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March 16, 2000


The opinion of the court was delivered by: McMahon, J.


In two separate actions, Plaintiff Local Union No. 38 ("Local 38") brought claims under Section 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 185, to confirm three arbitration awards rendered under a collective bargaining agreement between Local 38 and Defendant Hollywood Heating & Cooling, Inc. ("Hollywood"), and to recover attorneys' fees and costs in connection with both actions. In the first action, Local 38 has moved for summary judgment; in the second, Hollywood has moved to dismiss, but concedes that its motion is properly treated as a motion for summary judgment, and Local 38 has cross-moved for summary judgment. For the reasons that follow, Local 38's motions in both actions are granted.


Article X, Section 1 of the Agreement provides that "[g]rievances of the Employer or the Union, arising out of interpretation or enforcement of this Agreement, shall be settled between the Employer directly involved and the duly authorized representative of the Union, if possible." In the event that a grievance cannot be so settled, Section 2 provides that the dispute "may be appealed by either party to the Local Joint Adjustment Board," which consists of representatives of the Union and of the local Employers' Association. Except in the case of a deadlock, "a decision of a local Joint Adjustment Board shall be final and binding." In the event of deadlock or failure to act by the Local Board (or where an Employer is not a party to the Labor Agreement in the area where the dispute arises), Section 3 provides for a right of appeal to the National Joint Adjustment Board.

(1) The July 1998 and September 1998 Awards

On June 22, 1998, Local 38 filed a grievance with the Local Joint Adjustment Board ("the Board"), alleging that Hollywood violated the CBA by hiring non-union employees. Charles Simmons, Hollywood's Vice President, was present at a hearing held before the Board on July 1, 1998. (Affidavit of Charles E. Simmons ¶ 17, attached as Exhibit A to Defendant's Memorandum of Law.) In a decision dated July 14, 1998, the Board found that Hollywood "violated Article V of the Agreement by hiring non-union personnel and not making Funds Contributions for hours worked in the Pension, Health, Welfare and Insurance Funds," and issued an award of $18,657.60. (Local Joint Adjustment Board decision dated July 14, 1998, attached as Exhibit D to Plaintiff's Notice of Motion.) The decision provided that Hollywood was to pay the award within 30 days from the decision date, but Hollywood did not do so.*fn2 Local 38 brought the instant action on August 17, 1998 to enforce the award.
On August 28, 1998, Local 38 filed a second grievance with the Board, also based on a charge of hiring non-union employees in contravention of the CBA, and another hearing was held on September 2, 1998. The Board's decision, dated September 3, 1998, indicates that no Hollywood representative attended that hearing, (Local Joint Adjustment Board decision dated September 3, 1998, attached as Exhibit G to Plaintiff's Notice of Motion), and Hollywood does not dispute that it was absent. The Grievance Form reveals that Local 38 attempted to resolve the grievance by phoning Hollywood on August 24 and leaving a message, and that Hollywood did not return the call. (Grievance Form dated August 28, 1998, attached as Exhibit E to Plaintiff's Notice of Motion.) While Simmons states that he has "no record of such a phone call ever being received" in connection with the September 2 hearing (Simmons Aff. ¶ 30), he does not dispute having received advance notice of the grievance and hearing. Furthermore, Local 38 has submitted a copy of a notice of the September 2 hearing dated August 31, 1998 and an Airborne Express receipt for that notice (though no evidence of receipt by Simmons). (Local Joint Adjustment Board letter dated August 31, 1998, attached as Exhibit F to Plaintiff's Notice of Motion.) Simmons does not dispute having received that letter.
In a decision dated September 3, 1998, the Local Board again issued an award in Local 38's favor, finding violations of Articles II, III, and V of the Agreement in Hollywood's hiring of non-union employees and failure to make contributions for hours worked in the Pension, Health, Welfare and Insurance Funds. (Local Joint Adjustment Board decision dated September 3, 1998, attached as Exhibit G to Plaintiff's Notice of Motion.) The Board awarded damages in the amount of $36,405.60, which Hollywood again did not pay. On October 13, 1998, Local 38 filed an Amended Complaint, seeking (1) confirmation of the July 1998 award; (2) confirmation of the September 1998 award; and (3) attorneys' fees and costs incurred by Local 38 in bringing this action.

On January 29, 1999, the NLRB, Region 34, Hartford, issued a determination (1) refusing to issue complaint on the first charge, because the allegedly unlawful conduct occurred more than six months before the charge was filed, in which circumstance section 10(b) of the NLRA precludes issuance of a NLRB complaint; (2) refusing to issue complaint on the second charge on the ground that the section 8 of the NLRA is not violated where, as here, the filing of grievances and a suit to confirm the arbitration awards was grounded on alleged breaches of the CBA and the union's "colorable claim" that the agreement was renewed; and (3) retaining for further processing Local 38's allegation that Local 38 "forced" Hollywood to remain a member of Local 38. (Letter dated January 29, 1999 from Jonathan Kreisberg to Steven Felsenfeld, Esq., attached as second Exhibit C to Plaintiff's Notice of Motion.)

