N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters & Joiners of Am. v. Ass'n of Wall-Ceiling & Carpentry Industries of N.Y., Inc.

• Decision Date: 20 June 2016
• Docket Number: Docket No. 15-1574-cv,August Term, 2015
• Citation: 826 F.3d 611
• Parties: New York City and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America, Plaintiff–Counter–Defendant–Appellee, v. Association of Wall–Ceiling and Carpentry Industries of New York, Inc., Defendant–Counter–Claimant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

826 F.3d 611

New York City and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America, Plaintiff–Counter–Defendant–Appellee
v.
Association of Wall–Ceiling and Carpentry Industries of New York, Inc., Defendant–Counter–Claimant–Appellant.^*

Docket No. 15-1574-cv
August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: April 19, 2016
Decided: June 20, 2016

Mark A. Rosen, McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, New York, for Defendant–Counter–Claimant–Appellant.

Andrew D. Roth, Bredhoff & Kaiser PLLC, Washington, District of Columbia (Adam Bellotti, Laurence Gold, Bredhoff & Kaiser PLLC, Washington, District of Columbia; James M. Murphy, Gillian Costello, Spivak Lipton LLP, New York, New York, on the brief), for Plaintiff–Counter–Defendant–Appellee.

Before: Sack, Wesley, and Lynch, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

Plaintiff-appellee New York City and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America (the “District Council”), a regional council of local unions, and defendant-appellant Association of Wall-Ceiling and Carpentry Industries of New York, Inc. (“WCC”), an employers' association, are parties to a collective bargaining agreement (the “CBA”). Separately, WCC is a party to an agreement (the “International Agreement”) with the District Council's parent “international” union, the United Brotherhood of Carpenters and Joiners of America (“UBC”). The CBA and the International Agreement contain inconsistent provisions governing the staffing of “two-man jobs”—i.e., jobs to be performed with two carpenters.¹ The District Council asserts

826 F.3d 613

that WCC must follow the CBA's two-man job provision, whereas WCC claims that its members may elect to invoke the International Agreement's provision to supersede that of the CBA.

This otherwise straightforward labor dispute gains a layer of complexity from the fact that, due to a prior consent decree settling a government civil suit under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) against the District Council, the CBA negotiated by the District Council and WCC could not go into effect without judicial approval. The parties' disagreement over the two-man job provisions arose after the district court (Richard M. Berman, Judge ) approved the CBA. An arbitrator ruled in favor of WCC, and the District Council brought this action seeking vacatur of the arbitral award. The district court granted summary judgment to the District Council, holding that the award did not draw its essence from the CBA, and further that it violated the district court's earlier order approving the CBA.

We conclude, to the contrary, that the arbitrator properly exercised his authority to interpret the CBA, and that his award did not violate the judicial order of approval. Accordingly, we VACATE the judgment and REMAND the case to permit the district court to revisit its decision to approve the CBA with the benefit of the arbitrator's interpretation of its two-man job provision.

BACKGROUND

I. The Consent Decree and the Monitorship of the District Council

Some historical background is necessary to place the district court's decision in context. The story begins in 1990, when the government brought a civil RICO action in the Southern District of New York against the District Council, alleging that it was controlled by organized crime, with predictable adverse consequences for non-mob-affiliated businesses and dissident union members. See generally United States v. Dist. Council of N.Y.C. & Vicinity of the United Bhd. of Carpenters , 409 F.Supp.2d 439, 440–41 (S.D.N.Y. 2006) (“District Council I ”), rev'd , 229 Fed.Appx. 14 (2d Cir. 2007) (“District Council II ”). The case proceeded to a bench trial, but the parties announced mid-trial that they had agreed to settle the case by Consent Decree. Judge Charles S. Haight, Jr., to whom the case was originally assigned, approved the Consent Decree on March 4, 1994. See id. at 441.

