International Union of Operating Engineers Local 148, AFL-CIO v. Gateway Hotel Holdings

Filing 36

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment 12 is DENIED, and Defendants Motion for Summary Judgment 21 is GRANTED. Signed by District Judge John A. Ross on 7/8/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 148, AFL-CIO,
Plaintiff,
v.
GATEWAY HOTEL HOLDING, INC.
d/b/a MILLENIUM HOTEL,
Defendant.

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Case No. 4:12-CV-1549-JAR

MEMORANDUM AND ORDER
This matter is before the Court on cross motions for summary judgment. On December
19, 2012, Plaintiff International Union of Operating Engineers Local 148, AFL-CIO (the
“Union”) filed a Motion for Summary Judgment (ECF No. 12) and on January 22, 2013
Defendant’s Motion for Summary Judgment (ECF No. 21). These motions are fully briefed and
ready for disposition.
BACKGROUND
Defendant Gateway Hotel Holdings, Inc. d/b/a Millennium Hotel in St. Louis
(“Millennium”) currently recognizes the Union as the bargaining representative for its
engineering and maintenance employees.

(Statement of Uncontroverted Material Facts in

Support of Defendant’s Motion for Summary Judgment (“DSUMF”), ¶1). Effective April 10,
2011, the Union and Millennium entered into the current CBA, effective for the time period of
April 10, 2011 through March 31, 2016. (DSUMF, ¶3). Article I of the CBA, the Recognition
clause states:

Section 1. The Company recognizes the Union as a sole and exclusive bargaining
agent for engineering and maintenance employees, excluding all office and
clerical employees, professional and supervisory employees.
The union
represents that its jurisdiction, as granted by the AFL-CIO, is set forth in the
Article XIII (CRAFT JURISDICTION) of the Constitution of the International
Union of Operating Engineering (a copy of which has been furnished to the
Company) and that the employees covered hereby shall operate, maintain and
keep in good running order all machinery, equipment and other items for which
they are responsible as assigned.
Section 2. It is agreed and understood that the above recognition acknowledges
and satisfied the representation rights of the Union as the sole and exclusive
bargaining agent for the above-defined employees as and to the extent specifically
provided by the National Labor Relations Act, as amended. It is further agreed
and understood that the Union has no organizational interest in and will not
engage in any organizational activity among employees of the Company other
than those it represents who now perform engineering and maintenance services
and functions.
(DSUMF, ¶4).
Article VIII of the CBA provides the grievance and arbitration procedures agreed to by
the Union and Millennium. Article VIII defines a grievance as a “dispute with or claim or
complaint against the Company involving the interpretation or application of the express
provisions of this Agreement and taken up in the grievance procedure.” The first step of this
grievance procedure states that “[g]rievances shall be presented by the complaining employee to
his supervisor.” (DSUMF, ¶5).
Article XIV of the CBA addresses the sick leave policy that applies to the bargaining unit
employees represented by the Union. Article XIV allows bargaining unit employees to accrue
sick days, up to a maximum of ninety (90) days, and states that Millennium “shall payout
employees in the bargaining unit for hours of accrued unused sick time in excess of ninety (90)
days by July 1, 2012 at the applicable rate of pay.” (DSUMF, ¶6).
James McHugh (“McHugh”) was employed by Millennium and the predecessor owners
of the hotel, beginning in 1974. (DSUMF, ¶8). At least until 1999, McHugh was a member of

