Opinion
Civil Action 21-1907
12-11-2023
J. AMBROGI FOOD DISTRIBUTION, INC v. TEAMSTERS LOCAL UNION NO. 929
John R. Padova, J.
MEMORANDUM
John R. Padova, J.
Plaintiff J. Ambrogi Food Distribution, Inc. (“JAF”) commenced this action against Defendant Teamsters Local Union No. 929 (the “Union”), asserting claims for breach of the parties' collective bargaining agreements (“CBAs”) and declaratory relief. The claims primarily arise out of the Union's discussions of a strike in the Spring of 2021 and an alleged work stoppage on May 1, 2021, all of which JAF contends violated the CBAs' no-strike provisions. After extensive discovery, the Union filed a Motion for Summary Judgment. We held argument on the Motion on September 20, 2023. For the following reasons, we now grant the Motion and enter judgment in the Union's favor.
I. BACKGROUND
A. Facts
The summary judgment record contains the following undisputed facts. JAF's primary business is the distribution of fruits and vegetables. (Jt. Statement of Undisputed Material Facts (“Jt. Facts”) ¶ 29.) In May of 2021, the Union represented four bargaining units at JAF's facility in West Deptford, New Jersey. (Id. ¶ 7.) The four bargaining units are (1) delivery drivers, (2) packers/custodians, (3) pullers, and (4) warehouse workers. (Id. ¶ 8.) Each bargaining unit is governed by a separate CBA, which sets forth the bargaining unit's terms and conditions of employment. (Id. ¶ 8.) The terms of the CBAs at issue were June 1, 2017 to June 30, 2022. (Id.¶ 20.) Employees in the bargaining units were obligated to join the Union, and there were about 91 employees in the four bargaining units. (Id. ¶ 16.)
The relevant provisions of the four CBAs are identical. (Id. ¶ 19.) Each CBA contains a grievance-arbitration procedure in Article 15, which states that “All grievances or disputes arising under the terms of this Agreement shall be handled in accordance with the manner provided in this Article.” (CBA, Union Ex. E, at Art. 15; Jt. Facts ¶ 21.) More specifically, it states that “[i]n the case of grievances presented either by the Local Union or the Employer arising under the terms of this Agreement involving general interpretation of the Agreement or of general or uniform operations hereunder,” “the matter shall be adjusted, if possible, by negotiations between the officers and representatives of the Union and the designated representatives of the Employer.” (CBA at Art. 15 ¶ 1.) If the Union and Employer are unable to adjust the matter through negotiations, the CBA provides that the matter shall be submitted to arbitration in accordance with the rules of the American Arbitration Association, and “[t]he decision of the arbitrator shall be final and binding upon the parties.” (Id. Art. 15 ¶ 2.) Each CBA also contains a no-strike provision, which states: “Except for the failure of the Employer to abide by an arbitration award after a decision by the arbitrator, the Union agrees that there shall be no strikes, stoppages of work, or slowdowns, for any reason whatsoever during the term of this Agreement.” (Id. Art. 15 ¶ 3 (emphasis added)).
Kristy's Kuts, Inc. is a company with common ownership with JAF. (Jt. Facts ¶ 35.) Kristy's Kuts' business involves the cutting and packaging of fruits and vegetables. (Id. ¶ 38.) The Union represented employees at Kristy's Kuts pursuant to a CBA that was set to expire on April 30, 2021. (Id. ¶ 39.) On February 11, 2021, Kristy's Kuts advised Union President Rocky Bryan that a majority of its bargaining unit no longer wanted Union representation. (Id. ¶ 40.) In response, Bryan wrote a February 12, 2021 email to JAF President Kristy Ambrogi, in which he stated that unless Kristy's Kuts had a successor CBA in place by April 30, 2021, the Union would strike, “including extending picket line [sic] whenever and wherever necessary.” (Id. ¶¶ 41-42.)
