Unite Here Local 1 v. Hyatt Corporation

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-3668
UNITE HERE LOCAL 1,
Plaintiff-Appellee,
v.
HYATT CORPORATION, doing business
as Hyatt Regency Chicago,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-04507 — Robert W. Gettleman, Judge.
ARGUED APRIL 4, 2017 — DECIDED JULY 6, 2017
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Defendant Hyatt Corporation, doing
business as Hyatt Regency Chicago (“Hyatt” or the “hotel”),
appeals the district court’s entry of judgment on the pleadings
in favor of plaintiff Unite Here Local 1 (“Local 1"), confirming
2 No. 15-3668
the decisions of two arbitrators in Local 1's favor. Unite Here,
Local 1 v. Hyatt Corp., 2015 WL 7077329 (N.D. Ill. Nov. 13, 2015).
Hyatt contends that the matter is either moot or does not
present an appropriate case for confirmation of the awards,
and that the district court’s decision to confirm the awards
needlessly interjects the court into an ongoing set of disputes
between itself and Local 1 that should be resolved by way of
further arbitration. We disagree and affirm the judgment. The
district court’s modest action in confirming the awards places
the court’s contempt power behind the prospective relief
ordered by the arbitrators, while reserving the merits of any
pending or future grievances for arbitration. Indeed, Local 1
has conceded that any contempt petition would be based solely
on the outcome of arbitrations post-dating the district court’s
confirmation order. Consequently, we are not convinced that
the court’s decision to confirm the two awards in any way
undermines the parties’ agreement to resolve their disputes
through arbitration. We therefore affirm the district court’s
decision.
I.
The Hyatt Regency Chicago is a convention hotel with over
2,000 guest rooms, five ballrooms, and between 80 and 100
meeting and event rooms. It employs approximately 1,200
people, 850 of whom are hourly employees belonging to the
union. Local 1 represents the members of the bargaining unit,
who include door and bell attendants; switchboard operators;
room, house, and public area housekeeping attendants; linen
throwers and attendants; food and beverage hostesses, servers,
bussers, cooks, bartenders, and cafeteria attendants; conven-
tion housemen; and various other workers. The size of the
No. 15-3668 3
hotel’s facilities and workforce enable it to host up to 10,000
guests at a time and thus to handle some of the city’s largest
professional conclaves and other gatherings.
Hyatt and Local 1 are parties to a longstanding collective
bargaining agreement, the current version of which is effective
from September 1, 2013 through August 31, 2018 (the “CBA”
or “agreement”). Section 56 of that agreement prohibits the
hotel’s 140 managerial employees from performing work
normally performed by bargaining-unit employees absent an
emergency. R.1-1 at 48.1 Section 46 of the CBA sets forth a
multi-step grievance procedure for the resolution of disputes
between the parties, and section 45 provides for the arbitration
of any disputes over the interpretation or alleged violations of
any terms of the agreement not resolved by the grievance
procedure. In the second half of 2013 and the first part of 2014,
there were a number of incidents in which managers per-
formed bargaining-unit work in circumstances that Local 1 did
not regard as emergencies. The union took two sets of griev-
ances on that subject to arbitration in the Fall of 2014, both of
which resulted in awards in Local 1's favor.
In an award dated February 2, 2015, arbitrator George R.
Fleischli found that Hyatt had violated section 56 by permitting
managers to perform work normally done by housemen in the
convention services department of the hotel. Housemen
perform the tasks necessary to set up meeting rooms and ball
rooms for the particular types of events scheduled for those
1
Section 56 states in full: “Supervisory personnel shall not perform work
normally performed by bargaining-unit employees except in cases of
emergency.” R. 1-1 at 48.
4 No. 15-3668
rooms: they bring the appropriate types of tables into the
rooms, arrange chairs around them, place linens on the tables
if necessary, establish water and refreshment stations, and set
up any podiums, stages, or dance floors that might be required.
When an event has concluded, they then break down the room
and set it up for the next event. Local 1 alleged that on some 17
occasions from September 2013 through June 2014, supervisors
took on tasks that they should have left to housemen, includ-
ing: setting up tables, replacing tables that had already been set
up, straightening or adjusting chairs, placing drinking glasses
on tables, setting up or moving special “highboy” cocktail
tables, breaking down tables, stacking chairs, cleaning up trash,
and so forth.
As a threshold matter, arbitrator Fleischli rejected the
hotel’s dual contentions that there was an established practice
of “shared work” between housemen and supervisors that
envisioned them both working side by side as necessary to set
up and break down event rooms and, relatedly, that the
individuals supervising housemen were “working supervi-
sors” whose job responsibilities included pitching in as
necessary to complete tasks. The evidence, in the arbitrator’s
view, simply did not support the existence of a consistent
practice in either respect. (In the concluding section of his
decision, he did allow that there had been lax enforcement of
section 56 in the convention services department of the hotel
for many years which had effectively permitted supervisors in
that department to violate the rule unchecked.)
On examining the terms of section 56, arbitrator Fleischli
concluded that it was not self-evident what constituted an
“emergency” that would permit supervisors to step in and
No. 15-3668 5
perform tasks that were otherwise assigned to housemen. He
rejected Hyatt’s contention that the term should be defined
simply as a set of unforeseen circumstances. Having weighed
the parties’ competing arguments on this point, Fleischli
concluded that an “emergency” was properly defined as
unforeseen circumstances that require immediate action,
including in particular the need for the hands-on intervention
of supervisors when bargaining-unit members are not reason-
ably available to take care of the urgent task at hand.
Ultimately, arbitrator Fleischli found that the union’s
grievances were arbitrable (i.e., properly preserved and
presented for decision) as to five of the incidents cited, and he
concluded that Hyatt had violated section 56 in three of those
incidents. The proven violations were relatively minor, in his
view, but at least in the first two of the incidents, they were not
de minimis. Fleischli declined to order make-whole relief in the
form of backpay given the history of lax enforcement of section
56 in the department, but he did order Hyatt to cease and
desist from further violations of section 56 and to take such
steps as were necessary to ensure that hotel managers com-
plied with the provision in the future.
In a second award dated March 1, 2015, arbitrator Ann S.
Kenis likewise found that Hyatt had violated section 56 on
multiple occasions. Arbitrator Kenis addressed a broader range
of circumstances than had her colleague. She was presented
with two grievances. The first involved supervisors doing
work normally performed by bell attendants (also know as
bellmen), including the receipt and storage of guest luggage,
retrieving checked bags for guests, and loading luggage into
guest vehicles. These incidents occurred in the Fall of 2013. The
6 No. 15-3668
second, more general grievance involved bargaining-unit
employees from multiple hotel departments and was based on
supervisors performing any number of tasks (beginning on or
about March 13, 2014 and continuing thereafter), including:
cleaning (e.g., mopping or sweeping floors, using mechanical
ride-on “chariots” to clean ballroom or public area carpets,
cleaning the front doors of the hotel, and emptying trash cans
in public areas); serving guests in the hotel restaurants, café,
and employee cafeteria (e.g., seating guests, pouring drinks,
making coffee, bussing tables, stocking the buffet, handing out
condiments, working the cash register, wiping counters);
transporting food, beverages, and dishes to and from ballroom
banquets; loading soiled linens into the hotel laundry chute;
and helping to clear rooms after events (e.g., picking up trash,
removing special items like ice sculptures, and so on).
