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Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 1 of 13 PageID #: 410

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

_____________________

No 13-CV-1391 (JFB) (GRB)
_____________________

PICK QUICK FOOD, INC.,



















VERSUS


Petitioner,





































UNITED FOOD AND COMMERCIAL WORKERS LOCAL 342,











Respondent.

___________________

MEMORANDUM AND ORDER

July 10, 2013

___________________

JOSEPH F. BIANCO, District Judge:




Petitioner Pick Quick Food, Inc. (“Pick
Quick” or “petitioner”) filed an action in
New York State Supreme Court, County of
Nassau seeking an interim and permanent
stay of the arbitration that respondent United
Food and Commercial Workers, Local 342
(the “Union” or “respondent”) requested on
behalf of grievant Anthony Colarusso
(“Colarusso” or “grievant”). The state court
granted petitioner’s request for a stay.
Respondent then removed this matter to
federal court. Respondent now brings a
motion to dismiss the complaint, to vacate
the stay, and to compel petitioner to proceed
to arbitration. For the following reasons, the
Court concludes that the stay should be
vacated and that the parties should proceed
to arbitration.


In particular, the Union has filed a
grievance and commenced an arbitration

proceeding on behalf of Colarusso, alleging
that he was not provided with certain
overtime and premium pay or other
entitlements, including vacation, personal,
and sick days, in alleged violation of the
Collective Bargaining Agreement (“CBA”)
between the Union and Pick Quick. Pick
Quick asserts that arbitration is unwarranted
because, although Colarusso participates in
the Union’s medical and pension plans as a
member of the Union, the CBA sets forth
those employment classifications covered by
the collective bargaining unit, which,
according to petitioner, does not include
supervisors like Colarusso; for this reason,
petitioner argues that Colarusso’s grievance
is not subject to arbitration. However, it is
uncontroverted
is a
member of the Union and an employee of
Pick Quick; (2) the CBA in question covers
the parties herein and members of the Union
who are employees; and (3) the CBA’s
broad arbitration clause clearly states that all

that (1) Colarusso

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 2 of 13 PageID #: 411



to

the

the

regarding

contributions

disputes
interpretation,
application, or enforcement of any of the
provisions of the CBA shall be resolved by
arbitration (except for disputes concerning
employer
funds
affiliated with the Union, which is not at
issue here). Furthermore, the language of the
broad arbitration provision does not, on its
face, limit itself solely to disputes between
the Union and employees of Pick Quick
and/or bargaining unit members; rather, the
language appears
include disputes
involving the Union and a Union member
and Pick Quick. In other words, the parties
have agreed that any disputes regarding the
interpretation of provisions of the CBA –
including whether a union member is a
supervisor under
the Agreement and
whether such supervisory status causes him
to be exempt from the CBA – should be
resolved by an arbitrator.

to

Thus,

the case must proceed

to
arbitration. The Court makes no ruling at
this juncture regarding respondent’s motion
to dismiss the complaint, pending the results
of the parties’ forthcoming arbitration.

I. BACKGROUND

A. Facts

several

Petitioner

operates
in

(“Pet’r’s Opp’n”)
serves

retail
supermarket stores
the counties of
Nassau, Brooklyn, and the Bronx. (Pet’r
Mem. of Law in Opp’n to Resp’t’s Mot. to
Dismiss Compl., Vacate Stay and Compel
Arbitration
at 2.)
Respondent
exclusive
bargaining representative for employees
working
seafood
departments of petitioner’s stores. (Id.) At
all times relevant to this dispute, both
petitioner and respondent were parties to a
CBA, the application and terms of which are
presently in dispute.

the meat

and

the

as

in



2

Of particular import to the parties is the
scope of Article I to the CBA. It states, inter
alia, as follows:

the

exclusive

such products

The Employer recognizes the Union
as
bargaining
representative of all its employees in
its stores herein, engaged in the
cutting, wrapping and selling of all
fresh and smoked meat, poultry, fish
and
customarily
handled in the Meat Department at
retail
its retail stores or
supermarkets, and such additional
classifications previously recognized
by the Employer (as set forth in
Schedule “A” herein),
the
purpose of collective bargaining in
respect to rates of pay, wages, hours
of employment or other better
conditions of employment.

in all

for

the

following

(Id. (citing Pet’r’s Opp’n Aff. of Benjamin J.
Levine (“Levine Aff.”) Ex. 1).) “Schedule
A,” as referenced in Article I of the CBA,
lists
classifications of
employees: a meat department head,
journeyman meat cutter, apprentice meat
cutter, delicatessen seafood department
head, weigher and wrapper delicatessen and
seafood clerks. (Id. (citing Levine Aff. Ex.
1).)

