75-07 Food Corp. et al v. Trustees of United Food and Commericial Workers Local 342 Health Care Fund et al

Filing 14

ORDER granting in part and denying in part 6 Motion to Dismiss. For the reasons set forth herein, the Court grants respondents' motion to compel arbitration, grants respondents' motion to vacate the temporary stay of arbitration ordered by the New York State Supreme Court, and stays this action. The parties are ordered to proceed to the arbitration process set forth in the Union Funds' Collection Procedures, which are binding on petitioners through the 2004 collective bargaining agreement. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/24/2014. (Gibaldi, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-5861 (JFB) (ARL)

_____________________

75-07 FOOD CORP., LOREEN FOOD CORP., KAMAL CORP., CORO FOOD CORP.,
ZIAD FOOD CORP., 89-02 FOOD CORP., 130-10 FOOD CORP., AND
NADINE FOOD CORP. D/B/A/ TRADE FAIR SUPERMARKETS,
Petitioners,
VERSUS

TRUSTEES OF UNITED FOOD AND COMMERCIAL WORKERS LOCAL 342 HEALTH CARE
FUND, UNITED FOOD AND COMMERCIAL WORKERS LOCAL 342 SAFETY, EDUCATION,
CULTURAL AND ACTIVITIES FUND, UNITED FOOD AND COMMERCIAL WORKERS
LOCAL 342 LEGAL FUND, AND UNITED FOOD AND COMMERCIAL WORKERS LOCAL
342 SAVINGS & 401(K) PLAN,
Respondents.
___________________
MEMORANDUM AND ORDER
February 24, 2014
___________________

342 Legal Fund (“Legal Fund”), and United
Food and Commercial Workers Local 342
Savings & 401(k) Plan (“Annuity Fund”)
(collectively, the “Union Funds” or
“respondents”) requested to adjudicate a
dispute over fringe benefit contributions that
Trade Fair has allegedly failed to make to the
Union Funds. On October 23, 2013, the New
York State Supreme Court temporarily
stayed the arbitration pending resolution of
Trade Fair’s petition to stay arbitration. The
Union Funds removed this case to federal
court on October 25, 2013.

JOSEPH F. BIANCO, District Judge:
Petitioners 75-07 Food Corp., Loreen
Food Corp., Kamal Corp., Coro Food Corp.,
Ziad Food Corp., 89-02 Food Corp., 130-10
Food Corp., and Nadine Food Corp. d/b/a
Trade Fair Supermarkets (collectively,
“Trade Fair” or “petitioners”) filed an action
in New York State Supreme Court seeking a
stay of the arbitration that respondents
Trustees of United Food and Commercial
Workers Local 342 Health Care Fund
(“Health Care Fund”), United Food and
Commercial Workers Local 342 Safety,
Education, Cultural and Activities Fund
(“Safety-Educational-Cultural
Fund”),
United Food and Commercial Workers Local

Presently before the Court is the Union
Funds’ motion to dismiss the complaint, to
vacate the stay ordered by the New York

1

State Supreme Court, and to compel
arbitration. For the reasons that follow, the
Court concludes that this action should be
stayed, and the parties should proceed to
arbitration. Resolution of the present dispute
concerns the circumstances under which
parties to an expired collective bargaining
agreement may be compelled to arbitrate a
post-expiration dispute pursuant to an
arbitration provision in that agreement.
Specifically, Trade Fair and the Union Funds
raise the following two issues concerning the
scope of their agreement to arbitrate: (1)
which of several arbitration clauses in their
collective bargaining agreement covers
disputes over delinquent fringe benefit
contributions, generally, and (2) whether the
governing arbitration clause applies to their
dispute over missed contributions occurring
in 2013, given that the collective bargaining
agreement expired in 2012. As to the first
issue, the Court interprets the various
arbitration clauses according to their plain
meaning and determines that the arbitration
provision in the Union Funds’ “Procedures
for
Collection
of
Delinquent
Contributions”—incorporated by reference
in the collective bargaining agreement—
covers
disputes
over
delinquent
contributions. On the second issue, the Court
concludes that this arbitration clause applies
specifically to the present, underlying dispute
over allegedly delinquent contributions in
2013. In reaching this outcome, the Court
applies the test set forth by the Supreme
Court in Litton Fin. Printing Div. v. NLRB,
501 U.S. 190 (1991), to determine whether
the Union Funds had a right to fringe benefit
contributions from Trade Fair in 2013, which
arose under the collective bargaining
agreement, even though the collective
bargaining agreement expired in 2012. Under
Litton, a post-expiration grievance arises
under the collective bargaining agreement (1)
“where it involves facts and occurrences that
arose before expiration”; (2) “where an

action taken after expiration infringes a right
that accrued or vested under the agreement”;
or (3) “where, under normal principles of
contract
interpretation,
the
disputed
contractual right survives expiration of the
remainder of the agreement.” Id. at 205–06.
Here, the Court applies normal principles of
contract interpretation and concludes that the
Union Funds’ right to fringe benefit
contributions from Trade Fair survives
expiration of the remainder of the collective
bargaining agreement. Specifically, a
memorandum of agreement, which modified
the collective bargaining agreement and
extended it until 2012, references Trade
Fair’s contributions to the Union Funds in
2013. The Court discerns from the plain
meaning of these provisions a clear intent to
extend the Union Funds’ right to such
contributions beyond expiration of the
remainder of the collective bargaining
agreement. Accordingly, the Court concludes
that the Union Funds’ underlying grievance
is arbitrable.
I. BACKGROUND
A. Facts
Trade Fair is in the business of operating
supermarkets. (Pearl Aff. ¶ 3.) On April 5,
2004, Trade Fair and United Food and
Commercial Workers Local 342 (the
“Union”)—the Union representing Trade
Fair employees—entered into a collective
bargaining agreement that lasted from April
5, 2004 to November 1, 2008 (the “2004
CBA”). (See Lauletti Aff. Ex. C, 2004 CBA.)
Pursuant to the 2004 CBA, Trade Fair agreed
to make certain fringe benefit contributions
to the Union Funds for the benefit of Trade
Fair’s employees. (Id. at 9–12.) Trade Fair
also agreed to be bound by Union Funds’
Declarations of Trust, along with their
implementing documents and procedures,

2

including the provisions for the collection of
contributions. (See id.)

