United States District Court, D. New Mexico
DISTRICT 1199NM, NATIONAL UNION OF HOSPITAL AND HEALTHCARE EMPLOYEES, AFSCME, AFL-CIO, Plaintiff,
CHRISTUS ST. VINCENT REGIONAL MEDICAL CENTER, Defendant.
Youtz, Stephen Curtice YOUTZ & VALDEZ, PC Attorneys for
Charles Birenbaum, Jamie R. Adams GREENBERG TRAURIG LLP
Attorneys for Defendants
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the Petition to Confirm
Arbitration Award and Request for Injunctive Relief filed by
Plaintiff District 1199NM, National Union of Hospital and
Healthcare Employees, AFSCME, AFL-CIO (“Union”)
[Doc. 1], and the Motion to Vacate Arbitration Award filed by
Defendant Christus St. Vincent Regional Medical Center
(“Medical Center”) [Doc. 13]. The Court, having
considered the petition, the motion, briefs, relevant law and
being otherwise fully informed, finds that the Medical
Center's Motion to Vacate Arbitration Award [Doc. 13] is
not well-taken and will be DENIED, and that
the Union's Petition to Confirm Arbitration Award and
Request for Injunctive Relief are well-taken and will be
Grievant, Juanita Trujillo, was a long-time Medical Center
employee who had been hired in October 1989 and worked as a
Monitor Tech II in the Critical Care Unit/Intensive Care Unit
(“CCU/ICU”). [Doc. 1-1 at 8]. The job description
for Monitor Tech II states:
Assists nursing staff by transcribing physician orders.
Continuously observes documents, and reports the cardiac
rhythm status in the units and/or on telemetry. Performs
clerical duties insuring accuracy of unit records. Serves as
communication center for nursing unit. Precepts and orients
new M.T.'s and nurses to the telemetry monitors and
to May 2014, Patrick Salas, RN, was appointed Director of the
CCU/ICU. Id. at 7. He was tasked with raising the
level of efficiency, proficiency and patient satisfaction in
the CCU/ICU Department. Id. at 7. The work
relationship between the Director and the Grievant
deteriorated over time. Id. at 8. He believed that
her work product and general behavior had become inconsistent
over the last six months of 2014, and that she failed to
follow medical orders and was casual in complying with
directives from the medical and nursing staff. Id.
The Grievant had 25 years of experience at performing her job
and believed that she was a loyal and productive member of
the medical community. Id. She was irritated that he
called her “Pepita” (meaning “small
dog”). Id. He criticized her for not answering
the telephone at the nurse's station within three rings,
even if she was not present at the time, and for taking
longer than three minutes to use the bathroom, which was
longer than any other employee in the unit. Id. The
Grievant was also troubled that other women on the staff had
reported Mr. Salas to Human Resources. Id.
2014, the Grievant and Mr. Salas had a loud confrontation
over a staffing issue. After she left the hospital at
shift's end, Mr. Salas continued the confrontation by
calling her twice on her cell phone to express his
displeasure and again the following morning on her day off.
Id. In August 2014, he gave her a poor annual
evaluation and required her to complete a 30- day Individual
Success Plan (“ISP”). Id. The Grievant
successfully completed the program. Id.
Grievant received her first warning in an otherwise
unblemished employment record for an October 14, 2014,
incident. Id. On that date, a traveling nurse asked
the Grievant to go to the hospital blood bank and retrieve
blood for a patient on the unit “when she had
time.” Id. at 9. The patient had been
diagnosed with an infection and, before he could receive
antibiotics, it was imperative that he receive a blood
transfusion. Id. The Grievant had not been told that
the patient had been diagnosed with a serious condition and
that time was of the essence in retrieving the blood.
Grievant proceeded down the hallway on her way to the blood
bank, a certified nurse assistant (“CNA”) called
out to her and requested help with a highly agitated patient
who was thrashing around half in and half out of the
restraints holding him in the bed. Id. The patient
had a critical/mainline as well as one IV tube attached to
his body, and there was a danger that the patient might
“bleed out” if the critical/mainline ruptured or
was yanked from his body. Id. While the CNA and
Grievant were struggling to secure the patient back in his
bed, the Grievant yelled out for help. Id. A nurse
arrived, assessed the situation, and went to get medication
to sedate the patient. Id. The nurse eventually
returned and administered the medication, and the patient was
returned to a secure and safe position in his hospital bed.
point, the charge nurse of the CCU/ICU, Cathy Hand, arrived
and asked whether the Grievant had retrieved the blood, was
told she had not. Id. Upon hearing this, Ms. Hand
moved quickly to retrieve the blood herself. Id.