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the bargaining unit represented by the Union, holding various positions in the Engineering
Department. (DSUMF, ¶9). McHugh was promoted to Chief Engineer on February 1, 1999.
(DSUMF, ¶10). The Union claims that McHugh continued to be a member of the bargaining
unit and Local 148 after 1999, and he was a member of the bargaining unit for the duration of his
employment. (ECF No. 27, ¶10). Millennium, however, contends that, following his promotion
to Chief Engineer, McHugh became a member of the hotel’s senior management team and was
no longer a member of the bargaining unit. (DSUMF, ¶11).
Following his promotion to Chief Engineer, Millennium continued to make contributions
to the Union’s Health and Welfare Trust and Central Pension Fund on behalf of McHugh and
deducted Union dues from McHugh’s paycheck. (DSUMF, ¶14). Millennium claims that it
made these contributions at McHugh’s request and that making such contributions is common
practice for former bargaining unit members who move into management positions. (Id.).
Millennium contends that, as Chief Engineer, McHugh was responsible for making hiring
decisions, approving wage increases, approving vacation and sick pay benefits, disciplining
employees, conducting employee performance reviews, and assigning all work in the
Engineering Department to the bargaining unit employees. (DSUMF, ¶16). The Union concedes
that McHugh signed off on some job approval forms, some wage increase forms, some forms
approving vacation and sick leave, some discipline forms, and performed some performance
reviews. (ECF No. 27, ¶16). The Union also admits that McHugh signed off on various forms
as the department head, but the Union denies that McHugh independently made hiring decisions
for the Engineering Department. (ECF No. 27, ¶17). The Union agrees that McHugh signed off
on various forms, such as paid sick and vacation time, as the department head. (ECF No. 27,

3

¶18). Finally, the Union concedes that McHugh gave performance reviews to bargaining unit
employees in the Engineering Department. (ECF No. 27, ¶20).
In 2011, McHugh participated in negotiations for the current CBA. (DSUMF, ¶21; ECF
No. 27, ¶21). Millennium asserts that McHugh participated in the contract negotiations without
its permission, and McHugh was later reprimanded for such participation and was told that he
could no longer participate in contract negotiations on behalf of the Union. (DSUMF, ¶21).
In May 2011, McHugh’s then direct supervisor, Millennium General Manager Dominic
Smart, gave McHugh a below-target performance review rating. (DSUMF, ¶22). As a result of
this rating, McHugh was placed on a performance improvement plan. (Id.). In November 2011,
Smart and Director of Rooms, Joe Vilmain, informed McHugh that he had not made sufficient
improvements in his job performance and he was given ninety days (90) days to make
improvements.

(DSUMF, ¶23).

On January 23, 2012, McHugh was discharged from his

position at Millennium. (DSUMF, ¶24).
Upon McHugh’s discharge, Millennium paid him his accrued, unused vacation time.
(DSUMF, ¶25; ECF No. 27, ¶25). Millennium claims that it paid this amount pursuant to its
vacation policy in its employee handbook, which applies to all employees. (DSUMF, ¶25). The
Union claims that McHugh was paid his unused vacation pursuant to Article VII of the CBA.
(ECF No. 27, ¶25).
Following McHugh’s discharge, the Union filed an unfair labor practice charge against
Millennium with the National Labor Relations Board (“NLRB”). (DSUMF, ¶26). On March 14,
2012, the NLRB’s Regional Director declined to issue an unfair labor practice complaint against
Millennium, concluding that McHugh was a supervisor as defined by the NLRA and, therefore
was not entitled to the NLRA’s protections. (DSUMF, ¶27). The Union then appealed the

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Regional Director’s decision to the General Counsel for the NLRB, who affirmed the decision.
(DSUMF, ¶28).
On August 28, 2012, the Union filed its Complaint alleging unfair labor practices
pursuant to §301 of the LMRA, 29 U.S.C. §185 and under 28 U.S.C. §1337. (ECF No. 1).
Under Article VIII of the Agreement, arbitration is the final step in the resolution of “a dispute
with or claim or complaint against the Company involving the interpretation or application of the
express provision of this Agreement.” (Compl., ¶8). The CBA provides in Article XIV that
“[t]he employer shall payout employees in the bargaining unit for any hours of accrued unused
sick time in excess of ninety (90) days by July 1, 2012 at the applicable rate of pay.” (Compl.,
¶9). The Union claims that Millennium did not properly payout McHugh’s accrued sick pay
according to the CBA. The Union requests that the Court issue an Order compelling arbitration
of McHugh’s grievance regarding his sick pay. (Compl., ¶1, p. 3).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law
determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly
preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Id.

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A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving
party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of
material fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e);
Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials
of his pleading. Anderson, 477 U.S. at 258.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331. The Court’s function is not to weigh the evidence but to
determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. “‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.’” Torgerson, 643 F.3d at 1042 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).
DISCUSSION
I.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT1

Millennium contends that McHugh was a supervisor after he was promoted to Chief
Engineer in 1999. Consequently, Millennium asserts that McHugh was not entitled to take
advantage of the grievance procedures in the CBA, which Millennium claims does not apply to
supervisors.
A. McHugh Was a Supervisor Under the NLRA
Article I, Section 2 of the CBA (the Recognition clause) limits the scope of the
bargaining unit covered by the agreement by stating that the Union is the sole and exclusive

1

The Court addresses Defendant’s Motion for Summary Judgment first because it is dispositive of the issues at
hand.

