New York Dialysis Services, Inc. v. New York State Nurses Association
Filing
21
OPINION AND ORDER re: 9 FIRST MOTION to Stay Arbitration filed by New York Dialysis Services, Inc. For the foregoing reasons, the Court finds that New York Dialysis cannot be forced to arbitrate the DeGraw dispute under the expired ABC CBA. New York Dialysis's motion to permanently stay the arbitration demanded by the Association is therefore granted. The Clerk of Court is directed to enter final judgment in petitioner's favor and to close the case. (As further set forth in this Opinion and Order.) (Signed by Judge Jed S. Rakoff on 5/28/2017) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
NEW YORK DIALYSIS SERVICES,
INC.,
17 Civ. 469
(JSR)
Petitioner,
OPINION AND ORDER
-vNEW YORK STATE NURSES
ASSOCIATION,
FILED
Respondent.
JED S. RAKOFF, U.S.D.J.
This case concerns the arbitrability of a labor dispute that
ripened more than two years after the parties' collective bargaining
agreement expired in June 2014.
In October 2016,
of delays, petitioner New York Dialysis Services,
Dialysis")
following a series
Inc.
("New York
opened a dialysis facility that was originally intended
to replace two facilities that had been staffed by members of
respondent New York State Nurses Association (the "Association")
New York Dialysis has refused to apply the expired agreement at the
new facility and to recognize the Association as the exclusive
bargaining agent for registered nurses employed there. After the
Association demanded arbitration of the dispute pursuant to the
expired agreement's dispute resolution provisions, New York Dialysis
moved to permanently stay such arbitration. Having carefully
considered the parties' arguments and submissions, the Court hereby
grants petitioner's motion and directs the entry of final judgment
1
permanently staying (and therefore,
in effect, prohibiting) the
arbitration.
Courts apply the summary judgment standard to motions to stay
arbitration. Bensadoun v. Jobe-Riat,
2003)
316 F.3d 171, 175
(2d Cir.
(" [T] he summary judgment standard is appropriate in cases
where the District Court is required to determine arbitrability,
regardless of whether the relief sought is an order to compel
arbitration or to prevent arbitration."). "If there is an issue of
fact as to the making of the agreement for arbitration, then a trial
is necessary." Id.
The pertinent facts,
undisputed except where noted, are as
follows. New York Dialysis operates 41 dialysis clinics in New York
State, including several in New York City. See Declaration of
Courtney Cordon ("Cordon Deel."), ECF No. 11,
~
5. The Association
is a labor organization representing approximately 40,000 registered
nurses throughout the state. See Declaration of Rory D. Barthel, ECF
No. 15,
~
4.
For most of the past decade, New York Dialysis and the
Association have entered multiple collective bargaining agreements
covering distinct bargaining units in the New York City area. See
Declaration of Eric C. Smith ("Smith Deel."), ECF No. 14,
~
5. At
issue in this case is the collective bargaining agreement known as
the "ABC CBA," because it governed the ABC bargaining unit.
The ABC CBA became effective on July 1, 2011 and expired on
June 30, 2014. See ABC CBA, Ex. A to Cordon Deel., § 17. At the
beginning of 2013, the agreement covered four facilities operated by
2
New York Dialysis and staffed by Association nurses: the Atlantic
Hemodialysis Center (the "Atlantic Center"), the Brooklyn Kidney
Center (the "Brooklyn Center"), the Atlantic Peritoneal Home
Dialysis and Training Center (the "Atlantic Training Center"), and
the Atlantic Hemodialysis at the Cobble Hill Nursing Home and
Rehabilitation Center
Preamble; Cordon Deel.
(the "Cobble Hill Center") . See id. at
~
6; Smith Deel.
~
6. The ABC CBA provided
that it would also apply to "any other location(s)
to which the
Employer [New York Dialysis] may move the existing operations" and
that it "shall apply to any new or additional facilities of the
employer [sic]
under the same facility operating certificate." ABC
CBA § 1. The agreement set forth detailed dispute resolution
procedures that would culminate in arbitration conducted by the
American Arbitration Association ("AAA")
Arbitration Rules. See id.
§
under the AAA's Labor
13. The parties began negotiating a
replacement to the ABC CBA before it expired in June 2014, but to
date have not entered a new agreement. Cordon Deel.