In March and April of 2021, the Union convened outside of JAF and Kristy's Kuts' facilities on several occasions with a large inflatable rat. (Id. ¶¶ 43-44.) On March 23, 2021, JAF Operations Manager Brian Stocklin told Kristy Ambrogi “that he heard rumors from at least one employee that the Union was talking about having a strike.” (Id. ¶ 51.) JAF's lawyer sent a letter to the Union on March 24, 2021, stating that JAF had heard reports that the Union “intend[ed] to instigate a work stoppage.” (Id. ¶ 52.) JAF's counsel threatened to sue the Union for money damages for any business lost as a result of a work disruption and stated that such damages would “likely run into the millions of dollars.” (Id. ¶ 53.) The Union's counsel responded in a March 29, 2021 letter that the Union had “made no threat of engaging in a strike or slowdown” and suggested that JAF “rely on communications made by the Union's leadership and counsel, instead of rumors and gossip.” (Id. ¶ 54.) Union counsel also responded to JAF's counsel's claim that a strike would violate the CBA, asserting that “Article 5 clearly states that it is not a violation of the agreement if employees refuse to enter property or cross a picket line of an employer with whom the Union is involved in a labor dispute,” and “also permits the drivers to refuse to carry struck goods.” (Id. ¶ 55; see also CBA at Art. 5 ¶ 1 (“It shall not be a violation of this Agreement, and it shall not be cause for discharge or disciplinary action nor shall such employee be permanently replaced in the event an employee refuses to enter upon any property involved in a primary labor dispute, or refuses to go through or work behind any primary picket line, including the primary picket line of Unions party to this Agreement, and including primary picket lines at the Employer's places of business.”).)
In March of 2021, Union shop stewards had a conversation with Kristy Ambrogi, Stocklin, and JAF Human Resources Director Michael Blimm, about a “potential strike.” (Jt. Facts ¶¶ 56, 76.) In late March 2021, JAF puller Dennis Havers also told Stocklin that the union was planning to strike. (Id. ¶ 57.) During the last week of March, Kristy Ambrogi instructed Blimm to research companies to provide temporary staffing in case of a strike. (Id. ¶ 76.) On April 15, 2021, JAF entered into a Service Agreement with a staffing agency, STS of NYS, Inc. (“STS”), for temporary replacement workers. (Id. ¶¶ 77, 84.) JAF paid STS a non-refundable deposit of $25,000 on April 16, 2021. (Id. ¶¶ 86-87.) On April 15, 2021, JAF also made a decision to hire a security firm. (Id. ¶ 99.)
One week prior, on April 8, 2021, Bryan submitted a Request for Approval of Strike Benefits Assistance (“SBA2”) to the appropriate Joint Council and Trade Division/Conference. (Id. ¶¶ 68, 70.) That request, which must be submitted just prior to or immediately after a strike occurs, stated that the proposed date of the strike was May 1, 2021, and stated that the Union would be holding a meeting on April 25, 2021. (Id. ¶¶ 71, 73-74.) Five days later, on April 13, 2021, Bryan submitted a “Notification of Any Contemplated Action and Request for Procedural Recognition Prior to Action (‘SBA1'),” which is the initial step taken by a union to notify the International Brotherhood of Teamsters of a pending strike, and requested recognition of the strike so that bargaining unit employees could receive strike funds. (Id. ¶¶ 62-63.)