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bargaining agent for the “above defined employees to the extent specifically provided by the
[NLRA].” (DSUMF, ¶4 (citing Article I, Section 2 of the CBA)).2 In turn, Section 2(3) of the
NLRA excludes supervisors from the definition of employees entitled to the Act’s protection. 29
U.S.C. §152(3)(“[t]he term ‘employee’ … shall not include … any individual employed as a
supervisor”). Section 2(11) defines supervisors as those individuals who have authority, in the
interest of the employee, to:
[H]ire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
29 U.S.C. §152(11). The NLRA further provides that employers may not be compelled to
consider individuals defined as supervisors as employees for the purpose of any law relating to
collective bargaining and, therefore, entitled to the Act’s protections. 29 U.S.C. §164(a).
In response, the Union contends that the NLRA’s definition of “supervisors” is not
incorporated into the CBA and/or that the parties were free to define the term “supervisor” in a
way that differs from the NLRA. (ECF No. 26, pp. 5-6). The Union contends that if the “parties
had intended the word ‘supervisor’ in the Recognition clause to have the same meaning as it is
defined under the NLRA, then the reference to the NLRA would have come immediately after
the language in Section 1 of [the] Recognition clause referencing supervisors and establishing
the scope of the bargaining unit.” (ECF No. 26, p. 6). The Union further maintains that, if the
parties had intended to use the NLRA definition of “supervisor”, then they should have explicitly
stated so. (ECF No. 26, pp. 6-7). The Union also asserts that “the phrase ‘as and to the extent
specifically provided by the National Labor Relations Act’ was not intended to refer to the
2

The Recognition clause provides that “[i]t is agreed and understood that the above recognition acknowledges and
satisfied the representation rights of the Union as the sole and exclusive bargaining agent for the above-defined
employees as and to the extent specifically provided by the [NRLA], as amended.”

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classification of employees covered by the agreement, but rather to reference the scope of the
Union’s representations rights as the sole and exclusive bargaining agent ‘for the above-defined
employees’ in Section 1 of the recognition clause.” (ECF No. 26, p. 7). The Union contends
that the “phrase ‘to the extent specifically provided by the National Labor Relations Act’ as used
in Section 2 of the Recognition clause of the parties’ contract simply means that the subjects over
which Millennium Hotel is required to bargain are parallel with those set forth in the NLRA.”
(ECF No. 26, p. 7). The Union also maintains that the Recognition clause incorporates Article
XIII of the Union’s constitution, which the Union contends encompasses persons engaged in the
supervision of various duties. (Id.).
The Court finds that the CBA incorporates the definition of “supervisor” from the NLRA.
The Court determines that the Union’s proposed interpretation does not give adequate
importance to the phrase, “above defined employees to the extent specifically provided by the
[NLRA].” (DSUMF, ¶4 (citing Article I, Section 2 of the CBA). The Court believes that this
phrase can only be interpreted to incorporate the definition of “supervisor” from the NLRA into
the CBA. Thus, the Court must determine whether McHugh was a “supervisor” as defined in the
NLRA.
As Chief Engineer at Millennium, the Union admits that McHugh engaged in many of the
enumerated activities in the NLRA’s definition of “supervisor.” The Union acknowledges that
McHugh signed off on some job approval forms, some wage increase forms, some forms
approving vacation and sick leave, some discipline forms, and performed some performance
reviews. (ECF No. 27, ¶16). The Union also concedes that McHugh signed off on various forms
as the department head, but the Union denies that McHugh independently made hiring decisions
for the Engineering Department. (ECF No. 27, ¶17). The Union agrees that McHugh signed off

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on various forms, such as paid sick and vacation time, as the department head. (ECF No. 27,
¶18). Finally, the Union acknowledges that McHugh gave performance reviews to bargaining
unit employees in the Engineering Department. (ECF No. 27, ¶20). If McHugh performed any
one of these tasks, then he is considered a supervisor under the NLRA. See Multimedia KSDK,
Inc. v. N.L.R.B., 303 F.3d 896, 899 (8th Cir. 2002)(“an employee possessing the authority to
exercise any one of the enumerated functions satisfies” the requirements to be considered a
supervisor).
Based upon the Union’s concessions, the Court finds that McHugh was a supervisor
under the NLRA. Although the Union purports to deny that McHugh exercised any independent
judgment in making these decisions, the Union provides no support for this self-serving
contention.

