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The University of Chicago Medical Center v. National Nurses United

United States District Court, N.D. Illinois, Eastern Division

January 18, 2018



          REBECCA R. PALLMEYER United States District Judge.

         The University of Chicago Medical Center (UCMC) filed this action to vacate an arbitration award in favor of Defendant National Nurses United (NNU). The arbitrator found that UCMC violated the parties' collective bargaining agreement by making unreasonable changes to its attendance policy and by implementing those changes without first bargaining with NNU. To remedy these violations, the arbitrator ordered UCMC to rescind the unreasonable attendance policy and bargain with NNU before changing its attendance policy in the future. UCMC argues that the arbitrator exceeded his authority under the agreement by ordering the parties to bargain over future changes, but it does not challenge the validity of the rescission order. The collective bargaining agreement at issue expired by its terms in October 2014, and UCMC has offered no evidence that NNU currently seeks to bargain over a proposed attendance policy. Because the court is uncertain that a live controversy exists for it to adjudicate, the parties are ordered to show cause within 21 days why the case should not be dismissed without prejudice.


         Plaintiff University of Chicago Medical Center is an academic medical center and Illinois not-for-profit corporation located on the South Side of Chicago. (Pl.'s Local Rule 56.1 Statement of Undisputed Material Facts (hereafter “PSOF”) [20], at ¶ 3.) Defendant National Nurses United is a labor organization that represents a bargaining unit of more than 1, 500 registered nurses employed by UCMC. (Id. at ¶¶ 4-6.)

         On June 3, 2011, UCMC and NNU entered into a collective bargaining agreement (CBA or Agreement) that remained in effect through October 31, 2014. (Id. at ¶ 7; Agreement, Ex. 2 to Compl. [1].) The two sections of the Agreement most relevant to this case are Article 3 and Article 8. Article 3 is titled “Management Rights.” (Agreement 9.) The first paragraph of that Article states:

The management of the Medical Center and Clinics, the control of the premises, and the direction of the nursing force are vested exclusively in the Medical Center. The right to manage includes, but is not limited to, the following: the right to select, hire, transfer, promote, discipline, suspend or discharge for just cause, assign and supervise employees; to determine and change starting times, quitting times; and shifts, and the number of hours to be worked by nurses; to determine staffing patterns, included but not limited to, the assignments of nurses as to numbers employed, duties to be performed, qualifications required, and areas worked; to determine policies and procedures with respect to patient care; to determine or change the methods and means by which its operations are to be carried on; to establish and revise reasonable personnel rules and policies, including those related to employee conduct (which right shall not be exercised in an arbitrary or capricious manner and shall be subject to the grievance and arbitration provision of this Agreement); to carry out all ordinary functions of management, whether or not exercised by the Medical Center prior to the execution of this Agreement, provided however, that such rights shall not be exercised in conflict with express provisions of this Agreement, nor shall the Medical Center in exercising its rights disregard the professional responsibilities of the nurses.

         The second paragraph of Article 3 provides, further, that for proposed changes in practices and policies that are not covered by the “Management Rights” paragraph, “the Medical Center will notify NNU in writing of the desired change and reasons for the proposed change and provide an opportunity for NNU and the Medical Center to bargain.” (Id.)

         Article 8 outlines a grievance and arbitration procedure. The final step of this procedure is “final and binding” arbitration by an impartial arbitrator. (Id. at 26-27.) Section 8.1 sets limits on the arbitrator's authority. It states that “[t]he arbitrator . . . shall have authority only to interpret and apply the provisions of this Agreement to the extent necessary to decide the submitted grievance and shall not have authority to add to, detract from, or alter in any way the provisions of this Agreement.” (Id. at 27.)

         On or around July 15, 2014, UCMC revised the attendance policy that applied to its hourly-paid labor force, including members of the bargaining unit represented by NNU. (PSOF ¶ 10.) The revisions altered the disciplinary threshold for attendance-related infractions such as tardiness and absenteeism. (Id. at ¶ 11.) NNU grieved these changes and eventually brought the dispute to arbitration. (Id. at ¶ 13.) UCMC and NNU selected Peter Meyers as the impartial arbitrator, pursuant to the selection procedures provided in Article 8. (Id. at ¶ 14.)

         In the proceedings before Arbitrator Meyers, NNU argued that UCMC's revisions to the attendance policy were “unreasonable” and that they “conflict[ed] with the collectively bargained sick leave and discipline provisions of the contract between the parties.” (Report of Proceedings 13, Ex. A to PSOF.) The union claimed, for example, that the new policy conflicted with UCMC's influenza policy and with certain provisions of the Illinois Administrative Code by penalizing nurses who called in sick due to fever or respiratory symptoms.[1] (Post-Hearing Brief of NNU 19-20, Ex. C to PSOF.) The union also noted that UCMC's peer institutions had adopted “more lenient” attendance policies, and asserted that the statistical data relating to absenteeism that UCMC had relied on to justify its new attendance policy exaggerated the number of shift-hours that UCMC nurses missed due to illness. (Id. at 21-24.) NNU suggested that another arbitrator had already found UCMC's revised attendance policy to be “unreasonable” for similar reasons in a proceeding initiated by Teamsters Local 743, which represented certain clerical, service, and maintenance employees at UCMC. (Id. at 27-28.) For all these reasons, NNU asked Arbitrator Meyers to “find that the new Attendance Policy is unreasonable” and to “order[] the policy rescinded.” (Id. at 29.)