On April 19, 2021, JAF Drivers and Union Shop Stewards Anthony Polis and Greg Palestini discussed strikes with Kristy Ambrogi, Stocklin, Blimm, and JAF Vice President Michael Ambrogi, who told the Union workers that it was illegal to strike. (Id. ¶ 58.) At Bryan's direction, the Union prepared and mailed a flyer to employees titled “Update Notice of Pending Strike,” which informed employees of both JAF and Kristy's Kuts that there was a meeting scheduled for April 25, 2021. (Id. ¶¶ 80, 82; Update Notice, JAF Ex. B.) Someone left that flyer on Stocklin's desk, and he gave the flyer to Kristy Ambrogi. (Jt. Facts ¶¶ 81, 83.) On April 25, 2021, the Union held the scheduled membership meeting to discuss picketing and a possible strike. (Id. ¶ 79.) Bryan told those in attendance that the Union might initiate a strike. (Id. at 15 ¶ 86.)Michael Hammond, a JAF driver, testified at his deposition that Bryan said at the meeting that “if [members] don't participate in the strike, [they're] not going to get to be in the union.” (Jt. Facts ¶ 93 (alterations in original); see also Hammond Dep., Union Ex. N, at 19).) In late April, 2021, Bryan posted a green flyer on the Union's cork board at the Philadelphia Market stating, “On Saturday May 1st Local 929 Will Be Picketing J. Ambrogi Food.” (Jt. Facts ¶¶ 94, 105; Green flyer, JAF Ex. C.) JAF learned of this notice in late April “from a non-bargaining unit JAF employee who saw it and sent a picture of it to JAF.” (Jt. Facts ¶ 106.)
On April 25, 2021, JAF verbally finalized a Security Agreement with LMC Security (“LMC”) and, two days later, on April 27, 2021, it entered a written agreement with LMC to provide security personnel on May 1, 2021. (Id. ¶¶ 100-01.) The minimum amount for the LMC contract was $47,201.00, which was a non-refundable security guarantee. (Id. ¶¶ 102-03.) JAF wired that amount to LMC on April 28, 2021. (Id. ¶ 104.) Also on April 28, 2021, STS replacement workers began training to drive JAF delivery routes in the event of a strike. (Id. ¶ 107.)
On April 27, 2021, JAF driver and assistant Union shop steward Jimmy Sparks had a discussion with Stocklin about “employees not reporting to work during the Union's planned strike” and “Sparks' understanding from . . . Rocky Bryan that JAF employees would be fined or expelled from the Union if they came to work during the . . . strike.” (Id. ¶ 60.) Also on April 27, 2021, JAF driver Greg Girard had a discussion with Stocklin regarding the Union's “plan to conduct a strike.” (Id. ¶ 61.)
Twenty-nine Union drivers were scheduled to work for JAF on May 1, 2021. (Id. ¶ 112.) Only two drivers did not report to work as scheduled. (Id. ¶ 113.) The first, JAF driver Paul Whalin, called off at 5:05 a.m. for his 5:00 a.m. shift. (Id. ¶ 114.) He told dispatch that he was calling off because of the Union strike, although he called back and changed his reason to “car trouble,” because “he did not want to get in trouble with the Union and the Company.” (Id. ¶ 116; see alsoWhalin Dep., Union Ex. S, at 27-29, 42-43.) He subsequently explained that he thought that the Union was striking that day “because ‘[t]hey were talking about it.'” (Jt. Facts ¶ 130 (quoting Whalin Dep. at 23).) The second Union driver who did not report to work as scheduled was JAF driver Michael Hammond, who came to work 45 minutes late and told Kristy Ambrogi and Stocklin that he did not come in on time because he thought there would be a strike and that the Union had made him look like an “asshole” because he thought the Union was striking. (Id. ¶ 118 and n.114; Hammond Dep., Union Ex. N, at 27-29.)
Neither Whalin nor Hammond were disciplined for their call-offs. (Jt. Facts ¶¶ 117, 120.) Both testified that the Union had said that if there was a giant inflatable rat in front of JAF, that meant that the Union was on strike. (Id. ¶ 121-22.) Neither, however, saw a giant inflatable rat on May 1, 2021. (Id. ¶¶ 123-24.) In addition, neither Whalin nor Hammond saw any Union officer at the JAF facility on May 1, 2021, and neither had seen the green flyer at the Philadelphia Market announcing picketing. (Id. ¶¶ 126-29; Hammond Dep. at 23, 35; Whalin Dep. at 25-26, 44.) JAF used two drivers provided by STS to cover Hammond's and Whalin's delivery routes on May 1, 2021. (Jt. Facts ¶ 143.) On other occasions, when a bargaining unit driver calls out, JAF makes sure the route is covered by calling in either another bargaining unit driver or a nonbargaining unit individual to cover the route. (Id. ¶¶ 33-34.) JAF paid a total of $662,153.14 to STS, and paid $47,201.00 to LMC. (Id. ¶¶ 147, 149.)
