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International Union of Operating Engineers, Local 465 v. ABM Government Services, LLC

United States District Court, E.D. North Carolina, Western Division

April 28, 2017




         This 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.


         Plaintiff 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 Womack.

         In 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.

         In 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 at 42].

         On May 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 Womack. Id.


         Plaintiffs 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).

         Arbitration "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).

         For 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).

         Neither 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.

         The 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).

         In 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, and ...

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