HICHEZ v. UNITED JEWISH COUNCIL OF THE EAST SIDE (2020)

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered September 30, 2018, which denied defendant's motion to compel arbitration and stay this class action, unanimously affirmed, without costs.

Plaintiffs assert wage-hour and wage-parity claims under the Labor Law, and breaches of contracts requiring defendant's compliance with the Home Care Worker Wage Parity Act (Public Health Law § 3614–c), and the New York City Fair Wages for Workers Act (Administrative Code of City of N.Y. § 6–109). Defendant moved to compel arbitration under the terms of a memorandum of agreement (MOA) between defendant and 1199 SEIU United Healthcare Workers East (Union), which became effective December 1, 2015.

Plaintiffs are not prohibited from bringing this action by the arbitration provision in article XXVI of the collective bargaining agreement (CBA) between defendant and the Union, which “limits mandatory arbitration to disputes between an employee and employer concerning the interpretation or application of [a specific] term of the CBA” (Lorentti–Herrera v. Alliance for Health, Inc., 173 A.D.3d 596, 596, 104 N.Y.S.3d 103 [1st Dept. 2019] [internal quotation marks omitted] )). Here, plaintiffs assert claims outside of the CBA.

Nor are plaintiffs bound by the new article “hereby created” by the MOA that was intended to govern wage-hour and wage-parity disputes “exclusively.” Although the MOA requires arbitration of the statutory claims asserted in the complaint (see Tamburino v. Madison Sq. Garden, LP, 115 A.D.3d 217, 223, 980 N.Y.S.2d 83 [1st Dept. 2014]; see Abdullayeva v. Attending Homecare Servs., LLC, 928 F.3d 218, 222 [2d Cir. 2019]), plaintiffs “were no longer defendant's employees when it was executed, they were not parties to that agreement, and there is no evidence that the Union was authorized to proceed on their behalf” (Konstantynovska v. Caring Professionals, Inc., 172 A.D.3d 486, 487, 103 N.Y.S.3d 364 [1st Dept. 2019]; see Lorentti–Herrera, 173 A.D.3d at 596, 104 N.Y.S.3d 103; Chu v. Chinese–American Planning Council Home Attendant Program, Inc., 194 F. Supp. 3d 221, 228 [S.D. N.Y. 2016]). As former employees or retirees “whose work has ceased with no expectation of return,” plaintiffs were not members of the bargaining unit represented by the Union (Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S. 157, 172, 92 S.Ct. 383, 30 L.Ed.2d 341 [1971]).

Contrary to defendant's contention, the new article in the MOA does not “clearly and unmistakably” delegate the determination of arbitrability to the arbitrator. It neither incorporates the arbitration procedures of CBA article XXVI nor adopts the procedural rules of the American Arbitration Association.