INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL UNION NO. 289 v. VERIZON SOUTH, INC.

Filing 17

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE P. TREVOR SHARP on 1/26/2012, that Defendant Verizon's motion to dismiss (Docket No. 8 ) be denied, and that Plaintiff IBEW's motion to compel arbitration (Docket No. 12 ) be granted. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL UNION NO. 289,
Plaintiff,
v.
VERIZON SOUTH, INC.,
Defendant.

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1:11CV334

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6) filed by Defendant Verizon South, Inc. (“Verizon”). (Docket No. 8.) Also
pending before the Court is the motion to compel arbitration filed by Plaintiff International
Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 289 (“IBEW”). (Docket No.
12.) These motions have been fully briefed. For the reasons stated herein, the Court
concludes that Defendant Verizon’s motion to dismiss should be denied and that Plaintiff
IBEW’s motion to compel arbitration should be granted.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
The following summary of facts is taken from Plaintiff IBEW’s complaint. Verizon
and IBEW entered into a collective bargaining agreement (“CBA”) which is applicable to
the events giving rise to this action. (Docket No. 1, Complaint (“Compl.”) at 2.) In 2009,

Verizon terminated the employment of Brian Pollard and six other employees.1 (Id. at 3.)
IBEW filed grievances on behalf of each of these employees. Verizon and the IBEW settled
these grievances by entering into a settlement agreement on March 23, 2010. (Id.) Pursuant
to the agreement, the seven employees were employed again by Verizon. (Id.)
On August 6, 2010, Verizon again terminated the employment of Brian Pollard. (Id.
at 4.) Plaintiff IBEW grieved Mr. Pollard’s dismissal unsuccessfully and attempted to have
the matter arbitrated, but Verizon rejected this attempt at arbitration. (Id. at 4-5.) The parties
disagree on whether the 2010 termination of Mr. Pollard’s employment is subject to
arbitration under the CBA. Verizon, relying on certain language in the settlement agreement,
contends that the matter of Mr. Pollard’s second termination is not subject to arbitration
while Plaintiff IBEW construes the settlement agreement to allow for arbitration of the
matter.
DISCUSSION
A.

Standard
A plaintiff fails to state a claim on which relief may be granted under Fed. R. Civ. P.

12(b)(6) when the complaint does not “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

,

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

1

Mr. Pollard had completed his 7-month probationary period prior to his being
discharged. (Compl. at 3.)
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(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 129 S. Ct. at 1949.
Where a contract contains an arbitration clause, “there is a presumption of arbitrability
in the sense that ‘[a]n 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)
(quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 58283 (1960)).
B.

Construction of Settlement Agreement
The settlement agreement sets out the terms under which Verizon re-employed Mr.

Pollard in March 2010. Paragraphs 8 and 10 of the settlement agreement state as follows:
8.

For eligibility of all contractual benefits including, but not
limited to, vacation and tour preferences, guidelines, and recordtracking purposes former employees/grievants will be treated as
a rehire.

10.

The grievant’s seniority will be restored, including the period of
his/her separation of employment. However, it will not be
applicable until the employees have completed the required
seven (7) month probationary period.

(Compl., Ex. B.)

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The collective bargaining agreement executed between Verizon and IBEW states that
the Union may submit a grievance matter to arbitration at the conclusion of step 2 of the
grievance process. (Compl., Ex. A. at Arts. 4 & 5.) A grievance is defined by the CBA as
any alleged violation of the terms of the agreement or any alleged action by Verizon or its
representative “which causes an employee to lose his/her job or any benefits arising out of
his/her job.” (Id. Art. 4(1).) Verizon does not dispute that the termination of Mr. Pollard’s
employment would normally be an issue properly the subject of a grievance and thus for
arbitration under the CBA. The question therefore is whether the settlement agreement
caused Mr. Pollard’s termination not to be arbitrable. If construction of the settlement
agreement and the CBA leave any doubt on this issue, this Court must resolve the doubt in
favor of arbitration. See AT&T Techs., Inc., 475 U.S. at 650.
Verizon focuses on paragraph 10 of the settlement agreement. (Docket No. 9 at 2.)
Verizon links the 7-month probationary period referred to in that paragraph to the 7-month
probationary period that “new employees” must complete before their termination will be
covered by the arbitration procedures of the CBA. (Id. at 2-3 (quoting from Art. 17 of the
CBA).) Verizon contends that the reference to the probationary period in the settlement
agreement makes Mr. Pollard a “new employee” under the CBA for arbitration purposes.
Verizon reasons that his 2010 termination is not subject to the CBA grievance procedures
because he had not been re-employed for 7 months at the time. (Docket No. 9 at 3-8.) As
for paragraph 8 of the settlement agreement, which refers to Mr. Pollard as a “rehire,”
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Verizon argues that the language of that paragraph does not include eligibility to arbitrate
one’s termination because no part of the CBA equates “contractual benefits” with that
eligibility. (Id.)
Neither party contends that the terms “new employee” and “rehire” are specifically
defined by the contracts at issue. If a contract does not define a term, the court looks to the
term’s meaning in ordinary speech, unless the context makes clear that another meaning was
intended. Singleton v. Haywood Elec. Membership Corp., 588 S.E.2d 871, 875 (N.C. 2003).
The term “rehire” ordinarily refers to one who is employed for a second time, whereas the
term “new employee” ordinarily denotes one who has not previously been employed by the
employer. The context of these terms in the agreements under review does not compel a
different meaning. By their ordinary meanings, one cannot be both a “rehire” and “new
employee” for the same purpose.
Given these definitions, this Court cannot agree that Defendant Verizon’s construction
of the settlement agreement is the only reasonable one. The language of paragraph 8 is broad
in scope. By its terms, Mr. Pollard is to be treated as a “rehire” for “eligibility of all
contractual benefits.” Although the CBA does not explicitly state that the eligibility to
arbitrate one’s termination is a “contractual benefit,” a reasonable interpretation of the term
could include Mr. Pollard’s eligibility to grieve and arbitrate his termination. Moreover,
paragraph 10, upon which Verizon relies to classify Mr. Pollard as a “new employee,” is
narrowly written. Paragraph 10 addresses only the “grievant’s seniority.” Mr. Pollard’s
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seniority would not be restored until he had completed a 7-month probationary period
following his re-employment. Paragraph 10 does not purport to condition Mr. Pollard’s
arbitration rights upon successfully completing the probationary period of the CBA.
Therefore, there is substantial doubt that the settlement agreement modified the CBA to
exclude from arbitration the latest termination of Mr. Pollard.2 Because of this doubt, this
Court concludes that his 2010 termination is arbitrable. See AT&T Techs., Inc., 475 U.S. at
650.
CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that Defendant Verizon’s
motion to dismiss (Docket No. 8) be denied, and that Plaintiff IBEW’s motion to compel
arbitration (Docket No. 12) be granted.

/s/ P. Trevor Sharp
United States Magistrate Judge

Date: January 26, 2012

2

Verizon attempts to draw support from United States Postal Serv. v. Am. Postal
Workers Union, AFL-CIO, 204 F.3d 523 (4th Cir. 2000). However, in that case there was
no dispute that the employee who was terminated was a probationary employee. Therefore,
it is no help in determining in this case whether Mr. Pollard was a rehire or new employee
for arbitration purposes.
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