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

Filing 46

MEMORANDUM & ORDER: SO ORDERED that Petitioner's and Respondent's objections are OVERRULED, and the R&R is ADOPTED AS MODIFIED. Petitioner's motion to enforce the judgment (Docket Entry 30) is GRANTED IN PART and DENIED IN PART. Speci fically, Respondent is directed to pay Rooney back pay for the periods he was physically able to work beginning with his March 14, 2012 termination through and including the date of the Arbitration Award, November 11, 2012. If the parties cannot agre e on the amount, they may seek further relief from the Court. The Court declines to determine whether Petitioner is entitled to attorneys' fees and costs at this time. Petitioner is granted leave to file a separate motion with the appropriate documentation within thirty (30) days of the date of this Memorandum and Order. Ordered by Judge Joanna Seybert on 3/27/2017. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
LOCAL 30, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Petitioner,

MEMORANDUM & ORDER
13-CV-2499(JS)(GRB)

-against–
WOOD GROUP POWER OPERATIONS LLC,
Respondent.
-------------------------------------X
APPEARANCES
For Petitioner:
Alexandra J. Howell, Esq.
Robert T. McGovern, Esq.
Archer Byington Glennon & Levine LLP
One Huntington Quadrangle, Suite 4C10
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:
This dispute arose after Wood Group Power Operations LLC
(“Respondent”) terminated Thomas Rooney (“Rooney”), a member of
Local 30, International Union of Operating Engineers, AFL-CIO,
(“Petitioner”).

After

the

parties

arbitrated

the

dispute,

Petitioner commenced this action to confirm the arbitration award

against Respondent. (Pet., Docket Entry 1.1) This Court confirmed
the award and entered judgment in favor of Petitioner on August
22, 2014.

(Judgment, Docket Entry 29.)

Currently pending before

the Court are Petitioner’s motion to enforce the August 22, 2014
judgment (Docket Entry 30) and Magistrate Gary R. Brown’s Report
and

Recommendation

dated

February

10,

2017

(the

“R&R”)

recommending that this Court grant Petitioner’s motion in part and
deny it in part.

(R&R, Docket Entry 40, at 13.)

Specifically,

Judge Brown recommends that Respondent be required to “pay a sum
representing back pay for Rooney beginning with his March 14, 2012
termination through and including November 11, 2012, the date of
the arbitration decision.” (R&R at 12.)
that

the

Court

deny

Petitioner’s

November 11, 2012 to May 2, 2014.

He further recommends

request

for

back

(R&R at 9-11.)

pay

from

Finally, he

recommends that Petitioner be awarded costs and attorneys’ fees.
(R&R at 13.)

Petitioner and Respondent filed objections to the

R&R.

(Pet’r’s Obj., Docket Entry 41; Resp’t’s Obj., Docket Entry

42.)

For the following reasons, Petitioner’s objections are

OVERRULED, Respondent’s objections are OVERRULED, and the R&R is
ADOPTED AS MODIFIED.

Petitioner’s motion to enforce is GRANTED IN

PART and DENIED IN PART as set forth below.

When citing to the documents attached to the Petition the Court
will use the numbers assigned by the Electronic Case Filing
System.
1

2

BACKGROUND
The Court assumes familiarity with the facts of this
case, which are detailed in Judge Brown’s R&R and this Court’s
Order dated August 22, 2014.

(See generally R&R; 2014 Order,

Docket Entry 28.)
Briefly,

Rooney

was

employed

by

Respondent

as

an

operating engineer and maintenance technician (“OEMT”), and his
employment was terminated on March 14, 2012.

(Order at 2.)

Thereafter, Petitioner challenged Rooney’s termination and sought
relief from an arbitrator pursuant to the collective bargaining
agreement between the parties (the “CBA”).

(Order at 2.)

On

November 21, 2012, Arbitrator Randall M. Kelly (the “Arbitrator”)
concluded that Respondent failed to comply with the CBA when it
dismissed Rooney.
at 5-26.)

(Arbitration Award, Pet. Ex. A, Docket Entry 1,

The Arbitrator directed that Rooney “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”
(the “Arbitration Award”).
The
reinstated.

parties

(Arbitration Award at 26.)

dispute

whether

Rooney

was

properly

Respondent claims that Rooney was reinstated in

December 2012 but was not assigned to perform his OEMT duties
because of medical restrictions.
Entry 19, ¶ 20.)

