Roy v. Buffalo Philharmonic Orchestra Society, Inc.

Filing 40

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 5 Motion to Dismiss for Failure to State a Claim; denying 8 Motion to Vacate ; granting 18 Motion to Dismiss; granting 19 Motion to Dismiss for Failure to State a Claim - consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/9/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PIERRE ROY,
Plaintiff,

DECISION AND ORDER
15-CV-0283

v.
BUFFALO PHILHARMONIC
ORCHESTRA SOCIETY, INC.
and
MUSICIANS ASSOCIATION OF BUFFALO,
NEW YORK LOCAL #92,
Defendants.

I. INTRODUCTION
Plaintiff Pierre Roy (“Roy”) commenced this proceeding in
New York State Supreme Court pursuant to New York Civil Practice
Law and Rules (“CPLR”) section 7511, seeking to vacate the Decision
and

Award

of

Arbitrator

Robert

J.

Rabin,

Esq.

(“Rabin”

or

“Arbitrator Rabin”), dated December 1, 2014 (“the Arbitration
Decision”). Docket No. 1-2. The proceeding was removed to this
Court under its federal question provision pursuant to Section 301
of the Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”).
The Arbitration Decision was rendered in an arbitration proceeding
initiated by Roy's exclusive bargaining representative, Musicians
Association of Buffalo, New York, Local No. 92, American Federation
of Musicians of the United States and Canada (“the Union”) under a
collective bargaining agreement between the Union and the Buffalo
Philharmonic Orchestra Society, Inc. (“the BPO”), Roy’s employer.
Docket Nos. 1, 2, 4.

Both the Union and the BPO are named

defendants in this action.

In the Arbitration Decision, Rabin

upheld two warning letters given to Roy as well as his termination
from the BPO for just cause. Docket No. 8-1.
Roy’s Motion to Vacate the Arbitration Award contends that
Arbitrator Rabin failed to admit pertinent evidence, failed to
evaluate and analyze the evidence proffered by Roy, failed to
arrive at a rational and reasoned conclusion consistent with the
evidence, and made findings beyond the scope of his contractual
authority to adjudicate. Docket No. 8, ¶ 43. Roy further asserts
that Arbitrator Rabin committed misconduct in permitting certain
evidence, that the Arbitration Decision is against public policy,
and that the decision was procured through the false and fraudulent
testimony of BPO witnesses. Docket No. 8-12 at 1.1
With regard to Defendant Union, Roy argues that the Union
breached its duty of fair representation by failing to properly
object

to

evidence,

failing

to

address

the

corruption

and

misconduct of certain BPO witnesses, and failing to address public
policy concerns related to the nature of Roy’s employment. Id.

at

10-11.
Now

before

the

Court

are

Roy’s

Motion

to

Arbitration Award (Docket No. 9) and the Defendants’

Vacate

the

Motions to

Confirm the Arbitration Award (Docket Nos. 18, 19).

1

Due to the somewhat duplicative briefings in this case, the Court
refers to the documents by item number of the Electronic Court Filing (“ECF”)
system, with specific reference to the documents’ internal page numbers.

-2-

II. BACKGROUND
Familiarity of the facts by the parties is presumed based on
the extensive arbitration proceedings and comprehensive briefing in
this matter.
Roy was employed by the BPO as principal oboist, a position
that was within a bargaining unit represented by the Union. The
terms of Roy's employment were governed by a collective bargaining
agreement between the Union and the BPO. In July 2012, the BPO
discharged Roy for his ongoing intimidating, abusive and disruptive
behavior directed toward his colleagues and management. Among other
things, witnesses from the BPO alleged numerous instances in which
Roy: deliberately played off-tempo or off-pitch during rehearsal in
order to “sabotage” the other musicians; engaged in physical and
verbal confrontations with the other musicians that were viewed as
threatening or intimidating; mocked and mimicked others during
rehearsal and made exaggerated gestures so as to distract them from
playing; defiantly questioned the maestro’s direction on more than
one occasion; and made off-color remarks to his colleagues that
were perceived as insensitive or offensive.2 Docket No. 8-1.
Roy received two written warnings for his behavior between his
reinstatement in January 2011 and the July 2012 termination of his
employment. Roy grieved the written warnings and the July 2012

2

It is important to note that Roy had previously been discharged for
similar behavior, but was reinstated under a settlement agreement. Rabin
discussed these events for purposes of context, but made clear that the case
before him involved only the alleged incidents occurring after January, 2011.