66.) Those provisions state, in relevant part,
that

The 2004 CBA itself contains several
different arbitration clauses. First, Article 22
of the 2004 CBA contains a broad arbitration
clause covering disputes “between the Union
or its members and [Trade Fair] as to the
interpretation, application, or enforcement of
any of the provisions of this Agreement,
except differences which arise involving
contributions to the [Union Funds].” (Id. at
14.) This arbitration clause provides that a
“single arbitrator shall be selected on a
rotating basis from a qualified panel jointly
designated by the Employer and the
Union. . . . Arbitrators selected from the
panel shall be eligible to hear all grievances
arising out of the interpretation, application,
or enforcement of any of the provisions of
this Agreement.” (Id.) Second, Schedule B of
the 2004 CBA is an old collective bargaining
agreement between Trade Fair and the Union
covering the period from October 23, 1999 to
October 25, 2003 (the “1999 CBA”). (See id.
at 27). The 2004 CBA adopts the provisions
of the 1999 CBA “for all employees covered
by the [1999 CBA],” whom the 2004 CBA
identified as only seven Trade Fair
employees. (See id.) Article 23 of the 1999
CBA contains a similar arbitration clause to
that in Article 22 of the 2004 CBA; it covers
all disputes “as to the interpretation,
application or enforcement of any of the
provisions of this Agreement, except
differences
which
arise
involving
contributions to the [Union Funds].” (Id. at
51–52.) However, in addition, in a letter
dated October 23, 1999 that is attached to the
1999 CBA, Trade Fair and the Union agreed
“to add the following provisions to Article 23
of the Collective Bargaining Agreement
between us, dated October 23, 1999.” (Id. at

[a]ny dispute or controversy
arising out of contributions to
the [Union Funds], which the
parties are unable to adjust,
shall be submitted to John
Kennedy,
Impartial
Arbitrator, or his successor
chosen by the parties, for his
determination and award. His
award shall be final and
binding and subject to
enforcement in any court of
competent jurisdiction in the
State of New York.
(Id.)
By Memorandum of Agreement dated
August 6, 2009 (the “MOA”), Trade Fair and
the Union agreed “that all terms and
conditions of the April 5, 2004 through
November 1, 2008 Collective Bargaining
Agreement [would] remain in effect through
and including November 1, 2012, except for
the following modifications.” (Lauletti Aff.
Ex. D, MOA at 1.) Among those
modifications, Trade Fair agreed to make
increased monthly contributions to the Union
Funds on behalf of Trade Fair employees.
(See id. at 2–4.) Under the MOA, the amount
of the monthly contribution was set to
increase once per year. (See id.) With respect
to the Annuity Fund, the Safety-EducationalCultural Fund, and the Legal Fund, the last
increase was set to occur on January 1,
2013—two months after the 2004 CBA’s
expiration. (See id. at 3–4.) For instance,
Trade Fair agreed to make the following
monthly contributions to the Annuity Fund

3

for each full-time employee hired on or
before November 1, 2008:

Finally, the MOA incorporated by
reference “the Agreements and Declarations
of Trust establishing the Benefit Funds . . .
set forth in this Agreement [(the Union
Funds)] and all rules, regulations and
procedures adopted by the Trustees of the
Benefit Funds, as they may be amended or
modified from time to time, including but not
limited to all provisions for the collection of
contributions.” (Id. at 3.) A separate
document entitled “UFCW Local 174
Affiliated Trust Funds and UFCW Local 342
Affiliated Trust Funds Procedures for
Collection of Delinquent Contributions”
(“Collection Procedures”) sets forth, inter
alia, yet another arbitration provision
covering
disputes
over
delinquent
contributions to the Union Funds. (See
Lauletti Aff. Ex. A, Collection Procedures, at
8–13.) That arbitration clause states that
“[a]ll arbitrations initiated by the Funds shall
be conducted in accordance with the
Arbitration Procedures and Rules Governing
Employer Delinquency and Audit Disputes
established by the Funds’ Trustees.” (Id. at
8.)

Full-Time
Effective
Effective
Effective
Effective

January 1, 2010
January 1, 2011
January 1, 2012
January 1, 2013

$80.00
$90.00
$105.00
$120.00

(Id. at 3.)
The MOA also modified the arbitration
procedures set forth in Article 22 of the 2004
CBA in the following way:
For the purpose of arbitration
pertaining to matters other
than
suspensions
or
terminations, the language
shall read that the arbitrator
shall be selected from the
American
Arbitration
Association listing (no panel).
For arbitrations regarding
suspensions and terminations
only, arbitrators shall be
selected from a panel, and the
panel will be made up of
arbitrators that are currently in
the
industry
practicing
arbitration, and shall be
selected as follows: . . .

The 2004 CBA, as extended by the MOA,
expired on November 1, 2012, and is
currently being renegotiated by Trade Fair
and the Union. (Lauletti Aff. ¶ 22; Flanagan
Aff. ¶¶ 3–4.) After expiration of the 2004
CBA, it appears that Trade Fair continued to
make fringe benefit contributions to the
Union Funds until April 2013. (Lauletti Aff.
¶ 9.) The Union Funds claim that Trade Fair
has failed to make such contributions since
then. (Id.) On October 9, 2013, the Union
Funds sent Trade Fair a demand for
arbitration over Trade Fair’s alleged “failure
and/or refusal to make proper and timely
contributions to the [Union] Funds for
September 2013 and October 2013 monthly
billing.” (Lauletti Aff. Ex. B.) This lawsuit
followed.

All of the above language
shall be placed in the proper
paragraphs under the current
Grievance/Arbitration
language in the 2003 to 2007
contract. No other language
will change as a result of the
above items.
(Id. at 5.)

4

(“FAA”), the Court evaluates a motion to
compel arbitration under a standard similar to
the standard for a summary judgment motion
made pursuant to Federal Rule of Civil
Procedure 56. See Bensadoun v. Jobe–Riat,
316 F.3d 171, 175 (2d Cir. 2003) (citing ParKnit Mills, Inc. v. Stockbridge Fabrics Co.,
636 F.2d 51, 54 n.9 (3d Cir.1980)); Hines v.
Overstock.com, Inc., 380 F. App’x 22, 24 (2d
Cir. 2010); Jillian Mech. Corp., 882 F. Supp.
2d at 363; Guida v. Home Sav. of Am., Inc.,
793 F. Supp. 2d 611, 614 (E.D.N.Y. 2011).
“If there is an issue of fact as to the making
of the agreement for arbitration, then a trial is
necessary.” Bensadoun, 316 F.3d at 175
(citing 9 U.S.C. § 4).

