Opinion
Case No. 2:00-CV-308C.
January 2001.
ORDER
Plaintiff Graphic Communications Union District Council No. 2, Local No. 28N, AFL-CIO ("the Union") filed this suit under the Labor-Management Relations Act against Defendant Newspaper Agency Corporation ("NAC"), seeking an order compelling NAC to submit the labor dispute at issue in this case to arbitration. The parties have filed cross motions for summary judgment. The matter before the court is limited to the question of whether, under the terms of the collective bargaining agreement between the parties, an arbitrator has jurisdiction to resolve the grievance filed by the Union against NAC. Having fully considered the arguments of counsel, the submissions of the parties, and applicable legal authorities, the court holds that this grievance should not be sent to an arbitrator.
Background
The Union is the exclusive bargaining representative for the bargaining unit employees of NAC, a newspaper printer and publisher. On July 1, 1996, the parties entered into a collective bargaining agreement ("the CBA"). Both parties agree that the terms of the CBA are binding in this case.
In the fall of 1999, NAC implemented a new "direct to plate" press operation for the printing of USA Today newspapers and assigned this work to non-bargaining unit employees. The Union, asserting that this work assignment violated the CBA, filed Grievance No. 66895 on September 23, 1999. The parties dispute whether, under the terms of the CBA, they are obligated to send this type of a dispute to an arbitrator.
Standard of Review
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In applying this standard, the court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1552 (10th Cir. 1997).
Once the moving party has carried its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)); see also Gonzales v. Millers Cas. Ins. Co., 923 F.2d 1417, 1419 (10th Cir. 1991). The non-moving party must set forth specific facts showing a genuine issue for trial; mere allegations and references to the pleadings will not suffice. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Discussion
The question of arbitrability is one to be determined by the court, not by the arbitrator. See Bridgestone/Firestone, Inc. v. Local Union No. 998, 4 F.3d 918, 921 (10th Cir. 1993), citing ATT Tech. v. Communications Workers, 475 U.S. 643, 649-50 (1986). The parties agree that the court should determine the arbitrability of Grievance No. 66895. (See Def.'s Mem. in Supp. of Mot. for Summ. J. at 6-7; Pl.'s Mem. in Supp. of Mot. for Cross-Summ. J. at 7-8).
It was unclear to the court whether NAC was asserting that the Union's filing of this lawsuit constituted a violation of the CBA. Because it is clear that the arbitrability of a labor dispute is to be determined by the court, see Bridgestone/Firestone, 4 F.3d at 921, however, the court finds that the Union's filing of this lawsuit did not violate the CBA.
The CBA contains three provisions of particular relevance to this case. Section 2, titled "Recognition and Jurisdiction," lists the specific employees and employee job duties for which NAC is bound to recognize the Union as the exclusive bargaining representative. (See CBA §§ 2.1, 2.2, attached as Ex. A to Def.'s Mem. in Supp. of Mot. for Summ. J.) Section 14 discusses the procedures relating to settlement of disputes between the Union and NAC. Any grievance "as to the interpretation, application or compliance with the terms of the Agreement," shall be referred to a dispute resolution committee, and, if that process fails, to an arbitrator. (Id. § 14.1.) Finally, and most importantly for this case, there is an exception to Section 14's procedures in the case of "jurisdictional" disputes: "The arbitrator shall have no power to interpret the jurisdiction of the Union or to add or enforce any obligation not expressly accepted under this Agreement." (Id. § 14.7, para. 3.)
I. Should NAC be compelled to submit to arbitration?
Where the parties have agreed in a collective bargaining agreement to submit their grievances to an arbitrator, as the parties did here with Section 14, there is a presumption of arbitrability. See Bridgestone/Firestone, 4 F.3d at 921. This presumption can be overcome in two ways: (1) where there is an "express provision excluding a particular grievance from arbitration"; and (2) where there is no express exception but were it may be said with "positive assurance" that the arbitration clause does not cover the disputed issue. Denhardt v. Trailways, Inc., 767 F.2d 687, 688 (10th Cir. 1985), citing United Steelworkers v. Warrior Gulf Navigation Co., 363 U.S. 574, 584-85 (1960).
