UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SEIU HEALTHCARE MICHIGAN

f/k/a SEIU Local 79,

Plaintiff,

v. Case No. 09-13215

Honorable Patrick J. Duggan

ST. MARY’S ACQUISITION CO.,

INC., d/b/a ST. MARY’S NURSING HOME,

Defendant.

____________________________/

OPINION AND ORDER 

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on May 27, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Plaintiff SEIU Healthcare Michigan (“SEIU”) filed this action pursuant to Section

301 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), seeking to

confirm an arbitration award that overturned the dismissal of SEIU member Angelia

McCurrie from her employment with Defendant St. Mary’s Acquisition Company, Inc.,

doing business as St. Mary’s Nursing Home (collectively “St. Mary’s”). On February 14,

2010, SEIU filed a motion for summary judgment asking the Court to confirm the

arbitrator’s award and award attorneys’ fees and costs to SEIU based on St. Mary’s

refusal to comply with the award. On February 16, 2010, St. Mary’s filed a motion for

summary judgment asking the Court to vacate the arbitrator’s award. Both motions have

been fully briefed and the Court held a motion hearing on May 26, 2010. For the reasons
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that follow, the Court denies SEIU’s motion and grants St. Mary’s motion.

Background

In August 2006, Angelia McCurrie (“McCurrie”) began working as a certified

nursing assistant at St. Mary’s which is a long term care facility and rehabilitation center. 

Throughout her employment at St. Mary’s, McCurrie was a member of a bargaining unit

of employees represented by SEIU, a labor organization.

SEIU and St. Mary’s are parties to a collective bargaining agreement (“CBA”)

which was effective from January 26, 2007, through January 25, 2010. (Doc. 17, Ex. A.)

The CBA provides for arbitration of “grievances” arising thereunder and states that the

arbitrator’s decision “shall be final and binding . . . if within [the] scope of his authority

as outlined [therein].” (Id. at Art. XV § 3.) The CBA defines a “grievance” as “a dispute,

claim or complaint arising during the term of this Labor Agreement . . . limited to matters

of interpretation and application of the contract, including all disciplinary action taken by

the Employer.” (Id. § 1.)

As relevant to the pending matter, the CBA places the following restriction on the

arbitrator’s power: “The Arbitrator shall have no power to substitute their [sic] discretion

for the Employer’s discretion in cases where the Employer is given sole discretion to act

by this Agreement or by any supplement or amendment thereto.” (Id. § 3.) Article VIII

of the CBA reserves to St. Mary’s “all rights, powers and authority inherent in and/or

customarily exercised by management.” (Id. at Art. VIII § 1.) With respect to “[s]uch

prerogatives, rights, powers, authorities and functions,” the CBA includes without
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limitation:

the sole and exclusive rights to:

1. Hire, promote, demote, layoff, assign, transfer,

suspend, discharge and discipline employees for just

cause.

. . .

12. Establish[,] post and enforce reasonable rules and

regulations governing the conduct and acts of

employees during working hours.

 (Id.)

St. Mary’s has set forth rules and regulations governing its employees’ conduct

and the punishment for violations of these rules and regulations in its Employee

Handbook. (Doc. 17, Ex. B.) As relevant to this proceeding, the Employee Handbook

prohibits employees from “sleep[ing] on the job.” (Id. at 21.) This offense is among

twenty-six (26) offenses that the Employee Handbook provides “will result in

IMMEDIATE TERMINATION (FIRST OFFENSE) . . .” (Id. at 21-22 (emphasis in

original).)

McCurrie was on duty to work at St. Mary’s from 11:00 p.m. on December 20,

2007, through the morning of December 21, 2007. (Doc. 17, Ex. C at 4.) Supervisors

reported to Katherine Bruss, St. Mary’s former Acting Director of Nursing, that during

this shift McCurrie improperly performed an assignment regarding a “firewatch” she was

assigned to make and record, disobeyed an instruction to stay at her assignment on the

facility’s east wing, and was sleeping at a nursing station during her shift. (Id. at 3.) 
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As summarized by the arbitrator, the writeup listed the following violations,

referencing where applicable the number of the offense as identified in St. Mary’s

Employee Handbook: “#10 Employee will not sleep on job”; “#4 Failure to satisfactorily

perform job duties and responsibilities”; “Employees shall not refuse to work as directed

or refuse to perform assigned job; “#26 Other conduct or neglect of duties determined to

be detrimental to the welfare of residents.” (Doc. 17 Ex. C at 7.)

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Based only on the last offense, Bruss made the decision to discharge McCurrie. (Id.) 

