United Food and Commercial Workers Union, Local No. 7 v. King Soopers,Inc.

Filing 28

ORDER by Magistrate Judge Michael E. Hegarty on 04/08/15 denying 15 Motion to Dismiss. This case is administratively closed, with the parties to submit a joint status report every 30 days commencing May 15, 2015.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03351-MEH
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL NO. 7,
Plaintiff,
v.
KING SOOPERS, INC.,
Defendant.

ORDER ON MOTION TO DISMISS
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s Motion to Dismiss [filed January 7, 2015; docket #15]. The
motion is fully briefed, and the Court held oral argument on April 2, 2015. For the reasons that
follow, the Court denies the Motion to Dismiss.
BACKGROUND
Plaintiff United Food and Commercial Workers Union, Local No. 7, (“the Union”) alleges
that Defendant King Soopers, Inc., refused to comply with arbitration orders regarding back pay for
three of its employees, who are members of the Union. The following are factual allegations, taken
as true, from the Union’s complaint and offered by King Soopers for jurisdictional analysis. See
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (“A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).”).
I.

Anthony Gonzalez
Mr. Gonzalez had been employed by King Soopers for less than a year when he was

terminated on February 19, 2008. [Arbitration Award, docket #15-6, p. 10]. Pursuant to the terms

of a collective bargaining agreement (“CBA”) between the parties, Mr. Gonzalez and the Union filed
a grievance challenging the termination. Arbitrator Gerald Cohen heard the grievance on August
24, 2011. Arbitrator Cohen ordered a 30-day suspension in lieu of termination and ordered that Mr.
Gonzalez be awarded back pay without1 interest for the remainder of the time to the date of Mr.
Gonzalez’s reinstatement. Abritrator Cohen stated that King Soopers “is to receive credit for
earnings in the interim.” Subsequently, King Soopers argued that Mr. Gonzalez failed to mitigate
damages after his termination and, therefore, was not entitled to a full back pay award. On June 26,
2013, Arbitrator Cohen held a second hearing to address the amount of back pay. He awarded Mr.
Gonzalez 80 days of back pay without interest.
On December 20, 2013, Defendant paid Mr. Gonzalez $7,902.84 in gross back pay. On
January 23, 2014, the Union submitted a letter to King Soopers indicating that it calculated Mr.
Gonzalez’s back pay to be $10,662.40, and that King Soopers owed Mr. Gonzalez $2,665.60. King
Soopers responded that Mr. Gonzalez had been properly paid.
On March 4, 2014, Mr. Gonzalez filed a claim against King Soopers in El Paso County Small
Claims Court for $2,665.60. King Soopers removed the case to this Court. Gonzalez v. King
Soopers et al., 14-cv-000773-KMT. Magistrate Judge Kathleen M. Tafoya dismissed the complaint
for failure to state a claim but granted Mr. Gonzalez leave to amend his complaint. Mr. Gonzalez
filed an amended complaint alleging that King Soopers failed to comply with the Arbitrator award.
Judge Tafoya again dismissed the complaint for failure to state a claim. Under Fed. R. Civ. P. 41(b),
this operated as an adjudication on the merits or, in other words, “with prejudice.”
II.

Michael “Tina” Todd

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The complaint states that the Arbitrator awarded back pay with interest but the Arbitrator’s
award, which is attached both to the Complaint and to the Motion to Dismiss, clearly states without
interest. [Docket #1-3, p.11; Docket #15-6, p.27]
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After about thirteen years of employment by King Soopers, Ms. Todd was terminated on
December 15, 2009. Pursuant to the arbitration procedures in the CBA, the Union and Ms. Todd
filed a grievance challenging the termination. Arbitrator Richard Fincher heard the grievance on
March 12, 2013. On May 30, 2013, Abritrator Fincher reduced the termination to a 30-day
suspension and ordered that Ms. Todd “be reinstated with standard make-whole relief and seniority.”
[Docket #1-10, p. 9]
On June 7, 2013, King Soopers sent a letter to the Union stating that Ms. Todd would be
reinstated on June 16, 2013 and requesting all documents concerning her interim earnings. The
letter advised that any delays in providing the requested information would delay the processing of
Ms. Todd’s back pay. King Soopers sent follow-up letters requesting the documents on November
14, 2013; January 20, 2014; and March 26, 2014. The Union asserts that it has no additional
information to provide King Soopers; on April 30, 2014, the Union requested a remedial arbitration
hearing to resolve the dispute.
III.

