Committee for Recognition of Nursing Achievement v. Lucile Salter Packard Children's Hospital, No. 5:2010cv01633 - Document 60 (N.D. Cal. 2011)
Court Description: AMENDED ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEYS' FEES (AMENDING 59 ). Signed by Judge Jeremy Fogel on March 29, 2011. (jflc3, COURT STAFF) (Filed on 3/29/2011)
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Committee for Recognition of Nursing Achievement v. Lucile Salter Packard Children&#039;s Hospital 1 Doc. 60 **E-Filed 4/29/2011** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION 9 10 11 COMMITTEE FOR RECOGNITION OF NURSING ACHIEVEMENT, 12 Plaintiff, 13 14 15 Case No. 5:10-cv-01633 JF AMENDED1 ORDER2 GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES v. LUCILE SALTER PACKARD CHILDREN’S HOSPITAL, Defendant. 16 17 18 On November 23, 2010, the Court granted the motion of Plaintiff Committee for 19 Recognition of Nursing Achievement (CRONA) to compel Defendant Lucile Salter Packard 20 Children’s Hospital (the Hospital) to arbitrate a grievance pursuant to the arbitration provision in 21 the parties’ collective bargaining agreement (CBA). CRONA now seeks to recover the 22 attorneys’ fees and expenses it incurred as a result of the Hospital’s refusal to submit to 23 arbitration. 24 25 26 27 28 1 The original version of this order, issued on March 28, 2011, did not reflect Plaintiffs’ supplemental declaration of fees and costs incurred by CRONA in litigating this motion. The Court concludes that those expenses were reasonable and should have been included in the original order. This order has been amended to reflect the full fees and costs incurred. 2 This disposition is not designated for publication in the official reports. 1 Case No. 5:10-cv-001633 JF ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (JFLC3) Dockets.Justia.com 1 I. BACKGROUND 2 CRONA and the Hospital are parties to a CBA that includes a grievance procedure 3 culminating in final and binding arbitration of any grievance “involving the application or 4 interpretation” of the CBA. See Agreement Between Lucile Salter Packard Children’s Hospital 5 and Committee for Recognition of Nursing Achievement, Declaration of Laurie J. Quintel, Ex. 6 A. Under the CBA, the Hospital recognizes CRONA as the exclusive bargaining unit of all 7 “[r]egular full and part-time Registered Nurses, including relief and clinic nurses, engaged in the 8 direct provision of patient care for 30% or more of their commitment.” The CBA further 9 provides that “[i]f a Registered Nurse position is removed from the bargaining unit . . . the 10 11 grievance procedure shall be applicable.” Id. at 1-2 (§ 1.3). In February 2009, the Hospital opened the Bass Center for Childhood Cancer and Blood 12 Diseases, which includes various clinics and a day hospital. Some nursing functions that had 13 been performed at the Bass Center Clinics subsequently were transferred to the Bass Center Day 14 Hospital, while others remained at the clinics. Herman Decl.¶ 6-7. Work that the Hospital 15 determined involved “direct patient care” was transferred to the day hospital, and CRONA- 16 represented nurses working in the Bass Center Clinic were “invited to apply for the new 17 relocated positions” at the day hospital; all of the nurses who applied received positions. 18 Tidwell ¶ 7. The Hospital determined that the remaining work in the clinics involved 19 “coordination of care” rather than direct patient care, and it assigned non-represented nurse 20 coordinators to the Bass Center Clinics to perform the remaining functions. Tidwell Decl.¶ 11. 21 Following the transfers, CRONA filed a grievance alleging both that “CRONA positions 22 have been eliminated” in the clinics and that “the patient care duties performed by CRONA 23 nurses who vacated their positions are being performed by non-represented employees, i.e. 24 Nurse Coordinators.” Declaration of Lorie Johnson, Ex. B. The Hospital responded to the 25 grievance with a letter stating that “no CRONA positions have been eliminated and no positions 26 have been vacated.” Johnson Decl., Ex. C. According to the letter, “the duties, and therefore, 27 the positions, were transferred to a different cost center.” Id. The Hospital also contended that 28 the unrepresented status of nurse coordinators in the clinics was not a grievable matter but 2 Case No. 5:10-cv-001633 JF ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (JFLC3) 1 2 instead was a representation issue within the exclusive jurisdiction of the NLRB. Id. The Hospital asserted that CRONA’s claim that “CRONA positions” has been eliminated 3 had no basis in fact, and that its actions could not “even arguably” be characterized as removing 4 CRONA-represented nursing positions from the bargaining unit. It claimed that all of the direct 5 client care duties that previously were performed at the clinics had been transferred to the day 6 hospital. It argued that because the duties of nurse coordinators do not include thirty percent 7 direct patient care no “Registered Nurse positions” remained in the clinics. See Quintel Decl., 8 Ex. A at 74 (§ 31). For its part, CRONA contended that the duties assigned to the nurse 9 coordinators in the Bass Center Clinics traditionally have been performed by CRONA nurses 10 and thus do amount to direct patient care. See Pl.’s Op. to Def.’s Motion for Summary Judgment 11 7-8 n.5. Because the CBA itself contains no definition of “direct patient care,” this Court 12 concluded that it could not say with positive assurance that there is no permissible interpretation 13 of the duties of a “Registered Nurse” that encompasses the actual duties of the nurse 14 coordinators, and accordingly it granted CRONA’s motion to compel arbitration. 