National Nurses Organizing Committee v. MH Hospital Manager, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:23-cv-00321-MR-WCM

NATIONAL NURSES )

ORGANIZING COMMITTEE, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

MH HOSPITAL MANAGER, LLC, )

)

Defendant. )

_______________________________ )

THIS MATTER is before the Court on the parties’ cross Motions for

Summary Judgment [Docs. 9, 12].

I. PROCEDURAL BACKGROUND

On November 3, 2023, Plaintiff National Nurses Organizing Committee

(“Plaintiff”) filed this action against Defendant MH Hospital Manager, LLC

(“Defendant”) under Section 301(a) of the Labor Management Relations Act,

29 U.S.C. § 185(a) and Section 10 of the Federal Arbitration Act, 9 U.S.C.

§ 10. [Id.]. The Plaintiff seeks to vacate an arbitration award on the grounds

that it was not in accordance with the parties’ collective bargaining

agreement (“CBA”). [Id.].

On December 4, 2023, MH Hospital Manager, LLC, filed an answer

and a counterclaim against National Nurses Organizing Committee, seeking

to confirm and enforce the arbitration award. [Doc. 4]. On February 7, 2024,

the parties both filed Motions for Summary Judgment. [Docs. 9, 12]. On

February 28, 2024, the parties both filed their Responses in Opposition to

each’s Motion. [Docs. 14, 15]. On March 13, 2024, the parties both filed

their Replies in Support of their Motions. [Docs. 16, 17].

Having been fully briefed, this matter is now ripe for disposition.

II. STANDARD OF REVIEW

Judicial review of arbitral awards in the collective bargaining context is

“among the narrowest known to the law.” Union Pac. R. Co. v. Sheehan,

439 U.S. 89, 91 (1978). The court is not entitled to decide the merits of the

dispute. Rather, “if an arbitrator is even arguably construing or applying the

contract and acting within the scope of his authority, the fact that a court is

convinced he committed serious error does not suffice to overturn his

decision.” Major League Baseball Ass’n v. Garvey, 532 U.S. 504, 509 (2001)

(per curiam) (internal quotations omitted). Nor is the court permitted to

second-guess factual determinations. “When an arbitrator resolves disputes

regarding the application of a contract, and no dishonesty is alleged, the

arbitrator’s ‘improvident, even silly, factfinding’ does not provide a basis for

a reviewing court to refuse to enforce the award.” Id. (quoting United

Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 39 (1987)). The

rationale behind this deference to the arbitrator is that it is the arbitrator’s

interpretation of the facts and the agreement that the parties bargained for,

so it is the arbitrator’s ruling that the parties should get, so long as the

arbitrator “did his job.” See Mountaineer Gas Co. v. Oil, Chem. & Atomic

Workers Int’l Union, 76 F.3d 606, 608 (4th Cir. 1996); United Steelworkers

of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960).

The only circumstance in which the court may vacate an arbitral award

on the merits is “when the arbitrator strays from interpretation of the

agreement and effectively ‘dispense[s] his own brand of industrial justice.”’

Garvey, 532 U.S. at 509 (quoting Enterprise Wheel & Car, 363 U.S. at 597

(alterations in original)). In the Fourth Circuit’s words, “we may vacate an

arbitrator’s award only if it ‘violates clearly established public policy, fails to

draw its essence from the collective bargaining agreement, or reflects merely

the arbitrator’s personal notions of right and wrong.”’ Yuasa, Inc. v. Int’l

Union of Electronic, Electrical, Salaried, Machine & Furniture Workers, 224

F.3d 316, 321 (4th Cir. 2000) (quoting Champion Int’l Corp. v. United

Paperworkers Int’l Union, 168 F.3d 725, 729 (4th Cir. 1999)).

The central consideration in determining whether the award “drew its

essence” from the contract is the text of the agreement. See Mountaineer

Gas, 76 F.3d at 608. Thus, “[w]hen determining whether the arbitrator did

his job, [the] court examines: (1) the arbitrator’s role as defined by the CBA;

(2) whether the award ignored the plain language of the CBA; and (3)

whether the arbitrator's discretion in formulating the award comported with

the essence of the CBA’s proscribed limits.” Id.

III. FACTUAL BACKGROUND

The following facts are not in dispute, except where otherwise noted.

The Plaintiff is a labor union that represents registered nurses

employed at Mission Hospital in Asheville, North Carolina. [Doc. 1: Compl.

at ¶¶ 3-4]. The Defendant operates Mission Hospital and employs registered

nurses that are represented by the Plaintiff. [Id. at ¶ 5]. The parties entered

into a CBA effective July 2, 2021, to July 2, 2024. [Id. at ¶ 9]. Article 40,

Section 2 of the collective bargaining agreement provides that the hospital

will provide the union with one bulletin board in each break room of each

nursing department as the “sole and exclusive” locations for the union to post

notices on hospital property. [Doc. 1-1: CBA at 60]. The CBA further

specifies:

Each notice shall be signed and dated by the Union

Representative or Nurse Representative posting the

notice. Copies of Union materials to be posted shall

be delivered to the Human Resources Department

forty-eight (48) weekday hours prior to being posted.

