Sebsen Electric LLC, v. International Brotherhood of Electrical Workers Local 915 et al

Filing 37

ORDER: "Defendant/Counter-Plaintiff International Brotherhood of Electrical Workers Local Union 915's Dispositive Motion for Judgment on the Pleadings" (Doc. 22) is granted in part and deferred in part. The motion is granted a s to Counts I and II, and as to Count III in part. The Court will enter a final judgment once all claims have been resolved. The motion is deferred with respect to Count III in part. Plaintiff is directed to file, on or before September 28, 2020, a supplemental memorandum of no more than 10 pages in opposition to Defendant's pending motion for judgment on the pleadings. Defendant may then within 7 days file a supplemental reply memorandum of no more than 5 pages. See Order for details. Signed by Judge Thomas P. Barber on 9/14/2020. (EKB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SEBSEN ELECTRICAL, LLC,
d/b/a SEBSEN ELECTRICAL
CONTRACTORS,
Plaintiff/Counter-Defendant,
v.

Case No. 8:20-cv-331-T-60AAS

INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
LOCAL UNION 915,
Defendant/Counter-Plaintiff
__________________________________/
ORDER GRANTING IN PART AND DEFERRING IN PART
DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
This matter is before the Court on “Defendant/Counter-Plaintiff
International Brotherhood of Electrical Workers Local Union 915’s Dispositive
Motion for Judgment on the Pleadings,” filed on May 12, 2020. (Doc. 22). On June
9, 2020, Plaintiff/Counter-Defendant Sebsen Electrical LLC (“Sebsen”) filed a
response in opposition to the motion. (Doc. 25). On July 13, 2020, Defendant
International Brotherhood of Electrical workers Local Union 915 (the “Union”) filed
a reply. (Doc. 31). The Court held a hearing on the Union’s motion on September 1,
2020. After reviewing the motion, response, court file, and record, the Court finds
as follows:

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Background
The material facts necessary to resolve the instant motion are largely
undisputed. The Union and the Florida West Coast Chapter of the National
Electrical Contractors Association (“NECA”) entered into a collective bargaining
agreement (“CBA”) to take effect on December 1, 2017, for a term of two years. The
CBA provided that it would continue from year to year unless terminated or
changed according to its terms. It further provided that where either a notice of
proposed changes or notice of intent to terminate had been timely provided, then
“[u]nresolved issues or disputes arising out of the failure to negotiate a renewal or
modification of this agreement” could be “submitted jointly or unilaterally” for
arbitration to the Council on Industrial Relations for the Electrical Contracting
Industry (“CIR”).
In February 2018, Sebsen, an electrical contractor, executed a Letter of
Assent appointing the Florida West Coast Chapter of NECA as its negotiating agent
and agreeing to be bound by the CBA effective February 6, 2018. In February 2019,
Sebsen gave timely written notice of its intent to terminate the Letter of Assent and
the CBA. On August 26, 2019, the Union wrote to Sebsen requesting that Sebsen
negotiate a new or successor CBA. Sebsen declined to negotiate, maintaining that it
had no duty to do so. TheUnion unilaterally referred the matter to the CIR for
arbitration. Sebsen received notice of the arbitration but once again declined to
participate. On November 21, 2019, the CIR issued an arbitration award, directing

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Sebsen to implement a new, modified CBA with a term running from December 1,
2019 to November 30, 2021.
Sebsen filed this suit against the Union seeking to vacate that arbitration
award. The Union answered and counterclaimed against Sebsen seeking to confirm
the award. The Union has now moved for judgment on the pleadings in its favor.
Legal Standard
A motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) is governed by the same standard as a motion to dismiss under Rule
12(b)(6). Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th Cir.
2018). Accordingly, a court must accept the facts alleged in the complaint as true
and view them in the light most favorable to the nonmoving
party. See Cunningham v. Dist. Attorney’s Office for Escambia Cty., 592 F.3d 1237,
1255 (11th Cir. 2010). The court must also consider the answer and any documents
attached as exhibits. Eisenberg v. City of Miami Beach, 54 F. Supp. 3d 1312, 1319
(S.D. Fla. 2014). “Judgment on the pleadings is proper when no issues of material
fact exist, and the moving party is entitled to judgment as a matter of law based on
the substance of the pleadings and any judicially noticed facts.” Cunningham, 592
F.3d at 1255 (internal quotation omitted).
Analysis
Sebsen’s complaint asserts that the award must be vacated because Sebsen
provided timely notice of its desire to terminate the agreement. As the Union
correctly argues, however, interest arbitration provisions are not nullified by one

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party’s giving notice to terminate the collective bargaining agreement or by
expiration of the agreement. See, e.g., Sheet Metal Workers’ Int’l Ass’n Local 15,
AFL-CIO v. Law Fabrication, LLC, 237 F. App’x 543, 547 (11th Cir. 2007); Sheet
Metal Workers Local 57 Welfare Fund v. Tampa Sheet Metal Co., 786 F.2d 1459,
1460-61 (11th Cir. 1986); Local Union No. 666, Int’l Brotherhood of Electrical
Workers, AFL-CIO v. Stokes, 225 F.3d 415, 421 (4th Cir. 2000). Sebsen’s response
offers no contrary argument and affirmatively disclaims any reliance on
termination of the CBA. Accordingly, the Union is entitled to judgment on the
pleadings to the extent Sebsen’s complaint or its answer to the counterclaim assert
Sebsen’s termination of the CBA as a basis to vacate the award or oppose its
confirmation.
Sebsen also asserts that the Union’s August 2019 request to negotiate a new
agreement did not include proposed new or changed terms. Sebsen argues that, as
a result, the requirements for invocation of the arbitration clause were not met.
The Court, disagrees, for three reasons.
First, under the express terms of the CBA, proposed changes could be
provided either in the written notice or at the first negotiating meeting. Although
there was no “first negotiating meeting” here, that was only because Sebsen
declined to participate. Sebsen cannot argue that a precondition to arbitration did
not occur when it was Sebsen who prevented it from occurring. See, e.g., Sheet
Metal Workers' Int’l Ass'n, Local Union No. 2 v. McElroy's, Inc., 500 F.3d 1093, 1099
(10th Cir. 2007) (“[T]he agreement obligates the parties to negotiate a renewal

