Rite Aid of New York, Inc. v. United Food and Commercial Workers International Union Local One

Filing 28

ORDER granting 9 Motion to Compel; denying petitioner's petition to stay arbitration and adopting Report and Recommendation 16 . Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 1/23/2008. (JMB)

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UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK R IT E AID OF NEW YORK, INC., Petitioner, v. UNITED FOOD AND COMMERCIAL W O R K E R S INTERNATIONAL U N IO N LOCAL ONE, R e s p o n d e n t. ORDER 07-CV-708 T h is case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. 636(b)(1). Petitioner filed a petition to stay arbitration and re s p o n d e n t filed a cross-petition and motion to compel arbitration. On March 10, 2 0 0 8 , Magistrate Judge Scott filed a Report and Recommendation, re c o m m e n d in g that petitioner's petition to stay arbitration be denied and re s p o n d e n t's cross-petition to compel arbitration and its motion seeking the same re lie f be granted. P e titio n e r filed objections to the Report and Recommendation on A p ril 7, 2008 and respondent filed a memorandum in opposition to the petitioner's o b je c tio n s on April 30, 2008. Oral argument on the objections was held on O c to b e r 29, 2008. P u rs u a n t to 28 U.S.C. 636(b)(1), this Court must make a de novo d e te r m in a tio n of those portions of the Report and Recommendation to which o b je c tio n s have been made. Upon a de novo review of the Report and R e c o m m e n d a tio n , and after reviewing the submissions and hearing argument fro m the parties, the Court adopts the proposed findings of the Report and R e c o m m e n d a tio n . In addition to the cases cited by the Magistrate Judge, the C o u rt finds that 1199 SEIU, United Healthcare W o rk e rs East v. Rite Aid, 2008 W L 762090 (S.D.N.Y. March 24, 2008) also supports the respondent's position. In that case, as here, the dispute centered around whether a particular provision o f the collective bargaining agreement applied to non-union employees of newlya c q u ire d Rite Aid stores. This Court finds that the issue of whether a particular p ro vis io n of the collective bargaining agreement gives the Union the right to visit n o n -u n io n employees is a question of interpretation of the collective bargaining a g re e m e n t. Accordingly, for the reasons set forth in Magistrate Judge Scott's R e p o rt and Recommendation, petitioner's petition to stay arbitration is denied and re s p o n d e n t's cross-petition to compel arbitration and its motion seeking the same re lie f is granted. S O ORDERED. s / Richard J. Arcara HONORABLE RICHARD J. ARCARA C H IE F JUDGE U N IT E D STATES DISTRICT COURT D A T E D : January 23, 2009 2

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