United States District Court, S.D. New York
CARL ORLANDO, JR., on behalf of himself and others similarly situated, Plaintiff,
LIBERTY ASHES, INC., et al, Defendants.
RICHARD J. SULLIVAN, CIRCUIT JUDGE.
Carl Orlando, Jr., Leonard Menna, Jr., Luis Acevedo, Quamaine
Powell, and Ramdeo Persad bring this collective action
alleging that their former employers - Liberty Ashes, Inc.
("Liberty Ashes") and its principals - violated
various federal and state labor laws. Now before the Court is
Defendants' motion to compel arbitration of
Plaintiffs' claims and to dismiss the complaint. For the
reasons that follow, Defendants' motion is DENIED.
Liberty Ashes is a waste management company operated by
individual Defendants Francesco Bellino, Michael Bellino,
Jr., Stephen Bellino, and Michael Bellino. (Compl,
¶¶ 4-27.) Plaintiffs are individuals who worked for
Liberty Ashes prior to October 2015. At all times relevant to
this suit, Local 890 of the League of International Federated
Employees (the "Union") served as the collective
bargaining representative for employees in Plaintiffs'
respective roles. (See Doc. No. 130 ¶ 4.)
beginning of 2012, Liberty Ashes and the Union signed a
collective bargaining agreement with an effective term of
January 1, 2012 to December 31, 2015 (the "2012
CBA"). (Doc. No. 136-6 (the 2012 CBA) ¶ 26.) The
2012 CBA provided that it applied "to all present and
future employees covered by this Agreement and employed by
[Liberty Ashes] during the term of this agreement."
(2012 CBA at 3.)
December 1, 2015, Plaintiff Orlando - then a former employee
of the company -initiated this action by filing the operative
complaint on December 1, 2015. (Doc. No. 1.) The complaint
sets out eight causes of action, accusing Defendants of (1)
failing to pay overtime in violation of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§ 201
et seq.; (2) failing to pay overtime in violation of
the New York State Labor Law, N.Y. Lab. L. §§ 650
et seq., (3) failing to provide the wage notices
required by New York Labor Law § 195; (4) retaliation in
violation of the FLSA; (5) retaliation in violation of the
New York Labor Law; (6) failing to pay the federal minimum
wage; (7) failing to pay the New York State minimum wage; and
(8) not paying Orlando's wages for the last three days of
his employment. (Compl. ¶¶ 56-91.) Plaintiff Menna
filed a consent-to-sue form on December 21, 2015. (Doc. No.
December 22, 2015 - after each of the Plaintiffs had
terminated his employment with Liberty Ashes - Liberty Ashes
and the Union executed a "Memorandum of Agreement"
regarding the continuing relationship between the two
entities (the "2015 MOA"). The 2015 MOA provided
that a "successor CBA" (the "2016 CBA")
would take effect on January 1, 2016 and was to run until
December 31, 2018. (Doc. No. 129-2(2015 MOA) ¶ 3.) The
2015 MOA made some changes to the compensation available to
Liberty Ashes employees (which are not relevant to this
action), but otherwise provided that "[a]ll other terms
and conditions of employment as contained in the expired CBA,
and any MOA executed between the parties after the execution
of the prior CBA, shall remain in full force and
effect." (Id. ¶ 4.) On January 8, February
1, and February 5, 2016, Plaintiffs Acevedo, Powell, and
Persad joined this action respectively. (Doc. Nos. 19, 23,
December 28, 2016 - more than a year after Orlando commenced
suit and more than ten months after the remaining Plaintiffs
joined this action - Liberty Ashes and the Union entered a
second memorandum of agreement (the "2016 MOA").