-3-

discharge, and the Union pursued the matter to arbitration before
Rabin under the collective bargaining agreement.
The arbitration hearing, at which both the Union and the BPO
were represented by counsel, was held for a total of 13 days over
the course of approximately one year. Rabin afforded the parties
full and equal opportunity to offer testimony under oath, crossexamine witnesses, and present evidence and arguments. Roy was
present and gave testimony, as did other witnesses. The proof
covered the period between his reinstatement in 2011 and the summer
of 2012, which revealed that Roy had a series of confrontations and
contentious interactions with his orchestra colleagues and fellow
performers. In addition, some of the witnesses alleged that Roy had
mocked, mimicked, and otherwise distracted musicians playing within
close proximity to him, and that he had sabotaged rehearsals by
intentionally playing poorly.
Rabin concluded that the evidence supported the two warning
letters issued to Roy and held that the BPO’s discharge of

Roy

should stand. Arbitrator Rabin noted further that “even if there
were sufficient mitigating circumstances, reinstatement [was] not
an acceptable option.” Docket No. 8-1 at 42. But, he concluded that
monetary relief was appropriate based on his conclusion that the
BPO could have done more to give Roy an opportunity to succeed
after returning to work following his discharge in 2010. Id. at 46.
The 48-page Arbitration Decision upheld Roy’s termination and
directed that the BPO afford Roy the opportunity to resign in

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addition to a separation package of one year’s compensation. Id. at
47.
III. DISCUSSION
A.

Preliminary Issues
Following removal to this Court, Defendant BPO moved to

dismiss Roy’s original Petition (Docket No. 1)

based on lack of

standing to bring an action to vacate the arbitral award because
the Union, not Roy, was party to the arbitration proceedings.
Docket No. 5 at 4-5. In response, Roy filed an Amended Petition,
re-asserting his petition to vacate the arbitral award, and also
alleging

that

the

Union

had

breached

its

duty

of

fair

representation in violation of Section 301 of the LRMA. Docket
No. 8, ¶¶ 13, 30-38. The Amended Petition is now the operative
pleading. It has been docketed as, and is referred to herein, as
Roy’s “Motion to Vacate the Arbitration Award.” All previous
motions brought by the parties in response to Roy’s original
Petition (Docket No. 1) are therefore superceded.
Defendants BPO and the Union both move to dismiss Roy’s action
pursuant to Fed. R. Civ. P. 12(b)(6). Docket Nos. 18, 19. Roy has
filed opposition papers to those motions, see Docket Nos. 28, 29,
to which both Defendants have submitted replies. Docket Nos. 32,
33.
Defendants BPO and the Union have also separately opposed
Roy’s

Motion

to

Vacate

the

Arbitration

-5-

Award

addressing

the

standards set forth in the Federal Arbitration Act (“FAA”). Docket
Nos. 25, 26.
In light of the procedural posture of this case, and in the
interest of judicial economy, the Court treats the pending Motions
to Dismiss as Motions to Confirm the Arbitration Award. See Sanluis
Developments, LLC v. CCP Sanluis, LLC, 556 F. Supp.2d 329, 332
(S.D.N.Y. 2008) (“When a party moves to dismiss a motion to vacate
an arbitration award, the court may, sua sponte, treat the motion
to dismiss as a motion to confirm the award.”). Prior to deciding
the parties’ cross-motions to vacate and confirm the award, the
Court briefly addresses Roy’s contention that the Union breached
its duty of fair representation in the arbitration proceedings.3
Docket No. 8-21 at 10-12.
B.

Duty of Fair Representation
To establish standing to challenge the arbitration award, Roy

now alleges that the Union breached its duty to fairly represent
him in the proceedings before Rabin. In asserting this claim, Roy
alleges that: (1) the Union inadequately represented him in the
grievance and arbitration procedure; (2) the Union failed to
properly cross-examine

BPO

witnesses,

introduce

evidence, and

failed to object to evidence regarding his musical competence; and
(3)

the

Union

failed

to

advance

arguments

regarding

the

introduction of tape-recorded meetings, corruption and misconduct

3

Because the Court decides this case on the merits of Roy’s Motion
Vacate the Arbitration Award, it need not reach the issues of timeliness
(Docket Nos. 19-1 at 5-6), and defective service (Docket No. 18-4 at 5-8).

