928 F.3d 218
2d Cir.2019Background
- Attending Homecare Services LLC (Attending) and the Home Healthcare Workers of America, Local 1660 (the Union) negotiated a collective bargaining agreement (CBA) effective May 1, 2016; an amendment to Article 8(B) was agreed April 27, 2017.
- Article 8(B) ("Adjustment of Disputes") states claims under the FLSA, New York Home Care Worker Wage Parity Law, and New York Labor Law (the "Covered Statutes") "shall be subject exclusively" to the CBA’s grievance and arbitration procedures and, if unresolved, "shall be submitted to final and binding arbitration."
- Abdullayeva, a Union member and Attending employee, sued Attending in federal court (collective/representative FLSA and NYLL overtime and spread-of-hours claims; alt. unjust enrichment) in October 2017.
- Attending moved to compel arbitration under the CBA; the district court denied the motion, finding (1) Article 8(B) ambiguous such that arbitration was permissive, not mandatory; and (2) the preselection of the arbitrator by the Union and Attending violated employees’ due process.
- The Second Circuit reviewed de novo, held that the CBA unambiguously mandates arbitration of the Covered Statutes and that the arbitrator selection did not violate due process, and reversed and remanded to compel arbitration and stay proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CBA requires arbitration of employee statutory claims | Abdullayeva: Article 8(B), esp. §4, is ambiguous; arbitration is permissive; employees may pursue court remedies | Attending: Article 8(B) unambiguously requires grievance then final, binding arbitration of Covered Statute claims | Held: CBA unambiguously mandates arbitration of FLSA/NYLL claims under Article 8(B) |
| Whether Article 8(B)(4)’s use of “may” allows employees to litigate despite union decline to pursue grievance | Abdullayeva: “may” allows employees to opt out and sue in court | Attending: “may” means the employee may either submit to mediation/arbitration or abandon the claim; it does not create a right to litigate | Held: “May” interpreted in context; §4 does not override §1’s mandatory arbitration requirement |
| Whether a union can preselect an arbitrator for CBA-covered claims without violating employees’ due process | Abdullayeva: Workers had no input in arbitrator selection; that procedural structure denies due process | Attending: Union has authority to negotiate arbitration terms on members’ behalf; naming an arbitrator is a permissible bargaining term | Held: Preselection by union and employer does not violate due process absent claim of bias or lack of notice/ability to defend |
| Standard for assessing waiver of right to sue in court via CBA arbitration clause | Abdullayeva: District court applied a “clear and unmistakable” test to whether the Union agreed to arbitrate at all | Attending: The clear-and-unmistakable standard applies to scope (whether statutory claims are encompassed), not to existence of an agreement to arbitrate | Held: Court clarified standard — existence assessed under contract law; "clear and unmistakable" applies to whether the agreement's scope includes statutory claims |
Key Cases Cited
- 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (unions may agree to arbitration of statutory claims in a CBA)
- Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (Federal policy favors enforcing arbitration agreements; unions may mandate arbitration of statutory claims)
- Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (ambiguity in arbitration clause precludes waiver of right to sue; waiver must be clear and unmistakable)
- Lawrence v. Sol G. Atlas Realty Co., Inc., 841 F.3d 81 (Second Circuit: clear-and-unmistakable standard requires specific references to statutes or statutory causes of action)
- Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (presumption in favor of arbitrability)