(Doc. No. 129-3 (2016 MOA).) The 2016 MOA modified the
grievance procedure set out in the 2016 CBA, adding the
following arbitration clause:
To ensure the uniform administration and interpretation of
this Agreement in connection with federal, state, and local
wage-hour statutes, all claims, accruing at any time, brought
either by the Union or Employees, concerning an
employee's hours and wages including, but not limited to,
claims arising under the Fair Labor Standards Act
("FLSA"), the New York Labor Law or Local Law
(collectively, the 'Covered Statutes'), in any
manner, shall be subject exclusively, to the grievance and
arbitration procedures described in the collective bargaining
agreement. There shall be no right or authority for any of
the above claims to be arbitrated on a class wide basis. The
costs of arbitration shall be borne equally between the Union
and the Employer and not the employee.
(2016 MOA ¶ 1.) In exchange for adopting this
arbitration clause, Liberty Ashes agreed to pay each
"Employee" a cash bonus and to give "all
Employees" a raise and an annual allowance for the
purchase of work boots. (Id. ¶¶ 2-5.)
moved to compel arbitration on March 6, 2017 (Doc. No. 98),
which Plaintiffs opposed on the grounds that they were no
longer employees of Liberty Ashes and therefore not bound by
the terms of the 2016 MOA. However, when briefing on that
motion revealed several factual disagreements, the Court
concluded that limited discovery was appropriate.
(See Doc. No. 118 at 2.) Accordingly, on January 31,
2018, the Court denied Defendants' motion to compel
arbitration without prejudice to renewal. (Id. at
1.) Defendants renewed their motion on May 25, 2018 (Doc. No.
128), and the motion was fully briefed on July 20, 2018 (Doc.
is a matter of contract, and parties may be forced to
arbitrate a dispute when they have previously agreed to
arbitration. AT & T Techs,, Inc. v. Commc'ns
Workers of Am., 475 U.S. 643, 648 (1986); see also
FSP, Inc. v. Societe Generate, 350 F.3d 27, 30 (2d Cir.
2003) ("Although the FAA expresses a strong federal
policy favoring arbitration, '. . . a party cannot be
required to submit to arbitration any dispute which he has
not agreed to so submit.'" (internal citation
omitted) (quoting United Steelworkers of Am. v. Warrior
& Gulf Navigation Co., 363 U.S. 574, 582 (1960)). To
determine whether a dispute is arbitrable, a court must
decide two questions: "(1) whether there exists a valid
agreement to arbitrate at all under the contract in question
... and if so, (2) whether the particular dispute sought to
be arbitrated falls within the scope of the arbitration
agreement." Hartford Accident & Indem. Co. v.
Swiss Reinsurance Am. Corp., 246 F.3d 219, 226 (2d Cir.
2001) (quoting Nat'l Union Fire Ins. Co. v. Belco
Petroleum Corp., 88 F.3d 129, 135 (2d Cir. 1996)). In
accordance with the Federal Arbitration Act
("FAA"), "any doubts concerning the scope of
arbitrable issues should be resolved in favor of
arbitration." Moses H. Cone Mem'l Hosp.
v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
the FAA, threshold questions of arbitrability presumptively
should be resolved by the court and not referred to the
arbitrator.. . . [But] the presumption may be overcome where
the parties 'clearly and unmistakably' agree to
arbitrate threshold questions such as whether the arbitration
clause applies to a particular dispute, or whether it is
enforceable." Doctor's Assocs., Inc. v.
Alemayehu,934 F.3d 245, 250-51 (2d Cir. 2019) (internal
citations omitted); see also All. Bernstein Inv. Research
& Mgmt., Inc. v. Shaffran,445 F.3d 121, 126 (2d
Cir. 2006) (internal quotations omitted) ("[T]he issue
of whether the parties agreed to arbitrate a matter is to be
decided by the courts and not the arbitrators, unless the
parties clearly and unmistakably provide otherwise.").
Importantly, though, "parties may not delegate to the
arbitrator the fundamental question of whether they formed
the agreement to arbitrate in the first place."
Doctor's Assocs., Inc., 934 F, 3d at 251.
"[W]hether an entity is a party to the ...