1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LONG BEACH MEMORIAL MEDICAL ) Case No. CV 20-03799 DDP (RAOx)

CENTER, )

12 ) Plaintiff, ) 13 ) v. ) ORDER GRANTING PETITION TO VACATE 14 ) ARBITRATION AWARD IN PART AND

UNITED STEEL, PAPER AND ) DENYING PETITION IN SUBSTANTIAL

15 FORESTRY, RUBBER, ) PART [Dkt. No. 1]

MANUFACTURING, ENERGY, )

16 ALLIED INDUSTRIAL AND

SERVICE WORKERS

17 INTERNATIONAL UNION, 18 Defendants. 19 20 Presently before the court is Petitioner Long Beach Memorial 21 Medical Center (“the Hospital”)’s Petitioner to Vacate Arbitration 22 Award. Having considered the submissions of the parties and heard 23 oral argument, the court denies the petition in substantial part, 24 grants the petition in part, and adopts the following Order. 25 I. Background 26 In June 2018, Hospital phlebotomist Daniel Navarro began to 27 draw patient Z’s blood in her hospital room. According to Navarro, 28 the patient’s arm was too close him, so he moved her arm because he 1 whether Patient Z was in pain, and she responded that she was used 2 to being stuck with needles. Navarro then told her, “Well, we 3 won’t bring any whips or chains to beat you with.” As Navarro was 4 leaving the room, he also asked Patient Z whether her boots, which 5 were on the floor nearby, were made of leather. 6 Patient Z complained that Navarro’s statements were 7 unprofessional and of a sexual nature. According to Patient Z, 8 Navarro said, “you don’t want other people to think you are doing 9 anything else with that arm,” implying a sexual act. Patient Z 10 also alleged that Navarro asked her whether she had any chains or 11 handcuffs, and said that her boots should be leather. 12 Navarro was disciplined, in writing, for violating a Hospital 13 policy that “[Hospital] employee[s] and other representatives are 14 expect to project[] police and friendly behavior toward [Hospital] 15 patient[s],” and was required to complete workplace harassment 16 training. Navarro was also verbally instructed to avoid all 17 contact with Patient Z. Navarro did not grieve the disciplinary 18 memorandum or measures. 19 Approximately two weeks later, Navarro was assigned to draw 20 Patient Z’s blood. Navarro confirmed Patient Z’s blood and said he 21 was there to draw her blood, to which she responded, “Okay.” An 22 attending nurse, who remained present in the room, asked Navarro to 23 “please get on with it.” As Navarro was drawing Patient Z’s blood, 24 he began to wonder whether she was the patient he was not to 25 contact. After finishing his duties, Navarro immediately contacted 26 his supervisor and said, “I believe I think I drew this patient 27 that had complained about me.” Patient Z later complained, and 28 asked that Navarro never draw her blood again, even though he “was 2 || appropriate.” 3 The Hospital terminated Navarro for insubordination, finding Navarro’s claims that he did not realize that Patient 4 was the same person were not credible. Navarro and Respondent, United 6] Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied 7! Industrial and Service Workers International Union, AFL-CIO/CLC (“the Union”) grieved the termination, which ultimately went to binding arbitration. The arbitrator concluded that Navarro’s actions during the second blood draw warranted “serious 11] disciplinary action against him.” The arbitrator concluded, 12}| however, that termination was not appropriate, and that Navarro should instead be suspended for approximately eighteen months and required to undergo additional training. The Hospital now seeks to vacate the arbitrator’s decision. 16] II. Legal Standard 17 “Because federal labor policy strongly favors the resolution of labor disputes through arbitration, judicial scrutiny of an arbitrator's decision is extremely limited.” Matthews v. Nat'l 201 Football League Mgmt. Council, 688 F.3d 1107, 1111 (9th Cir. 2012) (internal alterations omitted) (quoting United Food & Commercial Workers Int’l Union, Local 588 v. Foster Poultry Farms, 74 F.3d 23169, 173 (9th Cir. 1995); see also Sw. Reg’l Council of Carpenters v. Drywall Dynamics, Inc., 823 F.3d 524, 530 (9th Cir. 2016) 25|| (“Because of the centrality of the arbitration process to stable 26] collective bargaining relationships, courts reviewing labor arbitration awards afford a nearly unparalleled degree of deference to the arbitrator’s decision.” (internal quotation marks omitted)).

