The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER (1) GRANTING RESPONDENT'S MOTION TO
DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(B)(1), 12(B)(5), &
12(B)(6), DOC. NO. 5;
(2) DENYING AS MOOT PETITIONER'S MOTION TO CONFIRM PORTIONS AND TO
MODIFY, OR VACATE ) PORTIONS OF THE ARBITRATION AWARD DATED JULY
27, 2011, DOC. NO. 1; AND
(3) DENYING RESPONDENT'S) MOTION TO
COMPEL ARBITRATION, DOC. NO. 16
MOTION TO CONFIRM PORTIONS AND TO MODIFY, OR VACATE PORTIONS OF THE ARBITRATION AWARD DATED JULY 27, 2011, DOC. NO. 1; AND (3) DENYING RESPONDENT'S MOTION TO COMPEL ARBITRATION, DOC. NO. 16
This dispute stems from an arbitration proceeding between Hyatt Corporation, dba Hyatt Regency Waikiki Beach Resort and Spa ("Hyatt") and Unite Here Local 5 (the "Union") in which the Union asserted that Hyatt violated the parties' Collective Bargaining Agreement (the "CBA" or the "Agreement") by subcontracting work normally carried out by bargaining-unit employees. On July 27, 2011, Arbitrator John Kagel issued his decision (the "July 27 Decision") finding that Hyatt violated the CBA by hiring non-bargaining unit employees to perform non-renovation, non-woodwork general painting after laying off three bargaining-unit employees. The July 27 Decision required Hyatt to pay a $22,500 penalty to the A.F.L. Hotel and Restaurant Workers Trust Fund, remanded the issue of monetary damages to the parties to attempt to settle in the first instance, and retained jurisdiction to the extent the parties could not reach agreement.
On October 24, 2011, Hyatt commenced this action by filing a Motion to Confirm Portions and to Modify, or Vacate Portions of the July 27, 2011 Arbitration Award. In response, the Union filed a Motion to Dismiss and a Motion to Compel Arbitration. Based on the following, the court finds that the July 27 Decision is not a final and complete arbitration award subject to judicial review. As a result, the court GRANTS the Union's Motion to Dismiss, DENIES as moot Hyatt's Motion to Confirm Portions and to Modify or Vacate Portions of the July
27 Decision, and DENIES the Union's Motion to Compel.
The CBA, effective from July 1, 2006 through June 30, 2010, see Doc. No. 1-9, Pet'r Ex. 8 ¶ 2.01, outlines various rules regarding the circumstances under which Hyatt may hire subcontractors to perform work that might potentially be performed by bargaining-unit employees. On February 10, 2009, March 20, 2009, and August 27, 2010, the Union filed grievances asserting in conclusory fashion that Hyatt had subcontracted work in violation of the CBA. See Doc. Nos. 1-3-1-5, Pet'r Exs. 2-4. These grievances ultimately proceeded to arbitration.
Because the grievances did not describe the alleged violations in any detail, prior to the arbitration hearing Hyatt made several requests that Arbitrator Kagel order the Union to more particularly describe the alleged violations. See, e.g., Doc. Nos. 1-6-1-7, Pet'r Exs. 5-6. In response, Arbitrator Kagel ordered that
(1) the Union shall present its case first so that Hyatt would know the claims that must be addressed; (2) the Union has the burden to prove that the work of Union members was subcontracted to others; (3) the Union must "ASAP" describe in reasonable detail the dates, type and amount of alleged work that the Union claims was improperly subcontracted; and (4) the Union must disclose its witnesses to Hyatt. Doc. Nos. 1-6-1-7, Pet'r Exs. 5-6. As to Hyatt's request that "the Union must state [the] amount of damages claimed for such piece of alleged union work," however, Arbitrator Kagel ruled "not necessary yet; can find 'liability' first. If still necessary." Doc. No. 1-6, Pet'r Ex. 5.
At the start of the two-day hearing, Arbitrator Kagel again expressed his position that he would first determine whether Hyatt violated the CBA, and if so, then allow the parties to discuss settlement on their own before he fashioned a remedy:
Arbitrator Kagel: Further, if I find remedy is due or any remedy issues that are not presented in this matter in the next two days, that I can remand those to the parties and retain jurisdiction if there's any dispute. Correct?
Mr. Hiatt [Hyatt]: Our position on that respectfully is they should make their remedy claims in this proceeding so we don't have another one and we would be entitled to examine and cross-examine on that.
Arbitrator Kagel: I hear your position. I'm going to do what I just said.
The parties further affirmed that Arbitrator Kagel had authority to "determine what the issue is within the parameters of those given to [him] by the parties" at the conclusion of briefing. Doc. No. 1-8, Pet'r Ex. 7, Arb. Tr. at 11. The Union framed the issue as, "Has the Employer violated the Collective Bargaining Agreement by subcontracting work that normally would be performed by Bargaining Unit employees in the Maintenance Department; and if so, what shall the remedy be?" Doc. No. 1-2, Pet'r Ex. 1, Jul. 27 Decision at 1. In ...