Colarusso first began working for Pick
Quick on September 12, 1983 as a meat
cutter. (Pet’r’s Opp’n at 3.) Over his near
thirty years with Pick Quick, Colarusso
worked in various capacities in its meat
departments. (Id.) The position of greatest
interest to the parties, for purposes of this
dispute, is Colarusso’s assumption of a
supervisory position in the meat department,
which occurred on July 24, 1990. (Id. (citing
Levine Aff. ¶ 6); Resp’t Mem. of Law in
Supp. of Mot. to Dismiss Compl., Vacate
Stay and Compel Arbitration
(“Resp’t
Mem.”) at 3.) The parties each refer to

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 3 of 13 PageID #: 412



Colarusso’s elevated position as that of
“meat supervisor.” (See Resp’t Mem. at 3-4;
Pet’r’s Opp’n at 3-4.) However, while the
parties appear to be in agreement that
Colarusso held the title of “meat supervisor”
during his time with Pick Quick, the parties
dispute whether it is the role of the Court or
the
determine whether
Colarusso was a supervisor for purposes of
the CBA and, if so, whether a holding of
such a supervisory position has the effect of
exempting him from the CBA.

arbitrator

to

B. Procedural History



Petitioner initially filed this action in the
Supreme Court of New York, Nassau
County, and on March 18, 2013, respondent
removed the action to this Court. On April 5,
2013, respondent requested a pre-motion
conference in anticipation of moving to
dismiss plaintiff’s complaint, as well as
cross-moving to compel arbitration and
vacate the state court’s imposed stay. The
pre-motion conference was held on May 1,
2013. On May 21, 2013, respondent filed its
motion to dismiss, vacate stay, and compel
arbitration.
its
opposition on June 5, 2013; respondent
replied on June 13, 2013. On June 18, 2013,
this Court heard oral argument and,
following petitioner’s request, allowed the
parties
letter
supplementing those issues addressed during
oral argument. On June 25, 2013, petitioner
submitted its letter, and on June 28, 2013,
respondent submitted its response.

to subsequently submit a

submitted

Petitioner


The Court has fully considered the

parties’ submissions.

II. THE PARTIES’ ARGUMENTS



The Court briefly summarizes

the
parties’ respective arguments. Respondent
asserts that the issue of whether Colarusso
constitutes a beneficiary under the CBA



3

and/or whether his supervisory status causes
him to be exempt from the CBA’s terms is a
determination best left to the arbitrator. This
is so, respondent contends, because (1) the
parties had a valid CBA with one another;
(2) Colarusso was an employee of Pick
Quick’s and a member of the Union, thus
falling under the CBA’s purview; (3) the
CBA contains a broad arbitration clause; and
(4) pursuant to the clause’s broad language,
disputes concerning the CBA’s terms, such
as this one, must proceed to arbitration. (See
Resp’t Mem. at 1-4.)

to

Petitioner argues

the contrary,
claiming that because Colarusso held a
position as a “meat supervisor,” he was not a
member of CBA’s “bargaining unit”;
therefore, the terms and conditions of his
employment are not governed by the CBA,
and any questions concerning such are to be
addressed by the Court. (See Pet’r’s Opp’n
at 1-2, 8-13.) To further bolster this position,
petitioner points to the fact that the Union
previously submitted a grievance with Pick
Quick complaining that “meat supervisor
[Colarusso] was observed performing
bargaining unit work.”
at 4.)
Specifically,
grievance
complained that Colarusso was assuming
tasks outside the scope of his job title,
namely,
the meat
(Id.) Because Pick Quick
department.
resolved this matter via settlement, paying
hourly wages to a meat cutter employee,
however, Pick Quick contends that the
settlement confirms that Colarusso’s status
as a “meat supervisor” is excluded under the
terms of the CBA.1

the Union’s

cutting meat

(Id.

in


1 The Court cannot speculate as to the reasons why
respondent may have ultimately decided to settle with
petitioner. Respondent notes, in connection with the
grievance filed six years ago, that it never admitted
that Colarusso was not a member of the bargaining
unit; rather, the issue, according to respondent, was


Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 4 of 13 PageID #: 413



to

arbitrator

In short, the question presented to this
Court is the following: is it for the Court or
determine whether
the
Colarusso, by virtue of his
“meat
supervisor” position, is exempt from the
provisions of the CBA? For the following
reasons, the Court concludes that this is an
issue falling within the arbitrator’s domain.

III. DISCUSSION



A. Legal Standard

The Second Circuit has

repeatedly
acknowledged that “federal policy strongly
favors arbitration as an alternative dispute
resolution process.” David L. Threlkeld &
Co. v. Metallgesellschaft Ltd., 923 F.2d 245,
248 (2d Cir. 1991). In light of this federal
policy, the Second Circuit encourages courts
to “construe arbitration clauses as broadly as
possible,” and to “compel arbitration unless
it may be said with positive assurance that
the arbitration clause is not susceptible of an
interpretation
the asserted
dispute.” Collins & Aikman Prods. Co. v.
Bldg. Sys. Inc., 58 F.3d 16, 19 (2d Cir. 1995)
(citation and
internal quotation marks
omitted). Indeed, “any doubts concerning
the scope of arbitrable issues should be
resolved in favor of arbitration.” Threlkeld,
923 F.2d at 248) (stating that although
“parties may not be compelled to submit a []
dispute
they have
contracted to do so, federal arbitration

to arbitration unless

that covers


that Colarusso allegedly was doing someone else’s
bargaining unit work. The Court does not believe that
this prior grievance is somehow dispositive of the
issue now before this Court. More importantly,
however, and for the reasons set forth in detail infra,
even if the settlement, in and of itself, solidifies
Colarusso’s supervisor status with Pick Quick, this is
not conclusive because it is unclear from the
language of the CBA whether a “meat supervisor” is
exempted from its provisions, a question that is
properly resolved by the arbitrator.



