The court affirmed the arbitrator's decision, opening its opinion by recognizing the hospital's “commendable desire to protect its vulnerable patients from infection from the flu” as well as “the impressive list of health authorities and experts” that recommends immunization of the health-care workforce. But, the court noted, federal labor laws authorizing collective bargaining are designed with a strong public policy purpose in mind; namely, the advancement of private collective bargaining. Thus, grievance decisions by labor arbitrators are entitled to considerable deference and can be vacated only if the decision “fail[s] to draw its essence from the CBA itself [citations omitted] or … [violates] an ‘explicit, well-defined, and dominant public policy.’”1
In arguing that the arbitrator's ruling was erroneous, the hospital pointed to three CBA provisions that it claimed permitted the imposition of its mandatory immunization policy: a patient care priority clause, a management rights clause, and the zipper clause. Noting that the decision could be vacated only if the arbitrator ignored the plain language of the contract or had “misread the contract or erred in interpreting it,”1
the court found no evidence that the arbitrator had misread the terms of the CBA. Instead, the court concluded, the arbitrator had merely interpreted the contract in the Association's favor in light of the terms of the agreement and the facts of the case. Under labor law, labor arbitrators are given broad latitude to interpret and apply CBA clauses, and their interpretations will be set aside only if not plausible on their face.
In this case, according to the court, the facts confirmed that the hospital indeed had attempted to add a condition of employment rather than merely implement existing policies as a matter of hospital operations. In this regard, the management rights clause could not help the hospital, as this clause could not shield the hospital from liability for attempting to change terms and conditions that were fundamental to continued employment. Indeed, these were precisely the types of decisions that were classified under the CBA as covered by the obligation to collectively bargain. The court also found that although immunizations were not explicitly addressed in the CBA, the failure to specify immunizations did not alter their status as conditions of employment, which were covered by the agreement.
Undoubtedly the most interesting aspect of the case from a public health policy perspective was the court's treatment of the question as to whether there was an “explicit, well-defined, and dominant public policy” with respect to the immunization of health-care workers that, as a matter of law, trumped privately bargained union contracts. In making its public policy argument, the hospital pointed to numerous laws: state hospital licensure laws that require hospitals to “develop and implement written policies and procedures consistent with the published guidelines of the… [Centers for Disease Control and Prevention]”;2
federal Medicare regulations setting forth conditions of participation for hospitals3
that mandate that participating hospitals maintain an “active program for the prevention, control, and investigation of infections and communicable diseases”; and the state's Uniform Disciplinary Act setting forth professional nursing standards that classify as a violation “[engaging] in a profession involving contact with the public while suffering from a contagious or infectious disease involving serious risk to public health.”4
The court concluded, however, that none of these laws amounted to an “explicit, well-defined, and dominant public policy” regarding immunization of the health-care workforce. The court reasoned as follows:
Hospitals theoretically could be liable… for the unprofessional conduct of their nurse employees, but [the hospital could not cite] a single example of a hospital facing legal action because a patient contracted the flu from a health care worker. Nor has [the hospital] provided any evidence of its inability, or the inability of peer institutions that do not require flu immunization of all employees, to comply with the state and federal regulatory regimes on infection control…1
In other words, said the court, the hospital could not justify immunizations as a legal liability compliance step that was designed to avert exposure to medical negligence. The hospital simply could not show any case in which hospitals had been successfully sued over their failure to prevent preventable infection.
Nor could the hospital claim that regulatory law required immunization of its workforce, because neither federal nor state law explicitly required such preventive actions. Both federal and state law simply ambiguously referred to prevention, infection control, and other policy goals without specifying any particular action on the part of hospitals in furtherance of these general policies. Given the standards' vagueness, no hospital could reasonably be subjected to the loss of its license or its Medicare participation rights; indeed, were an enforcement action to be brought against the hospital on the grounds that its workers were not immunized, the hospital in all likelihood could have successfully defended against such an action based on the standards' vagueness, given the constitutional imperative of clarity in the regulation of private rights.5
Simply put, legislatures and regulatory agencies know how to write binding, explicit statutory and regulatory standards. Here, none existed. As a result, the court simply would not permit one party to a CBA to unilaterally impose a change in the conditions of employment of a unionized workforce that had bargained in good faith.