Dillon Companies, Inc. v. United Food and Commercial Workers International Union
ORDER granting in part and denying in part 25 Motion to Dismiss. DENIED with regard to defendant's Motion to Dismiss plaintiff's Second Claim and GRANTED with regard to plaintiff's Sixth Claim which is DISMISSED without prejudice. By Judge Raymond P. Moore on 08/24/2015. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-01473-RM-KMT
KING SOOPERS, INC., a Division of DILLON COMPANIES, INC.,
UNITED FOOD and COMMERCIAL WORKERS INTERNATIONAL UNION,
LOCAL NO.7, AFL-CIO, CLC,
ORDER RE: DEFENDANT’S MOTION TO DISMISS
PLAINTIFF’S SECOND AND SIXTH CLAIMS
This matter is before the court on defendant United Food and Commercial Workers
International Union, Local No.7, AFL-CIO, CLC’s (defendant) Motion to Dismiss plaintiff King
Soopers, Inc., a Division of Dillon Companies, Inc.’s (plaintiff) Second and Sixth claims
pursuant to Fed R.Civ.P.12(b)(6), for failure to state a claim. (ECF Nos. 25 and 26).
Plaintiff’s Complaint essentially seeks to vacate “an improper arbitration order entered in
a proceeding alleging a violation of a contract between an employer and a labor organization
representing employees . . . ” and to obtain damages for “the Union’s breach of the CBA
[Collective Bargaining Agreement].” (ECF No.1, pp.1, 17). Plaintiff asserts six claims against
defendant: (1) Arbitrator “arbitrarily and unilaterally . . .without authority . . . require[ed] . .
.grievance to be arbitrated and finalized within four years after [grievant] was disciplined”
without authority of the CBA; (2) Arbitrator engaged in ex parte communications with defendant
which prejudiced plaintiff; (3) Arbitrator exceeded her authority under the CBA by determining
that plaintiff’s representative and/or employees were not credible; (4) Arbitrator exceeded her
authority under the CBA by setting the arbitration for a date on which a party (plaintiff) was
unavailable; (5) Arbitrator exceeded her authority under the CBA and industry common law by
scheduling the arbitration for a date she knew plaintiff objected to and was unavailable for, and
(6) defendant’s “mass grievance filings and arbitration demands . . .causes [plaintiff] to suffer
anti-company publicity and a severe economic burden . . . .” (ECF NO.1, pp.11-17).
The following facts are gleaned from plaintiff’s Complaint and, as required, are construed
in the light most favorable to plaintiff. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th
The relationship between the parties is governed by the CBA which provides for
resolution of disputes through a grievance procedure and ultimately before an arbitrator. (ECF
No.1, p.2). Article 44 of the CBA provides that there “shall be no lockout, strike, picketing,
boycotting, stoppage of work, anti-company publicity or other economic action of whatsoever
nature against the Company.” (ECF NO.1-1, p.56).
The parties’ practice is to schedule arbitration hearings in the order that grievances are
filed which means they regularly schedule the hearings for many months after engaging an
arbitrator. (ECF No.1, p.3). On or about February 7, 2014, the National Labor Relations Board
Acting Regional Director Kelly Selvidge affirmed the parties' scheduling practice. (ECF NO.1,
p.4; ECF No. 35, p.3). During the years between September 1, 2012 and August 31 2013, the
defendant requested arbitration in 374 cases against plaintiff. Id.
The instant matter involves plaintiff’s April, 2010, demotion of an employee (grievant)
from Grocery Manager to All Purpose Clerk. (ECF No. 1, p.3; ECF No.35, p.3). Plaintiff also
suspended this grievant for six days. Id. The parties were unable to resolve the resulting
grievance and defendant requested arbitration on or about September 24, 2010. Id. Together on
or about June 18, 2013, the parties selected Arbitrator Hanley (the Arbitrator) to hear their case.
Id. In September 2013, the Arbitrator requested that the parties supply dates on which they
would be available for arbitration. Id.
Due to the number of grievances pending in September 2013, plaintiff informed the
Arbitrator that it was not available to arbitrate this grievance until August-September 2014. Id.
The Arbitrator informed the parties she was also available in those months however, defendant
did not confirm any of those dates. (ECF No.1, pp.4-5).
Plaintiff informed the Arbitrator on or about September 28, 2013, that it was no longer
available and provided dates on which it was available in November-December 2014 or January
2015. (ECF No.1, p.5). The Arbitrator responded that those dates were open for her as well. Id.
