Boston Medical Center v. Service Employees International Union, Local 285

United States Court of Appeals
For the First Circuit

No. 00-2322

BOSTON MEDICAL CENTER,

Plaintiff, Appellee,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 285,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, Chief U.S. District Judge]

Before

Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Robert S. Steinberg, with whom Arthur P. Menard and Menard,
Murphy & Walsh LLP were on brief, for appellee.
David B. Rome, with whom Pyle, Rome, Lichten & Ehrenberg,
P.C. was on brief, for appellant.

August 9, 2001
 LIPEZ, Circuit Judge. Service Employees International

Union, Local 285 ("the Union") appeals the entry of summary

judgment in favor of Boston Medical Center ("BMC" or "the

Hospital") vacating an arbitrator's award ordering the

reinstatement of Katherine Hartney, a registered nurse employed

by BMC but terminated following the death of an infant under her

care. The district court found that the arbitrator had exceeded

the scope of her authority under the collective bargaining

agreement between the Union and BMC in ordering Hartney's

reinstatement. Additionally, the court ruled that the

arbitrator's award was unenforceable because it violates "the

well-established public policy [in Massachusetts] of delivering

safe and competent nursing care." Boston Med. Ctr. v. Service

Employees Int'l Union, Local 285, 113 F. Supp.2d 169, 174 (D.

Mass. 2000). We reverse.

I.

We accept the facts as the arbitrator found them. See

El Dorado Technical Servs., Inc. v. Union General de

Trabajadores de Puerto Rico, 961 F.2d 317, 320 (1st Cir. 1992).

A four-month-old infant, Baby X,1 was admitted to BMC on

1
The infant was referred to as "Baby X" during the
arbitration and in the arbitrator's report.

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September 22, 1998 for second degree burns on her legs, feet,

and buttocks resulting from a bathing incident involving hot tap

water. Hartney, who had been employed by BMC for ten years,

reported for her nursing shift beginning at 7 p.m. on September

24. Hartney was the baby's primary care nurse from 7 p.m. to 7

a.m. on September 25. When she arrived for her shift, Hartney

was briefed by the outgoing nurses on the status of the patients

under her care. This meeting lasted approximately thirty to

forty minutes.

During the night of September 24, Baby X was being

monitored for sepsis or septic shock, a condition familiar to

any competent nurse. The potentially fatal condition,

particularly for infants, is characterized by three clinical

stages. The first stage is marked by an increase in the

patient's temperature, respiration, and heart rate; the second

stage is marked by a normal or reduced temperature and an

elevated heart rate; and the third stage is marked by a reduced

temperature, increased heart rate, and respiratory distress.

Patients in the third stage of septic shock may also appear

mottled or dusky in coloring.

At 7:50 p.m., student nurse Melinda Leight took Baby

X's temperature using a glass thermometer and obtained a reading

of 102.2. Hartney waited outside Baby X's room during this time

-3-
and reviewed her paperwork from the previous day. This

paperwork included an order by the baby's doctor for nursing

personnel to notify a doctor if her temperature exceeded 101.5.

Hartney testified that she did not contact a doctor at that

time, however, because her own clinical assessment of Baby X led

her to believe that the temperature reading of 102.2 was

inaccurate.

There was conflicting testimony offered about Hartney's

clinical decisions and patient care after that point. Hartney

testified that she instructed Leight to recheck the baby's

temperature with an electronic thermometer in ten minutes, at 8

p.m., and that the reading at that time was 99.3. However,

Leight testified that Hartney instructed her to take a

temperature reading again in one hour, at 9 p.m., at which time

she obtained a reading of 99.3. The arbitrator credited

Leight's account of these events.

Between 8 p.m. and 11 p.m., Hartney performed a variety

of routine care-taking tasks for Baby X, including changing her

diaper, changing her burn dressings, and monitoring her

intravenous line. While the infant's heart rate was elevated

during this time, Hartney testified that she was not unduly

concerned because she attributed the elevated heart rate to

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burn-related pain, and because she believed the baby's heart

rate had been elevated during the previous shift as well.