Based on the Grievant's failure to retrieve the blood in
a timely manner, Ms. Hand recommended that the Grievant be
given a written warning. Mr. Salas agreed with Ms. Hand's
recommendation and the Grievant received a written warning on
November 25, 2014. Id. The Grievant did not grieve
the warning. Id.
December 14, 2014, the CCU-ICU was chaotic; the patient
census was high and the staff moved from crisis to crisis.
Id. at 10. The Medical Director of the CCU/ICU gave
Ms. Hand a medical order that a Sitter be placed in the room
of a suicidal patient. Id. Ms. Hand instructed the
Grievant to go to the patient's room and sit with her.
Id. The Grievant was not informed that the patient
was suicidal. Id. She told Ms. Hand she was updating
patient's charts; Ms. Hand advised her to finish what she
was doing and then go to the patient's room. Id.
The Grievant testified that she arrived in the patient's
room approximately ten minutes after being instructed to do
so by Ms. hand. Id. Ms. Handtestified that the
Grievant did not arrive at the patient's room until 5:30
p.m.-45 minutes after she had been ordered to be a Sitter.
Id. However, the Vice-President of Human Resources
testified that the computer records were unreliable and could
not be used to verify the time the Grievant entered the
suicidal patient's room. Id.
on the hospital staff advised the Grievant that the patient
was suicidal, nor was this information posted on the wall
board at the nurse's station. However, when the Grievant
entered the patient's room, the patient told the Grievant
that she was suicidal. Id.
previously noted, the Medical Center has a written
policy/procedure/protocol (the “Sitter Policy”)
for what must take place if a physician writes an order for a
Sitter to be placed in a suicidal patient's room.
Id. at 10-11. The Grievant testified, however, that
she was unaware of the Sitter Policy and had never been
trained to understand that it was hospital policy that a
Sitter should never leave a suicidal patient alone.
Id. at 11.
the Grievant entered the patient's room, the patient
indicated that she was cold and wanted a blanket.
Id. The closet containing the blankets was across
the hall from the patient's room. Id. The
Grievant made sure that the door to the patient's room
was securely open, the curtain was completely open, and that
the patient's significant other would remain in the room
while the Grievant retrieved the blanket. Id. She
testified that she was out of the room for between 30 seconds
and one minute. Subsequently, the patient requested water,
and the Grievant stepped down the hall and retrieved water
for her. Id. While the Grievant was out of the room
getting the water, the patient's significant other and
both parents remained in the room with the patient.
remainder of the shift was uneventful. Nothing was said to
the Grievant about her job performance that day, and she
continued to perform sitting assignments thereafter until she
was terminated in mid-January 2015 pursuant to Article 25 of
the Collective Bargaining Agreement. Id.
Union filed a grievance on behalf of the Grievant, and the
parties submitted the dispute to arbitration under their
November 1, 2012-September 30, 2015, Collective Bargaining
Agreement (“CBA”). Id. at 2. Hearings on
the grievance were conducted on October 6, 2015 and January
12-13, 2016. Id.
26, 2016, Arbitrator Robert H. Monnaville
(“Arbitrator”) issued a decision in favor of the
Union and the Grievant and against the Medical Center in FMCS
Case No. 15-54679. [Doc. 1-1]. In the decision, the
Arbitrator found that the Medical Center did not have just
cause to terminate the Grievant. Id. He sustained
the Grievance and ordered the Medical Center to reinstate
Grievant to her former position with full seniority by June
15, 2016, and make the Grievant whole for lost wages and
benefits pursuant to Article 26.19.6 of the CBA in effect at
the time of her discharge. Id. at 20.
Union filed its Petition to Confirm Arbitration Award and
Request for Injunctive Relief on July 5, 2016. [Doc. 1]. The
Medical Center thereafter filed its Motion to Vacate on
August 1, 2016. [Doc. 13].
THE ARBITRATOR'S DECISION
that the CBA provides that the Employer may discharge or
suspend an employee for just cause, the Arbitrator stated:
common understanding has developed in the field of
labor-management relations that just cause requires:
1) Notice to the Grievant of the rules to be followed and the
consequences of non-compliance;
2) Proof that the Grievant engaged in the alleged misconduct;
3) Procedural regularity in the investigation of the
4) Reasonable and even handed application of discipline,
including progressive discipline where appropriate.
Id. (citing Hill & Sinicropi, Remedies and
Arbitration, 2nd Edition (BNA Books;
1991) p. 137-145. The Arbitrator stated that “[t]he
central issue in this case is whether the Grievant is guilty
of wrong doing and if so, was the conduct serious enough to
give the employer sufficient reason to impose summary
discharge without engaging in progressive discipline.”
Id. He further stated:
The issue of whether or not the employer had just cause to
terminate the Grievant can be determined by answering the
following three questions:
1) Was the Grievant tardy in complying with the Charge
Nurse's order to go to the ...