Opinion
04 Civ. 11437 (GBD).
January 12, 2007
ORDER
Before the Court is The New York Hotel and Motel Trades Counsel's (the "Union") petition to confirm a labor arbitration award entered against O O Properties Corporation c/o S S Equities of New York and New Jersey d/b/a Townhouse 44 Hotel, MELA or Hotel Mela ("O O"), pursuant to an arbitration clause contained in a collective bargaining agreement between the partes. The petition to confirm the arbitration award is granted.
O O initiated a separate action, Case No. 06 Civ. 11442, seeking a declaration that the collective bargaining agreement expired by its terms, and an order permanently staying other arbitrations brought by the Union against O O. O O voluntarily dismissed that case, however, pursuant to Rule 41 of the Federal Rules of Civil Procedure.
The Union is the collective bargaining agent and representative for over 25,000 hotel and hospitality-industry employees in New York City. For several decades, the Union has entered into successive collective bargaining agreements with the Hotel Association of New York City, Inc. ("Hotel Association") — an organization representing many of the hotels in New York City. The collective bargaining agreement between the Union and the Hotel Association is know as the Industry Wide Agreement ("IWA").
Unless otherwise noted, the facts are taken from the Union's verified petition and the exhibits thereto.
An employer that is not part of the Hotel Association may sign what is called a "Me Too Agreement," binding that employer to the terms and conditions of the IWA. O O signed a Me Too Agreement in February 2002, binding it to the IWA. Pursuant to Article 57(B) of the IWA, when an employer that is party to the IWA ceases its business operations to undertake a major renovation that is not completed during the term of the IWA, the term of the IWA is automatically extended up to and through the completion date of the renovation, plus an additional 180 days thereafter.
Specifically, Article 57(B) reads:
In the event at any time during the term of this Agreement an EMPLOYER signatory hereto temporarily ceases its business operations in order to undertake a major renovation project which is not completed during the term of this Agreement, the EMPLOYER and UNION agree that in such case, the term of this Agreement shall be automatically extended up to and through the actual completion date of the major renovation project and for an additional one hundred and eighty (180) days thereafter.
In 2005, O O began a major renovation project at a commercial property it operated at 120 West 44th Street in Manhattan (the "Property"). Two of O O's maintenance employees at the Property were represented by the Union. According to O O, the Property remained open at all times during the renovation. The Union, however, believed that the Property was closed during the renovation, and it became concerned that O O was attempting to allow the IWA to expire, which was set to occur on June 30, 2006, then reopen without being bound by its terms. The Union eventually initiated an arbitration proceeding pursuant to Article 26 of the IWA.
Article 26 states, in part, that "[a]ll complaints, disputes or grievances arising between the parties hereto involving questions or interpretation or application of any clause of this Agreement, . . . shall be referred to a permanent umpire(s) to be known as the Impartial Chairman, and his/her decision shall be final and binding upon the parties hereto.
A hearing was held on April 27, 2006, during which the Union produced the testimony of only one witness, Marie Richard, a Union Business Agent. Richard testified that she saw, during her visit to the lobby of the Property, every indication of full-time construction work and no commercial activity. For example, she saw cement floors and walls with no paper, all of which were exposed with open pipes. She also counted fourteen construction workers, yet saw no guests or hotel employees. One construction worker told her that all the floors were unfinished and that a lot more work needed to be done. On cross-examination, however, Richard conceded that she did not investigate any floors above the lobby and that she had no idea of whether anyone was still residing at the Property. O O offered no witnesses or any other evidence during the hearing.
On June 14, 2006, the Impartial Chairman issued his decision. Despite noting some incompleteness in Richard's testimony, the Impartial Chairman held that the Union satisfied its burden of establishing by a preponderance of the evidence that the Property was closed during the renovations, triggering the automatic-extension provision in Article 57(B). Thereafter, O O made no attempt to timely vacate the arbitration award, despite having ninety (90) days to do so. See Local 802 v. Parker Meridien, 145 F.3d 85 (2d Cir. 1998). The Union then filed the instant petition to confirm the arbitration award.
O O has filed an "Answer" to the petition that essentially denied the allegations in the petition. But O O offered no substantive arguments as to why the arbitration award should not be certified.
Judicial review of a labor-arbitration award is very limited,Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001), and "a reviewing court is bound by the arbitrator's factual findings." Local 97, Intern. Broth. of Elec. Workers, A.F.L.-C.I.O. v. Niagara Mohawk Power Corp., 196 F.3d 117, 124 (2d Cir. 1999) (citation omitted). Indeed, if there exists "even a barely colorable justification" for the arbitrator's determination, the award should be upheld. 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 526-26 (2d Cir. 2005) (citation and quotation marks omitted). "It is only when the arbitrator strays from interpretation and application of the agreement and effectively `dispense[s] his own brand of industrial justice' that his decision may be unenforceable." Major League, 531 U.S. at 509 ( quoting United Steelworkers of Am. v. Enter. Wheel Car Corp., 363 U.S. 593, 597 (1960)).
In this case, based on the testimony of the Union's witness — the only evidence presented during the hearing — the Impartial Chairman determined that the Property was undergoing a major renovation and that the Property was closed during that renovation. This Court is not empowered to challenge these factual determinations. See, e.g., Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 214 (2d Cir. 2002) (stating that given the limited review of an arbitration award, "[t]he arbitrator's factual findings . . . are not subject to judicial challenge") (citation omitted). O O had every opportunity at the hearing to prove that the Property was in fact open during the renovation, yet it chose to produce no witnesses or any other evidence to that effect. Based on this record, the Court cannot say that the Impartial Chairman "dispensed his own brand of industrial justice" in finding for the Union.
Therefore, the petition to confirm the arbitration award is GRANTED.
SO ORDERED.