Rather, the Court finds that the nature of these acts, particularly reviewing

employees requires independent judgment and supports a finding that he was a supervisor. It
appears undisputed that McHugh performed these tasks in the interest of his employer,
Millennium.3
The Court does not find that a material dispute of facts exists as to whether McHugh was
a supervisor. Rather, the Union simply seems to dispute whether a supervisor can be covered by
the CBA; the Union contends that a “supervisor” is covered by the CBA. The Court, therefore,
addresses whether a supervisor could bring a grievance under the CBA.4

3

Although McHugh self-servingly disclaims that he performs these acts in the interest of his employer, Millennium,
the Court does not find this to be a true issue of material fact. First, McHugh does not identify who, if other than his
employer, he performed these activities in the interest of. Second, these tasks all seem to be of a nature that they can
only be done in the interest of the employer. For example, the Court finds that McHugh only would have performed
tasks relating to the hiring and firing employees in the interest of his employer, Millennium.
4
In its opposition to Defendant’s Motion for Summary Judgment, the Union also contends that Millennium cannot
refuse to process McHugh’s grievance because it was brought by the Union and not by McHugh himself, and that
the Union is allowed to bring grievances under the CBA. (ECF No. 26, pp. 3-5). Millennium, however, points out
that it does not contend that McHugh’s grievance cannot be processed because it was brought by the Union and not
McHugh himself. (Defendant’s Reply in Support of Its Motion for Summary Judgment (“Reply”), ECF No. 30, p.

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B. Supervisors Not Covered Under the CBA
With respect to the CBA, the Court finds that the CBA explicitly excludes “supervisors”
from its coverage. Article I, Section 1 provides that “the Union [is the] sole and exclusive
bargaining agent for engineering and maintenance employees, excluding all office and clerical
employees, professional and supervisory employees.” Likewise, Article I, Section 2 recognizes
the Union as the sole and exclusive bargaining agent for the “above defined employees.” Thus,
under the plain terms of the CBA, the Union is the sole and exclusive bargaining agent for
employees, but not supervisors.
In keeping with this interpretation, Article VIII, the grievance procedure, states that it
only applies to employees, as defined in Article I. (DSUMF, ¶5). The first step of a grievance
procedure requires the complaining employee to present the grievance to his or her supervisor.
(Id.). Reading Article VIII and Article I together, step one of the grievance procedure calls for
engineering and maintenance employees, excluding supervisors (among others), to commence
the grievance procedure by filing the grievance with his or her supervisor—which would be
McHugh. Based upon this interpretation, supervisor employees, such as McHugh, cannot take
advantage of the grievance and arbitration procedure in Article VIII of the CBA. See United
Steelworkers of Am., Local No. 1617 v. Gen. Fireproofing Co., 464 F.2d 726, 729 (6th Cir.
1972)(the Union could not utilize the arbitration provision because “disputes concerning
supervisory personnel [were] not included” in the employees who could take advantage of the
grievance procedures). Thus, the Union cannot invoke the grievance procedure on behalf of
McHugh, who clearly was not intended to benefit from this provision under the CBA.

2). Rather, Millennium argues that the arbitration provision of the CBA does not apply to McHugh because he is
not an employee as defined by the CBA. (Id.).

