Opinion
Civil Action No. 16812
Submitted: September 20, 1999.
Decided: October 6, 1999.
David H. Williams, Esquire, Ellen Marie Cooper, Esquire, of MORRIS, JAMES, HITCHENS WILLIAMS, Attorneys for Plaintiffs.
Kathi A. Karsnitz, Esquire, of the DELAWARE STATE EDUCATION ASSOCIATION, Attorneys for Defendants.
MEMORANDUM OPINION
A collective bargaining agreement ("the CBA") between the defendant Appoquinimink Education Association and the plaintiff Board of Education of the Appoquinimink School District states that the Association can arbitrate grievances about the application of the agreement. In 1996 the Association and the District arbitrated a grievance about the level of contractual long-term disability benefits owed to an Association member, defendant Karen Wood, who had retired due to disability and was no longer, by statute, a member of the bargaining unit.
The Association now seeks to arbitrate a similar grievance (the "Grievance") brought by the Association on behalf of Wood and another identically situated, disabled employee, defendant Donna Diehl (together the "Disabled Workers"). Because the language of the CBA and the prior course of performance between the Association and the District under the agreement support the admirability of the Grievance, I deny the District's motion for a preliminary injunction against the arbitration and grant the Association's motion to compel the arbitration.
I. Factual Background
The facts relevant to these motions are largely undisputed. On July 1, 1993, the District and the Association entered into the CBA, which has an expiration date of June 30, 1996. Article 26 (D) of the CBA, which governs the amount to be paid teachers retiring from the District as a result of disability, provides as follows:
D. Disability insurance will be provided. The schedule of benefits shall be 66 2/3% of the employee's annual salary, with a one hundred twenty (120) day waiting period for benefits. The monthly maximum will be:
1993-1994 $1500 1994-1995 $2000 1995-1996 $2000
CBA, Art. 26(D).
Wood retired from the District due to disability on August 1, 1995, at which time a dispute arose between the parties over the meaning of Article 26(D). The District argued that Article 26 (D) obligated the District to provide Wood with payments that — together with payments from all other sources, including disability payments received from the federal Social Security Program — would total 66 2/3% of her pre-disability salary. The Association argued that Wood was owed 66 2/3% of her salary in addition to payments from other sources.
The parties sought to resolve this dispute in accordance with the grievance resolution procedures in Article 4 of the CBA, the fourth step of which involves arbitration. In accordance with the CBA, the Association filed a grievance on Wood's behalf (the "1996 Grievance"), contending that the District had breached the contract by failing to provide Wood with the proper level of disability pay. After the parties failed to settle their differences at the lower levels of the grievance process, the 1996 Grievance went to arbitration. The arbitrator held a hearing held on March 19, 1996 and on May 20, 1996 issued a decision (the "Arbitration Decision") adopting the Association's reading of the CBA. In re Appoquinimink Education Association and Appoquinimink School District, American Arb. Ass'n. Case No. 14-390-01490-95-W (1996) (Lang, Arb.). His opinion stated:
The Grievance is sustained. The School District is required by Article 26(D) of the Agreement to provide Ms. Karen Wood with a disability benefit equaling .6667 of her pre-disability monthly income. That benefit shall be paid by the School District, with no off-sets, retroactive to August 1, 1995, and continuing until Article 26(D) is terminated or modified.Id. at 7.
The District claims that it accepted the Arbitration Decision because the District was then in the process of negotiating a successor agreement ("the Successor CBA") with the Association and because the Arbitration Decision stated that it would be effective only until Article 26(D) was terminated or modified. The District estimates that the Arbitration Decision has enabled Wood to receive 103% of her pre-disability annual salary.
Throughout 1996 and 1997, the District and the Association engaged in ongoing efforts to reach a compromise about a successor to the CBA. By late 1997, the parties still had not reached accord on a new contract. They therefore proceeded to mediation and "fact-finding" pursuant to Title 14, Chapter 40 of the Delaware Code, or the Public School Employment Relations Act ("PSERA"). See 14 Del. C. § 4014, 4015.
