Appeal from an order of the United States District Court for the Eastern District of New York, Weinstein, J., confirming an arbitration decision awarding, inter alia, a discharged employee back pay and the employee's union reasonable attorney's fees. After concluding that we have jurisdiction to decide this appeal despite the fact that the amounts of attorney's fees and union dues payable have not yet been determined, we reject the argument that the petition for removal to federal court was not timely. As to the merits of the appeal, we affirm the district court's order confirming the arbitration award.
Meskill and Winter, Circuit Judges, and McCurn, District Judge.*fn*
Plaintiff-appellant Synergy Gas Co. ("Synergy" or "the employer") appeals from an order of the United States District Court for the Eastern District of New York, Weinstein, J., that, inter alia, confirmed an arbitration decision awarding a discharged employee back pay and the employee's union reasonable attorney's fees and remanded the action to the arbitrator to determine the amount of attorney's fees and union dues payable. On appeal, Synergy argues that the district court erred in denying its motion to remand the action to state court and in confirming the arbitrator's award of attorney's fees and back pay because the arbitrator exceeded his authority in making such an award.
We conclude that the district court's order was final and appealable and that the petition for removal was timely. We affirm the district court's judgment.
This action has a rather long and complicated history and only the pertinent highlights will be summarized here. James Brown, who was represented by Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America ("Local 282" or "the union"), was discharged by Glover Bottled Gas Corp. (Glover), Synergy's predecessor, in October 1980. The collective bargaining agreement (the agreement) entered into by Glover and the union contained a broad arbitration clause, which provided for arbitration of "all disputes between the parties to this Agreement." J. App. at 14. Accordingly, the discharge was submitted to arbitration. On October 5, 1981, Arbitrator James Cashen issued an award, stating:
The Employer is directed to reinstate grievant retroactive to the date of discharge and is directed to provide grievant with a lump sum back pay award equal to the difference between what grievant would have received in full employment with Glover during the period in question minum any amounts actually earned from other employment or received as unemployment insurance during the period.
Although section 12(e) of the agreement required that the parties comply with the terms of any arbitration decision within fifteen days, the employer did not reinstate Brown or provide him with any back pay. Rather, the employer brought an action in New York State Supreme Court, Suffolk County, seeking to vacate the arbitration award because of alleged misconduct by Cashen. The state court action was unsuccessful and the award was confirmed. The confirmation was affirmed by the Appellate Division. Glover Bottled Gas Corp. v. Local 282, IBT, 119 A.D.2d 727, 501 N.Y.S.2d 394 (2d Dep't 1986).
The employer still refused to reinstate Brown or to pay him any back pay, however, allegedly because of subsequent events, including the decline of Brown's health. Local 282 then filed a new grievance seeking a determination of "[h]ow much money and what other relief are James Brown and Local 282 and [its] affiliated funds entitled to receive pursuant to the arbitration award of James Cashen dated October 5, 1981." See J. App. at 31.
The new action was assigned to Arbitrator Jesse Simons. On June 15, 1987, after four days of hearings, Arbitrator Simons issued an opinion and award directing Synergy to pay Brown back pay in the amount of $57,285 plus accrued interest, minus the amount of union dues that would have been deducted from Brown's wages, with the amount of said dues to be paid to Local 282. The award also directed Synergy to make certain contributions to the Local 282 Pension Trust Fund and to pay to Local 282 "a sum equal to the reasonable attorneys' fees incurred as a result of litigating the Employer's refusal to comply with Arbitrator Cashen's Award of October 5, 1981 in violation of Section 12(e) of the [agreement.]" Id. at 428. Arbitrator Simons explicitly retained jurisdiction to determine the amount of union dues and attorney's fees, and indicated that hearings to set these amounts would be scheduled as promptly as possible.
On June 23, 1987, the attorney for Local 282 wrote to the employer's attorney, requesting payment of $513 in union dues and $50,000 in attorney's fees pursuant to the Simons award. The employer did not agree to pay these amounts, and the union then contacted Arbitrator Simons and requested that he determine the amount of attorney's fees and union dues to be paid.
Synergy subsequently initiated a lawsuit in New York State Supreme Court, Nassau County, seeking to vacate the Simons award and to stay further arbitration proceedings. A stay of arbitration was granted on July 30, 1987. Local 282 then removed the action to federal court, and Synergy filed a motion to remand the proceeding to state court, arguing that the petition for removal was untimely because the Nassau County proceeding was a continuation of the prior Suffolk County action. In an oral decision on September 11, 1987, Judge Weinstein denied this motion, holding that the two state court actions were independent proceedings. See J. App. at 526.
Subsequently, both parties moved for summary judgment. By an oral opinion on January 25, 1988 followed by an order dated February 4, 1988, the district court confirmed the Simons award and remanded the issues concerning union dues and attorney's fees to the arbitrator, ...