MultiCare Health System v. Washington State Nurses Association

Filing 33

ORDER Requesting Additional Briefing and Renoting Motions by Judge Benjamin H. Settle: 15 MOTION for Summary Judgment to Confirm Arb. Award and 29 MOTION for Summary Judgment to Vacate Arbitration Award are RENOTED to 10/7/2016. (TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MULTICARE HEALTH SYSTEM,

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Plaintiff,
v.

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WASHINGTON STATE NURSES
11 ASSOCIATION,

CASE NO. C16-5053BHS
ORDER REQUESTING
ADDITIONAL BRIEFING AND
RENOTING MOTIONS

Defendant.

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This matter comes before the Court on Defendant Washington State Nurses
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Association’s (“WSNA”) motion for summary judgment to confirm award (Dkt. 15) and
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Plaintiff MultiCare Health System’s (“MultiCare”) motion for summary judgment to
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vacate award (Dkt. 29). The Court has considered the pleadings filed in support of and in
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opposition to the motions and the remainder of the file and hereby requests additional
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briefing as follows:
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I. PROCEDURAL HISTORY
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On January 21, 2016, MultiCare filed a complaint against WSNA seeking to
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vacate an arbitrator’s decision and award. Dkt. 1 (“Comp.”).
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On May 12, 2016, WSNA filed a motion for summary judgment to confirm the

2 decision. Dkt. 15. On May 31, 2016, MultiCare responded. Dkt. 23. On June 6, 2016,
3 WSNA replied. Dkt. 26.
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On June 16, 2016, MultiCare filed a motion for summary judgment to vacate the

5 decision. Dkt. 29. On July 5, 2016, WSNA responded. Dkt. 31. On July 8, 2016,
6 MultiCare replied. Dkt. 32.
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II. FACTUAL BACKGROUND

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In October 2010, WSNA filed a complaint against MultiCare asserting that

9 Registered Nurses (“RNs”) at Tacoma General Hospital (“TGH”) were not properly
10 compensated for missed rest breaks. Comp. at ¶ 9. In late 2012, the Washington
11 Supreme Court held that, under certain circumstances, RNs must be compensated at time
12 and a half for missed breaks. Id.
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On September 12, 2013, the parties entered into a settlement agreement. Id., Exh.

14 B (“Settlement”). MultiCare agreed to “adopt mechanisms, practices or policies that
15 assure each Represented Nurse is relieved of patient care duties for a 15-minute rest
16 period every four hours of work.” Id. at 1.
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MultiCare and WSNA also entered into a Collective Bargaining Agreement

18 (“CBA”) effective June 2013 through December 2015. Dkt. 1, Exh. A. Relevant to this
19 matter, the CBA provides that “[a]ll nurses shall be allowed a paid rest period of fifteen
20 (15) minutes for each four (4) hours of working time.” Id. § 8.5.
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On April 11, 2014, WSNA filed the grievance underlying this matter. Comp. at ¶

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The parties were unable to resolve the issue, and WSNA requested arbitration

2 under Article 14.3 of the CBA. Id. The arbitrator held hearings in phases and issued a
3 final decision on December 28, 2015. Id., Exh. F. Because the parties were unable to
4 agree on an issue statement, the arbitrator defined the issues as follows:
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Did the employer violate the settlement agreement by failing to
adopt and provide mechanisms, practices or policies procedures that would
give the opportunity and means for the represented nurses to take their rest
breaks as provided for in the agreement? If so, what is the appropriate
remedy?

8 Id. at 2.
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With regard to the liability portion of the parties’ dispute, MultiCare appears to

10 concede it has failed to implement an adequate system for rest breaks. MultiCare opened
11 the hearing by stating that “the evidence will show that [it] takes very seriously the
12 importance of nurses getting rest and relief and that it does have practices and policies in
13 place to ensure that they do so.” Dkt. 1, Exh. C at 19:2-5. WSNA disagreed and
14 specifically contests MultiCare’s use of a system commonly referred to as the “buddy
15 system.” This system essentially requires a separate on-duty nurse to cover the needs of
16 the patients assigned to the nurse who is on break. Thus, the buddy nurse will assume the
17 obligations and patient care duties of the nurse on break. The evidence shows that this
18 system does not provide the required rest breaks in some units of the hospital. For
19 example, the arbitrator found as follows:
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The employer argues that the buddy system is an acceptable way for
nurses to receive their rest breaks. Apparently, the employer is satisfied
with a hospital-wide 13% missed breaks and considers this number to
equate to a rare occurrence with the required monetary penalty of overtime
pay.

