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June 13, 1984


The opinion of the court was delivered by: OBERDORFER

OBERDORFER, District Judge:

 Cross-motions for summary judgment frame for decision issues about an Arbitrator's award which sustained an employer's decision to discipline an employee, but modified the discipline imposed. The parties' statements of undisputed facts filed pursuant to Local Rule 1-9(h) establish that the employee, a unit clerk at Children's Hospital National Medical Center (the "Hospital"), became provoked by teasing with racial implications which she received from three male patients who were about 11 years old. She reacted by laying hands on one of the boys and scolding him in a way which upset him. The Hospital determined that the employee "had lost complete control over her conduct, . . . could not be trusted with patients again," and should be discharged.

 The employee's union filed a grievance on account of the discharge. The grievance culminated in an arbitration before an arbitrator selected from a list furnished by the Federal Mediation and Conciliation Service. At the arbitration hearing the employee's representative stated, without contradiction by the employer, the issue for arbitration to be:

Was the Grievant . . . discharged for just cause? If not, what is the remedy ? (Emphasis added).

 In the Matter of the Grievance Arbitration Between The Children's Hospital National Medical Center and the Service Employees International Union (Oct. 21, 1983) at 5; Post-Hearing Brief of the Union at 1. After the hearing, the Arbitrator ruled that the employer was justified in disciplining the employee (id at 8), and that her "actions were a very serious matter and clearly warranted strong discipline," but that the circumstances did not justify her discharge. Id. at 9. The Arbitrator reduced the sanction to a 30-day suspension and ordered the employee reinstated with back pay, stating:

On the question of the extent of the penalty, however, the Arbitrator believes discharge to be too extreme in this case. Although the boys' stupid racial slur was not sufficient to excuse the Grievant's angry response, the Nurses should have been more sensitive to their import and to the Grievant's feelings about them. This must be considered as a mitigating circumstance. Also, there is no evidence that up to that time the Grievant had not been a satisfactory employee, or any definite proof that the Grievant injured [the young patient]. In these circumstances, the Arbitrator is persuaded that the Grievant should be given the benefit of corrective discipline. . . .
Accordingly, the Arbitrator finds the discharge was not for just cause. It is modified to a disciplinary suspension of 30 calendar days. This is a stiff penalty, but it is necessary to fully impress upon the Grievant that in the future she should not under any circumstances touch a patient in anger.

 Id. at 8-9.

 Neither party mentioned to the Arbitrator before or in the course of the hearing, provisions of the collective bargaining agreement that

the hospital recognizes the principle of progressive discipline and will utilize it when appropriate; provided, however, this principle shall not restrict the Hospital in its discretion to determine the appropriate discipline based on the facts of each case.

 Agreement, Article III, Section 3.01. In an application for reconsideration, however, the employer asked the Arbitrator to reconsider his ruling, and, for the first time, invoked the provisions of the collective bargaining agreement which gave it discretion with respect to so-called progressive discipline. Defendant's Ex. D. The Arbitrator denied the application for reconsideration on the ground that "once an arbitrator has rendered an award, the arbitrator has no further power over the case." Ruling on the Employer's Request to Correct the Arbitrator's Decision (Jan. 25, 1984) at 3.

 Defendant asserts in support of its motion for summary judgment that the Arbitrator exceeded his authority when he modified the discharge. The Hospital also asserts that the Arbitrator's decision should be set aside because it violates local public policy, primarily District of Columbia law proscribing assault and battery, and the Hospital's duty to protect its patients.

 Plaintiff counters that the Arbitrator did no more than decide the issue presented by the parties, that the Arbitrator was authorized by the essence of the collective bargaining agreement to resolve the issues so presented, that the Arbitrator's decision to modify the discharge was based on other considerations than the principle of "progressive discipline," that the local public policy against assault and battery and the Hospital's legal obligation to protect its patients does not mandate discharge as distinguished from some other penalty, and that overall the national policy favoring resolution of labor disputes by arbitration requires confirmation of this award.

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