Defendant responded with an alternate request for arbitration dates to be set in NovemberDecember of 2013, which would put this grievance ahead of others already in the scheduling
On or about October 1, 2013, plaintiff informed the Arbitrator and defendant that it was
not available to arbitrate this matter prior to November 2014. (ECF No.1, p.6). The Arbitrator
again informed the parties that she was available for dates in November-December 2014 or
January 2015. Id. Plaintiff responded with the dates within that time frame on which it was
available however defendant remained resolute in its request for dates to be set in November-
December of 2013. Id. On or about December 3, 2013, the Arbitrator scheduled the arbitration
for November 14, 2014. (ECF No.1, p.6; ECF NO.35, p.4)
The next day plaintiff notified the Arbitrator that there had been another arbitration
scheduled for that November 14th date and requested that the arbitration in this matter be re-set
for December 5, 2014. (ECF NO. p.7; ECF No.35, p.4). The Arbitrator made several attempts
to ascertain the defendant’s position regarding the rescheduling. Id. Defendant responded on or
about December 9, 2013, saying that it did not agree to the requested rescheduling. Id.
That same day the Arbitrator inquired about when the relevant discipline had occurred
and upon learning that it had occurred in April 2010, stated that “if the parties cannot agree on a
date and time before Friday April 11, 2014 – four years after the discipline was issued – I will
order the date and time myself.” Id. She further stated that “[d]iscipline was imposed in 2010.
Four years is long enough, too long. Arbitration of discipline that stale in November 2014 or
later is improper and [she would] not be a party to it.” (ECF No.1, p.8). On or about December
24, 2013, the Arbitrator sent the parties an email directing them to provide a mutually agree upon
date that must be no later than April 15, 2014. Id.
On or about December 26, 2013, plaintiff responded to the Arbitrator’s email and
reiterated that due to the parties’ arbitration queue and pressing needs of running a business, it
was not available until the scheduled hearing on November 14, 2014. Id. Plaintiff further stated
that:” [s]hould you set this matter for a hearing on a date the Company is not available, the
Company does not intend to attend the hearing and will challenge any adverse ruling in federal
court. Again we ask that you leave the hearing date as scheduled on November 14, 2014.” Id.
The Arbitrator responded that she would not entertain the November date as it was
improper to delay an arbitration hearing for more than four years. (ECF No.1, p.9). Plaintiff
informed the Arbitrator that it did not believe she had the authority to “unilaterally set a matter
for hearing on any date which one party was not available.” Id. The Arbitrator suggested that
the parties might settle some of the cases currently pending in order to clear their calendar, noted
that neither party had any arbitration scheduled for weekends (Saturday or Sunday), suggested
that the parties could prepare their witnesses in the evenings or on an earlier weekend and set the
hearing for Saturday, April 5, 214 at 9:00 am. Id. Plaintiff objected to the date stating it was
unavailable and that setting this arbitration before other older grievances would “giv[e]
preference to this grievant without any reason or justification.” (ECF No.1, p.8).
Over plaintiff’s objection, the Arbitrator on March 3, 2014, asked the parties to determine
a location for the April 5th hearing. Id. On or about March 12, 2014, plaintiff informed the
Arbitrator that it had no available dates prior to May 31, 2014 and reiterated its objection to the
April date selection. (ECF No.1, p.10). In subsequent emails, the Arbitrator stated that
plaintiff’s “labor relations representative is available on Saturday April 5. He/she simply does
not want to work on Saturday. This is unreasonable inasmuch as the rest of us stand ready to do
so. As I wrote earlier today, sometimes work comes first.” Id. On or about March 14, 2014,
plaintiff reiterated its objection to the April 5th hearing date on the basis of unavailability. Id.
On April 5, 2014, the Arbitrator convened the hearing and conducted the arbitration. Id.
Defendant was present at the hearing, entered exhibits, called witnesses and over defendant’s
objections; the Arbitrator personally examined each witness. Id. Plaintiff was not present. Id.
At the conclusion of the hearing the Arbitrator ordered plaintiff to: (1) reinstate the grievant; (2)
pay him for pay lost due to his demotion and suspension and (3) remove all references to [his]
demotion and suspension from his personnel file. (ECF No.1, pp.10-11).
The Arbitrator confirmed this order in her Decision and Award issued on April 7, 2014.
(ECF No. 1, p.11). In this decision the Arbitrator concluded that: all defendant’s witnesses were
credible; plaintiff’s witnesses would have had suspect credibility; one of plaintiff’s witnesses
was “a party to an injustice” and concluded that plaintiff’s position was without merit. Id.