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Id. at 30. Moreover, “[t]he majority of missed breaks (88.76%) occurred in either the
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Emergency Department (60.59%) or the Birth Center (28.17%).” Id. at 20. MultiCare
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does not appear to challenge the arbitrator sustaining the grievance on these facts.
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MultiCare, however, challenges the arbitrator’s remedies. In addition to
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sustaining the grievance, the arbitrator directed as follows:
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2. In order to assure that each nurse receives the rest breaks
established by the Settlement Agreement, the hospital shall, no later than
the pay period nearest to January 15, 2016, cease from using the buddy
system as a means to provide rest breaks.
3. When determining future schedules, each unit or department, for
each shift, shall staff, schedule, and assign a nurse to serve as a reserve or
float nurse with the precise assignment of relieving other scheduled nurses
for their authorized breaks. Such schedules shall be effective no later than
the pay period nearest to January 15, 2016.
4. The staffing committee, or a sub-committee comprised of an equal
number of represented nurses and nurse management, shall, within 30 days
of the date of this decision, convene to discuss and determine a mutually
acceptable process to resolve the issue(s) raised herein regarding
compliance with the Settlement Agreement. Any process or method shall
not violate or change the established staffing plan as it relates to the ratio of
nurse to patient. The committee shall meet as frequently as necessary to
reach a decision.
5. In the event the staffing committee or sub-committee fails to
arrive at a mutually acceptable solution to the issue(s) by June 30, 2016, the
parties will each submit their last, best position to the undersigned, with
their rationale in support of their position, either in writing or by
presentation in a hearing. The undersigned shall choose one of the two
positions, without modification. Such choice shall be final and binding on
the parties. Costs of this process will be shared equally.
6. The undersigned shall retain jurisdiction to resolve any dispute
arising from the implementation of this Decision and Award.

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III. DISCUSSION
Upon review of the briefs, the Court requests additional briefing on the scope of

3 an arbitrator’s potential remedy. Although “an arbitrator’s remedy also deserves
4 deference, . . . [it] must still draw its essence from, and is therefore limited by, the
5 collective bargaining agreement.” Phoenix Newspapers, Inc. v. Phoenix Mailers Union
6 Local 752, Int'l Bhd. of Teamsters, 989 F.2d 1077, 1081–82 (9th Cir. 1993) (citing United
7 Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 41 (1987)). The arbitrator’s
8 solution should “be rationally derived from some plausible theory of the general
9 framework or intent of the agreement.” Id. (citing Desert Palace, Inc. v. Local Joint
10 Executive Bd., 679 F.2d 789, 793 (9th Cir. 1982)). “The rational relationship between the
11 remedy and the agreement must be ‘viewed in light of [the agreement’s] language, its
12 content, and any other indicia of the parties’ intention.’” Id. (quoting Desert Palace, 679
13 F.2d at 792).
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MultiCare argues that one important limitation on an arbitrator’s remedy is based

15 on prior negotiations. “The words in such an agreement must be understood in the
16 context of the history of the negotiations which gave rise to their inclusion.” Syufy
17 Enterprises v. N. California State Ass’n of IATSE Locals, 631 F.2d 124, 126 (9th Cir.
18 1980). “[E]vidence of prior negotiations is essential to ascertain the rights and
19 obligations of the parties under the current contract.” George A. Hormel & Co. v. United
20 Food & Commercial Workers, Local 9, AFL-CIO, 879 F.2d 347, 352 (8th Cir. 1989).
21 Moreover, “there is a strong policy not to impose by judicial implication a right that was
22 purposely deleted during the bargaining process.” Id. (citing Carbon Fuel Co. v. United

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1 Mine Workers, 444 U.S. 212, 221–22 (1979)). Thus, courts have vacated remedies that
2 an arbitrator has imposed when the particular remedy was explicitly rejected by a party
3 during prior negotiations. See, e.g., Phoenix Newspapers, 989 F.2d at 1082 (vacating
4 arbitrator’s award when employer rejected same remedy in prior collective bargaining
5 agreement negotiations); George A. Hormel, 879 F.2d at 352 (vacating award for
6 numerous reasons, including the fact that “the right granted by the arbitrator’s decision is,
7 essentially, one expressly rejected during an earlier collective bargaining process.”).
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In this case, MultiCare argues that the arbitrator included two remedies that were

9 specifically rejected during prior negotiations. First, MultiCare asserts that increasing
10 staffing was explicitly rejected during negotiations of the settlement. Dkt. 29 at 4–5. The
11 Court agrees because (1) WSNA does not dispute this assertion and (2) even the
12 arbitrator found that “MultiCare, according to testimony, was adamant [during settlement
13 negotiations] that they would not agree to anything that would mandate increased
14 staffing.” Decision at 7. The record, however, does not adequately reflect what
15 “increased staffing” entails. In its post-arbitration brief, MultiCare seems to imply that
16 increase staffing means hiring more nurses. Dkt. 4 at 50 (“Ordering increased staffing
17 would accomplish little, given that TGH is already trying to hire more staff: but has faced
18 difficulty in doing so due to a shortage of RNs.”). Yet, WSNA, in its post-arbitration
19 brief, proposed the remedy of “offering overtime to incentivize nurses to sign up for extra
20 shifts . . . .” Id. at 124. The record does not reflect whether the term “increase staffing”
21 means only hiring more nurses or whether TGH could offer current staff additional shifts
22 at overtime pay without increasing staffing. Moreover, if this term is ambiguous, is it

