United Government Security Officers of America International Union et al v. G4S Regulated Security Solutions a Division of G4S Secure Solutions (USA) Inc.

Filing 39

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Plaintiffs' motion, [ECF No. 28 ], is GRANTED in part and Defendant's motion, [ECF No. 31 ], is DENIED. The Court declares that the parties are bound by the CBA and that Defendant breached the CBA by refusing to arbitrate Plaintiffs' grievance. The Court orders Defendant to engage in arbitration with Plaintiffs, beginning with the selection of an arbitrator through the process outlined in Section VII of the CBA. Plaintiffs' request for an award of attorneys' fees and costs is DENIED. SO ORDERED. (McDonagh, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED GOVERNMENT SECURITY
OFFICERS OF AMERICA
INTERNATIONAL UNION and UNITED
GOVERNMENT SECURITY OFFICERS OF
AMERICA INTERNATIONAL UNION
LOCAL 15,
Plaintiffs,
v.
G4S REGULATED SECURITY
SOLUTIONS, A DIVISION OF G4S
SECURE SOLUTIONS (USA) INC.,
Defendant.

*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*

Civil Action No. 19-cv-10373-ADB

MEMORANDUM AND ORDER ON THE PARTIES’ CROSS MOTIONS FOR
SUMMARY JUDGMENT
BURROUGHS, D.J.
Plaintiffs United Government Security Officers of America International Union
(“Union”) and United Government Security Officers of America International Union Local 15
(“Local” and, collectively with Union, “Plaintiffs”) initiated this action against Defendant G4S
Regulated Security Solutions (“Defendant”) to resolve whether the parties’ collective bargaining
agreement (“CBA”) mandates arbitration of a grievance filed by Plaintiffs regarding Defendant’s
use of forced overtime for maintenance work. [ECF No. 1 ¶¶ 14–15]. Plaintiffs seek declaratory
relief, an order compelling arbitration, and damages resulting from Defendant’s refusal to
proceed to arbitration. [Id. ¶¶ 24–36]. Currently before the Court are the parties’ cross motions
for summary judgment. [ECF Nos. 28, 31]. For the reasons set forth below, Plaintiffs’ motion,
[ECF No. 28], is GRANTED in part and Defendant’s motion, [ECF No. 31], is DENIED.

I.

BACKGROUND
A.

Factual Background

Except as otherwise noted, the following facts are undisputed. The Court refers to the
statements of fact submitted by the parties in support of their respective motions, [ECF Nos. 30
(“PSOF”), 33 (“DSOF”)], and responses to those statements insofar as they identify factual
disputes, [ECF Nos. 35, 37].
Union is a labor organization representing government security services employees,
including “guards” as defined under 29 U.S.C. § 159(b)(3), some of whom are represented by
Local in Rowe, Massachusetts. [PSOF ¶ 1]. Defendant provides security to nuclear utility
plants, including decommissioned sites like the Yankee Atomic Plant in Rowe. [DSOF ¶¶ 5–6,
10]. During the relevant period, Plaintiffs were the exclusive bargaining agent for security
guards employed by Defendant at the Yankee Atomic Plant in Rowe. [PSOF ¶ 3]. Plaintiffs and
Defendant are parties to the CBA, which runs from January 1, 2018 through December 31, 2020.
[Id.]. The CBA contains a grievance provision, Article VII, Section I, which defines a grievance
as “a difference of opinion between [Defendant] and an employee or [Plaintiffs] regarding only
the meaning or application of [the CBA], but restricted to specific terms of [the CBA] . . . .”
[ECF No. 30-2 at 12 (CBA Article VII); PSOF ¶ 4]. The CBA outlines the multi-step grievance
process. [ECF No. 30-2 at 12, 10; PSOF ¶ 4]. Steps 1 and 2 involve submitting written notice of
the grievance to Defendant’s representatives. [ECF No. 30-2 at 12]. If a party is not satisfied
after Step 2, Step 3 allows Plaintiffs to “submit the grievance for arbitration by written notice” to
Defendant. [Id. at 10; PSOF ¶ 4]. In order to begin the arbitration process, the CBA allows
Plaintiffs to request the Federal Mediation and Conciliation Service (“FMCS”) to nominate