The arbitrator heard conflicting testimony from Hartney

and another nurse on duty that night, Michelle Force. Force

stated that she entered Baby X's room at 9:30 p.m. and obtained

the following readings: a temperature of 97.0, a pulse above

200, and respiration in the 60s. Force testified that she

discussed these findings with Hartney. Hartney, on the other

hand, stated that Force did not enter Baby X's room until 11:30

p.m. The arbitrator credited Force's account that she checked

on Baby X at 9:30 p.m. and reported to Hartney.

In another discrepancy in the accounts that Hartney and

Force gave of the events that night, Force testified that she

observed changes in Baby X's skin coloring when she and Hartney

checked on the infant together at 11:30 p.m. However, the

arbitrator credited Hartney's testimony that the baby's skin

appeared normal at 11:30 p.m. and that she did not observe any

discoloration until 12:15 a.m. The arbitrator found that

Hartney acted promptly at 12:15 a.m. when she observed Baby X's

mottled lips, recognized entry into the third stage of septic

shock, and called a pediatric surgeon. The arbitrator concluded

that there was no reason to suspect Hartney would not have acted

promptly had she noticed unusual coloring at 11:30 p.m.

-5-
 Baby X deteriorated through the remainder of the night

and died at 4:55 a.m. on the morning of September 25, 1998. The

Hospital conducted an investigation of the circumstances of Baby

X's death. Two nursing supervisors questioned Hartney, Leight,

and Force and reviewed the infant's patient records. Based on

their determination that Hartney "engaged in serious substandard

nursing practices" in caring for Baby X, BMC terminated Hartney

on October 2, 1998.

After the Union submitted to arbitration a grievance

concerning Hartney's discharge, the arbitrator heard two days of

testimony. On July 6, 1999, the arbitrator issued an Opinion

and Award finding that BMC violated Article XV of the collective

bargaining agreement in discharging Hartney without just cause,

and reduced the penalty imposed by BMC from discharge to an

unpaid, nine-month suspension.

BMC brought an action in the district court to vacate

the arbitrator's award. See 29 U.S.C. § 185. The Union

counterclaimed for enforcement. BMC advanced two arguments

before the district court: 1) that the arbitrator exceeded her

authority in reducing the penalty chosen by BMC despite her

finding that BMC had just cause to impose some level of

discipline on Hartney; and 2) that the award was unenforceable

because it violated public policy in Massachusetts in favor of

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safe and competent nursing care. The district court vacated the

award on both grounds. Persuaded that these rulings are

erroneous, we vacate the judgment of the district court and

order entry of judgment for the Union on its counterclaim for

confirmation of the arbitrator's award.

II. Interpretation of the Collective Bargaining Agreement

The parties agreed to the following issues before the

arbitrator: "(1) Did the Hospital violate Article XV of the

collective bargaining agreement when it terminated the grievant,

Katherine Hartney, on October 2, 1998?; [and] (2) If so, what

shall be the remedy?" Article XV of the collective bargaining

agreement provides: "No RN who has completed his/her

probationary period 2 shall be disciplined or discharged except

for just cause." In her written decision, the arbitrator

concluded that "there is just cause for the imposition of

discipline in this matter but . . . discharge is too harsh a

penalty for an employee with an unblemished record of employment

for nearly ten years." In considering the appropriate penalty,

the arbitrator rejected BMC's position that the collective

2Article IV of the agreement provides that up to 120
calendar days for a newly hired or rehired RN are considered a
probationary period, during which time the provisions of the
agreement regarding grievance procedures do not apply to the
discipline or discharge of the RN. Hartney had worked at the
hospital for ten years as a registered nurse at the time of the
incident involving Baby X.

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bargaining agreement precluded the application of progressive

discipline: "While [Article XV] makes no explicit reference to

progressive discipline, it references 'just cause,' a concept

which encompasses both liability for the action(s) charged and

fairness in the amount of discipline imposed." The arbitrator

ordered that the Hospital reinstate Hartney immediately, but

without back pay, 3 and ordered Hartney to participate in a

remedial educational program for the treatment of pediatric burn

victims as part of the reinstatement process.