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agreement or to have one imposed upon them if one party timely gives notice of a
desire to renew the agreement. A party cannot avoid this obligation by refusing to
engage in negotiations.”); Paparone v. Lake Placid Holding Co., 438 So. 2d 155, 157
(Fla. 2d DCA 1983) (one who prevents the performance of a condition precedent
“cannot avail himself of its nonperformance.”).
Second, Sebsen’s notice of termination itself independently allowed
invocation of the arbitration clause. The CBA provides that a notice of desire to
terminate should be handled in the same manner as a proposed change, and
therefore that notice was equally subject to arbitration for “issues or disputes
arising out of the failure to negotiate a renewal or modification.”
Third, Sebsen’s argument on this point relates to a precondition to
arbitration, as opposed to the scope of the arbitration clause. As such, Sebsen was
required to present it to the arbitrators to resolve, not to a court. See Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85 (2002); John Wiley & Sons, Inc., v.
Livingston, 376 U.S. 543, 557-59 (1964).
Sebsen, however, argues that the availability of arbitration under the
circumstances presented here was a matter for a Court to decide, not the
arbitrators. Sebsen relies heavily on a case from the Fourth Circuit, Local Union
No. 637, Int’l Brotherhood of Electrical Workers, AFL-CIO v. Davis H. Elliott Co.,
Civ. A. No. 92-0766-R, 1992 WL 553665 (W.D. Va. Dec. 29, 1992), aff’d, 13 F.3d 129
(4th Cir. 1993), to support its argument. After carefully reviewing Elliot, it is
apparent to the Court that it is distinguishable in various important respects and,

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therefore, does not support Sebsen’s argument. The holding in Elliot was
dependent on the specific provisions of the contract at issue in that case. The
specific provisions of the contract at issue here are very different from the contract
in Elliot. Indeed, the arbitration provisions at issue in Elliot differed in two critical
ways from those here. First, the agreement in Elliot required that where notice was
given for proposed changes, “the nature of the changes desired must be specified in
the notice.” Elliot, 1992 WL 553665, at *1. The CBA here contains the same
language, but then, as explained above, it adds “or no later than the first
negotiating meeting unless mutually agreed otherwise.” The Union therefore was
not required to specify proposed changes in its August 2019 letter.
Second, the arbitration provision in Elliot applied to “[u]nresolved issues in
negotiations.” The Fourth Circuit held that where no negotiations had occurred due
to the failure of one party to provide proper notice, then no “issues in negotiations”
ever came into existence and there was therefore nothing to arbitrate. Here,
however, the CBA’s arbitration provision extends not merely to issues “in
negotiations” but more broadly to “issues or disputes arising out of the failure to
negotiate a renewal or modification” of the agreement. This language reaches
precisely what occurred here.
For the foregoing reasons, the Union’s motion for judgment on the pleadings
is due to be granted to the extent that Sebsen’s objections to the arbitration award
are based on the scope of the arbitration agreement, the events giving rise to the
arbitration, or any preconditions to arbitration. Because Counts I and II of Sebsen’s

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complaint are limited to these issues, the Union’s motion will be granted as to these
counts. Count III of the complaint is framed in conclusory terms, some of which
might encompass these same issues. The Union’s motion will therefore be granted
as to Count III to the extent it relies on the same grounds.
Count III of the complaint and Sebsen’s answer to the Union’s counterclaim
also assert issues relating to the content of CIR’s arbitration award and the
composition and neutrality of the CIR as an arbitral body. The Union’s motion
addressed these points, but Sebsen declined to address them in its response. While
Sebsen therefore arguably waived these issues, justice requires that they be
addressed on the merits. In addition, Sebsen’s pleadings raise these issues in
conclusory fashion. The Court could require Sebsen to file an amended complaint to
sufficiently plead these issues and then allow a further round of motion practice.
The Court believes, however, that the more efficient approach is to defer ruling on
the Union’s motion for judgment on the pleadings as to these issues, subject to
receiving supplemental memoranda from the parties, as set forth below.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1. “Defendant/Counter-Plaintiff International Brotherhood of Electrical
Workers Local Union 915’s Dispositive Motion for Judgment on the
Pleadings” (Doc. 22) is GRANTED IN PART and DEFERRED IN
PART.

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2. The motion is GRANTED as to Count I and Count II, and as to Count III
to the extent Count III is based on grounds relating to the scope of the
arbitration agreement, the events that gave rise to the arbitration, or any
alleged preconditions to arbitration. The Court will enter a final
judgment once all claims have been resolved.
3. The motion is DEFERRED with respect to Count III to the extent Count
III is based on grounds relating to the composition or neutrality of the CIR
or the content of the award itself.
4. Sebsen is directed to file, on or before September 28, 2020, a supplemental
memorandum of no more than 10 pages in opposition to the Union’s
pending motion for judgment on the pleadings, limited to the issues
described in the preceding paragraph.
5. The Union may then within 7 days file a supplemental reply
memorandum of no more than 5 pages.
DONE and ORDERED in Chambers, in Tampa, Florida, this 14th day of
September, 2020.

TOM BARBER
UNITED STATES DISTRICT JUDGE

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