SEIU Healthcare Pennsylvania, CTW, CLC v. Regional Hospital of Scranton
Filing
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MEMORANDUM OPINION - Accordingly, the Court will grant, in part, the Union's Motion For Judgment on the Pleadings and will order the parties to file cross-motions for summary judgment with respect to the Hospital's claim that reinstatement of the Grievant would violate or be contrary to Pennsylvania public policy. Aseparate Order follows.Signed by Honorable Robert D. Mariani on 1/12/15. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SEIU HEALTHCARE PENNSYLVANIA,
CTW, CLC,
3:13-CV-02669
(JUDGE MARIANI)
Plaintiff
v.
REGIONAL HOSPITAL
OF SCRANTON,
Defendant
MEMORANDUM OPINION
I. Procedural History
In this action, Plaintiff, SEIU Healthcare Pennsylvania, CTW, CLC (hereinafter
"SEIU" or "the Union") has filed suit to confirm and enforce a labor arbitration award
issued pursuant to SEIU's Collective Bargaining Agreement with Defendant, Regional
Hospital of Scranton (hereinafter "Hospital").
This Court has jurisdiction pursuant to Section 301 (a) of the Labor-Management
Relations Act, 29 U.S.C. § 185(a) and 28 U.S.C. §§ 1331 and 1337.
Venue is proper in the Middle District of Pennsylvania pursuant to 29 U.S.C. § 1391,
since the Defendant is located in this judicial district and because a substantial part of
the events giving rise to the claimant in this case occurred in the Middle District.
As noted above, SEIU and Regional Hospital of Scranton, hereinafter "Hospital",
were parties to a Collective Bargaining Agreement ("CBA") for the period November 10,
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2011 through February 28, 2013. A copy of the Collective Bargaining Agreement,
without its Appendices, is attached to Plaintiffs Complaint as Exhibit A. (Doc. 1-2). The
Union and the Hospital agree that upon the expiration of the Collective Bargaining
Agreement, they are "operating under the temlS of the CBA, consistent with applicable
labor law, while they continue to bargain for a successor agreement." (Compl., Doc. 1, ~
6; Answer, Doc. 9, ~ 6).
The Collective Bargaining Agreement between SEIU and the Hospital contains, in
Section 4.1 thereof, a grievance procedure which provides for the submission of
unresolved disputes between the Union and the Hospital to arbitration. Specifically,
Section 4.3 of the CBA provides for the submission of an unresolved grievance to
arbitration by the Union filing awritten demand for arbitration with the American
Arbitration Association. Thereafter, an arbitrator is chosen in accordance with the Rules
and Regulations of the American Arbitration Association.
Section 4.6 of the CBA provides:
The award of an arbitrator hereunder shall be final, conclusive and binding
upon the Hospital, the Union and the employees including all disputes
regarding Management's application of the Americans with Disabilities Act.
(Doc. 1at ~ 9; Doc. 9 at ~ 9; Doc. 1-2).
Further, the Collective Bargaining Agreement provides, in Section 5.1 thereof, that
"[t]he Hospital shall have the right to discharge, suspend or diScipline any employee for
just cause." (Doc. 1-2, p. 8).
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On February 1,2012, the Hospital suspended bargaining unit employee, Roberta
Robbins, who, the Hospital asserted, had been sleeping on the job. (Compl. at ~ 15;
Answ., Doc. 9, ~ 15).
On February 3, 2012, the Hospital terminated the employment of Roberta Robbins
on the claim that she had been sleeping on duty during the night of February 1,2012.
(Compl. at 11 16).
The Union filed a Grievance on behalf of Ms. Robbins which asserted that Ms.
Robbins had been discharged without just cause and that her discipline was imposed
without the interview provided for in Section 5.2 of the Collective Bargaining Agreement.
(Id. at 11 17).
When the parties were unable to resolve the Robbins Grievance, it was submitted to
arbitration. Arbitrator Scott E. Buchheit was appointed to serve as the Neutral Arbitrator
to hear and decide the Grievance. (ld. at ~ 19).
Arbitrator Buchheit held a hearing on December 11,2012, at which the Union and
the Hospital presented evidence and testimony in support of their respective positions.
The parties submitted post-hearing briefs at the conclusion of the hearing. (Id. at ~ 20).
On April 26, 2013, Arbitrator Buchheit issued his Opinion and Award. A copy of the
Arbitrator's Opinion and Award is attached to Plaintiffs Complaint as Exhibit B (Doc. 1
3). Arbitrator Buchheit sustained in part and denied in part the Robbins Grievance and
issued the following Award:
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AWARD
The grievance is sustained in part and denied in part. For the sustained
portion of the grievance, the Employer shall reinstate the Grievant to her
former position with 'full seniority but without back payor other benefits lost as
a result of her termination.
(Doc. 1-3 at 37).
Arbitrator Buchheit wrote in support of his Award:
In short, the Grievant's termination occurred in the absence of the Employer
making proper compliance with Section 5.2. The Grievant should have been
afforded a "disciplinary interview", with all rights attached to such an interview,
including the right to be informed that she could have a Union Delegate
present during the interview, and to have such a Delegate present during the
interview.
I reject the Employer's assertion that my finding that the Grievant was entitled
to a disciplinary interview is a determination beyond my authority, as it results
from my rewriting of the Contract. To the contrary, my conclusion results from
the application of the clear and unambiguous language contained in Section
5.2. All I do is enforce the rights the Grievant had in this provision, nothing
more nothing less.