(Resp’t’s 56.1 Stmt., Docket

Respondent alleges that Rooney did not cooperate

during a physical examination before he returned to work and that
3

Petitioner failed to respond to requests for information regarding
Rooney’s physical capabilities.

(Resp’t’s 56.1 Stmt. ¶¶ 18-20.)

Petitioner denies that Rooney was reinstated.
Counterstmt., Docket Entry 23, ¶ 19.)

(Pet’r’s 56.1

Petitioner contends that

Rooney was cooperative during the examination and claims that it
is not aware of any outstanding requests for information regarding
Rooney’s physical limitations.

(Pet’r’s 56.1 Counterstmt. ¶ 20.)

Petitioner alleges that, at that time, Rooney was “ready, willing
and able to perform the essential functions of his job.”
56.1 Counterstmt. ¶ 21.)

(Pet’r’s

Additionally, Petitioner alleges that if

Rooney had physical limitations, Respondent failed to accommodate
him; particularly, Respondent failed to offer him light duty work
even though it had previously offered such work to Rooney and to
other employees.

(Pet’r’s 56.1 Counterstmt. ¶ 21.)

Petitioner

submitted grievances related to Respondent’s failure to reinstate
Rooney, which were denied by Respondent on December 27, 2012.
(Ford Decl., Docket Entry 14-3, ¶¶ 32-33.)
On April 25, 2013, Petitioner filed a Petition to confirm
the Arbitration Award.

(See, Pet.)

The award was confirmed on

August 22, 2014, and judgment was entered the same day.
Order; See, Judgment.)

In the interim, on May 2, 2014, Respondent

terminated Rooney a second time.
1, ¶ 10.)
Relations

(See 2014

(Howell Decl., Docket Entry 30-

Petitioner filed a complaint with the National Labor
Board

(the

“NLRB

Complaint”)
4

regarding

the

second

termination, and the parties entered into a settlement agreement
to resolve that case.

(Howell Decl. ¶¶ 18-19.)

On May 4, 2016, Petitioner filed a motion to enforce the
judgment entered in this matter and requested that the Court award
Rooney back pay from March 14, 2012 (the first termination) to
May 2,

2014

(the

second

termination)

totaling

$145,761.11,

interest of $20,306.72 and attorneys’ fees and costs.

(Pet’r’s

Mot., Docket Entry 30; Pet’r’s Br., Docket Entry 31, at 2.)
Respondent opposed the motion on June 3, 2016, and Petitioner filed
its reply on June 17, 2016.

(Resp’t’s Opp., Docket Entry 33;

Pet’r’s Reply, Docket Entry 34.)
On October 13, 2016, the undersigned referred the motion
to Judge Brown for a report and recommendation on whether the
motion should be granted.

(Referral Order, Docket Entry 39.)

Judge Brown issued his R&R on February 10, 2017, recommending that
this Court grant Petitioner’s motion in part and deny it in part.
(See, R&R.)

As noted above, Petitioner and Respondent filed

objections to the R&R.
Respondent

has

never

made

any

payments

to

pursuant to the Arbitration Award or the Court’s judgment.

Rooney
(R&R

at 4.)
THE R&R
Judge Brown’s analysis separated Petitioner’s requested
relief into two categories—-back pay from the March 14, 2012
5

termination

to

the

November

11,

2012

Arbitration

Award (“Pre-Decision Back Pay”) and back pay from November 12,
2012 to the May 2, 2014 termination (“Post-Decision Back Pay”).2
(R&R at 8-9.)

Regarding Pre-Decision Back Pay, Judge Brown

concluded that Respondent has offered no explanation for its
failure to comply with the Arbitration Award.
Brown

found

Arbitrator

that,

contrary

addressed

to

Rooney’s

(R&R at 8.)

Respondent’s
prior

injury

arguments,
and

the

physical

limitations in his decision and still awarded back pay.
8.)

Judge

(R&R at

Judge Brown also found that Respondent had an “opportunity to

raise inability to work as a defense to the back pay award.”
at 8.)

(R&R

Thus, he concluded that Respondent was required to pay

Rooney Pre-Decision Back Pay.

(R&R at 8-9.)

Next, Judge Brown considered whether Rooney was entitled
to Post-Decision Back Pay.

(R&R at 9-10.)

He determined that

back pay through May 2014 was not contemplated by the Arbitration
Award, because “the implicit assumption is that such reinstatement
would happen quickly, and . . . back pay would stem from a period
beginning with the March 14, 2012 termination and ending with his
reinstatement in or around November 2012.”