Upon review of the evidence and the parties’ arguments as
to the proper construction of section 56, arbitrator Kenis agreed
with arbitrator Fleischli as to certain key points. First, she
found insufficient evidence to support Hyatt’s contention as to
a practice of shared work responsibilities between bargaining-
unit employees and their supervisors or as to a practice of
“working supervisors” who routinely pitched in to help the
line employees they supervised. Second, she agreed with her
colleague that the term “emergency” connotes more than just
unforeseen circumstances, as Hyatt had suggested. Kenis noted
that in the arbitration context, another arbitrator’s interpreta-
tion of “emergency” was neither conclusive nor binding upon
her. Yet, she believed that she should not disregard arbitrator
Fleischli’s reasoning absent substantially altered circumstances,
which Hyatt had not established. In that regard, arbitrator
No. 15-3668 7
Kenis noted that although Hyatt had attempted to convince
her that there was a longstanding, uniform practice of manag-
ers doing bargaining-unit work whenever unforeseen circum-
stances presented themselves, she regarded the hotel’s proof
on that point as being even weaker than the evidence pre-
sented to arbitrator Fleischli. Arbitrator Kenis therefore
adopted her colleague’s definition of emergency.
Turning to the evidence presented to her, arbitrator Kenis
found that there were only a few genuine emergencies involv-
ing unforeseen circumstances coupled with a need for immedi-
ate action: One involved a pipe leaking water into a ballroom;
the second involved a large professional conference and a
shortage of staff members to handle all tasks despite manage-
ment’s efforts to summon additional workers; and the third
involved scraping gum from pavement at the entrance to the
hotel immediately prior to a VIP’s arrival. Beyond those
incidents, Hyatt had either failed to establish that there was a
genuine emergency requiring immediate action as it claimed,
or the facts showed that supervisors were simply pitching in to
perform mundane, bargaining-unit tasks as a matter of course
(in some instances, for hours at a time) without first ascertain-
ing whether there was a bargaining-unit employee available to
handle the task in question.
Arbitrator Kenis thus concluded that Hyatt had trans-
gressed section 56 in all but the isolated instances in which she
found there had been a true emergency. She rejected the hotel’s
suggestion that the violations were de minimis, reasoning that
even if that characterization applied to certain individual
incidents, “there is a cumulative pattern shown on this record
that requires a remedy.” R. 1-3 at 50. In this respect, she viewed
8 No. 15-3668
the evidentiary record as being significantly different from the
one presented to arbitrator Fleischli. Arbitrator Kenis therefore
concluded that make-whole relief in the form of backpay (at an
overtime rate) was appropriate to compensate the union for the
time supervisors had spent performing bargaining-unit tasks.
Like arbitrator Fleischli, she also ordered Hyatt to cease and
desist from future violations of section 56.
Hyatt allowed 90 days to pass without filing a petition to
vacate either of the awards in federal court;2 the union,
however, pursuant to section 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185(a), filed a petition in
the district court to confirm the two awards. In its complaint,
the union alleged that Hyatt “has failed and refused and
continues to fail and refuse to comply with or otherwise be
bound by” the Fleischli and Kenis awards. R. 1 at 3 ¶¶ 16, 18.
In support of that contention, Local 1 cited some 41 examples
of managers allegedly performing bargaining-unit work in
February through May of 2015, after the two arbitrators had
ordered Hyatt to cease and desist from further violations of
section 56. R. 1 at 3–7 ¶ 19. (These incidents constitute the same
alleged 41 violations of section 56 pending between the parties,
2
The limitations period for filing a motion to vacate an arbitration award
is borrowed from state law, and the Illinois Uniform Arbitration Act
specifies a period of 90 days for such a request. 710 Ill. Comp. Stat. 5/12(b);
see, e.g., Int’l Union of Operating Eng’rs, Local 150, AFL-CIO v. Centor
Contractors, Inc., 831 F.2d 1309, 1311–12 (7th Cir. 1987). An action to confirm
an arbitration award, on the other hand, is subject to a much more generous
limitations period of five years in Illinois. See 735 Ill. Comp. Stat. 5/13-205;
Peregrine Fin. Grp., Inc. v. Futronix Trading Ltd., 929 N.E.2d 1226, 1227–28 (Ill.
App. Ct. 2010).
No. 15-3668 9
and working their way through the contractual grievance and
arbitration procedure, that we refer to elsewhere in this
opinion.)
The parties filed cross-motions for judgment on the
pleadings, and Judge Gettleman ultimately granted judgment
on the pleadings in favor of Local 1.3 Among other things, he
noted that Hyatt had not timely challenged the awards,
rendering them final and beyond review. 2015 WL 7077329, at
*2 n.1. In any case, he reasoned, the awards drew their essence
from the CBA and were therefore valid. Id., at *2. He rejected
Hyatt’s contention that confirmation of the awards was
foreclosed by this court’s decisions in United Elec. Radio &
Mach. Workers of Am. v. Honeywell, Inc., 522 F.2d 1221, 1225-27
(7th Cir. 1975), and Local 1545, United Mine Workers of Am. v.
Inland Steel Coal Co., 876 F.2d 1288, 1294-97 (7th Cir. 1989). He
pointed out that the unions in those cases were attempting to
bypass the arbitration process and give prospective effect to
arbitration awards that contained only backward-looking,
make-whole remedies. This court held that a union could do
this only if it met certain criteria. The arbitration awards in this
case, by contrast, expressly granted prospective relief in the
form of cease-and-desist orders. “Nothing in Honeywell or
Inland Steel suggests that an arbitration award granting
3
Hyatt’s motion alternatively asked the court to compel arbitration of the
new disputes regarding section 56, a request that the district court denied.
In the course of briefing the motions for judgment on the pleadings, Hyatt
also asked the court to convert Local 1's motion into one for summary
judgment pursuant to Federal Rule of Civil Procedure 12(d). The court
likewise denied that request, finding it unnecessary to resort to matters
outside of the pleadings in order to resolve the motion.
10 No. 15-3668
prospective relief cannot be confirmed,” Judge Gettleman
reasoned. “Indeed, they both suggest just the opposite.” 2015
WL 7077329, at *3 (N.D. Ill. Nov. 13, 2015).