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Rather than argue that McHugh is not a supervisor under the CBA and the NLRA, the
Union relies on a strained interpretation of the CBA that would allow supervisors to be covered
under the CBA. The Union maintains that the Recognition clause5 incorporates Article XIII of
the Union’s constitution, which provides for craft jurisdiction. (ECF No. 26, p. 7). Article XIII
provides:
Section 1. Jurisdiction of the International Union of Operating Engineers shall
include but not be limited to persons engaged in the following crafts:
(a) Stationary Engineers’ Craft Jurisdiction:
All persons engaged in supervising, controlling, or assisting in operating,
maintaining, or assisting in maintaining … all … devices (irrespective of pressure
or heat source and including hot water and/or other hot liquid or gas systems);
pressure vessels, … motor pumps, air compressors … refrigeration and/or air
conditioning machines, units, plants and systems …, fans and ventilating systems,
… heating systems and all components thereof … and any and all instrumentation
and controls (including remote instrumentation and controls) used on or in the
above equipment, devices or systems, including all equipment, controls and
instrumentation used in the handling, preparing and delivery of fuel (irrespective
of type) from and/or to storage bins, yards, tanks or reservoirs up to and into
equipment using, consuming or converting the fuel (irrespective of the motive
power); … the supervision, operation and maintenance of all of the above when
connected with and/or used in power and plant operation in all governmental,
commercial and industrial activity including but not limited to … hotels.
(ECF No. 14, ¶5).
The Union asserts that the supervision of “equipment, processes and functions”
necessarily includes “something other than monitoring equipment, processes or functions; it was
intended to refer to its common meaning of supervising workers.” (ECF No. 26, pp. 7-8).6 The
Union contends that interpreting the term “supervise” in any way other than the Union’s

5

As previously stated Article I, Section 1 of the CBA (the Recognition clause) provides that “The Company
recognizes the Union as a sole and exclusive bargaining agent for engineering and maintenance employees,
excluding all office and clerical employees, professional and supervisory employees. The union represents that its
jurisdiction, as granted by the AFL-CIO, is set forth in the Article XIII (CRAFT JURISDICTION) of the
Constitution of the International Union of Operating Engineering (a copy of which has been furnished to the
Company) and that the employees covered hereby shall operate, maintain and keep in good running order all
machinery, equipment and other items for which they are responsible as assigned..”
6
Conversely, Millennium interprets the “supervision” in this section as referring to supervision of “equipment,
processes and functions,” not employees.

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interpretation would create a conflict with the Recognition clause. (ECF No. 26, p. 8). To avoid
such a result, the Union states that the CBA must be interpreted and resolved through the
expertise of an arbitrator. (Id.). Therefore, McHugh claims that supervisors are covered under
the CBA.
The Court concludes that a plain reading of the CBA, particularly Article I, does not
permit the possible inference that McHugh was a member of the bargaining unit. The Court finds
that Millennium’s interpretation of the grievance and arbitration provision is consistent with the
Recognition clause of the CBA. Article I of the CBA excludes supervisory employees from
coverage under the CBA. (DSUMF, ¶4). The Court also does not read Article XIII as referring
to supervisory employees.

Article XIII refers to supervising “equipment, processes and

functions,” not employees. The Union’s strained interpretation of the term “supervise” and its
purported “common meaning of supervising workers” are not reflected in Article XIII, which
clearly refers to craft jurisdiction.

Accordingly, the Court finds no basis for finding that

supervisors are to be included in coverage under the CBA when they are explicitly excluded
under Article I of the CBA.
C. Millennium Cannot be Compelled to Arbitrate
The Union contends that the issue of whether or not McHugh’s grievance is subject to
arbitration is a matter for the arbitrator to decide. Conversely, Millennium asserts that it cannot
be compelled to arbitrate the instant dispute because it never agreed to arbitrate disputes
involving supervisors, such as McHugh.
“Arbitration is strictly ‘a matter of consent[.]’” Granite Rock Co. v. Int'l Bhd. of
Teamsters, 130 S. Ct. 2847, 2857, 177 L. Ed. 2d 567 (2010) (quoting Volt Information Sciences,
Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248,