B. Procedural Background
JAF filed its original Complaint in this action on April 26, 2021, and it asked for damages for breach of the CBAs and a declaration that the Union's “pending strike” would similarly violate the CBAs. (Compl., Docket No. 1, at 10 ¶ B.) This Complaint was served on the Union on April 29, 2021, before Whalin and Hammond called out of work on May 1. (See Docket No. 6.) On May 17, 2021, the Union filed a Motion to Dismiss, in which it argued, inter alia, that no strike had occurred. (See Docket No. 8.)
JAF filed an Amended Complaint “for Damages and Other Equitable Relief” on May 28, 2021. (Am. Compl., Docket No. 9.) Like the original Complaint, the Amended Complaint contains claims for damages (Count 1) and declaratory relief (Count 2) pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Count 1 asserts that the Union violated (and repudiated) the CBAs because it “instigated and will continue to instigate intermittent strikes and/or stoppages of work.” (Am. Compl. ¶¶ 40-42; see also id. at 11 ¶ C (seeking judgment finding “that the Union has violated the CBA by threatening and ordering a strike and/or stoppage of work at JAF”).) The Amended Complaint alleges that JAF suffered damages of $3 million to $4 million in anticipation of continuing violations of the CBAs, although it now appears that JAF primarily seeks to recover only its costs of hiring STS and LMC. (Id. ¶ 43; Kristy Ambrogi Dep., Union Ex. O, at 72.) Count 2 of the Amended Complaint seeks a declaratory that Article 5 of the CBAs “does not permit the Union to order, maintain, sanction, or permit a strike or stoppage of work at JAF.” (Am Compl. ¶ 50.)
The Union filed a Motion to Dismiss the Amended Complaint for either lack of jurisdiction or failure to state a claim on which relief can be granted, which was denied on March 29, 2022. Thereafter, discovery commenced and continued for a year, through March of 2023. The Union then filed the instant Motion for Summary Judgment. We held argument on the Motion on September 20, 2023.
II. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it “might affect the outcome of the suit under the governing law.” Id. In ruling on a summary judgment motion, we consider “the facts and draw all reasonable inferences in the light most favorable to . . . the party who oppose[s] summary judgment.” Jacobs v. Cumberland Cnty., 8 F.4th 187, 192 (3d Cir. 2021) (citing Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018)). If a reasonable fact finder could find in the nonmovant's favor, summary judgment may not be granted. Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 130 (3d Cir. 2002) (citation omitted).
“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by “pointing out to the district court” that “there is an absence of evidence to support the nonmoving party's case.” Id. at 325. After the moving party has met its initial burden, the adverse party's response “must support the assertion [that a fact is genuinely disputed] by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials [that the moving party has cited] do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). Summary judgment is appropriate if the nonmoving party fails to respond with a factual showing “sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. However, “[unsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)).
III. DISCUSSION
The Union seeks summary judgment in its favor on both of JAF's claims. It also argues that JAF failed to exhaust its available contractual remedies pursuant to the CBA's grievance and arbitration provisions and that the court should therefore dismiss this action and order it to proceed pursuant to the CBA's arbitration provisions. As the failure to exhuast is a threshold issue, we address it before moving on to the Union's other arguments.
A. Failure to Exhaust
The Union argues that the court should order JAF to utilize the grievance process set forth in the CBA, which requires final and binding arbitration of contractual disputes. JAF, however, maintains that the Union has waived this argument by failing to raise it earlier.
Section 301(a) of the LMRA states, in relevant part:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.29 U.S.C. § 185(a). While this provision gives federal courts jurisdiction over labor disputes involving the breach of a CBA, the “primacy of arbitral resolution of industrial disputes [remains the LMRA's] centerpiece.” Voilas v. Gen. Motors Corp., 170 F.3d 367, 372 (3d Cir. 1999) (citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455-56 (1957)). In this regard, the LMRA provides that “final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement.” 29 U.S.C. § 173(d). Moreover, “it has been established that where the [CBA] contains an arbitration clause, there is a presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650 (1986) (quotation omitted) (citation omitted).
