NTN-Bower Corporation v. International Union United Automobile Aerospace Workers of America

Filing 31

MEMORANDUM OPINION. Signed by US Magistrate Judge T Michael Putnam on 2/21/2014. (MSN)

FILED
2014 Feb-21 AM 11:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NTN-BOWER CORPORATION,
Plaintiff,
v.
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO,
CLC, and UAW LOCAL 1990,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 6:12-cv-3002-TMP

MEMORANDUM OPINION
This cause is before the court on the cross-motions for summary judgment filed by the
plaintiff NTN-Bower Corporation (Athe Company@), and the International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, CLC and
UAW Local 1990 (referred to collectively as Athe Union@).

Both motions seek summary

adjudication of the sole issue in this case, which is whether a dispute between the Union and the
Company is subject to arbitration under a collective bargaining agreement (“CBA”). This matter
has been fully briefed, and the motions are supported by evidence and by stipulations of fact filed
by the parties. The parties have consented to the exercise of jurisdiction by the undersigned
magistrate judge pursuant to 28 U.S.C. ' 636(c); accordingly, the court enters this memorandum
opinion.

PROCEDURAL HISTORY
The Company filed this declaratory judgment action, seeking a declaration that a grievance
relating to an employee=s right to obtain a shift change by using his or her seniority is not subject to
arbitration under the CBA. The Company asserts that a Mediated Settlement Agreement (Athe
MSA@) that resolved certain pre-existing labor disputes removed from arbitrability the issue of
shift changes. The Union filed an answer and counterclaim (doc. 6), asserting that the grievance
relating to shift changes is subject to arbitration pursuant to the collective bargaining agreement
(Athe CBA@) governing the relationship between the parties, because the MSA addresses only
Ajobs,@ and not Ashifts.@ The Union asserts as a counterclaim that the Company=s refusal to submit
the grievance to arbitration constitutes a breach of contract. The court has jurisdiction over this
action pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. ' 185.1.

SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper Aif 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 a judgment as a matter of law.@ Fed. R. Civ. P. 56(c). The party asking for
summary judgment Aalways bears the initial responsibility of informing the district court of the

1

The MSA, like the CBA, constitutes an Aagreement between employers and labor
organizations significant to the maintenance of labor peace between them@ and is a Acontract@ for
purposes of Section 301, giving the court jurisdiction over the matter. See Frech v. Pensacola
S.S. Ass=n, 903 F.2d 1471, 1475(11th Cir. 1990).
2

basis for its motion, and identifying those portions of >the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,= which it believes
demonstrate the absence of a genuine issue of material fact.@ Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)).
The court must Aview the evidence presented through the prism of the substantive
evidentiary burden,@ so there must be sufficient evidence on which the jury could reasonably find
for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986); Cottle v. Storer
Communication, Inc., 849 F.2d 570, 575 (11th Cir. 1988).

Nevertheless, credibility

determinations, the weighing of evidence, and the drawing of inferences from the facts are the
function of the jury, and therefore the evidence of the non-movant is to be believed and all
justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant
need not be given the benefit of every inference but only of every reasonable inference. Brown v.
City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988).
FACTS 2
The Company is a corporation engaged in the manufacture of bearings at locations
including a plant in Hamilton, Alabama. The Union represents employees at the plant for
purposes of collective bargaining. From July 2007 to July 2008, employees at the Company’s
Hamilton plant went on strike, during which the Company replaced the strikers with 140
permanent employees and 28 temporary employees. At the conclusion of the strike, the Company
and the Union entered into the relevant CBA. Article III of the CBA addresses the grievance
2

The parties have submitted a joint stipulation of material fact (doc. 18) which sets forth the
facts that give rise to the instant action. These facts are, thus, by agreement, undisputed.
3