2

seven potential arbitrators, and Plaintiffs and Defendant then may each eliminate three potential
arbitrators until one remains. [ECF No. 30-2 at 10; PSOF ¶ 5].
The CBA also contains a provision, Article XII, regarding forced overtime by security
guards. [PSOF ¶ 7; ECF No. 30-2 at 18–19]. Article XII, Section 4 discusses the procedures by
which Defendant can staff an overtime shift when no one has volunteered to work the shift.
[PSOF ¶ 7; ECF No. 30-2 at 19]. Plaintiffs’ employees perform both security and maintenance
tasks for Defendant, and maintenance tasks are included in the job description for security
guards. [DSOF ¶¶ 20, 23; ECF No. 35 at 9, 10]. Maintenance tasks include cleaning floors,
snow removal, trash collection, and mowing. [DSOF ¶ 24; ECF No. 35 at 11].
Defendant identified a need for maintenance work (cleaning floors) to be completed by
Plaintiffs’ employees on August 4 and 5, 2018, and decided to have employees clean the floors
during overtime. [DSOF ¶¶ 30, 31]. Defendant states that it first attempted to staff the shifts
using the CBA’s voluntary overtime procedures, [DSOF ¶¶ 32, 33], though Plaintiffs dispute this
insofar as they are without knowledge as to whether Defendant did so, [ECF No. 35 at 15].
Defendant then states that it followed the CBA’s forced overtime procedures to select two
employees to complete the maintenance tasks, [DSOF ¶¶ 34, 35], though Plaintiffs dispute this,
again, insofar as they are without knowledge as to whether the procedures were followed. [ECF
No. 35 at 15, 16]. According to Defendant, this was the first time it used forced overtime to have
employees perform maintenance tasks, [DSOF ¶ 37], though Plaintiffs also dispute this based on
lack of knowledge, [ECF No. 35 at 17].
On August 7, 2018, Plaintiffs filed a grievance at Step 1 on behalf of the two employees
who were forced to work overtime to do the maintenance work on August 4 and 5. [PSOF ¶ 9].
The grievance stated that Defendant violated the CBA by forcing the employees to work

3

overtime for non-security reasons and referenced Article XII, “forced O.T.,” call-in procedures,
and “past practice.” [Id.; ECF No. 30-3 at 2]. Plaintiffs had not previously filed a grievance
about maintenance tasks being assigned to its members. [DSOF ¶ 26; ECF No. 35 at 12]. After
being dissatisfied with Defendant’s response to Steps 1 and 2 of the grievance procedures under
the CBA, Plaintiffs filed a demand for arbitration under Article VII of the CBA on September 4,
2018. [PSOF ¶ 10]. Plaintiffs then filed a request with FMCS for an arbitration panel and the
parties were given a list of potential arbitrators. [Id. ¶¶ 10–11].
Counsel for Plaintiffs and Defendant then exchanged a series of e-mails in which counsel
for Plaintiffs repeatedly asked Defendant to select an arbitrator. [Id. ¶¶ 12, 14, 16, 19; ECF No.
30-7 at 2; ECF No. 30-9 at 2; ECF No. 30-11 at 2; ECF No. 30-14 at 2]. Counsel for Defendant
repeatedly told counsel for Plaintiffs that the substance of the grievance was unclear and refused
to select an arbitrator. [PSOF ¶¶ 13, 15, 17, 20; ECF No. 30-8 at 2 (“I have no understanding of
the manner in which [Plaintiffs] [] contend[] [Defendant] violated the CBA, because I don’t see
any language that supports the argument.”); ECF No. 30-10 at 2 (“I can’t select an arbitrator
without the most basic understanding of what language [Plaintiffs] allege[] was violated and
how.”); ECF No. 30-12 at 2; ECF No. 30-15 at 2].
B.