In this case, as noted above, Article 15 of the CBA includes a grievance procedure to resolve disputes arising from a breach of the Agreement. It provides in pertinent part that:
All grievances or disputes arising under the terms of this Agreement shall be handled in accordance with the manner provided in this Article.
1. Grievances must be reduced to writing and presented within five (5) working days of their occurrence.... [T]he matter shall be
adjusted, if possible by negotiations between the officers and representatives of the Union and the designated representatives of the Employer. In the case of grievances presented either by the Local Union or the Employer arising under the terms of this Agreement involving general interpretation of the Agreement or of general or uniform operations hereunder, or affecting all or a substantial number of the employees generally, the procedure set forth in the immediately preceding sentence shall be followed initially.
2.....If [the] matter cannot be adjusted by the representatives of the Employer and the Local Union, then it may be submitted to arbitration in accordance with the rules of the American Arbitration Association. The decision of the arbitrator shall be final and binding upon the parties to this agreement.(CBA at Art. 15 (emphasis added).)
Here, the Union argues that the JAF's claims are for breach of the CBA and that JAF was therefore required to obtain relief through final and binding arbitration, which can provide JAF full relief. The Union relies on United Paperworkers International Union v. Misco, Inc., 484 U.S. 29 (1987), which states that “courts have jurisdiction to enforce collective bargaining-contracts; but where the contract provides grievance and arbitration procedures, those procedures must first be exhausted and the court must order resort to the private settlement mechanisms without dealing with the merits of the dispute.” Id. at 37. The Union therefore maintains that we should dismiss this action and require JAF to utilize the CBA's grievance and arbitration process.
JAF does not deny that its claims in this case could be resolved through the CBA's grievance and arbitration procedures. Instead, JAF asserts that the Union has waived its right to seek arbitration because its “demand for arbitration comes long after the suit commenced and [after] both parties have engaged in extensive discovery.” Zimmer v. CooperNeff Advisors, Inc., 523 F.3d 224, 231-32 (3d Cir. 2008) (quoting Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 222-23 (3d Cir. 2007)). It relies primarily on a recent opinion of the United States Court of Appeals for the Third Circuit, White v. Samsung Electronics America, Inc., 61 F.4th 334 (3d Cir. 2023), in which the court held that the defendant had knowingly relinquished its right to arbitrate by acting inconsistently with that right insofar as it actively engaged in litigation for well over a year before moving to compel arbitration. Id. at 339-41 (observing that defendant knew of the arbitration provisions, and yet “sought and agreed to delays in discovery,” “pursue[d] motions to dismiss on the merits,” “engaged in multiple instances of non-merits motion practice,” “filed a motion for certification of an interlocutory appeal,” and “participated in numerous court conferences”).
JAF contends that this case is essentially indistinguishable from White and that we should therefore find that the Union, like the defendant in White, waived its right to arbitration. While White did not arise in the labor context, a number of other cases have applied waiver principles in the context of a labor dispute involving a CBA containing an arbitration provision. See, e.g., Coca-Cola Bottling Co. v. Soft Drink & Brewery Workers Union Loc. 812, 242 F.3d 52, 57 (2d Cir. 2001) (applying waiver principles but finding that union had not waived its right to enforce CBA's arbitration provision when it waited four months to raise issue, and distinguishing case from others in which party charged with waiver had engaged in more protracted litigation); Jones Motor Co. v. Chauffeurs, Teamsters & Helpers Loc. Union No. 633, 671 F.2d 38, 42 (1st Cir. 1982) (finding that union “has by its conduct in court waived any right that it might have to insist on arbitration” of employer's claim for damages from an illegal strike, because it answered complaint, engaged in discovery, and filed for summary judgment).
