Service Employees International Union, Local 1107 v. Northeastern Nevada Regional Hospital

Filing 16

ORDER denying ECF No. 6 Defendant's Motion to Dismiss. IT IS SO ORDERED. Signed by Judge Howard D. McKibben on 01/05/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1107,

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Plaintiff,
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vs.
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NORTHEASTERN NEVADA REGIONAL
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HOSPITAL,
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Defendant.
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_________________________________ )

3:16-cv-00476-HDM-WGC
ORDER

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Before the court is defendant Northeastern Nevada Regional

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Hospital’s (“NNRH”) motion to dismiss pursuant to Federal Rule of

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Civil Procedure 12(b)(6) (ECF No. 6).

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International Union, Local 1107 (“Local 1107") responded (ECF No. 8)

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and NNRH replied (ECF No. 10).

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I.

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Plaintiff Service Employees

Background
Local

1107

and

NNRH

entered

into

a

collective

bargaining

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agreement (“CBA”) on February 6, 2013, in which the parties agreed to

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resolve grievances pursuant to the grievance procedures listed in the

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CBA.

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NNRH terminated Karla Dittrich without just cause.

On October 28, 2015, Local 1107 filed a grievance alleging that

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The grievance was processed through the grievance procedure and

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NNRH denied the grievance on January 18, 2016.

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January 19, 2016, Local 1107 demanded arbitration as required under

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Step 4 of the grievance procedure.

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representative began preparing a request to the Federal Mediation and

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Conciliation Service (“FMCS”) for the panel of arbitrators, but was

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unable to complete the request that day due to difficulty with the

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payment processing.

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submitted on January 27, 2016. NNRH subsequently refused to arbitrate

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the Dittrich grievance because the request to the FMCS was not

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processed timely.

The following day, on

On January 26, 2016, a Local 1107

The request for the panel of arbitrators was

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On June 13, 2016, Local 1107 filed a complaint in the Fourth

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Judicial District Court, Elko County, Nevada, for declaratory relief

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and an order compelling arbitration of the Dittrich dispute.

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complaint requests that the court enter a declaratory judgment that

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Local

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“presented” or “appealed” the grievance in notifying NNRH of its

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intent to proceed to arbitration and that its FMCS request is not

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“presenting” or “appealing” a grievance. Alternatively, the complaint

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requests the court enter a declaratory judgement that Local 1107

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substantially complied with the time requirements when it attempted

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to submit its FMCS request on January 26, 2016.

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on August 10, 2016, pursuant to federal question jurisdiction.

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II.

1107

met

the

time

limit

requirement

in

the

CBA

The

when it

The case was removed

Standard

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In considering a motion to dismiss for failure to state a claim

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under Fed.R.Civ.P. 12(b)(6), the court must accept as true all

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material allegations in the complaint as well as all reasonable

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inferences that may be drawn from such allegations.
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LSO, Ltd. v.

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Stroh, 205 F.3d 1146, 1150 (9th Cir. 2000).

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complaint also must be construed in the light most favorable to the

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nonmoving party. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.

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2000).

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test the legal sufficiency of the complaint.

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F.3d 729, 732 (9th Cir. 2001).

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if it is certain that the plaintiff will not be entitled to relief

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under any set of facts that could be proven under the allegations of

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the complaint. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th

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The allegations of the

The purpose of a motion to dismiss under Rule 12(b)(6) is to
Navarro v. Block, 250

The court can grant the motion only

Cir. 1996).

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“[A] court may consider evidence on which a complaint necessarily

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relies if: (1) the complaint refers to the document; (2) the document

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is central to the plaintiff’s claim; and (3) no party questions the

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authenticity of the copy attached to the . . . motion.”

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v. Nat’l Educ. Ass’n., 629 F.3d 992, 998 (9th Cir. 2010).

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III. Argument

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Daniels-Hall

NNRH does not dispute that the Dittrich termination grievance

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arises under the terms of the CBA.

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1107 does not have the right to arbitrate the grievance because the

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union failed to process the grievance within the requisite time limits

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established in the CBA.

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presumptively for the arbitrator to decide.

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Article

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jurisdiction.

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11.8

removes

Rather, NNRH argues that Local

NNRH recognizes that procedural issues are

the

question

from

It argues, however, that
the

arbitration

panel’s

Article 11.8 provides:

Any grievance not presented or appealed within the time
limits and in the manner provided in Section 2 hereof
shall be deemed to have been settled or abandoned, is
expressly excluded from arbitration, and shall not be
presented to any arbitrator.
NNRH contends that on the basis of this provision the court is
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required to consider the timeliness of the Local 1107’s request

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arbitration.