8.
~
By summer of 2013, New York Dialysis was planning to open a new
SO-chair dialysis facility located at 595 DeGraw Street in Brooklyn
("DeGraw").
Id.
~~
9-10. DeGraw was intended to replace the 50
chairs that New York Dialysis then operated at the Atlantic Center
(28 chairs)
and the Brooklyn Center (22 chairs). Id.
~
9. DeGraw was
also to replace the Atlantic Training Center, a small teaching
office for home dialysis instruction.
Id.
~
6, 10. To that end, New
York Dialysis planned to simultaneously close the Atlantic Center
3
and Brooklyn Center, open DeGraw, and transfer the patients and
staff from the closing facilities to DeGraw.
Id.
10. New York
~
Dialysis also considered transferring the Cobble Hill Center (a
five-chair facility located at a nursing home)
ultimately chose not to do so. Id.
to DeGraw, but
16.
~
Before the ABC CBA expired, New York Dialysis informed the
Association of its plans to replace these facilities with DeGraw.
Id.
~
11. In particular, on May 21, 2014, New York Dialysis told the
Association that it planned to open DeGraw and that Association
nurses covered by the ABC CBA would be relocated there. Smith Deel.
~
8. Later that month, New York Dialysis and Association
representatives jointly informed affected nurses of the planned
transition to DeGraw, explained their interim work options, and told
them that they would ultimately be able to move to DeGraw. Id.
~
9.
The DeGraw transition did not happen as planned. For reasons
outside of New York Dialysis's control,
DeGraw, which was initially
supposed to open in December 2013, did not open until October 2016.
The opening was first delayed because the New York City Department
of Buildings decided to delay issuing necessary permits to the
petitioner so that the petitioner's future landlord would pressure
an existing tenant to obtain its own permits. Id.
~
12. Later,
asbestos was discovered in the future DeGraw site and had to be
removed.
Id. New York Dialysis also had trouble obtaining enough
electricity to run DeGraw.
Id. Thus, as of spring 2016, there was
still no opening date in sight. Id.
4
~
13.
During the delay period, the three facilities that New York
Dialysis intended to transfer to DeGraw experienced serious setbacks
of their own. On May 22, 2014, New York Dialysis was forced to close
the Atlantic Center because the hospital where it was located
closed.
Id.
~
14. In August 2015, New York Dialysis was also forced
to close the Brooklyn Center because its landlord sold the property
and terminated New York Dialysis's lease. Id. Finally, during 2015,
the Atlantic Training Center experienced a drop in patient census
that led New York Dialysis to opt against transferring it to DeGraw
for fear that still more patients would be lost.
Id.
~
17.
The closure of the Atlantic Center was the only one of these
events to occur before the ABC CBA expired.
In June 2014, New York
Dialysis and the Association entered an agreement
Closure Agreement")
(the "Atlantic
under which Atlantic Center nurses were
transferred to other New York Dialysis facilities.
In that
agreement, New York Dialysis acknowledged that it planned to
transfer patients currently being treated at the Atlantic Center and
the Brooklyn Center to DeGraw. See Atlantic Closure Agreement, Ex. A
to Smith Deel.,
~
4. The agreement also provided that Association
nurses then employed at the Atlantic Center would have limited
rights
(so-called "recall rights")
to be employed at other New York
Dialysis facilities ahead of external hires. See id.
~
8. Although
DeGraw was not specifically listed among the facilities to which the
recall rights applied, the contract provided that the recall rights
applied to "clinics within the [New York Dialysis/Association] ABC
5
. bargaining unit[]," see id., which, at that time, the parties
believed would eventually include DeGraw. See Smith Deel.
~
8; see
also ABC CBA § 1 ("It is agreed that this Agreement shall apply
. at any other location(s)
to which the Employer may move the
."). However, all recall rights granted
existing operations .
under this agreement terminated, at the latest, on May 22, 2015. See
Atlantic Closure Agreement
~
8.
1
The parties' collective bargaining agreement expired on June
30, 2014. See ABC CBA
§
17. New York Dialysis and the Association
have been negotiating a successor agreement ever since. Since that
time, New York Dialysis has maintained "almost all" of the terms and
conditions of employment set forth in the ABC CBA,
Smith Deel.
~
11,
but has not participated in the arbitration of any grievances,
Cordon Deel.