Standard for Fed.R.Civ.P.12(b)(6) Dismissal:
A dismissal under Fed.R.Civ.P.12(b)(6) is appropriate “only when it appears that the
plaintiff can prove no set of facts in support of the claims that would entitle him to relief,
accepting the well-pleaded allegations of the complaint as true and construing them in the light
most favorable to the plaintiff.” Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir.
1997)(internal citations omitted), cert. denied, 522 U.S. 812, (1997). In considering a motion
under this federal rule, the court's function is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted. Id. (quoting Miller v. Glantz, 948 F.2d 1562. 1565
(10th Cir. 1991))(quotations omitted).
In doing so, the Court “must accept all the well-pleaded allegations of the complaint as
true and must construe them in the light most favorable to the plaintiff.” David v. City & County
of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). However, relief must plausibly follow from the
facts alleged. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). Thus, even though
modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or
inferential allegations respecting all the material elements necessary to sustain a recovery under
some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)(internal
quotation marks and citation omitted).
Standard for Vacating Arbitrator’s Award:
A district court's review of an arbitration award under the Federal Arbitration Act (FAA),
is strictly limited and is a highly deferential standard of review, which has been described as
“among the narrowest known to the law.” Bowen v. Amoco Pipeline Co., 254 F.3d 925, 932
(10th Cir. 2001). It is recognized that by agreeing to arbitrate, a party trades the procedures and
opportunity for review of the courtroom for the simplicity, informality, and expedition of
arbitration. Brown v. Coleman Co., Inc., 220 F.3d 1180, 1182 (10th Cir. 2000)(quoting Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 31 (1991)(quotations omitted)).
A court may vacate an arbitration award only in the limited circumstances provided in
Section 10 of the FAA, or within the few judicially created exceptions. Denver & Rio Grande
Western Railroad Co. v. Union Pacific Railroad Co., 119 F.3d 847, 849 (10th Cir. 1997).
Section 10(a)(3) does permit a court to vacate an arbitrator’s award where the arbitrator
improperly refused to postpone a hearing despite sufficient showing of cause. ARW Explorat’n
Corp. v. Aguirre, 45 F.3d 1455, 1463-64 (10th Cir. 1995). However because a primary purpose
of the federal policy favoring arbitration is to promote timely, expeditious dispute resolution, the
court’s review of an arbitrator’s decision not to postpone a hearing is quite limited. Id.
Plaintiff claims that: (1) the Arbitrator’s decision to “arbitrarily and unilaterally” set the
arbitration for a date on which plaintiff had stated it was unavailable impermissibly modified the
CBA; (2) the hearing held without plaintiff’s attendance constituted an ex parte communication
which prejudiced plaintiff; (3) the Arbitrator’s statements and findings demonstrated an improper
bias toward defendant; (4) the Arbitrator’s decision to hold the hearing despite plaintiff’s
objections exceeded her authority; (5) that decision also was outside the scope of her commission
and ignored the parties’ scheduling practices; and (6) defendant’s “mass grievance and
arbitration demands” are a calculated strategy to damage plaintiff’s reputation and economic
well-being. (ECF Nos. 1 and 35).
Defendant seeks to dismiss plaintiff’s second and sixth claims for failure to state a claim.
(ECF No. 25). With regard to plaintiff’s second claim, defendant argues that a hearing is not ex
parte when as here, plaintiff participated in the selection of the arbitrator and received adequate
notice of the hearing date (as allegedly demonstrated by plaintiff sending a court reporter to
record the proceedings despite failing to attend itself), but simply chose not to attend. (ECF
No.26, p.3). On plaintiff’s sixth claim, defendant argues that because plaintiff failed to utilize
the established procedures as set out in their CBA to address its allegations regarding defendant’s
alleged breach of the CBA, this claim should be dismissed and resolved through provisions of
the CBA rather than by this court. (ECF No. 26, pp.7-12).
Plaintiff’s Second Claim:
In examining plaintiff’s second claim that the arbitrator engaged in ex parte conduct by
conducting the arbitration without plaintiff’s presence, I view these allegations in the light most
favorable to plaintiff. Yoder, 104 F.3d at 1224. Stating a claim requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to give the defendant
fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp., v.
Twombly, 550 U.S. 544, 555 (2007)(quotations omitted).
After careful review of the pleadings and CBA, I note that there is a substantial
evidentiary gap regarding what plaintiff’s reason for being unavailable on the date selected by
the arbitrator was and whether that reason constituted sufficient showing of cause. In other
words, whether the arbitrator knew and disregarded a legitimate reason plaintiff may have
offered is not readily evident from the complaint and attached CBA. This evidentiary gap is
better suited to resolution subsequent to the court’s examination of evidence produced in support
of a Motion for Summary Judgment rather than a Motion to Dismiss.