B. Procedural History
Trade Fair initially filed an Order to
Show Cause and Petition to Stay Arbitration
in the Supreme Court of New York, Nassau
County on October 23, 2013. That same day,
a New York judge signed the Order to Show
Cause and temporarily stayed arbitration
pending final resolution of Trade Fair’s
petitioner. Two days later, on October 25,
2013, the Union Funds removed the action to
this Court. The Union Funds filed a motion to
dismiss the complaint on December 4, 2013.
Trade Fair opposed the motion on December
18, 2013, and the Union Funds replied on
January 10, 2013. The Court heard oral
argument on January 16, 2013. The Court has
fully considered the submissions of the
parties.

The standard for summary judgment is
well settled. Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P.
56(a); Gonzalez v. City of Schenectady, 728
F.3d 149, 154 (2d Cir. 2013). The moving
party bears the burden of showing that he or
she is entitled to summary judgment. See
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005); see also Jillian Mech. Corp., 882
F. Supp. 2d at 364 (“On a motion to compel
arbitration, the moving party has the initial
burden of showing that an agreement to
arbitrate exists.”). The court “‘is not to weigh
the evidence but is instead required to view
the evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the

II. STANDARD OF REVIEW
Although styled as a motion to dismiss,
the Union Funds’ motion also seeks an order
compelling arbitration. (See Notice of Mot.,
ECF No. 6). Thus, “[f]or purposes of
deciding the instant motion, the Court will do
as a number of other courts have done and
construe the Respondents’ motion to dismiss
as a motion to compel arbitration.” Jillian
Mech. Corp. v. United Serv. Workers Union
Local 355, 882 F. Supp. 2d 358, 363
(E.D.N.Y. 2012); see Wabtec Corp. v.
Faiveley Transp. Malmo AB, 525 F.3d 135,
139–40 (2d Cir. 2008) (motion to dismiss
may be construed as motion to compel
arbitration where movant requests district
court to compel arbitration); Krantz &
Berman, LLP v. Dalal, No. 09-CV-9339
(DLC), 2010 WL 1875695, at *3 (S.D.N.Y.
May
11,
2010)
(“Under
certain
circumstances a court may construe a motion
to dismiss based on the existence of a
mandatory arbitration provision as a motion
to compel arbitration.”), aff’d, 472 F. App’x
76 (2d Cir. 2012). Pursuant to the Federal
Arbitration Act, 9 U.S.C. §§ 1 et seq.
5

evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

643, 651 (1986)); see, e.g., Cleveland
Wrecking Co. v. Iron Workers Local 40, 136
F.3d 884, 888 (2d Cir. 1997). “Disputes about
whether the parties are bound by the
arbitration agreement, or if a particular
controversy falls under the scope of an
arbitration agreement, are both the type of
gateway issues that go to arbitrability and
which are for courts to decide.” Guida, 793
F. Supp. 2d at 615 (citing Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 84
(2002)). Section 3 of the FAA provides:

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must come
forward with specific facts showing that there
is a genuine issue for trial.’” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(alteration and emphasis in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” 477 U.S. at 249–50
(citations omitted). Indeed, “the mere
existence of some alleged factual dispute
between the parties alone will not defeat an
otherwise properly supported motion for
summary judgment.” Id. at 247–48 (emphasis
in original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is insufficient
for a party opposing summary judgment
“‘merely to assert a conclusion without
supplying supporting arguments or facts.’”
BellSouth Telecomms., Inc. v. W.R. Grace &
Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at 33).

If any suit or proceeding be
brought in any of the courts of
the United States upon any
issue referable to arbitration
under an agreement in writing
for such arbitration, the court
in which such suit is pending,
upon being satisfied that the
issue involved in such suit or
proceeding is referable to
arbitration under such an
agreement,
shall
on
application of one of the
parties stay the trial of the
action until such arbitration
has been had in accordance
with the terms of the
agreement, providing the
applicant for the stay is not in
default in proceeding with
such arbitration.

III. DISCUSSION

9 U.S.C. § 3. In deciding whether an action
should be sent to arbitration, the Second
Circuit has instructed a district court to
conduct the following inquiry:

“Whether or not a company is bound to
arbitrate, as well as what issues it must
arbitrate, is a matter to be determined by the
court, and a party cannot be forced to
‘arbitrate the arbitrability question.’” Litton,
501 U.S. 208–09 (quoting AT & T Techs.,
Inc. v. Commc’ns Workers of Am., 475 U.S.

[F]irst, it must determine
whether the parties agreed to
arbitrate; second, it must
determine the scope of that
agreement; third, if federal
statutory claims are asserted,
it must consider whether
6

Congress intended those
claims to be nonarbitrable;
and fourth, if the court
concludes that some, but not
all, of the claims in the case
are arbitrable, it must then
decide whether to stay the
balance of the proceedings
pending arbitration.

A. Scope of the Arbitration Clauses
Trade Fair and the Union Funds disagree
about which arbitration clause in the 2004
CBA, as modified by the MOA, covers
grievances over delinquent contributions to
the Union Funds. The Union Funds contend
that the October 23, 1999 letter setting forth
separate procedures for arbitrations over
contributions to the Union Funds applies.
They also argue that the arbitration clause in
their Collection Procedures applies to
grievances over delinquent contributions.
Trade Fair responds that the October 23,
1999 letter modified only the 1999 CBA, and
that Article 22 of the 2004 CBA, as modified
by the MOA, applies to disputes over
delinquent contributions arising under the
2004 CBA. For the following reasons, the
Court concludes that only the arbitration
clause in the Union Funds’ Collection
Procedures applies to disputes over
delinquent contributions to the Union Funds.

JLM Indus. v. Stolt-Nielsen SA, 387 F.3d 163,
169 (2d Cir. 2004) (quoting Oldroyd v.
Elmira Sav. Bank, FSB, 134 F.3d 72, 75–76
(2d Cir. 1998)).
Here, it is undisputed that Trade Fair and
the Union Funds agreed to arbitrate.
However, they disagree about the scope of
that agreement in two respects. First, they
dispute which arbitration clause covers
grievances over delinquent contributions to
the Union Funds, although they appear to
agree that at least one arbitration clause
covers such grievances. Second, they dispute
whether the Union Funds’ underlying
grievance over Trade Fair’s allegedly
delinquent contributions in 2013 falls outside
the scope of the applicable arbitration clause
because the 2004 CBA, as extended by the
MOA, expired in 2012. The Court takes up
each issue in turn.1

1. Legal Standard
The Second Circuit has repeatedly
acknowledged that “federal policy strongly
favors arbitration as an alternative dispute
resolution process.” David L. Threlkeld &
Co. v. Metallgesellschaft Ltd., 923 F.2d 245,
248 (2d Cir. 1991). In light of this federal
policy, the Second Circuit encourages courts
to “construe arbitration clauses as broadly as
possible,” and to “compel arbitration unless it