Most recently, in Sysco Minnesota, Inc. v. Teamsters Local 120, 958 F.3d 757 (8th Cir. 2020), the United States Court of Appeals for the Eighth Circuit stated that a party to a CBA “waives its right to [grievance and arbitration] procedures if it: (1) knew of its right to these procedures, (2) acted inconsistently with that right, and (3) prejudiced the other party with these inconsistent acts.” Id. at 762 (citation omitted). With respect to the second factor, it explained that “[a] party acts inconsistently with its right to arbitrate if the party ‘[s]ubstantially invoke[s] the litigation machinery before asserting its arbitration right.'” Id. at 762 (second and third alterations in original) (quoting Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007)). “A party substantially invokes the litigation machinery when, for example, it files a lawsuit on arbitrable claims, engages in extensive discovery, or fails to move to compel arbitration and stay litigation in a timely manner.” Id. (quoting Lewallen, 487 F.3d at 1090). “To safeguard its right to arbitration, a party must ‘do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.'” Id. (quoting Lewallen, 487 F.3d at 1091).
In the instant case, the Union plainly knew of the arbitration provision in the CBA, which it negotiated, and explicitly asserted as an affirmative defense in its Answer to the Amended Complaint that JAF's “claims should be resolved by the grievance-arbitration procedure in the contracts.” (Answer, Docket No. 16, Affirm. Defenses ¶ 15); accord Sysco, 958 F.3d at 762 (stating that the first factor of the three-factor test was satisfied because the union “knew that it had a right to arbitration because it negotiated the CBA's terms and listed the CBA's grievance procedures as a defense to [the plaintiff's] breach claim in its answer”). Nevertheless, the Union moved to dismiss both JAF's initial Complaint and the Amended Complaint without seeking to enforce JAF's duty to grieve or arbitrate and, after answering the Amended Complaint, it took part in a Rule 16 Conference without moving either to compel arbitration or to stay the case pending exhaustion of the grievance and arbitration procedures. (See Docket Nos. 8, 11.) Thereafter, the Union actively participated in months of discovery and only raised JAF's failure to exhaust the grievance and arbitration procedures after discovery had concluded and it moved for summary judgment. Under these circumstances, it seems plain that the Union did not “‘do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.'” Sysco, 958 F.3d at 762 (quoting Lewallen, 487 F.3d at 1091); see also White, 61 F.4th at 339-41 (requiring consideration of the circumstances and context of each case, and finding waiver where party acted inconsistently with an intent to arbitrate). We therefore conclude that the Union acted inconsistently with its right to arbitrate by waiting until the summary judgment stage to litigate the issue and thus, the requirements for a finding of waiver are satisfied.
The Union contends, however, that its delay should be excused because it had no meritorious basis to demand arbitration until discovery revealed that JAF was not seeking tort damages. By the Union's account, the Amended Complaint includes state law tort claims that the Union interfered with JAF's contractual relations with its customers, which are not arbitrable. The Union contends that it only concluded that arbitration was an option after JAF stated in its September 22, 2022 responses to interrogatories that it was no longer pursuing damages for its inability to meet contractual commitments because its mitigation efforts had enabled it “to fulfill [those] commitments until . . . the Union abandoned its unlawful efforts to disrupt the Company's business.” (Union Ex. L at 21.) JAF maintains that it never asserted tort claims in this action and only sought monetary damages for reputational harm and damage to customer relations as contract damages that flowed from the Union's breach of the no-strike clause. JAF therefore argues that the Union's assertion that all of the claims in the lawsuit could not have been submitted to arbitration long before now is meritless.
Upon consideration of these opposing arguments, along with the Complaint and Amended Complaint, we conclude JAF never asserted tort claims in this action, but only asserted contract and declaratory judgment claims. Moreover, even if JAF had asserted tort claims and then abandoned those claims in September of 2022, we would still find that the Union had waived its right to arbitration, because it provides no explanation as to why it did not seek to compel arbitration between September 22, 2022 and March 6, 2023, when it filed the instant summary judgment motion. We therefore conclude that the Union has provided no valid excuse for its delay.