Procedural Background

Plaintiffs filed this action on February 28, 2019. [ECF No. 1]. The parties mediated on
September 19, 2019 before Magistrate Judge Bowler but were unable to reach a resolution.
[ECF No. 27]. After discovery, the parties filed cross motions for summary judgment on
February 12, 2020. [ECF Nos. 28, 31]. Both parties opposed, [ECF Nos. 34, 36], and Plaintiffs
replied, [ECF No. 38].

4

II.

LEGAL STANDARD
Summary judgment is appropriate where the moving party can show that “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[A]n issue is ‘genuine’ if it ‘may reasonably be resolved in favor
of either party.’” Robinson v. Cook, 863 F. Supp. 2d 49, 60 (D. Mass. 2012) (quoting Vineberg
v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)). “A fact is material if its resolution might affect
the outcome of the case under the controlling law.” Cochran v. Quest Software, Inc., 328 F.3d
1, 6 (1st Cir. 2003) (citation omitted). Thus, “[a] genuine issue exists as to such a fact if there is
evidence from which a reasonable trier could decide the fact either way.” Id. (citation
omitted). By invoking summary judgment, “the moving party in effect declares that the evidence
is insufficient to support the nonmoving party’s case.” United States v. One Parcel of Real Prop.
(Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
“To succeed in showing that there is no genuine dispute of material fact,” the moving
party must “‘affirmatively produce evidence that negates an essential element of the non-moving
party’s claim,’ or, using ‘evidentiary materials already on file . . . demonstrate that the nonmoving party will be unable to carry its burden of persuasion at trial.’” Ocasio-Hernández
v. Fortuño-Burset, 777 F.3d 1, 4–5 (1st Cir. 2015) (quoting Carmona v. Toledo, 215 F.3d 124,
132 (1st Cir. 2000)). Conversely, “[t]o defeat a properly supported motion for summary
judgment, the nonmoving party must establish a trial-worthy issue by presenting enough
competent evidence to enable a finding favorable to the nonmoving party.” ATC Realty, LLC v.
Town of Kingston, N.H., 303 F.3d 91, 94 (1st Cir. 2002) (internal quotation marks and citation
omitted). That is, the nonmoving party must set forth specific, material facts showing that there

5

is a genuine disagreement as to some material fact. One Parcel of Real Prop., 960 F.2d at 204
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57 (1986)).
In reviewing the record, the Court “must take the evidence in the light most flattering to
the party opposing summary judgment, indulging all reasonable inferences in that party’s
favor.” Cochran, 328 F.3d at 6 (citation omitted). The First Circuit has noted that this review “is
favorable to the nonmoving party, but it does not give him a free pass to trial.” Hannon v.
Beard, 645 F.3d 45, 48 (1st Cir. 2011). “The factual conflicts upon which he relies must be both
genuine and material[,]” Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 397 (1st Cir.
2012), and the Court may discount “conclusory allegations, improbable inferences, and
unsupported speculation.” Cochran, 328 F.3d at 6 (quoting Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
III.

DISCUSSION
As a starting point, the Court notes that the parties’ opposition briefs do not claim that

there is a disputed material fact. See [ECF Nos. 34, 36]. Although the parties dispute aspects of
each other’s statements of facts, [ECF Nos. 35, 37], these disputes are not material and therefore
do not preclude the entry of summary judgment. See Anderson, 477 U.S. at 247–48 (“By its
very terms, this standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” (emphasis
omitted)).
A.

