United States District Court, Southern District of New York
July 9, 1991
GRINNELL HOUSING DEVELOPMENT FUND CORP., PETITIONER,
LOCAL 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, RESPONDENT.
The opinion of the court was delivered by: Sprizzo, District Judge.
OPINION AND ORDER
Petitioner Grinnell Housing Development Fund Corp.
("Grinnell") brings this petition to vacate two arbitration
awards dated July 27, 1989 and November 14, 1989 in favor of
respondent Local 32B-32J, Service Employees International
Union, AFL-CIO ("the Union"). Presently pending before the
Court are petitioner's motion to vacate the awards and
respondent's cross-motion to confirm the awards. For the
reasons that follow, petitioner's motion is denied and the
motion to confirm the awards is granted.
Petitioner Grinnell is a low to moderate income housing
cooperative formed under the New York Private Housing Fund
Corporation Law which owns and operates a cooperative apartment
building known as 800 Riverside Drive in New York City ("the
premises"). See Affidavit of Ira A. Sturm ("Sturm Aff.") at ¶
5. The Union is a labor organization representing approximately
70,000 members employed in the New York City building service
industry. See id. at ¶ 4. Grinnell is a member of the Realty
Advisory Board on Labor Relations, Inc. ("RAB"), an association
comprised of New York Metropolitan area owners and managing
agents of real property. The RAB negotiates a pattern
collective bargaining agreement with the Union to which its
members subsequently assent. See Affidavit of John J. Leo ("Leo
Aff.") at ¶ 5. During April of 1985, the respondent Union and
the RAB negotiated a pattern agreement known as the "1985
Apartment Building Agreement" ("the 1985 Agreement"), which set
forth the terms and conditions of employment for the building
service employees employed at the premises. See id.
This case involves the petitioner's failure to comply with
Article VII of the 1985 Agreement regarding reductions in
staffing.*fn1 On or about October 21, 1987, Grinnell suspended
an employee who worked as a handyman at the premises because of
his refusal to perform certain required work. See Arbitration
Award dated July 27, 1989 at 2; Affidavit of Roberta Gaddis
("Gaddis Aff.") at ¶¶ 3-4. After his suspension, the employee
returned to work for two days but shortly thereafter left
Grinnell's premises and never returned. See Gaddis Aff. at ¶¶
3-4. During the course of his absence, Grinnell concluded that
the employee's duties were no longer needed and decided to not
hire a replacement. See id. at ¶ 5. However, the Union provided
a new handyman and expected Grinnell to hire him in accordance
with the 1985 Agreement. See Leo Aff. at ¶ 11.
When Grinnell failed to do so, the Union filed a complaint
with the Office of the Contract Administrator and sought
pursuant to Article VI of the 1985 Agreement.*fn2 See Gaddis
Aff. at ¶ 5; Leo Aff. at ¶ 13. The parties initially agreed to
an arbitration hearing for January 13, 1988 but adjourned the
hearing to April 6, 1988. See Gaddis Aff. at ¶¶ 5-8; Pizarro
Aff. at ¶ 20. On April 6, the parties engaged in settlement
negotiations and reached a tentative agreement. However, they
adjourned the hearing because Pizarro, the Union
representative, did not have the authority to bind the Union to
the settlement. See Gaddis Aff. at ¶¶ 8-9; Pizarro Aff. ¶ 20.
The Union ultimately rejected the settlement and notified
Grinnell's counsel, Albert Holland, Esq., of the rejection
approximately two weeks following the April 6, 1988 hearing.
See Pizarro Aff. at ¶ 20.
The next scheduled hearing was set for June 14, 1988, but was
adjourned because there was no signed receipt sent to the
office of the Contract Arbitrator to establish that Grinnell
received the requisite contractual notice for that hearing.
See id. at ¶ 6. A subsequent hearing, scheduled for September
2, 1989, was adjourned by the Union. See id. at ¶ 7. At that
time, the case was marked against the Union. See id.