For the foregoing reasons, we conclude that the Union knowingly waived its right to enforce the grievance and arbitration provisions in Article 15 of the CBA, and we therefore reject the Union's argument that this case should be dismissed because JAF failed to exhaust its contractual remedies.
B. Merits Arguments
Having concluded that this case need not be resolved pursuant to the contractual grievance and arbitration procedures, we now address the Union's arguments that we should enter judgment in its favor on the merits Specifically, the Union argues that: (1) the undisputed evidence demonstrates that the Union did not breach the no-strike clause; (2) the undisputed evidence demonstrates that the Union did not commit an anticipatory breach; and (3) we cannot grant a declaratory judgment regarding the meaning of Article V because there is no actual dispute regarding Article V's meaning. We address these three arguments in turn.
1. Breach of contract
JAF's breach of contract claim is grounded on its assertion that the Union breached the CBA on May 1, 2021, when JAF drivers Whalin and Hammond called out of work. (See 9/20/23 Hrg. Tr. at 14-15.) JAF contends that the actions of these two workers constituted a strike in violation of the CBA's no-strike clause. The Union seeks summary judgment on this claim, arguing, inter alia, that the conduct of these two workers did not constitute a strike under the LMRA and the CBA.
Section 501(2) of the LMRA defines the term “strike” as “any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective bargaining agreement) and any concerted slowdown or other concerted interruption of operations by employees.” 29 U.S.C § 142(2). While Congress has provided this definition, “[t]here is . . . no magic appellation indispensable to a judicial determination that a union has engaged in a strike.” Adley Express Co. v. Highway Truck Drivers & Helpers, Loc. No. 107, 349 F.Supp. 436, 442 (E.D. Pa. 1972). The Third Circuit has stated that “‘strike' is generally understood to mean a cessation of work by employees, accompanied by picket lines which in combination impair or prevent production in all of the employer's premises.” Jones & Laughlin Steel Corp. v. United Mine Workers of Am., 519 F.2d 1155, 1158 (3d Cir. 1975); see also Sheet Metal Workers' Int'l Ass'n AFL-CIO v. N.L.R.B., 989 F.2d 515, 520 (D.C. Cir. 1993) (quoting Jones & Laughlin Steel Corp., 519 F.2d at 1158). Similarly, the Adley Express court has found there to be a strike where there was “a concerted [city-wide] work stoppage, recommended by the Union's officers, voted unanimously by the business agents and the rank and file, implemented by the failure of the Union membership to report for work, and resulting in cessation of business operations of the employers.” Adley Express Co., 349 F.Supp. at 442; id. at 440 (characterizing the work stoppage as city-wide). Meanwhile, the United States Court of Appeals for the Eleventh Circuit has stated that “the commonly understood definition of ‘strike' in a labor context is ‘a temporary stoppage of work by a body of workers designed to enforce compliance with demands (as changes in wages, hours, or working conditions) made on an employer.'” Dunn v. Air Line Pilots Ass'n, 193 F.3d 1185, 1194 (11th Cir. 1999) (quoting Webster's Third New International Dictionary 2262 (1986)). What is clear is that we must consider “substance over formality,” so that a “‘cessation of work by a group is no less a strike because the group may not have labeled it a strike, or engaged in the additional activities which usually accompany a strike.'” Adley Express Co., 349 F.Supp. at 442 (quoting In re Massey Gin & Machine Works, Inc., 78 N.L.R.B. 189, 190 (1948)). Likewise, where “none of the employees of plaintiffs are working,” a strike has occurred, and it does not matter if “no strike has been formally voted.” Id. (quoting Favino Mech. Constr. Ltd. v. Loc. 269, Plumbing & Pipefitting Indus., 66 CCH Lab. Cas. ¶ 12,180 (S.D.N.Y. 1971)).
