Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—2d Cir.: Former union members not bound by subsequent arbitration agreement, class settlement, (Jul 13, 2026)

By Todd Harrison, J.D.

“A general presumption against continued representation rights of a union vis-à-vis a former bargaining-unit member, absent a showing that the former member in some way authorized the representation, strikes us as consistent with federal labor policy generally.”

A mandatory arbitration agreement entered into by SEIU on behalf of home health aides cannot be used to bind former members who had left their jobs prior to the agreement to arbitrating their claims, ruled the Second Circuit, vacating a district court’s judgment insofar as it confirmed a settlement award’s application to the appellants. As to whether and to what extent the appellants and the classes they sought to represent are entitled to recovery on their statutory wage claims, the court left for the state courts to address in the first instance (1199 SEIU United Healthcare Workers East v. Chinese-American Planning Council Home Attendant Program, Nos. 21-631, 21-633, and 22-1587 (2d Cir. July 10, 2026)).

The consolidated appeals in this case concerned claims for statutory wage-and-hour law violations pursued by SEIU in a 2019 arbitration it brought against 42 employers on behalf of a class of more than 100,000 of its union’s members who worked as home healthcare aides in the New York City area.

Arbitral awards. In arbitral decisions issued in 2021 and 2022, the union won a multi-million dollar award.

MOA. The arbitration was brought by the union in reliance primarily on the terms of its 2015 Memorandum of Agreement (MOA) with the employers, in which they jointly amended their CBAs to mandate arbitration of statutory wage-and-hour claims. The arbitration addressed the wage claims of current employees of the employers as well as those of former employees who left their jobs—and their bargaining unit—prior to the 2015 MOA. However, the awards excluded nine pre-2015 MOA employees individually by name, but otherwise drew no distinction between employees who were still bargaining unit members when the MOA was entered into and those who had left before then.

Pre-arbitration suits. Beginning in early 2015, some employees filed wage-and-hour claims against their employers, many of which mirrored the claims later asserted by the union in the 2019 arbitration. Applying state law contracting principles, several state courts hearing those claims determined that while the arbitration was ongoing that the plaintiffs, and a potential class of similarly situated employees, were not bound by the MOA provision.

Awards confirmed. Meanwhile, in federal district court, the union petitioned for confirmation of the arbitrator’s 2021 award and a year later for confirmation of the 2022 award. It sought a confirmation order by which the awards would bind all union members and employees, past and present, with the sole exception of the nine named pre-MOA plaintiffs.

Some pre-MOA employees moved in the district court to intervene in the first and second confirmation proceedings and to dismiss the second award. Among the grounds asserted by these plaintiffs was that they did not agree to arbitrate their claims, and that they were not union members when the union agreed to mandatory arbitration, and thus the union could not waive their rights to judicial consideration of their claims.

Denying their intervention motions, the district court confirmed both awards in their entirety, save for the nine named plaintiffs. The appellate court here considered whether the district court erred in denying intervention to the pre-MOA employees, and whether it erred in confirming either award insofar as the award purported to cover one or all of the appellants and, potentially, other similarly situated pre-MOA employees.

Standing. In denying the motion to intervene, the district court concluded that the appellants lacked Article III standing. In doing so, it relied primarily on the Second Circuit’s decision in Katir v. Columbia Univ., 15 F.3d 23 (2d Cir. 1994), pointing to that opinion’s statement that “an individual employee represented by a union generally does not have standing to challenge an arbitration proceeding to which the union and the employer were the only parties.” Further, the district court determined that the intervention motions failed on the merits. The appellate court disagreed with these conclusions.

On the issue of standing, the court noted that it has long held that non-parties to arbitration have Article III standing to intervene in a confirmation proceeding regarding the arbitration if they can demonstrate a sufficient stake in its outcome. The appellants satisfied that burden here by demonstrating that the first award, when confirmed, would compel them either to arbitrate their claims in the union’s grievance proceedings, requiring them to abandon their pending state court actions, or to arbitrate the claims of the classes they had sought to represent. The second award, once confirmed, would restrict their potential recovery.

Katir. With regard to Katir, the court explained that its determination was fully consistent with that holding. That case concerned an employee who was fired and the union proceeded on her behalf in an arbitration challenging her dismissal. The arbitrator found in favor of the employer, and the employee then sued the employer in state court, independent of the union. Summary judgment was granted to the employer as the court found the employee did not have standing. The Second Circuit affirmed the grant of summary judgment.