Given that the Grievant was not afforded the procedural rights to which she
was entitled under Section 5.2, I cannot find that just cause existed for the
Grievant's termination. It follows that the Union has won the Grievant the right
to be reinstated to her former position with full seniority.
I cannot, however, reinstate the Grievant with any back payor other benefits
suffered as a result of her termination. As stressed by the Employer, sleeping
on duty is a serious offense. It is particularly serious in this instance, as the
Employer has a specific rule against sleeping on duty, and the Grievant had
within the previous year been suspended for sleeping on duty....
(Doc. 1-3, at 35-36).
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The Union seeks enforcement of the Arbitrator's Award, including the reinstatement
of the Grievant, payment of back pay from the date she should have been reinstated
until the date of her actual reinstatement, pre-judgment interest on such back wages and
an award of attorneys' fees and costs on the basis that the Hospital's failure and refusal
to abide by the Buchheit Award is unjustified. The Union notes that the Employer did not
'file an action to vacate, modify or correct the Buchheit Award and it asserts that it is now
precluded from challenging the Award or the Arbitrator's findings. (Compl. at ~ 34).
On December 30,2013, the Hospital filed its Answer and Affirmative Defenses to the
Complaint. (Doc. 9). The Hospital admits the material allegations of Plaintiffs Complaint
and, in particular, admits "that the Hospital did not move to vacate, modify or correct the
Award of Arbitrator Buchheit." (ld. at ~ 28). The Hospital has denied, however, that the
Union is entitled to enforcement of the Buchheit Award and has asserted four affirmative
defenses as follows: (1) "The award of reinstatement is contrary to Pennsylvania public
policy which precludes its enforcement";(2) "[t]he arbitrator exceeded his jurisdiction
under the CBA, thereby precluding enforcement of the award"; (3) "[t]he award is
contrary to the essence of the CBA, thereby precluding its enforcement"; and (4) "the
award of reinstatement is unconscionable, thereby precluding its enforcement." (Doc. 9,
at 5)
On February 26,2014, after consultation with counsel for the parties at acase
management conference, the Court entered an Order (Doc. 13) that the Plaintiff file a
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motion for judgment on the pleadings on or before March 10, 2014 with briefing to be in
accordance with Local Rules 7.5,7.6 and 7.7. The Order further provided that "[s]hould
the motion for judgment on the pleadings be denied, cross-motions for summary
judgment shall be filed as to the validity and enforceability of the arbitration award at
issue within 30 days of the court's order." (Id.). On March 7, 2014, SEIU filed its Motion
For Judgment on the Pleadings (Doc. 15). The Motion has been fully briefed and is now
ripe for disposition. For the reasons that follow, the Court will grant the Union's Motion
For Judgment on the Pleadings as to the Hospital's second, third and fourth affirmative
defenses and will direct the parties to file cross-motions for summary judgment as to the
Hospital's assertion in its first affirmative defense that the Buchheit Award violates an
explicit public policy.
In light of the Court's ruling, resolution of the issues of the Union's claim for back pay
and its request for attorneys' fees must necessarily be deferred until the validity of the
Buchheit Award is fully determined.
II. Statement of Facts Alleged By Plaintiff
Which Have Been Admitted By Defendant
The following is a statement of the averments of the Plaintiffs Complaint (Doc. 1)
which have been admitted by the Defendant in its Answer (Doc. 9):
SEIU is the exclusive representative of several units of employees employed by
Defendant, Regional Hospital of Scranton, in an industry affecting commerce within the
meaning of the LMRA, 29 U.S.C. §§ 142, 152 and 185(a).
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The Hospital is a corporation which operates an acute care hospital located at 746
Jefferson Avenue, Scranton, PA 18510. The employees represented by Plaintiff SEIU
work at the hospital.
SEIU and the Hospital are parties to a collective bargaining agreement (Doc. 1-2)
whose term was from November 10, 2011 through February 28,2013. This eSA was in
effect at all times material to this action.
While the eSA has expired, the parties are operating under the terms of the eSA,
consistent with applicable labor law, while they continue to bargain for a successor
agreement.
The eSA has agrievance and arbitration procedure which provides for the
submission of disputes between the parties to arbitration. Specifically, Section 4.1 of the
eSA provides:
A grievance shall be defined as a dispute or complaint arising between the
parties hereto, under or out of this Agreement or the interpretation,
application, or any alleged breach thereof, and shall be processed and
disposed of in the following manner:
Step One - Within twenty (20) calendar days of the time an employee first
becomes aware or should have become aware of the occurrence giving rise
to the grievance (except as provided in Section 4.11 of this Article), an
employee having a grievance and/or his Union delegate shall file a grievance
in writing with his/her immediate supervisor. The Hospital shall give its answer
to the employee and/or his/her Union delegate or other representative within
ten (10) calendar days after the presentation of the grievance in Step One.
Step Two - If the grievance is not selfled in Step On[e], the grievance may,
within ten (10) calendar days after the answer in Step One, be presented in
Step Two. When grievances are presented in Step Two, they shall be
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reduced to writing, signed by the grievant and his/her Union representative,
and presented to the grievant's department head or his/her designee. A
grievance so presented in Step Two shall be answered by the Hospital in
writing within ten (10) calendar days after its presentation.