In this case, it is undisputed that only two of 29 Union drivers scheduled to work on May 1, 2021, failed to report to work as scheduled that day. (Jt. Facts ¶¶ 112-13.) While both drivers who did not report as scheduled-Paul Whalin and Michael Hammond-testified at their depositions that they did not go to work because they thought the Union was striking, JAF conceded at argument that the two workers were mistaken. (9/20/23 Hrg. Tr. at 17; see also Hammond Dep. at 38 (testifying that he did not report to work on May 1, because he thought there was a strike, but that turned out to be a misunderstanding).) Indeed, the workers testified that the sign for a strike was a giant inflatable rat in front of the workplace, and it is undisputed that no giant inflatable rat was present on May 1, 2021. (Jt. Facts ¶¶ 111, 121-22.) Whalin also specifically testified that the Union had not directed workers not to come to work, but had only told them not to cross any picket line that was set up. (Whalin Dep. at 38.)
The undisputed facts also make clear that Hammond and Whalin did not act in concert “to enforce compliance with demands . . . made on [JAF].” Dunn, 193 F.3d at 1194; see also 29 U.S.C § 142(2) (defining a strike as “concerted” action). Indeed, Whalin testified at his deposition that his failure to show up at work on May 1 was not because he was participating in a strike to force action by JAF but, rather, was because he did not want to be involved in any strike activity. (See Whalin Dep. at 28, 38-39.) Specifically, Whalin testified that he thought that the Union was striking that day because it had been “talking about” a strike and he “figured, like I don't want to be there and do all of this,” so he called out instead. (Jt. Facts ¶ 130; Whalin Dep. at 28.) As he explained, he “personally just didn't want to be there . . . if [a strike] was happening.” (Whalin Dep. at 38-39.) Thus, the undisputed evidence is that Whalin failed to report to work on May because he wanted to avoid engaging in strike activity, not to strike in concert with others.
For his part, Hammond testified that he arrived at work forty-five minutes late on May 1, and that when he got there, people were “kind of confused,” “some people went [in],” and “some people didn't,” but then someone told all of them to “Go there and take your routes.” (Hammond Dep. at 27-28; see also id. at 28 (“[T]hey were telling people to, ‘Take your routes out.'”).) At that point, Hammond went “up to the window” and told Stocklin that he was late because he thought they were supposed to strike, but it looked like that hadn't happened. (Id. at 26-27.) Hammond also testified that he had only one conversation about the strike with shop steward Tony Polis sometime between April 25 and May 1, and Polis told him that there was no set date for a strike, but that if he got to work and saw the rat, that meant there was a strike. (Id. at 23-25.) Hammond had no other conversations with, and exchanged no texts with, any other union members about the purportedly planned strike. (Id. at 25-26.) Thus, the record evidence supports only the conclusion that Hammond did not act in concert with anyone else in failing to report as scheduled on May 1, and that he realized upon arrival at work that no strike was occurring.
In light of the above evidence, we can only conclude that there was no strike on May 1, 2021, because there was no “concerted” work stoppage or slowdown, 29 U.S.C § 142(2), “designed to enforce compliance with demands,” Dunn, 193 F.3d at 1194, which “impair[ed] or prevented] production in all of the employer's premises,” Jones & Laughlin, 519 F.2d at 1158. To the contrary, although there had been talk of a strike occurring leading up to May 1, 2021, that strike did not come to pass as the Union did not put out the agreed-upon strike signal (the inflatable rat), workers were told on May 1, 2021 to “take [their] routes,” 27 of 29 drivers reported to work as scheduled, and the only two drivers who did not report as scheduled either admitted that they had been wrong about a strike occurring or only failed to show to avoid participating in any strike activities. There is also no evidence that the loss of two drivers on May 1, 2021 did-or even could have-impaired or prevented all production at JAF's facility. (See K. Ambrogi Dep., Union Ex. O, at 71 (testifying that, on May 1, 2021, there were no products that were not delivered to customers and no orders that were not fulfilled).) Accordingly, focusing on “substance over formality,” Adley, 349 F.Supp. at 442, while construing the evidence in the light most favorable to JAF, we conclude that no reasonable factfinder could find that a strike occurred on May 1, 2021. We therefore grant the Union's Motion for Summary Judgment insofar as it seeks judgment in its favor on JAF's breach of contract claim.
2. Anticipatory breach