Brotherhood of Railroad Signalmen v. Invensys Rail Corporation

Filing 52

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 3/25/13; This matter will be ordered to arbitration by separate order of the court.cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

BROTHERHOOD OF RAILROAD SIGNALMEN

v.

PLAINTIFF

CIVIL ACTION NO. 3:12CV63-S

INVENSYS RAIL CORPORATION

DEFENDANT

MEMORANDUM OPINION

This matter is before the court on cross-motions for summary judgment in this action in
which the plaintiff, Brotherhood of Railroad Signalmen (“BRS”), seeks an order compelling
arbitration of a grievance under the terms of a collective bargaining agreement (the “CBA”) between
BRS and the defendant, Invensys Rail Corporation (“Invensys” or “the company”). (DNs 23; 42).1
A party moving for summary judgment has the burden of showing that there are no genuine
issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 151-60, 90 S. Ct. 1598, 16 L. Ed. 2d 142 (1970); Felix v. Young,
536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent
summary judgment. The disputed facts must be material. They must be facts which, under the
substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty
Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be
such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving
party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-

1

Invensys has also moved to supplement its response to the plaintiff’s motion for summary judgment (DN 44). The motion
will be granted and the supplemental response substituted for Invensys’ original response (DN 30).

moving party, but that party is required to present some significant probative evidence which makes
it necessary to resolve the parties’ differing versions of the dispute at trial. First National Bank of
Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a
light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King
Corp., 303 F.2d 425 (6th Cir. 1962).
This action arose from an alleged violation of the collective bargaining agreement between
the plaintiff, Brotherhood of Railroad Signalmen (“BRS”) and Invensys. BRS is the collective
bargaining representative of non-management employees at Invensys’ Louisville, Kentucky, facility.
In a meeting in July 2010 in which BRS officials participated, Invensys presented a plan to
implement a Vendor Managed Inventory (“VMI”) process. In September 2010, BRS proposed an
alternative to the VMI plan. BRS’ proposal was rejected by the company. The VMI plan was
implemented at the Invensys facility on October 26, 2010.
BRS officials met with Invensys human resources representatives on November 4, 2010 to
discuss, among other things, BRS’ concerns over the VMI plan. According to BRS, inventory
handling had been performed in the past by BRS-represented employees rather than by outside
vendors. At the November 4th meeting, BRS urged that Invensys’ assignment of the work to vendor
Würth Snider Bolt & Screw, Inc. violated the CBA. Following the meeting, BRS and the company
continued to discuss the dispute and possible solutions.
On February 28, 2011, BRS initiated a grievance with Invensys by submitting a letter stating
that:
As per (Rule 1102) of the C.B.A., this letter is to serve as notice as to the start of the
Grievance Procedure.