Step Three - If the grievance is not settled in Step Two, the grievance may,
within ten (10) calendar days after the answer in Step Two, be presented in
Step Three. A grievance shall be presented in this Step to the Director of
Human Resources or Vice President of Human Resources, or their respective
designee. Unless mutually agreed otherwise, the parties agree to meet to
discuss the grievance within fifteen (15) calendar days after the timely
presentation of the grievance at Step Three. The Director of Human
Resources or Vice President of Human Resources, or their respective
designee shall render a decision in writing within fifteen (15) calendar days
after the presentation of the grievance in this Step, or the Step Three
meeting, whichever is later.
Failure on the part of the Hospital to answer a grievance at any step shall not
be deemed acquiescence thereto, and the Union may proceed to the next
step.
Anything to the contrary herein notwithstanding, a grievance concerning a
discharge or suspension may be presented initially at Step Three in the first
instance, within the time limit specified in Section 4.11 of this Article.
A grievance on behalf of the Hospital may be presented initially at Step Three
by notice in writing addressed to the Union at its offices.
(Doc. 1-2 at 5-6).
Further, Section 4.3 of the CSA provides:
A grievance, as defined in this Article, which has not been resolved
thereunder may, within fifteen (15) calendar days after completion of Step
Three of the grievance procedure, be referred to arbitration by the Union by
filing a written Demand for Arbitration with the American Arbitration
Association, a copy of which shall be sent simultaneously to the Hospital. An
Arbitrator shall be chosen in accordance with the Rules and Regulations of
the American Arbitration Association.
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(ld. at 7).
Section 4.6 of the CSA provides:
The award of an arbitrator hereunder shall be final, conclusive and binding
upon the Hospital, the Union and the employees including all disputes
regarding Management's application of the Americans with Disabilities Act.
(Id.).
Further, Section 4.11 of the CSA provides:
The Union may elect to contest the discharge or suspension of any employee
but must give written notice thereof to the Director of Human Resources (or
his designee) within seven (7) calendar days after receipt of the notice of
discharge or suspension. In such event, the issue shall thereafter be
submitted at Step Three of the grievance and arbitration procedure heretofore
set forth.
(Id. at 8).
The CSA also contains provisions governing discipline of employees
represented by SEIU. Specifically, Section 5.1 states that "The Hospital shall have
the right to discharge, suspend or discipline any employee for just cause." (ld.).
Section 5.2 of the CSA further elaborates on discipline and provides:
Where an employee is to be suspended or discharged, and the employee is
required to attend a disciplinary interview, no disciplinary action shall be
imposed until after the interview. The parties recognize that while a
disciplinary interview normally precedes a suspension or discharge, there are
circumstances which reasonably require immediate disciplinary action prior to
such interview. Any employee required to attend a disciplinary interview or
meeting shall be notified of their right to have a Union Delegate present at
such interview or meeting and shall be given reasonable advanced notice of
the time, place and nature of the meeting and shall be provided the right to
have a Union representative accompany them. All discipline shall be carried
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out as soon as is reasonably possible after the Employer becomes aware of
the facts giving rise to the discipline in question.
(Id.).
Section 5.3 of the CBA provides that "[t]he Hospital and the Union agree that
progressive discipline should not be imposed where the previously disciplinary action
was more than one (1) year ago," (ld.).
Roberta Robbins was an employee of the Hospital from November 2002 to February
2012. She worked in the Hospital's Imaging Department. Ms. Robbins was in a unit of
employees represented by SEIU and covered by the CBA.
On February 1, 2012, the Hospital suspended Roberta Robbins contending that Ms.
Robbins had been sleeping on duty.
On February 3, 2012, the Hospital wrote a letter to Roberta Robbins terminating her
employment claiming she had been sleeping on duty during the night of February 1, 2012.
On or about February 7, the Union filed a grievance at Step 3 of the grievance
procedure protesting the termination of Roberta Robbins (the "Grievant'). The grievance
stated as follows: IIEmployer in violation of, but not limited to, Article 5.1, 5.2, 5.3 - just
cause, and the employee was not present at any disciplinary interview, and termination was
imposed without the interview," (Compl. at,-r 17).
The Robbins grievance was not resolved and, pursuant to the terms of the CBA,
SEIU referred the grievance to arbitration.
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Pursuant to the applicable provisions of the CBA, Arbitrator Scott E. Buchheit was
appointed to serve as the neutral arbitrator to decide the Union's grievance.
A hearing was held before Arbitrator Buchheit on December 11, 2012 in Scranton,
Pennsylvania, at which hearing SEIU and the Hospital were permitted to present evidence
and testimony with respect to the grievance. Thereafter, the parties submitted briefs in
support of their respective positions.
On April 26, 2013, Arbitrator Buchheit issued his Opinion and Award (Doc. 1-3) with
respect to the Union's grievance over the termination of Roberta Robbins.
The Arbitrator's Award provides as follows:
AWARD
The grievance is sustained in part and denied in part. For the sustained
portion of the grievance, the Employer shall reinstate the Grievant to her
former position with full seniority but without back payor other benefits lost as
a result of her termination.
(Doc. 1-3 at 37).
By letter dated June 5, 2013, the Hospital, by its attorneys, requested in awritten
motion that Arbitrator Buchheit reconsider his Award, specifically the portion awarding
the Grievant reinstatement to employment at the Hospital.
