remedies against Cohen Brothers. Because National was found not to have breached the arbitrable labor contract, the arbitrator could not award remedies against National. The arbitrator had no power to transfer any part of Cohen Brothers' responsibility onto National.
9 U.S.C. § 11(b) provides for judicial modification of an arbitrator's award "Where the arbitrators have awarded upon a matter not submitted to them . . . ." The arbitrator's determination of National's contribution to Cohen Brothers' violation of the agreement was a "matter not submitted" to him. This court thus has clear authority to modify the award to the extent that it imposes liability on National.
National Cleaning's motion to modify the award by striking those portions that impose liability and obligations on National is granted, without prejudice to any action for contribution that Cohen Brothers may wish to institute in the proper forum.
Cross motions by Cohen Brothers and Union to vacate and affirm the award.
Cohen Brothers moves under 9 U.S.C. § 10(a)(4) to vacate the award, or alternatively under 9 U.S.C. § 11 to modify the award, on the ground that it did not agree to arbitration, is not a member of RAB, did not participate in the arbitration and did not employ McKenzie.
Party consent is the cornerstone of arbitration. "Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1960); Litton Financial Printing Div. v. NLRB, 115 L. Ed. 2d 177, 111 S. Ct. 2215, 2222 (1991). If Cohen Brothers did not consent to arbitration, the award against it cannot stand.
Cohen Brothers' consent to this arbitration is derived from its alleged membership in RAB, whose contract with the Union binds its member employers to arbitrate grievances. Cohen Brothers asserts that it is not a member of RAB and thus was not bound by this agreement to arbitrate. As evidence, it offers the affidavit of its president, Charles Cohen, to the effect that it has never been a member of RAB, and that it did not participate in the arbitration hearing as a party. (Cohen Aff. PP 3-4.) To support its contention that Cohen Brothers is a member of RAB, the Union submits purported RAB membership lists (Galligan Aff. at P 5 and Union Exs. B and C). Cohen Brothers in turn challenges whether these are in fact RAB membership lists.
The record presents conflicting evidence on whether Cohen Brothers was a signatory to the RAB agreement. This issue may be dispositive to the motion by Cohen Brothers to vacate or modify the award, and requires an evidentiary hearing for its resolution.
Nor can the Union's motion to affirm the award be decided before a hearing to resolve this issue.
National Cleaning's motion for summary judgment modifying the award to eliminate the finding of liability and award against it is granted. The Union's motion to affirm the award is denied. Cohen Brothers' motion to vacate the award requires a hearing, which is scheduled for November 12, 1993, at 10:00 a.m., on the issue of whether Cohen Brothers is a signatory to the collective bargaining agreement between the Realty Advisory Board on Labor Relations (RAB) and the Union.
Dated: New York, N.Y.
October 15, 1993
Pierre N. Leval, U.S.D.J.