~
28.
After the ABC CBA expired, New York Dialysis reiterated several
times that it intended to open DeGraw as a replacement facility,
and
that Association nurses under the ABC CBA would be employed at
DeGraw. See Smith Deel.
~~
12-23. New York Dialysis's final
representation that DeGraw would be a replacement facility was made
on November 17, 2015, when New York Dialysis stated that DeGraw
In July 2015, the parties entered a similar agreement (the
"Brooklyn Closure Agreement") granting limited recall rights to
Association nurses when the Brooklyn Center prematurely closed. See
Ex. B to Smith Deel. Like the recall rights granted under the
Atlantic Closure Agreement, the recall rights granted under the
Brooklyn Closure Agreement expired before DeGraw finally opened in
October 2016. See id. ~ 4
1
6
would be a replacement facility for the Atlantic Training Center.
Id.
~
23.
At some point after closing the Atlantic Center and the
Brooklyn Center, New York Dialysis decided that DeGraw, when it
finally opened, would be a new facility rather than a replacement
facility.
Cordon Deel.
~
18. New York Dialysis made this decision
based on the passage of time,
the loss of staff at the Atlantic
Center and the Brooklyn Center, and the loss of most of the patients
that had formerly been treated there.
Id. The parties dispute when
the Association first learned of New York Dialysis's change in
plans. New York Dialysis claims that it told the Association of the
new DeGraw plan at a meeting on April 25,
2016.
See id.
~
19. The
Association concedes that New York Dialysis proposed doing so at
this meeting,
see Smith Deel.
~
25, but claims that it was only
unambiguously told that DeGraw would be opened as a new,
replacement facility on June 16, 2016,
On May 26,
see id.
~
non-
28.
2016, New York Dialysis informed the New York City
Department of Health that, because of the lapse of time and loss of
patients,
DeGraw would not be a "relocation" of other facilities,
as
it had originally stated in its permit applications. Cordon Deel.
~
20. The Department of Health instructed New York Dialysis to
submit a new application to open a new dialysis clinic, and New York
Dialysis did so on August 9,
2016.
Id.
~
21. New York Dialysis
received its operating certificate on October 24,
DeGraw on October 31,
2016.
Id.
~
22.
7
2016, and opened
"No staff, patients, equipment
or supplies were transferred to DeGraw from any other [New York
Dialysis-Association] facility,
or any other [New York Dialysis]
facility for that matter." Id. New York Dialysis did not offer
employment to any Association members who had been covered by the
ABC CBA. Smith Deel.
~
31.
On October 25, 2016,
shortly before DeGraw opened, the
Association filed an unfair labor practice charge against New York
Dialysis with the National Labor Relations Board ("NLRB")
alleging
that New York Dialysis violated the National Labor Relations Act
("NLRA") by refusing to recognize the Association as the exclusive
collective bargaining representative for DeGraw, by refusing to
apply the ABC CBA to DeGraw, and by engaging in regressive
bargaining. Cordon Deel.
~
23. On November 11, 2016, New York
Dialysis filed an unfair labor practice charge of its own, alleging
that the Association was violating the NLRA by demanding to be
recognized as the exclusive bargaining representative for newly
hired registered nurses at DeGraw and for insisting that the ABC CBA
applied to DeGraw.
Id.
~
24.
On November 16, 2016,
the Association filed a grievance with
New York Dialysis protesting its refusal to apply the ABC CBA to
DeGraw, essentially duplicating one of the complaints it had
previously submitted to the NLRB. Cordon Deel.
~
~
25; Smith Deel.
32. New York Dialysis denied the grievance on November 28, 2016.
Smith Deel.
~
33. On December 21, 2016,
8
the Association demanded,
pursuant to the expired ABC CBA, arbitration of its grievances
before the AAA. Cordon Deel.
~
27. This lawsuit followed.
The parties agree that the ultimate question presented by New
York Dialysis's motion to stay arbitration is whether the
Association's grievance "has its real source in the contract" and
may therefore be submitted to arbitration, even though it was filed
after the ABC CBA expired. See Litton Fin.