The Union submitted awritten opposition to the Employer's request for
reconsideration.
By letter dated June 13,2013 (Doc. 1-4), the Arbitrator denied the Hospital's motion
for reconsideration.
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The Hospital has failed to move, in acourt of competent jurisdiction, for an order
vacating, modifying or otherwise correcting the Award of Arbitrator Buchheit.
SEIU has demanded that the Hospital comply with Arbitrator Buchheit's Award by
reinstating Grievant Robbins to her former position with full seniority.
To date, the Hospital has failed and refused to reinstate Ms. Robbins to her prior
position.
While employed at the Hospital, the Grievant regularly worked forty (40) hours per
week. The Union and Hospital disagree as to whether the Grievant's rate of pay was
$29.50 per hour or $29.30 per hour. They agree the Grievant was entitled to an
additional $1.00 per hour for shift differential and $1.00 per hour for charge differential.
III. Standard of Review
Under Federal Rule of Civil Procedure 12, judgment on the pleadings is only
appropriate in favor of the moving party when they "clearly establish[ ] that no material issue
of fact remains to be resolved" such that they are "entitled to judgment as a matter of law."
Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.2008) (internal quotation omitted).
When reviewing a motion for judgment on the pleadings, a court must view the facts in the
plaintiffs complaint as true and draw all reasonable inferences in the plaintiffs favor. Allah v.
AI-Hafeez, 226 F.3d 247, 249 (3d Cir. 2000); Snyder v. Daugherly, 899 F.Supp.2d 391,396
(W.D. Pa. 2012). In other words, a district court applies the same standard to ajudgment on
the pleadings as a motion to dismiss pursuant to Rule 12(b)(6), but may also review the
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answer and instruments attached to the pleadings. Brautigam v. Fraley, 684 F.Supp.2d 589,
591-92 (M.D. Pa. 2010). Accordingly, we shall utilize the same process we use to
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determine the sufficiency of a complaint when analyzing a motion to dismiss for failure to
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state a claim.
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IV. Analysis
Here, the Hospital has admitted that it did not move to vacate the Buchheit
Arbitration Award during the 30-day period prescribed by the Pennsylvania Arbitration Act,
42 Pa. C.S.A. § 7314, or at any time thereafter. (CompI. at 1128; Answer at 1128). The
Hospital further acknowledges in its Brief in Opposition to the Union's Motion for Judgment
on the Pleadings that "the Union is correct that Regional did not move to vacate the
Arbitration Award at issue during the short, 30-day, time frame of the Pennsylvania
Arbitration Act, 42 Pa. Stat. Ann. § 7341 ...." (Doc. 20 at 1). In Service Employees
International Union, Local No. 36 v. Office Center Services, Inc., 670 F.2d 404 (3d Cir.
1982), the Circuit squarely addressed the question of whether affirmative defenses which
are in the nature of grounds for vacating an arbitration award may be raised in a proceeding
to con'firm the award under Section 301 of the Labor-Management Relations Act, 29 U.S.C.
§ 185, where there has been a failure to move to vacate the unfavorable award within the
limitations period prescribed for actions to vacate. The Circuit Court held that the failure to
move to vacate an arbitration award within the prescribed period for doing so bars the
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assertion of objections which could have been raised in a motion to vacate, modify or
correct the award in a subsequent proceeding brought to confirm the award:
Accordingly, we hold that in a section 301 proceeding to con'firm a labor
arbitration award the relevant state statute of limitations is applied, and, under
the Pennsylvania statute applicable at the time of this action, the failure to
raise objections within three months which could have been raised in a
motion to vacate, modify or correct the award bars raising them in
confirmation proceedings held thereafter.
Office Ctr. Svcs., 670 F.2d at 412.
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The Circuit reaffirmed its holding in Office Center Services, Inc. in Service
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Employees International Union, Local 36 v. City Cleaning, 982 F.2d 89 (3d Cir. 1992). In
City Cleaning, the Court recognized that under Pennsylvania law, the Pennsylvania statute
governing actions to vacate, modify or correct a labor arbitration award, 42 Pa. C.S.A. §
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7314, required that such an action be filed within 30 days of the issuance of the award. City
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Cleaning, 982 F.2d at 93.
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Further, the Court, citing its prior decision in Office Center Services, Inc. reiterated:
[I]f a defendant has important defenses to an arbitration award, he should
raise them within the period prescribed for actions to vacate rather than wait
to raise them as defenses in aconfirmation proceeding.
Id.
In applying this rule, the Court rejected City Cleaning's argument that the arbitration
award was rendered unenforceable by the settlement of an unfair labor practice
complaint filed by the National Labor Relations Board ("NLRB") brought against the union
on the basis that the award violated public policy because the award imposed upon City
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Cleaning's employees "terms and conditions of employment bargained for by a union which
does not represent them." Id. at 92.
The Court affirmed the District Court's determination that City Cleaning had failed to
raise the issue of the settlement of the unfair labor practice charges brought against the
Union in atimely motion to vacate, modify or correct the grievance committee's award,
stating: "We agree with the district court that no exceptional circumstances exist which
would permit it to relax the rule we announced in Service Employees v. Office Center
Services." Id. at 94.