Article 26(D) was one of the major, unresolved issues dividing them. The District sought to modify the provision so that the District would be required to pay a disabled employee only that amount necessary to ensure that the disabled employee received a total of 66 2/3% of her pre-disability salary, with other state and federal disability income counting toward that total. In the midst of the fact-finding stage of the bargaining process, defendant Diehl retired from the District due to disability. The District abided by the Arbitration Decision when calculating Diehl's disability pay. As a result, the District contends that Diehl ended up receiving total disability pay equaling 113% of her pre-disability annual salary. Diehl did not receive this level of benefits without controversy for very long.
Although the Association ultimately agreed to the District's proposed modification of Article 26(D), it refused to accede to the District's demand that the modification apply retroactively to Wood and Diehl. The fact-finder's report, issued in May 1998, recommended that the parties adopt the Association's position regarding the applicability of the modification to the Disabled Workers. On May 28, 1998, the parties met to discuss the report, pursuant to § 40 15(h) of the PSERA. Although the District accepted all of the fact-finder's other recommendations, it refused to concede on the question of disability payments for the Disabled Workers.
In an effort to break the impasse, Delaware Public Employment Relations Board ("PERB") Executive Director Charles Long sent the District and the Association a memorandum discussing the dispute. In that memorandum, Long reasoned that the Disabled Workers, under the modified Article 26(D) proposed for inclusion in the Successor CBA, did not qualify as "employees" for purposes of the PSERA or as "bargaining unit members" by the terms of the proposed contract. P1. Br., at A-29-30 ( citing § 14 Del. C . § 4002(m); CBA, Art. 2). According to Long, the subject of disability benefits for the Disabled Workers was a permissive subject of bargaining in the negotiations over the Successor CBA, which meant that any "unilateral change" by the District of the disability benefits being received by them would not violate the District's duty to bargain under the Act. Id. at A-30.
Long went further in his memorandum and purported to interpret the CBA as a contract. The District has not argued that Long's view of what the CBA means as a contract is binding upon me.
The District and the Association then put the Disabled Workers dispute aside as a bargaining matter while the Association submitted to the Association's members for a vote the terms on which the parties had been able to agree. Even this came a cropper, however, when the Association failed to ratify the proposed contract. Immediately after this June 2, 1998 negative vote, the District implemented its "last best offer" by unilaterally modifying Article 26(D) and reducing its payments to the Disabled Workers from the level required by the Arbitration Decision to the amount set by the provision as modified.
After receiving notification of this reduction, the Association and the Disabled Workers filed the Grievance under Article 4 of the CBA. The District apparently processed the Grievance until it reached the fourth and final stage of arbitration, at which point the District refused to process the Grievance further. The District argued that it had no obligation to comply with the requirements of Article 4 for a claim concerning disability benefits because the Disabled Workers lost their status as bargaining unit members upon becoming disabled and therefore failed to qualify as "[t]eachers or [e]mployees" as defined by Article 3(A) of the CBA.
The Association requested arbitration of the dispute nevertheless. Before the scheduled arbitration hearing could be held, the District filed this action to enjoin the arbitration. The Association and District agreed to hold the arbitration in abeyance pending this court's determination of the District's motion to enjoin the arbitration.
Several material developments have occurred since the filing of this action. First, the PERB issued an opinion on December 14, 1998 finding that the District's unilateral imposition of its last, final offer violated § 4007(a)(5) of the PSERA. Appoquinimink Education Association, DSEA/NEA v. Appoquinimink School District, PERB, U.L.P. No. 98-09-23 (Dec. 14, 1998). As a remedy, the PERB ordered the parties to "return to the status quo ante as it existed under the terms of the [CBA]" and to restore the Disabled Workers' benefits to the level that existed under the CBA, effective retroactively to June 2, 1998. Id. at 27. The PERB order concluded that the Disabled Workers' status as retirees was immaterial to the issue before it:
The District's contention that bargaining on behalf of retirees is a permissive subject of bargaining, although undisputed, is irrelevant. In the absence of a binding collective bargaining agreement the status quo of permissive subjects may be unilaterally altered. Here, however, it is the terms of the 1993-1996 collective bargaining agreement rather than the operation of PSERA which binds the District to the disability benefits set forth, [sic] therein.Id. at 26-27.
