A&A Maintenance Enterprise, Inc. v. RamnarainA&A Maintenance Enterprise, Inc. v. Ramnarain
Petitioner-counter-defendant-appellant A&A Maintenance Enterprise, Inc. (“A&A“) appeals from an order of the United States District Court for the Southern District of New York (Briccetti, J.) denying A&A‘s petition to vacate an arbitration award and granting the counter-petition of respondent-counter-claimant-appellee Alvin Ramnarain – President of Local 1102 of the Retail, Wholesale and Department Store Union (the “Union“) – to confirm the award. For the reasons set forth below, we affirm.
Unless otherwise indicated, the following factual background is undisputed and drawn from the parties’ submissions in support of and in opposition to the petition and the cross-petition at issue.
A&A is a corporation providing janitorial and maintenance services to owners and operators of commercial real estate and educational institutions. The Union is a labor organization that has historically represented the building service workers, groundskeepers, and mechanics at the Old Brookville campus of Long Island University (“LIU“) with respect to matters concerning wages, hours, and other terms and conditions of their employment.
In 2016, LIU contracted out the janitorial, mechanical, and groundskeeping work at its Old Brookville campus to A&A. Under this arrangement, A&A became the employer of those workers and agreed to assume an existing collective bargaining agreement between LIU and the Union set to expire on August 31, 2017. In the summer of 2017, A&A and the Union engaged in negotiations and eventually entered into a successor collective bargaining agreement (the “CBA“).
As relevant here, Article 2 of the CBA, titled “Union Security,” requires that “all employees covered by this Agreement and hired on or after its execution or
As to specific provisions governing A&A‘s hiring of employees, Article 4, titled “Probationary Period,” states in relevant part that “[t]here shall be a ninety (90) day probationary period for permanent workers in which [A&A] has the unrestricted right to discharge new employees with or without cause except that there shall be no discrimination based on union activity.” Joint App‘x 46, Art. 4. Probationary employees are not entitled to certain benefits guaranteed by the CBA, such as tuition remission and sick leave. In addition, Article 5, titled “Substitute Employees,” allows A&A to hire “substitute employees” defined as individuals “hired to fill in for employees who are out on disability or worker‘s compensation or approved extended leaves,” but provides that “[s]ubstitute employees are subject to the union security clause.” Joint App‘x 46, Art. 5.
Of particular note, during the 2017 negotiations over the CBA, A&A proposed a new clause which would have permitted A&A to utilize non-union “temporary employees” at will for up to 90 days. The Union rejected this proposal, and it was excluded from the CBA.
Finally, Article 30, titled “Grievance and Arbitration Procedure,” defines “grievance” as “any dispute concerning the interpretation, application or claimed violation of the stated terms or provisions of this Agreement” and provides that disputes that the parties cannot resolve through the voluntary grievance procedure shall be arbitrated. Joint App‘x 61–62, Art. 30. This Article further provides that “[d]isputes that do not involve the interpretation, application or claimed violation of the stated terms o[r] provisions of this Agreement shall not be considered grievable” or arbitrable. Id.
The instant dispute arose when Union members noticed a number of new, non-union employees performing building service work on the campus in the fall of 2017. When a Union representative attempted to ascertain the employment
The parties could not resolve the dispute through the voluntary grievance process, and, on January 26, 2018, the Union submitted a written demand for arbitration. Based on its understanding that this excessive number of workers were either impermissible substitute employees or non-union “temporary employees,” the Union framed the issue in its request for arbitration as: “[A&A] violated Articles 1, 2, 5, 6, 7, 10, 11, 12, 15 & 20 by improperly using ‘temporary employees,’ . . . to perform bargaining unit work.” Joint App‘x 70.
Shortly thereafter, the parties submitted their dispute to binding arbitration. The Union framed the issue as whether A&A violated the CBA by utilizing
After three days of hearing, followed by post-hearing briefing, the arbitrator issued an opinion and award on December 22, 2018. He first rejected A&A‘s objection to the formulation of the issue, writing that “the Union‘s demand for arbitration was consistent with the grievance filed by the Union” and “is arbitrable under the [CBA].” Joint App‘x 88. The arbitrator then held that A&A had violated the CBA by “utilizing non-union substitute/temporary and/or probationary employees to perform bargaining unit work.” Id. at 91. Specifically, the arbitrator found that A&A hired non-union temporary employees, discharged them within 90 days of employment, and rehired the same individuals after a short period of time to keep them under the probationary status permanently. This was “for the
On March 25, 2019, A&A filed a lawsuit in New York state court to vacate the arbitration award, arguing that the arbitrator had exceeded his authority by adopting the Union‘s formulation of the issue and by misapplying the provisions of the CBA. Subsequently, the Union removed the action to the United States District Court for the Southern District of New York and brought a cross-petition to confirm the arbitration award. On January 13, 2020, the district court (Briccetti, J.) denied A&A‘s petition to vacate the arbitration award and granted the Union‘s cross-petition to confirm the award. A&A timely appealed.