As a threshold matter, contrary to Trade Fair’s
suggestion, the Union Funds’ simultaneous pursuit of
the September and October 2013 contributions before
the National Labor Relations Board does not preclude
the Union Funds from seeking to arbitrate the present,
underlying dispute. See Local 807, Int’l Bhd. of
Teamsters, Chauffeurs, Warehousemen & Helpers of
Am. v. Brink’s, Inc., 744 F.2d 283, 286 (2d Cir. 1984)
(“That the issues are before the NLRB does not
preclude plaintiff from raising them concurrently in an
arbitration proceeding.”); see also Emery Air Freight
Corp. v. Local Union 295, 786 F.2d 93, 100 (2d Cir.
1986) (“Nor is the pendency of the same issues before

the NLRB a basis for staying arbitration.”); BogopaJunction, Inc. v. Local 338 RWDSU, No. 00-CV-3146
(GBD), 2000 WL 666336, at *3 (S.D.N.Y. May 22,
2000) (refusing to stay arbitration on basis that union
commenced both arbitration and NLRB proceedings);
cf. United Aircraft Corp. v. Canel Lodge No. 700, Int’l
Ass’n of Machinists & Aerospace Workers, AFL-CIO,
314 F. Supp. 371, 376 (D. Conn.) (“The arbitration
process will not preclude or otherwise limit the
Union’s right to simultaneously process its statutory
grievance before the NLRB.”), aff’d, 436 F.2d 1 (2d
Cir. 1970).

1

7

may be said with positive assurance that the
arbitration clause is not susceptible of an
interpretation that covers the asserted
dispute.” Collins & Aikman Prods. Co. v.
Bldg. Sys. Inc., 58 F.3d 16, 19 (2d Cir. 1995)
(citation and internal quotation marks
omitted). Indeed, “‘any doubts concerning
the scope of arbitrable issues should be
resolved in favor of arbitration, whether the
problem at hand is the construction of the
contract language itself or an allegation of
waiver, delay, or a like defense to
arbitrability.’” Stolt-Nielsen, 387 F.3d at 171
(quoting Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24–25
(1983)); see, e.g., Garten v. Kurth, 265 F.3d
136, 142 (2d Cir. 2001).

evidence of a purpose to exclude the claim
from arbitration can prevail.’” AT & T Techs.,
Inc., 475 U.S. at 650 (alteration in original)
(quoting Steelworkers of Am. v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 582–85
(1960)). When making its determination as to
whether a case should proceed before the
court or the arbitrator, “a court must be ever
mindful of the strong national policy favoring
arbitration of labor disputes.” Rochdale Vill.,
Inc. v. Public Serv. Emp. Union, 605 F.2d
1290, 1294 (2d Cir. 1979).
The Court applies general principles of
contract law to interpret the arbitration
clauses at issue. See, e.g., In re Arbitration
Between Standard Tallow Corp. & Kil-Mgmt.
A/S, 901 F. Supp. 147, 149 (S.D.N.Y. 1995)
(noting the “[i]nterpretation of an arbitration
clause under the FAA is a question of federal
law, and must be interpreted in accordance
with the general federal law of contracts,”
and that the federal law of contracts
“dovetails precisely with general principles
of contract law” (quotation marks and
citations omitted)). Under New York
principles of contract interpretation, “the
‘words and phrases [in a contract] should be
given their plain meaning, and the contract
should be construed so as to give full
meaning and effect to all of its provisions.’”
Olin Corp. v. Am. Home Assurance Co., 704
F.3d 89, 99 (2d Cir. 2012) (alteration in
original) (quoting LaSalle Bank Nat’l Ass’n
v. Nomura Asset Capital Corp., 424 F.3d
195, 206 (2d Cir. 2005)); see Vt. Teddy Bear
Co., Inc. v. 538 Madison Realty Co., 1
N.Y.3d 470, 475 (2004) (“When interpreting
contracts, we have repeatedly applied the
familiar and eminently sensible proposition
of law that, when parties set down their
agreement in a clear, complete document,
their writing should be enforced according to
its terms.” (internal citations and alterations
omitted)). “This sensible proposition of
law . . . imparts stability to commercial
transactions by safeguarding against

In determining whether a dispute should
go to the courts or to the arbitrator, the law
has offered the following guidance. Where
the underlying issue concerns “whether a
dispute between the parties is covered by the
arbitration agreement[, that] is for the courts
to decide.” Prudential Lines, Inc. v. Exxon
Corp., 704 F.2d 59, 63 (2d Cir. 1983); see,
e.g., Stolt-Nielsen, 387 F.3d at 171 (“‘[A]
disagreement about whether an arbitration
clause . . . applies to a particular type of
controversy is for the court.’” (quoting
Howsam, 537 U.S. at 84)). Relatedly,
“[w]here the parties to an arbitration
agreement specifically have excepted a
certain type of claim from mandatory
arbitration, it is the duty of federal courts to
enforce such limitations.” Oldroyd, 134 F.3d
at 76. Where a contract contains a broad
arbitration clause, however, courts generally
hold that “a court should compel arbitration,
and permit the arbitrator to decide whether
the dispute falls within the [arbitration]
clause.” Prudential Lines, Inc., 704 F.2d at
64. Indeed, where a broad arbitration clause
is in play, a presumption of arbitrability
attaches, and “‘in the absence of any express
provision excluding a particular grievance
from arbitration, . . . only the most forceful
8

See Oldroyd, 134 F.3d at 76 (“Where the
parties to an arbitration agreement
specifically have excepted a certain type of
claim from mandatory arbitration, it is the
duty of federal courts to enforce such
limitations.”). For this reason, as well, the
Court rejects Trade Fair’s argument that the
MOA’s amendments to Article 22 apply to
grievances over delinquent contributions.
The MOA’s modifications to Article 22
relate only to the procedures for arbitrations
covered by Article 22; the MOA does not
enlarge the scope of Article 22 itself.

fraudulent claims, perjury, death of witnesses
and infirmity of memory.” Wallace v. 600
Partners Co., 86 N.Y.2d 543, 548 (1995)
(internal quotation marks and alternations
omitted).
2. Application
As noted, the parties argue over which
arbitration procedure applies to grievances
over delinquent contributions. The Court
proceeds by examining each arbitration
provision that the parties have raised.
The Court turns first to the October 23,
1999 letter. The plain language of that letter
belies the Union Funds’ contention that the
letter’s arbitration provision covers disputes
over all delinquent contributions to the Union
Funds. The October 23, 1999 letter modifies
only “Article 23 of the Collective Bargaining
Agreement between [Trade Fair and the
Union], dated October 23, 1999.” (2004 CBA
at 66.) Moreover, as noted, the 1999 CBA—
including its arbitration provision at Article
23—was incorporated into the 2004 CBA
only insofar as it continued to cover seven
Trade Fair employees. (See id. at 27.) Thus,
any disputes over contributions to the Union
Funds arising out of the 2004 CBA, and not
the 1999 CBA, fall outside the scope of the
October 23, 1999 letter’s arbitration clause.