Whether the Grievance Is Arbitrable

Plaintiffs argue that, given the strong presumption of arbitrability surrounding CBAs with
arbitration provisions, Defendant cannot establish that the grievance at issue is not subject to

6

arbitration. [ECF No. 29 at 1–2]. Defendant maintains that the grievance is not subject to
arbitration under the CBA. [ECF No. 32 at 10]. The parties do not dispute that the CBA
contains an arbitration provision. [ECF No. 29 at 3; ECF No. 32 at 9].
“It is common ground that although a collective bargaining agreement is a contract, it is
to be more liberally construed than an agreement between private individuals.” Peerless Pressed
Metal Corp. v. Int’l Union of Elec., Radio & Mach. Workers, AFL-CIO, 451 F.2d 19, 20 (1st
Cir. 1971).
[W]here the contract contains an arbitration clause, there is a presumption of
arbitrability in the sense that “[an] order to arbitrate the particular grievance should
not be denied unless it may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage.”
AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (second alteration
in original) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582–83 (1960)). “[A] party cannot be required to submit to arbitration any dispute which he
has not agreed so to submit,” Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83, (2002)
(quoting Warrior & Gulf Navigation Co., 363 U.S. at 582), yet “[i]n the absence of any express
provision excluding a particular grievance from arbitration, . . . only the most forceful evidence
of a purpose to exclude the claim from arbitration can prevail . . . .” Warrior & Gulf Navigation
Co., 363 U.S. at 584–85; see Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 11 (1st Cir. 2005)
(stating that “[i]n the face of contractual silence, courts should presume that parties intend to give
their disputes to the most able decisionmaker on a given issue, both for contractual and public
policy reasons,” and that arbitrators are in the best position to interpret contracts).
The Supreme Court has identified two questions that are “presumptively for the court to
decide: (1) ‘whether the parties are bound by a given arbitration clause,’ and (2) ‘whether a
concededly binding arbitration clause applied to a particular type of controversy.’” Marie, 402
7

F.3d at 10 (quoting Howsam, 537 U.S. at 84); see Howsam, 537 U.S. at 84 (“[A] gateway
dispute about whether the parties are bound by a given arbitration clause raises a ‘question of
arbitrability’ for a court to decide.”). Meanwhile, “many other types of claims, including even
some ‘gateway questions’ that might dispose of the entire claim, are presumptively left to the
arbitrator. This category includes ‘procedural questions which grow out of the dispute and bear
on its final disposition.’” Marie, 402 F.3d at 10 (quoting Howsam, 537 U.S. at 84). “This
distinction has employed the rough rubric that procedural issues, even if potentially dispositive,
are left to the arbitrator; substantive questions about the kind of disputes intended for arbitration
are reserved for the court, absent clear and unmistakable evidence to the contrary.” Id. Lastly,
in deciding whether the parties have agreed to submit a particular grievance to
arbitration, a court is not to rule on the potential merits of the underlying claims.
Whether “arguable” or not, indeed even if it appears to the court to be frivolous,
the union’s claim that the employer has violated the collective-bargaining
agreement is to be decided, not by the court asked to order arbitration, but as the
parties have agreed, by the arbitrator.
AT&T Techs., 475 U.S. at 649–50.
Because the parties do not dispute that the CBA contains an arbitration provision, [ECF
No. 29 at 3; ECF No. 32 at 9], the only question for the Court to address is “whether [Plaintiffs’]
claim is a complaint, dispute or question as to the interpretation, application or performance of
the [CBA],” Int’l Bhd. of Elec. Workers, Local 1228 v. WNEV-TV, New Eng. Television Corp.,
778 F.2d 46, 48 (1st Cir. 1985). Article VII of the CBA states that a grievance is “a difference of
opinion between [Defendant] and an employee or [Plaintiffs] regarding only the meaning or
application of [the CBA], but restricted to specific terms of [the CBA] . . . .” [ECF No. 30-2 at
12]. Article XII of the CBA specifically addresses when and how Defendant may assign
employees forced overtime shifts. [Id. at 19]. In addition, there is no specific provision within
the CBA that excludes forced overtime from arbitrability. See [id.]. The Court therefore finds