Hyatt filed a motion to stay the district court’s judgment
pending appeal. Hyatt raised two principal concerns about the
court’s order of confirmation. First, to the extent the order was
viewed as an injunction (in that it confirmed the cease and
desist commands entered by the arbitrators), the order gave
Hyatt no notice of the duties imposed on it—i.e., no description
of the particular acts from which Hyatt was obligated to
refrain. Essentially, the court, like the arbitrators, had merely
told Hyatt, “Do not violate the contract.” Hyatt was concerned
that the lack of specifics placed it at undue risk of contempt
sanctions. Second, in Hyatt’s view, confirmation of the two
awards had given the union the means to bypass the grievance
and arbitration procedure set forth in the CBA by enabling the
union to seek contempt sanctions for new violations of section
56. Rather than seeking a determination from an arbitrator as
to new grievances, the union could simply seek a contempt
finding from the district court. Given the nature of the hotel’s
business—including the variety of events it hosted, guest
demands, and the unforeseen circumstances that may
occur—Hyatt anticipated that the parties might be in front of
the court on a regular basis.
At the hearing on Hyatt’s motion, both the district court
and the union contradicted the twin premises of the request for
a stay. The district court pointed out that it had entered no
injunction. It had done no more than confirm the two arbitra-
tion awards. To the extent Hyatt believed the cease-and-desist
aspects of those awards gave it insufficient guidance as to what
No. 15-3668 11
specific acts were prohibited, that would be a matter for the
court to consider at a later contempt proceeding. Secondly, the
court rejected the notion that confirmation gave the union
license to bypass arbitration and bring future grievances
directly to court by way of a contempt petition. The union’s
counsel expressly agreed with the court: Any pending and
future grievances would be resolved by way of arbitration, she
represented. The union had no immediate plans to file a
contempt petition, and any such petition would be based on
the outcome of future arbitrations post-dating the confirmation
of the Fleischli and Kenis awards. R. 54.
With those points having been clarified, Hyatt withdrew its
stay motion without prejudice. It proceeded with this appeal,
contending that the court erred in confirming the awards.
II.
We review the district court’s decision to enter judgment on
the pleadings in favor of Local 1 de novo. E.g., Gill v. City of
Milwaukee, 850 F.3d 335, 339 (7th Cir. 2017). Judgment on the
pleadings is appropriate when there are no disputed issues of
material fact and it is clear that the moving party, in this case
Local 1, is entitled to judgment as a matter of law. E.g., Nat’l
Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir.
1987). In reviewing the judgment, we, like the district court, are
confined to the matters presented in the pleadings, and we
must consider those pleadings in the light most favorable to
Hyatt. Id.
Section 301 of the LMRA grants federal courts jurisdiction
over “[s]uits for violation of contracts between an employer
and a labor organization representing employees in an indus-
12 No. 15-3668
try affecting commerce,” § 185(a),4 and this jurisdiction is
understood to include a request to enforce (or vacate) an award
entered as a result of the procedure specified in a collective
bargaining agreement for the arbitration of grievances. See
United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S.
593, 595–96, 80 S. Ct. 1358, 1360 (1960); Evans v. Einhorn, 855
F.2d 1245, 1253 (7th Cir. 1988) (per curiam).
The Supreme Court has repeatedly recognized the central
role that arbitration plays in national labor policy:
[T]he grievance machinery under a collective
bargaining agreement is at the very heart of the
system of industrial self-government. Arbitration
is the means of solving the unforeseeable by
molding a system of private law for all the
problems which may arise and to provide for
their solution in a way which will generally
accord with the variant needs and desires of the
parties. The processing of disputes through the
grievance machinery is actually a vehicle by
which meaning and content are given to a collec-
tive bargaining agreement.
United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363
U.S. 574, 581, 80 S. Ct. 1347, 1352 (1960); see also United Steel-
workers of Am. v. Am. Mfg. Co., 363 U.S. 564, 566–69, 80 S. Ct.
1343, 1346–47 (1960); Enter. Wheel & Car, 363 U.S. at 596,
4
The grant of jurisdiction is not exclusive: state courts have concurrent
jurisdiction over section 301 suits. Charles Dowd Box Co. v. Courtney, 368 U.S.
502, 82 S. Ct. 519 (1962).
No. 15-3668 13
80 S. Ct. at 1360. More fundamentally, arbitration supplies the
parties with a constructive means of resolving their disputes:
“It, rather than a strike, is the terminal point of a disagree-
ment.” Warrior & Gulf Navigation, 363 U.S. at 581, 80 S. Ct. at
1352. When Congress conferred jurisdiction on the federal
judiciary over disputes arising under collective bargaining
agreements, it meant for us to support and reinforce, rather
than displace, the arbitration process:
Plainly the agreement to arbitrate grievance
disputes is the quid pro quo for an agreement not
to strike. Viewed in this light, [section 301] does
more than confer jurisdiction in the federal
courts over labor organizations. It expresses a
federal policy that federal courts should enforce
these agreements on behalf of or against labor
organizations and that industrial peace can be
best obtained only in that way.
Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448,
455, 77 S. Ct. 912, 917 (1957); see also Am. Mfg. Co., 363 U.S. at
569, 80 S. Ct. at 1347 (forbidding courts from independently
evaluating merits of grievances under guise of interpreting
contractual grievance procedure); Enter. Wheel & Car, 363 U.S.
at 596, 80 S. Ct. at 1360 (“The federal policy of settling labor
disputes by arbitration would be undermined if courts had the
final say on the merits of the awards.”). Thus, where appropri-
ate, courts will compel the arbitration of disputes that the
parties have contractually committed to arbitration, e.g., Lincoln
Mills, 353 U.S. at 456–59, 77 S. Ct. at 917–19, and, as relevant
here, enforce awards resulting from arbitration as a means of
14 No. 15-3668
affording parties complete relief, see Enter. Wheel & Car, 363
U.S. at 595–96 & n.1, 80 S. Ct. at 1360 & n.1 (citing Textile
Workers Union of Am. v. Cone Mills Corp., 268 F.2d 920 (4th Cir.
1959)); id. at 599, 80 S. Ct. at 1362; Evans, 855 F.2d at 1253.
Confirmation of an arbitration award places the weight of a
court’s contempt power behind the award, see, e.g., Chrysler
Motors Corp. v. Int’l Union, Allied Indus. Workers of Am., AFL-
CIO, 909 F.2d 248, 249–50 (7th Cir. 1990), giving the prevailing
party a means of enforcement that an arbitrator would typi-
cally lack. See Lincoln Mills, 353 U.S. at 455, 456, 77 S. Ct. at 917
(congressional purpose in enacting section 301 “to provide the
necessary legal remedies” and “place[ ] sanctions behind
agreements to arbitrate grievance disputes”).
Against the backdrop of ongoing disputes over supervisors
doing bargaining-unit work, Local 1 sought confirmation of the
Fleischli and Kenis awards in order to preserve its ability to
seek contempt sanctions if Hyatt, contrary to the arbitrators’
cease and desist directives, committed additional violations of
section 56. As we turn to the merits of that request, a few
prefatory remarks are in order.