15 The Hospital also contended that the parties’ dispute primarily was about whether the 16 CRONA bargaining unit should be expanded to cover nurse coordinators and thus was a 17 representational issue within the primary jurisdiction of the NLRB. The Court determined that 18 the scope of the bargaining unit is defined in the CBA, and that the parties have agreed to 19 arbitrate disputes “involving in the interpretation or application” of that agreement. As a result, 20 the threshold question in the case was not about “determining the appropriate group of 21 employees for the bargaining unit,” but whether the Hospital violated its contractual obligations 22 by assigning CRONA-represented positions to non-represented employees. 23 II. LEGAL STANDARD 24 Ordinarily, the prevailing party in a lawsuit does not collect attorney’s fees absent 25 contractual or statutory authorization. See International Union of Petroleum & Industrial 26 Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428 (9th Cir. 1983). However, a 27 court may award fees if it finds that the losing party “acted in bad faith, vexatiously, wantonly, 28 or for oppressive reasons.” Id. (quoting Alyeska Pipeline Service Co. v. Wilderness Society, 421 3 Case No. 5:10-cv-001633 JF ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (JFLC3) 1 U.S. 240, 258-59 (1975)). Because of federal policy favoring arbitration of labor disputes, the 2 Ninth Circuit has held that “bad faith” may be found where a party refuses to submit a dispute to 3 arbitration without justification. United Food & Commercial Workers Union v. Alpha Beta Co., 4 736 F.2d 1371, 1382 (9th Cir. 1984); see also Fed’n of Agents & Int’l Representatives v. United 5 Food & Commercial Workers Union, 8 Fed. Appx. 737, 740 (9th Cir. 2001) (“Because of federal 6 policy favoring arbitration, [the Ninth Circuit] ha[s] applied “a less demanding–‘no 7 justification’–standard in cases involving the refusal to arbitrate a labor dispute.”); Petroleum & 8 Industrial Workers v. W. Indus. Maintenance, Inc., 707 F.2d 425, 428 (9th Cir. 1983) (applying 9 the “no justification” standard to a party’s refusal to comply with arbitration award). This 10 standard is met when a party’s “obstinacy in granting . . . [the plaintiff] his clear legal rights 11 necessitates resort to legal action with all the expense and delay entailed in litigation.” Petroleum 12 & Industrial Workers, 707 F.2d at 428. 13 14 III. DISCUSSION CRONA contends that the Hospital engaged in bad faith, dilatory conduct by refusing to 15 arbitrate CRONA’s grievance as required by the CBA. CRONA observes correctly that the 16 Hospital may avoid arbitration only if it can demonstrate “ with positive assurance that the 17 arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Pl.’s 18 mt. At 6 (quoting United States Steelworkers of America v. Warrior & Gulf Navigation Co., 363 19 U.S. 574, 582-83 (1960). In light of the federal policy in favor of arbitration of labor disputes, 20 the Hospital was required to have some justification for believing it could meet this standard 21 before refusing arbitration. 22 The Hospital asserts that it believed that CRONA’s grievance involved the non-arbitrable 23 issues involving the Hospital’s right to relocate employees and CRONA’s right to represent 24 employees who do not provide direct patient care. The Hospital took the position that there was 25 not even an arguable construction of the CBA supporting CRONA’s contention that represented 26 positions were being filled by non-represented employees. According to the Hospital, because 27 all direct patient care duties had been transferred from the clinics to the day hospital, there was 28 no basis for the argument that some positions remaining in the clinics effectively had been 4 Case No. 5:10-cv-001633 JF ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (JFLC3) 1 removed from the bargaining unit. The Hospital supported its position with deposition testimony 2 indicating that all direct patient care duties had been removed from the clinics. See, e.g., Tidwell 3 ¶ 7. The Hospital claims that CRONA argued not that the positions in question involved direct 4 patient care but that nurse coordinators were performing “patient care duties” and “duties 5 previously performed by CRONA nurses.” The Hospital characterizes CRONA’s claim that 6 nurse coordinators in fact engaged in direct patient care as a “cynical mid-stream course change” 7 in response to the Hospital’s motion for summary judgment. See Second Johnson Decl. ¶ 7. 8 CRONA argues that the actual issues raised in its grievance clearly were arbitrable and 9 that the Hospital’s attempt to characterize the grievance as involving relocation of positions or 10 the representation of nurse coordinators was disingenuous. CRONA claims that as early as 11 September 1, 2009, it put the Hospital on notice that it believed that positions involving 12 registered nurse duties were being filled by non-represented nurse coordinators. It indicates that 13 it requested job descriptions for the “nurse coordinator” positions because it was “trying to 14 determine if CRONA bargaining unit work [was] being transferred to non-bargaining unit ‘Nurse 15 Coordinator’ positions.” Third Johnson Decl., Ex. A. The grievance, which was filed on 16 September 11, 2009, states that “patient care duties performed by CRONA nurses who vacated 17 their positions are being performed by non-represented employees, i.e., Nurse Coordinators.” 