8

that Plaintiffs’ grievance regarding the use of forced overtime for maintenance work is arbitrable,
as the grievance expresses a difference of opinion regarding the meaning and application of a
specific term of the CBA, namely forced overtime.
Defendant attempts to frame the issue as one of “maintenance work,” arguing that the
term “maintenance” does not appear in the CBA and therefore is not arbitrable because it is not a
“specific term” within the definition of a grievance. [ECF No. 32 at 12, 13–14; ECF No. 36 at
1–2; ECF No. 30-2 at 12]. Yet Plaintiffs’ grievance specifically referenced Article XII and
forced overtime. [ECF No. 30-3 at 2]. Although the grievance may concern maintenance work
as it relates to forced overtime, the grievance nonetheless concerns the meaning and application
of forced overtime—for example, when it may be invoked and whether there may be any
limitations on its use. 1
Defendant also argues that Plaintiffs’ reference in the grievance and in their briefs to
“past practice” is inappropriate because Defendant did not use forced overtime for maintenance
in the past and therefore there was no existing past practice around this issue. [ECF No. 36 at 7].
The Court notes, first, that absence of conduct or action may itself be past practice. See N.
Adams Reg’l Hosp. v. Mass. Nurses Ass’n, 889 F. Supp. 507, 514 (D. Mass. 1995) (referencing
with approval an arbitrator’s reliance on employer never having hired an external candidate to
support arbitrator’s interpretation of a contract term based on that practice). Second, the
existence of a past practice and its bearing on the meaning and application of forced overtime is
a question for an arbitrator to resolve. When resolving a grievance, an arbitrator is not limited to

1

Defendant states that a representative for Plaintiffs communicated a belief that maintenance
work generally—rather than just within the context of forced overtime—was at the heart of the
grievance. [ECF No. 32 at 7]. Yet, by its terms, the grievance was focused on the use of forced
overtime in connection with maintenance work, rather than maintenance work in general. See
[ECF Nos. 1, 30-3].
9

interpreting the parties’ CBA, but may also reference “the industrial common law—the practices
of the industry and the shop—[which] is equally a part of the collective bargaining agreement
although not expressed in it.” Warrior & Gulf Navigation Co., 363 U.S. at 581–82. The
Supreme Court has observed that
[a] collective bargaining agreement is not an ordinary contract for the purchase of
goods and services, nor is it governed by the same old common-law concepts which
control such private contracts. . . . [I]t is a generalized code to govern a myriad of
cases which the draftsmen cannot wholly anticipate. . . . The collective agreement
covers the whole employment relationship. It calls into being a new common law—
the common law of a particular industry or of a particular plant.
Conrail v. Ry. Labor Execs.’ Ass’n, 491 U.S. 299, 311–12 (1989) (quoting Transp. Union v.
Union Pac. R.R. Co., 385 U.S. 157, 161 (1966)). Further, “[i]t has been held that a contract may
be found to incorporate past practice even though not mentioned.” Int’l Bhd. of Elec. Workers,
Local 1228, 778 F.2d at 48. Therefore, having found that the issue raised by Plaintiffs is
arbitrable, consideration of past practice as it pertains to this issue is left to the arbitrator.
“Once the district court [makes] the threshold finding that plaintiff’s claims appear[] to
create an issue sufficiently substantial to require submission to an arbitrator, its judicial function
[is] at an end.” Id. (internal quotation marks omitted). “The courts, therefore, have no business
weighing the merits of the grievance . . . or determining whether there is particular language in
the written instrument which will support the claim. The agreement is to submit all grievances to
arbitration, not merely those which the court will deem meritorious.” Id. at 47 (emphasis
omitted) (quoting Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 567–68 (1960)). Defendant
raises additional arguments regarding whether Plaintiffs’ grievance may succeed on the merits—
for example, arguing that maintenance work was regularly performed by security guards (though
not during forced overtime). See, e.g., [ECF No. 32 at 13–17]. Yet these arguments reach