The rule established in Office Center Services that a party who fails to bring an
action to vacate, modify or correct an arbitrator's award within the period prescribed by law
is barred from raising objections to the award in a subsequent confirmation proceeding
which could have been raised by such an action has been consistently followed in this
Circuit.
More recently, in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union v. Neville Chemical Company, 298
Fed.App'x. 209 (3d Cir. 2008), an arbitrator determined that the employer, Neville, did not
have proper cause to discharge an employee on whose behalf the Union filed grievances.
The arbitrator ruled that while Neville had proper cause to discipline the employee for the
second of the two incidents which formed the basis for his discharge, the employer lacked
proper cause for the first of the two suspensions it imposed on the employee. It therefore
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reduced the employee's discharge to a 3-day suspension without pay and directed the
employer to reinstate the employee and make him whole until his reinstatement. Neville
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Chemical, 298 Fed.App'x. at 211.
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The Union moved to enforce the arbitration award and the District Court granted
summary judgment in its favor.
On appeal, the employer argued that the District Court committed "legal error" in
entering summary judgment in favor of the Union because the employee reinstated by the
arbitration award was physically unable to retum to work, having made aclaim for Workers'
Compensation benefits on the basis that he was totally disabled. Id.
The Court of Appeals affirmed the District Court's enforcement of the award directing
the employee's reinstatement, relying on its decision in City Cleaning Company:
As the District Court concluded, Neville waived these arguments. An
employer's failure to raise defenses to the enforcement of an arbitration
award in a timely motion to vacate or modify the award bars it from raising
them thereafter. See, Servo Employees Int'I Union, Local 36 v. City Cleaning
Company, 982 F.2d 89, 93 (3d Cir. 1992). As Neville failed to bring an action
to modify, vacate or correct the arbitration award within thirty days as required
under Pennsylvania law, it is precluded from arguing that it was unable to
reinstate McCann [the Grievant] due to physical inability and that it cannot be
ordered to pay back pay.
Id.
The Court of Appeals further noted that "[t]he District Court's Award of back pay from
the time McCann was discharged does not grant a permanent light duty position. It merely
enforces the arbitration award." Id.
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Further, the district courts which have been confronted with the issue presently
before this Court have uniformly followed the rule of Office Center Services and City
Cleaning. See, e.g., Int'l Union of Operating Engineers, Local 542 v. Williams Equip. Corp.,
2006 WL 2726839 (E.D. Pa. 2006); Local 863 Int'I Brotherhood of Teamsters v.
Supermarket Distribution Servs, Inc., 2008 WL 877855 (D. N.J. 2008); Int'l Union of
Bricklayers and Allied Craftworkers, Local 5 v. Inter-state Tile & Mantel Co., Inc., 2008 WL
3245464 (M.D. Pa. 2008); and Local 9661nt'l Brotherhood of Teamsters v. JCB, Inc., 2013
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WL 1845607, at *3 (D. N.J. 2013) (citing the Third Circuit's statement in Office Center
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Services: "[I]f a defendant has important defenses to an arbitration award he should raise
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them within the period prescribed for actions to vacate rather than wait to raise them as
defenses in a confirmation proceeding.").
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With the governing law having been clearly established in Office Center Services
and City Cleaning, the question before this Court is whether the affirmative defenses raised
by the Hospital in this enforcement proceeding are barred from assertion by virtue of the
Hospital's failure to timely move to vacate, modify or correct the Buchheit Arbitration Award.
The employer's second, third and fourth affirmative defenses will be addressed first. The
Hospital's second affirmative defense asserts that the Arbitrator exceeded his jurisdiction
under the Collective Bargaining Agreement, thereby precluding the enforcement of the
Award. The third affirmative defense asserted by the Hospital is that the Award is contrary
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to the essence of the Collective Bargaining Agreement. The fourth affirmative defense
asserted by the Hospital is that the award of reinstatement is unconscionable. (Doc. 9 at 5).
These defenses are indisputably defenses which could have been raised by the
Hospital in atimely proceeding to vacate, modify or correct the Award in question. In United
Paper Workers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364,98
L.Ed.2d 286 (1987), the United States Supreme Court restated the standard of review of a
labor arbitrator's award which was initially enunciated in United Steelworkers ofAmerica v.
Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358,4 L.Ed.2d 1424 (1960). In so
doing, the Court left no question that defenses such as those raised by the Hospital in its
second, third and fourth affirmative defenses should be raised in a complaint to vacate the
arbitration award.
The Court, in Misco, carefully delineated the highly circumscribed scope of review of
an arbitrator's award:
Collective bargaining agreements commonly provide grievance procedures to
settle disputes between union and employer with respect to the interpretation
and application of the agreement and require binding arbitration for unsettled
grievances. In such cases, and this is such a case, the court made clear
almost 30 years ago that the courts play only a limited role when asked to
review the decision of an arbitrator. The courts are not authorized to
reconsider the merits of an award even though the parties may allege that the
award rests on errors of fact or on misinterpretation of the contract. "The
refusal of courts to review the merits of an arbitration award is the proper
approach to arbitration under collective bargaining agreements. The federal
policy of settling labor disputes by arbitration would be undermined if courts
had the final say on the merits of awards." Steel Workers v. Enterprise Wheel
&Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360,4 L.Ed.2d 1424 (1960).
