Kaiser Can Sue Nurses Over Sympathy Strike

SAN FRANCISCO (CN) - The California Nurses Association cannot dismiss claims that it violated a collective bargaining agreement with Kaiser Foundation Hospitals by authorizing a "sympathy strike" in September 2011.

Kaiser has alleged that the nurses group breached the "no-strike" clause in their most recent agreement by engaging in a 24-hour sympathy strike in support of the National Union of Healthcare Workers.

The nurses' three-year agreement with Kaiser, which commenced just three weeks prior to the sympathy strike, contained a no-strike provision that said: "There shall be no strikes, lockouts, or other stoppages or interruptions of work during the life of this agreement."

Kaiser also sought to compel the dispute to arbitration, as laid out in the contract.

The California Nurses Association fought arbitration in a motion to dismiss, adding that "CNA's strike was a sympathy strike and such strikes are not prohibited under the CBA."

U.S. District Judge Samuel Conte reproduced the full arbitration clause in a decision Friday, saying the provision is "at least ambiguous."

"'The CNA, as the exclusive bargaining representative of employees in the bargaining unit, has the sole and exclusive right to file, pursue, withdraw, or resolve grievances at any step of the procedure," according to the agreemebt. "The parties agree that the grievance/arbitration procedure is the sole and exclusive remedy for any and all disputes or rights arising from or relating to this agreement.'"

"CNA argues that the first sentence ... warrants dismissal of Kaiser's demand for arbitration since it states that the CNA has 'the sole and exclusive right' to file grievances," Conte wrote. "Kaiser responds that the next sentence ... which requires arbitration of 'all disputes,' would be rendered meaningless if only one party could invoke arbitration."

"The court agrees with Kaiser," Conte continued. "The CBA is at least ambiguous as to whether Kaiser may submit a matter to arbitration. While the CBA clearly states that only the CNA may file a grievance on behalf of an employee, the CBA is less clear about whether Kaiser may submit a grievance for arbitration."

"Further, as the CBA states that arbitration is the 'sole and exclusive remedy for any and all disputes or rights arising from or relating to [the CBA],' to read the CBA to mean that Kaiser cannot initiate arbitration proceedings would leave Kaiser without a legal remedy if CNA were to breach the terms of the agreement," he added (brackets in original).

Conte declined address how the agreement classifies sympathy strikes from the nurses group. "Kaiser has alleged that the September 2011 strike was not a sympathy strike and that CNA's declarations to the contrary were a ruse. Kaiser has pled a number of specific facts to support this contention," he wrote. "Determining whether or not Kaiser's allegations are true is a factual issue for another day."

The nurses group had also moved to strike "over one-third of the paragraphs in Kaiser's 78-page complaint, arguing they are 'redundant, immaterial, impertinent, or scandalous,'" under Federal Rule of Civil Procedure, according to the court.

But Conte said the motion "fails to clear the high standard set by Rule 12(f)."

"CNA seeks to strike almost all of the background facts alleged in the complaint," he wrote. "These facts provide the court with a fuller understanding of the dispute and the court does not see how they could be considered redundant, immaterial, impertinent, or scandalous."

"CNA obviously disagrees with many of the facts pled by Kaiser, and CNA will have an opportunity to challenge these allegations as the case proceeds," he added.

A California Nurses Association spokesman declined to comment on the ruling, saying, "I have no idea what you are talking about."

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