procedure and contains the following provisions relating to arbitration: 3

Arbitration
The Third Step answer to the grievance may be appealed by the Union to arbitration
after the Company=s Third Step answer. The appeal shall be in writing. If a
settlement cannot be reached in the third step, the Union may appeal the grievance
to arbitration within ninety (90) regular work days after receipt of the Third Step
answer. If the grievance is not appealed to arbitration with the ninety (90) regular
work days, it is considered settled based upon the last Company answer. The
Company and the Union will try to mutually agree upon an Arbitrator to hear the
case. If the Company and the Union do not agree upon an Arbitrator within ten
(10) regular work days from the day of the Union=s written appeal, they shall,
within ten (10) regular work days send a letter jointly to the Federal Mediation and
Conciliation Service requesting a list of five (5) Arbitrators. Upon receipt of the
list, the parties shall meet within five (5) regular work days and alternately shall
each delete the name of one (1) Arbitrator until only one (1) name remains. The
last remaining Arbitrator shall be selected to decide the grievance(s). The party to
delete the first name shall be determined by lot. Once the Arbitrator is selected the
parties will contact the Arbitrator within five (5) regular work days to schedule the
date for the arbitration.
Section 3
Function of Arbitrator
The Arbitrator shall have only the functions set forth herein. His authority is
confined to the interpretation and application of the express terms of this
Agreement and is to be exercised only with respect to claims of the alleged
violation of specified terms of this Agreement which have been processed in accord
with this grievance procedure. He shall have no power to establish or change
provisions of this Agreement. In reaching a decision, the Arbitrator shall consider
only facts and testimonies from witnesses which both the Company and the Union
have had an opportunity to interview in prior steps of the grievance procedure.

Collective Bargaining Agreement (doc. 18-1, p. 7).

3

The arbitration provisions are the fourth step in the procedure for seeking resolution of a
grievance, following three steps in which the Company and the Union members attempt to resolve
the grievance through internal procedures.
4

Article VIII of the CBA describes in detail the procedure workers may use to obtain the
shifts they prefer:

Section 1
Procedure
Shift changes shall be made in accordance with the following procedures.
Any employee who desires to change shifts will file a shift preference card with the
Human Resources Department on a form provided by the Company. Shift
preference cards shall remain in force and are irrevocable for a period of three (3)
months from the date the employee first exercises a shift preference, unless filling
an opening. However, he will be able to transfer to a more desirable shift as
outlined on his shift preference card provided he has the seniority.
****
Section 2
Requests
Any employee who has filed a shift preference card with the Human
Resources Department for a change in shift will be granted such change provided
he has more plant seniority than the employee in the same classification and
department he seeks to replace and provided has the present ability to do the work
on the new shift. However, for purposes of this section and for those employees
assigned to the Material Handling classification, shift changes will be made solely
on the basis of plant-wide seniority unless the employee requests to change shifts
within his own department and has sufficient seniority to do so.
Shift changes may be withheld where they hamper operations or interfere
with training.

Collective Bargaining Agreement (doc. 18-1, p. 17).
The CBA was executed at the conclusion of a strike that lasted from July 25, 2007, until
July 23, 2008, at the Hamilton plant. During the strike, the Company continued to operate the
plant by hiring permanent replacements for its striking employees and by using temporary
employees. After the strike, the Company continued to employ approximately 140 permanent
replacements, who had been hired during the strike. The Company also continued to employ
5

approximately 28 temporary employees. The Union filed grievances relating to the Company’s
use of temporary employees rather than re-employing strikers.
On April 20, 2011, the National Labor Relations Board (Athe Board@) issued an order,
reported at 356 NLRB No. 141, finding that the Company=s continued use of temporary employees
after the strike constituted an unfair labor practice under the NLRA. The Company sought review
of the order with the United States Court of Appeals for the District of Columbia Circuit. During
the pendency of the appeal, an administrative law judge of the Board issued a recommended
decision in a separate case, finding that the Company committed an unfair labor practice by
withdrawing recognition from the Union. The Company appealed that decision to the full Board.
During the pendency of the appeals, the Union filed additional charges with the Board alleging that
the Company committed other unfair labor practices.
The appellate court ordered the appeal of 356 NLRB No. 41 into its mediation program.
On May 15, 2012, the Company, the Union, and the Board entered into a Mediated Settlement
Agreement (Athe MSA@), which resolved not only that appeal, but also the appeal from the ALJ to
the Board and the new unfair-labor practices charges filed by the Union during the appeals. The
MSA recites that the parties reached a Aresolution of the outstanding issues arising from the
Board=s Order, the violations found in the subsequent Administrative Law Judge=s decision, and
the violations alleged in the additional charges.@ (Doc. 18-2, p. 3). 4
As part of the MSA, the Company agreed to offer reinstatement to 60 former strikers, of
whom approximately 40 accepted the offer of reinstatement. The MSA further states that the
4