4

policy requires that ‘any doubts concerning
the scope of arbitrable issues should be
resolved in favor of arbitration’” (quoting
Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983))).

In determining whether a dispute should
go to the courts or to the arbitrator, the law
has offered the following guidance. Where
the underlying issue concerns “whether a
dispute between the parties is covered by the
arbitration agreement[, that] is for the courts
to decide.” Prudential Lines, Inc. v. Exxon
Corp., 704 F.2d 59, 63 (2d Cir. 1983).
Where a contract contains a broad
arbitration clause, however, courts generally
hold that “a court should compel arbitration,
and permit the arbitrator to decide whether
the dispute falls within the [arbitration]
clause.” Id. at 64. Indeed, where a broad
arbitration clause is in play, a presumption
of arbitrability attaches, and “‘in the absence
of any express provision excluding a
from
particular
arbitration, . . . only
forceful
evidence of a purpose to exclude the claim
from arbitration can prevail.’” AT&T Tech.,
Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 650 (1986) (alteration in original)
(quoting Steelworkers of Am. v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 582-85
(1960)). When making its determination as
to whether a case should proceed before the
court or the arbitrator, “a court must be ever
the strong national policy
mindful of
favoring arbitration of
labor disputes.”
Rochdale Vill., Inc. v. Public Serv. Emp.
Union, et al., 605 F.2d 1290, 1294 (2d Cir.
1979).

the most

grievance

B. Application

See Wilson

The Court begins with

the parties’
v.
Subway
agreement.
Sandwiches Shops, Inc., 823 F. Supp. 194,
198 (S.D.N.Y. 1993) (noting that “a court
must first determine whether an agreement

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 5 of 13 PageID #: 414



it arises under

to arbitrate exists and then decide whether
the dispute before
the
agreement and is arbitrable”). There is no
dispute here
that both petitioner and
respondent are parties to the CBA. There
also is no dispute that the CBA contains an
arbitration clause. Given its relevance to the
issues presented, the Court sets forth the text
in full:

Should differences arise between the
Union and its members and the
Employer as to the interpretation,
application or enforcement of any of
the provisions of this Agreement,
except differences which
arise
involving
the
to
Welfare, Pension, Annuity, Safety-
Education-Cultural or Legal Funds,
they
the
following manner. . . . [setting forth
the steps of the arbitral process]

shall be handled

contributions

in

(Resp’t’s Aff. in Supp. of Mot. to Dismiss
(“Resp’t’s Aff.”) Ex. B.)

Of particular relevance to the Court’s
analysis here is the language, “[s]hould
differences arise . . . as to the interpretation,
application or enforcement of any of the
provisions of this Agreement,” the matter
shall proceed through the arbitral process.
(Id.) Given that this clause covers nearly any
and all issues arising from the CBA, it is,
most simply stated, broad. See, e.g.,
Pathmark,
Inc. v. United Food and
Commercial Workers Union, Local 342, No.
08-cv-2217(JFB)(WDW),
2009 WL
2901623, at *4 (E.D.N.Y. Sept. 3, 2009)
(concluding
arbitration provision,
identical to that at issue in this case, was
broad); see also Mehler v. Terminix Int’l Co.
L.P., 205 F.3d 44, 49 (2d Cir. 2000) (finding
arbitration clause, providing for arbitration
of “any controversy or claim between [the
parties] arising out of or relating to” the
agreement, to be “a classically broad one”);

that



5

Collins, 58 F.3d at 20 (holding that a clause
“submitting to arbitration ‘[a]ny claim or
controversy arising out of or relating to th[e]
agreement,’ is the paradigm of a broad
in original)); In re
clause” (alterations
Winimo Realty Corp., 276 B.R. 334, 338
(S.D.N.Y. 2001) (concluding that clause
stating “[a]ny controversy or claim arising
out of or relating to this lease or the breach
there of . . . shall be settled by arbitration”
was a broad arbitration clause (citation and
internal quotation marks omitted)).

Having concluded that the arbitration
clause here is broad, a presumption of
arbitrability attaches. See Prudential Lines,
Inc., 704 F.2d at 63-64. This presumption is
not firmly affixed, however. Rather, the
party resisting arbitration bears the burden
of showing that the disputed issue should
not proceed to arbitration. Md. Cas. Co. v.
Realty Advisory Bd. on Labor Relations, 107
F.3d 979, 982-83 (2d Cir. 1997). The party
may do so by showing that “an express
provision
the collective bargaining
agreement excludes the particular grievance
from arbitration,” or by presenting “forceful
evidence of a purpose to exclude the claim
from arbitration.” Id. at 983.

in

Petitioner attempts to carry this burden
by directing the Court to both Article I and
Schedule A of the CBA. (See Pet’r Mem. at
7-9.) Specifically, petitioner argues that,
because Colarusso is not a member of the
collective bargaining unit, as defined in
Article I and Schedule A, his employment –
and its corresponding terms and conditions –
are not governed by the CBA; thus, the
CBA’s right to arbitration is inapplicable to
Colarusso.2 (Id. at 8-9.) The Court will
analyze this argument further.


