   17-990
   Southside Hospital v. New York State Nurses Association

                     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 ASUMMARY ORDER@).     A
PARTY CITING TO 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 9th day of May, two thousand eighteen.

   PRESENT:
            JOHN M. WALKER, JR.,
            DENNIS JACOBS,
                 Circuit Judges,
            MICHAEL P. SHEA,*
                 District Judge.
   _____________________________________

   SOUTHSIDE HOSPITAL,
            Petitioner-Appellant,

              -v.-                                    17-990

   NEW YORK STATE NURSES
   ASSPCOATION,
            Respondent-Appellee.
   ____________________________________



        *   Judge Michael P. Shea, United States District
   Court for the District of Connecticut, sitting by
   designation.
FOR PETITIONER-APPELLANT:   PETER D. STERGIOS, McCarter &
                            English, LLP, New York, NY.

FOR RESPONDENT-APPELLEE:    JOSHUA J. ELLISON (with Richard
                            M. Seltzer on the brief), Cohen,
                            Weiss and Simon LLP, New York,
                            NY.

     Appeal from a judgment of the United States District
Court for the Eastern District of New York (Seybert, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is
AFFIRMED.

     Southside Hospital (“Southside”) brought suit in the
United States District Court for the Eastern District of
New York (Seybert, J.), seeking vacatur of an arbitration
award in favor of the New York State Nurses Association
(“NYSNA”). At summary judgment, the district court granted
NYSNA’s motion to confirm the award. Southside appeals.
“We review a district court's decision to confirm an
arbitration award de novo to the extent it turns on legal
questions,” and for clear error to the extent it turns on
findings of fact. Duferco Int'l Steel Trading v. T.
Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003).
We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues presented for
review.

     Southside seeks vacatur of the award on the ground that
the underlying dispute was not arbitrable under the
parties’ collective bargaining agreement (“CBA”). See In
re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 127
(2d Cir. 2011) (“[A] party cannot be required to
[arbitrate] any dispute which he has not agreed . . . to
[arbitrate].”) (internal quotation marks omitted). The
parties’ CBA contained the following pertinent provisions.

     Article 3, Subsection 3.10 provided that nurses were
not to be “required to perform non-nursing functions on a
regular basis as part of their assigned duties.” App’x at
56. Article 14 stated that, “[e]xcept as otherwise
provided in” the CBA, “every grievance . . . arising from
[the] application or interpretation of” the CBA would be
subject to a dispute-resolution process concluding (if
necessary) with binding arbitration “conducted under the
existing rules of the American Arbitration Association.”
Id. at 85-86. Article 3, Subsection 3.01 established a
committee of nurses charged with “mak[ing] recommendations
[to Southside] regarding . . . the factors which facilitate
or impede the practice of nursing,” including, inter alia,
the “involvement” of nurses “in non-nursing
responsibilities.” Id. at 50. Southside administrators
would be required to respond to written recommendations
submitted by the committee within ten workdays, but the
administrators’ decision would “be final and not subject to
Article 14” of the CBA. Id.

     In 2014, NYSNA submitted an Article 14 grievance,
alleging that Southside had breached Article 3, Subsection
3.10 of the CBA by routinely requiring nurses to perform
certain non-nursing functions. In the ensuing arbitration,
the arbitrator found for NYSNA on the merits and issued a
remedial award. The arbitrator rejected Southside’s
argument that NYSNA’s grievance was not arbitrable under
the CBA. That argument, which Southside renews on appeal,
proceeds as follows.

     First, Southside observes that Article 14 governs the
resolution of all CBA-related grievances, “[e]xcept [for
those for which resolution is] otherwise provided [for] in”
the CBA. Id. at 85. Next, Southside asserts that Article
3, Subsection 3.01 “assign[s] the decision of ‘nursing
involvement in non-nursing responsibilities’ . . . to the
Committee” created under that provision for the purpose of
recommending policies related to nursing practice.
Appellant’s Br. 10. Emphasizing that the decision of
hospital administrators to reject a committee
recommendation is “final and not subject to Article 14,”
App’x at 50, Southside concludes that “the parties intended
the Committee, not the Arbitrator, to decide the issues
specified to be within [the Committee’s] jurisdiction,”
including the instant grievance, Appellant’s Br. 10.

