Local 30, International Union of Operating Engineers, AFL-CIO v. Wood Group Power Operations LLC

Filing 28

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Judge Brown's R&R is ADOPTED in its entirety. Petitioner's motion for summary judgment is GRANTED and Respondent's motion for summary judgment is DENIED. So Ordered by Judge Joanna Seybert on 8/22/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
LOCAL 30, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
MEMORANDUM & ORDER
13-CV-2499(JS)(GRB)

Petitioner,
-againstWOOD GROUP POWER OPERATIONS LLC,

Respondent.
---------------------------------------X
APPEARANCES
For Petitioner:
Robert T. McGovern, Esq.
Archer, Byington, Glennon & Levine, LLP
One Huntington Quadrangle, Suite 4C10
P.O. Box 9064
Melville, NY 11747
For Respondent:

Ann Odelson, Esq.
Carroll McNulty & Kull, LLC
570 Lexington Avenue, 8th Floor
New York, NY 10022
Samuel Zurik, Esq.
The Kullman Firm
1100 Poydras Street, Suite 1600
New Orleans, LA 70163

SEYBERT, District Judge:
Currently pending before the Court are: (1) respondent
Wood

Group

Power

Operations

LLC’s

(“Respondent”)

motion

for

summary judgment (Docket Entry 14); (2) petitioner Local 30,
International
(“Petitioner”

Union
or

the

of

Operating

“Union”)

motion

Engineers,
for

summary

AFL-CIO’s
judgment

(Docket Entry 15); and (3) Magistrate Judge Gary R. Brown’s
Report and Recommendation (“R&R”) on the motions (Docket Entry

27).
its

For the following reasons, Judge Brown’s R&R is ADOPTED in
entirety,

Petitioner’s

motion

for

summary

judgment

is

GRANTED, and Respondent’s motion for summary judgment is DENIED.
BACKGROUND1
The

Court

presumes

familiarity

with

the

underlying

facts of this case, which are detailed in Judge Brown’s R&R.
Briefly, Thomas Rooney, a member of the Union, worked as an
operating

engineer

Respondent.

On

and

March

Rooney’s employment.

maintenance
14,

2012,

technician
Respondent

(“OEMT”)

for

terminated

Mr.

(Pet’r’s 56.1 Stmt., Docket Entry 17, ¶ 5;

Resp’t’s 56.1 Reply, Docket Entry 19, ¶ 5.)
Thereafter, the Union raised a dispute regarding Mr.
Rooney’s

termination

pursuant

to

the

Collective

Agreement (“CBA”) between it and Respondent.
Stmt., Docket Entry 14-2, ¶ 5.)

Bargaining

(Resp’t’s 56.1

Arbitrator Randall M. Kelly

addressed two issues:
(1) “Did [Respondent] violate Article 9 of
the collective bargaining agreement when it
terminated Grievant, Thomas Rooney on March
14, 2012? If not, what shall be the remedy?
and
(2) “Whether [Respondent] terminated the
Grievant, Thomas Rooney, because of union
animus?”

The following facts are drawn from the parties Local Civil Rule
56.1 Statements (“56.1 Stmt.”) and Counterstatements (“56.1
Counterstmt.”) and the evidence in support. Where relevant, any
factual disputes are noted.
1

2

(Resp’t’s 56.1 Stmt. ¶ 6 (quoting Arbitration Award, attached to
Zurik Decl., Docket Entry 14-4, Ex. 2-A).)
Arbitrator Kelly determined that the Respondent did
not properly follow the CBA when it terminated Mr. Rooney, but
that he was not discharged because of union animus.
56.1

Stmt.

¶

9

(citing

Arbitration

Award

at

(Resp’t’s

19-20).)

He

ultimately found that Mr. Rooney “‘is to be reinstated to his
former position or its equivalent with full back pay for periods
he

was

physically

able

to

work

and

no

loss

of

seniority.’”

(Resp’t’s 56.1 Stmt. ¶ 10 (quoting Arbitration Award at 20).)
On April 25, 2013, Petitioner filed this action to
confirm the Arbitration Award.
and

Respondent

filed

On November 15, 2013, Petitioner

cross-motions

for

summary

judgment.

Petitioner essentially argues that this Court must confirm the
Arbitration

Award

under

governing

precedent.

Respondent

primarily argues that Petitioner asks this Court to “augment”
the Arbitration Award.

(See R&R at 4 (quoting Resp’t’s Br.,

Docket Entry 14-1, at 1).)
In his August 4, 2014 R&R, Judge Brown recommended
that this Court confirm the Arbitration Award.

(R&R at 6.)

He

found that Respondent did not actually challenge the award’s
validity

and

justification”

that
for

the
his

arbitrator

decision.

provided

(R&R

at

6.)

a

“colorable
Judge

Brown

further stated that Respondent’s arguments are premature as they
3

focus on enforcement and compliance, issues to be decided at a
later time and separate from confirmation.

(R&R at 6-7.)

DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

in

made

§ 636(b)(1)(C).

whole

by

the

or

in

part,

magistrate

the

findings

judge.”

28

or

U.S.C.

If no timely objections have been made, the

“court need only satisfy itself that there is no clear error on
the face of the record.”
606,

609-10

(S.D.N.Y.

Urena v. New York, 160 F. Supp. 2d

2001)

(internal

quotation

marks

and

citation omitted).
Here, the R&R specifically provided that objections
were due within fourteen days of service.

(R&R at 7.)

parties,

immediate

having

both

appeared,

received

The

service

through the Court’s Electronic Case Filing System when Judge
Brown issued his R&R on August 4, 2014.

No party has objected

and the Court finds the R&R to be correct, comprehensive, wellreasoned and free of any clear error.

Accordingly, the Court

ADOPTS it in its entirety.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

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CONCLUSION
For
ADOPTED

in

the

its

foregoing

entirety.

reasons,

Judge

Petitioner’s

Brown’s

motion

for

R&R

is

summary

judgment is GRANTED and Respondent’s motion for summary judgment
is DENIED.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
22 , 2014
Central Islip, NY

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