Here, the CBA clearly contains an express exception to arbitration: "The arbitrator shall have no power to interpret the jurisdiction of the Union . . ." (CBA § 14.7, para. 3, attached as Ex. A to Def.'s Mem. in Supp. of Mot. for Summ. J.) "[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." ATT Tech., 475 U.S. at 648. If Grievance No. 66895 is a dispute over "the jurisdiction of the Union," then, NAC cannot be compelled to submit to arbitration.
For the following reasons, the court concludes that Grievance No. 66895 is indeed a dispute over the jurisdiction of the Union. Significantly, the Union's request for an arbitration panel describes the "type of issue" presented in this dispute as involving the " jurisdiction of new equipment." (Request for Arbitration Panel, attached as Ex. E to Def.'s Mem. in Supp. of Mot. for Summ. J.) (emphasis added). Similarly, the grievance form filed by the Union in September 1999 requests the following remedy: "Train 3 journeyman pressman [sic] in use of new equipment in doing so NAC recognizes Union's jurisdiction." (Grievance Form No. 66895, attached as Ex. D to Def.'s Mem. in Supp. of Mot. for Summ. J.) (emphasis added).
Case law supports the proposition that disputes over "work assignment," as the Union characterizes this dispute, and disputes over "jurisdiction" are equivalent. See Transportation-Communication Employees Union v. Union Pacific R.R. Co., 385 U.S. 157, 161 (1966) (stating that the collective bargaining agreement between the parties was to be used for "settling a jurisdictional dispute over work assignments"); Radio Television Broadcast Eng'rs Union, 364 U.S. 573, 574 (1961) (stating that the union grievance "grew out of a `jurisdictional dispute' over work assignments"); Local #850, Int'l Ass'n of Machinists and Aerospace Workers v. T.I.M.E.-DC, Inc., 705 F.2d 1275, 1277 (10th Cir. 1983),citing Carey v. Westinghouse Elec. Corp., 375 U.S. 261 (1964) (noting that "a dispute between an employer and two unions regarding work assignments of certain employees of the two unions constitutes a jurisdictional dispute").
During oral arguments, moreover, the Union's counsel characterized Grievance No. 66895 as a dispute over "work assignments," but conceded that the terms "work assignment" and "jurisdiction" were essentially synonymous.
The Union makes three arguments in support of its contention that the CBA's express exception of jurisdictional disputes from arbitration does not apply to Grievance No. 66895. First, it argues that, even where a collective bargaining agreement contains an explicit exception to the duty to arbitrate, grievances may still be sent to an arbitrator. The Union cites Cleveland Wrecking Co. v. Iron Workers Local 40, 136 F.3d 884 (2d Cir. 1997), in support of its argument, but Cleveland Wrecking Co. is easily distinguishable from the situation here. In Cleveland Wrecking Co., the district court sent a labor dispute to arbitration, although it determined that there was a provision in the collective bargaining agreement excepting jurisdictional disputes from arbitration. The circuit court affirmed the decision to send the dispute to arbitration, but only after stating explicitly that the district court was mistaken in its conclusion that the collective bargaining agreement excepted jurisdictional questions. See id. at 888. Cleveland Wrecking Co. thus involved a case in which no express contractual provision limited the scope of arbitrable issues. See id. at 889. Here, however, Section 14.7 clearly states that "[t]he arbitrator shall have no power to interpret the jurisdiction of the Union . . ." (CBA § 14.7, para. 3, attached as Ex. A to Def.'s Mem. in Supp. of Mot. for Summ. J.)
Second, the Union contends that, as a general matter, jurisdictional questions concerning a union's work are typically resolved through arbitration. But most of the cases cited by the Union involved collective bargaining agreement without any provisions expressly limiting arbitration, as Section 14.7 does in this case. See Communications Workers of America, AFL-CIO v. US West Direct, 847 F.2d 1475 (10th Cir. 1988) (collective bargaining agreement containing arbitration provision without any express limitations); E.M. Diagnostic Sys. v. Local 169, 812 F.2d 91 (3d Cir. 1987) (same); Denver Newspaper Guild, Local 74 v. Denver Publ'g Co., 714 F. Supp. 448 (D.Colo. 1989) (same); General Electric Co. v. Teamsters Local Union No. 676, 718 F. Supp. 400 (D.N.J. 1989) (same).