Second, the Association ratified the Successor CBA in 1999 and, in the wake of this ratification, the District reduced the Disabled Workers' disability payments to the level they would receive as disabled "employees" under the Successor CBA. Third, and regrettably, Ms. Diehl died on September 2, 1999, and her attorney (who also represents the Association) has indicated that her estate will be substituted as a defendant.
Finally, the Association and the District put this litigation on hold while they tried to settle this dispute through mediation, but again failed to reach agreement. They have now requested a ruling on these motions in order to determine the forum where they can obtain a binding resolution of their dispute.
II. Legal Analysis A. Standards of Review
The District seeks a preliminary injunction against the arbitration proceedings initiated by the Association on behalf of the Disabled Workers. To obtain preliminary injunctive relief, the District must demonstrate that there is a reasonable probability of success on the merits; that there is an immediate threat of imminent irreparable harm in the absence of an injunction; and that the balance of hardships weighs in favor of the party seeking the injunction. Ivanhoe Partners v. Newmont Mining Corp., Del. Supr., 535 A.2d 1334, 1341 (1987).
The District's motion for injunctive relief turns almost entirely on the merits prong, or whether the Grievance is arbitrable. A party facing the imminent prospect of arbitrating a non-arbitrable claim has been found to be threatened by sufficiently irreparable harm to justify an injunction. See, e.g., Board of Education of Sussex County, Del. Ch. , C.A. No. 1900-S, mem. op. at 13, 1998, Del. Ch. LEXIS 47, at *16, Jacobs, V.C. (Mar. 18, 1998); Delaware Public Employees v. New Castle County, Del. Ch. , C.A. No. 13314, letter op. at 9, 1994 Del. Ch. LEXIS 168, at *12, Chandler, V.C. (Aug, 25, 1994). The third element is not an issue here, as the relative hardships are essentially equal between the parties. The only hardship that will result to the non-prevailing party as a consequence of the grant or denial of this motion will be having to address the merits of the Grievance in a forum that is not its first choice. Thus the outcome of the District's motion will depend solely on the arbitrability of the Grievance.
Likewise, the Defendants' motion to compel turns on the issue of arbitrability. There is no clear standard to apply when assessing whether the motion to compel should be granted, because the Delaware Uniform Arbitration Act ("DUAA") is not applicable, see 10 Del. C. § 5725, and no other relevant statutes address this subject. The parties have not briefed the issue of what standard applies, and a review of the Delaware case law has revealed relatively few cases concerning arbitrations in labor settings and none involving motions to compel arbitration of a labor dispute.
A non-exclusive list includes: Newnam v. Board of Education of the Mount Pleasant School District, Del. Supr., 350 A.2d 339, 340 (1975) (finding contract definition of "grievance" to be "ambiguous" and requiring hearing on its meaning in order to determine whether non-tenured teacher's claim was subject to grievance procedures of collective bargaining agreement); Board of Education of Sussex County, mem. op. at 1, 1998 Del. Ch. LEXIS 47, at * 1-2 (granting board of education's motion to enjoin, preliminary and permanently, an arbitration proceeding related to termination of teacher); Delaware Public Employees, letter op. at 2, 7, 1994 Del. Ch. LEXIS 168, at *2, *9 (granting county's motion to enjoin union from proceeding to arbitration over work schedule dispute held to have arisen from agreement collateral to collective bargaining agreement); City of Wilmington v. Fraternal Order of Police, Del. Supr., 510 A.2d 1028, 1028, 1030 (1986) (affirming denial of city's motion to enjoin arbitration of disciplinary matter because issues of general applicability to all disciplinary matters were subject to grievance and arbitration proceedings).