         The union did not argue that UCMC should have provided notice and an opportunity to bargain before revising the attendance policy. Nor did the union argue that attendance policies, as a general matter, do not fall within the category of “personnel rules and policies” that UCMC has a right to “establish and revise” so long as the policy in question is “reasonable.” Indeed, by arguing that UCMC's new attendance policy was not reasonable, the union implicitly conceded that point.

         UCMC similarly defined the issue before the arbitrator as “[w]hether or not the 2014 attendance policy . . . is reasonable.” (Report of Proceedings 15.) But in addition to arguing for the reasonableness of its revised attendance policy, the Medical Center also devoted several pages of its post-hearing brief to arguing that the management rights clause in Article 3 of the CBA unambiguously reserved to UCMC the right to “unilaterally implement a reasonable attendance policy.” (Employer's Post-Hearing Brief. 29, Ex. B to PSOF.) To drive the point home, UCMC cited and attached to its brief two arbitration awards (from 2013 and 2015, respectively) that interpreted the management rights clause of the CBA. In the 2013 award, Arbitrator Martin H. Malin considered whether UCMC violated Article 3 of the CBA by “unilaterally implement[ing] a meal break clocking procedure.” (Malin Opinion 2, Ex. B to PSOF.) Malin concluded that “the Union clearly and unmistakably manifested an intent to waive its right to bargain with respect to ‘personnel rules and policies, including those related to employee conduct.'” (Id. at 29.) Malin's conclusion, UCMC argued to Arbitrator Meyers, leaves “little question that UCMC has the right under the CBA to implement a new attendance policy.” (Employer's Post-Hearing Brief 31.) UCMC then quoted similar language in a 2015 award from Arbitrator George Fleischli, stating that UCMC “has the right to establish and revise reasonable rules and policies during the term of the Agreement, even though the rules and policies may involve subject matter that is otherwise a mandatory subject of bargaining.” (Fleischli Award 32, Ex B to PSOF.) UCMC cited this language as evidence “that attendance is one of the principal policies to which the parties anticipated the management rights clause would apply.” (Employer's Post-Hearing Brief 32.) Attendance policies are clearly one of the “personnel rules and policies, including those related to employee conduct, ” that the first paragraph of Article 3 reserved to management, UCMC argued. Therefore, the notice and bargaining requirements in the second paragraph of Article 3 does not apply to attendance policies.

         UCMC's attempt to preemptively foreclose a line of argument that NNU had not even raised before Arbitrator Meyers appears to have backfired. Meyers not only sided with NNU on the question of whether UCMC's revisions to its attendance policy were “reasonable, ” he also concluded that “the Medical Center committed a second violation of Article 3” by failing to provide NNU with advance notice of the proposed changes and an opportunity to bargain over them. (Meyers Award 56, Ex 1. to Compl.) “Employee attendance and the attendance policy are not expressly mentioned in the first paragraph of Article 3, ” Meyers wrote, “so the Medical Center is obligated by the language set forth in the collective bargaining agreement to comply with the process described in the second paragraph of Article 3 in order to develop and implement changes to the attendance policy.” (Id.) According to Meyers, “this portion of Article 3 mandates that the Medical Center must give written notice to the Union of any changes that it proposes to make in the attendance policy, must provide the Union with the reasons for the proposed changes, and must provide an opportunity for the parties to bargain over the proposed changes.” (Id.) Meyers's conclusion appears to assume, at least implicitly, that attendance policies do not fall within the category of “personnel rules and policies, including those related to employee conduct.” Meyers did not cite either the Malin or the Fleischli award in his written opinion, though he confirmed that he had “carefully reviewed all of the testimony and evidence in the record, as well as the parties' arguments in support of their opposing positions.” (Id. at 49.)

         In addition to citing the text of Article 3, Meyers cited sections 9.4 and 17.11 of the CBA to support his conclusion that UCMC is obligated to bargain over future changes to its attendance policy. Neither of these sections refers to collective bargaining. Rather, they contain substantive rules that define the disciplinary consequences for nurses who fail to provide at least two hours' notice when calling in sick (section 9.4), and that limit UCMC's use of non-serious disciplinary infractions more than six months old in an ongoing “corrective action process against [an] employee” (section 17.11). (Agreement 28, 46-47.) Meyers suggested that these provisions were relevant to his conclusion about UCMC's obligation to bargain because the requirement in Article 3 that the parties bargain over issues not covered in the management rights clause was intended to ensure that UCMC's policies do not conflict with specific rights established elsewhere in the CBA, including those in sections 9.4 and 17.11. On Meyers's view, UCMC's new attendance policy “directly conflicts” with section 17.11 and arguably conflicts with section 9.4. (Id. at 57.) ‚ÄúThese conflicts and other substantive problems with the new attendance policy ...

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