United States Court of Appeals 

For the First Circuit 

No. 18-2263 

STEWARD HOLY FAMILY HOSPITAL, INC., 

Plaintiff, Appellee, 

v. 

MASSACHUSETTS NURSES ASSOCIATION, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Nathaniel M. Gorton, U.S. District Judge] 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

James F. Lamond, with whom Allison J. Zimmon and McDonald 

Lamond Canzoneri were on brief, for appellant. 

 Joshua D. Nadreau, with whom Joseph W. Ambash and Fisher & 

Phillips, LLP were on brief, for appellee. 

August 1, 2019 
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KAYATTA, Circuit Judge. After Maureen Bean grabbed the 

face of a colleague at work, the Steward Holy Family Hospital ("the 

Hospital") terminated her employment as a nurse in the medicalsurgical unit. Bean's union, the Massachusetts Nurses Association 

("the Union"), then initiated grievance procedures against the 

Hospital, arguing that there was not just cause for her termination 

under the parties' collective bargaining agreement (CBA). The 

parties submitted the dispute to an arbitrator. After establishing 

that Bean had engaged in misconduct providing just cause for 

discipline, the arbitrator concluded that Bean's termination was 

nevertheless unwarranted and ordered that she be reinstated with 

backpay. The Hospital initiated this action to vacate the 

arbitrator's award, asserting that the arbitrator exceeded his 

authority under the parties' CBA. The U.S. District Court for the 

District of Massachusetts agreed and entered summary judgment for 

the Hospital. We now reverse. 

I. 

Both parties accept the general proposition that "an 

arbitrator's factual findings are not open to judicial challenge." 

El Dorado Tech. Servs., Inc. v. Union Gen. de Trabajadores, 961 

F.2d 317, 320 (1st Cir. 1992). So, we summarize the facts as they 

are presented in the arbitrator's opinion. 

This case arose out of confusion surrounding the 

granting of vacation requests by nurses within the medical-
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surgical unit of the Hospital. Chris Ouellet, the supervising 

nurse in that unit, maintained a policy of resolving competing 

vacation requests based on seniority. In January 2016, Ouellet 

received vacation requests for the first week of March from Bean, 

two more senior nurses, and a junior nurse, Nancy Waterhouse. 

Ouellet denied Bean's request but instead offered her the second 

week in March, which Bean accepted. Upon inspecting the vacation 

calendar in the nurses' break room, Bean discerned that Waterhouse 

-- who had submitted an earlier request and had already paid a 

deposit on a vacation rental -- had received approval from Ouellet 

to take off the first week in March.

Not pleased with this turn of events, Bean called 

Waterhouse's home numerous times, leaving multiple voicemails and 

requesting that Waterhouse return her calls before the two briefly 

"discuss[ed] the vacation situation without rancor." The 

following weekend, Bean called and left messages for Waterhouse on 

Friday, Saturday, and Sunday to inform her of an upcoming union 

meeting that had been calendared to discuss problems related to 

scheduling vacations. Waterhouse did not return Bean's calls. 

Then, while Waterhouse and Bean were both clocking into work the 

following Tuesday, Bean confronted Waterhouse about her unreturned 

calls, squeezed Waterhouse's cheek, and, "talking like a baby, 

asked if everything worked out with her vacation." Waterhouse 

angrily told Bean to "worry about [her] own vacation." Later that 
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day, Bean came up behind Waterhouse, ran a finger along her back, 

and said, "I didn't mean to upset you back there. We need to do 

something about this vacation policy." Waterhouse responded that 

she agreed that something needed to be done about the vacation 

policy but that she did not appreciate the phone calls or Bean's 

grabbing her by the face. 

Ten days later, Waterhouse reported the incident to the 

Hospital's Human Resources Department. This was not the first 

time that Bean's coworkers had reported her for misconduct. Four 

years earlier, Ouellet counseled Bean after she "angrily pulled 

the ponytail of a colleague." Ouellet again counseled Bean after 

she reportedly "demeaned a student nurse and offended [the resident 

nurse]." And just one week before the altercation with Waterhouse, 

Ouellet gave Bean a verbal warning for "profanely defying 

[Ouellet's] directive." Following an investigation into 

Waterhouse's allegations, the Hospital terminated Bean. It based 

the termination solely on its conclusion that Bean had indeed 

grabbed Waterhouse by the face -- an act that the Hospital deemed 

an "assault." The Union then initiated grievance proceedings 

against the Hospital on Bean's behalf, arguing that Bean was not 

guilty of misconduct and, alternatively, that termination was a 

disproportionate response to Bean's alleged wrongdoing. 