1] Notwithstanding allegations that an arbitrator made erroneous factual determinations or misunderstood a party’s position, “[ilf 3} an arbitrator is even arguably construing or applying the contract 4! 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 Leauge Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (internal quotation marks and citations omitted). “It is only when the arbitrator strays from interpretation and application of the agreement and effectively 10] ‘dispense[s] his own brand of industrial justice’ that his decision may be unenforceable.” Id. (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960) (alteration in 13] original)). In other words, an arbitration award will be set aside only in those instances where the arbitrator’s decision “fails to draw its essence from” the underlying CBA. Sprewell v. Golden lol] State Warriors, 231 F.3d 520, 526 (9th Cir. 2000); see also □□□□□□ Teamsters & Allied Workers Union, Local 996 v. United Parcel Serv., 18} 241 F.3d 1177, 1178 (9th Cir. 2001) (explaining that a reviewing court’s “task is to determine whether the arbitrator interpreted the collective bargaining agreement, not whether he did so 21 correctly”). IIIT. Discussion 23 A. Public Policy Exception 24 1. Sexual Harassment 25 Petitioner contends that the arbitrator’s decision should be vacated because it runs counter to public policy against sexual harassment. An exception to the general rule of deference applies when an arbitration award is contrary to public policy. Matthews,

1 688 F.3d at 1111. “The public policy exception is narrow, and 2 courts should be reluctant to vacate arbitral awards on public 3 policy grounds.” Drywall Dynamics, 823 F.3d at 534 (internal 4 citations, quotation marks, and alterations omitted). This Court 5 can only vacate an arbitration award on public policy grounds if 6 (1) an “explicit, well defined and dominant public policy exists” 7 and (2), that policy “specifically militates against the relief 8 ordered by the arbitrator.” Matthews, 688 F.3d at 1111. 9 The Hospital invokes a broad California Public Policy against 10 “harassment.” Indeed, California law also reflects a public policy 11 specifically targeting sexual harassment directed toward patients. 12 See Cal Bus. & Profs. Code § 726; Cal. Civil Code § 51.9. The 13 Hospital must still demonstrate, however, that public policy 14 against sexual harassment directed against patients “specifically 15 militates against” the arbitrator’s determination that Navarro’s 16 insubordination, such as it was, justified an eighteen-month 17 suspension rather than permanent termination of employment. 18 Notably, the Hospital’s argument that Navarro’s continued 19 employment would frustrate public policy against sexual harassment 20 runs counter to the Hospital’s own disciplinary actions. Of the 21 two incidents involving Navarro, only the first involved sexual 22 harassment. Although the Hospital now argues that reinstating 23 Navarro would violate public policy, it did not terminate him after 24 that first, and only, incidence of harassment. Rather, the 25 Hospital terminated Navarro for insubordination after he drew 26 Patient Z’s blood a second time, notwithstanding that (1) Navarro 27 behaved professionally and appropriately during the second blood 28 draw, (2) Navarro was assigned to draw patient Z’s blood, and (3) 1 Navarro was specifically directed to draw Patient Z’s blood by an 2 attending nurse. 3 The arbitrator did not review Navarro’s termination for 4 insubordination in a vacuum. The arbitrator acknowledged that 5 Navarro’s comments “of a sexual nature” during Patient Z’s first 6 blood draw were “unprofessional, inappropriate, and wholly 7 unnecessary.” The arbitrator explicitly recognized, however, that 8 the details of that incident, and the ensuing disciplinary action, 9 were not before him. The arbitrator’s decision, rather, focused on 10 whether Navarro’s subsequent, professional, and appropriate contact 11 with Patient Z constituted just cause to terminate him for 12 insubordination. 13 In fulfilling his adjudicatory responsibilities, the 14 arbitrator considered the termination sanction in the context of 15 what Navarro was alleged to have committed, i.e., insubordination. 16 The arbitrator recognized that Navarro was “in a bit of a dilemma,” 17 having been simultaneously forbidden from and directed to interact 18 with Patient Z, and that Navarro “felt a sense of obligation and 19 duty to perform his job.” The arbitrator also recognized Navarro’s 20 realization that he made the wrong decision, and his self-reporting 21 to his supervisor. Furthermore, even though the first blood draw 22 was not before the arbitrator, the arbitrator specifically 23 distinguished the circumstances of the second blood draw, observing 24 that Navarro was not “terminated for having committed any acts or 25 having made any comments of a sexual[,] . . . unprofessional, 26 unacceptable [or] inexcusable nature.” 27 Having determined that Navarro was guilty of “extremely poor 28 judgment” rather than intentional insubordination or reckless 1 behavior, the arbitrator found no just cause for permanent 2 termination of employment. But the arbitrator did not let Navarro 3 off lightly. The arbitrator imposed substantial sanctions on 4 Navarro, including suspension for over one and a half years, 5 mandatory workplace harassment training, an additional human 6 resources meeting, and a continued no-contact directive with 7 respect to Patient Z. Under these circumstances, this Court cannot 8 conclude that California policy against sexual harassment “clearly 9 militates against” the arbitrator’s award. Therefore, the award 10 does not fall within the ambit of the public policy exception. 