As long as the arbitrator's award "draws its essence from the collective
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bargaining agreement" and is not merely "his own brand of industrial justice,"
the award is legitimate. Id. at 597,80 S.Ct. at 1361.
'The function of the court is very limited when the parties have
agreed to submit all questions of contract interpretation to the
arbitrator. It is confined to ascertaining whether the party
seeking arbitration is making a claim which on its face is
governed by the contract. Whether the moving party is right or
wrong is a question of contract interpretation for the arbitrator.
In these circumstances the moving party should not be
deprived of the arbitrator's judgment, when it was his judgment
and all that it connotes that was bargained for.
The courts, therefore, have no business weighing the merits of
the grievance, considering whether there is equity in a
particular claim, or determining whether there is particular
language in the written instrument which will support the claim.
Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-568,80
S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960) (emphasis added;
footnote omitted)."
484 U.S. at 36-37.
The Court in Misco continued:
Courts thus do not sit to hear claims of factual or legal error by an arbitrator
as an appellate court does in reviewing decisions of lower courts. To resolve
disputes about the application of a collective bargaining agreement, an
arbitrator must find facts and a court may not reject those facts simply
because it disagrees with them. The same is true of the arbitrator's
interpretation of the contract. The arbitrator may not ignore the plain language
of the contract; but the parties having authorized the arbitrator to give
meaning to the language of the agreement, a court should not reject an award
on the ground that the arbitrator misread the contract. Enterprise Wheel,
supra, 363 U.S. at 599, 80 S.Ct. at 1362. So, too, where it is contemplated
that the arbitrator will determine remedies for contract violations that he finds,
courts have no authority to disagree with his honest judgment in that respect.
... As the court has said, the arbitrator's award settling a dispute with respect
to the interpretation or application of a labor agreement must draw its
essence from the contract and cannot simply reflect the arbitrator's own
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notions of industrial justice. But as long as the arbitrator is even arguably
construing or applying the contract and acting within the scope of his
authority, that a court is convinced he committed serious error does not
suffice to overturn his decision.
Id. at 38.
Thus, the Hospital's assertions that the arbitrator exceeded his jurisdiction under the
CBA, that the Award is contrary to the essence of the CBA and that the Arbitrator's remedy
of reinstatement is unconscionable present defenses to the enforcement of the Award
which, while subject to the narrow standard of review reaffirmed in Misco, are defenses
which could have and should have been raised in a timely proceeding by the Hospital to
vacate, modify or correct the Buchheit Award. Whether the Arbitrator exceeded his
jurisdiction as well as whether his Award draws its essence from the Collective Bargaining
Contract are matters which could properly have been raised in a timely complaint to vacate
the Buchheit Award, since these are defenses which the Supreme Court in Misco has
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recognized as proper bases on which to review an arbitrator's decision.
Likewise, the Arbitrator's selection of a remedy, while subject to the same narrow
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standard of review as his decision on the merits of the grievance, presents a matter that
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Misco recognizes as being reviewable by a motion to vacate. Thus, it is this Court's view
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that the Hospital's second, third and fourth affirmative defenses present matters which could
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have and should have been raised in a timely motion to vacate, modify or correct the
Arbitration Award in question so that the Hospital's failure to do so bars it from asserting
these defenses in the context of the Union enforcement proceeding in this Court.
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Accordingly, the Union's Motion for Judgment on the Pleadings will be granted in part and
judgment will entered in favor of the Union with respect to the Hospital's second, third and
fourth affirmative defenses.
Whether the Hospital is barred from asserting its first affirmative defense, that the
award of reinstatement is contrary to Pennsylvania public policy, presents a more difficult
question.
As the Hospital has argued, the Court in City Cleaning Company, while reaffirming
the rule in Office Center Services that "if a defendant has important defenses to an
arbitration award, he should raise them within the period prescribed for actions to vacate
rather than wait to raise them as defenses in aconfirmation proceeding," 982 F.2d at 93,
nonetheless addressed the merits of the employer's assertion in that case that the
arbitration award at issue there violated an explicit public policy.
The Court in City Cleaning Company, citing Misco, recognized that the public policy
exception as set forth in that case "is slim indeed." Id. at 92. It further noted that the
Supreme Court, in Misco, made clear that its prior decision in
w.R. Grace Co. v.
International Rubber Workers Union, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed. 298 (1983),
"does not ... sanction a broad judicial power to set aside arbitration awards as against
public policy." City Cleaning Co., 982 F.2d at 92 (quoting Misco, 484 U.S. at 43).
The Court, following Misco, made clear that there must be an explicit conflict
between the arbitration award and an explicit policy that is "well defined and dominant and
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[can be] ascertained by reference to the laws and legal precedents and not from general
considerations of supposed public interests." Id. (quoting W R. Grace Co., 461 U.S. at 766).
The Court acknowledged, however, that, as stated in WR. Grace Company, "[a]s with any
contract, however, a court may not enforce a collective bargaining agreement that is
contrary to public policy." Id. (citing WR. Grace Co., 461 U.S. at 765-766).
The Court then addressed the employer's public policy argument, stating that it
agreed with the District Court "that City Cleaning has failed in its burden of proving that this
particular award violates an explicit public policy." Id. The Court further noted that "[t]he
district court determined that 'City Cleaning has not shown whether the employment terms
vitally affect the unit employees, and it therefore, has not shown an explicit conflict with a
public policy.' We likewise find in this record no conflict." Id.
