New England Health Care Employees Union, District 1199, SEIU v. Woman & Infants Hospital
Filing
17
MEMORANDUM AND ORDER denying 11 Motion for TRO. So Ordered by Chief Judge William E. Smith on 3/27/15. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
Plaintiff and Counterclaim )
Defendant,
)
)
v.
)
)
WOMEN & INFANTS HOSPITAL,
)
)
Defendant and Counterclaim )
Plaintiff.
)
___________________________________)
NEW ENGLAND HEALTH CARE EMPLOYEES
UNION, DISTRICT 1199, SEIU,
C.A. No. 15-66 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Defendant
Hospital
and
(“Hospital”),
restraining order.
Defendant,
Counterclaim
New
filed
Plaintiff,
a
(ECF No. 11.)
England
Health
Care
motion
Women
for
&
a
Infants
temporary
Plaintiff and Counterclaim
Employees
Union,
District
1199, SEIU (“District 1199” or “Union”), opposes the Hospital’s
request.
(ECF No. 12.)
This Court held a full-day evidentiary
hearing on the Hospital’s motion on March 23, 2015; for the
reasons that follow, the Hospital’s motion is DENIED.
I.
Background
The facts giving rise to the instant dispute can be quickly
recounted.
collective
The Hospital and District 1199 are parties to four
bargaining
agreements
(“CBAs”)
governing
terms
and
conditions of employment at the Hospital.
the
Hospital,
believing
that
the
On February 18, 2015,
exception
to
the
no-layoff
provision of the CBAs had been triggered, notified District 1199
that it planned to lay off Union members. 1
In response, District
1199 launched a two-tiered defense: it first filed a grievance
alleging that the planned layoffs violate the CBAs; and second,
it also filed suit in this Court (Compl., ECF No. 1), seeking a
so-called “reverse Boys Markets injunction,” see Indep. Oil &
Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864
F.2d 927, 929 n.2 (1st Cir. 1988), in order to maintain the
status
quo
pending
arbitration
(Pl.’s
Mot.
1,
ECF
No.
2-1).
This Court denied the Union’s request on February 26, 2015, and
the layoff process continued to run its course, with the parties
agreeing to make efforts to streamline the arbitration. 2
Undeterred,
Patrick
J.
Quinn,
District
1199’s
Executive
Vice President, sent the Hospital a so-called 8(g) notice, see
29 U.S.C. § 158(g), on March 5, 2015, indicating that the Union
intended “to conduct informational picketing and to engage in
other concerted refusal to work consisting of refusal to accept
overtime,
committee
assignments,
or
other
work-related
1
No nurses are slated to be laid off, although it appears
that one nurse has recently accepted a voluntary severance
package.
2
The parties have informed the Court that the arbitration
is scheduled for April 2, 2015.
2
activities not specifically required by the CBAs.”
D.) 3
(Hr’g Ex.
In response, the Hospital filed a counterclaim against
District 1199 (ECF No. 9), as well as a motion for a temporary
restraining
grievance
Ex. E).
order
with
(ECF
the
No.
Union
11);
over
the
the
Hospital
concerted
also
filed
activity
a
(Hr’g
The Hospital claims that it is entitled to injunctive
relief under Boys Markets, Inc. v. Retail Clerk’s Union, Local
770, 398 U.S. 235 (1970), because the Union’s concerted refusal
to work, including refusal to accept overtime, constitutes a
strike
over
an
arbitrable
grievance
strike provision of the CBAs.
Additionally,
the
Hospital
in
violation
of
the
no-
(Def.’s Mot. 2-3, ECF No. 11-1.)
insists
that,
in
the
absence
of
injunctive relief, it will suffer irreparable harm because it
will be forced to divert patients to other hospitals if nurses
refuse to accept overtime.
An
evidentiary
(Id. at 4.)
hearing
on
the
Hospital’s
injunctive relief was held on March 23, 2015.
request
for
At the hearing,
the evidence revealed that nurses employed by the Hospital and
represented
by
the
Union
each
have
a
set
number
of
“requisitioned” hours per week; a nurse may work in excess of
his
or
her
requisitioned
hours
3
by
voluntarily
accepting
The notice conveyed that the concerted activity would
commence at 12:01 a.m. on March 23, 2015. (Hr’g Ex. D.) During
an in-chambers conference, District 1199 agreed to postpone this
start date to March 30, 2015.