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103 L.Ed.2d 488 (1989)). Thus, arbitration “‘is a way to resolve those disputes—but only those
disputes—that the parties have agreed to submit to arbitration[.]’” Granite Rock Co., 130 S. Ct.
at 2857(quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995). Supreme
Court “precedents hold that courts should order arbitration of a dispute only where the court is
satisfied that neither the formation of the parties' arbitration agreement nor (absent a valid
provision specifically committing such disputes to an arbitrator) its enforceability or applicability
to the dispute is in issue.” Granite Rock Co., 130 S. Ct. at 2857-58; International Brotherhood of
Electrical Workers v. GKN Aerospace North America, Inc., 431 F.3d 624, 627 (8th Cir.
2006)(“Arbitration is a matter of contract, and no party may be required to submit a dispute to
arbitration if it has not agreed to do so.”). Where a party contests either or both matters, “the
court” must resolve the disagreement. Granite Rock Co., 130 S. Ct. at 2857-58; GKN Aerospace
North America, Inc., 431 F.3d at 627 (“The determinative question is whether the collective
bargaining agreement at issue here is ‘susceptible of an interpretation that covers’ the grievance
at issue.”). Thus, the presumption that a dispute is arbitrable does not apply where the arbitration
agreement unambiguously does not cover the dispute at hand, which is the case here. As
discussed herein, the Court finds that the CBA is not susceptible of an interpretation that covers
the Union’s grievance regarding McHugh’s pay and, thus, this claim is not arbitrable.
The Union argues that the grievance and arbitration provisions of the CBA apply to
McHugh. However, those provisions apply to employees, and not supervisors. Article I of the
CBA states that the Union is the sole and exclusive bargaining agent for the “above defined
employees.” (DSUMF, ¶4). That section defines employees as “engineering and maintenance
employees, excluding all office and clerical employees, professional, and supervisory
employees.” (Id.). Given that this Court has found that McHugh was a supervisory employee,

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the Court finds that, under Article I, Millennium and the Union agreed that the Union would be
the sole and exclusive bargaining agent for only the employees covered under the CBA, which
did not include McHugh.
Moreover, the Court finds that the grievance and arbitration procedures provided for in
Article VIII apply only to grievances filed by employees, as defined in Article I. (DSUMF, ¶5).
The Court has found that McHugh was a supervisor and not an employee as defined in Article I.
Thus, the Court holds that the grievance procedures in Article VIII do not apply to McHugh.
In conclusion, the Court finds that the plain terms of the CBA establish that Millennium
did not agree to arbitrate disputes involving supervisors, and no plausible reading of the CBA
could lead an arbitrator to a contrary conclusion. Therefore, the Court determines that the
dispute is not arbitrable, nor is the question of whether the dispute is subject to arbitration.
D. McHugh’s Membership in the Union Does Not Impact His Claim
In support of its Motion for Summary Judgment and in opposition to Millennium’s
Motion, the Union claims that Millennium continued to treat him as if he were a member of the
collective bargaining unit. In particular, the Union emphasizes that Millennium continued to
deduct union dues from his paycheck, even after McHugh was promoted to Chief Engineer. As
further support of his claim, the Union even claims that such deductions are illegal. See ECF
No. 26, p. 8 (stating that the Taft-Hartley Act, 29 U.S.C. §186, makes it a crime for an employer
to remit money to a labor organization). The Union contends that, under the Declaration of
Trust, Millennium could only have submitted contributions to the Central Pension Fund for
employees that Millennium was required to make contributions for and who were represented by
the Union. (ECF No. 26, p. 9).7

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The Restated Agreement and Declaration of Trust of the Central Pension Fund of the Union limits the term
“Employee” to “[a]ny employee represented by the Union and working for an Employer as defined herein, and with

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Millennium, however, maintains that McHugh requested that Millennium continue to
deduct union dues from his paycheck following his promotion to Chief Engineer. (DSUMF,
¶14). Millennium claims that it did so at McHugh’s request. (Id.).
Millennium also asserts that McHugh has conflated the issues of union membership with
whether a person is a member of the collective bargaining unit. The NLRA does not preclude
supervisors from being union members. “Supervisors have no statutorily protected right to
participate in union affairs …, and it is clear that where they do so it is at the employer's
sufferance, subject to the limitations of the Act.” Mon River Towing, Inc. v. N.L.R.B., 421 F.2d
1, 6 (3d Cir. 1969). Although not represented by the union for collective-bargaining purposes,
supervisory employees may elect to retain their union membership because they “receive[]
substantial benefits as a result of their union membership, including pension, disability, and
death benefits[.]” Florida Power & Light Co. v. Int'l Bhd. of Elec. Workers, Local 641, 417 U.S.
790, 795 (1974).

