New England Health Care Employees Union, District 1199, SEIU v. Woman & Infants Hospital, No. 1:2015cv00066 - Document 17 (D.R.I. 2015)
Court Description: MEMORANDUM AND ORDER denying 11 Motion for TRO. So Ordered by Chief Judge William E. Smith on 3/27/15. (Jackson, Ryan)
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New England Health Care Employees Union, District 1199, SEIU v. Woman & Infants Hospital Doc. 17 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 Dockets.Justia.com 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 in and 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 Health common & 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
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