Although DUAA § 5703(a) is inapplicable, reference to this section for the purposes of analogy is nevertheless instructive. 10 Del. C. § 5703 (a). Section 5703(a) provides:
(a) Proceeding to compel arbitration. — A party aggrieved by the failure of another to arbitrate may file a complaint for an order compelling arbitration. Where there is no substantial question whether a valid agreement to arbitrate in this State was made or complied with, and the claim sought to be arbitrated is not barred by limitation under § 5702(c), the Court shall order the parties to proceed with arbitration. Where any such question is raised it shall be tried forthwith in said Court. . . .Id. (emphasis added).
I need not need determine in this case whether § 5703(a) sets forth a test any less onerous than the summary judgment standard under Chancery Court Rule 56. The parties have each had the opportunity to submit evidence regarding the meaning of the CBA, and this motion turns on the proper interpretation of the CBA rather than any dispute of material fact regarding the CBA's bargaining history. If, based on the uncontroverted evidence submitted by the parties, it is clear that the better reading of the CBA is that the Grievance is arbitrable, I will grant the motion to compel, employing the Rule 56 standard. Such a finding, if made, will also reflect my judgment that "no substantial question" regarding arbitrability exists and that no trial on that question need be held, "forthwith" or otherwise. 10 Del. C. § 5703 (a). It will also reflect that the higher standard required for the issuance of a mandatory injunction has been satisfied. Thompson v. Town of Henlopen Acres, Del. Ch. , C.A. No. 1694, mem. op. at 12, 1996 Del. Ch. LEXIS 33, at *14, Steele, V.C. (Mar. 7, 1996) ("Delaware courts will only award a mandatory injunction in a clear case, free from doubt, and when necessary to prevent irreparable harm.").
I note that the mere fact that a party seeking to preliminary enjoin an arbitration loses that motion (i.e., has not shown that the grievance is likely to be ultimately found non-arbitrable) does not necessarily mean that the other party is entitled to an order compelling arbitration (i.e., an order premised on a showing sufficient to satisfy the mandatory injunction test, 10 Del. C. § 5703(a), or Rule 56).
Several general principles relating to arbitration will govern my review. The determination of whether a particular question is arbitrable is, in this procedural context, a question for the court and should not be deferred to the arbitrator. E.g., Delaware Public Employees, letter op. at 5, 1994 Del. Ch. LEXIS 168, at *7 ( citing United Steelworkers of America v. Warrior Gulf Navigation Co., 363 U.S. 574, 582 (1960)). In exercising this authority, the court is mindful that Delaware public policy generally favors contracts providing for the arbitration of disputes, including those between public employers and the collective bargaining representatives of their employees. City of Wilmington v. Wilmington Firefighters, Local 1590, Del. Supr., 385 A.2d 720, 724-25 (1978); City of Wilmington v. Fraternal Order of Police, 510 A.2d at 1029. Thus Delaware cases hold that "labor disputes are best settled by agreed-upon arbitration procedures, with which courts should not interfere." City of Wilmington v. Fraternal Order of Police, 510 A.2d at 1029-30.
At the same time, Delaware's public policy in favor of arbitration is premised on contractual freedom, not compulsion. "[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Delaware Public Employees, letter op. at 5, 1994 Del. Ch. LEXIS 168, at *6 ( citing United Steelworkers of America v. Warrior Gulf Navigation Co., 363 U.S. 574, 582 (1960)). With these general principles in mind, I will now turn to the question that will determine the outcome of the parties' motions: is the Grievance arbitrable under the CBA?
B. Is the Grievance Arbitrable?
The question before me is whether the parties to the CBA intended that disputes regarding the disability benefits to be paid under Article 26(D) of the CBA to employees who become disabled could be resolved pursuant to Article 4 of that agreement. See Delaware Public Employees, letter op. at 5, 1994, Del. Ch. LEXIS 168, at *6 ("the question whether a party is bound to arbitrate a given issue is a matter to be determined on the basis of the contract entered into by the parties"). I believe it helpful to further divide the question into two separate but related issues: (1) whether the CBA enables the Association to demand arbitration of disputes concerning disability benefits regardless of the Disabled Workers' status as "teachers" who may file a "grievance" under Article 3(B) of the CBA; or (2) whether the CBA enables the Disabled Workers to grieve their disability claims because they do in fact qualify as "teachers" under Article 3(B). An affirmative answer to either of these questions will require resolution of the arbitrability issue in favor of Defendants and against the District. I will not reach the second of these questions because I believe that the CBA permits the Association to bring the Grievance on behalf of the Disabled Workers. For the same reason, I will not address the Association's contention that the PSERA imposes a statutory duty on the District to arbitrate the Grievance.
