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PITTA v. HOTEL WALDORF-ASTORIA CORP.

September 24, 1986

In the Matter of the Application to Vacate Arbitration Awards by VITO J. PITTA, as President of the NEW YORK HOTEL AND MOTEL TRADES COUNCIL, AFL-CIO, Petitioner,
v.
HOTEL WALDORF-ASTORIA CORP. d/b/a WALDORF-ASTORIA, HOTEL WALDORF-ASTORIA CORP. d/b/a NEW YORK HILTON, PARK LANE HOTEL INC. d/b/a PARK LANE, HUDSON SHERATON CORPORATION d/b/a SHERATON CENTRE HOTEL, FIRST HOTELS d/b/a SHERATON CITY SQUIRE, MANHATTAN SHERATON CORP. d/b/a ST. REGIS-SHERATON, LOEW'S HOTELS INC. d/b/a SUMMIT HOTEL, REGENCY, LOEW'S HOWARD JOHNSON'S MOTOR INN d/b/a HOWARD JOHNSON'S, AND RAMADA INN, Respondents



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

Petitioner, Vito J. Pitta, as president of the New York Hotel and Motel Trades Council, AFL-CIO, moves for summary judgment vacating and/or remanding an arbitrator's award. Respondents, ten New York City hotels ("the Hotels"), cross-move for summary judgment to affirm the award. The petitioner is president of a labor organization which is the collective bargaining agent for various employees employed by the Hotels, who are members of the Hotel Association of New York City, Inc. Petitioner and respondent were parties to a 1981 collective bargaining agreement ("Agreement") which provided for the resolution of disputes between the parties through a grievance procedure, with a final and binding decision by "a permanent arbitrator to be known as the Impartial Chairman."

 Background

 Each day during the weeks ending November 25 and December 2, 1984, room attendants in the Hotels, members of the Union, failed to complete two of the rooms they were assigned to clean. The Hotels responded by docking the wages of these employees a proportionate amount. The workers' union, the New York Hotel and Motel Trades Council ("Union"), disputed the Hotels' authority to do this, and this dispute was submitted to the Impartial Chairman.

 In an arbitration award dated January 14, 1985 the Impartial Chairman found that the room attendants at the Hotels had "dropped" two rooms per day from their assigned quotas at the direction of the union, and that such conduct was "clearly a partial work stoppage" in violation of a specific provision of the Agreement. The Impartial Chairman further found that the room attendants are not solely time workers and not solely piece workers, that for decades they have worked under production standards called quotas, and that the dropping of rooms violated that recognized standard. The Impartial Chairman held that there was justification for the Hotels to take disciplinary action against employees whose failure to perform work assignments was wilful and did not result from danger to health, safety, lack of equipment or supplies. Relying on the basic concept that workers must be paid for work they perform, but need not be paid for work not done, the arbitrator upheld the Hotels' action, but "only against employees who wilfully 'dropped' rooms."

 At a rehearing of the dispute, on February 22, 1985, petitioner claimed that the award violated state law and the Agreement. The Impartial Chairman reaffirmed his award after consideration of the arguments presented. Evidence presented on this motion indicated that the dropping of the rooms may have been strategic action directed by the Union with respect to then pending negotiation with the Hotels for renewal of the collective bargaining agreement.

 Petitioner filed an action in the State Supreme Court of New York to vacate and/or remand the two arbitration awards. That action was removed to this court as a suit arising under the Labor-Management Act, 29 U.S.C. § 185, pursuant to 28 U.S.C. § 1441.

 Discussion

 I. Authority of the Impartial Chairman under the Agreement

 The first issue raised in this case is whether the Impartial Chairman exceeded his authority under the Agreement in reaching his decision. The United States Supreme Court has made it clear that unless an arbitration decision does not draw its essence from the contract, then a court is bound to enforce the award and may not review the merits of the arbitrator's decision, even if his reasoning is ambiguous or the court believes its own interpretation of the contract would be the better one. *fn1" Moreover, our Court of Appeals has held that an arbitrator explains his decision "in terms that offer even a barely colorable justification for the outcome reached." *fn2" This principle applies even if the arbitrator's interpretation of the contract is clearly erroneous. *fn3"

 Under the parties' Agreement, the arbitrator is given authority to make final and binding decisions regarding any dispute "involving questions of interpretation or application of any clause of [the] Agreement, or any acts, conduct or relations between the parties." The Impartial Chairman found that the workers' activity was a partial work stoppage, which is specifically prohibited under Paragraph 17 of the Agreement. That provision also gives the Impartial Chairman the authority to resolve disputes in reference to work stoppages, and pursuant to that authority he found that the Hotels were entitled to take the disciplinary action of docking the workers' pay because of the breach of the work-stoppage provision. He reached this decision by interpreting the compensation provisions of the Agreement as recognizing the dual nature of the room attendants' jobs. He found that under the Agreement, attendants were not paid solely on the basis of the number of hours worked, and therefore the employers' action of docking them pay for work not done could be sustained. The Impartial Chairman based his interpretation on the fact that the compensation provisions set wages for a 35-hour week, but also require extra pay for extra rooms and cots. He found that the interface of these provisions should be interpreted to mean that the room attendants are not time workers nor are they merely piece-rate workers, and that, therefore,

 Where, as here, the failure to perform assigned duties is wilful, there is no justification for requiring an employer to compensate employees for work they did not do. *fn4"

 In view of the broad powers granted to the Impartial Chairman, this court cannot say that the arbitrator's decision does not offer "even a barely colorable justification" for the outcome reached. While petitioner points out that Paragraph 6(b)(1) of the Agreement provides that each employer will not pay less than the minimum weekly wages for the total number of hours per week, and that Paragraph 8(A) provides that the working hours per week on which the minimum wage is predicated shall be thirty-five hours, this does not require a different result. The Impartial Chairman specifically addressed these contentions by interpreting the contract as recognizing a special dual nature of employment in the case of the room attendants which makes their compensation based not only on the hours they work, but also on the work they do. In fact, as the Impartial Chairman pointed out, it was this same rationale, in a prior decision, that had resulted in an award in favor of the Union prohibiting the docking of wages. In that arbitration, the Hotels had docked wages of room attendants who had completed their room quotas but had failed to work a thirty-five hour week, due to their attendance at union meetings held during their assigned work hours. The Impartial Chairman held that this was improper action on the part of the Hotels.

 It is not for this court to review the merits of the arbitrator's decision. There is no basis for vacating or remanding the Impartial ...


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