Local 30, International Union of Operating Engineers, AFL-CIO v. Wood Group Power Operations LLC
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
LOCAL 30, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
MEMORANDUM & ORDER
WOOD GROUP POWER OPERATIONS LLC,
Alexandra J. Howell, Esq.
Robert T. McGovern, Esq.
Archer Byington Glennon & Levine LLP
One Huntington Quadrangle, Suite 4C10
Melville, NY 11747
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 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
(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
recommending that this Court grant Petitioner’s motion in part and
deny it in part.
(R&R, Docket Entry 40, at 13.)
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.)
November 11, 2012 to May 2, 2014.
He further recommends
(R&R at 9-11.)
recommends that Petitioner be awarded costs and attorneys’ fees.
(R&R at 13.)
Petitioner and Respondent filed objections to the
(Pet’r’s Obj., Docket Entry 41; Resp’t’s Obj., Docket Entry
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
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.)
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.)
November 21, 2012, Arbitrator Randall M. Kelly (the “Arbitrator”)
concluded that Respondent failed to comply with the CBA when it
(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”).
(Arbitration Award at 26.)
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
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.)
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.)
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
(Pet’r’s 56.1 Counterstmt. ¶ 21.)
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.
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.)
(Howell Decl., Docket Entry 30-
Petitioner filed a complaint with the National Labor
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
interest of $20,306.72 and attorneys’ fees and costs.
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.
As noted above, Petitioner and Respondent filed
objections to the R&R.
pursuant to the Arbitration Award or the Court’s judgment.
Judge Brown’s analysis separated Petitioner’s requested
relief into two categories—-back pay from the March 14, 2012
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.
(R&R at 8.)
limitations in his decision and still awarded back pay.
Judge Brown also found that Respondent had an “opportunity to
raise inability to work as a defense to the back pay award.”
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.)
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.)
bootstrap a period of nearly eighteen months after the arbitration
determination far exceeds the bounds of the decision.”
(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
(R&R at 11 (internal quotation marks and
citation omitted).) He pointed out that after Respondent allegedly
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.)
recommends that the parties meet and confer in an effort to
stipulate the appropriate amount.
(R&R at 12.)
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.)
He recommends that the Court
grant Petitioner leave to file a separate application specifying
(R&R at 13.)
“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
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
See FED. R. CIV. P. 72(b)(2).
recommendation, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV.
A party that objects to a report and recommendation
recommendation to which they are objecting.
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.
815, 817 (S.D.N.Y. 1991).
However, where a party “makes only
Recommendation only for clear error.”
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[ ].”
Deitsch, 500 F.3d 157, 170 (2d Cir. 2007). The judgment is limited
to the express terms of the underlying arbitration award, and the
Nat’l Football League Players Ass’n v.
Nat’l Football League Mgmt. Council, 523 F. App’x 756, 760 (2d
Moreover, “when a petition for enforcement involves
a new dispute . . . enforcement must be denied.”
Program Printing, Inc., 400 F. Supp. 915, 918 (S.D.N.Y. 1975).
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
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.)
the fact that the Arbitrator did not specify the exact amount of
back pay due does not relieve Respondent of liability.3
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.
The Court must enforce the Arbitration Award and
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
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.)
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.”
(R&R at 13.)
border on the frivolous” and advocated a “disingenuous” position.
(R&R at 3, n.1.)
Respondent fails to address this issue in its
Petitioner’s request for fees and costs initially.5 (See generally
Nevertheless, the Court declines to make a determination on the
issue of attorneys’ fees and costs at this juncture.
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
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.
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.
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
(Pet’r’s Obj. at 1.)
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.
determined whether Rooney’s discharge on March 14, 2012 was a
violation of the CBA and the appropriate remedy.
Award at 7.)
Undisputedly, the award was based solely on the
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.
As discussed above,
However, Petitioner may
not use the award to collect damages beyond the scope of the
(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,
arbitrate the grievances.
One cannot read the arbitrator’s award
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
(Pet’r’s Obj. at 1-2.)
Wyandotte, the arbitrator awarded back pay and reinstatement after
he determined that the termination of Edsall Walker (“Walker”)
Wyandotte, 774 F.2d at 44.
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.
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
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.
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.
The employee was reinstated, but when the
employer lost a client, the employee was not hired back for the
The union sought enforcement of the
arbitration award, but the district court denied the request.
The court concluded that “the issue of whether the
respondent must again rehire [the employee], in light of the
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.
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
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.
(Resp’t’s 56.1 Stmt. ¶
arbitrated, and the Court declines to resolve it. Whether Rooney’s
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.
Although not dispositive,
Petitioner likely recognized that the reinstatement dispute was a
regarding his reinstatement shortly after the Arbitration Award
(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.)
Respondent denied the grievances, and Petitioner never pursued
arbitration. (Ford Decl. ¶¶ 33-34.)
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).
(Pet’r’s Obj. at 6-
However, in these cases, it was undisputed that the
employer did not comply with the arbitration award.
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.
these cases are not binding on this Court, particularly in light
of the unique circumstances here.
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.”
(Pet’r’s Obj. at
Even if the typical back pay award was relevant here, it is
unclear if Rooney was reinstated by Respondent.
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.
outside the scope of the CBA.
(Pet’r’s Obj. at 8-9.)
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
Rooney is entitled to back pay for periods he was physically able
to work between March 14, 2012 and November 11, 2012.
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.
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
appropriate documentation within thirty (30) days of the date of
this Memorandum and Order.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
27 , 2017
Central Islip, New York
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