Before their retirement due to disability, the Disabled workers were clearly "teachers" under Article 3(B) because they were "professional employees represented by the Association in the negotiating unit." CBA, Art. 3(A). The instant they became retired by virtue of disability, they lost their status as negotiating unit members and their status as "teachers" under Article 3(A). The question is whether they thereby also lost their status as "teachers" under Article 3(B). It is by no means apparent that the definitions of teacher and employee in Article 3(A) were in any manner intended to distinguish between active teachers and professional employees in the negotiating unit, as one class, and teachers and professional employees in the negotiating unit who retire because of disability, as another, for purposes of Article 3(B) and Article 4. The more likely purpose of Article 3(A) was to specify which District employees were covered by the CBA and which were not. The District had many other active employees not included within Article 3(A) and whose terms and conditions of employment did not arise out of the CBA.
1. The Language of The CBA Makes The Association A Proper "Grievant" And The "Grievance" A Proper Subject For Arbitration
When determining whether the Association may press the Grievance on behalf of the Disabled Workers, great weight must be given to the parties' negotiated expression of intent with respect to how they wished their disputes to be resolved. Board of Education of Sussex County, mem op. at 5, 1998 Del. Ch. LEXIS 47, at *7-8. The most important reflection of the parties' intent is the plain language of the CBA. See, e.g., Universal Studios Inc. v. Viacom Inc., Del. Ch. , 705 A.2d 579, 589 (1997).
Article 4 of the CBA outlines the process by which a "grievant" may seek to resolve a claim, the fourth step of which involves arbitration. Article 4(A) describes the "purpose" of this process as "to secure, at the lowest possible level, equitable solutions to the problems which may from time to time arise affecting employees and staff." CBA, Art. 4(A). Most significantly, the CBA defines a "grievance as "a claim by a teacher, group of teachers, and/or the local association that there has been a misinterpretation, a misapplication, or a violation of the provisions of this agreement, board policy or administrative rules and regulations." CBA, Art. 3(B) (emphasis added). Article 3(C) provides that a "grievant" is "the person or persons making the complaint (claim)." CBA, Art. 3(C).
In my view, Article 3(B)'s conjunctive phrase " and/or the local association" indicates that the Association may file a grievance disputing the level of benefits the District is paying disabled workers under Article 26(D). CBA, Art. 3(B) (emphasis added). Such a grievance is plainly a claim by the "local association . . . that there has been a misinterpretation, a misapplication, or a violation of the provisions" of the CBA. Id.
By its own terms, Article 3(B) confers standing upon the Association to defend the contractual rights for which it negotiated on behalf of its members, and the contract contains no limitation on the Association's right to dispute any violation the Association perceives of its retiree members' contractual rights under the CBA. The District has offered no alternative to this straightforward reading of Article 3(B), nor has it argued that other language in the contract clearly confines the Association to pressing only particular classes of grievances. In this regard, it is noteworthy that it would have been relatively simple, even for inexperienced drafters, to provide that only a "teacher" or "group of teachers" could grieve a claim "with or without the Association's assistance," if the parties did not contemplate that the Association could maintain a grievance as a "grievant." Likewise, it would have been easy to insert the words "provided, however, that the local association may not file a grievance on behalf of former teachers or employees claiming that there has been a misinterpretation, a misapplication, or a violation of the provisions of this agreement."
It is my understanding that counsel for the District and the Association had little to do with the negotiations and drafting of the CBA.