Litton Bus. Sys.,
Inc. v. NLRB,
Printing Div., a Div. of
501 U.S. 190, 205
(1991). As a
threshold issue, however, the Association argues that the Court
should not reach this question, because the parties, by agreeing to
rules providing that the arbitrator "shall have the power to rule on
his or her own jurisdiction," see Labor Arbitration Rules § 3(a),
"clearly and unmistakably" agreed to submit the arbitrability of
post-expiration grievances to an arbitrator in the first instance.
See AT & T Techs.,
649
(1986)
Inc. v. Commc'ns Workers of Am.,
475 U.S.
643,
("Unless the parties clearly and unmistakably provide
otherwise, the question of whether the parties agreed to arbitrate
is to be decided by the court, not the arbitrator.").
The interesting legal question here raised is therefore whether
a labor agreement that provides for arbitration of grievances
pursuant to rules that give the arbitrator power to determine
arbitrability clearly and unmistakably delegates to the arbitrator
determination of the scope of arbitration,
if any, that survives the
expiration of the collective bargaining agreement itself. This
9
question was partially addressed by the Supreme Court in Litton,
where it stated:
The Union, and Justice STEVENS' dissent, argue that we err in
reaching the merits of the issue whether the post-termination
grievances arise under the expired agreement because, it is
said, that is an issue of contract interpretation to be
submitted to an arbitrator in the first instance. 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. We acknowledge that where an effective bargaining
agreement exists between the parties, and the agreement
contains a broad arbitration clause, there is a presumption of
arbitrability in the sense that an order to arbitrate the
particular grievance should not be denied unless it may be said
with positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted
dispute. But we refuse to apply that presumption wholesale in
the context of an expired bargaining agreement, for to do so
would make limitless the contractual obligation to arbitrate.
Litton,
501 U.S. at 208-09
(citations, alterations, and internal
quotation marks omitted). This holding has been applied in
subsequent Second Circuit decisions as well. See, e.g., Newspaper
Guild/CWA of Albany v. Hearst Corp.,
CPR (USA)
645 F.3d 527
Inc. v. Spray, 187 F.3d 245, 254-56
(2d Cir. 2011);
(2d Cir. 1999),
abrogated in part on other grounds by Green Tree Fin. Corp. v.
Randolph,
531 U.S.
79
(2000).
The Association nonetheless argues that Litton and its progeny
do not govern this dispute because, here, the parties "clearly and
unmistakably" delegated the arbitrability question to an arbitrator
by agreeing to Labor Arbitration Rules
(the "Rules") under which the
arbitrator is expressly given authority to determine her own
jurisdiction. See, e.g., Allscripts Healthcare, LLC v. Etransmedia
10
Tech.,
Inc., 188 F. Supp. 3d 696,
Men Women N.Y. Model Mgmt.,
Inc.,
701
(N.D.
Ill. 2016); Lapina v.
86 F. Supp. 3d 277, 283-84
(S.D.N.Y. 2015) . 2 But while such an argument might have force where
the underlying contract had not itself expired - so that there was
no question that there was in existence an agreement to arbitrate
subject to rules that left to the arbitrator the determination of
its scope - where the underlying contract has itself expired, the
issue of whether the agreement to arbitrate has likewise expired is
a pure question of the continued operation vel non of the contract
itself (as opposed to the scope of the arbitration clause) and hence
a question of contract law left to the courts.
In other words, the parties' agreement to arbitrate their
dispute in accordance with the Rules does not clearly and
unmistakably delegate to the arbitrator the determination of
whether, after the contract has expired, the agreement to arbitrate
still remains in any respect and,
if so, to what extent. These are
therefore questions for the Court to decide.
Turning to these questions, while the expiration of a
collective bargaining agreement does not necessarily terminate the
duty to arbitrate in all respects, nonetheless, as Litton holds,
"[a] post-expiration grievance can be said to arise under the
contract only where it involves facts and occurrences that arose
While the Rules did not so provide at the time the ABC CBA was
entered into, that agreement provided that the parties would be
bound by amendments to the Rules, and the relevant amendment
occurred before the ABC CBA expired.
2
11
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
contractual right survives expiration of the remainder of the
agreement." 501 U.S. at 205-06.
Here,
the Association argues that the DeGraw dispute arose
under the contract under both the vested rights and facts and
occurrences prongs. Turning first to the vested rights theory, the
Association argues that New York Dialysis's decision not to apply
the ABC CBA to DeGraw interferes with the recall rights that were
granted to certain Association nurses under the June 2014 Atlantic
Closure Agreement.