However, the “writeup” that includes this offense and provides for McCurrie’s discharge,

also lists violations of work rules based on McCurrie’s alleged failure to perform an

assignment and follow instructions.1

 (Id. at 7.) SEIU filed a grievance with respect to

McCurrie’s discharge.

Following a hearing, an arbitrator found evidence suggesting that St. Mary’s

arbitrarily and unreasonably applied its rules to McCurrie except with respect to the

allegation that McCurrie was sleeping on the job. (Id. at 17-21.) The arbitrator found

that St. Mary’s proved by a preponderance of the evidence that McCurrie was sleeping on

the job during the shift in question. (Id. at 23.) Although acknowledging that St. Mary’s

Employee Handbook lists sleeping on the job as an offense subject to immediate

discharge, the arbitrator concluded that mitigating factors rendered this penalty

inappropriate in McCurrie’s case. (Id.) The arbitrator therefore concluded that the

discharge should be set aside and reduced to a third-day suspension. (Id. at 24.)

On August 17, 2009, after St. Mary’s refused to comply with the arbitration award

and reinstate McCurrie, SEIU filed the pending lawsuit asking the court to confirm the

award. Alleging that St. Mary’s refusal to comply with the arbitrator’s award constitutes
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St. Mary’s argues that the arbitrator’s decision is contrary to public policy because

it threatens a nursing home’s ability to provide a safe environment and maintain adequate

staffing. In other words, St. Mary contends that sleeping employees create a safety risk

for nursing home residents.

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“bad faith,” SEIU also seeks attorneys’ fees pursuant to the LMRA. In response, St.

Mary’s asks the Court to vacate the arbitrator’s award. St. Mary’s argues that the award

must be vacated because the arbitrator exceeded his authority and his decision is contrary

to public policy.2

Standard of Review and Analysis

The Sixth Circuit recently summarized the criteria that guides a court’s “limited

role when asked to review the decision of an arbitrator” in Totes Isotoner Corporation v.

International Chemical Workers Union Council/UFCW Local 664C, 532 F.3d 405, 411

(2008). The court provided:

It is well-established that an arbitrator’s award is legitimate

and must be upheld where it is drawn from the collective

bargaining agreement and the issues submitted for

determination by the parties. United Steelworkers v.

Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct.

1358, 4 L.Ed.2d 1424 (1960). So long as “an arbitrator is

even arguably construing or applying the contract and acting

within the scope of his authority, the fact that a court is

convinced he committed serious error does not suffice to

overturn his decision.” Major League Baseball Players

Assoc. v. Garvey, 532 U.S. 504, 509, 121 S. Ct. 1724, 149

L.Ed.2d 740 (2001) . . . Indeed, “because the parties have

contracted to have disputes settled by an arbitrator chosen by

them rather than by a judge, it is the arbitrator’s view of the

facts and of the meaning of the contract that they have agreed

to accept.” United Paperworkers Int’l Union, AFL-CIO v.

Misco, Inc., 484 U.S. 29, 37-38, 108 S. Ct. 364, 98 L.Ed.2d
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286 (1987). Consequently, “courts are not authorized to

reconsider the merits of an award even though the parties may

allege that the award rests on errors of fact or on

misinterpretation of the contract.” Id. at 36, 108 S. Ct. 364.

. . . However, an arbitrator’s award “must draw its essence

from the contract and cannot simply reflect the arbitrator’s

own notions of industrial justice.” Misco, 484 U.S. at 38, 108

S. Ct. 364. “When the arbitrator’s words manifest an

infidelity to this obligation,” the scope of the arbitrator’s

authority has been exceeded and “courts have no choice but to

refuse enforcement of the award.” Enterprise Wheel & Car

Corp., 363 U.S. at 597, 80 S. Ct. 1358.

Totes Isotoner, 532 F.3d at 411. Prior to Totes Isotoner, the Sixth Circuit had provided

courts with specific guidance for determining when an arbitrator has exceeded his or her

authority in Michigan Family Resources, Inc v. Service Employees International Union

Local 517M, 475 F.3d 746 (2007) (en banc).

In Michigan Family Resources, the court set forth three questions a court should

ask to determine whether the arbitrator exceeded his or her authority and caused a

“procedural aberration” justifying reversal:

Did the arbitrator act “outside his authority” by resolving a

dispute not committed to arbitration? Did the arbitrator

commit fraud, have a conflict of interest or otherwise act

dishonestly in issuing the award? And in resolving any legal

or factual disputes in the case, was the arbitrator “arguably

construing or applying the contract”?