The CBA provides for the use of arbitration to resolve 

formal grievances related to the Hospital's "interpretation, 
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application, or enforcement" of the CBA. Significantly, however, 

the arbitrator's authority to resolve grievances arising under the 

CBA is not plenary under the terms of the CBA. The text of the 

CBA as it bears on the scope of that authority is as follows:

 Article V, Management Rights 

o Section 1: "Except to the extent expressly limited by 

this Agreement, the Hospital retains the exclusive 

right . . . to discipline and discharge Employees for 

just cause . . . [and] to issue, amend and enforce 

reasonable work rules and policies not inconsistent with 

the provisions of this Agreement." 

 Article X, Grievance and Arbitration 

o Section 5: "The Arbitrator's authority shall be limited 

to the interpretation and application of the parties' 

Agreement. No arbitrator shall have the authority to 

add to, subtract from, or modify the Agreement in any 

respect, or to substitute his/her discretion or judgment 

for that of the Hospital." 

 Article XXXIII, Discipline and Discharge 

o Section 1: "A Nurse who has completed his/her 

probationary period and has acquired seniority under 

this Agreement shall not be suspended, discharged, 

demoted or otherwise disciplined except for just cause. 

Discipline may include, but is not limited to, 
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counseling, verbal warnings, written warnings, 

suspension and/or termination. The Hospital may utilize 

whatever level of discipline it believes is appropriate 

depending on the circumstances, but it will make 

reasonable efforts to utilize progressive discipline." 

 Appendix G 

o "All existent policies applicable to bargaining unit 

employees are hereby included in this CBA by reference, 

except to the extent that the express terms of this 

collective bargaining agreement supersede any 

contradictory provision of an existing policy." 

The parties submitted the following issues to the 

arbitrator for resolution: "Was the termination of Maureen Bean 

for just cause? . . . If not, what shall be the remedy?" Rejecting 

Bean's denial that she had grabbed Waterhouse, the arbitrator 

concluded that Bean had engaged in an inappropriate, unconsented 

touching "for which there was just cause to impose discipline." 

Nevertheless, he then found that Bean's conduct did not warrant 

"termination in the first instance, without progressive 

discipline." Accordingly, the arbitrator directed the Hospital to 

reduce its penalty to a written warning and to reinstate Bean with 

backpay. 

The Hospital filed suit, arguing that the arbitrator 

exceeded the scope of his authority under the CBA in vacating the 
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Hospital's decision to terminate Bean and in ordering her 

reinstatement. The district court entered summary judgment for 

the Hospital, see Steward Holy Family Hosp., Inc. v. Mass. Nurses 

Ass'n, 350 F. Supp. 3d 7, 16 (D. Mass. 2018), and this appeal 

followed. 

II. 

"In order to assess whether the arbitrator exceeded his 

contractual authority to resolve the parties' dispute, we look 

first at the specific provisions of the CBA and the agreement to 

arbitrate it contains." Butler Mfg. Co. v. United Steelworkers, 

336 F.3d 629, 633 (7th Cir. 2003). Additionally, "an arbitrator's 

authority under the CBA may be supplemented by the parties' 

submissions." Dorado Beach Hotel Corp. v. Union de Trabajadores 

de la Industria Gastronomica de P.R. Local 610, 959 F.2d 2, 4 (1st 

Cir. 1992); see also Butler Mfg. Co., 336 F.3d at 633 ("[W]e may 

also consult the parties' submissions . . . to see if there was a 

post-dispute agreement to submit additional questions to the 

arbitrator."). 

We have labelled the degree of deference that we afford 

an arbitrator's interpretation of the governing arbitration 

agreement as "extreme." Salem Hosp. v. Mass. Nurses Ass'n, 449 

F.3d 234, 237 (1st Cir. 2006). "If an arbitration award rests on 

a plausible interpretation of the underlying contract, we must 

uphold it." Id.; see also United Paperworkers Int'l Union v. 
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Misco, Inc., 484 U.S. 29, 38 (1987) ("[A]s long as the arbitrator 

is even arguably construing or applying the contract and acting 

within the scope of his authority, that a court is convinced he 

committed serious error does not suffice to overturn his 

decision."). That said, "[t]he arbitrator cannot . . . ignore the 

contract and simply dispense 'his own brand of industrial 

justice.'" Kraft Foods, Inc. v. Office & Prof'l Emps. Int'l Union, 

Local 1295, 203 F.3d 98, 100 (1st Cir. 2000) (quoting United 

Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 

(1960)). 