However, the Union Funds’ Collection
Procedures—incorporated into the 2004
CBA by reference in the MOA (see MOA at
3)—fill in the gap created by Article 22. As
noted, the Collection Procedures provide a
separate arbitration clause explicitly covering
disputes over delinquent contributions. (See
Collection Procedures at 8 (“If an
Employer’s delinquent contributions, all
accrued interest and/or any other charges or
amounts owed remain unpaid, or an
Employer has failed to schedule an audit,
seven (7) days after the date of the Demand
Letter (as defined in Section II, Paragraph 5
of these Procedures), the claim may proceed
to arbitration. . . . All arbitrations initiated by
the Funds shall be conducted in accordance
with the Arbitration Procedures and Rules
Governing Employer Delinquency and Audit
Disputes established by the Funds’
Trustees.”).) Thus, according to the plain
language of the 2004 CBA, the MOA, and the
Collection Procedures, grievances over
delinquent contributions to the Union Funds
fall squarely within the scope of the
arbitration clause set forth in the Collection
Procedures.

Having disposed of the October 23, 1999
letter’s applicability to disputes arising under
the 2004 CBA, the Court turns to the other
remaining arbitration provisions. Article 22
of the 2004 CBA states that it applies to
disputes over “the interpretation, application,
or enforcement of any of the provisions of
this Agreement, except differences that arise
involving contributions to the [Union
Funds].” (Id. at 14 (emphasis added).) The
plain language of this arbitration clause could
not be clearer; despite Article 22’s broad
sweep, it does not cover grievances over
delinquent contributions to the Union Funds.

B. Arbitration of Post-Expiration Grievances
Having determined that the arbitration
provision in the Collection Procedures, as
incorporated into the 2004 CBA by the
9

“The duty to arbitrate ‘is a creature of the
collective-bargaining agreement [such] that a
party cannot be compelled to arbitrate any
matter in the absence of a contractual
obligation to do so.’” Newspaper Guild/CWA
of Albany, TNG/CWA, AFL-CIO-CLC v.
Hearst Corp., 645 F.3d 527, 530 (2d Cir.
2011) (quoting Nolde Bros., Inc. v. Local No.
358, Bakery & Confectionery Workers
Union, AFL-CIO, 430 U.S. 243, 250–51
(1977)). “Adherence to these principles,
however, does not require [a court] to hold
that termination of a collective-bargaining
agreement automatically extinguishes a
party’s duty to arbitrate grievances arising
under the contract.” Nolde Bros., 430 U.S. at
251. Rather, in Nolde Brothers, the Supreme
Court “identified a presumption that ‘matters
and disputes arising out of the relation
governed by contract’ are subject to
arbitration even after the contract expires.”
Newspaper Guild, 645 F.3d at 530 (quoting
Litton, 501 U.S. at 204). The Supreme Court
“reiterated its support for the holding in
[Nolde Brothers]” in Litton by recognizing
that there exists “a presumption in favor of
post-expiration arbitration of matters and
disputes ‘arising out of the relation governed
by the contract.’” CPR (USA) Inc. v. Spray,
187 F.3d 245, 255 (2d Cir. 1999) (quoting
Litton, 501 U.S. at 204). Specifically, the
Litton decision defined what it means for a
grievance to arise out of the contract as
follows:

MOA, applies to grievances over
contributions to the Union Funds, the Court
must decide whether that arbitration
agreement requires the parties to arbitrate the
Union Funds’ grievance over allegedly
delinquent contributions in 2013, which
occurred after the 2004 CBA expired. After
all, as the Supreme Court has noted, “[t]he
object of an arbitration clause is to implement
a contract, not to transcend it.” Litton, 501
U.S. at 205. To resolve this issue, the Court
must decide whether Trade Fair’s obligation
to make contributions to the Union Funds
ceased after the 2004 CBA expired in
November 2012, or whether that contractual
obligation continued past the 2004 CBA’s
expiration. See id. at 207–08 (explaining how
contractual obligation falls within scope of
arbitration clause even after contract’s
expiration). Under this standard, the Court
concludes that the parties have a duty to
arbitrate the underlying dispute because it is
based upon a contractual right that survived
the expiration of the remainder of the 2004
CBA.
1. Legal Standard
As an initial matter, the parties dispute
the correct standard that this Court should
employ in determining whether the
arbitration clause in the Collection
Procedures mandates arbitration of the
underlying dispute over allegedly missed
contributions in 2013. Specifically, the Union
Funds contend that the Court should compel
arbitration if the contribution provisions of
the 2004 CBA and MOA arguably survive
the CBA’s expiration. By contrast, Trade Fair
asserts that this Court should not compel
arbitration absent clear, express language in
the 2004 CBA indicating that the parties
intended the Union Funds’ right to fringe
benefit contributions from Trade Fair to
endure the expiration of the remainder of the
2004 CBA. For the following reasons, both
sides miss the mark in certain respects.

A postexpiration grievance
can be said to arise under the
contract only where it
involves
facts
and
occurrences that arose before
expiration, where an action
taken
after
expiration
infringes a right that accrued
or
vested
under
the
agreement, or where, under
normal principles of contract
interpretation, the disputed
10

when dispute is “over an obligation arguably
created by the expired agreement”).

contractual right survives
expiration of the remainder of
the agreement.