3
additional shifts or overtime. 4
For the Neonatal Intensive Care
Unit (“NICU”) and the Labor, Delivery, and Recovery Department
(“LDR”) at the Hospital, the Hospital posts enough shifts to
cover the average daily patient census, the average number of
patients in a particular unit over a given period of time.
ensure
adequate
staffing
in
response
to
fluctuating
To
patient
census and acuity 5 levels, as well as employee vacations, leaves
of
absence,
and
sick
voluntarily
accepting
percent
nurse
of
acceptance
of
days,
the
overtime.
shifts
voluntary
at
the
overtime.
Hospital
relies
Approximately
Hospital
are
Under
the
on
eight
filled
CBAs
nurses
to
ten
through
and
Rhode
Island law, see R.I. Gen. Laws § 23-17.20-3, the Hospital may
not require nurses to accept overtime, except in emergencies.
Additional evidence from the evidentiary hearing is discussed
below.
II.
Discussion
In this case, context is critical.
Norris-LaGuardia
Act
of
1932
prohibits
As a general rule, the
a
federal
granting injunctive relief in a labor dispute.
court
from
See 29 U.S.C. §
4
Quinn testified that the refusal to accept overtime
referenced in the Union’s notice covered acceptance of both
additional shifts (at straight time) and overtime.
For
simplicity’s sake, any shifts in excess of an employee’s
requisitioned hours will be referred to as “overtime.”
5
Acuity refers to the level of care required by patients in
a particular unit.
4
104; Verizon New England, Inc. v. Int’l Bhd. of Elec. Workers,
Local No. 2322, 651 F.3d 176, 183 (1st Cir. 2011).
In Boys
Markets, the Supreme Court created a narrow exception to this
rule “to ‘enforce[] the obligation that the [recalcitrant party]
freely undertook under a specifically enforceable agreement to
submit disputes to arbitration.’”
Indep. Oil, 864 F.2d at 929
(quoting Boys Markets, 398 U.S. at 252-53).
In this Circuit,
“there are three conditions for injunctive relief under Boys
Markets: ‘(1) the collective bargaining agreement must contain
mandatory arbitration procedures; (2) the strike to be enjoined
must
be
over
principles
of
an
arbitrable
equity”
must
grievance;
warrant
the
and
(3)
“ordinary
injunctive
relief.’”
Verizon New England, 651 F.3d at 184 (quoting Nat’l Elevator
Indus., Inc. v. Int’l Union of Elevator Constructors, 776 F.2d
374,
376-77
(1st
Cir.
1985)).
In
determining
whether
such
relief is warranted, this Court must remain mindful that the
Boys Markets exception “must be tightly confined.
Injunctions
of this sort are, quite appropriately, a rarity.
Unless some
plain necessity exists, the escape hatch remains shut.”
Indep.
Oil, 864 F.2d at 929.
The first two requirements are met in this case.
the
parties
arbitration
do
not
dispute
procedures.
that
Second,
5
the
this
CBAs
contain
Court
finds
First,
mandatory
that
the
concerted refusal to work 6 is over the Hospital’s position that
it is entitled to lay off Union members, which is an arbitrable
issue.
At the evidentiary hearing, District 1199 disputed, for
the first time, that the concerted refusal to work in this case
was over the planned layoffs.
United
Steelworkers
of
Relying on Buffalo Forge Co. v.
Am.,
428
U.S.
397
(1976),
and
Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n,
457 U.S. 702 (1982), the Union strained to portray its decision
to
issue
the
notice
as
stemming
from
Quinn’s
long-held
philosophical and moral opposition to layoffs in general.
There
was some testimony, in addition to Quinn’s own, supporting this
theory.
Joseph
Roda,
the
Associate
6
Vice
President
of
Human
District 1199 contends that, because its members have a
right to voluntarily refuse overtime (except in emergencies)
under both Rhode Island law, see R.I. Gen. Laws § 23-17.20-3,
and the CBAs, a refusal to work overtime cannot violate the nostrike provision or support the issuance of a Boys Markets
injunction.