2 Petitioner also points to Article 2 of the CBA as
dispositive which, similar to Schedule A, lists the


Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 6 of 13 PageID #: 415



for

that

attention

supermarkets and

Petitioner does not contest that the
parties have an agreement between them,
nor does petitioner dispute
the
agreement contains an arbitration clause.
Instead, the core of its argument is that this
provision does not apply
to Colarusso
because his supervisory status removes him
from the CBA’s scope. This is so, so
petitioner’s argument goes, because the
CBA defines those employees whom its
provisions encapsulate, namely, “employees
in [Pick Quick’s] stores [], engaged in the
cutting, wrapping and selling of all fresh
meat and smoked meat, poultry, fish and
such products customarily handled in the
Meat Department at retail in its retail stores
or
such additional
classifications previously recognized by the
Employer (as set forth in Schedule “A”
herein),
the purpose of collective
bargaining . . . .” (Pet’r’s Opp’n Levine Aff.
Ex. 1 (emphasis added).) Petitioner centers
its
Schedule A’s
classification of employees, which includes
a meat department head, journeyman meat
cutter, apprentice meat cutter, delicatessen
seafood department head, weigher and
wrapper delicatessen, and seafood clerks.
(See Pet’r’s Opp’n at 3; see also Pet’r’s
Opp’n Levine Aff. Ex. 1.) Petitioner asserts
that, because “meat supervisor”
is not
list of classifications,
included
Colarusso, by virtue of his
“meat

“Classification of Employees” for those employees of
include meat
Pick Quick;
department
cutters,
apprentice meat cutters, and seafood department
heads, weighers and wrappers, and seafood clerks.
However, respondent notes Article I’s language,
which specifically states that anyone who is “engaged
in the cutting, wrapping and selling of all fresh and
smoked meat, poultry, fish and such products
customarily handled in the meat department” are part
of the bargaining unit. Respondent asserts that
Colarusso is an undisputed employee of Pick Quick
and is involved in selling meat; he therefore is part of
the bargaining unit.

these classifications
head,

journeyman meat

upon

in

this



6

title,

is excluded from

supervisor”
the
CBA’s provisions, including its arbitration
requirement. (See Pet’r’s Opp’n at 8-9
(stating that “Colarusso is not a member of
the collective bargaining unit, which is
defined
collective bargaining
agreement as to include meat department
head, journeyman meat cutters, apprentice
meat cutters, and seafood department heads,
weighers and wrappers, and
seafood
clerks”).)

the

in

is excluded

Jumping from one logical step to the
next, petitioner claims that if Colarusso is
excluded from the CBA’s terms, then he
also
its arbitration
provision; thus, any dispute concerning his
employment must proceed before this Court
and cannot possibly go before an arbitrator.
(Id.)

from

that [Colarusso]

Respondent casts a different light upon
the same contractual agreement. Respondent
asks the Court to focus not on Schedule A’s
classification of employees, but rather, on
Colarusso’s status as a Union member,3 an

3 Although respondent asserts that “[t]here is no
dispute
is a Union member,”
petitioner contends this is not accurate. (Resp’t Mem.
at 6.) Petitioner takes the position that, although
Colarusso may have been receiving benefits out of
the Union’s multi-employer fund, this does not make
him a Union member per se. (See Pet’r’s Opp’n at 5
(stating that “Colarusso is only a member of [the
Union] in connection with his being able to receive
pension and welfare benefits out of the [Union’s]
multi-employer funds, which was done at the request
of [Colarusso] and [the Union]” (citing Levine Aff.
¶ 9)).) Petitioner further notes that Colarusso had
been promoted out of his bargaining unit position in
the meat department when he received the position of
“meat supervisor,” and the receipt of any employee
benefits out of the Union’s fund was not due to any
ongoing member status in the Union. (Id. at 3-5; see
also
that “being a union
member . . ., or participation in [the Union’s] benefit
and pension plans does not indicate that an individual
is a bargaining unit employee whose terms and
conditions of employment are governed by the


id. at 5-6 (stating

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 7 of 13 PageID #: 416



to

the broad

language of

employee of petitioner, and the fact that
Colarusso’s underlying claim concerns
issues
regarding his employment with
petitioner that are addressed under the CBA.
(See Resp’t Mem. at 6-7.) Respondent then
points
the
arbitration clause, which clearly states that
where “differences arise between the Union
and its members and the Employer as to the
interpretation, application or enforcement of
any of the provisions of this Agreement,”
the case may proceed to arbitration, unless
the difference concerns “contributions to the
Welfare,
Safety-
Education-Cultural or Legal Funds . . . .”
(Resp’t’s Aff. Ex. B.) This case is about a
difference between a Union member,
Colarusso, and his employer, Pick Quick; it
concerns provisions of the CBA; and it does
not involve matters involving contributions
to welfare, pension,
safety-
education-cultural or legal funds. (Resp’t
Mem. at 6-7, 8.) Thus, respondent argues
that the underlying claim may proceed to
arbitration. (Id.)

