16-1082-cv (L)
Time Warner Cable of N.Y.C. LLC v. Int’l Bhd. of Elec. Workers

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of March, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
----------------------------------------------------------------------
TIME WARNER CABLE OF NEW YORK CITY LLC,
                 Plaintiff-Appellee-Cross-Appellant,

                               v.                                        Nos. 16-1082-cv (L)
                                                                              16-1156-cv (XAP)
INTERNATIONAL         BROTHERHOOD            OF
ELECTRICAL WORKERS, AFLCIO, LOCAL UNION
NO. 3,
         Defendant-Appellant-Cross-Appellee,

NATIONAL LABOR RELATIONS BOARD,
         Intervenor-Defendant-Cross-Appellee,

DEREK JORDAN, individually and in his capacity as
Business Agent of Local 3,
                 Defendant.
----------------------------------------------------------------------




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APPEARING FOR PLAINTIFF-                 KENNETH A. MARGOLIS, Kauff McGuire &
APPELLEE-CROSS-APPELLANT:                Margolis LLP, New York, New York.

APPEARING FOR DEFENDANT-                 MARTY G. GLENNON, Archer, Byington,
APPELLANT-CROSS-APPELLEE:                Glennon & Levine LLP, Melville, New York.

APPEARING FOR INTERVENOR-                SARAH POSNER, Trial Attorney (Richard F.
DEFENDANT-CROSS-APPELLEE:                Griffin, Jr., General Counsel, Jennifer Abruzzo,
                                         Deputy General Counsel, Barbara O’Neill,
                                         Associate General Counsel, Nancy E. Kessler
                                         Platt, Deputy Associate General Counsel,
                                         William G. Mascioli, Assistant General
                                         Counsel, Dawn L. Goldstein, Deputy Assistant
                                         General Counsel, Kevin P. Flanagan,
                                         Supervisory Attorney, on the brief), National
                                         Labor Relations Board, Washington, D.C.

      Appeal from a judgment of the United States District Court for Eastern District of

New York (Jack B. Weinstein, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on March 31, 2016, is AFFIRMED.

      Defendant International Brotherhood of Electrical Workers, AFL-CIO, Local

Union No. 3 (the “Union”) here appeals from so much of a judgment as confirmed an

arbitral award of money damages to plaintiff Time Warner Cable of New York City LLC

(“TimeWarner”) for what the arbitrator found to be the Union’s violation of the no-strike

provision in the parties’ 2013 collective bargaining agreement (“CBA”). TimeWarner

cross-appeals the district court’s vacatur of that part of the arbitral award prohibiting

future strikes. On appeal from the confirmation or vacatur of an arbitral award under

Section 301 of the Labor Management Relations Act (“LMRA”), see 29 U.S.C. § 185, we

review the district court’s legal conclusions de novo and its factual findings for clear

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error, see National Football League Mgmt. Council v. Nat’l Football League Players

Ass’n, 820 F.3d 527, 536 (2d Cir. 2016). We assume the parties’ familiarity with the

facts and record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.

1.     Subject-Matter Jurisdiction

       Relying on a 2015 National Labor Relations Board (“NLRB”) decision as

deeming the CBA here at issue unenforceable, the Union contends that there was no

contract over which the district court could exercise subject-matter jurisdiction under the

LMRA. See 29 U.S.C. § 185(a) (conferring subject-matter jurisdiction over “[s]uits for

violation of contracts between an employer and a labor organization”). The argument is

at odds with the Union’s own jurisdictional statement to this court, which states that

“[t]he District Court had jurisdiction under 28 U.S.C. § 1331 and . . . 29 U.S.C. § 185 et

seq.” Def.-Appellant’s Br. at 2. The point merits little discussion in any event because

the purported invalidity of the CBA is an “affirmative defense” that the district court was

empowered to adjudicate “consistent with [LMRA] § 301(a),” not a jurisdictional defect.

Textron Lycoming Reciprocating Engine Div., Avco Corp. v. United Auto., Aerospace,

Agric. Implement Workers of Am., Int’l Union, 523 U.S. 653, 658 (1998). Thus, the

district court properly exercised subject-matter jurisdiction here.

2.     Public Policy

       The Union maintains that confirmation of the damages award violates federal

public policy in favor of its members’ right to strike. See National Labor Relations Bd.


                                              3
v. Starbucks Corp., 679 F.3d 70, 77 (2d Cir. 2012) (stating that National Labor Relations

Act guarantees employees’ “right to self-organization . . . and to engage in other

concerted activities for the purpose of collective bargaining or other mutual aid or

protection” (quoting 29 U.S.C. § 157)). A union, however, may waive that right. See

Mastro Plastics Corp. v. Nat’l Labor Relations Bd., 350 U.S. 270, 279–80 (1956); accord

National Labor Relations Bd. v. G & T Terminal Packaging Co., Inc., 246 F.3d 103, 110

n.7 (2d Cir. 2001). It did so here in its 2009 CBA, and that waiver was reincorporated

in the 2013 CBA.