Both parties provided the court with what is purported to be the MSA, and page
four is missing from both copies (docs. 18-2 and 21-2). From the arguments made by the parties,
it does not appear that any text on page four is relevant to this controversy, or, at least, the
arguments do not refer to any text the court cannot find.
6

parties agreed:
8. The Company will have the right to assign former strikers who accept the
Company=s offer of employment to any job in the Hamilton, Alabama plant
consistent with its business needs, provided they receive the rate of pay and
benefits set forth in the Collective-Bargaining Agreement dated December 31,
2007. After the former strikers are reinstated, they will have the right to compete
for available open jobs in accordance with the terms of the current collective
bargaining agreement.
****
10.
The Company will recognize the Union as the exclusive
collective-bargaining representative of the bargaining unit employees at its
Hamilton, Alabama plant, which includes the obligation to apply the terms of their
Collective-Bargaining Agreement, dated December 31, 2007. The Union will
have access to the plant, bulletin boards, and office as it has traditionally had as
collective-bargaining representative.

Mediated Settlement Agreement (doc. 18-2, p. 7).
On July 13, 2012, the Union filed Grievance No. 01-12 on behalf of the former strikers.
The grievance asserted that workers had been denied the ability to Ause our seniority to select the
shift we prefer@ in Adirect violation of the CBA.@ (Doc. 18-3). The grievance was processed by
the parties in accordance with the grievance procedure set forth in the CBA. On August 27, 2012,
the Company denied the grievance. The Union, by letter dated September 6, 2012, requested that
the grievance be submitted to arbitration pursuant to the CBA. The Company responded on
September 18, 2012, asserting that the grievance was not subject to arbitration, and advising the
Union that the Company intended to initiate the instant action.

DISCUSSION
It is well-settled that the federal labor laws embody a policy favoring arbitration where
there exists a collective bargaining agreement that provides for arbitration of disputes. See
7

United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d
1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct.
1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.
593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). The ASteelworkers Trilogy,@ as those cases have
become known, limits the role of the courts in disputes subject to arbitration under a collective
bargaining agreement. As the Fifth Circuit Court of Appeals 5 has explained:

Generally speaking, the court merely ascertains >whether the party seeking
arbitration is making a claim which on its face is governed by the contract,=
American Manufacturing Co., 363 U.S. at 568, 80 S. Ct. at 1346, without regard to
the merits of the claim; courts must give the arbitration clause a broad reading, with
all doubts resolved in favor of the arbitration clause's coverage of the dispute.
Warrior & Gulf Navigation Co., 363 U.S. at 582-83, 80 S. Ct. at 1352-53.
Moreover, because the parties have bargained for the arbitrator's construction of the
agreement, courts cannot overrule his decision merely because their interpretation
of the contract is different from his; the arbitrator's words must >manifest an
infidelity= to the collective bargaining agreement. Enterprise Wheel & Car Corp.,
363 U.S. at 597-99, 80 S. Ct. at 1361-62.

Alabama Power Co. v. Local Union No. 391, Internat=l Brotherhood of Elec. Workers, 612 F.2d
960, 962 (5th Cir. 1980). Arbitration is a matter of contract, and a party can be compelled to
arbitrate a dispute only if he has contractually agreed to do so.

Whether an employer is

contractually required to arbitrate a labor dispute is a matter to be determined by the court, and
parties cannot be forced to arbitrate the arbitrability question itself, even if answering the
5

The Eleventh Circuit has adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to September 30, 1981. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc).