In considering BMC's motion for summary judgment, the

district court interpreted Article XV of the agreement in

conjunction with Article XVI. Article XVI, entitled "Management

Rights," provides in part: "Except to the extent expressly

limited by this Agreement, the Hospital retains the exclusive

right to . . . suspend, discipline and discharge employees for

just cause." The district court interpreted these provisions as

follows:

Upon the determination that just cause for
discipline existed, Article XVI vested the
power to "sentence" in the Hospital alone,
and any further determination by the
arbitrator necessarily modifies the existing
agreement between the parties. . . . There

3 By July 6, 1999, when the arbitrator rendered her
decision, Hartney had been suspended for just over nine months.
Thus, the arbitrator's award amounted to a nine-month suspension
without pay.

-8-
 is here simply no way plausibly to read
Articles XV and XVI together in such a
manner as to limit the Hospital's managerial
rights once just cause has been found.

Boston Med. Ctr., 113 F. Supp.2d at 172 (citations omitted).

Because the arbitrator found that just cause existed for

disciplining Hartney, yet concluded that discharge was

inappropriately harsh, the district court concluded that "the

arbitrator contradicted her own findings." Id. We review the

district court's decision de novo. See Keebler Co. v. Truck

Drivers, Local 170, 247 F.3d 8, 11 (1st Cir. 2001).

As the Union correctly notes, the Hospital never argued

before the arbitrator that Article XVI limited her authority to

decide whether Hartney was discharged for just cause. The Union

argues that the Hospital's failure to raise Article XVI in the

arbitration proceedings precluded the district court from

considering that provision in reviewing the arbitrator's award.

Because we find that the district court's interpretation of

Article XVI was erroneous, we need not reach the question of

whether the Hospital waived that argument.

An arbitrator's interpretation of a collective

bargaining agreement "must draw its essence from the contract

and cannot simply reflect the arbitrator's own notions of

industrial justice." United Paperworkers Int'l Union v. Misco,

Inc., 484 U.S. 29, 38 (1987). Nonetheless, because the parties

-9-
to a collective bargaining agreement "have bargained for the

arbitrator's construction of their agreement," the arbitrator's

interpretation is entitled to great deference by the courts.

Eastern Associated Coal Corp. v. United Mine Workers of Amer.,

531 U.S. 57, 62 (2000) (internal quotation marks omitted). We

set aside an arbitrator's interpretation only in rare instances.

See id. "After all, 'the federal policy of settling labor

disputes by arbitration would be undermined if courts had the

final say on the merits of [arbitral] awards.'" El Dorado

Technical Servs., 961 F.2d at 319 (quoting United Steelworkers

v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960)). We

find that the arbitrator's interpretation of the agreement in

this case was a reasonable interpretation of the agreement

between BMC and the Union.4

The plain language of Article XV, requiring just cause

before an RN is disciplined or discharged, contemplates a range

4 Even if we concluded that the arbitrator's interpretation
of the agreement was erroneous, that finding would not, by
itself, be enough to overturn the award. See Misco, 484 U.S. at
38 ("[A]s long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his
authority, that a court is convinced he committed serious error
does not suffice to overturn his decision."). We have upheld
arbitrator's awards even where we expressed doubt about the
arbitrator's rationale. See, e.g., Keebler, 247 F.3d at 11 ("We
share the district court's skepticism about the merits of the
arbitrator's rationale. . . . Even so, such skepticism is not
enough to vacate the arbitrator's decision."). This is not such
a case.

-10-
of disciplinary responses. As the arbitrator properly found,

the concept of just cause requires a close relationship between

the employee's conduct and the Hospital's response along that

disciplinary range. By its terms, Article XVI is subject to

other provisions in the agreement, including the just cause

provision in Article XV. Yet the Hospital urges us to interpret

Article XVI as the district court did to find that the Hospital

has unlimited rights to discipline or discharge an employee once

just cause has been found. Under the Hospital's reading of

these provisions, even the most minor disciplinary offense would

give the Hospital an unfettered right to discharge the offending

employee. This is not a sensible interpretation of Article XV.