10

procedural matters and questions that go to the merits of the grievance which are matters for the
arbitrator to decide. 2
As the Supreme Court has held, parties subject to an arbitration clause under a CBA
should submit their dispute to arbitration “unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” AT&T
Techs., 475 U.S. at 650 (emphasis added) (citation omitted). Because the CBA contains an
arbitration provision as well as a provision governing forced overtime, the presumption holds in
this matter. Even if the Court were in doubt about the arbitrability of the grievance, “doubts
should be resolved in favor of coverage.” Id. “In the face of contractual silence,” the Court must
presume that the parties intended an arbitrator to interpret the CBA and past practice regarding
the use of forced overtime for maintenance tasks. Marie, 402 F.3d at 11.
Even “indulging all reasonable inferences” in Defendant’s favor, Cochran, 328 F.3d at 6,
when “faced with the strong presumption of arbitrability,” Mass. Inst. of Tech. v. Research, Dev.
Tech. Emps. Union, 980 F. Supp. 2d 8, 16 (D. Mass. 2013), Defendant has failed to produce
“forceful evidence of a purpose to exclude the claim from arbitration,” Warrior & Gulf
Navigation Co., 363 U.S. at 585. Accordingly, Plaintiffs’ motion for summary judgment, [ECF
No. 28], is GRANTED in part. Thus, Defendant’s motion for summary judgment, [ECF No. 31],
is DENIED.

2

Defendant also argues that, because it submitted written notice to Plaintiffs in March 2019 that
it considered maintenance work during forced overtime fair game, Plaintiffs’ August 2018
grievance is now moot. [ECF No. 32 at 16]. Defendant’s practices after March 2019, however,
are not the subject of Plaintiffs’ grievance. See [ECF No. 30-3 (copy of grievance identifying
August 2018 incidents as the subject of the grievance)]. An arbitrator may still determine
whether, in August 2018, Defendant violated the CBA and/or past practice by using forced
overtime for maintenance work.
11

B.

Plaintiffs’ Requested Relief

Plaintiffs request that the Court enter a judgment ordering Defendant to proceed to
arbitration for the grievance at issue, enter a declaratory judgment that the Defendant is bound by
the CBA and has breached the CBA by refusing to arbitrate the grievance, and award Plaintiffs
their attorneys’ fees and costs. [ECF No. 1 ¶¶ 30, 32, 35; ECF No. 29 at 20].
1.

Judgment and Declaratory Judgment

Having found that Plaintiffs’ grievance is arbitrable, the Court orders Defendant to
engage in arbitration with Plaintiffs on the grievance, beginning with the selection of an
arbitrator through the process outlined in Section VII of the CBA.
The Declaratory Judgment Act provides that a Court “may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not further relief is or
could be sought.” 28 U.S.C. § 2201(a). The express language of the Declaratory Judgment Act
and fundamental principles of standing under Article III of the Constitution limit declaratory
judgment actions to cases where “the facts alleged, under all the circumstances, show that there
is a substantial controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312
U.S. 270, 273 (1941)).
In the context of collective bargaining agreements, the First Circuit has held that “a
‘declaration that . . . breaches did or did not occur certainly would aid the parties in
understanding their mutual obligations under the contract.’” Verizon New Eng., Inc. v. IBEW,
651 F.3d 176, 190 (1st Cir. 2011) (quoting Bituminous Coal Operators’ Ass’n, Inc. v. Int’l
Union, United Mine Workers of Am., 585 F.2d 586, 595 (3d Cir. 1978)). “Declaratory relief, of

12

course, may not be used to supplant the role of the arbitrator in interpreting the provisions of the
contract. It may be useful, however, in determining whether the actions at issue have undercut
the arbitral process.” Id.
As noted above, the Court has found that Plaintiffs’ grievance is arbitrable and the parties
do not dispute that they are bound by the CBA. [PSOF ¶ 3; DSOF ¶¶ 2, 17]. Given the strong
presumption of arbitrability and Defendant’s failure to provide “forceful evidence” that the
parties intended to exclude forced overtime from arbitration, Warrior & Gulf Navigation Co.,
363 U.S. at 584–85, the Court finds that the parties are bound by the CBA and that Defendant
breached the CBA by refusing to arbitrate Plaintiffs’ grievance.
2.