Christine Austin
On July 29, 2009, King Soopers suspended Ms. Austin for five days and demoted her

employment position as full-time head clerk. The Union and Ms. Austin challenged the discipline
and on September 9, 2014, Arbitrator Patricia Bittel held a hearing addressing the grievance. On
November 17, 2014, the Arbitrator granted the grievance and awarded Ms. Austin retroactive
compensation and benefits for the five-day suspension as well as for her demotion from full-time
Head Clerk. Additionally, the Arbitrator ordered her disciplinary action be expunged from her
personnel record.
On December 8, 2014, King Soopers’ counsel sent a letter to the Union stating its position
that the back-pay award should only run to October 15, 2013, the original date of the arbitration

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hearing (which was rescheduled by the Arbitrator for personal reasons). The parties also disagree
on the calculation of back pay due to Ms. Austin’s personal work circumstances and promotions.
The Union disagrees with King Soopers’ position concerning the date for back pay and the proper
calculation of the amount.
LEGAL STANDARD
I.

Dismissal under Fed. R. Civ. P. 12(b)(1)
Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter

jurisdiction.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the
merits of a plaintiff’s case, but only a determination that the court lacks authority to adjudicate the
matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are
courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do
so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which
it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906,
909 (10th Cir. 1974). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations
of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter
jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Plaintiff
in this case bears the burden of establishing that this Court has jurisdiction to hear his claims.
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two
forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
First, a facial attack on the complaint’s allegations as to subject matter jurisdiction
questions the sufficiency of the complaint. In reviewing a facial attack on the
complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge
the facts upon which subject matter jurisdiction depends. When reviewing a factual
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attack on subject matter jurisdiction, a district court may not presume the truthfulness
of the complaint’s factual allegations. A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to
evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted). The present motion launches a facial attack on this Court’s
subject matter jurisdiction; therefore, the Court will accept the truthfulness of the Complaint’s
factual allegations.
II.

Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires
a two-prong analysis. First, a court must identify “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual
allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the
allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required to state a plausible claim will vary based on
context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while

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the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a
complaint, the elements of each alleged cause of action may help to determine whether the plaintiff
has set forth a plausible claim. Khalik, 671 F.3d at 1191.
DISCUSSION
I.

Jurisdiction
The Union’s Complaint seeks enforcement of the various Arbitrators’ awards. This case is

very similar to a prior suit in this District, United Food & Commercial Workers Int’l Union, Local
No. 7 v. King Soopers, Inc., No. 08-cv-00683-LTB, and I agree with Judge Babcock’s treatment of
the issue there. As he noted, the parties in his and this lawsuit are signatories to a collective
bargaining agreement that requires the parties to arbitrate disputes. There, as here, an unresolved
dispute remained – a contested back pay award – that arose out of the collective bargaining
agreement. Such dispute is for an arbitrator, not a federal court. I, like he, believe the Court does
not have subject matter jurisdiction over issues that are properly before an arbitrator, which is the
case for interpretation of any back pay dispute. The appropriate order is to allow these pending
issues to be decided by the respective arbitrator(s) and keep this lawsuit on the books (although
administratively closed) until those matters can be addressed. Meyer v. Dans un Jardin, S.A., 816
F.2d 533, 538-39 (10th Cir. 1987) (“Section 3 of the Federal Arbitration Act contemplates
continuing supervision by the district court to ensure that arbitration proceedings are conducted
within a reasonable period of time, thus preventing any impairment of the plaintiffs’ right to seek
relief.”). The administrative closure may be reopened at the appropriate time for either dismissal
of this case or further proceedings that properly invoke the subject matter jurisdiction of this Court.
I would like the parties to submit a joint status report every 30 days.
II.

Res Judicata

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For the same reason I cannot currently adjudicate the Union’s claims regarding back pay,
I cannot find that res judicata bars the Gonzalez issue. There was no subject matter jurisdiction for
Gonzalez to assert his claims in court, as those matters were pending (or, at least, should have been)
before an arbitrator. It is certainly black letter law that union members can be in privity with the
union, such that a decision against a union can bind union members in a subsequent action. Panza
v. Armco Steel Corp., 316 F.2d 69 (3d Cir. 1963). But it is the Union, and not the employee, that
has the collective bargaining agreement with the employer. Gonzalez may be barred by res judicata
from any claims he might bring in the future regarding the back pay issue, but the Union is not.
CONCLUSION
Accordingly, the Court denies the Defendant’s Motion to Dismiss [filed January 7, 2015;
docket #15] as set forth herein. This case is administratively closed, with the parties to submit a
joint status report every 30 days commencing May 15, 2015.
DATED this 8th day of April, 2015, at Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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