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The Union takes the position that the Company has violated and is in violation of
both Schedule “B” and Schedule “C” of the C.B.A. The Company by bringing in
outside vendors to scan and restock materials are allowing non union personnel to
perform work that has been done by the shop employees in the past and is spelled out
in Schedule “A” in the Coordinators job description and in Schedule “C” Assemblers
job description (numbers 10 and 11) [sic] The Union has made numerous attempts
to rectify this situation and have offered the Company a compromise That [sic] the
Union feels would allow the Company to accomplish what it desires to do and the
Unions [sic] desire to honor the C.B.A. The Company has made no effort to rectify
this situation or to acknowledge the Unions [sic] offer of a compromise. Therefore
we ask that the Company refrain from continuing to violate the C.B.A. by having non
union personnel come in and do work that is traditionally Union work. As always
if the Company would like to settle this grievance prior to arbitration the Union is
willing to meet.
DN 24-2.
Rule 1101 of the CBA states that “[a]ny disputes involving interpretation or application of
[the CBA] shall be subject to an orderly grievance procedure as set forth herein.” Step 1 of the
grievance process requires that “[t]he aggrieved employee or the Union shall present the grievance
in writing to the Plant Manager or designated representative, within fifteen (15) calendar days after
the cause of such grievance becomes known or could reasonably be expected to have been known.”
Rule 1102, Step 1.
Invensys denied BRS’ grievance on March 28, 2011. BRS filed a Step 2 appeal which the
company denied on April 18, 2011. On May 5, 2011, BRS notified Invensys that it wished to
arbitrate the grievance in accordance with Rules 1102, Step 3 and 1103 of the CBA. Invensys
refused to arbitrate the matter in the absence of agreement by BRS to bifurcate the question of
timeliness of the initial grievance from an arbitration on the merits. BRS filed suit to compel
Invensys to submit to arbitration of the matter.
Invensys contends that there is no bona fide issue concerning timeliness, and therefore the
court should not compel arbitration. Rather, it urges the court to dismiss the action with prejudice,
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and has filed a motion for summary judgment. In support of its contention, Invensys relies heavily
on the case of United Steel Workers of America AFL-CIO-CLC v. Cherokee Electric Cooperative,
Civ. A. No. 86-AR-2163-M, 1987 WL 17056 (N.D.Al. Feb. 19, 1987). Invensys states that
One essential term of [the collective bargaining] agreement is timeliness,
Concededly, bona fide “disputes” over timeliness are to be resolved by an arbitrator.
United Steelworkers of America v. Saint Gobain Ceramics and Plastics, 505 F.3d
417, 420 (6th Cir. 2007); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 82-84
(2002).”
Invensys insists, however, that BRS has conceded that its grievance was untimely filed. It urges that
there is no bona fide issue to put before an arbitrator, as the parties agree that the grievance was
untimely, and the deadline for initiating a grievance cannot be extended by agreement of the parties.
BRS does not concede that its grievance was untimely. BRS’ grievance claims that ongoing
conduct has allegedly violated and continues to violates the CBA. BRS affirms that it filed its
written grievance on February 28, 2011. It contends that, at the very least, its grievance was timely
as to work performed by non-bargaining unit workers for the period fifteen days prior to the filing
date of the grievance and continuing forward. It further asserts a “law of the shop” argument, noting
that various time limits in the grievance process have been disregarded in a number of instances,
while the parties met in an attempt to resolve disputes. BRS cites to testimony from the Leasor and
Ramirez depositions in support of this contention. Further, BRS notes, and Invensys does not
dispute, that for a period of time after the November 4, 2010 meeting, the parties did continue to
discuss the dispute and attempt to craft a resolution.
The court offers no opinion as to the strength of the timeliness arguments asserted by BRS.
For our purposes, we note only that a grievance was filed and that BRS contends that the grievance
was timely.

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The facts before us are clearly distinguishable from those which were operative in Cherokee
Electric. To the extent that Cherokee Electric can be said to retain any vitality, it must be limited
in application to its facts. The court noted in Cherokee Electric that
Cherokee Electric corroctly [sic] points out that the Steelworkers have never
contended that the grievance was timely, relying instead on the argument that
‘timeliness’ is not a question before the court. The court notes that the Steelworkers
have offered no evidence whatsoever indicating that there is even a ‘question’ as to
timeliness, and the affidavits offered by the Company which flatly and consistently
state that the grievance was untimely have not been gainsaid by the
Steelworkers...Here, there is no question of timeliness since the Steelworkers have
never even asserted that the grievance was timely. They have failed to carry their
burden as required by Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986),
and have, in essence, admitted that the grievance was untimely filed.

Cherokee Electric, 1987 WL 17056, *3 - 4.
The facts in the case at bar stand in stark contrast. Timeliness has been placed in issue by
the parties and must therefore be addressed by an arbitrator. See, Cherokee Electric, supra., at *3
(“Any doubts regarding whether a matter is arbitrable are to be resolved in favor of arbitrability.
The only question here is whether this particular grievance must be submitted to arbitration, and the
court does not bother itself with whether or not the grievance has merit.”), citing John Wiley & Sons,
Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909 (1964). See also, United Steelworkers of America v.
Simcala, Inc., 971 F.Supp 522 (M.D.Al. 1997)(finding case distinguishable on the facts from
Cherokee Electric; colorable dispute concerning timeliness).
Further, Saint Gobain states the law in this circuit that timeliness is to be addressed as a
threshold matter by the arbitrator:
What emerges from John Wiley & Sons and Howsam [v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002)] is a fairly
straightforward rule: A time-limitation provision involves a matter of procedure; it
is a “condition precedent” to arbitration, id.(internal quotation marks omitted); and
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it thus is “presumptively” a matter for an arbitrator to decide, id. In the absence of
an agreement to the contrary, in the absence in other words of language in the
agreement rebutting the presumption, arbitrators rather than judges should resolve
disputes over time-limitation provisions.

505 F.3d at 422.
Invensys urges that BRS’ arguments cannot withstand scrutiny. However, Invensys’
contention that the claim of timeliness is legally and/ or factually meritless is question for
the arbitrator. This matter will be ordered to arbitration by separate order of the court.

IT IS SO ORDERED.

March 25, 2013

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