Southside Hospital v. New York State Nurses Association

Filing 25

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
----------------------------------------x
SOUTHSIDE HOSPITAL,
Petitioner,
-against-

MEMORANDUM & ORDER
15-CV-2282(JS)(GRB)

NEW YORK STATE NURSE’S ASSOCIATION,

Respondent.
----------------------------------------x
APPEARANCES
For Petitioner:
Peter D. Stergios, Esq.
McCarter & English LLP
245 Park Avenue, 27th Floor
New York, NY 10167
For Respondent:

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”)
cross

motion

Entry 14)

and

“Objections,”

for

summary

(2)
Docket

judgment,

Petitioner’s
Entry

23).

(Resp’t’s

objections
For

the

to

Mot.,
the

following

Docket

R&R

(the

reasons,

Petitioner’s objections are OVERRULED and the R&R is ADOPTED in
its entirety.
BACKGROUND
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
duties.”

(CBA, Pet’r’s Mot. Ex. B, Docket Entry 16-2, at 10,

¶ 3.10.)

The CBA notes that non-nursing functions include, but

are not limited to, “transporting patients for routine tests,”
“laboratory

specimen

pickups,”

orders/delivery to the unit.”

and

“pharmacy

stat

med

(CBA at 10, ¶ 3.10.)

Article 14 of the CBA sets forth a grievance procedure.
(CBA at 39-40.)
presentation

To the extent a grievance is not adjusted after

to

the

employee’s

supervisor,

the

Director

of

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
Committee

on

Nursing

Practice
2

(the

“Committee”)

to

“make

recommendations with respect to the philosophy of nursing practice
specific to the Hospital and methods to foster adherence to that
philosophy.”
factors

(CBA at 4, ¶ 3.01(A).)

that

include

responsibilities”

and

“nursing
“the

The Committee analyzes

involvement

adequacy

of

in

resources

services essential to the practice of nursing.”
¶ 3.01(B)(2).)

non-nursing
and

support

(CBA at 4,

Additionally, recommendations of the Committee

“shall be referred in writing to the Director of Nursing and
Hospital

Administration.”

(CBA

at

4,

¶

3.01(B)(3).)

The

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).)
On

February

18,

2014,

NYSNA

submitted

a

grievance

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
cleaning

equipment.”

(Pet’r’s

56.1

quotation marks and citation omitted).)

Stmt.

¶¶

3-4

(internal

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
“Arbitration Award”).

(Resp’t’s 56.1 Stmt. ¶ 8.)

Thereafter,

Southside commenced this action seeking an Order vacating the
Arbitration Award.

(Pet., Docket Entry 1-3, at 1; ¶ 5.)
3

On July 8, 2016, NYSNA moved for summary judgment.
Resp’t’s Mot.)

(See

On August 8, 2016, Southside cross-moved for

summary judgment.

(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
arbitration.”

(Pet’r’s Br., Docket Entry 17, at 5.)

Similarly,

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
recommendation.
A.

(Referral Order, Docket Entry 20.)

The R&R
On

January

26,

2017,

Judge

Brown

issued

his

R&R

recommending that NYSNA’s motion be granted, and Southside’s cross
motion be denied.
Arbitration

Award

(R&R at 14-15.)
qualified

for

Judge Brown found that the
confirmation

Southside’s proposed grounds for vacatur.
9-14.)

and

rejected

(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
4

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
language”

in

the

CBA

with

respect

to

the

finality

of

the

recommendations of the Committee did not demonstrate that the
parties’ dispute was excluded from arbitration, as that language
“relate[d]

to

a

process

separate

and

apart

from

the

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.)
5

B.

Southside’s Objections
On February 16, 2017, Southside filed Objections to the

R&R.

(See Obj.)

Southside argues that Judge Brown erred in

finding that the CBA did not exclude the parties’ dispute.
at 5.)

(Obj.

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.’”
4).)

(Obj. at 5 (quoting CBA at

Southside argues that the CBA’s provision regarding the

Committee

indicates

that

“the

disputes

involving

non-nursing

responsibilities and adequacy of support services at issue are
‘not

subject

to

Article

14’

arbitration,

but

subject

[to]

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.)

DISCUSSION
“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
facially erroneous.”
(S.D.N.Y. 2002).
objections
within

to

a

fourteen

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

A party may serve and file specific, written
magistrate
days

of

judge's

being
6

report

served

and

with

recommendation

the

recommended

disposition.

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).

A

party that objects to a report and recommendation must point out
the specific portions of the report and recommendation to which
they

are

objecting.

See

Barratt

v.

Joie,

No.

96-CV-0324,

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).
conclusory
original

or

general

arguments,

However, where a party “makes only

objections,
the

Court

or

simply

reviews

Recommendation only for clear error.”

reiterates

the

Report

his
and

Walker, 216 F. Supp. 2d at

291 (internal quotation marks and citation omitted).
Southside

has

not

objected

to

Judge

Brown’s

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).)

Additionally, Southside’s

Objection is a reiteration of its original argument that the
parties’ dispute is excluded from arbitration pursuant to the CBA’s
7

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).)

(See CBA

Indeed, the express purpose of the Committee
8

is to make recommendations regarding “the philosophy of nursing
practice specific to the Hospital and methods to foster adherence
to

that

philosophy,”

particular disputes.

not

to

make

determinations

(CBA at 4, ¶ 3.01(A).)

regarding

Accordingly, the

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;
alterations

in

original).

In

Wegmans,

an

action

to

compel

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
9

ambiguous a provision stating that “[v]iolations of any of the
following

Company

work

rules

are

not

in

any

way

subject

to

arbitration, as the Company’s decision is final: (1) All forms of
theft.”

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
provisions

at

imagination.

issue

in

Chimbay

(Obj. at 8-9.)

and/or

Wegmans

strains

the

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).)

The notion

that this provision “express[ly]” excludes the underlying dispute
from arbitration is wholly without merit and was properly rejected
by Judge Brown.
CONCLUSION
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

(Docket 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

10

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.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
3 , 2017
Central Islip, New York

11