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1 within the arbitrator’s authority to interpret the term in such a way as to impose the
2 remedy of ordering TGH to accept WSNA’s proposed remedy of additional overtime
3 shifts? The Court requests the parties’ positions on these issues.
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Second, MultiCare asserts that discontinuing use of the buddy system was

5 explicitly rejected during negotiating the settlement. Dkt. 29 at 4–5. The Court agrees
6 because (1) WSNA does not dispute the assertion and (2) even the arbitrator found that
7 “MultiCare’s unwavering position during the negotiations for the terms of the Settlement
8 Agreement was to continue to be able to use the buddy system for purposes of providing
9 rest breaks.” Decision at 28. Yet, continued use of the buddy system results in 13% of
10 missed breaks throughout the hospital, with 60.59% of missed breaks in one department
11 alone. The arbitrator appears to have rejected MultiCare’s position that these constitute
12 “rare” occurrences as set forth in the settlement agreement. Based on this assumed
13 interpretation, the arbitrator enjoined MultiCare from using the buddy system in any unit
14 of the hospital. Although MultiCare argues the arbitrator exceeded his authority in
15 imposing a remedy, it appears that there is no other adequate remedy at law.
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Based on the current record, the Court assumes that the heart of the nurses’

17 grievance was MultiCare’s use of the buddy system. The Court is unable to locate
18 WSNA’s grievance that was submitted to arbitration. However, based on MultiCare’s
19 concession that “[t]here are no past damages that have not already been
20 contemporaneously paid to those RNs who have missed rest breaks,” Dkt. 4 at 49, the
21 Court assumes that the nurses’ basis for the grievance was that they (1) want their breaks
22 and (2) are forced to work in a system that does not allow these breaks. Yet, MultiCare

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1 refuses to discontinue use of the buddy system and has failed to revise the system so that
2 missed rest breaks are rare. MultiCare argued that “there is nothing inherently faulty
3 with the buddy system, and it provides a highly effective and flexible option for many
4 units.” Dkt. 4 at 50. The Court agrees to a certain extent because the record does reflect
5 that “NICU RNs — who work more hours than any other unit at TGH and who work
6 with some of the most critical patients in the Hospital — receive more than 97% of their
7 rest breaks by utilizing the buddy system.” Id. The Court’s first question, therefore, is
8 whether the arbitrator exceeded his authority by imposing a hospital-wide ban on a
9 system that is 97% effective in some units. In other words, did the arbitrator impose his
10 own brand of industrial justice by precluding the employer’s complete use of a system
11 that produces the seemingly “rare” result of 3% failure in some units?
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On the other hand, with respect to the units where a significant percentage of

13 breaks are missed, the parties appear to be at an impasse. The record reflects that the
14 parties have been disputing and negotiating revisions to the buddy system for years, and,
15 while it appears to be workable in some circumstances, it appears completely unworkable
16 in other circumstances. Thus, the arbitrator enjoined MultiCare’s use of the system.
17 MultiCare objects to this remedy and, instead, proposed the remedy of imposing the
18 “associated requirement that WSNA and bargaining unit members must cooperate with
19 TGH management to ensure the success of implemented practices.” Dkt. 4 at 51. Such
20 an outright directive from the Court implicates an interesting area of contract law.
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The CBA provides that it “shall be subject to all present and future applicable

22 federal and state laws . . . .” CBA § 17.1. In Washington, equitable relief under the

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1 doctrine of specific performance may be ordered when there is no adequate remedy at
2 law or “in other proper circumstances.” King Aircraft Sales, Inc. v. Lane, 68 Wash. App.
3 706, 713–714 (1993). Although the CBA precludes punitive damages, it appears to be
4 silent on the issue of imposition of equitable relief. Thus, the question arises whether the
5 arbitrator can enjoin MultiCare from using the buddy system in certain units of the
6 hospital because there is no other adequate remedy at law or because it is proper under
7 the circumstances of this matter.
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The Court requests additional briefing on the issues and questions set forth above

9 as well as any other issue that may be relevant.
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IV. ORDER
Therefore, it is hereby ORDERED that the parties may file simultaneous response

12 briefs no longer than twenty pages, no later than September 30, 2016, may file
13 simultaneous reply briefs no longer than ten pages, no later than October 7, 2016, and the
14 Clerk shall renote the parties’ motions for consideration on the Court’s October 7, 2016
15 calendar.
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Dated this 14th day of September, 2016.

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BENJAMIN H. SETTLE
United States District Judge

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