Bragg v. Kalikow Family Partnership LP

Background

Robert Concepcion worked as a doorman and porter at a residential building owned and managed by Kalikow Family Partnership LP, c/o Kaled Management Corp. Local 32BJ, his union, represented him under a collective bargaining agreement among the Union, Kaled, and the Realty Advisory Board on Labor Relations, Inc. After a dispute involving Concepcion’s emails about a uniform-cleaning reimbursement request, prior employment grievances, and a newspaper article concerning Kaled Management, Kaled terminated him on April 19, 2018.

Local 32BJ filed a grievance claiming that Concepcion had been unjustly terminated. The parties submitted two questions to Arbitrator Noel Berman: whether Concepcion was discharged for just cause and, if not, what the remedy should be. The Arbitrator decided that Concepcion’s conduct was not gross insubordination and that the just-cause standard was not met. He nevertheless concluded that reinstatement would be inappropriate because Concepcion had shown disloyalty by circulating the newspaper article. He ordered Kaled to pay termination pay instead.

The Union later asked the Arbitrator to reconsider based on a collective bargaining agreement provision stating that an employee who was unjustly discharged “shall be reinstated without loss of seniority or rank and without salary reduction.” The Arbitrator denied reconsideration. Kyle Bragg, identified as the Union’s president, then petitioned to modify or vacate the award. The case was removed to the U.S. District Court for the Southern District of New York. Kaled and the Realty Advisory Board opposed vacatur and sought confirmation of the award.

Legal standard

The court reviewed the labor arbitration dispute under Section 301 of the Labor Management Relations Act and federal common-law principles governing labor arbitration awards. Judicial review of such awards is highly deferential, but an arbitrator may not impose a remedy that directly contradicts the express language of the collective bargaining agreement. An award must draw its “essence” from the agreement, meaning it must be grounded in the contract rather than in the arbitrator’s own sense of fairness or industrial justice. Applications to confirm or vacate arbitration awards are treated similarly to motions for summary judgment.

Analysis

The court held that the agreement plainly required reinstatement for an employee who was unjustly discharged. It determined that the word “shall” made reinstatement mandatory and that the agreement provided no exception allowing the arbitrator or Kaled to decide that reinstatement was unfair or inappropriate.

The court rejected Kaled’s argument that the arbitrator’s authority to award “appropriate” remedies permitted termination pay instead of reinstatement. That authority allowed appropriate remedies under the agreement, not any remedy the arbitrator considered suitable. The court also rejected the Realty Advisory Board’s reliance on the agreement’s termination-pay provision, reasoning that termination pay could be available but could not replace the required reinstatement remedy.

Because the Arbitrator awarded termination pay in lieu of reinstatement after finding that Concepcion had been unjustly discharged, the court concluded that the award did not draw its essence from the collective bargaining agreement and that the Arbitrator exceeded his authority.

Disposition

Judge Katherine Polk Failla vacated the arbitration award. The Clerk of Court was directed to terminate all pending motions, adjourn remaining dates, and close the case. The opinion does not separately state that any particular motion was granted or denied; its stated outcome is that the Award was vacated.