The Hospital suggests that the Supreme Court's command 

that we uphold an arbitrator's decision so long as "the arbitrator 

is even arguably construing or applying the contract and acting 

within the scope of his authority," Misco, Inc., 484 U.S. at 38, 

denotes a disjunctive test whereby a reviewing court only reaches 

the "arguably construing or applying" (i.e., "plausibility") 

inquiry after first determining that the arbitrator acted within 

the scope of his authority. In this proffered, disjunctive 

formulation of our standard of review, the Hospital appears to 

conflate the standard by which we review questions of arbitrability 

with that which we use to address the question presented in this 

case -- that is, whether the arbitrator acted within the scope of 

the authority granted to him under the parties' agreement. Compare 

Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 7 (1st 
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Cir. 2014) ("'Unless the parties clearly and unmistakably provide 

otherwise,' the court must resolve a disagreement among the parties 

as to whether an arbitration clause applies to a particular 

dispute." (citation omitted) (quoting AT&T Techs., Inc. v. 

Commc'ns Workers, 475 U.S. 643, 649 (1986))), with Salem Hosp., 

449 F.3d at 238 (observing that in reviewing an arbitrator's 

interpretation of her own authority under the parties' agreement, 

we ask "whether the arbitrator had a plausible basis for her 

determination"). While we acknowledge that it might sometimes be 

difficult to determine whether a challenge to an arbitration award 

poses a question of arbitrability or a question of whether the 

arbitrator acted within the scope of his delegated authority, see 

Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569 n.2 (2013) 

(noting that the plaintiff might have alternatively challenged the 

arbitration award on the basis of arbitrability), the Hospital 

itself frames the question at hand as a challenge to the manner in 

which the arbitrator elected to resolve the admittedly arbitrable 

dispute as exceeding the scope of his authority under the terms of 

the CBA. This question is governed by our normal, deferential 

plausibility standard. See, e.g., id. at 568-69; N. New England 

Tel. Operations LLC v. Local 2327, Int'l Bhd. of Elec. Workers, 

735 F.3d 15, 21 (1st Cir. 2013); Salem Hosp., 449 F.3d at 238; 

Poland Spring Corp. v. United Food & Commercial Workers Int'l 
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Union, Local 1445, 314 F.3d 29, 33 (1st Cir. 2002); Dorado Beach 

Hotel Corp., 959 F.2d at 4–5. 

In finding that the CBA invites no plausible 

interpretation that would have allowed the arbitrator to reject 

the Hospital's chosen penalty of termination, the district court 

-- like the Hospital -- relied on two basic arguments. First, it 

pointed to the fact that the CBA incorporated a policy that deemed 

threatening or intimidating conduct to be just cause for 

termination. Second, it relied on the CBA's reservation to the 

Hospital of certain rights in connection with employee discipline. 

We consider each argument in turn. 

A. 

Appendix G of the CBA incorporates into the parties' 

agreement "[a]ll existent policies applicable to bargaining unit 

employees." The district court first looked to one such policy, 

the "Disciplinary Action Policy," which categorizes employee 

infractions within three groups and provides appropriate 

disciplinary responses based on the severity of the offense and 

the employee's history of misconduct. Group III includes the most 

serious employee infractions, such as reporting to work under the 

influence of alcohol, possessing weapons on hospital property 

without permission, and theft, and it also includes the less 

pellucid offense of "[t]hreatening, intimidating, or coercing 

fellow employees on the premises at any time for any purpose." 
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This latter offense, in turn, refers to the Hospital's "Zero 

Tolerance for Disrespect" policy, which provides that the Hospital 

"will not tolerate verbal, written or physical conduct by anyone 

who works or practices at [the Hospital]" that "[c]reates an 

intimidating, offensive or hostile environment" or "[d]isrupts the 

operation of the [H]ospital or individuals working therein." While 

Group I1 and Group II2 offenses provide for a scheme of progressive 

discipline -- beginning with a verbal or written warning, including 

a final written warning, and ending with termination -- the only 

recommended penalty for a Group III offense is "immediate 

termination." 

The district court then observed that once the 

arbitrator concluded that Bean's conduct "constituted a 'civil 

battery'" -- a finding the court deemed "consistent with the 

Hospital's determination that Bean had engaged in a Group III 

offense for which immediate termination was justified" -- the 

arbitrator's "role was fulfilled" and he was not at liberty to 

 1 Group I includes infractions such as "[a]bsenteeism," 

"[l]oitering during work hours," and "[o]ther minor inappropriate 

behavior." The policy provides for a verbal warning, a written 

warning, a final written warning, and termination for a first, 

second, third, and fourth Group I offense, respectively. 