The arbitrator was free to conclude that there was no just cause

for discharging Hartney, but that there was just cause for a

lesser discipline. See, e.g., Keebler, 247 F.3d at 13 ("Thus,

in substance, the arbitrator found some degree of

insubordination, but not the sort of gross insubordination

sufficient to constitute just cause for immediate

termination."); Crafts Precision Indus., Inc. v. Lodge No. 1836,

889 F.2d 1184, 1185 (1st Cir. 1989) (affirming arbitrator's

decision to reduce the sanction for an employee's violation of

a company rule from discharge to suspension without pay because

there was no just cause for discharge).

-11-
 The arbitrator's reading of the just cause provision

to include a concept of progressive discipline is supported in

our previous decisions. For example, in Exxon Corp. v. Esso

Workers' Union, 118 F.3d 841 (1st Cir. 1997), abrogated on other

grounds, Eastern Associated Coal Corp., 531 U.S. 57, we upheld

an award where the arbitrator concluded that the employer's

right to discharge an employee under the agreement was subject

to a consideration of just discipline. In that case, the

collective bargaining agreement provided that Exxon "may

discharge or otherwise discipline" employees who committed

posted offenses. Exxon Corp., 118 F.3d at 845. A separate

provision allowed employees to challenge discharges Exxon had

imposed without just cause. See id. Noting those two

provisions of the collective bargaining agreement, we stated:

"[The arbitrator] concluded that the language which permits

Exxon 'to discharge or otherwise discipline' an employee who

commits a posted offense furnishes Exxon with a range of

disciplinary options, and that this range is in turn subject to

an independent application of the just cause barometer." Id.

The arbitrator in Exxon Corp. thus ruled that the just cause

standard required Exxon to prove "that the level of discipline

was warranted," id. at 845 n.2, and we upheld that

interpretation. See id. at 845. Other circuits have upheld

-12-
similar interpretations of collective bargaining agreements

where an arbitrator concluded that a concept of progressive

discipline was contemplated by a provision requiring a finding

of just cause before an employee is discharged. See, e.g.,

Local No. 7 Union Food & Commercial Workers Int'l Union v. King

Soopers, Inc., 222 F.3d 1223, 1229 (10th Cir. 2000); Westvaco

Corp. v. United Paperworkers Int'l Union, 171 F.3d 971, 975 (4th

Cir. 1999); Abram Landau Real Estate v. Benova, 123 F.3d 69, 75

(2d Cir. 1997); United Transp. Union Local 1589 v. Suburban

Transit Corp., 51 F.3d 376, 381 (3d Cir. 1995).5

III. Public Policy Exception

The Hospital argues that even if the arbitrator had the

authority pursuant to the just cause provision to decide that

progressive discipline was appropriate, her specific decision to

reinstate Hartney violates an established public policy

providing for safe and competent nursing care. The public

5 This is not a case where the collective bargaining
agreement specifically provides for automatic discharge in
situations where care providers like Hartney are found to be
negligent. See Keebler, 247 F.3d at 14 n.2 (drawing a
distinction between the facts of Keebler and other cases where
arbitrators "unambiguously found that the grievant had committed
conduct listed in his employment agreement as grounds for
termination"). Two of the cases relied upon by the Hospital in
its brief may be distinguished on this ground. See Georgia-
Pacific Corp. v. Local 27, United Paperworkers Int'l Union, 864
F.2d 940 (1st Cir. 1988); S.D. Warren Co. v. United
Paperworkers' Int'l, 845 F.2d 3 (1st Cir. 1988).

-13-
policy exception to the enforcement of arbitral awards finds its

roots in basic contract law: "A court's refusal to enforce an

arbitrator's award under a collective-bargaining agreement

because it is contrary to public policy is a specific

application of the more general doctrine, rooted in the common

law, that a court may refuse to enforce contracts that violate

law or public policy." Misco, 484 U.S. at 42. However, the

public policy exception is limited to instances "where the

contract as interpreted [by the arbitrator] would violate some

explicit public policy that is well defined and dominant, and is

to be ascertained by reference to the laws and legal precedents

and not from general considerations of supposed public

interests." Id. at 43 (internal quotation marks omitted).

Citing state nursing regulations, as well as statistics

and news articles about the importance of patient safety, the

district court concluded: "[T]he Commonwealth of Massachusetts

has a well-established public policy ensuring that hospital

patients receive proper health care." Boston Med. Ctr., 113 F.