The case cited by the Union which involved an explicit exception to the duty to arbitrate is distinguishable from this case. In Southern California Dist. Council of Laborers v. Berry Constr., Inc., 984 F.2d 340 (9th Cir. 1993), the court ruled that an arbitrator should decide the issue of arbitrability of a jurisdictional dispute despite the fact that, under the terms of the collective bargaining agreement in that case, "jurisdictional disputes" were explicitly excepted from arbitration. See Id. at 344-45. The court ruled that the issue should be determined by an arbitrator, however, simply because the collective bargaining agreement contained a provision which stated explicitly that disputes over arbitrability were to be decided by the arbitrator. See id. at 341, 344. The court made it clear that it was departing from the general rule that "[i]n general, the resolution of whether a dispute is subject to arbitration is a task for the courts," because of the specific language of the collective bargaining agreement in that case. Id. at 343. The CBA in this case contains no such provision stating that the issue of arbitrability is to be determined by an arbitrator. Indeed, the Union appears to concede in its memorandum that the court should determine the question of arbitrability. (See Pl.'s Mem. in Supp. of Mot. for Cross-Summ. J. at 8, citing Bridgestone/Firestone, 4 F.3d at 921).
Finally, the Union contends that the term "jurisdiction" in Section 14.7 applies only to inter-union work disputes, and not to work assignment disputes between a union and its employer. Since this case does not involve an inter-union dispute, the Union argues, Section 14.7 does not except it from arbitration. In support of this argument, the Union notes that the term "jurisdictional disputes" is commonly defined as "disputes `between two or more groups of employees over which is entitled to do certain work for an employer.'" NLRB v. Radio Tel. Broad. Eng'rs Union, 364 U.S. 573, 579 (1961); accord NLRB v. Local 101, Int'l Union of Operating Eng'rs, AFL-CIO, 315 F.2d 328, 330 (10th Cir. 1963) (describing inter-union dispute over assignment of work as a "jurisdictional dispute"). Even assuming that this is true, it is irrelevant in this case because Section 14.7 does not contain the term "jurisdictional dispute." Rather, Section 14.7 excepts from arbitration anything requiring an interpretation of "the jurisdiction of the Union." (CBA § 14.7, para. 3, attached as Ex. A to Def.'s Mem. in Supp. of Mot. for Summ. J.) Although jurisdictional issues may arise during an inter-union dispute, "the jurisdiction of the Union" may also be implicated during a grievance between a union and an employer, as here.See Radio Tel. Broad. Eng. Union, 364 U.S. at 584. The court thus concludes that Section 14.7's exception to the duty to arbitrate applies to the facts of this case.
The Union also offers the affidavit of Larry Milburn, the Union president, in support of the contention that, at the time they drafted the CBA, the parties intended Section 14.7, Paragraph 3, to apply only to inter-union disputes. (See Aff. of Larry Milburn in Supp. of Pl.'s Cross-Mot. for Summ. J.) NAC submitted a motion to strike paragraphs 3, 4, 8, 9, and 10 of Milburn's affidavit on the grounds that those paragraphs draw legal conclusions and fail to demonstrate Milburn's personal knowledge of facts alleged therein. For the reasons set forth during oral argument, NAC's motion to strike paragraphs 3, 4, 8, 9, and 10 of Mr. Milburn's affidavit is granted.
II. Procedural objections to Grievance No. 66895
NAC raises additional procedural objections to the Union's filing of Grievance No. 66895: (1) timeliness, and (2) waiver. (See Def.'s Mem. in Supp. of Mot. for Summ. J. at 7-9.) NAC urges the court to go beyond the issue of Grievance No. 66895's arbitrability to the issue of whether this dispute ought to be dismissed on procedural grounds.
Procedural questions, however, should be determined by the body which will decide the labor dispute on the merits. See John Wiley Sons v. Livingston, 376 U.S. 543, 557 (1964) (ruling that court should reserve procedural questions for the arbitrator if court determines that the substance of the case is arbitrable); Denhardt v. Trailways, Inc., 767 F.2d 687, 689 (10th Cir. 1985) (same). A court should avoid "carving up" a dispute's substantive and procedural issues between itself and another forum. See id.
The court has not yet determined which forum — whether the court, the National Labor Relations Board, or some other body — will decide the merits of Grievance No. 66895, and this issue has not yet been briefed by the parties. The court therefore denies without prejudice the issues of timeliness and waiver raised by NAC.
Order
For the foregoing reasons, on the parties' cross-motions for summary judgment, the court holds that Grievance No. 66895 should not be sent to an arbitrator.