                             3
     Southside’s argument fails because the arbitrator,
acting within the authority granted to him under the CBA,
reasonably interpreted the CBA’s arbitration clause as
covering NYSNA’s grievance. True, “whether a collective-
bargaining agreement creates a duty for the parties to
arbitrate [a] particular grievance . . . is [generally] an
issue for judicial determination.” AT&T Techs., Inc. v.
Commc'ns Workers of Am., 475 U.S. 643, 649 (1986). But
authority to determine arbitrability is vested in the
arbitrator when “there is clear and unmistakable evidence
[in] the arbitration agreement . . . that the parties
intended [] the question of arbitrability [to] be decided
by the arbitrator.” Contec Corp. v. Remote Sol., Co., 398
F.3d 205, 208 (2d Cir. 2005) (internal quotation marks
omitted).

     The parties’ agreement expressly incorporated “the
existing rules of the American Arbitration Association”
(“AAA”). App’x at 86. Rule 3 of the AAA Labor Arbitration
Rules vests arbitrators with “the power to rule on [their]
own jurisdiction, including any objections with respect to
the existence, scope, or validity of the arbitration
agreement.” AAA Rule 3(a); see Contec Corp., 398 F.3d at
208. “[W]hen, as here, parties explicitly incorporate
rules that empower an arbitrator to decide issues of
arbitrability, the incorporation serves as clear and
unmistakable evidence of the parties’ intent to delegate
such issues to [the] arbitrator.” Id. (emphasis added).
Southside, “as a signatory to a contract containing an
arbitration clause and incorporating by reference the AAA
Rules, . . . cannot now disown its agreed-to obligation to
arbitrate . . . the question of arbitrability.” Id. at
211.

     Pursuant to that arrangement, Southside presented to
the arbitrator its argument that the CBA precluded
arbitration of NYSNA’s grievance. In finding the dispute
arbitrable, the arbitrator employed valid techniques of
contract interpretation, taking into consideration the

                             4
CBA’s plain text and the parties’ course of dealing. See
In re Am. Exp., 672 F.3d at 127 (describing arbitrability
as “a matter of contract” interpretation) (internal
quotation marks omitted). Nothing about the arbitrator’s
decision suggests that it was based on “some [inapposite]
body of thought, or feeling, or policy, or law.” Harry
Hoffman Printing, Inc. v. Graphic Commc'ns Int'l Union,
Local 261, 950 F.2d 95, 98 (2d Cir. 1991) (internal
quotation marks omitted). On the contrary, the
arbitrator’s decision reflects a plainly reasonable
application of the CBA, for reasons lucidly explained in
the magistrate judge’s thorough January 26, 2017 report and
recommendation, which the district court adopted in its
entirety.1 There is therefore “no basis for abandoning” the
“substantial deference” we “accord[] to an arbitrator’s
decision that is rendered within the authority [granted to
the arbitrator] by the parties.” Jock v. Sterling Jewelers
Inc., 646 F.3d 113, 125 (2d Cir. 2011) (internal quotation

1   As the magistrate judge explained:

       Southside’s argument relies upon the limited
       exclusionary language set forth in [Article 3,
       Subsection 3.01.] [But] th[at] [subsection] relate[s]
       to a process separate and apart from the
       grievance/arbitration process enacted in [Article 14]:
       that of making recommendations and decisions concerning
       nursing philosophies and practices. [The exclusionary
       language] gives [Southside] discretion to make certain
       determinations concerning future policies and
       practices[,] which are not subject to arbitration.
       [But the] language cannot reasonably be interpreted to
       exclude [arbitral] review of disputes relating to
       obligations [already] undertaken by Southside . . .
       [as] part of the collective bargaining agreement[,]
       [such as Southside’s obligations under Article 3,
       Subsection 3.10] . . . .

App’x at 374-75 (emphases added) (internal quotation marks
omitted).

                                5
marks omitted). The arbitrator’s finding of arbitrability
cannot be displaced.

     We have considered Southside’s remaining arguments and
find them to be without merit. For the foregoing reasons,
we AFFIRM the judgment of the district court.

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




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