This case differs from the usual proceeding seeking to
confirm or vacate an arbitration award in that it involves
awards ordering open-ended prospective relief, as opposed to
backward-looking make-whole relief, such as an award of lost
wages, e.g., Dexter Axle Co. v. Int’l Ass’n of Machinists & Aero-
space Workers, Dist. 90, Lodge 1315, 418 F.3d 762 (7th Cir. 2005),
or finite forward-looking relief, such as the reinstatement of an
employee whom the arbitrator has found to have been wrong-
fully discharged, e.g., Chrysler Motors Corp. v. Int’l Union, Allied
No. 15-3668 15
Indus. Workers of Am., AFL-CIO, 959 F.2d 685 (7th Cir. 1992). In
both of the cases at issue here, the arbitrators ordered Hyatt to
cease and desist from further violations of the CBA term they
had interpreted and applied. Hyatt equates confirmation of
that kind of order with prospective enforcement of an arbitra-
tion award in a manner that will disrupt, and potentially
supplant, the grievance-and-arbitration procedure that the
parties have incorporated into their agreement. When a party
asks that an award be enforced prospectively, it is typically
asking the court to apply the arbitrator’s holding to a later
dispute that has not been submitted to arbitration. Often the
specific relief requested is the entry of declaratory or injunctive
relief that dictates the resolution of the new dispute in har-
mony with the arbitrator’s prior ruling. E.g., Honeywell, supra,
522 F.2d at 1224–25. That type of relief places the court in the
position of regulating the parties’ conduct directly in lieu of
having a second arbitrator resolve the merits of the later
dispute. The prospective enforcement of arbitration awards is
thus a matter that we approach with great caution, as evi-
denced by our decisions in Honeywell and Inland Steel Coal. See
Honeywell, 522 F.2d at 1225 (noting extraordinary nature of
request to prospectively enforce prior arbitration award to un-
arbitrated disputes); Inland Steel, 876 F.2d at 1293–94 (survey-
ing high bars other circuits have posted to prospective enforce-
ment); see also Consol. Coal Co. v. United Mine Workers of Am.,
Dist. 12, Local Union 1545, 213 F.3d 404, 406 (7th Cir. 2000)
(“courts are reluctant to issue labor injunctions”); AG Commc’n
Sys. Corp. v. Int’l Bhd. of Elec. Workers, Local Union No. 21, 2005
WL 731026, at *10 n.7 (N.D. Ill. Mar. 28, 2005) (noting that
“AGCS has not pointed to any cases in which the Seventh
16 No. 15-3668
Circuit has prospectively applied an arbitration award as a bar
to future grievances”). Specifically, courts have expressed a
concern that prospective enforcement of an arbitration award
will effectively nullify the parties’ agreement to resolve their
disputes by way of arbitration. See Inland Steel Coal, 876 F.2d at
1296; Honeywell, 522 F.2d at 1225. The premise of Hyatt’s
challenge to the district court’s decision is that confirmation of
the Fleischli and Kenis awards will produce that very result, in
that confirmation invites the union to bring future disputes
under section 56 directly to the court by way of a contempt
petition, such that the court will be required to pass on such
fact-intensive (and industry-specific) questions as whether
there was an emergency justifying hotel managers in perform-
ing bargaining-unit work in particular instances—questions of
the sort that normally would and should be resolved by an
arbitrator. If that were the course of action that the union
envisioned in requesting confirmation of the awards, then we
would agree that confirmation presents the potential concerns
about prospective enforcement that prior cases have expressed.
But the precise relief that Local 1 has sought is more modest
than Hyatt’s challenge would suggest.
As below and again in its brief on appeal, the union has
disavowed any attempt to bypass arbitration as to the addi-
tional 41 purported violations of section 56 pending between
itself and Hyatt. Local 1 represents that it will arbitrate not
only those incidents, but any future grievances post-dating the
court’s confirmation order. Only if Local 1 prevails in arbitra-
tions concerning the latter set of grievances might the union
seek contempt sanctions. In short, before Local 1 seeks con-
tempt sanctions, the merits of any grievances underlying the
No. 15-3668 17
contempt petition will have already been arbitrated; the court’s
role will be limited to deciding whether the union is entitled to
the additional remedy of contempt sanctions based on the
arbitrator’s (or arbitrators’) findings. That is the understanding
on which the district court granted confirmation, and that is
the understanding on which we evaluate the court’s decision
to confirm the Fleischli and Kenis awards.
The issue as presented to us is therefore a narrow one, as is
our holding. As we explain below, the facts of this case readily
distinguish it from the cases Hyatt relies upon to show that
confirmation of the two awards was improper as a matter of
law. We need not find more than that in order to sustain the
district court’s decision. Our holding today is naturally
dependent on the particular facts and arguments presented to
us. As in prior decisions, we abstain from an effort to look
beyond the circumstances of this case and articulate a compre-
hensive standard as to when prospective enforcement of an
arbitration award might or might not be warranted, and what
types of relief might be appropriate when it is. See Inland Steel
Coal, 876 F.2d at 1296; Honeywell, 522 F.2d at 1225.5
5
Confirmation of the Fleischli and Kenis awards was decided on the
pleadings, and Hyatt (despite one isolated reference in its briefs to the
district court’s “discretion, ” see Hyatt opening brief at 8) has framed its
appeal as presenting errors of law rather than of discretion in confirming
the awards. We address its arguments on these terms. To the extent one
might treat as two distinct issues the question whether a labor arbitration
award is eligible for confirmation, in the sense that it meets the usual criteria
for confirmation, see infra at 22–23, and the question whether it should be
confirmed as a prudential matter, we have not been asked to draw such
(continued...)
18 No. 15-3668
Hyatt initially attacks the judgment on the ground that
there was and is no Article III case or controversy for a court to
resolve. See U.S. CONST. art. III, § 2. Hyatt points out that it did
not challenge either of the two arbitration awards and that
once the time for doing so had passed, the awards were final
and binding. See McKinney Restoration Co. v. Ill. Dist. Council
No. 1 of Int’l Union of Bricklayers & Allied Craftworkers, AFL-CIO,
392 F.3d 867, 869 (7th Cir. 2004) (citing, inter alia, Int’l Union of
Operating Eng’rs, Local 150, AFL-CIO v. Centor Contractors, Inc.,
supra n.2, 831 F.2d at 1311); see also Wm. Charles Constr. Co. v.
Teamsters Local Union 627, 827 F.3d 672, 678 (7th Cir. 2016) (“A
failure to challenge an arbitration award within the applicable
limitations period renders the award nearly impervious to
attack.”). Hyatt purports to accept both awards as valid and
binding upon itself.6 Consequently, Hyatt reasons, confirma-
tion of the awards would accomplish nothing. If, as Local 1
represents, it is not seeking preemptive relief as to the addi-
tional disputes now being resolved through the grievance and
arbitration process, then, in Hyatt’s view, the union is not
asking for anything that Hyatt has not already given it by
5
(...continued)
distinctions and to consider whether they are subject to different standards
of review. We leave such matters for another day.