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on behalf of the BPO musicians, and public policy concerns. Docket
No. 8, ¶¶ 34-37.
“[A] union breaches the duty of fair representation when its
conduct toward a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith.” Marquez v. Screen Actors Guild,
525 U.S. 33, 45 (1998). There must also be “a causal connection
between the union's wrongful conduct and [plaintiff's] injuries.”
Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir.
2010) (quotations omitted).

“A union's actions are arbitrary only

if, in light of the factual and legal landscape at the time of the
union's actions, the union's behavior is so far outside a wide
range of reasonableness, as to be irrational.” White v. White Rose
Food, 237 F.3d 174, 179 (2d Cir. 2001) (quotation omitted). “This
‘wide range

of

reasonableness'

gives

the

union

room

to

make

discretionary decisions and choices, even if those judgments are
ultimately wrong.” Marquez, 525 U.S. at 45–46. “[M]ere negligence,
even in the enforcement of a collective-bargaining agreement” does
not establish a breach of the duty of fair representation. United
Steelworkers of Am. v. Rawson, 495 U.S. 362, 372 (1990).
Moreover, “[a] showing of bad faith requires a showing of
fraudulent, deceitful, or dishonest action,” White, 237 F.3d at
179, and that the union acted “with an improper intent, purpose, or
motive,” Spellacy v. Airline Pilots Ass'n–Int'l, 156 F.3d 120, 126
(2d Cir. 1998). “A union's acts are discriminatory when substantial
evidence indicates that it engaged in discrimination that was

-7-

intentional, severe, and unrelated to legitimate union objectives.”
Vaughn, 604 F.3d at 709 (quotations omitted).
Roy’s allegations that the Union inadequately represented him
in the arbitration proceedings, at most, suggest only that the
Union was negligent or made “tactical” errors. This is insufficient
to state a claim for breach of the duty of fair representation.
See, e.g., Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43–44
(2d

Cir.

1989).

His

complaints

regarding

inadequate

cross-

examination, failing to raise certain objections or introduce
evidence or arguments are all allegations that fail to state a
claim of breach of fair representation. See Nicholls v. Brookdale
Univ. Hosp. & Med. Ctr., 05cv2666, 2005 WL 1661093, at *1, *7
(E.D.N.Y. July 14, 2005) (noting “[t]he enormous burden” on a
plaintiff to establish that a union breached its duty of fair
representation and finding no such breach where plaintiff alleged
that union denied her additional non-union counsel, failed to
prepare the case, and failed to call certain witnesses).
To defeat the Union’s motion, Roy must “set forth concrete
specific facts from which one can infer [the] union's hostility,
discrimination, bad faith, dishonesty, or arbitrary exercise of
discretion.” Lapir v. Maimonides Medical Ctr., 750 F.Supp. 1171,
1177

(E.D.N.Y.

1990)

(citation

and

internal

quotation

marks

omitted); see Spielmann v. Anchor Motor Freight, Inc., 551 F.Supp.
817, 822 (S.D.N.Y. 1982). Roy states only, in conclusory terms,
that all of the above-mentioned conduct was motivated by bad faith.

-8-

Docket No. 8-21at 10-12. This is plainly insufficient. See

Hague

v. United Paperworkers Int'l Union, 949 F. Supp. 979, 987 (N.D.N.Y.
1996) (conclusory allegations of arbitrariness and bad faith fail
to state a valid claim).
Here, none of Roy’s allegations are supported by any facts
indicating a motivation of bad faith or hostility.

Roy’s sole

attempt to evidence “bad faith” relies on the Union’s request for
Roy “pay substantial attorney’s fees for the arbitration” as the
legal fees increased as the arbitration proceeding progressed over
the course of one year. Docket No. 8-21 at 10-11.

According to

Roy, after his refusal to contribute to the Union’s legal fees,
they

abandoned

his

interests

and

did

not

fully

support

his

position. Id. at 22. The record belies this claim. In particular,
the

Arbitration

vigorously

Decision

against

Roy’s

demonstrates

that

termination

at

the

all

Union

stages

argued
of

the

proceedings, and submitted an extensive post-hearing memorandum
well after Roy denied the Union’s request for him to contribute to
the cost of arbitration. Docket No. 18-2.
Roy may disagree with this finding and the outcome of the
arbitration, but that alone is not an adequate ground for a claim
against the Union. Barr, 868 F.2d at 43. Because Roy’s motion fails
to state a plausible claim that the Union breached its duty of fair
representation, this claim must be dismissed.