Here, in contrast, the appellants were no longer employed by their respective employers at the end of 2015 and were not members of a covered bargaining unit when the MOA was executed. Accordingly, the union had no free-standing duty to represent them concerning statutory wage claims in 2019 when it entered into arbitration.

Merits. Turning to the merits of the appellants’ motions to intervene, the court concluded that they satisfied Rule 24(a)’s “Intervention of right.” The court noted that their “interest” lay not merely in possibly obtaining compensation for the employers’ asserted violations of statutory wage laws, it was also in having those claims addressed and resolved in a judicial, rather than an arbitral, forum. Thus, the district court was mistaken in concluding otherwise and refusing their Rule 24(a) motion to intervene as of right.

Who decides? Next, the court considered the question of “who decides?” That is, did the union and the employers agree that an arbitrator would decide whether the parties agreed to arbitrate their merits question, or was that left to the court to decide? According to the union, this gateway question was delegated to the arbitrator. In response, the appellants argued that they were not bound by the MOA by virtue of the fact that they had stopped working for any of the employers and were not represented by the union at the time of its execution. The court found the appellants had the better argument, and the district court erred in ruling otherwise.

Nowhere did the MOA clearly and unmistakably delegate the arbitrability question to the arbitrator, even assuming that it might bind individuals who were no longer in a bargaining unit when it was adopted, explained the court. Accordingly, that question was assigned for judicial determination.

Having concluded that the MOA “evinced a clear consent to arbitrate and delegate questions of arbitrability to the Arbitrator,” the district court did not review de novo the arbitrator’s ruling that the wage claims of the pre-MOA employees, including those of the appellants, were arbitrable, without differentiation from the claims of employees who remained in a covered bargaining unit. In doing so now, the question before the court was whether the union and the employers agreed in the MOA to authorize the arbitrator to decide the accrued statutory wage claims of the appellants and, if they did, whether they had the authority themselves to do so.

Boundaries. The court noted that the boundaries of a union’s possible authority and duty to represent former members were undetermined in the Second Circuit. However, other circuits have determined that a union’s representative authority does not automatically extend to its former members. Those circuits rely on a heavily fact-dependent analysis in determining whether a former bargaining unit member authorized, expressly or impliedly, a union to continue to represent them and act on their behalf and whether such representation would be consistent with federal labor policy.

“A general presumption against continued representation rights of a union vis-à-vis a former bargaining-unit member, absent a showing that the former member in some way authorized the representation, strikes us as consistent with federal labor policy generally,” said the court, noting that a blanket rule or contrary presumption in favor of continued representation rights would be in tension with federal labor law. However, a general, rebuttable presumption against continued representation appeared to the court to be workable and fully consistent with federal labor policy. Accordingly, it adopted and applied that approach here.

No authority. The Second Circuit joined its state court counterparts in concluding that the union did not have authority to bargain on behalf of the appellants and other pre-MOA employees. Thus, the MOA did not require the appellants to arbitrate their statutory wage claims and the awards did not bind them, said the court. Insofar as the awards purported to do so, the arbitrator exceeded the scope of his authority, and partial vacatur of the awards and their related confirmation decisions was required. Therefore, the district court’s judgment was vacated insofar as it confirmed the awards’ application to the appellants.

“Whether, and to what extent, they and the classes they seek to represent are ultimately entitled to recover on their statutory wage claims are questions we think best left for the state courts to address in the first instance and to resolve in the pending actions,” concluded the court.

The case is Nos. 21-631, 21-633, and 22-1587.

Judge: Carney, S.

Attorneys: Laureve Blackstone (Levy Ratner) for 1199 SEIU United Healthcare Workers East. Kenneth Kirschner (Hogan Lovells US) for Chinese-American Planning Council Home Attendant Program and United Jewish Council of the East Side Home Attendant Service Corp. LaDonna M. Lusher (Virginia & Ambinder) for Gail Yan, Alvaro Ramirez Guzman, Elida Agustina Mejia Herrera, Leticia Panama Rivas, Eugenia Barahona Alvarado, Rafaela Cruceta, Virtudes Duran, Wai Kam Lou, Yue Ming Wu, and Cui Ying Mai.

Companies: 1199 SEIU United Healthcare Workers East; Chinese-American Planning Council Home Attendant Program; United Jewish Council of the East Side Home Attendant Service Corp.

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