A&A Maintenance Enterprise, Inc. v. Ramnarain

20-459
A&A Maintenance Enterprise, Inc. v. Ramnarain

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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August Term, 2020

(Submitted: November 25, 2020 Decided: December 16, 2020)

Docket No. 20-459

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A&A MAINTENANCE ENTERPRISE, INC.,

Petitioner-Counter-Defendant-Appellant,

—v.—

ALVIN RAMNARAIN, as President of Local 1102, Retail, Wholesale and Department
Store Union, United Food and Commercial Workers,

Respondent-Counter-Claimant-Appellee.
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Before: CALABRESI, KATZMANN, and SULLIVAN, Circuit Judges.

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Appeal from an order of the United States District Court for the Southern
District of New York (Briccetti, J.) denying the petition of employer A&A
Maintenance Enterprise, Inc. (“A&A”) to vacate an arbitration award and granting
the cross-petition of Alvin Ramnarain – President of Local 1102 of the Retail,
Wholesale and Department Store Union (the “Union”) – to confirm the award.
First, A&A argues that the arbitrator exceeded his authority by ruling on an issue
that was allegedly broader in scope than the issue that the Union described in its
grievance letter to A&A. We reject this argument because, albeit worded
differently, the issue that the arbitrator ruled on was substantially identical to the
issue in the grievance letter. In so ruling, we hold that a party that has previously
agreed to arbitrate a given dispute cannot frustrate the arbitration process simply
by refusing to agree on the form of the issue to be submitted to arbitration. Second,
A&A argues that the arbitrator exceeded his authority by ignoring the express
terms of the collective bargaining agreement. We find that the arbitrator’s
interpretation of the collective bargaining agreement was more than colorable and
therefore reject this argument. Accordingly, we AFFIRM.

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Perry Heidecker, Milman Labuda Law Group PLLC, Lake Success, NY, for
Petitioner-Counter-Defendant-Appellant.

Matthew P. Rocco, Rothman Rocco LaRuffa, LLP, Elmsford, NY, for Respondent-
Counter-Claimant-Appellee.
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PER CURIAM:

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.

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 I. Background

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

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effective date, shall after thirty days from the beginning of such employment . . .

become and remain members in good standing in the Union.” Joint App’x 45, Art.

2.

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.

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 As to A&A’s rights as employer, Article 20, titled “New Employees,” allows

A&A to “hire employees from whatever source it desires.” Joint App’x 57, Art. 20.

Article 37, titled “Management Rights,” states in part that “[A&A] will determine

the size of the work force to be employed on any assignment” and that “all the

rights, prerogatives and powers of [A&A], which have not been specifically

provided for in a stated term of this Agreement, are retained in the sole discretion

of [A&A].” Joint App’x 64–65, Art. 37.

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

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status of these new employees, A&A responded that they were substitute

employees, hired pursuant to Article 5 of the CBA, filling in for bargaining-unit

employees out on leaves of absence. But upon checking its records, the Union

observed that the number of claimed substitutes exceeded the number of members

out on disability, worker’s compensation, and other approved leaves of absence.

Therefore, on January 12, 2018, the Union sent a written grievance to A&A alleging

that A&A had “violated the collective bargaining agreement through its failure to

comply with the substitute employees article” and asked A&A to reduce the

number of new hires to comply with the provision. Joint App’x 68.

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

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temporary employees—a term undefined in the CBA and broader in scope than

substitute employees—to perform bargaining unit work. At the hearing on June

13, 2018, A&A objected to this broader formulation, arguing that the Arbitrator

was confined to the issue proposed by the Union in its original grievance, which

mentioned only “substitute employees.” Further, A&A denied the arbitrator’s

subsequent request that the parties grant him the authority to formulate the issue.

The arbitrator reserved his decision on A&A’s objection and proceeded to hear the

case on the merits.

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

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purpose of displacing bargaining unit jobs, paying less than the contractual hourly

rate, avoiding the payment of Union dues and fringe benefits, circumventing the

intended use of probationary workers and limiting the overtime hours available

for regular, full-time employees.” Id. The arbitrator found that A&A was relying

on a bad-faith reading of the management rights and probationary period clauses

to effectively grant itself the right to hire temporary employees at will, a right

which was explicitly rejected during the negotiations of the CBA. Following this

decision, the arbitrator held a damages inquest and issued a relief award in the

amount of $1,702,263.81 to the Union, its affiliated benefit funds, and its affected

members.