(R&R at 9.)

Judge

Brown reasoned that Respondent’s back pay obligation could not

Initially, Judge Brown rejected Respondent’s argument that
Petitioner’s motion to enforce the Court’s judgment was
untimely. (R&R at 4-7.)
2

6

“continue

indefinitely”

and

that

“[Petitioner’s]

attempt

to

bootstrap a period of nearly eighteen months after the arbitration
determination far exceeds the bounds of the decision.”
10.)

(R&R at 9-

Judge Brown explained that, because the issue of Rooney’s

reinstatement arose after the Arbitration Award, “the issue of
Respondent’s failure to fully reinstate Rooney is a new and
separate issue that was never addressed by the arbitrator in the
arbitration hearings” and should have been the subject of a
subsequent arbitration.

(R&R at 11 (internal quotation marks and

citation omitted).) He pointed out that after Respondent allegedly
failed

to

reinstate

Rooney,

Petitioner

filed

two

grievances

against Respondent--presumably because Petitioner recognized that
the issue needed to be brought to an arbitrator.

(R&R at 10.)

Thus, Judge Brown recommends that the Court grant Petitioner’s
motion in part and direct Respondent to pay Rooney Pre-Decision
Back Pay-- that is, back pay for the period beginning with his
March 14, 2012 termination through and including the date of the
Arbitration Award, November 11, 2012.

(R&R at 12.)

Further, he

recommends that the parties meet and confer in an effort to
stipulate the appropriate amount.
Finally,

Judge

Brown

(R&R at 12.)
recommends

that

Petitioner

be

awarded attorneys’ fees and costs based on Respondent’s “unexcused
failure or refusal to comply with the arbitrator’s decision or the
August 22 judgment.”

(R&R at 13.)
7

He recommends that the Court

grant Petitioner leave to file a separate application specifying
its

attorneys

documentation.

fees

and

costs

and

attaching

supporting

(R&R at 13.)
DISCUSSION

I.

Legal Standard
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).

A party may serve and file

specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of being served with the
recommended disposition.
receiving

any

timely

See FED. R. CIV. P. 72(b)(2).

objections

to

the

magistrate

Upon
judge’s

recommendation, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”
P. 72(b)(3).
must

point

28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV.

A party that objects to a report and recommendation
out

the

specific

portions

recommendation to which they are objecting.

of

the

report

and

See Barratt v. Joie,

No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002).
When a party raises an objection to a magistrate judge's
report, the Court must conduct a de novo review of any contested
sections of the report.

See Pizarro v. Bartlett, 776 F. Supp.
8

815, 817 (S.D.N.Y. 1991).
conclusory

or

original

general

arguments,

However, where a party “makes only

objections,
the

Court

Recommendation only for clear error.”

or

simply

reviews

reiterates

the

Report

his
and

Walker, 216 F. Supp. 2d at

291 (internal quotation marks and citation omitted).
After a court has confirmed an arbitration award, the
award “become[s an] enforceable court order[ ].”

Zeiler v.

Deitsch, 500 F.3d 157, 170 (2d Cir. 2007). The judgment is limited
to the express terms of the underlying arbitration award, and the
court

“may

not

enlarge

enforcement proceedings.

upon

those

terms”

in

the

course

of

Nat’l Football League Players Ass’n v.

Nat’l Football League Mgmt. Council, 523 F. App’x 756, 760 (2d
Cir. 2013).

Moreover, “when a petition for enforcement involves

a new dispute . . . enforcement must be denied.”

Hellman v.

Program Printing, Inc., 400 F. Supp. 915, 918 (S.D.N.Y. 1975).
II.

Respondent’s Objections
At the outset, Respondent makes two related arguments.

First, Respondent argues that Judge Brown erred when he found that
there was no reason for its non-compliance with the back pay award.
(Resp’t’s Obj. at 2.) Respondent contends that it has not complied
because the Arbitration Award does not specify Rooney’s damages or
provide a method for calculating them.

(Resp’t’s Obj. at 2.)

Second, Respondent argues that “compliance with the arbitrator’s
award required evidence outside the scope of the award.” (Resp’t’s
9

Obj. at 4.)

Petitioner responds that, regardless, Respondent was

required to “extend an unconditional offer of reinstatement” and
that Respondent’s claim that it was unable to reinstate Rooney due
to his physical limitations is not supported by the evidence.
(Pet’r’s Opp. to Obj., Docket Entry 41, at 4.)
Respondent is partly correct that the Arbitrator did not
specify Rooney’s damages.