-9-

C.

Cross-motions to Vacate / Confirm the Arbitration Award
The heart of this matter is Roy’s request to Vacate the

Arbitration Award on the grounds that Rabin engaged in misconduct
in refusing to hear pertinent evidence and permitting evidence on
musical performance; that the witnesses engaged in corruption and
misconduct, and that the decision and award were against public
policy. Docket No. 8-21 at 10-21.
For the following reasons, the Court finds that Roy has not
set forth a sufficient basis to set aside the award.
1.

Standard of Review

Judicial review of arbitration awards is “very limited.”
Willemijn Houdstermaatschappij, BV v. Standard Microsys. Corp., 103
F.3d 9, 12 (2d Cir. 1997) (internal quotation marks omitted). The
Federal Arbitration Act provides that a district court may vacate
an

arbitration

award

“(1)

where

the

award

was

procured

by

corruption, fraud, or undue means; (2) where there was evident
partiality or corruption in the arbitrators . . . ;(3) where the
arbitrators were guilty of misconduct . . . or (4) where the
arbitrators exceeded their powers, or so imperfectly executed them
that a mutual, final, and definite award upon the subject matter
submitted was not made.” 9 U.S.C. § 10(a).
“A party moving to vacate an arbitration award has the burden
of proof, and the showing required to avoid confirmation is very
high.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110

(2d Cir.

2006). Misconduct warranting vacatur pursuant to section 10(a) of

-10-

the FAA must be serious; it “must amount to a denial of fundamental
fairness of the arbitration proceeding.” Areca, Inc. v. Oppenheimer
& Co., Inc., 960 F.Supp. 52, 54–55 (S.D.N.Y. 1997) (citations
omitted). To prove evident partiality of the arbitration panel, a
party must demonstrate “more than just the ‘appearance of bias.’”
Id. at 56 (citations omitted).
A

court

may

also vacate

an

award

rendered

“in

manifest

disregard of the law.” Schwartz v. Merrill Lynch & Co., Inc., 665
F.3d 444, 451–52 (2d Cir. 2011) (internal quotation marks omitted).
The “manifest disregard” test is rigorous. It requires “something
beyond and different from a mere error in the law or failure on the
part of the arbitrators to understand or apply the law.” Siegel v.
Titan Indus. Corp., 779 F.2d 891, 892 (2d Cir. 1985).

2.

Refusal to Hear Pertinent Evidence

Roy asserts that Rabin should have accepted a recording and
transcript of two separate meetings between Roy and two members of
BPO

management

(Daniel

Hart,

Executive

Director,

and

JoAnn

Falletta, Music Director) in the fall of 2011.4 Docket No. 8-21 at
12-14. At the arbitration proceeding, the Union attorney offered
the recording and transcript, which contained comments made by
Falletta regarding Roy’s “musicianship.” Docket No. 29-4 at 125457. According to Roy, those comments differed from Falletta’s

4

Roy had begun recording his meetings with BPO personnel after his
reinstatement from his “initial firing,” and transcribed the recordings with
assistance from his wife. Docket No. 29-4 at 1250-52.

-11-

testimony and would have called into question her credibility, and
therefore should have been admitted. Docket No. 8-21 at 12-13.
Rabin reserved his decision on admitting the evidence, which the
Union’s attorney ultimately chose not to re-offer. Docket No. 29-4
at 1255-61; Docket No. 18-4 at 12.
With regard to the admissibility of evidence:
[Section 10(a)(3)] has been narrowly construed
so as not to impinge on the broad discretion
afforded to arbitrators to decide what
evidence should be presented. Every refusal to
hear potentially relevant evidence does not
create grounds for vacating an arbitration
award. Though an arbitrator must give each of
the parties to the dispute an adequate
opportunity to present its evidence and
arguments, he is not required to hear all the
evidence proffered by a party. Arbitrators
must be given discretion to determine whether
additional evidence is necessary or would
simply prolong the proceedings.
Rai v. Barclays Capital Inc., 739 F. Supp. 2d 364, 371-72 (S.D.N.Y.
2010) aff'd, 456 Fed. Appx. 8 (2d Cir. 2011) (internal citations
and quotations omitted).
The Union’s counsel opted, as a matter of strategy, not to reoffer the recording and transcript, see Docket No. 18-4, therefore
Rabin did not “refuse” the evidence in question. Even assuming that
Rabin had excluded the recording and transcript, Roy cannot show
that the exclusion deprived him of a fundamentally fair arbitration
process. See In re Interdigital Comm. Corp., 528 F.Supp.2d 340, 351
(S.D.N.Y. 2007).
By way of example, Roy takes issue with a particular comment
made by Falletta with regard to the fall 2011 meeting, that Roy
-12-