475 F.3d at 753. The Sixth Circuit advised that “[s]o long as the arbitrator does not

offend any of these requirements, the request for judicial intervention should be resisted

even though the arbitrator made ‘serious,’ ‘improvident’ or ‘silly’ errors in resolving the
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merits of the dispute.” Id.

The last question or requirement– whether the arbitrator was “arguably construing

or applying the contract”– derives from the rule that “an arbitrator’s award ‘must draw its

essence from the contract and cannot simply reflect the arbitrator’s own notions of

industrial justice.’” Totes Isotoner, supra (quoting Misco, 484 U.S. at 38, 108 S. Ct. 364.) 

An arbitrator must “pa[y] heed to the ‘plain and ambiguous provisions’ of the collective

bargaining agreement.” Gen. Drivers, Warehousemen & Helpers, Local 89 v. Willamette

Indus., Inc., No. 98-5476, 1999 WL 503465, at *4 (6th Cir. 1999) (quoting Local 120,

Int’l Molders & Allied Workers Union v. Brooks Foundry, Inc., 892 F.2d 1283, 1286 (6th

Cir. 1990)). The arbitrator’s decision “could be so ‘ignorant’ of the contract’s ‘plain

language,’ . . . as to make implausible any contention that the arbitrator was construing

the contract.” Michigan Family Res., 475 F.3d at 753 (quoting Misco, 475 F.3d at 753.)

Stated differently, “[a]n interpretation of a contract . . . could be ‘so untethered to’ the

terms of the agreement . . . that it would cast doubt on whether the arbitrator indeed was

engaged in interpretation.” Id. (quoting Garvey, 532 U.S. at 512, 121 S. Ct. 1724

(Stevens, J., dissenting)).

Turning to the present matter, this Court finds that the arbitrator’s award failed to

draw its essence from the CBA. The arbitrator concluded that St. Mary’s proved by a

preponderance of the evidence that McCurrie was asleep on the job and he acknowledged

that St. Mary’s employee handbook provided for immediate discharge for this offense. 

Nevertheless, he concluded that St. Mary’s penalty was “inappropriate” in light of
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mitigating factors. He therefore set aside the discharge. The arbitrator was not “arguably

construing or applying the contract” when he reached this conclusion; rather, he simply

was ignoring the contract and substituting his “own notions of industrial justice.” Misco,

484 U.S. at 38, 108 S. Ct. at 371.

As set forth earlier, the CBA expressly provided that the arbitrator lacked the

power to substitute his discretion for that of St. Mary’s in cases where the agreement

provided St. Mary’s with “sole discretion to act”. (Doc. 17, Ex. A at 15.) Under the

CBA, St. Mary’s “retain[ed] the exclusive right” to “discharge and discipline employees

for just cause” and to “[e]stablish[,] post and enforce reasonable rules and regulations

governing the conduct and acts of employees during working hours.” (Doc. 17, Ex. A at

8.) Therefore, when the arbitrator found McCurrie guilty of sleeping on the job, he

exceeded his authority when he substituted his sense of justice as to what the appropriate

penalty should be. Accordingly, this is one of “the rare case[s]” where the court has the

authority to hold that the arbitrator’s decision is unenforceable. See Int’l B’hood of Elec.

Workers, Local 429 v. Toshiba Am., Inc., 879 F.2d 208 (6th Cir. 1989) (holding that, once

the union stipulated that employees engaged in misconduct warranting discharge under

the collective bargaining agreement, the arbitrator lacked the authority to overturn the

employer’s decision to discharge the employees); Willamette Industries, 1999 WL

503465, at *4-5 (affirming the district court’s decision to vacate the arbitrator’s award

because the arbitrator substituted his judgment for that reserved to the employer in the

collective bargaining agreement to establish rules and appropriate penalties for violations
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thereof).

Having concluded that the arbitrator exceeded his authority when he overturned

McCurrie’s discharge, the Court concludes that the arbitration award must be vacated. 

The Court therefore finds it unnecessary to decide whether the arbitrator’s decision

should be vacated on public policy grounds and rejects SEIU’s request for attorneys’ fees.

Accordingly,

IT IS ORDERED, that Plaintiff’s Motion to Confirm Arbitration Award and for

Summary Judgment as to Plaintiff’s Claim is DENIED;

IT IS FURTHER ORDERED, that Defendant’s Motion to Vacate Arbitration

Award and Summary Judgment as to Plaintiff’s Claims is GRANTED;

IT IS FURTHER ORDERED, that the arbitrator’s award of January 20, 2009 is

VACATED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Meagan Dolleris, Esq.

Karen B. Berkery, Esq.

Teri L. Dennings, Esq.