United Food & Commerical Workers Int'l Union, Local No. 7 v. King Soopers

Filing 19

ORDER denying 5 Motion to Dismiss. By Judge Raymond P. Moore on 10/29/2014.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13–cv–02335–RM-KMT
UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, LOCAL NO. 7,
Plaintiff,
v.
KING SOOPERS, INC.,
Defendant.
ORDER
This matter is before the Court on Defendant King Soopers, Inc.’s (“King Soopers”)
motion to dismiss for lack of subject matter jurisdiction (ECF No. 5) Plaintiff United Food and
Commercial Workers International Union, Local No. 7’s (“Union” or “UFCW”) Complaint
(ECF No. 1).
For the reasons stated below, the Court DENIES Defendant’s motion to dismiss.
I.

LEGAL STANDARD
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss for lack

of subject matter jurisdiction may be brought in two forms: “facial” or “factual.” Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). A “facial attack” as to subject matter jurisdiction
challenges the sufficiency of the complaint and in reviewing such a challenge, the Court must
accept the allegations in the complaint as true. Id. A “factual attack” as to subject matter
jurisdiction challenges the facts upon which subject matter jurisdiction depends and in reviewing

such a challenge, the Court has discretion to consider documents outside complaint. Id. at 1003.
If undertaking a review of subject matter jurisdiction predicated upon a factual attack of the
complaint, “a court’s reference to evidence outside the pleadings does not convert the motion to
a Rule 56 motion.” Id.
Regardless of the type of challenge to subject matter jurisdiction, the plaintiff retains the
burden of establishing subject matter jurisdiction. Port City Props. v. Union Pacific R.R. Co.,
518 F.3d 1186, 1189 (10th Cir. 2008) (citation omitted).
II.

BACKGROUND
Under Section 301 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. §

185(a), Plaintiff brings this suit to compel arbitration pursuant to a collective bargaining
agreement (“CBA”) between the parties (ECF No. 1-1 at 1-124). (ECF No. 1 ¶ 1.) The parties’
CBA contains a grievance-arbitration provision (referred to in the parties’ CBA as a “Dispute
Procedure”) which culminates in arbitration. (ECF No. 1-1 at 56-57.) Step 3 of the parties’
Dispute Procedure states
If the grievance is not satisfactorily adjusted in Step 2, either party may, with
reasonable promptness, but in no event later than thirty (30) days from the date of
the Step 2 meeting, in writing, request arbitration and the other party shall be
obligated to proceed with arbitration in the manner hereinafter provided. The
parties shall forthwith attempt to agree upon an impartial arbitrator.
(ECF No. 1-1 at 56.) Plaintiff alleges that it filed four grievances and that Defendant has refused
to arbitrate the unresolved grievances. (ECF No. 1 ¶¶ 7, 9, 11, 13, 16-20.)
Defendant brought this motion to dismiss arguing that the Court should dismiss the
Complaint as the National Labor Relations Board (“NLRB”) has primary jurisdiction over the

2

suit as Plaintiff’s conduct arguably violated Section 8 of the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 158(b). (ECF No. 5 at 2.)
III.

ANALYSIS
A.

Record to be Considered on Subject Matter Jurisdiction Challenge

Assuming Defendant’s characterization of its motion to dismiss as a “factual attack”
(ECF No. 5 at 3) is accurate, the Court may then consider “other documents” to resolve disputed
jurisdictional facts. Holt, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5
(10th Cir. 1987)); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)
(citation omitted). The Court construes the factual admissions within Defendant’s motion to
dismiss as within the “other document” language to be considered in ruling on Defendant’s
factual attack as it is signed by Defendant’s counsel. See Fed. R. Civ. P. 11(b)(3). In
Defendant’s motion to dismiss, Defendant admits that the Complaint seeks to compel arbitration
(ECF No. 5 at 1), that there exists a CBA between the parties (ECF No. 5 at 1), and that
Defendant has refused to arbitrate the grievances (ECF No. 5 at 1). Further, Plaintiff attached to
the Complaint the parties’ CBA (ECF No. 1-1 at 1-124), the grievances at issue (ECF No. 1-1 at
125-32), and Defendant’s response to the request to arbitrate (ECF No. 1-1 at 137). Defendant
did not attack the veracity of any of these documents which Plaintiff’s attorney submitted in
support of the Complaint.
B.

Merits to Subject Matter Jurisdiction Challenge

Defendant argues that because Plaintiff has “arguably” violated Section 8 of the NLRA
by filing this suit, the NLRB has primary jurisdiction and the Court should not interfere with the
NLRB’s functions. (ECF No. 5 at 3-8.) Defendant’s argument is without merit.
3

The United States Supreme Court has squarely addressed the issue presented before the
Court and rejected Defendant’s argument. When an activity is arguably prohibited by Section 8
of the NLRA, “the preemption doctrine developed in San Diego Building Trades Council v.
Garmon, . . . and its progeny, teaches that ordinarily ‘the States as well as the federal courts must
defer to the exclusive competence of the [NLRB] if the danger of state interference is to be
averted.’” William E. Arnold Co. v. Carpenters Dist. Council of Jacksonville & Vicinity, 417
U.S. 12, 15-16 (1974) (citing Garmon, 359 U.S. 236, 245 (1959)). “When, however, the activity
in question also constitutes a breach of a collective-bargaining agreement, the [NLRB’s]
authority ‘is not exclusive and does not destroy the jurisdiction of the courts in suits under
[Section] 301.’” Id. at 16 (citing Smith v. Evening News Ass’n, 371 U.S. 195, 197 (1962)). This
exception was “fashioned because the history of [Section] 301 reveals that ‘Congress
deliberately chose to leave the enforcement of collective agreements ‘to the usual processes of
the law.’” Id. (citing Charles Dowd Box. Co. v. Courtney, 368 U.S. 502, 513 (1962)). Thus, the
“Garmon doctrine is ‘not relevant’ to actions within the purview of [Section] 301, which may be
brought in either state or federal courts.” Id. (internal citations omitted).
Plaintiff alleges that Defendant has breached the CBA between the parties’ by refusing to
arbitrate grievances. (ECF No. 1 ¶¶ 20-22.) Plaintiff has brought suit to compel Defendant’s
compliance with the CBA. (ECF No. 1.) Congress, via Section 301 of the LMRA, has left it to
the Court to enforce such a collective-bargaining agreement. Hines v. Anchor Motor Freight,
Inc., 424 U.S. 554, 562 (1976) (holding that “[t]he strong policy favoring judicial enforcement of
collective-bargaining contracts was sufficiently powerful to sustain the jurisdiction of the district
courts over enforcement suits even though the conduct involved was arguably or would amount
4