Supp.2d at 172. To be sure, Massachusetts law reflects a

concern for nursing competence and patient safety. However, the

question is not whether Hartney's conduct violated a public

policy in favor of competent nursing care, but whether the order

to reinstate her violated that policy. The Supreme Court itself

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has drawn this distinction in its most recent opinion regarding

the public policy exception to enforcing arbitration awards:

And, of course, the question to be answered
is not whether [the employee's] drug use
itself violates public policy, but whether
the agreement to reinstate him does so. To
put the question more specifically, does a
contractual agreement to reinstate [the
employee] with specified conditions . . .
run contrary to an explicit, well-defined,
and dominant public policy, as ascertained
by reference to positive law and not from
general considerations of supposed public
interests?

Eastern Associated Coal Corp., 531 U.S. at 62-63 (emphasis

added). See also Stead Motors of Walnut Creek v. Automotive

Machinists Lodge No. 1173, 886 F.2d 1200, 1215 (9th Cir. 1989)

("[T]he critical inquiry is not whether the underlying act for

which the employee was disciplined violates public policy, but

whether there is a public policy barring reinstatement of an

individual who has committed a wrongful act."). We must

determine whether Massachusetts has a public policy, ascertained

by reference to positive law, that prohibits reinstating Hartney

in these circumstances.

The Supreme Court's most recent explanation of the

public policy exception provides a framework for this inquiry.

See Eastern Associated Coal Corp., 531 U.S. 57. In that case,

the employer sought to vacate an arbitrator's award reinstating

an employee who had twice tested positive for marijuana use.

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The employee, who drove heavy trucking equipment on public

highways, worked in a safety sensitive position and was

accordingly required to submit to random drug tests pursuant to

regulations promulgated by the Department of Transportation.

See id. at 60. The regulations also mandated suspension for any

employee found to have operated a commercial motor vehicle while

under the influence of drugs and established prerequisites

before such an employee could return to work. See id. at 64.

After considering these regulations in detail, the Court stated

that it could not "find in the [Omnibus Transportation Employee

Testing] Act, the regulations, or any other law or legal

precedent an 'explicit,' 'well defined,' 'dominant' public

policy to which the arbitrator's decision 'runs contrary.'" Id.

at 67 (quoting Misco, 484 U.S. at 43). Accordingly, the Court

held that the employer could not rely on the public policy

exception, and that the employee had been properly reinstated.

See id.

In considering whether Massachusetts has a well-defined

public policy that prohibits the reinstatement of Hartney in

these circumstances, we read "the relevant statutory and

regulatory provisions . . . in light of background labor law

policy that favors determination of disciplinary questions

through arbitration when chosen as a result of labor-management

-16-
negotiation." Eastern Associated Coal Corp., 531 U.S. at 65.

The Hospital identifies a number of statutes, regulations, and

cases to support its claim that Massachusetts has a public

policy in favor of competent nursing care. For example, one

statute requires that every nurse "shall be directly accountable

for safety of nursing care he delivers," Mass. Gen. Laws ch.

112, § 80B. Another state regulation directs nurses to "take

appropriate nursing interventions as necessary for the patient's

well-being," 244 C.M.R. 2.3(14).6 The Hospital cites other laws

requiring nurses to be licensed by the state, see Mass. Gen.

Laws ch. 112, § 74A, and criminalizing the unauthorized practice

of nursing, see Mass. Gen. Laws ch. 112, § 80.

This concern for patient safety and competent nursing

care in Massachusetts is also reflected in the case law. See,

e.g., North Adams Reg'l Hosp. v. Mass. Nurses Ass'n, 74 F.3d

346, 348 (1st Cir. 1996) ("It was at least arguable that there

is a public policy in Massachusetts to protect patients by

6 The Hospital cites Borden, Inc. v. Comm'r of Public
Health, 388 Mass. 707, 721 (1983), for the proposition that
regulations are per se expressions of public policy. However,
Borden stated only, in a discussion of regulations promulgated
by administrative agencies in Massachusetts, the self-evident
proposition that "[a] regulation is essentially an expression of
public policy." Borden, 388 Mass. at 721. Borden did not
consider whether public policy as established in such
regulations would be considered sufficiently explicit and well-
established to be grounds for vacating an arbitrator's award
under Misco.