The Consent Decree's stated purposes were to ensure “that there should be no criminal element or La Cosa Nostra corruption of any part” of the District Council and that the District Council would “be maintained and run democratically.” Consent Decree at 2 (Docket No. 410).² To that end, the Decree called for the appointment of an Investigations and Review Officer (“IRO”) with investigative powers and the authority to review and veto District Council expenditures and changes to the union constitution or bylaws. The Decree also incorporated a number of rules governing the referral of union members to employers, and required the District Council to give notice to the government and to the IRO of any changes to those rules. The IRO and the government were given the power to veto such changes, subject to review by the district court on the question

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“whether the proposed change is consistent with the terms and objectives of this Consent Decree.” Id. at 17, ¶12. The requirement of notice to the government was to remain in force until seven years after the end of the IRO's term, a period that ended on June 6, 2006. United States v. Dist. Council of N.Y.C. & Vicinity of the United Bhd. of Carpenters , No. 90 Civ. 5722 (CSH), 2007 WL 2265584, at *2 (S.D.N.Y. Aug. 6, 2007).

At the time of the Consent Decree, the District Council's collective bargaining agreements with employers contained a “50/50 rule,” under which employers were free to select half of the carpenters on any particular job site from within the District Council membership, and the District Council referred the other half according to rules incorporated in the Consent Decree. See District Council I , 409 F.Supp.2d at 444. Those rules required the District Council to refer members from its out-of-work list (“OWL”) in the order in which they registered, except that an employer could continue to select carpenters beyond its 50% quota if those carpenters had worked for that employer within the past six months. See id .

In 2001, however, the District Council renegotiated its collective bargaining agreements with employers' associations, replacing the “50/50 rule” with a new “request system.” See id . at 444–48. The request system did away with the condition that, beyond the first 50% of the workforce at a job site, an employer could freely request only those carpenters who had worked for the employer within the past six months, effectively giving employers free rein to select all the carpenters on a job and all but eliminating the role of the OWL.³

Although the six-month condition was enshrined in the rules incorporated in the Consent Decree, the District Council did not inform the IRO or the government of its intention to abolish it. The government, asserting that the District Council had violated the Consent Decree's notice requirement, sought an order of contempt against the District Council and its president. The district court denied the motion, id. at 456, but we reversed, holding that the notice requirement did not exclude from its ambit changes to job referral rules that were effected through new collective bargaining agreements. District Council II , 229 Fed.Appx. at 18–19. On remand, and following briefing and discovery, the district court issued an opinion addressing the appropriate remedy for the District Council's contempt. United States v. Dist. Council of N.Y.C. & Vicinity of the United Bhd. of Carpenters , 592 F.Supp.2d 708 (S.D.N.Y. 2009) (“District Council III ”); see also United States v. Dist. Council of N.Y.C. & Vicinity of the United Bhd. of Carpenters , 618 F.Supp.2d 326, 332–35 (S.D.N.Y. 2009) (“Contempt Order ”).

As relevant here, the district court voided the request system and reimplemented the 50/50 rule, modified to cap at 67% (50% freely selected from within the union membership and an additional 17% if the selected carpenters satisfied the six-month condition) the proportion of a job site's workforce that could be selected by the employer. Contempt Order , 618 F.Supp.2d at 333–34 (¶ 3). The district court explained: “This resolution is fair and equitable because it recognizes contractors'

826 F.3d 615

economic and competitive concerns by allowing them to select most of the carpenter work force on any particular project, while restoring the [OWL] as a meaningful source of employment for carpenters seeking work.” District Council III , 592 F.Supp.2d at 722. The district court also reinstated the Consent Decree's notice requirement, Contempt Order , 618 F.Supp.2d at 334 (¶¶ 4–5), which, as noted above, had expired in 2006.

Meanwhile, the government continued to investigate the District Council. Its concern was no longer the influence of organized crime, but instead the practice of employers paying carpenters “off the books” at rates lower than those specified in collective bargaining agreements and failing to make contributions to the union's benefit funds. See United States v. Dist. Council of N.Y.C. & Vicinity of the United Bhd. of Carpenters , No. 90 Civ. 5722 (CSH), 2010 WL 2287008, at *2 (S.D.N.Y. June 3, 2010). That practice required the cooperation of dishonest local union shop stewards and District...