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Arbitrator nixes mandatory flu shots for nurses
December 23, 2007 by Ross Runkel at LawMemo

Virginia Mason Hospital implemented a mandatory flu immunization program requiring proof of flu vaccination as a "fitness for duty requirement" for all nurses. And for obvious reasons. Staff-to-patient transmission is prevalent in hospitals, and the hospital's previous voluntary immunization program resulted in only 55% of the staff being immunized.

The nurses' union filed a grievance under the collective bargaining agreement (CBA), and the matter went to arbitration.

The arbitrator ruled against the hospital. He interpreted the CBA's preamble and union recognition clause as requiring the hospital to bargain collectively with the union over all terms and conditions of employment. He also found the immunization requirement did not come under the management rights clause. Because the hospital imposed the new requirement unilaterally and without first bargaining with the union, the arbitrator ordered the hospital to rescind the requirement.

The hospital sued to get the arbitrator's award overturned, but the trial court refused, and the 9th Circuit also refused. Virginia Mason Hospital v. Washington State Nurses Association (9th Cir 12/21/2007).

The 9th Circuit's opinion is textbook analysis of the role of courts in reviewing the decisions of arbitrators.

The hospital argued that the arbitrator ignored three provisions in the CBA that permitted the hospital to unilaterally implement the program. The court pointed out that the arbitrator in fact considered these three items, but found the hospital's arguments unpersuasive. As the court put it, there was no "failure to apply" the relevant CBA provisions, and a court cannot overturn an arbitrator's award merely because the court is "convinced that the arbitrator misread the contract or erred in interpreting it." [Please note that the court did not express any view as to whether the arbitrator properly interpreted the CBA, as that was "neither necessary nor appropriate."]

The hospital argued that the arbitrator improperly read into the contract a duty to bargain that was not explicitly stated in the contract. The court's reaction was that "the arbitrator is not adding new terms to the agreement but is simply finding the inferred terms already in the agreement, albeit only implied."

The hospital argued that the award was contrary to public policy. After reciting a number of statutes and administrative rules regarding infection control in hospitals, the court concluded that requiring the hospital to bargain with the union before implementing its program was not "directly incompatible" with the regulations or the public policies underlying them.

My view: This court understands the limited role courts play once an arbitrator issues a decision. I usually put it this way: The parties agreed to have an arbitrator resolve their dispute, so they can't complain to a court that the arbitrator was wrong. This does not mean that the arbitrator was right or wrong; it just means a court won't fix it.

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