6
In support of that representation, Hyatt submitted the affidavit of its
director of labor relations detailing various steps that the company has
taken in order to comply with the arbitrators’ directive that it cease and
desist failing to comply with section 56. The affidavit was one of the extra-
pleadings materials that the district court declined to consider when it
denied Hyatt’s request to convert the union’s motion for judgment on the
pleadings into a motion for summary judgment.
No. 15-3668 19
accepting the first two awards without challenge. Cf. Derwin v.
Gen. Dynamics Corp., 719 F.2d 484, 491 (1st Cir. 1983) (question-
ing wisdom of court placing its imprimatur on arbitration
award in “a factual vacuum”).
We are satisfied that there is a live controversy between the
parties. Hyatt’s decision to forego a challenge to either award
may render both awards final, but that does not mean that
confirmation of the awards can provide nothing of value to the
union. Cf. Ozinga v. Price, 855 F.3d 730, 734 (7th Cir. 2017) (case
becomes moot when the source of the plaintiff’s prospective
injury has been removed and there is no longer any effective
relief that the court can order) (collecting cases). Confirmation
renders the awards judicially enforceable by way of contempt
sanctions, as both parties recognize. Indeed, much of Hyatt’s
briefing is devoted to arguing why it is inappropriate to make
that weapon available to the union. And although Hyatt
purports to accept the awards as binding, there is plainly a live
dispute about whether Hyatt is in fact acting in compliance
with the awards. The 41 pending alleged violations of section
56 demonstrate that there is an ongoing controversy about the
use of managers to perform bargaining-unit work.7 Of course,
the parties agree that the merits of those disputes must be
resolved through the contractual grievance and arbitration
7
In its answer to the complaint, Hyatt professed ignorance as to the factual
allegations underlying these additional purported violations (R. 9 at 11
¶ 19), but the appellate briefs make clear that there is no dispute as to fact
that Local 1 has raised these alleged violations with Hyatt and that the
parties have initiated the contractual grievance process to address the
incidents in question.
20 No. 15-3668
process. But the existence of the additional disputes demon-
strates that the parties remain at odds as to what section 56
means and whether Hyatt is complying with the section. That
is sufficient to distinguish this case from others in which courts
have dismissed a request to confirm an arbitration award for
want of a “live and actual dispute between the parties.” See
Chicago Reg. Council of Carpenters v. Onsite Woodwork Corp., 2012
WL 6189635, at *4 (N.D. Ill. Dec. 12, 2012) (collecting cases); cf.
Buffalo Forge Co. v. United Steelworkers of Am., AFL-CIO, 428 U.S.
397, 403 n.8, 96 S. Ct. 3141, 3146 n.8 (1976); CSX Transp., Inc. v.
Bhd. of Maint. of Way Employees, 327 F.3d 1309, 1319–20 (11th
Cir. 2003); cf. 13C C. Wright, A. Miller, & E. Cooper, FED. PRAC.
& PROC. § 3533.3.1, at 116 (3d ed. 2008) (noting that “[l]abor
disputes … provide clear illustration of the private disputes
that are preserved from mootness by the prospect of future
repetition”). The Fleischli and Kenis awards are relevant to
those disputes in that they address what constitutes a genuine
emergency permitting managers to perform such work; the
awards also expressly impose an obligation on Hyatt to
comply with their holdings by ordering the company to cease
further violations. Confirmation gives teeth to these awards by
exposing Hyatt to the prospect of contempt sanctions if it does
not comply under circumstances sufficiently similar to those
resolved by the two arbitrators. Absent confirmation, the union
has no remedy in litigation if Hyatt chooses to ignore them: the
awards are not binding in future arbitrations (although
arbitrator Kenis elected to follow arbitrator Fleischli’s reason-
ing, she recognized that she was not necessarily obliged to do
No. 15-3668 21
so),8 and the union would not have the option of seeking
contempt sanctions from the district court. Whether and when
such sanctions might be appropriate obviously is a question
that the district court would have to resolve when presented
with a request to find Hyatt in contempt. The only question
that we need to answer for purposes of our jurisdiction is
whether there remains a live case or controversy between the
parties, and we have concluded that there is.9
8
Generally speaking, the matter of a prior arbitration’s preclusive effect
on a later arbitration is one for the arbitrator himself or herself to address,
as arbitrator Kenis’s award itself reflects. See Trustmark Ins. Co. v. John
Hancock Life Ins. Co. (U.S.A.), 631 F.3d 869, 874 (7th Cir. 2011) (“Arbitrators
are entitled to decide for themselves those procedural questions that arise
on the way to a final disposition, including the preclusive effect (if any) of
an earlier award.”); Lindland v. U.S.A. Wrestling Ass’n, 230 F.3d 1036, 1039
(7th Cir. 2000) (“[a]rbitrators need not follow judicial notions of issue and
claim preclusion”); Consol. Coal Co., supra, 213 F.3d at 407 (preclusive effect
of prior arbitrations is matter of contract rather than law: “If the parties to
the collective bargaining agreement want the first arbitrator's interpretation
of a provision of the agreement or resolution of a dispute arising under the
agreement to have preclusive effect, they can so provide; and whether they
do so or not, the question of the preclusive force of the first arbitration is,
like any other defense, itself an issue for a subsequent arbitrator to decide.”)
Indep. Lift Truck Builders Union v. NACCO Materials Handling Grp., Inc., 202
F.3d 965, 968 (7th Cir. 2000) (“the preclusive effect of the first arbitrator’s
decision is an issue for a later arbitrator to consider”) (internal quotation
marks and citations omitted).
9
Recognizing that there is a live controversy between the parties as to
Hyatt’s compliance with the two arbitration awards does not require us to
resolve a disputed point of fact and assume that Hyatt is indeed violating
the awards. We assume only that there is an ongoing dispute as to Hyatt’s
(continued...)
22 No. 15-3668
We should note at this point that nearly all of the circum-
stances material to the union’s right to confirmation of the two
arbitration awards are undisputed. There is no dispute that
Hyatt and Local 1 are parties to a collective bargaining agree-
ment; that the agreement sets forth a grievance and arbitration
procedure for resolution of disputes between the parties; that
disagreements over the proper understanding and application
of section 56 of the agreement are within the scope of the
parties’ agreement to arbitrate their disputes; that the parties
did in fact engage in arbitration over instances in which
managers performed tasks normally performed by bargaining-
unit members; that those arbitrations culminated in the two
awards at issue here; that the arbitrators examined the relevant
provisions of the CBA in rendering their decisions; and that
Hyatt did not timely pursue a challenge to either of the two
awards. So, although there are, to be sure, some points of
contention between the parties—in particular, whether Hyatt
is in good faith endeavoring to comply with the awards and
with section 56—they dispute no point relevant to the validity
of the two awards.