allegedly stated he was only paid to “play the ink” in an apparent
defiant response to her request for him to re-tune. Docket No. 28-3
at 11. Roy alleges that the taped conversation would reveal that
Falletta’s characterization of the comment was inaccurate, and that
he had actually said that he’d always played “beyond the ink,”
i.e., went above and beyond his musical duties. Id. Rabin, in
reviewing the testimony of both Roy and Falletta, addressed the
“ink” remark discrepancy and made clear: “It is impossible for me,
or anyone who was not in the room with Mr. Roy and Ms. Falletta, to
say with certainty which version of the ‘play the ink’ remark was
actually uttered. For me, the significance of this event is that
Maestro Falletta had real concerns about Mr. Roy’s commitment to
full involvement in performance.” Id. at 11-12. In his own words,
Rabin neither credited or discredited the testimony of either
witness,

rendering

Roy’s

present

challenge

to

Falletta’s

credibility unpersuasive as Rabin did not consider the remark as a
factor in reaching his determination. Stated another way,

any

further elaboration on the “ink” would not assist Roy because, even
if his version of the conversation were true and the recording and
transcript so proved, Roy cannot show that any prejudice resulted
from the excluded evidence because it did not factor into Rabin’s
final decision. See Areca, 960 F.Supp. at 55 (“[I]f the arbitrator
refuses to hear pertinent and material evidence to the prejudice of
one of the parties, the arbitration award may be set aside . . . .
However, the misconduct must amount to a denial of fundamental

-13-

fairness of the arbitration proceeding to warrant vacating the
award.”).
Roy has not set forth a colorable ground on which to base a
claim of arbitrator misconduct pursuant to 9 U.S.C. § 10(a)(3).
2.

Excess of Power

Roy alleges, under § 10(a)(4), that Arbitrator Rabin exceeded
his powers in upholding his termination because the collective
bargaining agreement provided that issues of musical incompetence
were not arbitrable. Docket No. 8-21 at 14.
The inquiry under § 10(a)(4) is limited, focusing on “whether
the arbitrators had the power, based on the parties' submissions or
the arbitration agreement, to reach a certain issue, not whether
the arbitrators correctly decided that issue.” DiRussa v. Dean
Witter Reynolds Inc., 121 F.3d 818, 824 (2d Cir. 1997)) (citation
omitted). Here, however, it is clear from the face of the decision
that Rabin did not implicate the provision of the collective
bargaining agreement prohibiting arbitration “invoked for nonrenewal matters based upon alleged musical incompetence.” Docket
No. 8-18 at 37.
The gravamen of Roy’s termination were his anger issues that
had become increasingly more troubling after his reinstatement in
early 2011. Docket 8-1 at 41. Rabin specifically noted Roy’s
aggressive behavior with multiple BPO musicians and his poor interpersonal relationships with BPO administration. Id. at 42. The only
mention of musical incompetence was in connection with Roy’s

-14-

alleged

hostility

towards

his

colleagues,

who

claimed

Roy

repeatedly and intentionally played below his skill level to create
difficulty for his fellow orchestra members. Id. at 37-39. In the
Arbitration Decision, Rabin explicitly stated that “at no point .
. . does the [BPO] question Mr. Roy’s overall musicianship, except
as entailed in the specific incidents that I discuss, as part of
its claim of deliberately poor playing.” Id. at 12 (emphasis
added).
Arbitrator Rabin did not exceed his authority by discussing
the instances of alleged “musical sabotage” in connection with the
BPO’s

termination

of

Roy

in

the

arbitration

proceeding.

Accordingly, his challenge to the arbitral award on this basis must
fail.
3.