The Arbitration Award states only that

Rooney is entitled to “full back pay for the periods he was
physically able to work.”

(Arbitration Award at 26.)

However,

the fact that the Arbitrator did not specify the exact amount of
back pay due does not relieve Respondent of liability.3
Arbitration

Award,

and

the

Court’s

judgment,

require

The
that

Respondent compensate Rooney for the periods during which he was
able to work.

Because no payments have been made, Respondent has

failed to comply with a court order.

As Judge Brown pointed out,

the Arbitrator discussed Rooney’s injury and physical limitations
in his decision and nevertheless determined that a back pay award

Respondent appears to blame the Arbitrator and Petitioner for
its failure to comply. (See Resp’t’s Obj. at 2.) (“[T]his
failure on the Arbitrator’s part to include a clear remedy and
the concomitant duty of [Petitioner] to prove its damages, are
more than substantial justification for Respondent’s failure to
pay . . . .”) However, Respondent cannot shift blame. It could
have sought clarification or resolution by the Arbitrator if it
was truly concerned about complying in a timely manner.
3

10

was warranted.4
judgment

The Court must enforce the Arbitration Award and

regardless

of

Respondent’s

contentions

that

the

Arbitrator failed to take certain circumstances into account or
the fact that the parties’ disagree on the amount of back pay due.
See Fairchild Corp. v. Alcoa, Inc., 510 F. Supp. 2d 280, 286
(S.D.N.Y.

2007)

(stating

that

“a

court

may

not

conduct

a

reassessment of the evidence” in the course of proceedings related
to an arbitration award).
Third, Respondent argues that it should not be required
to pay attorneys’ fees and costs because it was unable to comply
with the Arbitration Award due to the ambiguities surrounding the
back pay award.

(Resp’t’s Obj. at 7.)

Respondent alleges that it

“repeatedly sought information regarding Rooney’s fitness for duty
in an attempt to determine how to calculate back pay,” and that as
a result, “there is not an unexcused failure or refusal to comply.”
(Resp’t’s Obj. at 7-8.)

“When a challenger refuses to abide by an

arbitrator’s decision without justification, attorneys’ fees and
costs may properly be awarded.” Int’l Chemical Workers Union (AFLCIO), Local No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d

Respondent argues that “[t]he R&R’s suggestion that the period
Rooney was able to work is included in ‘a detailed history’ in
the Arbitrator’s decision is simply untrue.” (Resp’t’s Obj. at
2.) However, the R&R does not suggest this. Rather, the R&R
states that the Arbitrator appears to have considered Rooney’s
ability to work during the proceedings. (R&R at 8.) As a
result, Respondent could have raised Rooney’s alleged inability
to work as a defense. (R&R at 8.)
4

11

Cir. 1985).

Judge Brown found that an award of fees and costs was

warranted based on “Respondent’s conduct . . . including the
arguments raised on this application as well as the unexcused
failure or refusal to comply.”
Brown

determined

that

(R&R at 13.)

Respondent

Specifically, Judge

“proffer[ed]

arguments

that

border on the frivolous” and advocated a “disingenuous” position.
(R&R at 3, n.1.)

Respondent fails to address this issue in its

objections,

in

and

fact,

failed

to

specifically

oppose

Petitioner’s request for fees and costs initially.5 (See generally
Resp’t’s

Opp;

Resp’t’s

Sur-Reply,

Docket

Entry

36-1.)

Nevertheless, the Court declines to make a determination on the
issue of attorneys’ fees and costs at this juncture.

Plaintiff is

granted leave to file a separate application, along with supporting
documentation, at which time the Court will consider whether an
award of fees and costs is warranted.
Accordingly, Respondent’s objections are OVERRULED.
III. Petitioner’s Objection
Petitioner objects to Judge Brown’s recommendation that
Rooney

be

awarded

back

pay

only

for

the

period

between

his

Respondent chose to oppose Petitioner’s motion solely on
procedural and jurisdictional grounds while purportedly
“reserv[ing] its rights and defenses” on the merits. (See
Resp’t’s Opp. at 1, n.1.) Judge Brown found this reservation to
be meaningless as Respondent made arguments regarding the merits
of this dispute. However, Respondent did not address
Petitioner’s request for fees and costs.
5

12

March 14, 2012 termination and the November 11, 2012 Arbitration
Award. (Pet’r’s Obj. at 1.) It argues that Judge Brown’s “formula
of splitting back pay into two components . . . has no basis in
law or fact” and that the facts in the cases cited by Judge Brown
are distinguishable from the facts in this matter.
at 1.)

