804 F.3d 270 (2nd Cir. 2015), 15-1002, United Brotherhood of Carpenters and Joiners of America v. Tappan Zee Constructors, LLC

Docket Nº:15-1002
Citation:804 F.3d 270
Opinion Judge:Wesley, Circuit Judge.
Party Name:UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Petitioner-Appellant, v. TAPPAN ZEE CONSTRUCTORS, LLC, Respondent-Appellee
Attorney:JAMES M. MURPHY, Spivak Lipton LLP, New York, N.Y. (Daniel M. Shanley, DeCarlo & Shanley, Los Angeles, CA and Gillian Costello, Spivak Lipton LLP, New York, NY, on the brief), for Petitioner-Appellant United Brotherhood of Carpenters and Joiners of America. WILLIS J. GOLDSMITH (Joshua Grossman, o...
Judge Panel:Before: RAGGI AND WESLEY, Circuit Judges.[1]
Case Date:October 20, 2015
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
SUMMARY

This appeal stemmed from the disputed assignment of certain construction work on the Tappan Zee Hudson River Crossing Project. UBC appealed the district court's conclusion that a May 4th arbitration award was not final and that the arbitrator did not exceed his authority by issuing a May 12th arbitration award. Under a heightened standard of deference, the court concluded that it must defer to... (see full summary)

 
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Page 270

804 F.3d 270 (2nd Cir. 2015)

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Petitioner-Appellant,

v.

TAPPAN ZEE CONSTRUCTORS, LLC, Respondent-Appellee

No. 15-1002

United States Court of Appeals, Second Circuit

October 20, 2015

Argued August 19, 2015

As corrected November 5, 2015.

Appellant United Brotherhood of Carpenters and Joiners of America, on behalf of itself and local unions Dockbuilders Local 1556 and Carpenters Local 279, appeals from a judgment entered on March 31, 2015, in the United States District Court for the Southern District of New York (Carter, J.). Before the District Court, Appellant sought (1) enforcement of an initial arbitration award issued on May 4, 2014; and (2) vacatur of a subsequent award issued on May 13, 2014. Appellee cross-petitioned seeking enforcement of the award issued on May 13, 2014. We hold that, absent any provision in the arbitration agreement to the contrary, the arbitrator had the authority to determine that he could issue a second decision reaching a result directly contrary to the earlier award. We therefore AFFIRM the District Court's judgment denying the Appellant's petition and granting the Appellee's cross-petition.

JAMES M. MURPHY, Spivak Lipton LLP, New York, N.Y. (Daniel M. Shanley, DeCarlo & Shanley, Los Angeles, CA and Gillian Costello, Spivak Lipton LLP, New York, NY, on the brief), for Petitioner-Appellant United Brotherhood of Carpenters and Joiners of America.

WILLIS J. GOLDSMITH (Joshua Grossman, on the brief), Jones Day, New York, NY, for Respondent-Appellee Tappan Zee Constructors, LLC.

Before: RAGGI AND WESLEY, Circuit Judges.1

OPINION

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Wesley, Circuit Judge.

This case arises from the disputed assignment of certain construction work on

Page 272

the Tappan Zee Hudson River Crossing Project (the " Project" ) to replace the Tappan Zee Bridge across the Hudson River in New York. The work is governed by the New York State Thruway Authority Project Labor Agreement Covering the Tappan Zee Hudson River Crossing Project (the " Project Labor Agreement" or " PLA" ).

Appellee Tappan Zee Constructors, LLC (" TZC" ) was awarded the contract to design and build the Project on December 17, 2012. After winning the contract, TZC divided assignments for three different categories of formwork between two local unions, Dockbuilders Local 1556 (" Dockbuilders" ) and Carpenters Local 279 (" Carpenters" ), both of which are represented by the Appellant, an umbrella labor organization called the United Brotherhood of Carpenters and Joiners of America (" UBC" ). The Dockbuilders were assigned the " formwork, up to and including the pile caps" (" pile formwork" ). Joint App. 133. The Carpenters were assigned the " formwork from the top of the pile caps up to and including the pier caps" (" pier formwork" ) and the " formwork for all columns including the main span tower forms" (" column formwork" ). Id.

The Dockbuilders disputed the assignment of the pier and column formwork to the Carpenters. Pursuant to Article 10, Section 3 of the PLA, all jurisdictional disputes on the Project are resolved under the National Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the " Plan" ), the purpose of which is to expeditiously resolve disputes over construction work assignments without strikes, work stoppages, or other disruptions. In accordance with the Plan, UBC submitted the dispute over the assignment of the pier and column formwork to the Plan Administrator on January 13, 2014. The following day, UBC requested and the Plan Administrator agreed to hold in abeyance any action on the dispute while the unions discussed settlement.

During settlement negotiations, the Dockbuilders and the Carpenters agreed that both the pier and column formwork should be assigned to the Dockbuilders. UBC informed TZC of this agreement on April 7, 2014, and on April 14, 2014, the Plan Administrator accordingly directed TZC to reassign the pier and column formwork from the Carpenters to the Dockbuilders.

TZC opposed the unions' settlement agreement. The Dockbuilders' hourly rate of $92.47 is considerably higher than the Carpenters' hourly rate of $70.11; reassignment of the pier and column formwork thus would cause the cost of the Project to increase by a total of nearly $7.3 million. Pursuant to the PLA, any jurisdictional dispute that remains unresolved by initial meetings " shall proceed to final and binding arbitration in accordance with the principles and procedures set forth in the rules of the Plan." Joint App. 109 (PLA Art. 10, Sec. 3(C)). Adhering to PLA procedure, TZC informed the Plan Administrator on April 15, 2014 that it disagreed with the proposed reassignment and requested that the dispute be submitted to arbitration. J.J. Pierson was designated arbitrator of the dispute under the Plan and conducted a hearing on April 28, 2014.

Pursuant to the Plan, in resolving a jurisdictional dispute such as the one here, an arbitrator is required to address three criteria: (a) " whether a previous agreement of record or applicable agreement . . . governs" ; (b) " if the Arbitrator finds that the dispute is not covered by an appropriate or applicable agreement . . . he shall then consider the established trade practice in the industry and prevailing practice in the locality" ; and (c) " if none of...

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