Corruption and Misconduct of Witnesses

Roy next avers that the BPO advanced a number of allegations
that were petty and trivial, which amounted to nothing more than a
“grudge” against him for being allowed to return to the orchestra
after his 2011 termination. Docket No. 8-21 at 16.
Section 10(a)(1) of the FAA provides that an arbitral award
may be set aside where it was procured by corruption, fraud, or
undue

means.

“[A]n

arbitration

award

obtained

by

perjured

testimony may be vacated under 9 U.S.C. § 10(a), which authorizes
a court to vacate an award “procured by fraud.” Wexelman v. Dean
Witter Reynolds, Inc., No. 84 CIV. 6791, 1985 WL 368, at *2
(S.D.N.Y. Mar. 1, 1985).

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In order for an award to be vacated on this
ground . . . (1) the perjury must be
established by clear and convincing evidence;
(2) petitioner must establish that the
allegedly
perjured
testimony
materially
related to an issue in the arbitration and was
credited by the arbitrator, thus depriving him
of a fair hearing; and (3) it must be shown
that the fraud could not have been discovered
upon the exercise of due diligence prior to or
during the arbitration.
Red Apple Supermakerts/Supermarkets Acquisitions v. Local 338,
No. 98 CV. 2303, 1999 WL 596273, at *6 (S.D.N.Y. Aug. 9, 1999).
Fatal to Roy’s claim is that he has not raised any issue of
witness misconduct beyond the expected conflicting testimony in the
arbitration hearing. Even assuming that the BPO witnesses perjured
themselves,

the

testimony

at

that

time

was

discoverable

and

challengeable at the time of the hearing. It cannot be said that
Roy did not have the opportunity to present to Arbitrator Rabin
evidence of the alleged fraudulent behavior by the BPO. “The
purpose of requiring fraud to be ‘newly discovered’ before vacating
an arbitration award on that ground is ‘to avoid reexamination, by
the courts, of credibility matters which either could have been or
were

in

fact

called

into

question

during

the

course

of

the

arbitration proceedings.’” Hakala v. Deutsche Bank AG, No. 01 CIV.
3366(MGC), 2004 WL 1057788, at *3 (S.D.N.Y. May 11, 2004) (quoting
A. Halcoussis Shipping Ltd. v. Golden Eagle Liberia Ltd., 88 Civ.
4500, 1989 WL 115941, at *3 (S.D.N.Y. Sept. 27, 1989)). Arbitrator
Rabin, as the finder of fact, had the opportunity to assess the
credibility of both the BPO and Union witnesses and revisiting this
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issue is not properly before the Court. See Karppinen v. Karl
Kiefer Mach. Co., 187 F.2d 32, 35 (2d Cir. 1951) (“We note only in
passing that if perjury is ‘fraud’ within the meaning of the
statute, then, since it necessarily raises issues of credibility
which have already been before the arbitrators once, the party
relying on it must first show that he could not have discovered it
during the arbitration, else he should have invoked it as a defense
at that time.”).
Underlying Roy’s allegation of fraud is his belief that Rabin
gave “unfair weight” to the testimony of the musicians who alleged
that

Roy

mocked,

mimicked,

confronted,

or

otherwise

behaved

inappropriately in their workplace. Docket No. 8-21 at 18-19.
Arbitrator Rabin evaluated testimony from several witnesses,
some of whom made the allegations of impropriety against Roy and
others

who

witnessed

no

misbehavior

relationships with Roy. Docket No. 8-1. He

and

had

good

working

noted that while “many

of the musicians who testified for the BPO were sympathetic to
Mr. Roy,” there was also “abundant and consistent testimony about
Mr. Roy’s playing issues [his instrument],” as well as “consistent
and cumulative observations of physical actions that demonstrated
anger.” Id. at 37-39. Ultimately, Rabin found “the core of this
rather large body of corroborative testimony an accurate and
truthful account of what actually occurred.” Id. at 39. In support
of

his

conclusion,

Rabin

devoted

an

extensive

explanation

discussing “the motivation of the witnesses” in reaching his

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decision. His evaluation of the evidence is entitled to deference,
and to the extent Roy is merely re-hashing Rabin’s treatment of the
testimony, such an argument must fail. See Data & Development, Inc.
v. InfoKall, Inc., 513 Fed. Appx. 117, 118 (2d Cir. 2013) (“[A]n
arbitration award may not be vacated because of disagreement with
the arbitrator's evaluation of the evidence.”); Fairchild Corp. v.
Alcoa, Inc., 510 F.Supp.2d 280, 286 (S.D.N.Y. 2007) (arbitrators
are afforded broad discretion to determine whether to hear or not
hear evidence, or whether additional evidence is necessary or would
simply prolong the proceedings).
Rabin carefully analyzed and discussed the evidence before him
and

delivered

decision.