18 First Johnson Decl., Ex. B. Again, on October 18, 2009, in response to the Hospital’s refusal to 19 provide information on the job descriptions of nurse coordinators, CRONA wrote: 20 21 22 23 24 The collective bargaining agreement recognizes CRONA as the exclusive representative of all relief and clinic nurses who spend 30% or more of their commitment on providing patient care. The contract therefore prohibits [the Hospital] from using non-bargaining employees such as Nurse Coordinators to perform the same patient-care duties performed by CRONA nurses. The Union filed a grievance on September 11, 2009 challenging what we believe to be the unlawful transfer of bargaining unit work to non-bargaining unit positions. The information which [the Hospital] has refused to provide is plainly relevant to CRONA’s investigation of this matter and efforts to enforce the contract. 25 Third Johnson Decl., Ex. C (emphasis added). Finally, CRONA’s complaint in this Court 26 alleges that the Hospital “had transferred patient care duties previously performed by CRONA 27 nurses to “Nurse Coordinator” positions outside the bargaining unit,” and “violated Section 1.1 28 of the CBA, which recognizes CRONA as the bargaining agent of relief and clinic nurses who 5 Case No. 5:10-cv-001633 JF ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (JFLC3) 1 2 spend 30% or more of their work commitment on providing patient care.” Compl. ¶¶ 12-13. While CRONA did not make explicit reference to the CBA’s requirement that covered 3 nurses spend thirty percent of their commitment on “direct provision of patient care,” the record 4 shows that it claimed repeatedly and unambiguously that its grievance involved the transfer of 5 “patient care duties” from CRONA nurses to non-represented positions. It is clear from those 6 statements that CRONA’s grievance was not focused upon or limited to the physical relocation 7 of nurses or union representation of employees not involved in patient care. The Hospital 8 provides little support for its argument that the arbitration clause, which provides for arbitration 9 in all disputes “involving the interpretation or application” of the CBA, was inapplicable. The 10 Hospital’s distinction between a claim that nurse coordinators engaged in “patient care duties 11 previously performed by CRONA nurses” and one concerned with “direct patient care,” is too 12 subtle given the low bar for arbitrability. As CRONA points out, section 23.2.2(a) of the CBA 13 requires only “a brief description of the action or inaction complaint of . . . and [the] Section or 14 Sections of the agreement alleged to be involved.” First Johnson Decl. Ex. A. 15 Although the Hospital’s substantive argument–that the nurse coordinator positions in the 16 clinics do not involve direct patient care duties and thus should not be considered CRONA- 17 represented positions–is not frivolous, the Court concludes that the Hospital acted without 18 reasonable justification in claiming that the parties’ dispute was not arbitrable. Under 19 controlling case law in the Ninth Circuit, parties may not avoid arbitration unless the arbitration 20 clause is not susceptible of an interpretation that covers the asserted dispute, and the federal 21 policy favoring the arbitration of labor disputes requires that parties not act without justification 22 in refusing to arbitrate. Particularly in light of its sophistication and experience in labor 23 relations, the Hospital reasonably could have been expected to understand the substance of 24 CRONA’s grievance to be that “the patient care duties performed by CRONA nurses who 25 vacated their positions are being performed by non-represented employees,” an issue that 26 requires interpretation or application of the CBA in order to determine the precise duties of a 27 registered nurse position. 28 The amount CRONA seeks for its attorneys’ fees and expenses is reasonable. “The most 6 Case No. 5:10-cv-001633 JF ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (JFLC3) 1 useful starting point for determining the amount of a reasonable fee is the number of hours 2 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. 3 Eckerhart, 461 U.S. 424, 433 (1983); Cairns v. Franklin Mint Co., 292 F.3d 1139, 1157 (9th Cir. 4 2002). CRONA has provided detailed records detailing the $70,355.00 its counsel billed 5 litigating the motion to compel arbitration and the Hospital’s motion for summary judgment, as 6 well as the instant motion for attorneys’ fees. Both the time spent on the litigation 7 (approximately a hundred-eighty hours of attorney time) and the hourly rate charged appear to be 8 reasonable. Likewise, CRONA’s litigation expenses of $1441.42 appear to be reasonable. 9 10 11 IV. ORDER CRONA’s motion for attorneys’ fees and expenses is GRANTED. CRONA is awarded attorneys’ fees of $70,355.00, plus $1441.42 in litigation expenses. 12 13 14 DATED: March 29, 2011 15 JEREMY FOGEL United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No. 5:10-cv-001633 JF ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (JFLC3)
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