Attorneys’ Fees & Costs

Plaintiffs request expenses incurred in this litigation as compensation for Defendant’s
breach. [ECF No. 1 ¶ 35; ECF No. 29 at 18–19]. Defendant argues that Plaintiffs are not
entitled to fees because Defendant’s conduct did not rise to a level of conduct that would justify
such an award. [ECF No. 32 at 18–19; ECF No. 36 at 8–9].
In labor disputes governed by Section 301 of the Labor Management Relations Act, 29
U.S.C. § 185, “litigants generally bear their own costs” unless a court “determines that the losing
party has ‘acted in bad faith, vexatiously, or for oppressive reasons.’” Local 285, Serv. Emps.
Int’l Union v. Nonotuck Res. Assocs., 64 F.3d 735, 737 (1st Cir. 1995) (quoting Alyeska
Pipeline Co. v. Wilderness Soc’y, 421 U.S. 240, 258–59 (1974)); see Local 2322, IBEW v.
Verizon New Eng., Inc., 464 F.3d 93, 100 (1st Cir. 2006) (stating that “[u]nder federal common
law, a court may award fees and costs to the winning party in a section 301 action”). “The term
‘vexatious’ means that the losing party’s actions were ‘frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith.’” Local 285, Serv. Emps. Int’l

13

Union, 64 F.3d at 737 (quoting Wash. Hosp. Ctr. v. Serv. Emps. Int’l Union, 746 F.2d 1503,
1510 (D.C. Cir. 1984)).
First, Defendant argues that Plaintiffs’ grievance was unclear and that “Plaintiffs refused
to articulate the manner in which Defendant supposedly violated any CBA language.” [ECF No.
32 at 18]. Plaintiffs’ grievance was clear: it identified the specific provision of the CBA at issue
(Article XII), past practice that was alleged to have been contrary to the forced overtime tasks
(“forcing officers to work O.T. for reasons unrelated to . . . security”), and the specific breach of
the CBA alleged (“[t]he aggrieved were forced to work O.T. for non-security reasons, i.e.,
maintenance. The Company willfully violated the C.B.A.”). [ECF No. 30-3 at 2]. Despite this,
in briefing the cross motions for summary judgment, Defendant articulated a reasonable—if
unpersuasive—argument in defense of its position that the grievance was not arbitrable. See
generally [ECF Nos. 32, 36].
“The line between frivolous arguments and merely unpersuasive ones is fine, and while
[Defendant] was ultimately unsuccessful, its contention . . . was ‘at least colorable.’” N. New
Eng. Tel. Operations LLC v. Local 2327, IBEW, 735 F.3d 15, 25 (1st Cir. 2013) (quoting Local
2322, IBEW, 464 F.3d at 100); see Aggregate Indus.-Ne. Region, Inc. v. Teamsters Local Union
No. 42, 762 F. Supp. 2d 285, 299 (D. Mass. 2010) (“I cannot say that [defendant] knew, or
should have known, that it had no prospect of prevailing.”). The Court finds that Defendant’s
position was not vexatious but merely unavailing and therefore declines to enter an award of
attorneys’ fees and costs against Defendant. See Local 2322, IBEW, 464 F.3d at 96 (affirming
denial of attorneys’ fees where court found losing party’s position was unpersuasive but not
otherwise vexatious).

14

IV.

CONCLUSION
Accordingly, Plaintiffs’ motion, [ECF No. 28], is GRANTED in part and Defendant’s

motion, [ECF No. 31], is DENIED. The Court declares that the parties are bound by the CBA
and that Defendant breached the CBA by refusing to arbitrate Plaintiffs’ grievance. The Court
orders Defendant to engage in arbitration with Plaintiffs, beginning with the selection of an
arbitrator through the process outlined in Section VII of the CBA. Plaintiffs’ request for an
award of attorneys’ fees and costs is DENIED.
SO ORDERED.
September 11, 2020

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

15