A&A Maintenance Enterprise, Inc. v. Ramnarain, No. 20-459 (2d Cir. 2020)
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The Union represented the workers at the Old Brookville campus. In 2016, LIU contracted out that work to A&A, which became the employer of those workers and assumed an existing collective bargaining agreement, set to expire in August 2017. A&A and the Union entered into a successor CBA, which requires Union membership after 30 days but allows A&A to hire “substitute employees” “to fill in for employees who are out on disability or worker’s compensation or approved extended leaves.” The Union rejected a provision that would have permitted A&A to use non-union “temporary employees” at will for up to 90 days. The agreement has an arbitration provision.
Union members noticed new, non-union employees in late 2017. A&A indicated that they were "substitute employees." The Union determined that the number of claimed substitutes exceeded the number of members out on disability, worker’s compensation, and other approved leaves of absence and sent a written grievance. The Union framed the arbitration issue: whether A&A violated the CBA by utilizing temporary employees ... to perform bargaining unit work. A&A argued that the Arbitrator was confined to the issue proposed by the Union in its original grievance, which mentioned only “substitute employees.”
The arbitrator held that A&A had violated the CBA and issued an award of $1,702,263.81. The Second Circuit affirmed. The arbitrator did not exceed his authority. While worded differently, the issue that the arbitrator ruled on was substantially identical to the issue in the grievance letter. A party that has previously agreed to arbitrate cannot frustrate the process by refusing to agree on the form of the issue. The arbitrator’s interpretation of the collective bargaining agreement was more than colorable.
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