Labor & Employment Law Daily Judge won’t order hospital to take actions to reduce nurses’ COVID-19 risk pending grievance arbitration
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Wednesday, May 6, 2020

Judge won’t order hospital to take actions to reduce nurses’ COVID-19 risk pending grievance arbitration

By Marjorie Johnson, J.D.

The nurses’ union sought an emergency injunction pending arbitration of their COVID-related safety grievance, but the narrow exception to the bar on injunctions in labor disputes did not apply.

New York’s largest nurses’ union lost its bid for an emergency injunction requiring a private hospital to take certain steps to reduce the risk that its nurses would contract COVID-19. In light of Second Circuit precedent that greatly limits injunctive relief in labor disputes pursuant to the Norris-LaGuardia Act, a federal district court said it lacked subject matter jurisdiction to compel the hospital to increase the availability of personal protective equipment (PPE) and on-demand coronavirus testing. Instead of seeking to protect the status quo, the union sought to create a new status quo that gave it “everything (and more) it requests in the grievance,” the court reasoned. In dismissing the lawsuit and denying the union’s motion for emergency relief as moot, the court urged the parties to pursue arbitration swiftly if their continued good-faith efforts to reach an amicable resolution failed since “[l]ives may hang in the balance, and the union nurses deserve as much” (New York State Nurses Association v. Montefiore Medical Center, May 1, 2020, Furman, J.).

Dispute pending arbitration. On April 20, the New York State Nurses Association filed this lawsuit and an emergency motion seeking an injunction requiring the private hospital to take certain steps to mitigate the risk that its nurses would contract COVID-19. Under the terms of the parties’ collective bargaining agreement (CBA), the dispute was subject to arbitration and the union had already initiated the arbitration process. This lawsuit only sought emergency relief pending that arbitration.

In response, the hospital insisted that it was doing even more than government agencies had recommended to protect its nurses from the disease. It argued that granting relief to the union would not only fail to improve the nurses’ safety, but also would paralyze its ability to provide patient care in the “unprecedented and extraordinarily challenging circumstances.”

Mediation failed. The court was “deeply sympathetic to both sides,” noting that “nurses are among the heroes of this moment” and that the challenges facing hospitals “are undoubtedly staggering.” Believing that the parties were better equipped to address the complex issues involved and that the ideal resolution would have been an amicable one, the court initially ordered the parties to engage in mediation, but they were unable to reach an agreement.

The hospital moved to dismiss pursuant to the Norris-LaGuardia Act (NLGA), which “deprives federal courts of the jurisdiction to grant injunctive relief in labor disputes, except in limited circumstances.” Though the union claimed that the emergency relief it requested fell within the U.S. Supreme Court’s limited “reverse Boys Markets” exception for “a status quo injunction,” the hospital contended that it sought “to impose new and additional obligations” that would “profoundly alter the status quo” and provide the union the ultimate relief it requested in its grievance.

A narrow exception. Agreeing with the hospital, the district court relied upon the Second Circuit’s Niagara Hooker decision, which demonstrated how “narrow” the reverse Boys Markets exception is. There, a union sued to enjoin an employer from implementing random drug testing of all “safety-sensitive” employees pending arbitration. The Second Circuit found that the Boys Markets exception did not apply, stating that “the injunction must be necessary to prevent arbitration from being rendered a meaningless ritual,” which occurs “only if any arbitral award in favor of the union would substantially fail to undo the harm occasioned by the lack of a status quo injunction.”

The Second Circuit court acknowledged that the employer’s implementation of the drug testing program pending arbitration would cause “interim damage” to some of those tested, but held that it would “not frustrate the arbitral process or render it futile.” Similarly, other courts have denied requests for reverse Boys Markets injunctions in cases where an employer sought to implement new contractual health care benefit terms; where the U.S. Postal Service sought to require letter carriers to spend more time on the street; and where an employer sought to implement a policy requiring all employees to receive flu shots as a condition of employment.

Union sought new status quo. In light of this precedent, the district court concluded that it lacked subject matter jurisdiction to grant the injunction in this case. Instead of seeking to protect the status quo, the union sought to create a new status quo that gave it “everything (and more) it requests in the grievance.” Indeed, “the hospital would need to pursue arbitration to reverse the changes the court had ordered.” This would turn the purpose of a reverse Boys Markets injunction “on its head” and “unduly interfere” with the hospital’s ability to make business decisions at a time when the judicial interference could be particularly problematic.

Arbitral process not rendered “meaningless.” The “tragic fact” that the hospital’s nurses were likely to contract COVID-19 prior to the conclusion of arbitration did not alter the court’s conclusion since the arbitral process “is not rendered meaningless by the inability of an arbitrator to completely restore the status quo ante or by the existence of some interim damage that is irremediable.” Moreover, given the measures that the hospital was already taking under these “extraordinary circumstances” to protect its staff and provide patient care, the court could not say that “the likelihood of infection (let alone death) in the absence of an injunction is so great as to render the arbitral process meaningless.” Thus, whether the hospital could or should do more to protect its nurses was an issue for the arbitrator and not the court to decide.

Court urges swift resolution. In so ruling, the court urged the parties to continue their good-faith efforts to reach an amicable resolution of their disputes as they were “plainly in a better position than either the court or an arbitrator” to find the best ways to achieve their “ultimate goal of maximizing protections for healthcare workers on the front lines of the battle against a vicious disease without compromising patient care.” And if unsuccessful in that regard, the court urged them to expedite the arbitration proceedings because, while the court lacked the authority to address the union’s concerns, “it was critical that they be addressed as swiftly as possible,” noting that “[l]ives may hang in the balance, and the union nurses deserve as much.”

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