Under the most natural reading of Article 3(B) of the contract, therefore, the Association is a proper "grievant," and the Grievance is a proper subject for Article 4 resolution. The District would have me look past these inconvenient facts, relying upon Article 4(A)'s reference to the parties' desire "to secure, at the lowest possible level, equitable solutions to the problems which may from time to time arise affecting employees and staff." CBA, Art. 4(A). Because workers who have become permanently disabled and thus retired are, by definition, no longer active employees, the District contends that grievances over the level of disability benefits afforded them cannot "affect employees and staff."
The general terms of Article 4(A) do not persuade me that the plain language of Article 3(B) should be ignored. Article 4(A) is plausibly read as an expression of the parties' mutual wish to address all of the problems in their relationship as harmoniously and inexpensively as practicable "at the lowest possible level" — a desire consistent with permitting the Association to pursue grievances on behalf of employees who retire due to disability. CBA, Art. 4(A).
The Association's desire to secure a speedy, inexpensive mechanism of dispute resolution for its members would apply at least as strongly to its retiree members as to its members who are active employees. As a general matter, the economic wherewithal of retirees, particularly disabled ones, to afford litigation is probably no greater, and likely much less, than that of active employees.
In arguing to the contrary, the District brushes over the nature of the Grievance between the District and the Association. It argues that only disputes between current employees and the District "affect employees and staff' and that this court should thus infer that the parties intended to limit Article 4's reach to grievances involving active employees. But the effect of this dispute on District-Association relations offers strong evidence of the rather significant impact of the District's treatment of disabled workers on its relations with current employees. This dispute held up the consummation of the Successor CBA for a considerable period of time. And the District's own insistence on securing a modified Article 26(D) in the Successor CBA also belies the notion that the Grievance does not involve an issue "affecting employees and staff."
Yet another indication of the degree to which disability benefit grievances "affect employees and staff' is the fact that the District followed the Arbitration Decision addressing the level of Wood's benefits when the District calculated the payments it owed to Diehl. In doing so, the District tacitly acknowledged the precedential effect of an arbitration concerning the subject on both itself and active employees. As a result, current District employees — who are only an accident away from disability — are certainly "affected" by interpretations of their collective bargaining agreement's disability benefits clause. Interpretations issued in arbitrations involving particular employees who have become disabled are likely to guide the treatment of current employees who become disabled. Because District employees bargain (by reducing their demands in other areas) for the protection of long-term disability coverage, they no doubt care about the level of benefits that coverage affords them in practice, not just in theory. It is thus unsurprising that the Association has taken a very strong position on behalf of the Disabled Workers throughout the course of this dispute.
I acknowledge that the fact that wood was the President of the Association at the time the CBA was executed may also have been influential. In any event, the electorate apparently supported her cause, judging by the behavior of the membership.
2. The Most Persuasive Extrinsic Evidence Supports Arbitrability
The language of Article 3(B) does not seem ambiguous to me. Recognizing that the District disagrees and that Article 4 as a whole is hardly a model of clarity, however, I will consider the extrinsic evidence submitted by the parties.
Although the parties have had the opportunity to present evidence regarding the negotiating history of the CBA, none has submitted evidence bearing on whether the contract negotiations between District and the Association regarding the CBA focused on the Association's right to arbitrate disputes over the level of contractual disability benefits to be paid to negotiating unit members who retire because of disability. But the record contains even more persuasive extrinsic evidence: the course of performance between the Association and District under Articles 3 and 4 of the CBA.
When interpreting an ambiguous contract, the parties' prior conduct under the agreement is an important source of evidence to which the court should turn. "The parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning." Restatement (Second) of Contracts § 202 cmt. g (1981).
Here, the parties' prior conduct is consistent with a plain reading of Article 3(B) of the CBA and revealing of the District's and the Association's respective understandings. See id. § 202(5) ("Wherever reasonable, the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other and with any relevant course of performance, course of dealing, or usage of trade."). The District accepted the Association's right to pursue arbitration on Wood's behalf in 1996 when it permitted the Association to pursue the 1996 Grievance. See In re Appoquinimink Education Association and Appoquinimink School District, American Arb. Ass'n. Case No. 14-390-01490-95-W (1996). Ms. Wood was no less retired then than she is now.