-17-
requiring nurses to be qualified, a policy established by the

Massachusetts regulations defining the general responsibilities

of a registered nurse."); Brigham & Women's Hosp. v. Mass.

Nurses Ass'n, 684 F. Supp. 1120, 1125 (D. Mass. 1988) ("Here,

the Hospital is arguably correct in asserting the

[Massachusetts] regulations establish a public policy that RN's

be competent."). As the Massachusetts statutes and regulations

do, these cases express the importance of ensuring the

competency of medical professionals in the Commonwealth.

While these laws, regulations, and cases reflect a

concern about the quality of nursing care in the Commonwealth,

they do not establish a public policy prohibiting Hartney's

reinstatement with the clarity demanded by Eastern Associated

Coal. The Court found specifically in that case that the

reinstatement of the employee who had tested positive for drug

use "violates no specific provision of any law or regulation."

Eastern Associated Coal Corp. 531 U.S. at 66. Similarly, we

have found no specific provision of Massachusetts law that would

be violated by the arbitrator's order to reinstate Hartney. In

sum, Massachusetts does not have an "explicit, well-defined, and

dominant public policy, as ascertained by reference to positive

-18-
law" that prohibits Hartney's reinstatement in these

circumstances. Id. at 63.7

Even in the absence of a specific law or regulation

barring reinstatement in the circumstances of this case, we

acknowledge that there might be conduct so egregious that

reinstatement might threaten the general public policy promoting

the competence of nurses and patient safety. See id. at 63 ("We

agree, in principle, that courts' authority to invoke the public

policy exception is not limited solely to instances where the

arbitration award itself violates positive law."). But this is

not such a case. In explaining her factual findings, the

arbitrator stated:

I find no evidence that the grievant
willfully or callously8 provided substandard

7
As the Hospital points out in its brief, opinions in other
jurisdictions have refused to enforce arbitrators' awards where
the award violates public policy. See, e.g., Delta Air Lines,
Inc. v. Air Line Pilots Ass'n, Int'l, 861 F.2d 665, 674 (11th
Cir. 1988) (vacating arbitrator's award reinstating a pilot who
operated a plane while intoxicated on public policy grounds);
Iowa Elec. Light & Power Co. v. Local Union 204 of the Int'l
Brotherhood of Elec. Workers, 834 F.2d 1424, 1427 (8th Cir.
1987) (finding that order to reinstate employee who breached
protocol at a nuclear power plant violated public policy in
favor of a "dominant national policy requiring strict adherence
to nuclear safety rules"). The conclusions of other courts that
the public policies of other states forbid the reinstatement of
an employee in circumstances distinguishable from those we have
before us are not persuasive in deciding the instant matter.
8
The Hospital claims that by using the language "willfully
or callously," the arbitrator effectively created a new standard

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 care, as in the case of a nurse who leaves
her patients in order to take a nap or a
nurse who is physically abusive. The
grievant was in Baby X's room attending to
the infant for a significant part of her
shift. Even Boston Medical Center witness
Michelle Force who testified against the
grievant described her attitude as one of
extreme concern for her patient. . . . The
deficiencies in the grievant's standard of
care appear to be due to clinical
misjudgments, not malice, amenable to
correction through supplemental education
and training.

As the arbitrator noted, BMC does not dispute that Hartney's

ten-year work record was unblemished until the incident

involving Baby X. Given these factual findings, there is no

evidence that Hartney's continued employment as a registered

nurse would threaten patient safety in violation of public

policy in Massachusetts.

The precedent on the public policy exception supports

this fact-specific approach to considering the consequences of

reinstating an employee found to have engaged in misconduct. In

Misco, the Supreme Court stated:

under which employee misconduct could never be just cause for
discharge so long as the employee did not act willfully or
callously. We disagree with this reading of the arbitrator's
opinion. The arbitrator did not suggest that a finding of
willful or callous misconduct was a prerequisite to discharging
an employee. She used that language only to distinguish cases
where nurses were discharged for conduct more egregious than
Hartney's.

