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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.

 Defendant's principal contention is that Article III, section 3.01 of the collective bargaining agreement withheld from the Arbitrator jurisdiction to review the employer's exercise of its "discretion to determine the appropriate discipline." Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment at 12. The short answer to this contention is that both parties plainly submitted the question of "remedy" to the Arbitrator when the employee stated the question to include, without exception from the Hospital, ". . . what is the remedy?" Here, the employer failed to invoke the allegedly restrictive provisions of the contract until after the Arbitrator ruled. Both parties waived any objection to the Arbitrator's jurisdiction to review the remedy when they submitted the issue to him on the record. Cf. International Brotherhood of Teamsters v. Washington Employers Inc., 557 F.2d 1345, 1350 (9th Cir. 1977). Moreover, the Arbitrator's decision not to reopen his decision was, in the circumstances, appropriate and thoroughly consistent with the policy of arbitration law that decisions be rendered swiftly. See United Steelworkers v. Enterprise Corp., 363 U.S. 593, 599, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).

 In addition, the employee demonstrates persuasively that, contrary to the employer's contention, the contract language giving it "discretion" with respect to "the appropriate discipline" does not foreclose arbitration of excessive discipline. Plaintiff notes that in contractual areas where the parties agreed to preclude arbitration, they said so in plain words. Thus in Article II, section 2.02 of the collective bargaining agreement, the parties both vest discretion to subcontract in the employer and specifically withdraw exercise of that discretion from the arbitration process. More important, another contract provision specifically subjects to the grievance procedure, presumably including arbitration, "any complaint by an employee or the union relative to any disciplinary action." Agreement, Article III, Section 3.02.

 The employee has effectively countered the employer's claim that reduction of the penalty was contrary to the public policy against assault, battery, and requiring hospitals to protect patients. Assuming such a policy to be important and clearly established by law, the Arbitrator's decision is not inconsistent with that policy. He condemned the employee's action and prescribed punishment for it. Nothing in law or policy clearly proscribes employment in a hospital, even a hospital for children, of a person who has been involved in an incident of the sort related here. Even if the employee had been prosecuted and convicted (which she conspicuously was not), there is no law or policy which would have barred her from future employment in a hospital for children. Cf. Amalgamated Meat Cutters and Butcher Workmen v. Great Western Food Co., 712 F.2d 122 (5th Cir. 1983) (drunk commercial driver); American Postal Workers Union v. U.S. Postal Service, 682 F.2d 1280 (9th Cir. 1982), cert. denied, 459 U.S. 1200, 103 S. Ct. 1183, 75 L. Ed. 2d 431 (1983) (strike against the government).

 Nor does the Arbitrator's adjustment of the remedy condone abuse of hospital patients by hospital employees. The Arbitrator's decision does not preclude discharge of a drunk, a drug abuser, a person who becomes violent without provocation, or a repeat offender. Rather it subjects the decision as to punishment to the same law of the workplace which determines in the first instance whether any discipline is indicated.

 It appearing that plaintiff is entitled to enforcement of the arbitration award as a matter of law, plaintiff's motion is granted, and defendant's motion denied, in the accompanying order. As defendant's position does not evince bad faith, each party shall bear its own attorneys' fees.


 Upon consideration of the parties' motions for summary judgment, it is this 12th day of June, 1984, hereby

 ORDERED: that plaintiff's motion for summary judgment in favor of its claims be GRANTED, and judgment is hereby entered in plaintiff's favor; and it is further

 ORDERED: that defendant's motion for summary judgment be DENIED; and it is further

 ORDERED: that defendant's counterclaim be and it is hereby DISMISSED.


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