One cannot help but note that the District's change in position about the arbitrability issue followed its perceived loss in the Arbitration Decision and the protracted and disputatious negotiations over the Successor CBA.
Yet the District accepted the Association's right to prosecute the 1996 Grievance on her behalf without protest. Indeed, the District apparently processed the current Grievance through the first three "Levels" specified under Article 4(B) of the CBA. Only at Level 4, the arbitration stage, did the District balk. The parties' own course of performance under the CBA thus suggests that they intended to permit the Association to grieve on behalf of employees who became disabled and that the District's stated preference for resolving disputes at the "lowest possible level" was not limited to disputes involving current employees.
For several reasons, I conclude that I do not need to decide whether the Disabled Workers could have proceeded to arbitration if the Association had not filed the Grievance. As an initial matter, it is apparent that the fact that the Disabled Workers are disabled and no longer members of the negotiating unit is no practical barrier to processing an Association grievance on their behalf The District did so in 1996 and did so up through the first three levels in 1998. In fact, because "grievable action" regarding the disability rights of the Disabled Workers was doubtless taken by the "central office administration," the Association could have initiated the Grievance at "Level Two," which involves consideration by the District's superintendent. Art. 4(B). Article 4(C) (12) of the CBA also gives the Association the right to press a grievance "starting at level Two" if an employee grievant accepts a grievance decision the Association believes conflicts with the CBA — that is, even when the employee grievant does not wish to take the grievance to a higher level. Given these provisions supportive of the Association's right to press grievances and the course of performance between the parties, the awkward structure of the Article 4 grievance process does not overcome the straightforward language of Article 3(B) according broad grievance rights to the Association.
In this regard, it is quite plausible that the Association's inclusion in Article 3(B) was in part designed specifically to enable it to press grievances on behalf of former employees with contract claims based on the CBA. The Association has an important interest in upholding its view of all contractual benefits provisions it negotiates on behalf of its members, and, by securing independent grievance rights for itself, may well have wished to protect its retiree members' ability to use a more efficient and inexpensive process than traditional litigation to enforce their contractual rights. Finally, as noted above, the language of the CBA comfortably covers the Grievance, and the District has not advanced a coherent, narrowing construction carving out Association claims on behalf of the Disabled Workers or others of a similar status.
3. The Fact That Arbitration of The Grievance Is Not Statutorily Required Does Not Answer Whether The Grievance Is Arbitrable Under The CBA .
The District also premises its argument that the Grievance is not arbitrable on the proposition that labor laws define retirees out of their former bargaining units and that, as a result, many cases find that retirees ordinarily need not exhaust the dispute resolution clauses of their collective bargaining agreements under federal labor law. See, e.g., Anderson v. Alpha Portland Industries, Inc., 752 F.2d 1293, 1300 (8th Cir. 1985) (en banc) (where an insurance plan "does not, through either express language, intent or presumption, require exhaustion of contractual remedies by retirees seeking disputed benefits[,]" retirees are not required to exhaust the grievance procedure before pursuing their claims in court), cert. denied, 471 U.S. 1102 (1985). But the Supreme Court has carefully distinguished between what labor statutes require and what agreements contracting parties may choose voluntarily to consummate. See, e.g., Allied Chemical Alkali Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 181 n. 20 (1971) (a union's lack of a statutory duty to represent retirees in negotiations with an employer "does not mean that when a union bargains for retirees — which nothing in this opinion precludes if the employer agrees — the retirees are without protection[,] because "[u]nder established contract principles, vested retirement rights may not be altered without the pensioner's consent.") (emphasis added).