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time limits set forth in Step 4 of the grievance procedure.

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addresses the procedure for advancing a grievance to arbitration:

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NNRH argues that Local 1107 failed to comply with the
Step 4

If the grievance is not resolved at Step 3, the grievance
may be referred to arbitration upon written request by
the Union, which request must be made in writing to the
Employer within fourteen (14) calendar days after receipt
of the Employer’s Step 3 answer.
In the event
arbitration is requested, the Union will, within seven
(7) calendar days after notice to the Hospital, submit to
the Federal Mediation and Conciliation Service (FMCS) a
completed form R-43 with a copy to the Employer,
requesting that the Service furnish both parties with a
panel of eleven (11) arbitrators having hospital
arbitration experience.

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Article 11.2.
Local 1107 had seven calendar days, until January 26, 2016, to

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submit to FMCS a completed form R-43 with a copy to NNRH.

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Local 1107 did not complete the form until January 27, 2016, NNRH

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argues that the grievance was “not presented or appealed within the

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time limits” provided in Article 11.2.

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1107 is not entitled to the relief it is seeking, an order requiring

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NNRH to arbitrate the grievance, and moves to dismiss the complaint

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pursuant to Federal Rule of Civil Procedure 12(b)(6).

Because

Thus, NNRH argues that Local

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“‘Procedural questions which grow out of the dispute and bear on

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its final disposition’ are presumptively not for the judge, but for

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an arbitrator to decide.”

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U.S. 79, 84 (2002) (citing John Wiley & Sons, Inc. v. Livingston, 376

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U.S. 543, 557 (1964)). Whether Local 1107 complied with the grievance

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procedures

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arbitrability to be decided by the arbitrator, not by the court. John

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Wiley & Sons, 376 U.S. at 556 n. 11 (issue of timeliness is to be

set

forth

in

Howsam v. Dean Witter Reynolds, Inc., 537

the

CBA

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is

an

issue

of

procedural

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decided by the arbitrator notwithstanding the provision stating “[t]he

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failure by either party to file the grievance within the [4-week] time

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limitation shall be construed and be deemed to be an abandonment of

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the grievance”); United Food & Commercial Workers Union, Local 770 v.

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Geldin Meat Co., 13 F.3d 1365, 1368 (9th Cir. 1994) (quoting United

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Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582

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(1960) (“[J]udicial inquiry . . . must be strictly confined to the

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question whether the reluctant party did agree to arbitrate.”);

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Hospital & Institutional Workers Union Local 250 v. Marshal Hale

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Memorial Hospital, 647 F.2d 38, 40 (9th Cir. 1981) (holding that the

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contract interpretation necessary to resolve procedural questions is

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properly left to the arbitrator).

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Hospital & Institutional Workers Union Local 250 v. Marshal Hale

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Memorial Hospital, 647 F.2d 38, 40 (9th Cir. 1981) is instructive as

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the hospital in that case argued that “the Union is foreclosed from

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demanding arbitration by its failure to comply with the contractual

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grievance procedure.” In that case, the agreement provided that “[n]o

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grievance shall be presented to arbitration unless the demand for

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arbitration is presented by a party in writing to the other party

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within thirty (30) calendar days of the other party’s final written

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response in Step 2 of the grievance procedure.”

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Circuit held the issue of the alleged non-compliance with processing

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the claim under the agreement were procedural questions, and that

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“[t]he contract interpretation necessary to resolve these questions

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is properly left to the arbitrator.”

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CBA, like the provisions cited in Hospital & Institutional Workers

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Union Local 250, does not overcome the presumption that procedural

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issues are for the arbitrator to decide because “it does not provide
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Id. at 41.

Id. at 41. The Ninth

Article 11.8 of the

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explicit language demonstrating that the parties to the collective

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bargaining agreement did not intend the arbitration panel to have

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authority to decide issues of timeliness.”

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Metal,, Inc. v. Sheet Metal Workers Int’l Union, Local 104, 933 F.2d

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759, 764 (9th Cir. 1991).

Goss Golden W. Sheet

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Local 1107 stated a claim for which relief may be granted, namely

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that the court should compel arbitration under the CBA based on NNRH’s

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alleged violations of the agreement. Accordingly, defendant’s motion

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to dismiss (ECF No. 6) is DENIED.

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IT IS SO ORDERED.

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DATED: This 5th day of January, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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