Specifically, as noted above,
that agreement
provided that certain nurses employed at the Atlantic Center would
have limited rights to be offered new positions at DeGraw when
DeGraw eventually opened. See Atlantic Closure Agreement
~
8. By not
offering positions at DeGraw to nurses who were formerly covered by
the ABC CBA,
the Association claims, New York Dialysis interfered
with their vested rights.
Litton does not define the term "vested rights." However,
Litton was itself a vested rights case,
and therefore casts some
light on what the Supreme Court had in mind.
In that case,
the
Supreme Court held that a clause providing that "in case of layoffs,
lengths of continuous service will be the determining factor if
other things such as aptitude and ability are equal" did not create
a vested right, because while seniority is a static concept,
12
aptitude and ability can vary over time,
so that at any given point,
it would be impossible to say what the precise order of layoffs
would be. This provision therefore did not "freeze any particular
order of layoff or vest any contractual right as of the Agreement's
expiration." 501 U.S. at 210; see also Nolde Bros.,
430 U.S. 243
(post-expiration grievance over accrued severance pay arbitrable
under a vested rights theory) .
Further, although the Second Circuit has not examined the
vested rights prong of the Litton test, the Sixth Circuit has held
that a right may be "vested" within the meaning of Litton only if
one of two conditions is satisfied. First, "a court may use standard
principles of contract interpretation to determine whether a right
is vested," and thus "might conclude the parties intended a right to
vest if [it is]
shown contract language or extrinsic evidence to
support that conclusion." Cincinnati Typographical Union No.
3,
Local 14519, Comm'cns Workers of Am., AFL-CIO v. Gannett Satellite
Info. Network,
Inc., 17 F.3d 906,
910
(6th Cir. 1994). Second,
"rights that can be worked toward or accumulated over time," such as
severance or vacation pay, are generally presumed to be vested
"without any other evidence in the contract." See id. at 911.
However, while Litton and Cincinnati Typographical Union
suggest that a grievance might be arbitrable under the vested rights
prong where the employer has interfered with a right that had been
granted under the collective bargaining agreement itself, these
cases provide little support for the Association's position that a
13
grievance can be arbitrated under the vested rights theory when the
right in question was granted under an agreement collateral to the
collective bargaining agreement.
In other words, because the
Atlantic Closure Agreement, and not the ABC CBA,
the rights here at issue,
~vest[ed]
is the source of
it cannot be said that the ABC CBA
any contractual right as of [its]
expiration," as needed
to allow for arbitration thereunder. See Litton,
501 U.S. at 210.
Moreover, even assuming arguendo that rights granted under a
collateral agreement might support a vested right argument,
the
recall rights at issue here were not in fact vested, because they
expired long before New York Dialysis refused to employ nurses at
DeGraw. The Atlantic Center recall rights lapsed on May 22,
see Atlantic Closure Agreement
~
8,
2015,
and New York Dialysis did not
announce its intention to refuse to apply the ABC CBA to DeGraw
until between April and June 2016,
Deel.
~
see Cordon Deel.
~
19; Smith
25, and did not actually refuse to do so until DeGraw opened
on October 31,
2016,
see Smith Deel.
~
31. Nor is there any argument
that New York Dialysis deliberately dragged its heels to avoid
complying with its obligations under the Atlantic Closure Agreement,
which might arguably qualify as
~interference"
with a vested right.
Instead, by agreement of the parties, the recall rights expired
through no fault of New York Dialysis before DeGraw was opened. New
York Dialysis's later refusal to honor the recall rights at DeGraw
is therefore not an interference with vested rights,
14
and New York
Dialysis cannot be forced to arbitrate the dispute under this
theory.
The Association also contends that the DeGraw dispute is
arbitrable because it "involves facts and occurrences that arose
before expiration" of the ABC CBA on June 30,
2014. See Litton,
501
U.S. at 206. As with the "vested rights" language, the Second
Circuit has not meaningfully interpreted the "facts and occurrences"
language, but in a summary order it added the limited gloss that, to
satisfy the "facts and occurrences" prong, the facts and occurrences
"must give rise to the grievance at issue." Chelsea Grand, LLC v.