Undisputed material to be posted will be limited to

appropriate Union business and will not contain any

inflammatory material or political material related to

a political party, politician or public election. No

materials will be posted that are critical of any

Hospital Registered Nurse or of any policy relating to

patient care or the delivery of patient care at the

Hospital. If the Hospital does not agree that the

posting is “appropriate” as described above, the

document will not be posted unless and until the

dispute is resolved as provided below.

In the event of a dispute as to the appropriateness of

a posting, the parties shall first meet, in person or by

phone, and discuss the matter in an effort to resolve

the dispute amongst themselves. Second, if the

dispute is not resolved within twenty-four (24) hours,

the parties shall engage the services of a mutually

agreeable arbitrator and shall participate in

expedited arbitration. The arbitrator shall hear and

rule on the dispute within twenty-four (24) hours

(forty-eight (48) hours from the inception of the

dispute) and shall have the authority to fashion an

appropriate remedy including the revocation of the

posting privilege. The arbitration hearing may be

conducted telephonically if necessary. The parties

shall each bear their own costs and fees incurred in

preparing and presenting their case to the arbitrator.

The charges, fees and expenses of the arbitrator

shall be borne and paid for by the losing party.

[Id.].

The CBA also contains provisions for when and how union

representatives may access the hospital, and how disputes over such

access are to be resolved. [Id. at 60-63]. Specifically, the CBA states:

The Hospital shall allow duly authorized Union

Representatives to visit the Hospital to ascertain

whether or not this Agreement is being observed and

to assist in adjusting grievances, to post literature in

accordance with Section 2, or to distribute literature

during conference room events in accordance with

Section 4 and within the confines of the conference

room (with the Union expressly agreeing to clean up

all of its property at the conclusion of the event). . . .

If the Hospital believes a Union Representative has

violated the access privileges identified in this Article,

the Hospital may revoke that Union Representative’s

access privileges (but not the Union’s access

privileges) pending resolution of the dispute. If the

Union wishes to challenge this action, they may

advance the issue directly to arbitration under Article

1, Arbitration, which, if the Union requests, will be

conducted within forty-eight (48) hours of the

inception of the dispute.

[Id.].

In December 2022, a dispute arose about certain flyers that the

Plaintiff’s nurse representatives distributed in the hospital. [Doc. 1 at ¶ 15].

The flyers were posted in the Cardiovascular Intensive Care Unit (“CVICU”)

breakroom and concerned a vote of no confidence regarding the CVICU

Nurse Manager; the fliers also included the name, telephone number, and

email address of union representative Brian Walsh (“Walsh”). [Doc. 4: Def.’s

Countercl. at ¶¶ 13-14]. The Defendant contended that the Plaintiff’s posting

of the flyers violated the CBA. [Doc. 1 at ¶ 15]. The Defendant accordingly

revoked Walsh’s hospital access privileges for a period of 30 days. [Doc. 4

at ¶ 16].

On January 17, 2023, three days before Walsh’s 30-day access ban

was set to expire, the other designated union representative, Neil Pettit

(“Pettit”), requested access to the hospital for the following day, January 18,

2024. [Id. at ¶ 17]. The Defendant believed that Pettit was also involved in

the same access violations as Walsh,1 and therefore denied him access until

the same 30-day period expired on January 20, 2023. [Id. at ¶¶ 18-19].

The Plaintiff then submitted a grievance requesting expedited

arbitration challenging the revocation of access privileges for both Walsh and

Pettit. [Doc. 1 at ¶ 17]. The parties selected Edward M. Davidson as the

arbitrator, and an arbitration hearing was held on July 28, 2023. [Id. at ¶ 18].

The issue submitted to the arbitrator was: “Did the Employer violate the

Collective Bargaining Agreement Article 40, Section 5 by revoking access to

the Employer’s property for Union Representatives Brian Walsh and Neil

Pettit in December 2022 and January 2023 respectively? If so, what should

be the remedy?” [Id. at ¶ 19].

1 The Plaintiff denies that Pettit was involved in the access violations. [Doc. 1 at ¶ 16].

The arbitrator found that Walsh “assisted in the development, cost

coverage and production of the flyers,” and that the Plaintiff union’s nurse

representatives posted flyers in areas not permitted under the CBA. [Doc.

1-2 at 8]. Therefore, the arbitrator found that the Defendant was not in

violation of the CBA in denying hospital access to Walsh. [Id. at 8-9].

However, the arbitrator found that Pettit was not proven to be involved in

posting the flyers, and therefore, denial of access to Pettit was in violation of

the CBA. [Id.].

The parties now both move for summary judgment, with the Plaintiff

seeking to vacate the award and the Defendant seeking to enforce the

award. The Defendant also moves for an award of attorneys’ fees.

III. DISCUSSION

A. The Arbitrator’s Award

As discussed above, the Court’s review of an arbitration award is

limited and essentially looks to whether the award drew its essence from the

CBA. See Mountaineer Gas, 76 F.3d at 608. “[A]n award fails to draw its

essence from the agreement if an arbitrator has ‘based his award on his own

personal notions of right and wrong,’” or if it “‘disregards or modifies

unambiguous contract provisions.’” Patten v. Signator Ins. Agency, Inc., 441

F.3d 230, 235 (4th Cir. 2006) (first quoting Upshur Coals Corp. v. United

Mine Workers, Dist. 31, 933 F.2d 225, 229 (4th Cir.1991); then quoting Mo.

