United States District Court, D. Rhode Island
NEW ENGLAND HEALTH CARE EMPLOYEES UNION, DISTRICT 1199, SEIU, Plaintiff and Counterclaim Defendant,
WOMEN & INFANTS HOSPITAL, Defendant and Counterclaim Plaintiff.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Defendant and Counterclaim Plaintiff, Women & Infants Hospital ("Hospital"), filed a motion for a temporary restraining order. (ECF No. 11.) Plaintiff and Counterclaim Defendant, New England Health Care 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.
The facts giving rise to the instant dispute can be quickly recounted. The Hospital and District 1199 are parties to four collective bargaining agreements ("CBAs") governing terms and conditions of employment at the Hospital. On February 18, 2015, the Hospital, believing that the exception to the no-layoff provision of the CBAs had been triggered, notified District 1199 that it planned to lay off Union members. 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.
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 activities not specifically required by the CBAs." (Hr'g Ex. D.) In response, the Hospital filed a counterclaim against District 1199 (ECF No. 9), as well as a motion for a temporary restraining order (ECF No. 11); the Hospital also filed a grievance with the Union over the concerted activity (Hr'g Ex. E). 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 in violation of the no-strike provision of the CBAs. (Def.'s Mot. 2-3, ECF No. 11-1.) Additionally, the Hospital 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. (Id. at 4.)
An evidentiary hearing on the Hospital's request for injunctive relief was held on March 23, 2015. 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 by voluntarily accepting additional shifts or overtime. 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. To ensure adequate staffing in response to fluctuating patient census and acuity levels, as well as employee vacations, leaves of absence, and sick days, the Hospital relies on nurses voluntarily accepting overtime. Approximately eight to ten percent of nurse shifts at the Hospital are filled through acceptance of voluntary overtime. Under the CBAs 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.
In this case, context is critical. As a general rule, the Norris-LaGuardia Act of 1932 prohibits a federal court from granting injunctive relief in a labor dispute. See 29 U.S.C. § 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 an arbitrable grievance; and (3) "ordinary principles of equity" must warrant the 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. First, the parties do not dispute that the CBAs contain mandatory arbitration procedures. Second, this Court finds that the concerted refusal to work 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. Relying on Buffalo Forge Co. v. United Steelworkers of 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 Vice President of Human 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 the impetus for District 1199's concerted refusal to work. 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. Because this Court determines that the Hospital's showing of irreparable harm is insufficient, the equitable analysis can begin, and end, with that issue. See Verizon New England, 651 F.3d at 186.
The 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 harm in the form of lost revenues from diverted patients. 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. This case therefore stands in stark contrast to the case relied on by the Hospital for its reputational-harm argument. See Kone, Inc. v. Local 4, Int'l Union of Elevator Constructors, No. 06-10093-DPW, 2006 WL 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 action], and one customer contacted [employer's] competitors in search of a replacement"). The Hospital argued that reputational harm can be presumed from common sense, but it provided no case law to support that argument. This Court is unwilling to infer reputational harm solely on the basis of appeals to common sense. Cf. St. Barnabas Hosp. v. 1199 Nat'l Health & Human Serv. 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] alleged injury about the remote and speculative' level"). This reluctance is reinforced by 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 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. Thus, the evidentiary record in this case is nothing like 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. See id. at 98-100 (finding, in a case that did not involve 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 nursing facility supported its request for injunction with "extensive evidence" that showed that termination of status would result in closure of the facility and the accompanying transfer of the residents to other facilities and that the transfers would result in "transfer 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 the NICU and LDR, respectively, are authorized to provide. In the ...