Judicial review of a labor arbitration award typically is
confined to the narrow question of whether the arbitrator’s
reasoning draws its essence from the parties’ agreement. Enter.
Wheel & Car Corp., 363 U.S. at 597, 80 S. Ct. at 1361; see also W.R.
Grace & Co. v. Local Union 759, Int’l Union of United Rubber,
Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 764,
9
(...continued)
compliance with section 56 and the two awards, and the existence of that
dispute is confirmed by the 41 pending alleged violations.
No. 15-3668 23
103 S. Ct. 2177, 2182 (1983); U.S. Soccer Fed’n, Inc. v. U.S. Nat’l
Soccer Team Players Ass’n, 838 F.3d 826, 831–32 (7th Cir. 2016).
By not pursuing a petition to vacate the awards, Hyatt waived
even that limited review. See, e.g., Teamsters Local No. 579 v.
B & M Transit, Inc., 882 F.2d 274, 276–78 (7th Cir.1989). Not-
withstanding the waiver, Judge Gettleman, in view of the fact
that Hyatt challenged the propriety of confirmation, examined
the two awards and was satisfied that both drew their essence
from the agreement. 2015 WL 7077329, at *2. Hyatt does not
contend otherwise on appeal. On the threshold question of
whether the awards were eligible for confirmation, then, there
was no error in the district court’s decision to grant judgment
on the pleadings in Local 1's favor.
Hyatt contends nonetheless that it is inappropriate for a
court to intervene in the ongoing dispute between itself and the
union by confirming the awards and thereby laying the
groundwork for contempt sanctions. The contractual dispute
resolution process should be allowed to resolve the additional
alleged violations of section 56, Hyatt argues, without the court
placing a finger on the scale by giving the union leverage to
seek contempt sanctions against Hyatt if it can convince the
court that Hyatt has not complied with the cease-and-desist
directives issued by the two arbitrators who resolved the initial
grievances. For this argument, it relies on the line of cases we
noted at the outset of our analysis which have cautioned
against courts preempting the contractual grievance process by
prospectively enforcing arbitration awards entered in a union’s
favor when there are ongoing disputes between the parties that
would otherwise be resolved by way of further arbitration.
24 No. 15-3668
But we are not convinced that this is what the union has
asked the court to do here. In the Fleischli and Kenis awards,
Local 1 secured not only the backward-looking determination
that Hyatt had violated section 56 on the particular facts
confronting the arbitrators in those proceedings, but an
articulation of a standard as to what constitutes a legitimate
emergency, coupled with forward-looking relief ordering
Hyatt to cease and desist from further violations. Whether the
awards are clear enough to place Hyatt on notice of what
actions, in what circumstances, are prohibited, see Stotler & Co.
v. Able, 870 F.2d 1158, 1163 (7th Cir. 1989), is a separate matter
to be resolved in a future contempt proceeding (if such a
proceeding takes place). Yet we do not think that simple
confirmation of the two awards is barred on the rationale that
Hyatt has articulated.
To begin, this is not a case, like Honeywell, in which we
concluded that the union was attempting to bypass the
arbitration process by seeking declaratory and injunctive relief
from the district court that it could have sought from arbitra-
tors but had not. At issue in Honeywell was the employer’s
purported ongoing failure to comply with a contractual
provision barring (with limited exceptions) supervisors,
foremen, and workers outside of the bargaining unit from
engaging in work normally performed by unit members. The
union already had prevailed in four arbitrations on that subject
and the arbitrators had granted make-whole relief to the
affected employees; but none of the awards had granted
prospective relief to the union. The union, alleging that there
were many other instances of the employer violating the
provision—some number of which were still working their
No. 15-3668 25
way through the contractual grievance process—filed a
complaint asking the district court to enter declaratory relief
that the employer was violating the collective bargaining
agreement and injunctive relief requiring the employer to
adhere to the contractual provisions regarding the proper
assignment of work. We concluded that the union’s complaint
failed to state a cause of action for such extraordinary relief.
At the outset of our analysis, we noted the unusual nature
of the union’s case:
The claim which the Union seeks to establish
here is not the ordinary one. While there are
numerous reported cases of parties seeking to
force or enjoin arbitration or to enforce an arbi-
tration award, it is most unusual to find a party
seeking the right to bypass arbitration proce-
dures which it is contractually bound to follow
and which are concededly applicable to the
particular incidents generating disputes. Al-
though we do not foreclose the possibility that
there might exist particularly egregious circum-
stances which, if alleged, might state a cause of
action for relief from a contractual duty to arbi-
trate, it is our opinion that the allegations of the
complaint before us are not sufficient to state
such a cause of action.
522 F.2d at 1225.
We went on to identify at least three reasons why it would
be inappropriate for the court to entertain the relief requested
by the union. First, there was no showing that the union had
26 No. 15-3668
sought to aggregate its multiple grievances into a single
arbitration proceeding. Id. at 1226. Such aggregation would
permit the union to establish that the employer was engaging
in a course of conduct violating the contractual provision in
question; and such a showing in turn might support the sort of
broad declaratory and injunctive relief the union was seeking.
Id. Second, in the four grievances already taken to arbitration,
the union had not asked the arbitrators themselves to grant
declaratory and injunctive relief. Id. “[S]uch relief is not
inherently beyond the capacity of an arbitrator to grant,” id.,
and there were any number of examples of courts sustaining
arbitration awards granting such prospective relief, id. at
1226–27 (collecting authorities).10 Third, the union had not
alleged that “the factual basis of the four arbitration awards
[already resolved] in its favor [was] so nearly identical to the
facts of the pending grievances [not yet presented for arbitra-
tion] that the Company’s conduct constitutes wilful and
persistent disregard of the arbitration awards.” Id. at 1227; see
id. at 1226. To the contrary, “[e]ach [pending] grievance
appears to arise out of entirely different facts.” Id. at 1227.
Thus, it was not at all clear that arbitrators were likely to
resolve the additional grievances in the union’s favor, or that
any prospective relief the court might enter would answer the
fact-specific questions posed by those grievances. Id. at
1227–28.
10
See also R. Schoonhoven, FAIRWEATHER’S PRAC. & PROC. IN LABOR
ARBITRATION § 15X, at 494–96 (4th ed. 1999) (summarizing various forms of
injunctive relief arbitrators may enter, including cease and desist orders,
and collecting cases).
No. 15-3668 27
Although the factual backdrop to this case certainly is
similar to that in Honeywell, the limited nature of the relief
sought and obtained by the union from the district court is not.