Here, invoking Nolde Brothers, the
Union Funds maintain that the Court should
compel arbitration if the 2004 CBA arguably
contemplates the extension of their right to
fringe benefit contributions beyond the 2004
CBA’s expiration. However, this standard of
review—rooted in the principle that courts
should not rule on the merits in deciding the
arbitrability of a dispute—does not survive
Litton’s clear command to courts to interpret
a collective bargaining agreement to the
extent necessary to determine if the disputed
right actually arises under that agreement.
See, e.g., Commc’n Workers of Am. v. Avaya,
Inc., 693 F.3d 1295, 1300 (10th Cir. 2012)
(recognizing that “the court’s duty to
determine whether the party intended the
dispute to be arbitrable trumps its duty to
avoid reaching the merits”); Int’l Bhd. of
Elec. Workers, AFL-CIO, Local 1 v. GKN
Aerospace N. Am., Inc., 431 F.3d 624, 627–
28 (8th Cir. 2005) (holding that, under Litton,
“the judicial responsibility to determine
arbitrability takes precedence over the
general rule to avoid consideration of the
merits of a grievance”); Indep. Lift Truck
Builders Union v. Hyster Co., 2 F.3d 233, 236
(7th Cir. 1993) (holding that, after Litton,
“[i]f the court must, to decide the arbitrability
issue, rule on the merits, so be it”). The Court
finds support for this interpretation of Litton
in the Second Circuit’s recent Newspaper
Guild decision. There, the Second Circuit
applied Litton to determine if the “dues
checkoff” provision of a collective
bargaining agreement survived the expiration
of the remainder of that agreement. Although
the Second Circuit made clear that it
“express[ed] no view on the merits of the
[plaintiff’s] dues-checkoff grievance,” id. at
533 n.1 (citing Nolde Bros., 430 U.S. at 249),
the Second Circuit interpreted the dues
checkoff provision of the collective
bargaining agreement and concluded that,

501 U.S. at 205–06; see, e.g., Newspaper
Guild, 645 F.3d at 530.
The Litton decision also emphasized that
this inquiry may require a court “to interpret
a provision of a bargaining agreement.” Id. at
209; see CPR (USA) Inc., 187 F.3d at 255
(“The Litton Court specifically instructed
lower courts faced with post-expiration
disputes to determine whether parties had
agreed to arbitrate these disputes—i.e., to
determine arbitrability—even if that analysis
requires the court to interpret the arbitration
agreement, a task normally remitted to an
arbitrator under a broad arbitration clause.”).
“[A]s the Third Circuit astutely observed, the
Litton Court ‘took this prescription quite
seriously, for, as Justice Marshall pointed out
in his dissent, it was debatable whether the
obligation at issue in Litton arose under the
expired CBA or not.’” Chi. Pneumatic Tool
Co. v. Smith, 890 F. Supp. 100, 114 n.22
(N.D.N.Y. 1995) (quoting Luden’s Inc. v.
Local Union No. 6 of Bakery, Confectionery
& Tobacco Workers’ Int’l Union of Am., 28
F.3d 347, 354 n.9 (3d Cir. 1994)).
Nonetheless, in Litton, the Supreme Court
held that the contractual right at issue did not
arise under the collective bargaining
agreement before it. See 501 U.S. at 209–10.
Thus, Litton stands in some tension with
Nolde Brothers, which held “that courts are
not to reach the merits of the dispute, but
instead are to order arbitration if the lapsed
CBA arguably creates the obligation at the
center of the grievance.” Luden’s, 28 F.3d at
353 (emphasis in original); see Nolde, 501
U.S. at 249 (“Of course, in determining the
arbitrability of the dispute, the merits of the
underlying claim for severance pay are not
before us.”), 252 (duty to arbitrate endures
expiration of collective bargaining agreement

11

“‘under normal principles of contract
interpretation,’ . . . the [plaintiff’s] right to
checkoff of union dues survives expiration of
the CBA,” id. at 531 (quoting Litton, 501
U.S. at 206). Significantly, the Second
Circuit did not consider whether the dispute
was “over an obligation arguably created by
the expired agreement.” Nolde Bros., 430
U.S. at 252. In this respect, the Second
Circuit’s approach stands in contrast to the
District Court’s decision that the Second
Circuit reviewed, which had held, under
Nolde Brothers, that “the CBA arguably
contemplates extension of Hearst’s dues
checkoff obligations beyond expiration of the
CBA.” Newspaper Guild/CWA of Albany,
TNG/CWA, AFL-CIO-CLC v. Hearst Corp.,
No. 09-CV-764 (GLS/DRH), 2010 WL
2425909, at *4 (N.D.N.Y. June 11, 2010)
(emphasis added).

whether the parties have
agreed that an arbitrator
should decide that question.
Where the agreement contains
a sweeping arbitration clause
covering
all
disputes
involving the meaning of
terms and provisions of the
agreement and where the
arbitration clause does not
expressly exclude disputes
over the termination provision
or the “evergreen” clause,
disputes over these matters
should be submitted to
arbitration.
Id. at 73. Thus, Abram Landau held that the
issue of whether an agreement expired or not
is arbitrable to the extent the agreement
contains a broad arbitration clause. See, e.g.,
CPR (USA) Inc., 187 F.3d at 256 (holding,
under Abram Landau, that it is for an
arbitrator to decide whether agreement
expired).

Relatedly, the Union Funds rely on
Abram Landau Real Estate v. Bevona, 123
F.3d 69 (2d Cir. 1997), and its progeny to
argue that any ambiguity in the 2004 CBA is
for an arbitrator to decide. (Resp’t’s Reply
Mem. 6–8.) Their reliance on these cases is
misplaced. Abram Landau concerned a socalled “evergreen clause” in a collective
bargaining agreement, which provided that
the collective bargaining agreement would
continue in full force following the collective
bargaining agreement’s termination date
until a successor collective bargaining
agreement was executed. Id. at 71. The
parties disputed whether the evergreen clause
prolonged the agreement, and disagreed on
whether their dispute over the meaning of the
evergreen clause was subject to arbitration
under the agreement’s arbitration clause. Id.
at 71, 74. The Second Circuit held:

Following Abram Landau, other courts in
this Circuit have held that, “[i]f the
arbitration clause is broad, the question of
whether the CBA has been terminated will be
for the arbitrator to decide if there is ‘at least
a colorable claim under the contract that the
contract has not terminated.’” Tile Setters &
Tile Finishers Union of N.Y. & N.J. v.
Speedwell Design/BFK Enter., LLC, No. 06CV-5211 (KAM), 2009 WL 922021, at *8
(E.D.N.Y. Mar. 31, 2009) (quoting Ottley v.
Sheepshead Nursing Home, 688 F.2d 883,
886 (2d Cir. 1982)). However, other courts
have recognized that the Abram Landau line
of cases, which address the arbitrability of a
dispute over whether an agreement expired,
are distinct from Litton and its progeny,
which concern the arbitrability of postexpiration grievances. See 4200 Ave. K LLC
v. Fishman, 164 F. Supp. 2d 339, 343
(S.D.N.Y. 2001) (“Litton is inapplicable