Ultimately, the arbitrator, Arthur J. Flanagan, heard
testimony and received exhibits at hearings on December 14,
1988 and June 9, 1989. See id. at ¶¶ 8-10, 12. On July 27,
1989, arbitrator Flanagan issued his award in favor of the
Union: (1) directing Grinnell to reinstate the position of
handyman; (2) directing Grinnell to distribute equally to the
reduced staff the weekly base wages that would have been paid
to the handyman for the period beginning December 1, 1987 until
such time when the handyman is reinstated; and (3) providing
that the pension fund and the Health and Welfare fund shall be
compensated for the period the handyman position was vacant.
See Award of Arbitrator Arthur J. Flanagan dated July 27, 1989.
On October 14, 1989, Grinnell requested that the arbitrator
modify his award to limit its liability for back pay to the
period ending on April 6, 1988, the date of the tentative
settlement. See Pizarro Aff. at ¶ 22. In a supplemental award
dated November 14, 1989, the arbitrator denied that request,
stating that "subsequent to April 6, 1988 four (4) hearing
dates were scheduled and the Stipulation Agreement was never
fully executed by the parties." He added that "the question of
limited liability was never an issue before the
undersigned."*fn3 Supplemental Award of Arbitrator Arthur J.
Flanagan dated November 14, 1989.
On February 20, 1990, Grinnell brought a petition by Order to
Show Cause in the Supreme Court, New York County pursuant to
New York Civil Practice Law and Rules 7511 (McKinney's 1980),
seeking review of the arbitrator's decision. On February 23,
1990, the Union removed the action to this court.
It is well-settled that the Court's authority to review a
decision by a labor arbitrator is extremely narrow and that the
Court's inquiry is limited to determining whether any ground
exists to vacate the award.*fn4 See, e.g., U.S. Steel &
Carnegie Pension Fund v. Dickinson, 753 F.2d 250, 252-53 (2d
Cir. 1985); McMahon v. RMS Elec., Inc., 695 F. Supp. 1557, 1559
(S.D.N.Y. 1988). Petitioner contends that the arbitration
awards here must be vacated for two reasons: (1) that it was
by a delay in the hearing and decision of the case; and (2) the
arbitrator failed to consider evidence pertinent and material
to the controversy. Both claims lack merit.*fn5
Although under some circumstances the failure to render an
award within the time prescribed by a collective bargaining
agreement may afford a basis to vacate an award, see, e.g.,
West Rock Lodge No. 2120 v. Geometric Tool Co., 406 F.2d 284,
286 (2d Cir. 1968); McMahon, supra, 695 F. Supp. at 1559;
Svoboda v. Negey Associates, Inc., 655 F. Supp. 1329, 1331-32
(S.D.N.Y. 1987), an award may not be vacated on that ground if
there has been no objection to the delay or if there is no
prejudice to the losing party caused by the delay. See McMahon,
supra, 695 F. Supp. at 1559. In this case, the agreement
required that a hearing be scheduled within two to fifteen
working days after a notice of a demand for arbitration, but
expressly provided that the time for a hearing may be extended
by the mutual consent of the parties. See 1985 Agreement at
Art. VI, cl. 2.*fn6 The Union has submitted affidavits
asserting that the hearings scheduled for January 13, 1988,
April 6, 1988, and March 27, 1988 were all adjourned on the
mutual consent of the parties, see Pizarro Aff. at ¶ 5, and
that the hearing scheduled for June 14, 1988 was adjourned for
the benefit of Grinnell because it had not received proper
notice. See id. at ¶ 6. With only one possible exception, the
petitioner has not denied these allegations.*fn7 Indeed, there
is no evidence in the record that Grinnell at any time objected
to any adjournment or requested an expedited hearing. Cf.
Government of India v. Cargill, Inc., 867 F.2d 130, 134 (2d
Cir. 1989); West Rock Lodge, supra, 406 F.2d at 286.