11 2. HIPAA 12 In addition to requiring an eighteen-month suspension and 13 additional training, the arbitrator stated that Navarro “should 14 also be given Patient Z’s name again so that he can take the 15 necessary steps to commit it to memory, write it down and keep it 16 in a safe place, such as his wallet to refer to, if needed, (while 17 keeping her name confidential) to ensure he knows patient Z’s 18 identity and does not draw her blood or have any contact with her 19 in the future.” The Hospital contends that this provision violates 20 public policy by putting the Hospitable in the untenable position 21 of violating the Health Insurance Portability and Accountability 22 Act of 1996 (“HIPAA”), Pub.L. 104–191, 110 Stat. 1936. The court 23 agrees. HIPAA requires the Hospital to “[e]nsure the 24 confidentiality, integrity, and availability of all electronic 25 protected health information” and “[p]rotect against any reasonably 26 anticipated threats or hazards to the security or integrity of such 27 information.” 45 C.F.R. § 164.306(a). “Health information” 28 includes any information that relates to the health of an 1 individual or provision of health care to an individual. 45 C.F.R. 2 § 160.103. An award requiring the Hospital to allow one of its 3 employees to maintain the name of a patient on a piece of paper in 4 his wallet at all times runs contrary to the public policy, 5 enshrined in HIPAA, of protecting patient privacy, including an 6 individual’s status as a patient. Accordingly, the portion of the 7 arbitration award requiring the Hospital to “take the necessary 8 steps” to help Navarro keep Patient Z’s name written down “in a 9 safe place” is vacated. 10 B. The arbitrator’s “own brand of industrial justice” 11 The Hospital also argues, briefly, that the arbitrator 12 dispensed his own brand of industrial justice, and that his award 13 did not draw its essence from the parties’ labor agreement. This 14 argument has no merit. Like the public policy exception, the “own 15 brand” or “draw its essence” exception is narrow and “extremely 16 limited.” Stead Motors of Walnut Creek v. Auto. Machinists Lodge 17 No. 1173, Int’l Ass’n of Machinists & Aerospace Workers, 886 F.2d 18 1200, 1208 n.8 (9th Cir. 1989). “The quality—that is, the degree 19 of substantive validity—of an arbitrator’s interpretation is, and 20 always has been, beside the point. Instead, the appropriate 21 question for a court to ask when determining whether to enforce a 22 labor arbitration award interpreting a collective bargaining 23 agreement is a simple binary one: Did the arbitrator look at and 24 construe the contract, or did he not?” Drywall Dynamics, 823 F.3d 25 at 532. 26 Here, there is no dispute that under the relevant labor 27 agreement, the Hospital could only terminate Navarro for just 28 cause. The arbitrator’s entire decision centers on whether 1 Navarro’s second blood draw, considering the mitigating factors and 2 Navarro’s unconvincing claims of ignorance, constituted sufficient 3 just cause for his termination. Because the arbitrator clearly 4 considered the labor contract, this court’s inquiry goes no 5 further. 6 The Hospital also raises an argument that the arbitrator’s 7 decision did not draw its essence from the labor agreement because 8 the arbitrator was not mentally competent to render a decision. 9 Although not presented as such, this could be considered an 10 argument that the arbitrator “dispensed his own brand of justice.” 11 The Hospital’s argument is premised on the fact that the arbitrator 12 issued a delayed “Written Confirmation of Oral Decision and Award,” 13 rather than a more formal written decision, and on the Hospital’s 14 counsel’s declaration that the arbitrator stated to her that “he 15 was suffering from a medical condition that impaired his cognitive 16 functions, specifically, his ability to form complete, coherent 17 thoughts and to transcribe those thoughts into a written decision.” 18 Declaration of Christina Rentz ¶¶ 10-11. Although counsel states 19 that the arbitrator made those statements in a Union 20 representative’s presence, that representative denies that the 21 arbitrator made any statements about his cognitive abilities. 22 Declaration of Dianne Kanish ¶ 13. The Hospital’s counsel’s 23 disputed, hearsay declaration does not provide this Court with any 24 basis to conclude that the arbitrator’s reasoned decision was based 25 upon anything other than the parties’ collective bargaining 26 agreement. Indeed, the Hospital’s uncharitable and overstated 27 characterization of the arbitrator’s decision as a “meandering and 28 disorganized four page statement” suggests that the Hospital’s 1 fundamental objection is to the substantive validity of the 2 decision.1 Disputed accounts of the arbitrator’s mental state, 3 however, cannot suffice to release the Hospital, or this Court, 4 from the strictures of the extremely narrow “draw its essence” 5 exception. 6 IV. Conclusion 7 For the reasons stated above, the Petition is DENIED, in 8 substantial part, and GRANTED, in part. The petition is GRANTED, 9 and the arbitrator’s award VACATED, insofar as it requires the 10 Hospital to help Navarro maintain Patient Z’s name in writing for 11 his personal use. In all other respects, the petition is DENIED. 12 13 14 15 IT IS SO ORDERED. 16 17 18 Dated: July 21, 2021

DEAN D. PREGERSON

19 United States District Judge 20 21 22 23 24 25 26 27 1 Contrary to the Hospital’s characterization, the decision is coherent and reasonably well-structured, and states the facts and 28 the respective positions of the parties.