Hollywood appealed that decision to the NLRB General Counsel in Washington, D.C. In a letter dated April 30, 1999, the NLRB Office of Appeals upheld the Acting Regional Director's determination for the reasons set forth in the January 29 letter. (Letter dated April 30, 1999 from Yvonne T. Dixon to Steven Felsenfeld, Esq., attached as second Exhibit D to Plaintiff's Notice of Motion.) Additionally, the Office of Appeals determined that the tolling of NLRA section 10(b) as a result of alleged coercion by Local 38 was unwarranted, even though the union may have provided misleading information regarding legal issues, because "the Employer could had [sic] obtained correct information from several public sources." The Office of Appeals also rejected Hollywood's contention that Hollywood had effectively terminated the CBA during its term through Hollywood's oral and written statements of repudiation, citing NLRB law for the rule that a party may not lawfully repudiate a section 8(f) "pre-hire" agreement, such as the CBA in this case, during its term.

(2) Attempted Renegotiation of the CBA and Subsequent Arbitration

As detailed in his affidavit, Simmons, in conversation with Bender and Columbo, repeatedly told Local 38 that he "repudiated" the CBA pursuant to Section 8(f) of the NLRA and no longer considered the agreement to be effective. And on at least four occasions, according to Simmons' affidavit, Simmons refused to sign a new agreement by Local 38 with a term running from July 1, 1998 through June 30, 2002. (Simmons Aff. ¶ 11, 13, 18, 20.) On April 3, 1999, Local 38's attorney sent Simmons a letter stating that pursuant to Article XIII, Section 1 of the CBA, the agreement continued in effect until negotiations for a new agreement were completed, and advising Hollywood that Local 38 wished to initiate negotiations for a new agreement. (Letter from Jeffrey S. Dubin to Charles E. Simmons dated April 3, 1999, attached as Exhibit 5 to Plaintiff's Notice of Motion.) On April 8, Hollywood's attorney sent a reply letter restating Hollywood's position that the CBA was a pre-hire agreement voidable under Section 8(f) of the NLRA, and asserting that no further negotiations were warranted given that Hollywood had already repudiated the CBA, and thus, it no longer existed. (Letter from Steven Felsenfeld to Jeffrey S. Dubin dated April 8, 1999, attached as Exhibit 6 to Plaintiff's Notice of Motion.) As provided under Article X, Section 8 of the CBA, which applies to deadlock over renegotiations of the CBA, Local 38 initiated arbitration before the National Joint Adjustment Board ("the National Board"). It is undisputed that Hollywood received notice of a hearing which was held before the National Board on September 13, 1999, and that Hollywood was not present at that hearing. On September 14, the National Board, taking into account Hollywood's refusal to participate in the CBA's renegotiation, rendered a decision ordering Hollywood to execute a new agreement, incorporating the same terms as the old agreement, to be effective from July 1, 1999 to April 30, 2002. (Decision of National Joint Adjustment Board dated September 14, 1999, attached as Exhibit 9 to Plaintiff's Notice of Motion.)

On November 1, 1999, Local 38 filed (1) a motion for summary judgment in the first suit, seeking confirmation of the July and September 1998 awards, and (2) a new complaint seeking to confirm the September 15 decision of the National Board. Hollywood has filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) in the second action, which it asks the Court to treat as a motion for summary judgment; Local 38 has filed a cross-motion for summary judgment in that suit. Each of the cases are dealt with in turn.

Hollywood further asks this Court to stay resolution of the second suit pending resolution of the first. This request is denied. Because the two cases involve disputes between the same parties under the same agreement, I will dispose of both of them in this opinion.

Standard for Summary Judgment

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255. To defeat summary judgment, the non-moving party must go beyond the pleadings and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).


The Second Circuit has held repeatedly that district courts are to accord arbitrators an exceptionally high degree of deference in reviewing labor arbitration awards. See, e.g., Local 97, Int'l Brotherhood of Electrical Workers v. Niagra Mohawk Power Corp., 196 F.3d 117, 124 (2d Cir. 1999); Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 31 (2d Cir. 1997) (citations omitted). Specifically, a district court's review is confined to two questions: first, "whether the arbitrator acted within the scope of his authority," and second, "whether the award draws its essence from the agreement or is merely an example of the arbitrator's own brand of justice." Local 1199, Drug, Hospital and Health Care Employees Union v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir. 1992) (citing United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36 (1987)). Under this standard, "an arbitration award must be upheld when the arbitrator `offer[s] even a barely colorable justification for the outcome reached.'" Wackenhut, 126 F.3d at 31 (quotation omitted). "The contractual theory of arbitration . . . requires a reviewing court to affirm an award it views as incorrect — even very incorrect — so long as the decision is plausibly grounded in the parties' agreement." Id. In sum,

refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards. United Steelworkers ...

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