8

arbitrability question requires the court to evaluate the construction of the CBA. Local Union No.
898 of International Brotherhood of Electrical Workers, AFL-CIO v. XL Electric, Inc., 380 F.3d
868, 870 (5th Cir. 2004). The scope of the court=s inquiry, however, Amust be strictly confined to
the question whether the reluctant party did agree to arbitrate the grievance.@ Warrior & Gulf
Navigation Co., 363 U.S. at 582.
The Eleventh Circuit Court of Appeals recently synthesized the rules derived from the
Steelworkers Trilogy as follows:

The first principle gleaned from the Trilogy is that “arbitration 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.” Warrior & Gulf, supra, 363 U.S., at 582, 80
S. Ct., at 1353; American Mfg. Co., supra, 363 U.S., at 570B71, 80 S. Ct., at
1364B65....
***
The second rule, which follows inexorably from the first, is that the question of
arbitrabilityCwhether a collective-bargaining agreement creates a duty for the
parties to arbitrate the particular grievanceCis undeniably an issue for judicial
determination. Unless the parties clearly and unmistakably provide otherwise, the
question of whether the parties agreed to arbitrate is to be decided by the court, not
the arbitrator. Warrior & Gulf, supra, 363 U.S., at 582B83, 80 S. Ct., at 1352B53.
***
The third principle derived from our prior cases is that, in deciding whether the
parties have agreed to submit a particular grievance to arbitration, a court is not to
rule on the potential merits of the underlying claims. Whether “arguable” or not,
indeed even if it appears to the court to be frivolous, the union’s claim that the
employer has violated the collective-bargaining agreement is to be decided, not by
the court asked to order arbitration, but as the parties have agreed, by the arbitrator.
***
Finally, it has been established that where the contract contains an arbitration
clause, there is a presumption of arbitrability in the sense that “[a]n 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
9

that covers the asserted dispute. Doubts should be resolved in favor of coverage.”
Warrior & Gulf, 363 U.S., at 582B83, 80 S. Ct., at 1352B53.

Jim Walter Resources, Inc., v. United Mine Workers of America, 663 F3d 1322, 1325-26 (11th
Cir. 2011).
Other circuits have provided similar guidance for courts following the strong federal policy
favoring arbitration. The Sixth Circuit Court of Appeals set forth four guiding principles that
tract the substance of those stated by the Eleventh Circuit:

(1) a party cannot be forced to arbitrate any dispute that it has not obligated itself by
contract to submit to arbitration; (2) unless the parties clearly and unmistakably
provide otherwise, whether a collective bargaining agreement (CBA) creates a duty
for the parties to arbitrate a particular grievance is a question for judicial
determination; (3) in making this determination, a court is not to consider the merits
of the underlying claim; and (4) where the agreement contains an arbitration clause,
the court should apply a presumption of arbitrability, resolve any doubts in favor of
arbitration, and should not deny an order to arbitrate unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation
that covers the asserted dispute.

Teamsters Local Union No. 783 v. Anheuser-Busch, Inc., 626 F.3d 256, 261 (6th Cir. 2010). In
sum, where the collective bargaining agreement contains an arbitration clause that is Asusceptible
to an interpretation@ that covers the dispute at issue, arbitration is due to be ordered and any doubts
should be resolved in favor of coverage.

See International Association of Machinists and

Aerospace Workers, Seminole Lodge 971 v. United Technologies Corp., 778 F.2d 1562, 1564
(11th Cir. 1986).
There is no dispute as to whether the parties to this action are parties to a collective
bargaining agreement, or whether the CBA contains an arbitration clause. The parties agree that
the CBA has been Ain effect at all times relevant to this action.@ (Joint Stipulation, attached to
10

Doc. 18, & 7). The clause, while not the drafted in the broad language sometimes employed to
cover Aany dispute,@ still gives to the arbitrator Athe interpretation and application of the express
terms of this Agreement.@ (Doc. 18-1, p. 7). One of the express terms of the CBA is the
procedure for obtaining a shift change. (Doc. 18-1, p. 17). The court must read the arbitration
clause broadly, and must resolve all doubts in favor of arbitration coverage. Alabama Power, 612
F. 2d at 963. The court is required to apply a presumption of arbitrability that can be overcome
only if there is a “positive assurance” that the arbitration clause does not apply. In this case, the
CBA contains an arbitration clause that is Asusceptible to an interpretation@ and which covers the
dispute over shift changes. The arbitration of that issue is due to be compelled.
The Company=s motion for summary judgment seeks to avoid this conclusion by asserting
that the parties reached a Agrand bargain@ memorialized by the MSA, which effectively
“compromised” the CBA. In effect, the Company argues a modification of the CBA was
negotiated by the parties and memorialized in the MSA, and that it had the effect of requiring
reinstatement of strikers only to “available open jobs.” This, the Company asserts, means that the
shift-change provisions of Article VIII were also superseded by the MSA. The court believes
there are several problems with this argument. First, a close reading of the MSA (or the portions
the parties have provided to the court) does not justify this position. The MSA specifically recites
that the parties “reached a resolution of the outstanding issues arising from the Board’s Order, the
violations found in the subsequent Administrative Law Judge’s decision, and the violations
alleged in the additional charges.” (Doc. 18-2, p. 3). On its face, the MSA does not purport to
replace, repeal, or alter any provisions of the CBA, except the provision regarding Ajobs@ available
to former strikers who accept the offers of re-employment. The MSA limits the Ajobs@ to which
they may be reinstated to Aany job in the Hamilton, Alabama plant consistent with [the Company=s]
11