Thus, Millennium emphasizes that the determination regarding whether

McHugh retained his union membership and whether he was represented by the Union for
collective bargaining purposes are two separate and distinct inquiries.
Thus, the Court agrees that whether Millennium permitted McHugh to remain a member
of the Union is irrelevant to the determination regarding whether he was a supervisor and/or
whether he was a member of the collective bargaining unit. (ECF No. 18, p. 8). The fact that
McHugh may have retained his membership in the Union does not preclude the Court from
entering summary judgment in Millennium’s favor.
E. Treatment of McHugh as a Member of the Bargaining Unit
respect to whose employment an Employer is required to make contributions into the Trust Fund.” (ECF No. 26, p.
9). Moreover, the Declaration of Trust defines the term “Employer” to mean “[a]n employer who is a member of, or
is represented in collective bargaining by, an association and who is bound by a collective bargaining agreement
with the Union providing for the making of payments to the Trust Fund with respect to employees represented by
the Union.” (Id.).

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Similarly, the Union points to other evidence indicating that McHugh was a member of
the bargaining unit. When McHugh first began exercising his duties as head of the engineering
department in 1995, Millennium’s predecessor, the Regal Riverfront Hotel, stated in a letter to
McHugh, dated November 17, 1995, that he would remain in the Union and would “continue to
be covered under all provisions of the current contract.” (ECF No. 26, p. 10). Further, at a
contract negotiation meeting on June 8, 2011, Millennium presented a plan that limited the
amount of sick time accrual for members of the bargaining unit under the contract. (Id.). In
conjunction with the proposal, Millennium presented a chart, dated June 8, 2011, that listed the
accrued sick time for bargaining unit employees who would be affected by the new provision.
(Id.). McHugh was listed on the chart along with all the other bargaining unit employees, and
the chart reflected that McHugh had $100,350.13 in accrued benefits. (Id.). The chart also
reflected that McHugh had 37.04 years of accruing sick pay, which reflected his total length of
employment with Millennium as of June 8, 2011. (Id.). In addition, Millennium’s Controller
told McHugh on two occasions in August/September 2011 that his sizable accrued sick time
benefits were part of the reason that Millennium sought to prospectively limit the amount of
benefits that could be accrued. (ECF No. 26, pp. 10-11).
In response, Millennium argues that, despite any evidence to the contrary, the CBA
unequivocally excludes McHugh from the bargaining unit. (ECF No. 30, p. 11). Millennium
contends that the Union cannot ask the Court to rewrite the CBA based upon some anecdotal
evidence to the contrary. (Id.). Millennium notes that McHugh’s job title of Chief Engineer is
absent from both Article I and Exhibit A of the CBA. (Id.). In addition, Millennium points out
the “zipper clause” in Article XVI, which states that the CBA “represents the complete collective
bargaining and full agreement by the parties in respect to pay, wages, hours of employment or

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other conditions of employment.” (Id.). Millennium claims that this zipper clause precludes
consideration of agreements and statements made outside of the CBA. See GKN Aerospace
North America, Inc., 431 F.3d at 630 (plaintiff’s interpretation of the agreement which would
include the employee as covered under the CBA even though he was a supervisor was not
tenable because it would require the court to ignore the “zipper clause” which stated that the
CBA “constitute[d] the total agreement between the two parties”); see also Pace v. Honolulu
Disposal Service, Inc., 227 F.3d 1150, 1159 (9th Cir. 2000)(“Notable in this case is the inclusion
of a ‘zipper clause’ in each CBA - so called because the combination of the integration and nooral-modification clauses is intended to foreclose claims of any representations outside the
written contract aside from those made in another written document executed by the parties.”)
The Court agrees that the agreements and statements made outside the CBA cannot be
used to alter the terms of the CBA. Although Millennium at times acted in a manner that was
inconsistent with McHugh’s supervisory position, the Court is bound by the terms of the CBA,
which excludes the arbitrability of McHugh’s complaint under the express provision in Article I.
Remarks by Millennium employees cannot override the terms of the CBA and make McHugh’s
otherwise unarbitrable claim arbitrable. The Court finds the unequivocal language of the CBA
controlling over the evidence presented by the Union grants Millennium’s Motion for Summary
Judgment and denies the Union’s Motion for Summary Judgment on that basis.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment [12] is
DENIED, and Defendant’s Motion for Summary Judgment [21] is GRANTED.

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Dated this 8th day of July, 2013.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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