(Pl.'s Opp'n 1-4, ECF No. 12.)
This Court
disagrees.
The no-strike provision of the CBAs provides that
“[n]o employee shall engage in any strike, sit-down, slow-down,
cessation or stoppage or interruption of work, boycott, or other
interference with the operations of the institution” (Hr’g Ex.
A, Art. XXIII(1)), and the “concerted refusal to work” promised
by the Union’s notice (Hr’g Ex. D), qualifies as interference
with the operations of the Hospital.
See also Elevator Mfrs.’
Ass’n of N.Y., Inc. v. Local 1, Int’l Union of Elevator
Constructors, 689 F.2d 382, 386 (2d Cir. 1982) (“Ordinarily a
concerted refusal to perform ‘voluntary’ overtime work amounts
to a ‘strike’ within the meaning of the National Labor Relations
Act, 29 U.S.C. § 142(2), which defines a ‘strike’ as including
any ‘concerted stoppage of work [or any] concerted slowdown or
other concerted interruption of operations by employees.’”);
Kone, Inc. v. Local 4, Int’l Union of Elevator Constructors, No.
06-10093-DPW, 2006 WL 2987042, at *8-9 (D. Mass. Sept. 27,
2006).
6
Resources for Care New England (“CNE”), testified that, for the
four years that he has known Quinn, Quinn has repeatedly voiced
his
political,
philosophical,
and
personal
objection
to
the
concept of layoffs at the Hospital.
However, the Court is ultimately unpersuaded that Quinn’s
philosophical
and
moral
objection
provided
District 1199’s concerted refusal to work.
the
impetus
for
District 1199, hotly
contesting the Hospital’s position that it was entitled to lay
off Union members, sought injunctive relief in this Court to
forestall the layoffs.
When this effort was unsuccessful, the
Union sent the notice to the Hospital within a week of this
Court’s denial of the Union’s motion for a temporary restraining
order.
Moreover, Quinn acknowledged on cross-examination that
the notice was based, at least in part, on the layoffs.
This
history speaks volumes, and it is disingenuous for the Union to
suggest that Quinn’s philosophical beliefs about layoffs are at
the heart of the Union’s planned concerted activity.
Instead,
the Court finds as a fact that the concerted refusal to work was
spurred by an arbitrable grievance.
The
third
condition
for
the
issuance
of
Boys
Markets
injunctive relief — that ordinary principles of equity warrant
such relief — is more problematic for the Hospital. 7
7
398
Because
In Boys Markets, Inc. v. Retail Clerk’s Union, Local 770,
U.S. 235, 254 (1970), the Court identified the relevant
7
this Court determines that the Hospital’s showing of irreparable
harm is insufficient, the equitable analysis can begin, and end,
with that issue.
The
See Verizon New England, 651 F.3d at 186.
Hospital
argues
that,
if
nurses
refuse
to
accept
voluntary overtime assignments, it will need to divert patients
to
other
hospitals.
According
to
the
Hospital,
patient
diversion causes three types of irreparable harm: harm to the
Hospital’s reputation; harm to the patients being diverted; and
economic
patients.
harm
in
the
form
of
lost
revenues
from
diverted
However, the Hospital’s evidence — both as to each
type of irreparable harm identified and as to the likelihood
that patient diversion would be necessary — was insufficient.
The Hospital’s evidence on each type of irreparable harm is
weak.
For starters, although the Hospital claimed during oral
argument that it would suffer reputational harm if it needed to
divert patients, there was virtually no evidence presented to
support this assertion.
contrast
to
the
case
This case therefore stands in stark
relied
reputational-harm argument.
Union
of
Elevator
on
by
the
Hospital
for
its
See Kone, Inc. v. Local 4, Int’l
Constructors,
No.
06-10093-DPW,
2006
WL
equitable principles: “whether breaches are occurring and will
continue, or have been threatened and will be committed; whether
they have caused or will cause irreparable injury to the
employer; and whether the employer will suffer more from the
denial of an injunction than will the union from its issuance.”
