The opinion of the court was delivered by: CEDARBAUM
Local 205, Community and Social Agency Employees' Union, District Council 1707 AFSCME, AFL-CIO ("the Union") petitions for confirmation and enforcement as against Day Care Council of New York, Inc. ("DCC") of an arbitration award which was rendered on April 23, 1996 (the "Award") and arose from employee grievances against the Georgia-Livonia Day Care Center ("the G-L Center"). The G-L Center is closed and apparently insolvent.
While the Award does not explicitly direct DCC to provide any relief to the grievants and the arbitrator did not specify against whom certain parts of the Award are directed, the Union argues that the Award should be interpreted as against DCC. DCC responds that it was not a party to the arbitration provision of the collective bargaining agreement ("the CBA") between the Union and the day care center employers ("the Centers") that are the members of DCC, and therefore it did not agree to submit any disputes involving itself to arbitration.
Since the material facts are undisputed, an evidentiary hearing on the question of whether there is a valid agreement to arbitrate between the parties is not required in this case. See Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995); cf. McAllister Bros., Inc. v. A & S Transp. Co., 621 F.2d 519, 524 (2d Cir. 1980). For the reasons set forth below, the petition is denied.
New York City has a competitive bidding process whereby Centers must periodically bid to obtain and retain their contracts with the City. In addition, the City has the right to cancel a Center's contract if it engages in administrative or fiscal improprieties. As a result, each year new Centers take over the operations of existing day care centers. On about March 31, 1995, the G-L Center lost its contract with the City.
DCC is a non-profit, multi-employer bargaining association that represents approximately 300 member Centers (including, in the past, the G-L Center) throughout New York City in collective bargaining with the Union over the terms and conditions of employment at these Centers. DCC also provides voluntary mediation of labor grievances through its Labor Relations Assistance and Mediation Service. (Springer Aff. PP 2, 8.) According to Union representative C. Hetram Mohan, DCC also "has provided counsel . . . to each of its members who are involved in arbitration proceedings with the Union." (Mohan Aff. P 19.)
DCC does not play any role in operating the 300 independent, City-funded Centers or in implementing the City regulations that govern the individual Centers. Union members are employed by individual Centers and are not employees of DCC. DCC does not monitor, supervise, discharge or perform any of the customary roles of an employer. (Nadelbach Aff. P 6; Springer Aff. PP 4, 6.)
DCC negotiates the CBA "for and on behalf of those of its member Centers . . . that have authorized [DCC] to represent them for the purposes of collective bargaining" with the Union. (CBA, Ex. B to Verified Petition, at 1.) The CBA's preamble states that DCC is a "party" to the agreement and DCC signs the agreement as such; however, the agreement expressly states that DCC represents the Centers "for the purposes of collective bargaining." (Id.) The CBA contains "Grievance and Arbitration" provisions for handling "grievances." The "Grievance and Arbitration" provisions state in pertinent part:
Article XV. GRIEVANCE AND ARBITRATION
Sec. 1. A grievance is a dispute between parties as to the interpretation or application of any of the terms of this Agreement or the asserted breach thereof, including the discharge of any employee. . . .
Sec 2. Grievances shall be handled in accordance with the following procedure:
Step 1. An employee with a grievance may, alone or together with his/her Union representative, first discuss it with a representative of the ...