Persuasive authority indicates that a collective bargaining agreement may afford a union standing to assert retirees' rights. If a retiree chooses to accept such union representation under a contract, an employer may not refuse to arbitrate its contractual obligations with the union. See, e.g., United Steelworkers of America, AFL-CIO v. Canron, Inc., 580 F.2d 77, 81 (3d Cir. 1978) ("the plaintiff union has standing to represent the retirees in seeking arbitration under its labor contract" with the employer); Rossetto v. Pabst Brewing Co., Inc., 128 F.3d 538, 540 (7th Cir. 1997) ("Although a union has no duty to represent retirees, and retirees need not submit to union representation, retirees are free to make a union their agent if they so choose."), reh'g., reh'g en banc denied, 1998 U.S. App. LEXIS 711 (7th Cir. Jan. 14, 1998), cert. denied, 524 U.S. 927 (1998); International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) v. Yard-man, Inc., 716 F.2d 1476, 1486 (6th Cir. 1983) (the union, "[a]s a signatory to the contract, . . . could bring an action for the third party beneficiary retirees" and "has a direct interest in maintaining the integrity of the retiree benefits created by the collective bargaining agreement") (citation omitted), cert. denied, 465 U.S. 1007 (1984); Meza v. General Battery Corp., 908 F.2d 1262, 1271 (5th Cir. 1990) (stating in suit brought by disabled retiree seeking to recover disability and pension benefits set forth in collective bargaining agreement that such former union members "are free to choose whether they want the union to represent them").
The District has not argued that anything in Delaware statutory or case law prohibits the District and the Association from entering into a contract permitting the Association to file a grievance contesting any alleged violation of the CBA. I decline to adopt the District's argument that this court should not read a collective bargaining agreement to permit the arbitration of contractual disputes involving employees who retire because of disability unless the contract says so explicitly. Such an anti-arbitration approach seems contrary to Delaware public policy. The social utility of such a rule is less than obvious, as the rule seems as likely to deprive disabled workers of an efficient and affordable means to protect their rights as it does to protect them against unions who turn their backs on their retired members. The CBA has therefore been interpreted using accepted rules of construction.
Specifically, the District has not contended either that it is statutorily or otherwise legally prohibited from contracting with the Association about: (i) disability benefits; (ii) the mechanisms by which disputes with disabled workers about such benefits will be resolved. Although there is (rather tortured and arguably anachronistic) case law that touches upon these issues, I will not address these issues or the case law because the parties have not.
I need not and do not reach the question of whether the Disabled Workers could be compelled to use the dispute resolution clause of the CBA. Given the pro-arbitration policies of this state, it is by no means certain that it is (or should be) impermissible to require a retiree who was an employee with bargaining unit voting rights at the time of the collective bargaining agreement that is the source of her alleged right to benefits to use the dispute resolution clause of the contract as long as she is permitted to press her claim without union support, if that becomes necessary. By choosing to have the Association press the Grievance on their behalf and by demanding arbitration in this court, the Disabled Workers are binding themselves to the arbitration result.
Corrected Page Board of Education of the Appoquinimink School District v. Appoquinimink Education Associatior., et al. Decided October 6, 1999
III. Conclusion
In sum, the best reading of the CBA is that the Association is permitted to invoke the CBA's arbitration clause in order to enforce Article 26(D) on behalf of the Disabled Workers. The most persuasive evidence of the parties' intent to allow the Association to invoke the Article 4 procedures on the Disabled Workers' behalf — and the parties' lack of intent to exclude claims concerning workers who retire as a result of disability from the subject matter appropriate for contractual grievances — is the broad language of Article 3(B) and the District's course of performance under the CBA during the 1996 arbitration.
For the foregoing reasons, the District's motion for a preliminary injunction is DENIED, and the Defendants' motion to compel is GRANTED. Count II of the Defendants' counterclaims is DISMISSED AS MOOT. Defendants shall promptly submit a final order including a provision substituting Ms. Diehl's estate as a defendant, upon notice to the District as to form.
The District invites me to determine that the Arbitration Decision held that the Disabled workers' rights to benefits under the CBA expired when the CBA did. From the Arbitration Decision itself, I cannot conclude with certainty that the arbitrator meant to issue such an expansive ruling. For today's purposes, it is enough to note that whatever rights the Disabled Workers have to disability benefits at the level they demand arise out of the CBA. Because the Association may press the Grievance on their behalf, the question of what rights they have under the CBA and the precedential effect of the prior Arbitration Decision should be addressed by the arbitrator in the first instance.