Pension, Annuity,

annuity,

In addition to their differing viewpoints
as to how the CBA should be read, the
parties diverge on another critical point: who
should be deciding whether Colarusso is
subject
the CBA?
Respondent says the arbitrator; petitioner
says the Court.

terms of

the

to

As to this point, the Court notes that, in
many ways, the parties are arguing past one
another. Petitioner contends that the Court
must simply look at the parties’ agreement,
and pursuant to its terms, supervisors are
excluded; thus, the Court need not debate
whether the judge or the arbitrator is the
most appropriate arbiter here, given that the
plain
removes

collective bargaining
an
employer and union”).)

agreement between

language of

the CBA



7

Colarusso from the ambit of its arbitration
provision. Respondent, in turn, argues that it
is first whether Colarusso constitutes a
beneficiary (by virtue of his supervisor
status) under the CBA, and next, whether
the Court or the arbitrator should determine
whether his supervisory status excludes him
from the CBA. For the following reasons,
the Court concludes that this is an area
properly left to the arbitrator’s domain.

and

that

clear

“meat

indisputable

To begin with, the Court concludes that
petitioner’s
supervisor”-exclusion
arguments – based upon the provisions of
the CBA and the facts of this case – are not
so
the
presumption of arbitration is eliminated. In
its supplemental letter submitted following
oral argument, petitioner cites several cases
to the Court which it contends support the
conclusion that the Court should determine
whether Colarusso is covered by the CBA,
and correspondingly, whether Pick Quick
can be compelled to arbitrate the underlying
dispute. (See Pet’r Letter of June 25, 2013.)
However, the cases to which petitioner
directs the Court are distinguishable from
the facts and circumstances of this case.

is covered under

For instance, petitioner cites United
Steelworkers of Am., Local No. 1617 v.
General Fireproofing Co., 464 F.2d 726
(6th Cir. 1972) and Allied Oil Workers
Union v. Ethyl Corp., 602 F. Supp. 555
(M.D. La. 1984), for the proposition that this
Court can decide whether alleged supervisor
Colarusso
the CBA.
However, in each of those cases, the CBA’s
language was far more explicit than that at
issue here. That is, in each case, the CBA
expressly made clear that supervisors were
not considered employees within
the
meaning of the agreement, and accordingly,
were not subject to its terms and provisions.
In Allied Oil, the collective bargaining
agreement defined an employee as:

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 8 of 13 PageID #: 417



the

the
indicates,

language otherwise
Unless
clearly
term
“employees,” as used herein, means
any or all and only those employees
of the [Company] included within
the unit appropriate for collective
bargaining purposes as defined in the
first paragraph of this Agreement.

602 F. Supp. at 558.

of

or

OIL

employees

The first paragraph of the Agreement in
Allied Oil stated
that “[this extended
agreement] . . .
between
ETHYL
CORPORATION, a corporation, . . . and the
ALLIED
WORKERS
UNION, . . . which excludes office, clerical,
professional and all supervisory employees
with the right to hire, promote, discharge,
discipline or otherwise effect changes in the
status
effectively
recommend such action.” Id. at 558-59.
Based on this provision, the district court
concluded that “it is clear that the contract
specifically exempts supervisors from the
term or definition of employees as that term
is used
the collective bargaining
agreement.” Id. at 559. Additionally, the
Court noted another
the
agreement, which stated that “[s]upervisory
positions above the rank of the highest
classification of each department shall not
be subject to the terms and conditions of this
Agreement . . . .” Id. at 559 n.15. The parties
have pointed to no such language in the
CBA at issue here.

section of

in

Similarly, in United Steelworkers, the
collective bargaining agreement, while
containing a similar arbitration clause as to
that at issue here, also expressly excluded
supervisors from those employees who were
subject to the agreement’s terms. As to
arbitration,
bargaining
agreement stated, “[should] any dispute or
disagreement arise between an employee
and the Company as to the meaning and

collective

the



8

the provisions of

application of
this
Agreement . . .” such dispute shall proceed
to arbitration, 464 F.2d at 728; as to those
employees covered under the agreement, it
provided that, “[as] used herein the term
‘employee’
includes all production and
maintenance employees of the Company . . .
and excludes supervisors . . . .” Id. at 727
(emphasis added). There being no dispute as
to the grievant’s supervisory status, the
court, faced with the question of whether the
dispute should or should not proceed to
arbitration, simply had to examine the plain
language of the agreement. In doing so, it
concluded that “the plain meaning of these
provisions is that the Company has agreed to
process any and all disputes involving its
‘employees’
grievance
procedures (including arbitration), but that
disputes concerning supervisory personnel
are not included.” Id. at 729; see also id.
(stating that “by its terms [the agreement]
does not impose upon the Company any
duty
to arbitrate a dispute concerning
discharge of a supervisor”).

through

the

listing

exclusionary
in
it

clear
is not present
that

language,
Such
this case.
however,
is because
Petitioner contends
those “additional
Schedule A,
classifications” of employees to which the
CBA
“meat
supervisor,” and therefore, has obviously
excluded such position from the agreement’s
provisions.

applies, does not

list

True, Schedule A does not explicitly list
“meat supervisor.” However, Article I,
which incorporates Schedule A’s additional
classifications, nowhere states that any such
positions not included in Schedule A’s list
are, by virtue of their absence, completely
excluded from the CBA’s coverage. Stated
differently, the Court is not convinced that
the only logical inference to be drawn from
Schedule A’s
supervisor-less”
classifications is that Pick Quick has chosen

“meat

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 9 of 13 PageID #: 418



to exclude any and all such supervisors from
the CBA’s terms.

it also

This is particularly relevant given that
Schedule A’s listing of employee positions
covered under the CBA is not the only part
of the CBA that defines those employees
covered under its provisions. Indeed, Article
I not only points
to “such additional
classifications previously recognized by the
Employer (as set forth in Schedule “A” []),”
but
references Pick Quick’s
“employees in its stores herein, engaged in
the cutting, wrapping and selling of all fresh
and smoked meat, poultry, fish and such
products customarily handled in the Meat
Department at retail in its retail stores or
supermarkets.” (Pet’r’s Opp’n Levine Aff.,
Ex. 1.) Petitioner does not dispute that
Colarusso is one of its employees employed
in its meat department. Thus, it is confusing
to the Court why this factor should not, at
the very least – in the absence of any
explicit exclusionary language indicating
otherwise – support the conclusion that
Colarusso arguably may be covered under
the CBA.