In this case, the union was not attempting to bypass the
arbitration process in order to obtain prospective relief that it
could have, but did not, ask an arbitrator to enter. In both of
the two arbitrations at issue here, the union asked for and was
granted forward-looking cease-and-desist orders by the
arbitrators. Also, in resolving the particular grievances
presented to them, the arbitrators necessarily had to articulate
what constitutes an emergency permitting a manager to
perform bargaining-unit work. The awards thus gave the
parties at least some guidance on what was and was not
permitted, and it was in that context that Hyatt was ordered to
refrain from further violations of section 56 in the future.
Moreover, in seeking confirmation of the awards, the union
did not ask for, and the district court did not grant, the sort of
broad declaratory and injunctive relief that its counterpart
asked for in Honeywell. Local 1 asked only that the court
confirm the two arbitration awards entered in its favor, period.
Although confirmation opens the door to a contempt proceed-
ing at a later date, nothing that the district court did prejudges
the outcome of such a proceeding. The union agrees that any
unresolved disputes must wend their way through the
contractual dispute resolution process, and that any request for
contempt sanctions will be premised on future arbitration
awards arising from grievances that post-date the district
court’s confirmation order. There is, therefore, no attempt to
bypass the arbitration process, and we can discern no concrete
28 No. 15-3668
impact that confirmation of these two awards will have on the
outcome of that process.
Nor is this a case comparable to Inland Steel Coal. The union
in that case had prevailed in successive arbitrations challenging
the employer’s decision to send workers home early in two
instances, occurring five years apart, despite the availability of
so-called “dead work” to occupy the workers. In both cases,
the arbitrator had ordered compensatory relief only; in the
second case, the union had asked for but did not obtain a
cease-and-desist order from the arbitrator. When the employer
sent workers home early for a third time five years after the
second incident, the union filed suit seeking specific enforce-
ment of the two arbitration awards—in other words, the union
asked the court to apply those awards prospectively to resolve
the new dispute between the parties rather than having an
arbitrator do so.
The district court denied relief to the union, and we
affirmed that decision. We noted first that neither of the
arbitrators had included language in their awards directed to
future action by the employer, “strongly” suggesting to us
“that the arbitrators did not want the awards to apply prospec-
tively,” a conclusion reinforced by language in the collective
bargaining agreement confining an arbitrator’s authority to the
particular dispute before him. 876 F.2d at 1295. And although
the union had made a case for the notion that facts underlying
the employer’s latest transgression were substantially the same
as those presented in the prior arbitrations, it had not alleged
that the company’s conduct amounted to “wilful and persistent
disregard” of the prior awards. Id. at 1295–96. And “[a]s a
matter of law, we do not believe that three isolated incidents of
No. 15-3668 29
sending workers home early when ‘dead work’ is available
over a ten year period constitutes ‘wilful and persistent
disregard of the arbitration awards.” Id. at 1296. Likewise, we
were not convinced that judicial intervention was necessary to
bring an end to repetitive grievances and arbitrations over the
same point, given the limited number of disputes involved. “In
submitting [the third] grievance to an arbitrator, the union is
free to argue that it has already submitted this same dispute to
arbitration. In that way, the arbitrator can consider the fact that
the dispute was previously arbitrated and decide for himself if
he believes that declaratory and injunctive relief is warranted
by the facts of the case.” Id. (citation omitted).
Here, again, the union is simply seeking to confirm pro-
spective relief that it has already litigated and obtained from
two arbitrators. The serial disputes between Hyatt and the
union as to managers performing bargaining-unit work
demonstrates that this is not, in contrast to Inland Steel, an
isolated problem. So confirming the two prior awards may
prove to have some utility. And, at the same time, Local 1 is
not asking for a court to enforce the two awards preemptively
so as to dispose of the merits of the additional disputes in a
judicial forum; the union agrees that those disputes should
instead be resolved through the contractual grievance and
arbitration procedure.
In short, the circumstances of this case do not trigger the
barriers to prospective enforcement articulated in Honeywell or
Inland Steel Coal. Local 1 is not asking for the court to award
forward-looking relief not already awarded in arbitration, nor
is it seeking to bypass or preempt further arbitration between
the parties. To be clear, we are not saying that a union’s request
30 No. 15-3668
to confirm a cease-and-desist award in its favor must always be
as circumscribed as Local 1's is in this case. Our decision in
Honeywell does not wholly foreclose the possibility that there
might be circumstances in which a court properly could
prospectively enforce an award in such a way as to preempt
further arbitration on the same question. 522 F.2d at 1225, 1228.
But we leave consideration of when that course of action might
be appropriate for another case.
Hyatt pursues another challenge to confirmation that is
based on prudential concerns. It likens this case to those that
confronted the First Circuit in Derwin v. Gen. Dynamics Corp.,
supra, and which led that court to caution against confirming
a labor arbitration in a “vacuum.” 719 F.2d at 491.
The union and the employer in Derwin had recurring
disputes over the time off owed to union stewards from their
regular work so that they might investigate grievances and
handle related union matters. The collective bargaining
agreement specified an off-the-job pass system for this pur-
pose, and the employer in turn had adopted a set of guidelines
on the subject that the union opposed. An arbitrator upheld the
guidelines and articulated certain principles regarding appro-
priate practices with respect to the passes. Three years after the
arbitration award, when the employer and the union found
themselves in the midst of some 17 grievances over the em-
ployer’s failure to issue passes to stewards, the union filed suit
seeking confirmation of the award. The district court dismissed
the suit as untimely. The appellate court disagreed on that
point but nonetheless upheld the judgment.
No. 15-3668 31
In the First Circuit’s view, confirmation of the award was
“unwarranted.” Id. at 490. Although the union was seeking
confirmation simpliciter, without contemporaneously asking
for any declaratory, injunctive, or other prospective relief with
respect to pending grievances, the court was concerned that
such “paper” confirmation of the award (id.), because it opened
the door to subsequent contempt proceedings, posed the risk
of aggravating the parties’ ongoing disagreement rather than
facilitating its resolution. Where the parties have agreed to
arbitrate their disputes, the court noted, established labor
policy restricts the role of the federal judiciary; and courts had
traditionally treated with skepticism requests to confirm a
prior arbitration award in order to render the award binding
in the context of a later, factually similar dispute. Id. at 491.
“Only where an arbitral award is both clearly intended to have
prospective effect and there is no colorable basis for denying
the applicability of the existing award to a dispute at hand, will
a court order compliance with the award rather than require
the parties to proceed anew through the contract grievance
procedure.” Id. The union was asking the court to effectively
bifurcate a typical enforcement proceeding by seeking to
confirm the award in a vacuum and reserve concrete questions
about the propriety of enforcement (i.e., translating the award
into specific relief that might directly resolve the parties’
ongoing disputes) for a later date. The court questioned the
wisdom of that approach, fearing that confirmation of the
award would merely give the parties something more to argue
about. Id. at 491–92. The court, in its parting words, noted that
the substantive law regarding section 301(a) subsumes the
prudential values of Article III of the Constitution, which
32 No. 15-3668
counsel against the confirmation of arbitration awards in the
absence of a concrete dispute. While acknowledging the district
court’s authority to confirm the award and decide later
whether the parties’ disagreement should be resolved by a
judge or an arbitrator, the court was not persuaded of the
wisdom of that approach. “[W]e see no point to such spinning
of the wheels … .” Id. at 493.