2 Group II includes offenses such as "[o]bscene or 

inappropriate language," "[s]ubstantial interference with work of 

other employees," and "[o]ther inappropriate behavior." The 

policy provides for a written warning, a final written warning, 

and termination for a first, second, and third Group II offense, 

respectively. 
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prescribe a lesser form of discipline. Steward Holy Family 

Hospital, Inc., 350 F. Supp. 3d at 14–15. The Hospital parrots 

this reasoning on appeal. 

We cannot accept this logic because we do not read the 

arbitrator's decision as concluding that Bean's offense was a Group 

III offense. The decision does not expressly assign Bean's offense 

to any single Group. Nevertheless, the arbitrator did expressly 

find that Bean's act "was not so serious that it justified 

termination in the first instance" and that it called for 

progressive discipline, including a written warning and a final 

warning, prior to termination. Only Groups I and II call for 

proceeding in this manner. 

The Hospital contends that the classification of Bean's 

infraction as a Group III offense is nevertheless "inescapable," 

constituting an "intentional tort" of just the sort referred to in 

the Hospital's "Zero Tolerance for Disrespect" policy. In other 

words, the Hospital would have us deem implausible any reading of 

this policy that would classify Bean's offense as a non-Group III 

offense. We cannot agree. The Hospital's Disciplinary Action 

Policy by its terms provides "guidelines" and "examples" that would 

warrant a recommended penalty of immediate termination. And some 

of the descriptions of qualifying conduct listed in the 

Disciplinary Action Policy are quite vague, leaving the arbitrator 

significant discretion to interpret their meaning and determine 
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whether they encompass Bean's infraction. See, e.g., Poland Spring 

Corp., 314 F.3d at 36 ("[A]rbitrators have significant discretion 

to interpret the terms of a collective bargaining agreement."); 

id. at 37 (Boudin, J., concurring) ("Here, the arbitrator could 

permissibly have read the contract to mean that some acts of 

disobedience constitute 'insubordination' within the meaning of 

the contract and that other, less severe acts -- although literally 

disobedience -- do not."); Ga.-Pac. Corp. v. Local 27, United 

Paperworkers Int'l Union, 864 F.2d 940, 945 n.2 (1st Cir. 1988) 

("Although the collective bargaining agreement in this case 

authorizes immediate discharge for dishonesty, it does not define 

that term. It is thus up to an arbitrator to decide whether a 

given pattern of conduct amounts to dishonesty."). 

The Hospital argues that Bean's conduct necessarily 

falls under the Group III offense of "[t]hreatening" or 

"intimidating" a "fellow employee[] on the premises at any time 

for any purpose." But the arbitrator found that while "Ms. 

Waterhouse understandably felt mildly bullied and upset by the[ir] 

interaction," nothing in the record indicated that "[Bean] 

intended harm or that Ms. Waterhouse was placed in fear." Indeed, 

Monica Messina, the only third-party witness to the incident, 

described the cheek squeeze as a "friendly gesture." And in light 

of the quite serious offenses listed in Group III -- such as the 

"[u]nauthorized possession of weapons on hospital property," 
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"[t]heft," and "[r]eporting to work under the influence of alcohol 

or any other substance" -- an arbitrator could have plausibly 

interpreted Bean's conduct as not amounting to the same level of 

seriousness as the other offenses listed in that category. For 

similar reasons, nothing in the record compels the conclusion that 

Bean's conduct "[c]reate[d] an intimidating, offensive or hostile 

environment" or "[d]isrupt[ed] the operation of the [H]ospital or 

individuals working therein" so as to trigger the Hospital's Zero 

Tolerance Policy. In short, even assuming that the arbitrator 

could not overrule a decision by the Hospital to terminate an 

employee for committing a Group III offense, nothing in the CBA or 

the incorporated policies inarguably required that the arbitrator 

classify Bean's conduct as a Group III offense. Hence, the 

Hospital's argument that the arbitrator exceeded his authority by 

misapplying the CBA and rejecting its recommended penalty of 

termination for a Group III offense fails. 

B. 

More ambitiously, the Hospital argues that the CBA 

generally insulated the Hospital's choice of discipline from 

arbitral review once the arbitrator concluded that just cause 

existed for discipline of some type, Group III or not. In its 

view, "[h]aving concluded that [Bean] was guilty of the misconduct 

for which she had been terminated, the arbitrator lacked the 

authority to modify the discipline." In support of this reading, 
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the Hospital points to Article X, section 5 and Article XXXIII, 

section 1 of the CBA (both set forth above). 