River Serv., Inc. v. Omaha Tribe of Neb., 267 F.3d 848, 855 (8th Cir. 2001))

(alterations omitted).

“When the parties bargain for an arbitrator’s construction of a contract,

‘the courts have no business overruling him because their interpretation of

the contract is different from his.’” U.S. Postal Serv. v. Am. Postal Workers

Union, AFL-CIO, 204 F.3d 523, 527 (4th Cir. 2000) (quoting United

Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599

(1960)). The arbitrator may not ignore the plain language of the contract, but

given that the parties have 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. United Paperworkers Int’l Union,

AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987).

Here, the Plaintiff argues that the arbitrator sustained a revocation of

access without finding any violation of the CBA’s access provisions, and

therefore the arbitrator’s decision did not draw its essence from the CBA and

must be vacated. [Doc. 13 at 16]. The Defendant argues that the arbitrator

properly interpreted and applied the CBA. [Doc. 10 at 10]. The key issue is

whether “access privileges” as used in Article 40, Section 5 of the CBA refers

to all of the privileges enumerated in Article 40, or only those listed under

“Access for Union Representatives” in Section 3.

The parties dispute the arbitrator’s interpretation of “access privileges”

in the CBA. The term is not defined in the CBA, but rather, in the relevant

provision, simply refers to “the access privileges identified in this article.” The

arbitrator interpreted this to mean all of the privileges in Article 40, including

the use of bulletin boards by the union, hospital access for union

representatives, and the use of conference rooms by the union. Even if this

Court were to find that the arbitrator misread the CBA, which it does not so

find, the arbitrator’s interpretation of the CBA certainly draws its essence

from the CBA and does not ignore the plain meaning of “access privileges”

or any other provision therein.

Indeed, most of the sections in Article 40 involve some kind of “access,”

not just Section 3. [Doc. 1-1 at 60-62]. For example, Section 1 gives union

representatives access to nurse orientation rooms for the purpose of

presenting union information to new employees. [Id. at 59]. Section 2

provides that the hospital will provide the union with a bulletin board in each

break room as the exclusive place that union members can post union

notices. [Id. at 60]. Section 4 dictates under what conditions the hospital will

give the union access to conference or meeting rooms within the hospital.

[Id. at 62]. All of these provisions define the various ways that the union may

“access” the hospital. As such, the award does not disregard or modify any

provision of the CBA, and instead reasonably interprets the relevant

provisions.

For the foregoing reasons, the Court will grant the Defendant’s motion

for summary judgment and affirm the arbitration award.

B. Attorneys’ Fees

“Although an award of attorney’s fees is not specifically authorized by

the Labor Management Relations Act, fees may be awarded against a party

who unjustifiably refuses to abide by an arbitrator’s award.” Media Gen.

Operations, Inc. v. Richmond Newspapers Pro. Ass’n, 36 F. App’x 126, 133

(4th Cir. 2002). Where a challenge to an arbitration award “goes to . . .

whether [the] award draws its essence from the contract, the standard for

assessing its justification is whether it has any arguable basis in law. Under

this standard, such a challenge is justified unless it literally has no reasonably

arguable legal support.” Id. at 133-34 (quoting United Food & Commercial

Workers v. Marval Poultry Co., 876 F.2d 346, 351 (4th Cir.1989)) (internal

quotations and citations omitted).

In its motion, the Defendant requests attorneys’ fees on the grounds

that the Plaintiff’s challenge has no arguable basis in law. The Plaintiff

argues that its position is supported by Fourth Circuit precedent, but that

even if this Court finds against it on the merits, it cannot be said that its

position has no arguable legal support.

A reasonable interpretation of the CBA and the term “access

privileges” could have plausibly led to a different result. See Clinchfield Coal

Co. v. Dist. 28, United Mine Workers of Am. & Loc. Union No. 1452, 720 F.2d

1365, 1369 (4th Cir. 1983). Therefore, under the “relatively lenient” standard

for “any arguable basis in law,” the Plaintiff has shown that its challenge to

the award was justified. United Food & Com. Workers, Loc. 400 v. Marval

Poultry Co., 876 F.2d 346, 351 (4th Cir. 1989). For the foregoing reasons,

the Court declines to award the Defendant attorneys’ fees.

ORDER

IT IS THEREFORE ORDERED that the Defendant’s Motion for

Summary Judgment [Doc. 9] is GRANTED, and the Plaintiff’s Motion for

Summary Judgment [Doc. 12] is DENIED. The Plaintiff’s action is hereby

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the Defendant’s request for attorneys’

fees is DENIED.

The Clerk is respectfully directed to enter a judgment consistent with

this Order and terminate this civil action.

IT IS SO ORDERED.

Signed: March 25, 2024

Martifi Reidinger ey

Chief United States District Judge lly

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