(quoting Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 228
(1962) (Brennan, J., dissenting)).
8
2987042, at *10 (D. Mass. Sept. 27, 2006) (finding irreparable
harm in the form of damaged customer relationships and goodwill
where
employer
“demonstrated
that
.
.
.
customers
were
dissatisfied with the delay they experienced [as a result of
union’s
concerted
[employer’s]
Hospital
common
action],
competitors
argued
sense,
that
but
and
in
search
reputational
it
one
provided
of
a
harm
no
customer
case
contacted
replacement”).
can
be
law
to
The
presumed
from
support
that
argument.
This Court is unwilling to infer reputational harm
solely
the
on
Barnabas
Hosp.
basis
v.
of
1199
appeals
Nat’l
to
common
Health
&
sense.
Human
Serv.
Cf.
St.
Employees
Union, No. 96-7834, 104 F.3d 350, 1996 WL 518504, at *3 (2d Cir.
Sept. 13, 1996) (holding, in the course of affirming the denial
of a Boys Markets injunction, that hospital failed to establish
irreparable harm from union’s concerted activity – informational
picketing — where hospital claimed that “it is ‘common sense’
that
some
potential
patients
will
not
cross
a
picket
line”;
court determined that hospital’s argument was “insufficient to
lift
[hospital’s]
speculative’
alleged
level”).
This
injury
about
reluctance
is
the
‘remote
reinforced
by
and
the
evidence in this case, which revealed that, from time to time,
the Hospital has diverted patients in the past, including during
labor
disputes.
Notably,
there
9
was
no
evidence
that
the
Hospital suffered any reputational harm as a result of these
past diversions.
Additionally, the evidence on the harm suffered by patients
in the event of diversion was speculative and contradictory.
Angelleen Peters-Lewis, the Hospital’s Senior Vice President for
Patient Care and Chief Nurse, testified that the stress of the
transport to another hospital may be too much for a baby to
survive.
Peters-Lewis also testified that diversion could lead
to the undesirable outcome of splitting up a sick mother and a
sick baby, thereby putting the family unit in crisis.
However,
Mary Beth Taub, nurse manager of the NICU, testified that the
Hospital would not divert any patient where there would be risk
to the patient.
nothing
like
Thus, the evidentiary record in this case is
that
presented
by
the
employer
in
Mediplex
of
Mass., Inc. v. Shalala, 39 F. Supp. 2d 88 (D. Mass. 1999), upon
which the Hospital relies.
case
that
did
not
involve
See id. at 98-100 (finding, in a
a
labor
dispute,
irreparable
harm
would result from the termination of a nursing facility’s status
as a provider of medical services under Medicare and Medicaid
because
the
injunction
nursing
with
facility
“extensive
supported
evidence”
its
that
request
showed
for
that
termination of status would result in closure of the facility
and
the
facilities
accompanying
and
that
transfer
the
of
transfers
10
the
would
residents
to
result
“transfer
in
other
trauma” for many of the frail and elderly patients).
Moreover,
Peters-Louis conceded on cross-examination that not all of the
patients in the NICU require Level III care and not all of the
patients in the LDR require Level IV care, the highest levels of
care
that
provide.
the
NICU
and
LDR,
respectively,
are
authorized
to
In the event that a patient requiring less than the
maximum level of authorized care is diverted from the NICU or
LDR, the patient can be transferred locally to a hospital in
this state, thereby minimizing the transport time.
Finally,
although the Hospital has needed to divert patients in the past,
neither Peters-Louis nor any other witness gave any examples of
past
diversions
that
posed
a
health
risk
to
the
diverted
patients.
The Hospital’s evidence on the economic harm from patient
diversion is no better.
Robert Pacheco, the Hospital’s Vice
President of Finance, testified on the reimbursement structure
for the NICU and LDR.
Although Pacheco related that the level
of uncompensated care in these departments was minimal because
of the effectiveness of the Hospital’s financial counselors, he
did not quantify that amount.