There is, seemingly, an internal inconsistency in the decision in City Cleaning. The
company's contention that the arbitration award violated public policy was based on aclaim
that the award imposed terms and conditions of employment on City Cleaning's employees
which were bargained for by a union which did not represent them. This assertion, as noted
above, was rejected by the District Court and the Court of Appeals but only after an analysis
of whether public policy was in fact violated by the grievance committee's ruling.
Yet, the Court found that the settlement of the unfair labor practice charges brought
against the union through the NLRB presented a defense which should have been raised in
atimely motion to vacate, modify or correct the grievance committee's award and was thus
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barred from assertion by the employer in the confirmation proceeding. The unfair labor
practice charges brought against the union raised the same issue as was raised by the
employer in its public policy argument, i.e., that the union had unlawfully insisted that it
"would only represent employees under a BOLR-type agreement." Id. at 91. The union was
a party to acollective bargaining agreement with a management organization entitled
Building Operator's Labor Relations, Inc. ("BOLR"). The union had been a party to a
collective bargaining agreement with the Building Maintenance Contractor's Association (the
BMCA Agreement) as well. And while the BMCA Agreement permitted City Cleaning to
provide services to facilities governed by the provisions of the BOLR Agreement, such work
was conditioned on the employer's adherence to the terms and conditions of the BOLR
contract. Thus, when City Cleaning informed the union that it was willing to enter into a
BMCA-type contract for its workers at the Mellon Independence Center Building, the union
rejected this offer, arguing that the work at Mellon had been previously performed under the
BOLR contract and that the union WOUld, therefore, only represent employees under a
BOLR type agreement. These facts are the source of both the employer's public policy
exception, which the Court addressed on its merits, as well as the unfair labor practice
charges brought against the union, whose settlement was rejected by the Court as a
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defense because it determined that it should have been raised in a timely motion to vacate,
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modify or correct.
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The above discussion, however, does not overcome the fact that the Court in City
Cleaning Company did address the merits of the employer's claim that the arbitration award
in question violated an explicit public policy.
Moreover, since the decision in City Cleaning Company, the Third Circuit has not
spoken to resolve the apparent conflict between its directive that "if adefendant has
important defenses to an arbitration award, he should raise them within the period
prescribed for actions to vacate rather than wait to raise them as defenses in a confirmation
proceeding," and its consideration on the merits of the employer's public policy defense in
City Cleaning Company.
The cases cited by the Hospital do little to resolve this question and several do not
address the issue at all. The decision in Extendicare Health Services, Inc. v. District 1199P,
SEIU, 532 F.Supp.2d 713 (M.D. Pa. 2006), was resolved on cross-motions for summary
judgment by the plaintiff employer and defendant union, with the sole issue being whether
the reinstatement of an employee to her position in a personal care home was contrary to
public policy, specifically the Older Adult Protective Services Act and the laws governing the
licensing of personal care homes under the Public Welfare Code of Pennsylvania, 62 Pa.
C.S.A. § 1001, et seq. The Court's decision granting summary judgment to the union does
not cite to Office Center Services or City Cleaning Company and the Court did not have
before it any claim that the plaintiff employer had failed to timely move to vacate, modify or
correct the arbitration award at issue.
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Similarly, the decision in Professional Administrators Ltd. v. Kopper-Glo Fuel, Inc.,
819 F.2d 639 (6th Cir. 1987), presents an application of Office Center Services, Inc. in
which the appellants, Kopper-Glo Fuel, Inc. and Double Q, Inc., argued on appeal of the
District Court's corrfirmation of an arbitration award that the Trustees of the Southern Labor
Union Welfare Fund and Pension Fund should not have submitted their claims to arbitration,
that "the Arbitrator's Award was improper on the merits, that the Arbitrator should have
considered the actuarial justification for the Trustees' actions, and that an award that
permits the Trustees to increase contributions violates federal labor policy." Kopper-Glo
Fuel, 819 F.2d at 642. As to each of these claims, including the claim that the award
violated federal labor policy, the Court held:
Appellants cannot raise these defenses because they failed to move to
vacate the arbitration award. Several courts of appeals have held that 'if a
defendant has important defenses to an arbitration award he should raise
them within the period prescribed for actions to vacate rather than wait to
raise them as defenses in a confirmation proceeding: Service Employees Int'I
Union, Local 36, v. Office Center Services, Inc., 670 F.2d 404, 412 (3d Cir.
1982) (remainder of citations omitted).
Id.
Further, the Court observed that "an action to confirm the award should be a
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summary proceeding, not a proceeding in which the defendant seeks affirmative relief." Id.
Nonetheless, the Court in Kopper-Glo then proceeded to determine whether the
arbitration award was unenforceable as contrary to public policy, citing W.R. Grace &
Company v. Local 759. The Court of Appeals then reversed the District Court's decision and
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vacated the arbitration award, finding that "an award proving a unilateral increase in
contribution rates is contrary to federal labor policy underlying mandatory collective
bargaining." Id. at 644.
Again, like City Cleaning Company, the Court did not reconcile its rejection of the
employers' defenses as untimely raised, including the defense that "an award that permits
the Trustees to increase contributions violates federal labor policy," id. at 642, with its
determination that the award was unenforceable because it approved a unilateral increase
in contribution rates which the Court found "contrary to federal labor policy underlying
mandatory collective bargaining," id. at 644.