Derwin, having been decided by a sister circuit, amounts to
persuasive but not binding authority in this circuit. Although
there are certain similarities between this case and Derwin,
there are also significant differences. Given those differences,
we do not believe that Derwin demonstrates any legal error in
the district court’s decision to confirm the awards at issue here.
First, as was not the case in Derwin, the two arbitrators here
not only attempted to give the parties guidance on how to
apply the relevant provision of the collective bargaining
agreement but specifically ordered Hyatt to refrain from
repeating the types of actions the arbitrators had found to be
in violation of the agreement. The arbitrators plainly thought
that section 56 of the CBA and their own rationale as to the
violations was clear enough to grant the union’s request for
prospective, “cease and desist” relief. In this respect, confirma-
tion of the awards serves to reinforce the scope of relief
awarded by the arbitrators rather than broadening the awards
in a way that the arbitrators themselves did not intend.
Second, Local 1 is not seeking confirmation in order to gain
any particular advantage with respect to the many additional
disputes pending between the parties, which by contrast was
the evident (if unspoken) aim of the union in Derwin. The First
No. 15-3668 33
Circuit plainly understood the union to be seeking confirma-
tion in order to enable the court itself to resolve additional
grievances that would otherwise be submitted to arbitration.
See id. at 491. Local 1, by contrast, has conceded that it must
arbitrate any grievances pre- and post-dating the district
court’s confirmation decision. Nothing in the union’s request
for confirmation suggested that it was asking the court to insert
itself into the arbitration process or in any way restrict the
authority of arbitrators to resolve the merits of future arbitra-
tions as they see fit. Confirmation simply preserves the
possibility of additional relief in the form of contempt sanc-
tions if and when the union prevails in future arbitrations (and
can make an appropriate case for such sanctions).
This case is like Derwin in that Local 1 is pursuing a bifur-
cated approach to enforcement of the arbitration awards: it has
asked the court to do nothing more than confirm the awards
now, and is reserving the matter of enforcement, through a
contempt proceeding, for a future date. In that sense, the union
asked the court to confirm the awards in a “vacuum,” as
Derwin put it. The court thus has not yet had the opportunity
to evaluate whether and how the two awards might bear on
any pending or future disputes on the same subject. The union
may or may not have a case to make for contempt sanctions if
and when those disputes result in findings by an arbitrator (or
multiple arbitrators) that Hyatt has persisted in practices that
violate section 56. If the union does seek contempt sanctions,
the court will necessarily have to consider, among other
factors, whether the circumstances of the later violations are
similar enough to those found by arbitrators Fleischli and
Kenis to warrant the inference that Hyatt has deliberately
34 No. 15-3668
defied the cease and desist directives of those two arbitrators.
No one can know at this point whether there will be such a
contempt proceeding and what the merits of the union’s case
for contempt sanctions might be. In that limited sense, this is
merely a “paper” confirmation.
But we are not as convinced as the First Circuit was that
confirmation in this context amounts to unwarranted busy
work on the part of the court. Two arbitrators have already
had an opportunity to consider a fairly substantial range of
alleged violations of section 56, to articulate what constitutes
an emergency permitting managers to perform bargaining-unit
work, and to decide that Hyatt should be ordered to cease and
desist from further violations of section 56. The foundation for
confirmation is thus significantly stronger than it was in the
cases we have just discussed. And although the matter of
enforcing the awards (through a potential contempt proceed-
ing) has been severed from the matter of confirmation, this
bifurcation ensures that the merits of additional grievances are
reserved for arbitration and that any contempt petition will in
no way preempt or disturb that contractual dispute-resolution
process. Again, given Local 1's concession, any contempt
request will be premised on grievances that post-date confir-
mation of the awards. To our mind, this grants maximum
deference to the contractual grievance and arbitration mecha-
nism by granting judicial confirmation to what has already
been resolved by the arbitrators and keeping the court’s hands
off of the matters that have not yet been resolved. It also
affords Hyatt ample opportunity to conform its practices to the
CBA and to the Fleischli and Kenis awards.
No. 15-3668 35
As we have said, the question whether the Fleischli and
Kenis awards should be enforced through a contempt finding
is a question to be taken up at a later date, if and when addi-
tional grievances have been arbitrated in the union’s favor and
the union makes a case for contempt sanctions. Nothing about
the union’s request for confirmation has asked the district court
or this court to prejudge the merits of any such request, and
the district court’s own remarks confirm that it has not
prematurely reached any conclusion as to the propriety of any
such sanctions.
Hyatt has given us no reason to believe that confirmation
of the Fleischli and Kenis awards now will in any way tie the
hands of arbitrators in future proceedings as to grievances
arising from the 41 pending alleged violations and any
additional grievances beyond those. See n.8, supra. In any case,
it is far from clear that postponing confirmation of these
awards to a later date would make any difference insofar as
Hyatt’s position is concerned; its objection to confirmation at
times appears absolutist. Hyatt goes so far as to suggest in the
briefing that the proper remedy for Local 1 to pursue, if it
believes that Hyatt is not complying with the Fleischli and
Kenis awards, is to call a strike of its members. (Section 7 of the
CBA provides that there shall not be strikes so long as Hyatt
follows the grievance procedure and abides by the results of
that procedure. R. 1-1 at 11 § 7(A).) That is a remarkable
position at odds with both the spirit of the arbitration provision
of the CBA and longstanding labor policy favoring the peace-
able resolution of labor disputes through arbitration.
In sum, although Local 1's request to confirm the two
awards can be understood to seek prospective enforcement of
36 No. 15-3668
the awards in that it opens the door to a contempt proceeding
at a later date, given the relative modesty of the union’s
confirmation request and its concession that any pending and
future disputes regarding the application of section 56 must
first be arbitrated and resolved in the union’s favor before it
pursues a request for contempt sanctions, we find nothing
improper in the district court’s decision to confirm the awards.
The union has asked us to remand the case to the district court
so that the judgment can be amended to expressly reflect that
any postjudgment disputes over section 56 indeed must be
arbitrated before Local 1 invokes them as the basis for a
contempt petition. We find that step to be unnecessary, given
that the union has unequivocally voiced its intent to arbitrate
any such disputes, the district court resolved the case with that
declaration in mind, and we have affirmed the district court’s
decision on that same understanding.
III.
The district court committed no error in granting Local 1's
motion for judgment on the pleadings and confirming the two
arbitration awards at issue in this case. There was no dispute
of fact material to confirmation of the awards that precluded
judgment on the pleadings, and none of the concerns we have
cited as rendering prospective enforcement of a labor arbitra-
tion award improper was present.
AFFIRMED