Similarly, Pacheco testified that
the Hospital will lose revenue if the Hospital diverts patients
from the NICU and LDR, but he did not provide any monetary
figures
receives
for
for
the
average
patients
that
reimbursements
it
11
treats
in
that
the
the
NICU
Hospital
and
LDR;
consequently, this Court has no baseline by which to gauge the
amount
of
diverts
lost
a
revenue
patient.
that
the
Moreover,
Hospital
because
may
some
incur
of
when
the
it
local
hospitals to which patients may be diverted are part of the CNE
network of which the Hospital is a member, it is not even clear
that patient diversion will result in net financial losses to
the Hospital (or the parent, CNE) in all cases.
Compounding
evidence
casts
diversion
will
overtime.
these
doubt
gaps
upon
in
the
necessarily
the
Hospital’s
Hospital’s
occur
if
claim
nurses
proof,
that
refuse
to
other
patient
accept
To be sure, Taub testified that she was certain that
diversions would occur if nurses refused to accept voluntary
overtime.
But the evidence demonstrated that the Hospital has
several staffing alternatives available before it must resort to
patient diversion. The Hospital has an array of potential stop
gaps at its immediate disposal.
that
the
Hospital
uses
to
For example, one of the means
address
offering shifts to per diem employees.
staffing
shortfalls
is
Although per diems are
members of the Union, they must accept a certain percentage of
offered
shifts
in
order
to
maintain
their
seniority.
Quinn
testified that the Union’s concerted activity does not encourage
per diems to jeopardize their seniority by refusing shifts; per
diems are only encouraged to refuse to accept overtime hours.
Additionally, there is a “float pool” of nurses available to
12
address staffing shortfalls.
A handful of the nurses in the
float
trained
pool
Independent
are
of
sufficiently
the
float
pool,
to
there
work
is
an
in
NICU. 8
the
additional
nurse
known as a “floater” who is capable of working in the NICU.
Finally,
the
evidence
showed
that,
although
the
Union
is
generally opposed to Taub and the six to eight assistant nurse
managers in the NICU 9 performing the work of nurses in the Union,
the managers could take on additional hours in an effort to make
up some of the staffing shortfall.
Hospital
used
nurse
managers
and
Roda testified that the
assistant
managers
to
fill
vacant shifts in the past.
In addition to these currently available alternatives to
patient
diversion,
alternatives
refusal
to
on
the
the
accept
Hospital
horizon
overtime
in
has
the
endures
two
additional
event
for
that
a
the
staffing
concerted
prolonged
period.
First, the Hospital has recently hired several nurses to work in
the NICU.
Within the last two months the Hospital has posted
twelve NICU positions; eight nurses have already been hired, and
the
Hospital
positions.
is
diligently
working
to
fill
the
remaining
To be sure, a new hire is not able to immediately
8
Peters-Louis testified that two or three nurses in the
float pool could work in the NICU.
Taub testified that there
were four nurses in the float pool who were capable of working
in the NICU.
9
Peters-Louis testified that the NICU had eight assistant
nurse managers, while Taub testified that there were six.
13
join the ranks of NICU nurses.
To qualify for work in the NICU,
a new hire must complete a three to six month training program
or orientation.
Peters-Louis was unsure of the training time
remaining for the eight new hires because she was uncertain of
their hire dates.
In any event, once these new nurses become
NICU qualified, they will relieve some of the staffing pressure
resulting
from
overtime
refusal.
Second,
the
evidence
demonstrated that the Hospital has used temporary nurses from a
staffing agency in the past.
Although the evidence indicated
that it typically takes six to nine months for a staffing agency
to obtain temporary nurses, the Hospital has not made any effort
to contact a staffing agency to determine the current lag time
for securing temporary nurses.
While the Union opposes the use
of such temporary nurses, it remains as an alternative to the
Hospital
in
the
event
that
the
concerted
activity
lasts
for
several months.
