United States District Court, E.D. North Carolina, Western Division
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 465, Plaintiff,
ABM GOVERNMENT SERVICES, LLC, Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on plaintiffs motion to confirm
and enforce the arbitration award and for attorney's
fees. [DE 11]. Defendant has responded, [DE 17], plaintiff
replied, [DE 19], and the matter is ripe for disposition. A
hearing was held before the undersigned on January 24, 2017,
in Raleigh, North Carolina. For the following reasons,
plaintiffs motion is granted.
brought this action pursuant to Section 9 of the Federal
Arbitration Act ("FAA"), 9 U.S.C. § 9, and
Section 301 of the Labor Management Relations Act
("LMRA"), 29 U.S.C. § 185. Plaintiff
International Union of Operating Engineers, Local 465 is an
unincorporated association, and a labor organization within
the meaning of the National Labor Relations Act
("NLRA"), 29 U.S.C. § 152(5), and Section
301(a) of the LMRA, 29 U.S.C. § 185(a). Plaintiff
represents employees at Fort Bragg's Womack Army Medical
Center ("Womack"), and is party to a collective
bargaining agreement with defendant which contains a
mandatory arbitration agreement. Defendant is a contractor at
January, 2015, defendant terminated the employment of union
steward Richard Concord. Plaintiff challenged the discipline
and termination of Mr. Concord, contending that the
termination violated the collective bargaining agreement
between the parties and the NLRA. Plaintiff pursued its
grievances to arbitration as provided by the collective
bargaining agreement. Defendant and plaintiff fully
participated in the arbitration and presented evidence and
arguments to the arbitrator. Neither party presented any
evidence that the Army would not allow Mr. Concord to work at
Womack or that it would be impossible for defendant to
reinstate Mr. Concord to his former position at the facility.
March, 2016, the arbitrator issued his decision. The
arbitrator found that defendant had violated the collective
bargaining agreement and the NLRA and issued an award
favoring plaintiff and Mr. Concord. In his award, the
arbitrator ordered defendant, inter alia, to
"rescind [Mr. Concord's] termination, remove it from
his record, pay him full back pay, and reinstate him to his
position with no loss of seniority or benefits." [DE 1-3
31, 2016, plaintiff filed a complaint with this Court,
asserting that defendant has failed to comply with the award.
[DE 1]. On September 30, 2016, plaintiff filed a motion to
confirm and enforce arbitration award and for attorneys'
fees, again asserting that defendant has not complied with
the award but has instead offered Mr. Concord a position at a
different hospital two hours away from Mr. Concord's
home, at Seymour Johnson Air Force base, and has refused to
give full back pay. [DE 11]. Defendant responded in
opposition, stating that it does not challenge the merits of
the award, but arguing that remand of the award to the
arbitrator is necessary for the limited purposes of
clarifying the reinstatement provision and method for
calculating back pay. [DE 17]. Defendant argues that the
award is ambiguous and that it specifically states that the
arbitrator retains jurisdiction for a reasonable period to
resolve any disputes over the application of the opinion and
award. Id. Finally, defendant argues that it is
impossible to reinstate Mr. Concord to his position at
motion seeks substantially the same relief that is sought in
its complaint, and therefore the Court will construe the
motion as one for summary judgment. A motion for summary
judgment may not be granted unless there are no genuine
issues of material fact for trial and the movant is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(a). In
determining whether a genuine issue of material fact exists
for trial, a trial court views the evidence and the
inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007).
"is a major factor in achieving industrial peace, a
vital force in establishing confidence and minimizing
confusion at all levels of the labor-management relationship
and a major constructive force in the collective bargaining
process itself." Richmond, Fredericksburg &
Potomac R. Co. v. Transp. Commc'ns Int'l Union,
973 F.2d 276, 278 (4th Cir. 1992) (internal quotations and
alterations omitted). Accordingly, "judicial review of
an arbitration award must be an extremely narrow
exercise." Long John Silver's Rests., Inc. v.
Cole, 514 F.3d 345, 351 (4th Cir. 2008). In fact, it is
"among the narrowest known to law." U.S. Postal
Serv. v. Am. Postal Worker's Union, AFL-CIO, 204
F.3d 523, 527 (4th Cir. 2000).
these reasons, a district court is not authorized to review
the merits of an arbitrator's decision, but "is
limited to determining whether the arbitrators did the job
they were told to do- not whether they did it well,
correctly, or reasonably, but simply whether they did
it." Remmey v. PaineWebber, Inc., 32 F.3d 143,
146 (4th Cir. 1994) (quotation and citation omitted). The
limited appellate review reflects a strong policy favoring
arbitration as an alternative to litigation. Id. at
145. The parties to an arbitration have bargained for the
arbitrator's, rather than the court's, decision, thus
"the reviewing court's task is to enforce the
bargained-for decision of the arbitrator and not to evaluate
the arbitrator's factual findings or legal
analysis." Richmond, Fredericksburg & Potomac
R.R. Co., 973 F.2d at 281. "Any more probing review
of arbitral awards would risk changing arbitration from an
efficient alternative to litigation into a vehicle for
protracting disputes." Wachovia Sees., LLC v.
Brand, 671 F.3d 472, 478 n.5 (4th Cir. 2012).
party disputes the propriety of the arbitrator's exercise
of jurisdiction to resolve this labor dispute. Additionally,
defendant does not dispute the merits of the arbitration
award, has stated that it is not seeking to vacate or modify
the award, and does not deny that Mr. Concord has not yet
been granted the relief he has sought. Instead, in opposing
plaintiff's motion to confirm the award, defendant has
stated that it only disputes the meaning of the award, and
has taken the position that the award is ambiguous and must
be remanded to the arbitrator for clarification.
issue before this Court, therefore, is whether the award
should be remanded for clarification. Parties to collective
bargaining agreements use arbitration because of "[t]he
need for speedy and final resolution of labor disputes,
preferably without recourse to the courts[.]" United
Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 71 n.7
(1981). "Parties may not seek a 'second bite at'
the apple' simply because they desire a different
outcome. To permit such attempts would transform a binding
process into a purely advisory one." Remmey v.
PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994).
Accordingly, the jurisdiction of a court to remand an
arbitration award for clarification is extremely limited, and
an award need not be remanded for clarification unless it is
ambiguous. See MCI Constructors, LLC v. City Of
Greensboro, 610 F.3d 849, 863 (4th Cir. 2010) (affirming
denial of motion to remand where award was not ambiguous);
Local 1829 of United Mine Workers of Am. v.
Island Creek Coal Co., 157 F.R.D. 380, 384 (N.D. W.Va.
1994). Moreover, "courts must approach remand to the
arbitrator with care lest the arbitrator believe that a
'remand' is equivalent to 'retrial' with an
expectation of an opposite result the second time
around." Raymond James Fin. Servs., Inc. v.
Bishop, 596 F.3d 183, 191 (4th Cir. 2010).
seeking clarification of the arbitration award, defendant
argues that the meaning of the arbitrator's commands to
reinstate Mr. Concord and give him back pay is ambiguous.
After a close review of the award, the Court does not agree,