In determining whether an
arbitrator or a court gets to
interpret a termination clause
or “evergreen clause,” the
dispositive
question
is
12

here, where the question at issue is whether
the agreement expired, not whether a postexpiration grievance is arbitrable.”); Duane
St. Assocs. v. Local 32B-32J, No. 00-CV3861 (SHS), 2000 WL 802889, at *2
(S.D.N.Y. 2000) (distinguishing Litton from
Abram Landau, and noting that “the question
at issue here is whether the agreement has
expired, not whether a post-expiration
grievance is arbitrable”). Indeed, it is telling
that Abram Landau does not reference Litton
once, and conversely, Newspaper Guild—a
Litton case—does not reference Abram
Landau, even though Newspaper Guild
addressed an agreement with a broad
arbitration clause. See Newspaper Guild, 645
F.3d at 528 (quoting language from broad
arbitration agreement). Accordingly, because
the parties do not dispute the fact that the
2004 CBA did expire in 2012, the Court does
not rely on the Abram Landau line of cases in
deciding whether the underlying dispute here
is subject to arbitration.

passing on the merits of the underlying
grievance “unless it is impossible to
determine the arbitrability of [the] dispute
without analysis of the terms of the collective
bargaining agreement.” Jillian Mech. Corp.,
882 F. Supp. 2d at 367. To determine if the
underlying grievance arises under the CBA,
the Court considers whether it (1) involves
facts and occurrences that arose before the
2004 CBA’s expiration, (2) concerns an
action taken after the 2004 CBA’s expiration
that infringes a right that accrued or vested
under the 2004 CBA, or (3) involves a
contractual right that, “under normal
principles of contract interpretation,”
survives expiration of the remainder of the
2004 CBA. Litton, 501 U.S. at 205–06.
2. Application
Although the Court rejects the Union
Funds’ proposed standard of review, the
Court agrees with the Union Funds that,
under normal principles of contract
interpretation, the contribution provisions in
the MOA survive expiration of the 2004
CBA.2

Instead, following the Second Circuit’s
lead in Newspaper Guild, this Court applies
Litton and its progeny to determine whether
the underlying grievance arises under the
2004 CBA. The Court endeavors to avoid

As noted supra, under New York law,3 a
contract must be interpreted according to the

2

At oral argument, counsel for Trade Fair observed
that the Union has withdrawn demands for arbitration
on three separate occasions after the 2004 CBA
expired. (See Pearl Aff. ¶¶ 8–10.) Counsel for Trade
Fair suggested that the Union had done so because the
Union understands that disputes arising after the 2004
CBA expired are not arbitrable, and that the Union’s
position should bind the Union Funds. However,
“[a]rguments raised for the first time at oral argument
are generally deemed waived.” Bd. of Managers of
Mason Fisk Condo. v. 72 Berry St., LLC, 801 F. Supp.
2d 30, 39 (E.D.N.Y. 2011) (quoting Tamar v. Mind
C.T.I., Ltd., 723 F. Supp. 2d 546, 555 (S.D.N.Y.
2010)). In any event, the underlying grievances at
issue in the Union’s arbitration demands differ from
the underlying grievances at issue here. (See Pearl Aff.
¶¶ 8 (“The Union alleged multiple violations of the
collective bargaining agreement including but not
limited to Violation of Hiring Hall.”) (internal

citations omitted).) More fundamentally, Trade Fair
points to no legal authority suggesting that the legal
position of the Union binds the Union Funds to the
same position.
3
As a technical matter, in construing the 2004 CBA
and MOA, the Court applies federal common law
principles of contract interpretation. See Litton, 501
U.S. at 202–03 (“Section 301 of the Labor
Management Relations Act, 1947 (LMRA), 29 U.S.C.
§ 185, ‘authorizes federal courts to fashion a body of
federal law for the enforcement of . . . collective
bargaining agreements.’” (quoting Textile Workers v.
Lincoln Mills of Ala., 353 U.S. 448, 451 (1957))
(emphasis omitted)). “However, state law, ‘if
compatible with the purpose of § 301, may be resorted
to in order to find the rule that will best effectuate the
federal policy.’” Lerner v. Amalgamated Clothing &
Textile Workers Union, 938 F.2d 2, 5 (2d Cir. 1991)

13

plain meaning of its words and phrases. See,
e.g., Olin Corp., 704 F.3d at 99. Here, the
plain language of the MOA evinces an intent
to have the Union Funds’ contractual right to
fringe benefit contributions survive the
expiration of the remainder of the 2004 CBA.
Specifically, even though the MOA stated
that the 2004 CBA would expire on
November 1, 2012, it explicitly provided that
Trade Fair’s monthly contributions to all
Union Funds except the Health Care Fund
were to increase as of January 1, 2013. (See
MOA at 3–4.) As for the Health Care Fund,
the last scheduled contribution increase
occurred on November 1, 2011. (See id. at 2–
3.) In light of Trade Fair’s contractual
obligation to make contributions to all other
Union Funds in 2013, the Court discerns an
intent that Trade Fair’s obligation to
contribute to all Union Funds—including the
Health Care Fund—would endure, at least
through 2013. The Court rejects a piecemeal
interpretation of these related provisions that
would extinguish the Union Funds’
contractual right to certain contributions in
2012 while recognizing that their right to all
other contributions continues into 2013. See,
e.g., Adams v. Suozzi, 433 F.3d 220, 228 (2d
Cir. 2005) (“‘A written contract will be read
as a whole, and every part will be interpreted
with reference to the whole; and if possible it
will be so interpreted as to give effect to its
general purpose.’” (quoting Westmoreland
Coal Co. v. Entech, Inc., 100 N.Y.2d 352,
358 (2003))). In other words, the fact that the
parties provided for Trade Fair’s
contributions to increase in certain cases
demonstrates that they intended for the Union
Funds’ contractual right to fringe benefit

contributions to survive expiration of the
remainder of the 2004 CBA.

(quoting Lincoln Mills, 353 U.S. at 457).
“Accordingly, New York law guides the analysis in
this case.” Mason Tenders Dist. Council Welfare Fund
v. Thomsen Const. Co., 301 F.3d 50, 53 (2d Cir. 2002).
4
Because the Court concludes that the Union Funds’
right to fringe benefit contributions from Trade Fair
arises under the 2004 CBA under normal principles of

contract interpretation, the Court need not address the
Union Funds’ related argument, made only in passing,
that this right is accrued or vested under the 2004 CBA
before expiration.