A review of the cases to which petitioner
directs the Court offers little additional
clarity. In all such cases, there was clear
language indicating that supervisors – or
whatever the respective employee’s position
was at issue in the case – were not subject to
a collective bargaining agreement’s terms.
See, e.g., Int’l Bhd. of Elec. Workers, AFL-
CIO, Local 1 v. GKN Aerospace N. Am.,
Inc., 431 F.3d 624, 629 (8th Cir. 2005)
(concluding that alleged grievance could not
be subject to arbitration because under
collective bargaining agreement’s plain
language, grievant did not constitute an
employee covered under the agreement as
the agreement limited its terms to employees
“who on or after its effective date [of
January 1, 2001] accepts a supervisory
position”; plaintiff had held a supervisory



9

role since 1998, and accepted a supervisory
position in 2000, thus predating the scope of
the agreement’s provisions); Md. Cas. Co. v.
Realty Advisory Bd. on Labor Relations, 107
F.3d 979, 983-84 (2d Cir. 1997) (although
collective bargaining agreement contained a
broad arbitration provision, court noted that
the clause was expressly limited by a
provision that “excludes from coverage
under the agreement ‘employees employed
by cleaning and maintenance contractors,’
except to the extent that such employees are
covered by the provisions of Article II of the
Agreement,” and that under Article II’s
language,
the employees were clearly
excluded from the agreement’s arbitration
provision); Gen. Tel. Co. of Cal. v.
Commc’ns Workers of Am., 402 F.2d 255,
256, 256 (9th Cir. 1968) (holding that
dispute could not be submitted to arbitration
because “agreement to arbitrate did not
include disciplinary procedures against a
supervisory employee for acts after he
became part of management,” and at least
one of the reasons for contested discharge
fell into this exclusion category).

Additionally, the Court’s position here is
not in conflict with these courts’ decisions.
In all such cases, the courts agree that it is
the role of the court to determine whether
the parties are bound to arbitrate (and if so,
to what extent), and what issues are in fact
arbitrable. That is precisely what the Court
is now doing. In doing so, it concludes that:
is a broad arbitration agreement
there
between
a
presumption of arbitrability; that the current
dispute – whether Colarusso’s alleged
supervisory status removes him from the
scope of the CBA’s provisions – falls within
i.e.,
the
“[d]ifferences . . . as to the interpretation,
application or enforcement of any of the
provisions of [the CBA]”; and that no
exclusionary language or other evidence
shows that Colarusso’s particular grievance

arbitration

triggering

clause’s

ambit,

the

parties,

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 10 of 13 PageID #: 419



is clearly excluded from arbitration, as the
CBA does not explicitly exclude him from
its purview.

to

encouragement

In making such a determination, the
the Second
Court remains mindful of
Circuit’s
“construe
arbitration clauses as broadly as possible,”
to “compel arbitration unless it may be said
with positive assurance that the arbitration
clause is not susceptible of an interpretation
that covers the asserted dispute,” Collins, 58
F.3d at 19 (emphasis added) (citation and
internal quotation marks omitted), and that
“‘any doubts concerning
the scope of
arbitrable issues should be resolved in favor
of arbitration,’” Threlkeld, 923 F.2d at 248
(quoting Moses H. Cone Mem’l Hosp., 460
U.S. at 24-25). When these principles are
examined in the context of this case, it is
clear that these issues should be resolved by
the arbitrator.

as

the

its members and
to

First, construing the arbitration provision
broadly, the underlying dispute – contesting
entitlements and benefits available
to
Colarusso by virtue of his Union-member
status – triggers, at least on its face, the
scope of the arbitration provision, which
applies to “[d]ifferences [that] arise between
the Union and
the
Employer
interpretation,
application or enforcement of any of the
provisions of this Agreement.” (See Resp’t’s
Aff. Ex. B.) The Union does not contest
Colarusso’s Union membership
status.
Further, petitioner does not dispute that
Colarusso was receiving certain employee
benefits out of the Union’s fund. (See Pet’r’s
Opp’n at 3-6, 9.) Thus, petitioner’s
argument, in sum, is that Colarusso does not
constitute a bargaining-unit employee under
the CBA; non-bargaining-unit employees
may still participate in the Union’s benefit
plans; therefore, the fact that Colarusso
receives certain benefits is not indicative of
his bargaining-unit-employee status. (See id.