N.Y. Hotel & Motel Trades Council, AFC-CIO,
( 2d Cir. 2015)
629 F. App'x 152, 155
(summary order) .
In addition, a court in this district has addressed whether an
employer can be forced to arbitrate a dispute over whether to apply
an expired collective bargaining agreement to a transfer facility.
See Halsey Drug. Co.,
Inc. v.
Drug, Chem., Cosmetic,
Affiliated Indus. Warehouse Emps., Local 815,
(S.D.N.Y.
2002).
Plastics &
192 F. Supp. 2d 192
In that case, prior to the expiration of the
collective bargaining agreement, the employer resolved to close a
manufacturing plant, told the union that the plant was to be closed,
and transferred some operations to the new facility.
the facts underlying the dispute
Because "all
(including the closing of the
Brooklyn facility and the opening of a new facility in Congers)
arose prior to March 31, 2000, which was the earliest possible
15
expiration date for the CBA," the court held that the dispute could
properly be submitted to arbitration. Id. at 198.
Here, by contrast, the DeGraw dispute cannot be arbitrated
under the "facts and occurrences" prong of the Litton test. As
noted, the Association's complaints are that New York Dialysis
failed to apply the ABC CBA to DeGraw after it finally opened and
failed to recognize New York Nurses as the exclusive bargaining
representative at DeGraw. But what "g[a]ve rise" to this grievance,
see Chelsea Grand,
629 F. App'x at 155, cannot be separated from the
key facts of DeGraw's history, most of which happened after the ABC
CBA expired: the premature closures of both facilities DeGraw was
chiefly intended to replace, the series of construction delays, and
the loss of staff and patients alike.
In particular, the opening of DeGraw was repeatedly delayed for
unforeseen reasons that were outside of New York Dialysis's control,
so much so that it ultimately opened almost three years late, and
almost two-and-a-half years after the ABC CBA expired. Other key
facts likewise happened after the collective bargaining agreement
expired. The recall rights granted under the Atlantic Closure
Agreement expired in May 2015; the Brooklyn Kidney Center also
closed prematurely, again for reasons outside New York Dialysis's
control; and the recall rights granted under the Brooklyn Closure
Agreement expired in July 2016. Thus, by the time DeGraw opened, its
former patients and staff alike had moved on, and in no meaningful
sense was DeGraw "replacing" the old facilities.
16
See Cordon Deel.
~
22
("No staff, patients, equipment or supplies were transferred to
DeGraw from any other [New York Dialysis-Association] facility,
any other [New York Dialysis]
or
facility for that matter.").
To be sure, some limited aspects of this dispute arguably arose
before the collective bargaining agreement expired. New York
Dialysis began planning to open DeGraw as a replacement for the
Atlantic Center and the Brooklyn Center that would be governed by
the ABC CBA at some point in 2013,
told the Association as much by
spring 2014, and accounted for the premature closing of Atlantic
Center by giving nurses employed there limited rights to be recalled
to DeGraw once it opened. But at that point, the dispute was still
far too inchoate to conclude that it arose under the ABC CBA. As
outlined above, the bulk of this dispute,
and the facts that
actually led to the grievance, did not arise under the ABC CBA, but
after it expired.
Halsey illustrates why the Litton test is not satisfied here.
Halsey held that the employer must arbitrate a grievance concerning
whether to apply an expired collective bargaining agreement to a
transfer facility where the old facility was closed and the new
facility was opening during the term of the agreement. See 192 F.
Supp. 2d at 198
(arbitration required where "all the facts
underlying the dispute
(including the closing of the Brooklyn
facility and the opening of a new facility in Congers) arose prior
to
the earliest possible expiration date for the CBA"). Here,
by contrast, all that happened before the collective bargaining
17
agreement expired was that New York Dialysis announced its intention
to replace Atlantic Center and Brooklyn Kidney Center with DeGraw
and granted limited recall rights to certain nurses employed at the
prematurely closing Atlantic Center.
For the foregoing reasons, the Court finds that New York
Dialysis cannot be forced to arbitrate the DeGraw dispute under the
expired ABC CBA. New York Dialysis's motion to permanently stay the
arbitration demanded by the Association is therefore granted. The
Clerk of Court is directed to enter final judgment in petitioner's
favor and to close the case.
SO ORDERED.
Dated:
New York, NY
May Ji!_, 2 0 1 7
18
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