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International Union of Operating Engineers, AFL-CIO v. Wood Group Power Operations LLC

United States District Court, E.D. New York

March 27, 2017


          For Petitioner: Alexandra J. Howell, Esq., Robert T. McGovern, Esq. Archer Byington Glennon & Levine LLP

          For Respondent: Ann Odelson, Esq. Carroll McNulty & Kull, LLC, Samuel Zurik, Esq.



         This dispute arose after Wood Group Power Operations LLC (“Respondent”) terminated Thomas Rooney (“Rooney”), a member of Local 30, International Union of Operating Engineers, AFL-CIO, (“Petitioner”). After the parties arbitrated the dispute, Petitioner commenced this action to confirm the arbitration award against Respondent. (Pet., Docket Entry 1.[1]) This Court confirmed the award and entered judgment in favor of Petitioner on August 22, 2014. (Judgment, Docket Entry 29.) Currently pending before the Court are Petitioner's motion to enforce the August 22, 2014 judgment (Docket Entry 30) and Magistrate Gary R. Brown's Report and Recommendation dated February 10, 2017 (the “R&R”) recommending that this Court grant Petitioner's motion in part and deny it in part. (R&R, Docket Entry 40, at 13.) Specifically, Judge Brown recommends that Respondent be required to “pay a sum representing back pay for Rooney beginning with his March 14, 2012 termination through and including November 11, 2012, the date of the arbitration decision.” (R&R at 12.) He further recommends that the Court deny Petitioner's request for back pay from November 11, 2012 to May 2, 2014. (R&R at 9-11.) Finally, he recommends that Petitioner be awarded costs and attorneys' fees. (R&R at 13.) Petitioner and Respondent filed objections to the R&R. (Pet'r's Obj., Docket Entry 41; Resp't's Obj., Docket Entry 42.) For the following reasons, Petitioner's objections are OVERRULED, Respondent's objections are OVERRULED, and the R&R is ADOPTED AS MODIFIED. Petitioner's motion to enforce is GRANTED IN PART and DENIED IN PART as set forth below.


         The Court assumes familiarity with the facts of this case, which are detailed in Judge Brown's R&R and this Court's Order dated August 22, 2014. (See generally R&R; 2014 Order, Docket Entry 28.)

         Briefly, Rooney was employed by Respondent as an operating engineer and maintenance technician (“OEMT”), and his employment was terminated on March 14, 2012. (Order at 2.) Thereafter, Petitioner challenged Rooney's termination and sought relief from an arbitrator pursuant to the collective bargaining agreement between the parties (the “CBA”). (Order at 2.) On November 21, 2012, Arbitrator Randall M. Kelly (the “Arbitrator”) concluded that Respondent failed to comply with the CBA when it dismissed Rooney. (Arbitration Award, Pet. Ex. A, Docket Entry 1, at 5-26.) The Arbitrator directed that Rooney “be reinstated to his former position or its equivalent with full back pay for periods he was physically able to work and no loss of seniority” (the “Arbitration Award”). (Arbitration Award at 26.)

         The parties dispute whether Rooney was properly reinstated. Respondent claims that Rooney was reinstated in December 2012 but was not assigned to perform his OEMT duties because of medical restrictions. (Resp't's 56.1 Stmt., Docket Entry 19, ¶ 20.) Respondent alleges that Rooney did not cooperate during a physical examination before he returned to work and that Petitioner failed to respond to requests for information regarding Rooney's physical capabilities. (Resp't's 56.1 Stmt. ¶¶ 18-20.) Petitioner denies that Rooney was reinstated. (Pet'r's 56.1 Counterstmt., Docket Entry 23, ¶ 19.) Petitioner contends that Rooney was cooperative during the examination and claims that it is not aware of any outstanding requests for information regarding Rooney's physical limitations. (Pet'r's 56.1 Counterstmt. ¶ 20.) Petitioner alleges that, at that time, Rooney was “ready, willing and able to perform the essential functions of his job.” (Pet'r's 56.1 Counterstmt. ¶ 21.) Additionally, Petitioner alleges that if Rooney had physical limitations, Respondent failed to accommodate him; particularly, Respondent failed to offer him light duty work even though it had previously offered such work to Rooney and to other employees. (Pet'r's 56.1 Counterstmt. ¶ 21.) Petitioner submitted grievances related to Respondent's failure to reinstate Rooney, which were denied by Respondent on December 27, 2012. (Ford Decl., Docket Entry 14-3, ¶¶ 32-33.)

         On April 25, 2013, Petitioner filed a Petition to confirm the Arbitration Award. (See, Pet.) The award was confirmed on August 22, 2014, and judgment was entered the same day. (See 2014 Order; See, Judgment.) In the interim, on May 2, 2014, Respondent terminated Rooney a second time. (Howell Decl., Docket Entry 30-1, ¶ 10.) Petitioner filed a complaint with the National Labor Relations Board (the “NLRB Complaint”) regarding the second termination, and the parties entered into a settlement agreement to resolve that case. (Howell Decl. ¶¶ 18-19.)

         On May 4, 2016, Petitioner filed a motion to enforce the judgment entered in this matter and requested that the Court award Rooney back pay from March 14, 2012 (the first termination) to May 2, 2014 (the second termination) totaling $145, 761.11, interest of $20, 306.72 and attorneys' fees and costs. (Pet'r's Mot., Docket Entry 30; Pet'r's Br., Docket Entry 31, at 2.) Respondent opposed the motion on June 3, 2016, and Petitioner filed its reply on June 17, 2016. (Resp't's Opp., Docket Entry 33; Pet'r's Reply, Docket Entry 34.)

         On October 13, 2016, the undersigned referred the motion to Judge Brown for a report and recommendation on whether the motion should be granted. (Referral Order, Docket Entry 39.) Judge Brown issued his R&R on February 10, 2017, recommending that this Court grant Petitioner's motion in part and deny it in part. (See, R&R.) As noted above, Petitioner and Respondent filed objections to the R&R.

         Respondent has never made any payments to Rooney pursuant to the Arbitration Award or the Court's judgment. (R&R at 4.)

         THE R&R

         Judge Brown's analysis separated Petitioner's requested relief into two categories--back pay from the March 14, 2012 termination to the November 11, 2012 Arbitration Award (“Pre-Decision Back Pay”) and back pay from November 12, 2012 to the May 2, 2014 termination (“Post-Decision Back Pay”).[2](R&R at 8-9.) Regarding Pre-Decision Back Pay, Judge Brown concluded that Respondent has offered no explanation for its failure to comply with the Arbitration Award. (R&R at 8.) Judge Brown found that, contrary to Respondent's arguments, the Arbitrator addressed Rooney's prior injury and physical limitations in his decision and still awarded back pay. (R&R at 8.) Judge Brown also found that Respondent had an ...

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