       The Union contends that the 2013 waiver is without force because (1) the NLRB

later concluded that TimeWarner and the Union had reached no “meeting of the minds”

as to the 2013 CBA, J.A. 427; and (2) in any event, the no-strike clause did not cover

orderly protests of unfair labor practices.   The first argument fails because, as the district

court found, the Union waived it by (1) expressly asking the arbitrator to determine its

liability under the no-strike clause of the 2013 CBA, and (2) lodging no challenge to the

CBA until 5 months after the arbitrator issued an adverse interim award.                   See

Sokolowski v. Metro. Transp. Auth., 723 F.3d 187, 191 (2d Cir. 2013) (stating that party’s

“participat[ion] in arbitration proceedings without making a timely objection” may evince

waiver of right to object to arbitrator’s authority (internal quotation marks omitted));

Opals on Ice Lingerie v. Bodylines, Inc., 320 F.3d 362, 368 (2d Cir. 2003) (“If a party

willingly and without reservation allows an issue to be submitted to arbitration, he cannot

await the outcome and then later argue that the arbitrator lacked authority to decide the


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matter . . . [unless he] clearly and explicitly reserves the right to object to arbitrability

. . . .” (quoting AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir. 2000)).

       The Union’s second challenge also fails because no-strike provisions in collective

bargaining agreements are generally enforceable. See Metropolitan Edison Co. v. Nat’l

Labor Relations Bd., 460 U.S. 693, 705 (1983). Insofar as the Union objects that the

clause cannot preclude an orderly protest in response to an unfair labor practice, whether

the Union engaged in such a strike was a merits question before the arbitrator, not the

district court, which could vacate the arbitrator’s award on public policy grounds only if

the award created an “explicit conflict with other laws and legal precedents.” New York

City & Vicinity Dist. Council v. Ass’n of Wall-Ceiling and Carpentry Indus. of N.Y., Inc.,

826 F.3d 611, 618 (2d Cir. 2016) (internal quotation marks omitted); National Football

League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d at 536 (stating

that “courts are not permitted to substitute their own” judgment for that of arbitrator).

No such conflict is apparent here.           The arbitrator found—based upon video

evidence—that union members were not in fact orderly because they had blocked

vehicular access to TimeWarner’s facility, which accords with the NLRB’s “consistent[]”

conclusion “that the blocking of access to an employee’s workplace constitutes unlawful

restraint and coercion” in violation of the LMRA. International Bhd. of Elec. Workers,

Local Union No. 98 & Tri-M Grp., LLC, 350 N.L.R.B. 1104, 1107 (2007).

       We, therefore, affirm the district court’s confirmation of the arbitrator’s award of

money damages to TimeWarner.


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3.       Prohibition Against Future Strikes

         On cross-appeal, TimeWarner challenges the vacatur of that portion of the arbitral

award directing the Union “not to engage in similar violations of the contractual

‘no-strike’ provision in the future.”1 S.A. 41. We identify no error in the district

court’s decision on this matter because the questions presented to the arbitrator did not

address disputes as to future violations of the no-strike provision.

         In the labor-management context, an arbitrator is bound by both “the CBA and the

questions submitted by the parties for arbitration,” and the limitations on his authority

“generally depend[] on the intention of the parties.” 187 Concourse Assocs. v. Fishman,

399 F.3d 524, 527 (2d Cir. 2005) (internal quotation marks omitted). The parties here

asked the arbitrator to answer only two questions—(1) Whether the Union “violate[d] the

no-strike provision” of the CBA during the April 2, 2014 strike; and (2) “[i]f so, what

shall be the remedy?”—neither of which explicitly empowered the arbitrator to address

matters relating to further strikes, as opposed to the strike that had already occurred.

J.A. 527. While the parties could have agreed to submit to the arbitrator such matters as

were likely to arise in connection with future strikes, the record demonstrates that no such

agreement existed here. See 187 Concourse Assocs. v. Fishman, 399 F.3d at 526–27

(concluding, where arbitrator was asked (1) “Was the Grievant discharged for just

cause?” and (2) “If not, what shall the remedy be?” that power to award remedies was

limited by first question). This is particularly so where the arbitrator acknowledged that


1
     The NLRB intervenes solely to defend the district court’s decision in this regard.

                                               6
the only dispute before him related to the “events of April 2, 2014,” and that other

conflicts with the union would “fall outside the scope of the grievance that is before the

Arbitrator in the instant case.”    J.A. 356–57.    Accordingly, we affirm the district

court’s decision to strike so much of the arbitral award as “explicitly directed” the Union

“not to engage in similar violations of the contractual ‘no-strike’ provisions in the

future.”2 S.A. 41.

4.    Conclusion

      We have considered the parties’ other arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




2
  Because we have concluded that the Union waived its challenges to the 2013 CBA for
purposes of the arbitration presented here, and that the question of future strikes was not
submitted to the arbitrator, we need not address the effect of the 2015 NLRB decision.
The CBA to which the decision relates is scheduled to expire on March 31, 2017, in any
event.

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