(Pet’r’s Obj.

Specifically, Petitioner contends that this is not a case

where an intervening event occurred after the issuance of the
award, and as such, there is no “new and separate issue” requiring
another arbitration.

(Pet’r’s Obj. at 1.)

Respondent maintains

that the case law cited by Petitioner is not analogous and that
Petitioner and Rooney failed to cooperate and provide information
to aid in the calculation of back pay.

(See Resp’t’s Opp. to Obj.,

Docket Entry 43, at 3-5.)
The Court finds no error in Judge Brown’s determination.
When

the

Arbitrator

issued

the

award

in

this

case,

he

only

determined whether Rooney’s discharge on March 14, 2012 was a
violation of the CBA and the appropriate remedy.
Award at 7.)
evidence

Undisputedly, the award was based solely on the

presented

proceeding.

(Arbitration

to

the

Arbitrator

during

the

arbitration

Thus, the parties’ post-decision dispute regarding

whether Rooney was properly reinstated was not considered by the
Arbitrator, and indeed, could not have been considered since the
events occurred after the award was rendered.
Respondent must comply with the award.
13

As discussed above,

However, Petitioner may

not use the award to collect damages beyond the scope of the
Arbitration Award.

(See R&R at 9 (“The proposed [back pay] period

encompasses the arbitration award, the confirmation thereof, the
purported failure of [Respondent] to properly reinstate Rooney,
the

subsequent

grievances,

arbitrate the grievances.

and

the

failure

of

the

Union

to

One cannot read the arbitrator’s award

this broadly.”).)
Petitioner argues that Hellman v. Program Printing,
Inc., 400 F. Supp. 915 (S.D.N.Y. 1975), and Int’l Chemical Workers
Union (AFL-CIO), Local No. 227 v. BASF Wyandotte Corp., 774 F.2d
43 (2d Cir. 1985), two cases cited by Judge Brown, are not
analogous because enforcement was denied in those cases due to
intervening circumstances.

(Pet’r’s Obj. at 1-2.)

In BASF

Wyandotte, the arbitrator awarded back pay and reinstatement after
he determined that the termination of Edsall Walker (“Walker”)
breached

the

parties’

collective

Wyandotte, 774 F.2d at 44.

bargaining

agreement.

BASF

After the award was issued but before

the completion of enforcement proceedings, the union and the
employer executed a new collective bargaining agreement pursuant
to which Walker’s position was removed from the bargaining unit.
Id.

During the enforcement proceedings, the employer argued that

it could not fully comply with the arbitration award because
Walker’s position was eliminated in the new agreement.

Id. at 44-

45. The district court disagreed and held that the employer was
14

required to reinstate Walker and was responsible for back pay after
the execution of the new collective bargaining agreement, despite
the elimination of Walker’s position.

Id.

The Second Circuit

reversed, holding that the employer was required to pay back pay
only until the effective date of the new collective bargaining
agreement and that “the issue of Walker’s right to be rehired under
the new collective bargaining agreement [was] a new and separate
issue” that must be resolved in arbitration.

Id. at 46.

Similarly, in Hellman, the arbitrator ordered that an
employer reinstate a seasonal employee with back pay.
400 F. Supp. at 917.

Hellman,

The employee was reinstated, but when the

employer lost a client, the employee was not hired back for the
following season.

Id.

The union sought enforcement of the

arbitration award, but the district court denied the request.
at 918.

Id.

The court concluded that “the issue of whether the

respondent must again rehire [the employee], in light of the
alleged

change

arbitration.”

in

circumstances,

is

a

proper

subject

for

Id.

The Court acknowledges that the circumstances in BASFWyandotte and Hellman are not identical to the circumstances in
this case; however, the general rule still applies.

All three

cases involve significant post-decision disputes that are outside
the scope of the arbitration award.

See BASF Wyandotte, 774 F.2d

at 46 (“[U]nless it is beyond argument that there is no material
15

factual difference between the new dispute and the one decided in
the prior arbitration that would justify an arbitrator’s reaching
a different conclusion, the case must go to fresh arbitration
rather than to the court for judicial enforcement.”) (internal
quotation marks omitted).