Moreover, in the event that, because of a large uptick in
the
patient
census,
a
combination
of
the
above-mentioned
staffing alternatives is insufficient to care for the Hospital’s
patient population at any given time, the Hospital might have,
depending on the particular circumstances, the statutory right
to
mandate
subsides.
employees
See
“[u]nforeseeable
R.I.
to
work
Gen.
emergent
overtime
Laws
§
the
emergency
23-17.20-2(7)
(defining
circumstance”
14
until
as
“an
unpredictable
occurrence
relating
to
health
care
delivery
that
requires
immediate action, and which shall include . . . an irregular
increase
in
patient
census,
or
an
irregular
increase
in
the
number of employees not reporting for predetermined scheduled
work shifts”); id. § 23-17.20-3(d) (permitting a hospital to
require a nurse to accept overtime work “in the case of an
unforeseeable emergent circumstance when: (1) the overtime is
required only as a last resort and is not used to fill vacancies
resulting from chronic short staffing; and (2) the employer has
exhausted reasonable efforts to obtain staffing”).
that,
if
the
circumstances
Hospital
was
facing
a
satisfying
the
statutory
Quinn agreed
staffing
emergency
criteria,
the
would be permitted to mandate overtime.
in
Hospital
Indeed, the Hospital
has recently mandated overtime for nurses, and the Union did not
contest
the
circumstances.
Hospital’s
authority
to
do
so
in
those
Quinn also related that he is not aware of any
situation when a nurse refused to accept overtime mandated by
the Hospital, and he testified that the Union’s position with
respect to mandated overtime is to “work now, grieve later.”
While
the
evidence
made
clear
that
none
of
these
alternatives were ideal, the Hospital has failed to show that a
combination of these alternatives will not adequately assuage
the shortfall from the refusal to accept voluntary overtime to
the point of creating irreparable harm.
15
It remains to be seen
whether the Hospital can effectively utilize these options to
relieve
any
staffing
concerns
that
arise
from
the
concerted
activity, but, at this stage, the presence of these alternatives
renders the Hospital’s claim that patient diversion will occur
overly speculative. 10
For all these reasons, although the Hospital has shown that
the refusal to accept voluntary overtime will make scheduling in
the NICU and LDR more challenging for the Hospital, this Court
concludes
that
the
Hospital
has
not
supported
irreparable harm with enough evidence.
its
claims
of
However, in the event
that the Hospital reasonably believes that it has evidence of
irreparable
reputational
harm
flowing
from
patient
diversions
that have occurred or are likely to occur or reasonably believes
that
subsequent
events
lend
more
concrete
support
to
the
Hospital’s position that irreparable harm will occur as a result
of
the
precludes
Union’s
the
concerted
Hospital
from
activity,
returning
nothing
to
this
in
this
Court
to
Order
seek
injunctive relief.
10
It is also significant that, although the Hospital has
ten different departments that could conceivably be affected by
the concerted refusal to accept overtime, the Hospital has
offered evidence on the effect the concerted activity would have
on only two departments: the NICU and LDR. There is no basis in
the record to conclude that the effect on the other departments
would be the same or similar to that felt in the NICU and LDR.
In any event, for reasons already explained, the evidence is
insufficient to establish irreparable harm in either of these
two units.
16
III. Conclusion
For the reasons articulated above, this Court determines
that
the
Hospital
irreparable
harm.
failed
to
present
Accordingly,
its
sufficient
motion
for
evidence
a
of
temporary
restraining order is DENIED. 11
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: March 27, 2015
11
The Hospital’s motion appears to seek only a temporary
restraining order.
(Def.’s Mot., ECF No. 11-1.)
However, the
only count of the Hospital’s counterclaim seeks both a temporary
restraining order and a preliminary injunction.
(Answer &
Counterclaim
7-9,
ECF
No.
9.)
Because
a
party’s
characterization of the injunctive relief sought is not
determinative and because this Court has held an evidentiary
hearing and thoroughly determined the facts and examined the
law, this Court treats the Hospital’s motion as one for a
temporary restraining order and a preliminary injunction and
denies both forms of injunctive relief.
See Fideicomiso De La
Tierra Del Caño Martín Peña v. Fortuño, 582 F.3d 131, 133-34
(1st Cir. 2009) (per curiam); Maine Cent. R.R. Co. v. Bhd. of
Maint. of Way Employees, 652 F. Supp. 40, 41 n.1 (D. Me. 1986)
(treating employer’s motion for temporary restraining order
filed against union as a motion for preliminary injunction where
union received notice of employer’s motion and a hearing was
held).
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?