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 In pursuing its public policy inquiry, the
Court of Appeals quite properly considered
the established fact that traces of
marijuana had been found in Cooper's car.
Yet the assumed connection between the
marijuana gleanings found in Cooper's car
and Cooper's actual use of drugs in the
workplace is tenuous at best and provides an
insufficient basis for holding that his
reinstatement would actually violate the
public policy identified by the Court of
Appeals "against the operation of dangerous
machinery by persons under the influence of
drugs or alcohol." A refusal to enforce an
award must rest on more than speculation or
assumption.

Misco, 484 U.S. at 44.

Brigham & Women's Hospital, relied on heavily by the

Hospital, also reflects a careful assessment of the nurse's

suitability for continued employment. See Brigham & Women's

Hosp., 684 F. Supp. at 1125. In that case, the district court

was asked to decide whether an arbitrator's award reinstating a

nurse violated public policy in favor of safe and competent

nursing care. Over a period of several months, the nurse had

exhibited difficulties with interpersonal and communication

skills and had received warnings for four acts of professional

misconduct.9 In considering whether reinstating the nurse would

9 Specifically, the nurse inappropriately delegated care of
a patient to other staff members, failed to notify a doctor of
a patient's decline in status, called a physician to care for a
patient without consulting her supervisors, and administered
medication improperly. See Brigham & Women's Hosp., 684 F.
Supp. at 1121.

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violate public policy under those circumstances, the district

court stated:

Here, the Hospital is arguably correct in
asserting the regulations establish a public
policy that RN's be competent. Even
assuming that there is such a policy,
however, the Hospital has not shown
reinstatement of [the grievant] would
clearly violate that policy. The arbitrator
did not find that [the grievant] was
incompetent, or that [the grievant] was
unable to properly carry out the basic
responsibilities of an RN.

Id. Like the nurse in Brigham & Women's Hospital, there was no

finding by the arbitrator that Hartney was incompetent or unable

to perform her duties as a registered nurse. Compare Edgewood

Convalescent Ctr. v. District 1199, New England Health Care

Employees, Civ. A. No. 84-2457N, 1985 WL 5779 at * 2 (D. Mass.

June 24, 1985) (vacating award reinstating employees where their

conduct constituted "gross negligence" and manifested "a

complete disregard for patient care"). Indeed, in contrast to

employees in other cases, Hartney has not demonstrated a

propensity to engage in multiple bad acts or an unwillingness to

modify her behavior. See, e.g., Eastern Associated Coal, 531

U.S. at 66 (finding the "recidivism" of an employee who had

tested positive for drugs twice insufficient to warrant

discharge); Russell Mem'l Hosp. Ass'n v. United Steel Workers of

Amer., 720 F. Supp. 583, 587 (E.D. Mich. 1989) (holding that

-22-
reinstating nurse with "a propensity for misconduct," and who

was "reluctant to change her ways," violated the public policy

in favor of competent nursing care). In the absence of such

findings, we cannot conclude that Hartney's one act of

professional negligence during her ten-year career, serious

though it was, means that her reinstatement violates the public

policy of Massachusetts promoting the competence of nurses and

patient safety. See MidMichigan Reg'l Med. Center-Clare v.

Prof'l Employees Div. of Local 79, 183 F.3d 497, 504 (6th Cir.

1999) ("Even highly skilled professionals err on occasion, and

we think it clear that it cannot violate the public policy of

Michigan to contract to retain a nurse guilty of committing some

acts of carelessness.").

IV. Conclusion

In reversing the district court's judgment granting

summary judgment in favor of BMC, we do not minimize in any way

the tragic death of Baby X. However, BMC has signed an

arbitration agreement conveying substantial authority to the

arbitrator to decide whether there is just cause for discharge;

if BMC wants to reserve more authority to itself, it can easily

seek to do so explicitly the next time the contract is up for

renegotiation. Here, the arbitrator's interpretation of the

collective bargaining agreement was within the scope of her

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authority. There is no public policy that prohibits Hartney's

reinstatement under the circumstances of this case.

Reversed and remanded for entry of judgment confirming

the arbitrator's award.

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