business needs, provided they receive the rate of pay and benefits set forth in the
Collective-Bargaining Agreement....@ 6 Further, it explicitly preserves rights under the CBA so
that “[a]fter the former strikers are reinstated, they will have the right to compete for available
open jobs in accordance with the terms of the current collective bargaining agreement.”

The

MSA does not contain any reference limiting Ashifts@ or Ashift changes@ or Ashift preference cards.@
In the CBA, AJob Bidding@ is dealt with in an article (Article VII) separate and apart from the
article dealing with AShift Changes@ (Article VIII). The MSA clearly left intact articles of the
CBA dealing with overtime pay, holidays, safety and health, and non-discrimination, to name a
few. There is no reason to conclude that the parties intended to alter any part of the CBA except
those explicitly mentioned in the MSA. The Company=s position seems to be that Ajobs@ and
Ashifts@ were completely different entities when the CBA was drafted, but somehow became the
same thing after the MSA was drafted. This is without merit.
Second, the Company’s argument that construing the shift-change provisions of the CBA
without reference to the “available open job” language of the MSA would require an arbitrator to
go outside the four-corners of the CBA also is meritless. Here, the question for the court is not the
merits of the labor dispute, but simply whether the dispute is arbitrable under the CBA. Have the
parties agreed to arbitrate shift-change disputes notwithstanding the MSA?

Under the

presumption favoring arbitration, it is arbitrable unless the MSA clearly, with “positive
6

Neither party identifies whether the Union or the Company acted as a drafter of the
MSA, and there is no assertion that the MSA may be construed against a particular party as the
drafter under general principles of contract law. Nonetheless, the MSA cannot be construed as
altering the scope and nature of the arbitration clause in the CBA unless it does it so clearly that the
court can say with “positive assurance” that the clause does not apply. Ambiguity, regardless of
whom it might be construed against, undermines the notion that the court can state with “positive
assurance” that MSA altered the CBA to eliminate the applicability of the arbitrate clause to this
dispute.
12

assurance,” removed the shift-change provisions from the arbitration clause, which all parties
agree still exists and is enforceable. For the reasons explained above, the court cannot say with
such “positive assurance” that the arbitration clause does not apply. To the extent, therefore, the
court finds that the MSA did not remove the shift-change provisions from the arbitration clause in
the CBA, the arbitrator is not required to construe the CBA in the light of the MSA, at least as to
this dispute.
But even if the arbitrator is required to construe the CBA in light of the MSA, even the
Company concedes the MSA is a modification of the CBA; it is now, according to the Company,
part and parcel of the CBA itself. Thus, the arbitrator can examine the CBA shift-change
provisions in light of whatever modification of the CBA occurred in the MSA.

CONCLUSION
The court simply cannot say with “positive assurance” that MSA altered the applicability
of the arbitration clause to this dispute. As such, the presumption of arbitration coverage requires
a finding that the issue remains arbitrable under the CBA. Accordingly, the Company=s request
for a declaration of non-arbitrability of the shift-change grievance is due to be denied. Based on
the foregoing undisputed facts and legal conclusions, the court determines the motion for summary
judgment filed by the Company (doc. 19) is due to be denied, and the countermotion for summary
judgment filed by the Union (doc. 22) is due to be granted. The court further determines that the
parties shall be ordered to arbitrate the dispute arising from Grievance 01-12 regarding shift
changes.
A separate order will be entered in accordance with the findings set forth herein.

13

Dated the 21st day of February, 2014.

T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

14