Respondent contends that Rooney was

reinstated in December 2012 but has not been assigned to perform
his duties due to physical limitations.
20.)

Petitioner

(Pet’r’s

56.1

alleges

that

Counterstmt.

¶

(Resp’t’s 56.1 Stmt. ¶

Rooney
19.)

was
This

never
dispute

reinstated.6
was

never

arbitrated, and the Court declines to resolve it. Whether Rooney’s
reinstatement

was

legitimate

is

outside

the

scope

of

the

Arbitration Award, and during these enforcement proceedings, the
Court “may not enlarge upon . . . [the award’s] terms.”
Football League, 523 F. App’x at 760.

Nat’l

Although not dispositive,

Petitioner likely recognized that the reinstatement dispute was a
separate

issue

when

it

filed

grievances

on

Rooney’s

behalf

regarding his reinstatement shortly after the Arbitration Award
was issued.7

(See Ford Decl., ¶¶ 32-33.)

While not relevant to the Court’s determination here, it is
unclear how Rooney could have been terminated for a second time
on May 2, 2014 if, as Petitioner argues, he was not previously
reinstated. (See Howell Decl. ¶ 10.)
6

Respondent denied the grievances, and Petitioner never pursued
arbitration. (Ford Decl. ¶¶ 33-34.)
7

16

Petitioner argues that this case is analogous to CaseHoyt Corporation v. Graphic Communications International Union
Local 503, 975 F. Supp. 231 (W.D.N.Y. 1997) and United Steelworkers
of America, AFL-CIO, CLC v. Dayton-Walther Corporation, Muncie
Division, 657 F. Supp. 50 (S.D. Ind. 1986).
7, 11-12.)

(Pet’r’s Obj. at 6-

However, in these cases, it was undisputed that the

employer did not comply with the arbitration award.

See Case-

Hoyt, 975 F. Supp. at 232; Dayton-Walther, 657 F. Supp. at 53.8
As a result, there was no dispute that could have been considered
a new and separate issue that required arbitration.

Additionally,

these cases are not binding on this Court, particularly in light
of the unique circumstances here.
Petitioner’s
result.

remaining

arguments

do

not

change

the

Petitioner argues that back pay is typically awarded from

the date of discharge to the date the employee is “actually
reinstated or declines an unconditional offer.”
4.)

(Pet’r’s Obj. at

Even if the typical back pay award was relevant here, it is

unclear if Rooney was reinstated by Respondent.

Petitioner also

contends that arbitrating the issue of Respondent’s compliance is

Petitioner also cites United Steelworkers of America, Dist. 36,
Local 8249 v. Adbill Management Corp., 754 F.2d 138 (3d Cir. 1985).
Similar to Case-Hoyt and Dayton-Walther, in that case it was
undisputed that the employer did not reinstate a group of employees
after an arbitration award. United Steelworkers, 754 F.2d at 142.
Further, the Court made no determination on the issue of back pay,
as back pay was not awarded by the arbitrator.
8

17

outside the scope of the CBA.

(Pet’r’s Obj. at 8-9.)

The Court

declines to interpret the scope of the CBA, as that issue is also
not before the Court. As discussed, the Court’s authority in these
proceedings is limited to enforcing the judgment confirming the
Arbitration Award.
Accordingly,

Petitioner’s

objection

is

OVERRULED.

Rooney is entitled to back pay for periods he was physically able
to work between March 14, 2012 and November 11, 2012.

The parties

should meet and confer regarding the amount of back pay due, and
if they cannot agree, Petitioner may make an application for
further relief, including an inquest if necessary.
CONCLUSION
For the foregoing reasons, Petitioner’s and Respondent’s
objections are OVERRULED, and the R&R is ADOPTED AS MODIFIED.
Petitioner’s motion to enforce the judgment (Docket Entry 30) is
GRANTED IN PART and DENIED IN PART.

Specifically, Respondent is

directed to pay Rooney back pay for the periods he was physically
able to work beginning with his March 14, 2012 termination through
and including the date of the Arbitration Award, November 11, 2012.
If the parties cannot agree on the amount, they may seek further
relief from the Court.

The Court declines to determine whether

Petitioner is entitled to attorneys’ fees and costs at this time.
Petitioner is granted leave to file a separate motion with the

18

appropriate documentation within thirty (30) days of the date of
this Memorandum and Order.

SO ORDERED.

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

March
27 , 2017
Central Islip, New York

19