“We review a district court‘s decision to confirm an arbitration award de novo to the extent it turns on legal questions, and we review any findings of fact for clear error.” Duferco Int‘l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003).1
“A federal court‘s review of labor arbitration awards is narrowly circumscribed and highly deferential—indeed, among the most deferential in the law.” N.Y. City & Vicinity Dist. Council of the United Bhd. of Carpenters & Joiners of Am. v. Ass‘n of Wall-Ceiling & Carpentry Indus. of N.Y., Inc., 826 F.3d 611, 618 (2d Cir. 2016). A party petitioning a federal court to vacate an arbitration award bears a “very high” burden of showing that the award in question falls within one of a small number of exceptions to this general rule, set forth in statute and case law. D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006).
One such exception appears in the Federal Arbitration Act, which allows courts to vacate an award if “the arbitrators exceeded their powers.”
A&A now asks us to vacate the arbitration award on the ground that the arbitrator exceeded his authority in two ways: (1) by ruling on an issue that was not properly before him and (2) by changing the CBA‘s express terms without the parties’ consent. We find both arguments to be meritless.
A. Whether the arbitrator exceeded his authority by ruling on an issue that was not properly before him
A&A first contends that the arbitrator exceeded his authority by considering issues beyond those that the parties had submitted for his consideration. In A&A‘s view, because the Union‘s original grievance mentioned only the substitute employee provision, the arbitrator should not have considered any issues beyond
This argument, focusing unnecessarily on form over substance, is a red herring. We agree with the district court that “[t]he real substance of the union‘s initial grievance was the contention that non-union workers were improperly performing bargaining unit work,” a dispute which “clearly concerns A&A‘s use of temporary employees.” Joint App‘x 237–38. Moreover, the Union‘s grievance was based on facts that were fully known to A&A at the time the grievance was delivered, even though the grievance did not explicitly include the terms “temporary employees” and “probationary employees” and other relevant provisions of the CBA.
Furthermore, the arbitrator reasonably found that the Union‘s reference to the substitute employee provision in its original grievance was attributable to A&A‘s false statements that all of the new workers were substitute employees. We will not allow A&A to constrain the scope of the arbitrator‘s authority based on its
Alternatively, relying on a general principle that arbitration is a matter of consent, A&A essentially argues that the arbitrator exceeded his authority by ruling on a formulation of the issue to which it never consented. In support of this argument, A&A emphasizes that it objected to the expanded formulation of the issue submitted by the Union and that A&A declined the arbitrator‘s request that the parties allow him to formulate the issue.
Our prior holding in Socony Vacuum Tanker Men‘s Ass‘n v. Socony Mobile Oil Co., 369 F.2d 480 (2d Cir. 1966) compels us to reject this consent-based argument as well. Unlike here, the collective bargaining agreement in Socony contained an arbitration provision that explicitly stated: “The statement of the question to be arbitrated shall be mutually agreed upon.” Id. at 481. Like A&A here, the employer in Socony asserted that, even if the dispute there were arbitrable, arbitration could not be compelled unless the parties mutually agreed on the issue to be submitted, relying on the quoted provision above. See id. at 483. We rejected that interpretation as “emasculat[ing] the arbitration clause” and interpreted the quoted provision as “requiring the parties to make a reasonable effort to agree on the statement of the issue to be submitted.” Id. Because the CBA here does not even
This conclusion is consistent with our sister circuit‘s decision in Avon Prods., Inc. v. Int‘l Union, United Auto Workers of Am., AFL-CIO, Local 710, 386 F.2d 651 (8th Cir. 1967), which we find instructive. In that case, the employer asked the circuit court to, inter alia, declare that the grievances at issue were not arbitrable based on their view that the grievances did not correctly state the issues in dispute. See id. at 656. The Eighth Circuit denied this request, pointing out that the collective bargaining agreement there – like the CBA here and unlike the agreement in Socony – did not reserve to the parties the right to determine the precise language to be used in submitting each dispute to arbitration. See id. The Eighth Circuit reasoned that “the inclusion of such a clause would be an indication that they did not intend to submit all [grievances subject to the arbitration clause in the collective bargaining agreement] to arbitration, and would indicate that the parties were reserving to themselves the right to determine the disputes, if any, that they would arbitrate. To imply such a reservation here would be contrary to the federal common law encouraging the arbitration of labor disputes and cannot be
B. Whether the arbitrator exceeded his authority by altering the terms of the collective bargaining agreement
A&A also argues that the award should be vacated because the arbitrator essentially rewrote the CBA. Specifically, A&A argues that the arbitrator exceeded
While A&A is correct that the term “temporary employee” is not stated or defined in the CBA, this argument is meritless. The instant dispute arose because A&A attempted to hire non-union temporary workers by means of its strained interpretation of the probationary period, new employees, substitute workers, and management rights provisions of the CBA. Accordingly, this dispute over A&A‘s right to hire temporary workers “involve[d] the interpretation, application or claimed violation” of these provisions of the CBA. Id.
Finally, A&A asserts that the arbitrator flat out ignored the management rights, new employee, and probationary period clauses of the CBA, despite the CBA‘s clear statement that “[t]he arbitrator shall not have the authority to add to, subtract from, modify, or amend the provisions of the Agreement.” Joint App‘x 62, Art. 30 (emphasis added). We disagree. Here, the arbitrator squarely addressed
CONCLUSION
We have considered all of A&A‘s remaining contentions on appeal and have found in them no basis for reversal. Accordingly, we AFFIRM the district court‘s judgment.