10

at 9 (stating that “Colarusso’s participation
in various union benefit plans is irrelevant”);
id. at 10 (stating that “employees of the
thus not bargaining-unit
Union,
and
employees of
the employer, may also
participate
the union multi-employer
in
benefit plans”); id. at 11 (stating that
“former bargaining unit members who are
still employed by the employer, such as
Meat Supervisor Mr. Colarusso, may
participate in union benefit plans”).)

this

issue. Because

Although petitioner challenges whether
Colarusso’s receiving of Union benefits
makes him a true member of the collective
bargaining unit, and thereby subject to the
the Court need not
CBA’s provisions,
resolve
the CBA’s
arbitration provision is broad, and because
no exclusionary language or other evidence
indicates that Colarusso is excluded from the
CBA’s provisions, the Court need not reach
the merits of Colarusso’s collective-
bargaining-unit-employee status or those
benefits/entitlements to which he may or
may not be entitled; these issues ultimately
will be for the arbitrator to decide.4

that

Second, the Court is not convinced that
the arbitration provision is incapable of an
interpretation that covers the present dispute.

4 In its letter submitted following oral argument,
respondent further highlighted a point
it
emphasized during oral argument, namely, that
Colarusso does not constitute a “supervisor” as
defined by the National Labor Relations Act, a point
to which petitioner never offered a response, either at
oral argument or in its subsequent submission to the
Court. (See Pet’r Letter of June 28, 2013.) Under the
facts presently before the Court, it is not clear
whether Colarusso’s alleged supervisory status
removes him from, or still entitles him to, the benefits
available under the CBA, regardless of whether the
term “supervisor” is read according to petitioner’s
understanding or the National Labor Relations Act’s
understanding of the term. Accordingly, for reasons
set forth both supra and infra, the Court determines
that arbitration is appropriate.

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 11 of 13 PageID #: 420



See McAllister Bros. Inc. v. A&S Transp.
Co., 621 F.2d 519, 522 (2d Cir. 1980)
(stating that a court may not “compel
arbitration unless it may be said with
positive assurance that the arbitration clause
is not susceptible of an interpretation that
the asserted dispute” (emphasis
covers
added)). Upon broadly construing
the
arbitration clause here, the Court reads it as
plausibly extending to cover Colarusso and
his underlying claim. That is, the Court
reads the CBA as possibly extending to
Colarusso’s “meat supervisor,” Pick-Quick-
employee status, and its arbitration clause,
as potentially encapsulating his claim to
coverage by virtue of his employee status.
Because the Court cannot say with “positive
assurance” that the underlying arbitration
clause “is not susceptible of an interpretation
that covers the asserted dispute,” arbitration
is appropriate. Id.

Lastly, the law is clear that “any doubts
concerning the scope of arbitrable issues
should be resolved in favor of arbitration.”
Threlkeld, 923 F.2d at 248 (citation and
internal quotation marks omitted). Is it
crystal clear to the Court that Colarusso
constitutes an employee under the CBA’s
terms? It is not. Is it beyond certain that
Colarusso, and correspondingly, his claim, is
excluded from the terms of the CBA? Again,
it is not. Cf. Peerless Pressed Metal Corp. v.
Int’l Union of Elec. Radio and Mach.
Workers, AFL-CIO, 451 F.2d 19, 21 (1st
Cir. 1971) (in case involving issue of
whether arbitration was plainly barred by
bargaining
of
“employees” and exclusion of “supervisors,”
court stated that “[w]hile the construction of
the
confer
employee status for the purposes of [the
agreement’s employee coverage provision,
clarifying those eligible for arbitration] on
one who seeks to exercise seniority rights is
weak, we cannot conclude
is
impossible,” and therefore, arbitration was

agreement which would

agreement’s

inclusion

that

it



11

deemed appropriate because the grievant
“arguably possesses certain rights which
have accrued to him, qua employee, under
the collective bargaining agreement”). The
essence of the Court’s inquiry here is
whether the CBA is “suspectible of an
interpretation that covers” the grievance at
issue. It is not clear to the Court whether or
not a “meat supervisor” is covered under or
excluded from the provisions of the CBA. In
light of this, the Court resolves all pending
doubts in favor of arbitration and concludes
that the arbitrator is the appropriate arbiter
of the underlying dispute.

agreement with
provisions. However,

This Court’s decision is consistent with
the decision in The Players v. Local 6 of
Hotel, Restaurant & Club Employees and
Bartenders Union, No. 92 CIV. 0202 (JSM),
1992 WL 80628 (S.D.N.Y. Apr. 3, 1992).
The facts in The Players were nearly
identical to those at issue here – that is, the
grievant was a dues paying member and the
parties were bound by a collective
broad
bargaining
arbitration
the
employer argued that the grievant was a
supervisor and, thus, was not a beneficiary
of the collective barging agreement. Id. at
*3. The Court disagreed with the employer
and held that that the issue of whether the
union member was a supervisor and whether
his supervisory status caused him to be
exempt from
the Collective Bargaining
Agreement should be determined by the
arbitrator.
the Court
explained:

Id. Specifically,

a


[T]he Club maintains
that Mr.
Scalabrino was a supervisor and, as
such, cannot invoke the collective
bargaining
its
arbitration provision. However, in
light of the liberal construction given
arbitration
this
jurisdiction, the issues of whether
Mr. Scalabrino was a supervisor and

agreement

clauses

or

in

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 12 of 13 PageID #: 421



this

bargaining

supervisory

whether
status
caused him to be exempt from the
agreement
collective
should first be presented
to an
arbitrator. Cf. Ottley v. Sheepshead
Nursing Home, 688 F.2d 883, 891
(2d Cir. 1982) (affirming decision of
arbitrator that employee was not a
supervisor, thus subjecting discharge
to arbitration). These
issues of
contract interpretation that can be
adjudicated at arbitration, the method
agreed to by the parties.