We find the foregoing provisions too ambiguous to 

shackle the arbitrator in this way. The Hospital certainly 

retained the exclusive right to discipline and discharge even 

tenured, non-probationary nurses, but it could only do so for "just 

cause." Similarly, while the CBA states that the "Hospital may 

utilize whatever level of discipline it believes is appropriate," 

the Hospital acknowledges on appeal that the CBA expressly 

conditions this right on the Hospital making "reasonable efforts 

to utilize progressive discipline." The Hospital's reliance on 

the provision that prohibited the arbitrator from "substitut[ing]" 

his discretion for that of the hospital fails for the same reason. 

The Hospital's discretion was already limited by just cause and 

its promise to make "reasonable efforts to utilize progressive 

discipline." In the words of the Hospital's brief: "In Article 

XXXIII of the CBA, the parties agreed that the Hospital has the 

right to 'utilize whatever level of discipline it believes is 

appropriate depending on the circumstances,' provided that it 

makes reasonable efforts to use progressive discipline" (emphasis 

added). And, as we have already explained, Appendix G to the CBA 

incorporates the Disciplinary Action Policy, which identifies 

progressive forms of discipline in a manner that omits discharge 

as an option in many situations, plausibly including the situation 
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presented here. One must strain too hard to find no plausible 

construction of this language that would allow an arbitrator to 

conclude that the Hospital impermissibly forewent the use of 

progressive discipline in this case. 

The CBA itself provides further support for the 

conclusion that the Hospital's reserved right to discipline 

workplace misconduct is conditioned on notions of just cause and 

its use of progressive discipline, the reasonableness of which is 

subject to arbitral review. Article XI, section 5 addresses one 

particular type of employee misconduct not at issue here: 

violations of the contract's "no strike" provisions. The language 

in that section plainly says what the Hospital would have us read 

the more general discipline and discharge provisions as saying for 

all misconduct: "[A]n arbitrator may consider only whether the 

employee engaged in conduct which violates the provisions of this 

Article . . . [and] shall not have the authority to modify the 

degree of discipline imposed."3 The fact that the same CBA eschews 

 3 Article XI, section 5 reads in its entirety: "Any Nurse 

who engages in any conduct which violates the provisions of this 

Article shall be subject to discipline up to and including 

immediate discharge. In an arbitration concerning the discipline 

or discharge of an employee for violating the provisions of this 

Article, an arbitrator may consider only whether the employee 

engaged in conduct which violates the provisions of this Article. 

If the Arbitrator concludes that the employee engaged in any 

conduct which violates the provisions of this Article, such 

violation shall constitute just cause, and the grievance shall be 

denied. The Arbitrator shall not have the authority to modify the 

degree of discipline imposed." 
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such simple and plain language regarding discipline for other 

conduct (such as Bean's) supports the arbitrator's assumption that 

his authority was not so limited. 

The Hospital also seeks haven in three prior cases in 

which we have stricken arbitral awards. See Poland Spring Corp., 

314 F.3d at 31, 34–35 ("[O]nce an arbitrator finds that an employee 

has committed an act specifically listed in the collective 

bargaining agreement as providing just cause for termination, the 

arbitrator is not free to fashion a separate remedy apart from the 

one provided by the parties' agreement."); Ga.-Pac. Corp., 864 

F.2d at 945–46 (concluding that once the arbitrator found that the 

employee had committed an act of dishonesty for which the agreement 

imposed immediate discharge as a sanction, "the arbitrator was 

barred from further inquiry"); S.D. Warren Co. v. United 

Paperworkers' Int'l Union, AFL-CIO, Local 1069, 845 F.2d 3, 7–8 

(1st Cir. 1988) (finding that the arbitrator was not even arguably 

construing or applying the agreement when "the contract plainly 

state[d] that the company ha[d] the sole right to discharge 

employees for the violation which admittedly occurred," but the 

arbitrator nevertheless ordered a reduced penalty). We disagree 

with the Hospital that this case is analogous to these earlier 

precedents. Here, the CBA did not inarguably grant the employer 

the right to terminate a tenured, non-probationary nurse for the 

type of conduct at issue without first following the parties' 
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agreement that the Hospital would make reasonable efforts to use 

progressive discipline. 

Because we find that the arbitrator did not exceed the 

scope of his authority under the CBA in determining that Bean's 

conduct did not fall within a Group III offense and ordering a 

lesser form of discipline in accordance with the CBA and the 

Hospital's own disciplinary policies, we need not address the 

Union's alternative argument that the parties' submissions 

expanded the scope of the arbitrators' authority to order a less 

severe form of discipline. Nor does the Hospital present us with 

any argument that the arbitrator selected the wrong level of 

discipline in view of Bean's prior infractions. 

III. 

For the foregoing reasons, we reverse the district 

court's entry of summary judgment for the Hospital, and we remand 

for proceedings consistent with this opinion.