In any event, petitioner has demonstrated no prejudice
resulting from any alleged delay. Petitioner asserts only that
it was prejudiced because it believed that the April 6
settlement agreement would stop further damages from accruing.
However, since it is undisputed that petitioner knew that the
Union rejected the tentative settlement by mid-April,
see Pizarro Aff. at ¶ 20, any prejudice it suffered after that
time was a consequence of its own failure to seek an expedited
hearing. See Cargill, supra, 867 F.2d at 134. Moreover,
petitioner's claim of prejudice seems especially disingenuous
since it never even asserted any claims based upon the alleged
settlement agreement until October 1989, nearly three months
after the award was rendered, when it sought to modify the
award on that basis. See Pizarro Aff. at ¶ 22.
Nor does the circumstance that the arbitrator did not render
his decision within ten days after the hearing closed, as
required by the arbitration agreement, provide petitioner with
any basis to vacate the award. That circumstance was expressly
contemplated by the arbitration clause which provided that if
an award is not timely rendered, either the Union or the RAB
could demand in writing that the award be made within ten more
days and could terminate the arbitrator's office, if an award
was not rendered during that time period. See 1985 Agreement,
Art. VI, cl. 2. There is no dispute that petitioner never
demanded a decision from the arbitrator pursuant to that
clause. In any event, an arbitrator's failure to render an
award on a timely basis does not invalidate the award absent an
objection by or prejudice to the losing party, unless the
agreement provides that the timeliness of the decision is
jurisdictional. See, e.g., Cargill, supra, 867 F.2d at 286-87;
West Rock Lodge, supra, 406 F.2d at 286 No such circumstances
are present here.
Finally, petitioner contends that the arbitrator was guilty
of misconduct in failing to hear evidence "pertinent and
material" to the controversy. See 9 U.S.C. § 10(c) (1988).
However, it is clear that the arbitrator is the judge of the
relevance and admissibility of the evidence received in an
arbitration proceeding, see Hoteles Condado Beach, La Concha
and Convention Center v. Union De Tronquistas Local 901,
763 F.2d 34, 39 (1st Cir. 1985), and that an arbitration award will
be vacated on this ground only if the losing party shows that
he was denied a fundamentally fair hearing and consequently
suffered prejudice. See, e.g., Thomas C. Baer, Inc. v.
Architectural and Ornamental Iron Workers Local Union No. 580,
813 F.2d 562, 565 (2d Cir. 1987); Bell Aerospace Co. v. Local
516, 500 F.2d 921, 923 (2d Cir. 1974). Tested by that standard,
the awards here must be confirmed.
Petitioner argues that it was denied the opportunity to rebut
the testimony of a superintendent regarding the duties of the
superintendent, and the handyman but does not set forth with
any specificity what evidence, if any, it would have presented
or indeed what specific evidence it proffered to the arbitrator
which the arbitrator refused to hear. By contrast, respondent
has submitted an affidavit asserting that the superintendent's
testimony was not only subject to cross-examination, but also
that petitioner submitted evidence and documents which
petitioner claimed established that the position of handyman
was unnecessary, and which had the effect of refuting the
superintendent's testimony on that issue. See Pizarro Aff. at
In any event, the arbitrator's decision was clearly based
upon Grinnell's failure to comply with the unambiguous
provisions of the collective bargaining agreement that required
four weeks written notice to the Union of its intention to
abandon the handyman's position, as to which the
superintendent's testimony, or the refutation thereof, had no
relevance. Given that circumstance, there is no basis to vacate
the award on that ground.
For the reasons set forth above, Grinnell's motion to vacate
the arbitration awards is denied and the Union's cross-motion
to confirm those awards is granted. The Union is directed to
submit an appropriate judgment to the Court on notice to the
petitioner on or before July 31, 1991.
It is SO ORDERED.