Sheet Metal Employers Industry Promotion Fund v. Absolute Balancing Co., Inc.,
884 F.Supp.2d 617 (E.D. Mich. 2012), was an action brought by employee benefit trust
funds to confirm arbitration awards entered against the defendants for breaches of a
collective bargaining agreement. Pursuant to the CBA, grievances were submitted to the
Local Joint Adjustment Board ("LJAB") for final and binding arbitration. The LJAB issued
decisions 'finding that the defendants had violated the collective bargaining agreement by
failing to contribute to the Promotion Fund and Reimbursement Fund. The defendants did
not comply with the decisions and did not move to vacate them. The District Court found
that the defendants' "ability to challenge the LJAB decisions is procedurally and
substantively foreclosed." Sheet Metal Employers Industry Promotion Fund, 884 F.Supp.2d
at 621 (citing Occidental Chemical Corp. v. Int'I Chemical Workers Union, 853 F.2d 1310,
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1314 ~15 (6th Cir. 1988); Kopper~G/o Fuel, 819 F.2d at 642-643). The Court reached its
decision based upon the failure of the employer to timely file an action to vacate the award,
thus precluding a later challenge by the employer during lIa subsequent action brought by
the union to enforce the award on any similar grounds that could have been raised in a
timely action to vacate." Id. at 621.
The District Court, however, held that "while defendants are foreclosed from
attacking the LJAB decisions, the Court's review of the LJAB decisions does not end here.
Even though defendants failed to timely move to vacate the award, the Court must
determine if enforcing the CBA is contrary to public policy." Id. (citing WR. Grace & Co.,
461 U.S. at 766; Eastern Associated Coal Corp. v. United Mine Workers of Am., 531 U.S.
57,63, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000)).
The Court then denied the Trust Fund's motion for summary judgment, stating that lIit
is against well defined public policy to apply the CBA against any party that is not a
signatory to it." Id. at 625.
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The Court denied the plaintiffs motion for reconsideration characterizing its decision
as IIbased on a narrow exception" to the rule that the failure to file a motion to vacate,
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modify or correct an arbitration award precludes the assertion of any defenses which could
have been raised in such an action in a subsequent confirmation proceeding.
These cases provide little guidance to this Court in determining whether the Hospital
is precluded from asserting its first affirmative defense as it has been precluded from raising
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its second, third and fourth affirmative defenses because of its failure to move to vacate,
modify or correct the Buchheit Arbitration Award.
This Court is concerned that the rule of Office Center Services and City Cleaning
Company may be swallowed by an exception for challenges to labor arbitration awards
based on an alleged violation of "public policy." That is to say, there is a danger that the
labor arbitration process will be undermined by the ability of an employer unwilling to comply
with an unfavorable arbitration award to style any objection it has to the award as one
grounded in aclaim that the award violates an explicit public policy, and thereby free itself
from the requirement that it timely move to vacate the award. This is so even though, as the
Court noted in Misco and in City Cleaning Company, the public policy exception "is slim
indeed." Id. at 92.
Nonetheless, this Court is reluctant to determine the enforceability of the Buchheit
Arbitration Award without providing the Hospital with an opportunity to submit its argument
in support of its claim that the reinstatement of the Grievant violates Pennsylvania public
policy. Not to allow the Hospital to do so would result in adecision enforcing the Award
while the question of whether it violates an explicit public policy under Misco and Eastern
Coal Associated Operators will not have been addressed at the District Court level.
This approach finds support in City Cleaning Company, where, as previously noted
herein, the Court addressed the merits of the employer's claim that the arbitration award in
question in that case violated an explicit public policy, even though the employer had not
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moved to vacate, modify or correct the award within the period prescribed by applicable law.
For these reasons, the Court will order the parties to file cross-motions for summary
judgment limited to the issue of whether the reinstatement of the Grievant by the Buchheit
Arbitration Award is contrary to Pennsylvania public policy which precludes its enforcement.
Further, while the Court wishes to emphasize that it expresses no opinion whatsoever
on the Hospital's claim that reinstatement of the Grievant in this case is contrary to
Pennsylvania public policy, it does find it necessary to also order the parties to separately
brief an issue which will arise if, and only if, the Grievant's reinstatement by the Buchheit
Arbitration Award is found not to violate Pennsylvania public policy. That issue is whether
this Court would then have jurisdiction to determine the amount of back pay, if any, to which
the Grievant is entitled from the date she should have been reinstated or whether this issue
should properly be resolved via the grievance-arbitration procedure of the parties' Collective
Bargaining Agreement. See, generally, United Food &Commercial Workers Union, Local
1776 v. Excel Corp., 470 F.3d 143 (3d Cir. 2006); see also, Article 4, Section 4.1, of the
Collective Bargaining Agreement between the Hospital and the Union. (Doc. 1-2 at 5)
(defining agrievance as "a dispute or complaint arising between the parties hereto under or
out of this Agreement or the interpretation, application or any alleged breach thereof ....).
Accordingly, the Court will grant, in part, the Union's Motion For Judgment on the
Pleadings and will order the parties to file cross-motions for summary judgment with respect
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to the Hospital's claim that reinstatement of the Grievant would violate or be contrary to
Pennsylvania public policy.
A separate Order follows.
obert D. Mariam
United States District Judge
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