is

Id. Thus, the district court denied the
employer’s motion to stay arbitration, and
granted the union’s motion to dismiss the
complaint and compel arbitration. Id.

that

this case,


In sum, the Court concludes, under the
the
circumstances of
the Court, should
arbitrator, and not
a
determine whether Colarusso
“supervisor” and,
if so, whether his
supervisory status causes him to be exempt
from the collective bargaining agreement.
In other words, under the broad arbitration
clause, whether or not Colarusso is part of
the bargaining unit is for an arbitrator to
decide based upon the collective bargaining
agreement and the facts of the case because
it goes to the merits and not whether the
matter
to arbitration.
Accordingly, the Court vacates the stay of
arbitration, and orders
the parties
proceed to arbitration.

should proceed

that



C. Staying the Litigation


The remaining issue is whether the
litigation should be stayed or dismissed
pending arbitration. In its motion papers,
respondent argues that the case should be
dismissed because all issues in the dispute
are subject to arbitration. At oral argument
respondent indicated that, in the alternative,



12

it requests a stay of the action. Petitioner
also indicated at oral argument that it would
like the action stayed. Pursuant to Section 3
of the Federal Arbitration Act (“FAA”),

involved


the court in which such suit is
pending, upon being satisfied that the
issue
in such suit or
proceeding is referable to arbitration
under such an agreement, shall on
application of one of the parties stay
the trial of the action until such
arbitration
in
accordance with the terms of the
agreement . . . .

been

had

has

is

to

an

the

that

dismiss

decision

however,


9 U.S.C. § 3. The district court may exercise
its discretion to stay the proceeding or may
conclude
litigation should be
dismissed. See Salim Oleochemicals v. M/V
Shropshire, 278 F.3d 90, 92-93 (2d Cir.
2002). A
has
implications for the speed with which the
arbitration of the dispute may begin because
a dismissal is reviewable by an appellate
court under Section 16(a)(3) of the FAA; a
stay,
unappealable
interlocutory order under Section 16(b) of
the FAA. Id. at 93. Staying the action is,
therefore, more likely to allow the matter to
proceed to arbitration in an expeditious
manner. Id. The Second Circuit urges courts
deciding whether to dismiss or stay litigation
when referring a matter to arbitration to “be
federal policy
mindful of
favoring
and
consider that “[u]nnecessary delay of the
arbitral process through appellate review is
disfavored.” Id. (citation and quotation
marks omitted).


agreements”

arbitration

liberal

The Court concludes that a stay is
appropriate in this case. As an initial matter,
during oral argument respondent requested,
in the alternative to a dismissal, a stay;
petitioner also requested a stay, rather than

this

Case 2:13-cv-01391-JFB-GRB Document 22 Filed 07/10/13 Page 13 of 13 PageID #: 422



IV. CONCLUSION



For the reasons set forth herein, the
Court grants respondent’s motion to vacate
the stay of arbitration and
to compel
arbitration. The Court will not make any
determination on the pending motion to
dismiss until the case has proceeded through
arbitration. Accordingly, the parties are
ordered to proceed to the CBA-governed
arbitration process. This action is stayed
pending the outcome of the arbitration.




SO ORDERED.



_________________
JOSEPH F. BIANCO
United States District Judge













Dated: July 10, 2013
Central Islip, NY





* * *

Pick Quick Foods, Inc. is represented by
Douglas Peter Catalano of Fulbright &
Jaworski, LLP, 666 Fifth Avenue, New
York, NY 10103. United Food and
Commercial Workers, Local 342
is
represented by Ira D. Wincott of the Law
Office of Ira D. Wincott, 166 East Jericho
Turnpike, Mineola, NY 11501.


dismissal. This Court recognizes that some
courts have held that where “none of
plaintiff’s claims remains to be resolved by
this court, . . . there is no reason to stay –
rather than dismiss – this action.” Mahant v.
Lehman Bros., No. 99 Civ. 4421(MBM),
2000 WL 1738399, at *3 (S.D.N.Y. Nov.
22, 2000); see also Mazza Consulting Grp.,
Inc. v. Canam Steel Corp., No. 08-CV-38
(NGG), 2008 WL 1809313, at *3-7
(E.D.N.Y. Apr. 21, 2008); Perry v. N.Y. Law
Sch., No. 03 Civ. 9221(GBH), 2004 WL
1698622, at *4 (S.D.N.Y. July 28, 2004).
However, in the case at hand, the Court
believes that the more appropriate action is
to stay the proceedings and to compel
arbitration in order to promote expeditious
resolution of this dispute. See Halim v.
Great Gatsby’s Auction Gallery, 516 F.3d
557, 561 (7th Cir. 2008) (“[T]he proper
course of action when a party seeks to
invoke an arbitration clause is to stay the
proceedings rather than to dismiss outright.”
(citation and
internal quotation marks
omitted)); see also Lloyd v. Hovensa, LLC,
369 F.3d 263, 269 (3d Cir. 2004) (“[T]he
plain language of § 3 affords a district court
no discretion to dismiss a case where one of
the parties applies for a stay pending
arbitration.”).




















13