arbitrator exceeded his powers, stating that such an argument fails
along with Southside’s argument regarding arbitrability since
“[t]his argument depends entirely on the contention that the CBA
excludes the instant dispute from the ambit of arbitration which
. . . is inaccurate.”
(R&R at 13.)
Finally, Judge Brown declined
to credit Southside’s argument that the arbitrator’s remedy was
“indefinite and non-final.”
(R&R at 14 (internal quotation marks
and citation omitted).)
Judge Brown also recommended that NYSNA’s application
for the payment of costs in connection with this motion sequence
be denied as premature.
(R&R at 14.)
On February 16, 2017, Southside filed Objections to the
Southside argues that Judge Brown erred in
finding that the CBA did not exclude the parties’ dispute.
Southside avers that the CBA “clearly and unambiguously
requires the specific complaint at issue here to be resolved by
the [Committee] and the Administration whose decision ‘shall be
final and not subject to Article 14.’”
(Obj. at 5 (quoting CBA at
Southside argues that the CBA’s provision regarding the
responsibilities and adequacy of support services at issue are
disposition by the [Committee]” and in the case at bar, this
procedure was not followed.
(Obj. at 8.) Southside argues that
it follows that Judge Brown erred in concluding that the arbitrator
did not exceed his authority.
(Obj. at 6.)
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
Walker v. Vaughan, 216 F. Supp. 2d 290, 291
A party may serve and file specific, written
See FED. R. CIV. P. 72(b)(2).
Upon receiving any
timely objections to the magistrate judge's recommendation, the
district court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).
party that objects to a report and recommendation must point out
the specific portions of the report and recommendation to which
2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002).
When a party raises an objection to a magistrate judge's
report, the Court must conduct a de novo review of any contested
sections of the report.
See Pizarro v. Bartlett, 776 F. Supp.
815, 817 (S.D.N.Y. 1991).
However, where a party “makes only
Recommendation only for clear error.”
Walker, 216 F. Supp. 2d at
291 (internal quotation marks and citation omitted).
recommendation that the Arbitration Award be confirmed or his
rejection of Southside’s argument that the arbitrator’s remedy was
“indefinite and non-final.”
(See R&R at 9-11, 13-14 (internal
quotation marks and citation omitted).)
Objection is a reiteration of its original argument that the
parties’ dispute is excluded from arbitration pursuant to the CBA’s
provision regarding the Committee.
Pet’r’s Br. at 5-9.)
(Compare Obj. at 5-9 with
Accordingly, the Court reviews the R&R for
clear error and finds none.
Putting aside the question of whether the CBA referred
the issue of arbitrability to the arbitrator, (see R&R at 11-12),
as noted by Judge Brown, “‘[i]t is well settled that where claims
are to be excluded from arbitration, it must be clearly and
unambiguously stated in the agreement.’”
(R&R at 11 (quoting
Interstate Brands Corp. v. Bakery Drivers & Bakery Goods Vending
Machs., Local Union 550, No. 96-CV-4454, 1998 WL 19974, at *4
(E.D.N.Y. Jan. 20, 1998), aff’d, 167 F.3d 764 (2d Cir. 1999)).)
See also Ermenegildo Zegna Corp. v. Lanificio Mario Zegna S.P.A.,
No. 85-CV-6066, 1996 WL 721079, at *5 (S.D.N.Y. Dec. 13, 1996)
(“[p]rovisions which purport to exclude certain disputes from
arbitration must be clear and unambiguous or unmistakably clear”)
(internal quotation marks and citations omitted).
Here, the CBA does not include clear language excluding
the underlying dispute from arbitration.
While the CBA states
that in making recommendations regarding nursing standards, the
Committee is charged with analyzing factors that include “nursing
involvement in non-nursing responsibilities” and “adequacy of
resources,” the CBA does not provide that any disputes that relate
to these “factors” must be submitted to the Committee.
at 4, ¶ 3.01(B)(2).)
Indeed, the express purpose of the Committee
is to make recommendations regarding “the philosophy of nursing
practice specific to the Hospital and methods to foster adherence
(CBA at 4, ¶ 3.01(A).)
Court concurs with Judge Brown that the CBA provision regarding
the Committee “cannot reasonably be interpreted to exclude review
of disputes regarding obligations undertaken by Southside that
have already been made a part of the [CBA], or disputes growing
out of the normal grievance procedure.”
(R&R at 13.)
Southside’s attempt to analogize this matter to Chimbay
v. AvalonBay Cmtys., Inc., 742 F. Supp. 2d 265, 282 (E.D.N.Y.
2008), and Bakery Confectionery Tobacco Workers & Grain Millers
Int’l Union Local 116, AFL-CIO, CLC v. Wegmans Food Mkts., Inc.,
66 F. Supp. 3d 333, 335 (W.D.N.Y. 2014), is equally unpersuasive.
(See Obj. at 8.)
In Chimbay, this Court found that an insurance
policy provision stating that “insurance does not apply to any
actual or alleged bodily injury to [a] present former, future, or
prospective . . . employee of any insured” was unambiguous and
precluded coverage for the plaintiff’s injuries.
Chimbay, 742 F.
Supp. 2d at 282 (internal quotation marks and citation omitted;
arbitration pursuant to the Labor Management Relations Act, the
Western District held that the collective bargaining agreement’s
failure to define the terms “work rule” or “theft” did not render
ambiguous a provision stating that “[v]iolations of any of the
arbitration, as the Company’s decision is final: (1) All forms of
Wegmans, 66 F. Supp. 3d at 334.
Southside’s argument that use of the terms “final,”
“subject to,” and “shall” in the CBA’s provision regarding the
Committee somehow renders it unambiguous and “similar” to the
(Obj. at 8-9.)
Moreover, these terms appear in the
provision stating that the Committee’s recommendations “shall” be
referred to the Director of Nursing and Hospital Administration
and “[t]he decision of Administration shall be final and not
subject to Article 14.”
(CBA at 4, ¶ 3.01(B)(3).)
that this provision “express[ly]” excludes the underlying dispute
from arbitration is wholly without merit and was properly rejected
by Judge Brown.
(Docket Entry 23) are OVERRULED and the R&R (Docket Entry 21) is
ADOPTED in its entirety.
Petitioner’s motion for summary judgment
(Docket Entry 15) is DENIED. Respondent’s cross motion for summary
judgment (Docket Entry 14) is GRANTED to the extent that it seeks
Arbitration Award and DENIED WITHOUT PREJUDICE to the extent it
seeks an Order directing Southside to pay NYSNA’s litigation costs.
The Clerk of the Court is directed to enter judgment
accordingly and mark this case CLOSED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
3 , 2017
Central Islip, New York
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