Although Trade Fair contends that
references to 2013 were a mere typographical
error, it offers no support for this argument
other than the fact that the 2004 CBA
otherwise expired in November 1, 2012.
However, under Litton, the fact that the 2004
CBA expired on November 1, 2012 says
nothing about whether specific provisions
were meant to survive its expiration. See
Litton, 501 U.S. at 205–06 (recognizing that
a contractual right can survive the expiration
of the remainder of a collective bargaining
agreement). Moreover, the contribution
provisions need not explicitly state their
intention to survive the expiration of the 2004
CBA; Litton itself contemplated implicit
agreements, as well. See id. at 206 (holding
that duty to arbitrate “may arise as well from
the express or implied terms of the expired
agreement itself”); Local Union 813, Int’l
Bhd. of Teamsters v. Waste Mgmt. of N.Y.,
LLC, 469 F. Supp. 2d 80, 85 (E.D.N.Y. 2007)
(“[Defendant] contends that Litton requires
express language indicating the continuation
of terms from the expired contracts. That
reading of Litton is overbroad.”); see also
Newspaper Guild, 645 F.3d at 530–31
(holding that contractual right survived
expiration of CBA, even though provision at
issue did not explicitly state that it survived
CBA).
Accordingly, because the Union Funds’
right to fringe benefit contributions from
Trade Fair arises under the 2004 CBA under
normal principles of contract interpretation,4
the Court concludes that the dispute over

14

delinquent contributions is arbitrable. 5 See,
e.g., Newspaper Guild, 645 F.3d at 533.

federal
policy
favoring
arbitration
agreements”
and
consider
that
“[u]nnecessary delay of the arbitral process
through appellate review is disfavored.” Id.
(citation and quotation marks omitted).

C. Staying the Litigation
The remaining issue is whether the
litigation should be stayed or dismissed
pending arbitration. Here, the Union Funds
ask this Court to dismiss this action and to
compel arbitration; however, they do not
request a stay of this litigation. Nonetheless,
in the case at bar, the Court concludes that a
stay is more appropriate than dismissal.

In its discretion, the Court concludes that
a stay is more appropriate in this case. This
Court recognizes that some courts have held
that where “none of plaintiff’s claims
remains to be resolved by this court, . . . there
is no reason to stay—rather than dismiss—
this action.” Mahant v. Lehman Bros., No.
99-CV-4421(MBM), 2000 WL 1738399, at
*3 (S.D.N.Y. Nov. 22, 2000); see also Mazza
Consulting Grp., Inc. v. Canam Steel Corp.,
No. 08-CV-38 (NGG), 2008 WL 1809313, at
*7 (E.D.N.Y. Apr. 21, 2008); Perry v. N.Y.
Law Sch., No. 03 Civ. 9221(GBH), 2004 WL
1698622, at *4 (S.D.N.Y. July 28, 2004).
However, in light of the Second Circuit’s
admonition that “[u]nnecessary delay of the
arbitral process through appellate review is
disfavored,” Salim Oleochemicals, 278 F.3d
at 93, many other courts have “chosen to stay
proceedings, even where urged to dismiss.”
Dixon, 947 F. Supp. 2d at 405 (citing Duraku
v. Tishman Speyer Props., Inc., 714 F. Supp.
2d 470, 475 (S.D.N.Y. 2010); Douce v.
Origin ID TMAA 1404-236-5547, No. 08CV-483 (DLC), 2009 WL 382708, at *5
(S.D.N.Y. Feb. 17, 2009)). Here, although
the Union Funds request dismissal, the Court
“believes that the more appropriate action is
to stay the proceedings and to compel
arbitration in order to promote expeditious
resolution of this dispute.” Pick Quick Food,

“The FAA provides that, where the
asserted claims are ‘referable to arbitration,’
the court shall ‘stay the trial of the action until
such arbitration has been had.’” Dixon v.
NBCUniversal Media, LLC, 947 F. Supp. 2d
390, 405 (S.D.N.Y. 2013) (quoting 9 U.S.C.
§ 3). The district court may exercise its
discretion to stay the proceeding or may
conclude that the litigation should be
dismissed. See Salim Oleochemicals v. M/V
Shropshire, 278 F.3d 90, 92–93 (2d Cir.
2002). A decision to dismiss has implications
for the speed with which the arbitration of the
dispute may begin because a dismissal is
reviewable by an appellate court under
Section 16(a)(3) of the FAA; a stay, however,
is an unappealable interlocutory order under
Section 16(b) of the FAA. Id. at 93. Staying
the action is, therefore, more likely to allow
the matter to proceed to arbitration in an
expeditious manner. Id. The Second Circuit
urges courts deciding whether to dismiss or
stay litigation when referring a matter to
arbitration to “be mindful of this liberal
The Court is not persuaded by the Union Funds’
additional argument that their Declarations of Trust
and Collection Procedures authorize the Union Funds
to enforce their right to contributions from Trade Fair
by arbitration simply because those agreements, unlike
the 2004 CBA, have not expired. As Trade Fair notes,
the Declarations of Trust and Collection Procedures
bind Trade Fair only insofar as they are incorporated
into the 2004 CBA. Significantly, the Union Funds do
not argue that the Declarations of Trust or Collection
5

Procedures contain any provision indicating that they
were meant to outlast the CBA’s expiration. Cf. Trs. of
N.Y. State Nurses Ass’n Pension Plan v. Cabrini Med.
Ctr., 353 F. App’x 528, 531 (2d Cir. 2009)
(confirming arbitration award, where union pension
plan’s trust agreement included a “Continuation
Policy” requiring employer to make contributions to
pension plan even after expiration of collective
bargaining agreement).

15

Inc. v. United Food & Commercial Workers
Local 342, 952 F. Supp. 2d 494, 506
(E.D.N.Y. 2013); accord Halim v. Great
Gatsby’s Auction Gallery, 516 F.3d 557, 561
(7th Cir. 2008) (“[T]he proper course of
action when a party seeks to invoke an
arbitration clause is to stay the proceedings
rather than to dismiss outright.” (citation and
internal quotation marks omitted)).
IV. CONCLUSION
For the reasons set forth herein, the Court
grants respondents’ motion to compel
arbitration, grants respondents’ motion to
vacate the temporary stay of arbitration
ordered by the New York State Supreme
Court, and stays this action. Accordingly, the
parties are ordered to proceed to the
arbitration process set forth in the Union
Funds’ Collection Procedures, which are
binding on Trade Fair through the 2004 CBA,
as modified by the MOA.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: February 24, 2014
Central Islip, NY

***
Petitioners are represented by Alan B.
Pearl, Alan B. Pearl & Associates, P.C., 6800
Jericho Turnpike, Suite 218E, Syosset, NY
11791. Respondents are represented by John
H. Byington, III, Archer, Byington, Glennon
& Levine, LLP, One Huntington Quadrangle,
Suite 4C10, P.O. Box 9064, Melville, NY
11747.

16