I therefore deny defendant’s Motion to Dismiss plaintiff’s Second Claim.
Plaintiff’s Sixth Claim:
Plaintiff’s Sixth Claim against defendant alleges that defendant has engaged in a
“calculated strategy, mass grievance filings and arbitration scheduling demands in breach of
Article 44 of the CBA” which prohibits “anti-company publicity or other economic action
against King Soopers.” (ECF No. 1, pp.16-17). Plaintiff asserts that despite the CBA provisions
regarding dispute resolution1, it is not required to grieve its sixth claim in the instant matter
because the defendant engaged in self-help and “repudiated the grievance and arbitration process
by undermining the parties’ scheduling practices.” (ECF No.35, pp.13-17). In lieu of dismissal
plaintiff contends that the court should stay this portion of the claim pending arbitration. (ECF
No. 35, pp.17-18).
Defendant argues that plaintiff has failed to follow the parties’ CBA dispute resolution
procedures to resolve plaintiff’s allegations that defendant has violated CBA provisions
contained in Article 44. (ECF No. 26, pp.7-12). Defendant therefore contends that the court
should not allow plaintiff to by-pass the CBA provisions but should dismiss plaintiff’s Sixth
Claim or alternatively compel plaintiff to arbitration regarding its claims that defendant has
violated Article 44 of the CBA. (ECF No. 35, pp
The CBA contains inter alia Article 43 outlining the Dispute Procedure which requires that there “shall be an
earnest effort on the part of the parties to settle [any dispute or complaint] promptly through the following steps . . .
.” Article 43 specifies the steps the parties shall take to resolve a dispute beginning with a verbal conference,
escalating to a written grievance and if those efforts fail, a request for and submission to arbitration to resolve the
matter. (ECF No. 1-1, pp.56-57).
When reviewing a motion to dismiss under Fed.R.Civ.P.12(b)(6), a court may “consider
documents referred to in the complaint if the documents are central to the plaintiff's claims and
the parties do not dispute the documents' authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d
936, 941 (10th Cir 2002). In this matter, neither party disputes the authenticity of the CBA,
indeed both reference it in their pleadings. (See e.g., ECF Nos.1-1, 1-2, 1-3, 25-2).
Further, there is a liberal federal policy favoring arbitration that is well recognized.
Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). As arbitration is
typically a matter of contract, courts deciding if there is an enforceable agreement to arbitrate,
should apply ordinary state-law principles that govern the formation of contracts while giving
due regard to the federal policy favoring arbitration. Volt Info. Sciences, Inc. v. Brd of Trustees,
489 U.S. 468, 475-76 (1989); see also, Huizar v. Allstate Ins. Co., 952 P.2d 342, 346 (Colo
1998)(“Arbitration as a method of alternative dispute resolution is a convenient mode of
resolving disputes and is favored by the public policy of Colorado.”).
The FAA provides that arbitration agreements may be unenforceable and a court may
refuse to enforce an arbitration agreement where “well supported claims that the agreement to
arbitrate resulted from the sort of fraud or overwhelming economic power that would provide
grounds for the revocation of any contract” are presented. Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985)(internal quotations omitted).
In this instance, neither party is asserting that the CBA is or should be deemed
unenforceable or that it is fraudulent. Rather, both parties appear to agree that plaintiff’s sixth
claim against defendant should be resolved if not by the court (as plaintiff desires), then by
provisions contained in Article 43 of the CBA, up to and including arbitration.
By its terms, the FAA leaves no place for the exercise of discretion by a district court,
instead mandating that district courts shall direct the parties to proceed to arbitration on issues as
to which an arbitration agreement has been signed. 9 U.S.C. §§ 3, 4(emphasis added).
Additionally there is a strong presumption of arbitrability especially where, as here the clause is
broadly written. AT&T Tech., Inc. v. Communications Workers of America, 475 U.S. 643, 650
In this instance, I find that defendant’s Sixth Claim is before the court prematurely.
Defendant’s Sixth Claim is therefore dismissed without prejudice.
For the reasons stated above defendant’s Motion to Dismiss (ECF No. 25) is GRANTED
IN PART and DENIED IN PART as follows:
(1) DENIED with regard to defendant’s Motion to Dismiss plaintiff’s Second Claim and
(2) GRANTED with regard to plaintiff’s Sixth Claim which is DISMISSED without
IT IS SO ORDERED
DATED this 24th day of August, 2015.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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