a

thorough,

Despite

his

well-reasoned

finding

that

and

Roy’s

balanced
conduct

48-page

warranted

termination, he nonetheless provided that Roy would be entitled to
one year’s compensation if he were to voluntarily resign from his
employment.

Docket

No.

8-1

at

46.

In

pertinent

Arbitration Award states:

part,

[T]here is no way that Mr. Roy may be restored
to his position with the BPO . . . . He was on
notice from the 2011 settlement agreement and
from the letter of reinstatement that he had
to control certain behavior . . . . He engaged
in unacceptable conduct that made it difficult
for the musicians around him to do their job.
His return would cause unacceptable anxiety.
However, I have the authority to address the
concerns raised by the Union through a
monetary award.
. . . .
An award of a year’s pay appropriately
balances the equities and responsibilities in
this case . . . and serves as a form of
-18-

the

severance pay . . . .
A resignation would
give Mr. Roy a dignified way to terminate his
affiliation with the BPO.
Id. at 45. Rabin further clarified that Roy would receive the
compensation package whether he took the option to resign or not.
Id. at 47.
That alternative is still available to Roy provided he tenders
a voluntary termination from his position. That result would be
equitable and in keeping with Rabin’s findings.
In sum, Rabin reached a fair and just result while affording
both

sides

ample

opportunity

to

present

their

testimony

and

arguments. However, to the extent that Roy is simply seeking a
de novo review of the Arbitration Decision, such relief is not
available here. Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir. 2004)
(“A motion to vacate filed in federal court is not an occasion for
de novo review of an arbitral award.”).
As Roy fails to state a claim of “fraud” under 9 U.S.C.
§ 10(a)(1), his motion to vacate should be denied.
4.

Public Policy

Roy concludes his motion in asserting that the arbitration
award upholding his termination from the BPO violated public policy
because his profession as an oboist is extremely limited in terms
of job opportunities. Docket No. 8-21 at 20. According to Roy, he
has

unsuccessfully

sought

new

employment

and,

despite

his

impressive credentials, he has been unable to secure a permanent

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position. Id. He believes, therefore, his career as a professional
musician has come to a halt.
In order to set aside an arbitration award on the basis of
public

policy,

the

public

policy

must

be

“well

defined

and

dominant,” and must be “ascertained by reference to the laws and
legal precedents and not from general considerations of supposed
public interests.” Schwartz v. Merrill Lynch & Co., 665 F.3d 444,
452 (2d Cir. 2011) (quoting United Paperworkers Int’l Union v.
Misco, Inc., 84 U.S. 29, 43 (1987) (internal quotations omitted)).
Roy has failed to identify an explicit public policy that is
well-defined or recognized, much less demonstrate how enforcing the
arbitral award would conflict with such public policy. See Banco de
Seguros Del Estado v. Mut. Marine Offices, Inc., 230 F. Supp. 2d
427, 430 (S.D.N.Y. 2002), aff’d sub nom. Banco de Seguros del
Estado v. Mut. Marine Office, Inc., 344 F.3d 255 (2d Cir. 2003).
Nor is the Court aware of any public policy that protects an
employee with limited job prospects (in this case, a professional
orchestral musician), from discharge for just cause.
Although Roy’s current circumstances are unfortunate, he sets
forth

no

grounds,

statutory

or

otherwise,

to

set

aside

the

Vacate

the

arbitration award.
IV. CONCLUSION
IT

HEREBY

IS

ORDERED,

that

Roy’s

Motion

to

Arbitration award (Docket No. 8) is DENIED and the Cross-Motions of
the BPO and the Union to Confirm the Award (Docket Nos. 18, 19) are
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GRANTED. In light of the Court’s determination, the BPO’s earlier
Motion to Dismiss (Docket No. 5) is DENIED.
The Clerk of the Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
_________________________________
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: February 9, 2016

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