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.

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 II. Discussion

“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.” 9 U.S.C.

§ 10(a)(4); see also Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 (2d Cir. 2011).

Objections to an award on the grounds that the arbitrators exceeded their

1 Unless otherwise indicated, case quotations omit all internal quotation
marks, alterations, footnotes, and citations.
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authority are narrowly applied, and the focus of the judicial inquiry is “whether

the arbitrators had the power, based on the parties’ submissions or the arbitration

agreement, to reach a certain issue, not whether the arbitrators correctly decided that

issue.” Jock, 646 F.3d at 122 (emphasis in original). 2

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

2 Technically the arbitrations in the labor context are governed by the Taft-
Hartley Act rather than the FAA. But in this particular context, we have
substantially imported the analysis of the FAA. See Coca-Cola Bottling Co. of New
York v. Soft Drink & Brewery Workers Union Local 812 Int'l Bhd. of Teamsters, 242 F.3d
52, 53–54 (2d Cir. 2001) (“[I]n cases brought under Section 301 of the Labor
Management Relations Act of 1947 (‘Taft–Hartley Act’), 29 U.S.C. § 185, the FAA
does not apply. . . . [T]he body of law developed under Section 301 will at times
draw upon provisions of the FAA, but by way of guidance alone.”).
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substitute employees, such as temporary and probationary employees. When the

arbitrator expanded the scope of the issue at arbitration, the argument goes, he

deprived A&A of its contractual right to engage in the pre-arbitration steps of the

grievance procedure to resolve disputes concerning temporary and probationary

employees.

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

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prior misstatement regarding the status of these employees.

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

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contain a provision requiring the statement of the issue be mutually agreed upon,

A&A’s argument here is even weaker than the employer’s argument in Socony.

Our holding in Socony thus compels us, a fortiori, to reject A&A’s argument here.

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

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sustained.” Id. at 656–57. We adopt this reasoning in the present case: as the instant

dispute concerns “the interpretation, application or claimed violation of the stated

terms or provisions of [the CBA],” precisely the type of dispute that the parties

had previously agreed to submit to arbitration if not resolved through the

grievance process, Joint App’x 61, Art. 30, A&A “cannot frustrate the arbitration

process by refusing to agree on the form of the issue to be submitted to

arbitration,” Avon, 386 F.2d at 657.3

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

3 In certain circumstances, parties that cannot agree on the framing of an issue
to submit to an arbitrator may petition a federal court to resolve the framing
dispute (e.g., through filing a petition to compel arbitration), after which the court
would frame the issue and remand the case to the arbitrator for further
proceeding. See Socony, 369 F.2d at 482–83. Based on this, A&A argues in effect that
the federal court, rather than the arbitrator, should have framed the issue.
However, as discussed above, the arbitrator correctly held that the various
formulations were essentially the same, and there was no need for the federal court
to get involved in formulating the issue. In any event, in this particular case, we
agree with the Eighth Circuit “that this matter is one to be resolved by the
arbitrator. In framing the disputes, the arbitrator will be limited by the language
of the contract. We presume that he will not frame the issue in such a way as to
decide matters beyond his authority. If he does so, the aggrieved party is not
without relief.” Avon, 386 F.2d at 657.
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his authority in ruling that A&A violated the CBA by using temporary employees,

because the CBA does not mention the term “temporary employees,” and because

the CBA 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.” Joint App’x 61, Art. 30 (emphasis

added).

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

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the management rights clause when he wrote that A&A’s “overreaching

interpretation of the management rights clause” to hire temporary workers was a

bad faith attempt at achieving “what was not achieved in negotiations” leading up

to execution of the CBA. Joint App’x 89. Likewise, the arbitrator reasonably found

that A&A’s underhanded plan to hire new employees, fire them before the 90-day

probationary period had expired, and then re-hire them as new hires after a short

break could not be justified through the probationary period and new employee

clauses. A&A’s argument here is, in fact, nothing more than a backdoor attempt to

undermine the arbitrator’s reasonable interpretation of the CBA. See Jock, 646 F.3d

at 122 (“We will uphold an award so long as the arbitrator offers a barely colorable

justification for the outcome reached.”).

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.

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