Americold Logistics, LLC v. Local 17A United Food and Commercial Workers, AFL-CIO

Filing 29

Memorandum Opinion and Order The Court denies Americold's Motion for Summary Judgment (ECF No. 22 ) and grants Local 17A's Motion for Summary Judgment on its Counterclaim (ECF No. 23 ). The arbitrator's award is confirmed in its entirety and shall be enforced. Judge Benita Y. Pearson on 1/29/2013. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
AMERICOLD LOGISTICS, LLC,
Plaintiff,
v.
LOCAL 17A UNITED FOOD AND
COMMERCIAL WORKERS, AFL-CIO,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 5:12cv749

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF Nos. 22; 23]

Before the Court are counter motions for summary judgment filed by Plaintiff Americold
Logistics, LLC (“Americold”) (ECF No. 22) and Defendant and Counter-Claimant Local 17A
United Food and Commercial Workers, AFL-CIO (“Local 17A”)(ECF No. 23) regarding the
enforceability of an arbitration award. The Court has been advised, having reviewed the record,
the parties’ briefs and the applicable law. For the reasons that follow, the Court denies
Americold’s motion for summary judgment to vacate the arbitrator’s award and grants Local
17A’s motion for summary judgment to enforce the award.
I. Background
Americold is a cold storage warehouse and distribution facility responsible for shipping
and receiving frozen products for Heinz foods. ECF No. 1 at 3. It operates two facilities in
Massillon, the 17th Street Department and the Erie Street Department. ECF No. 9-1 at 2.
Americold’s warehouse employees at both locations are members of Local 17A and subject to
the same Collective Bargaining Agreement (“CBA”). ECF No. 23-1 at 3. The first CBA was
executed February 7, 2000, and was in effect until February 5, 2005, and thereafter subsequently

(5:12cv749)
renewed. ECF No. 1 at 3-4. The current CBA has been in effect since February 6, 2010, and is
due to expire December 13, 2013. ECF No. 1 at 3-4.
There are two job classifications for warehouse employees– Lift Truck Operator (“LTO”)
and sanitation associate. ECF No. 1 at 4. Both jobs require workers to use a forklift for some
tasks. ECF No. 1 at 4. Among the jobs performed by the LTOs is a task identified as “Canadian
export stamping,” which involves performing certain functions to prepare products for shipping
to Canada. ECF No. 1 at 5; 23-1 at 3. Canadian stamping was defined during arbitration by
undisputed testimony as:
The Canadians, they’re 24 to 30 pallets of either Babybel Bites or specifically
designed Heinz food that is specifically made to go to Canada. The writing’s in
French. Their boxes are specifically designed to go. We have to bring them out
of our freezer, put them on our dock, and it takes usually three to four guys; One
person on a clamper to break the pallets in half so that the other two, stackers,
they have to physically stack each individual box, while the fourth stamps each
box with a USDA stamp so that they’re cleared to cross the border.
ECF No. 9-1 at 3-4.
Due to an issue with errors associated with the actual stamping of the boxes, Local 17A
agreed in 2002 to allow non-union Americold office employees to do the actual stamping of the
product boxes. ECF No. 9-1 at 4. The office employee was usually a receptionist and her
responsibilities were limited to stamping the boxes, not physically handling the product. ECF
No. 9-1 at 4. The product was physically handled by Local 17A workers. ECF No. 9-1 at 4.
After a reduction in office staff in 2007, Americold resumed using Local 17A workers to do the
actual stamping in 2007. ECF No. 1 at 5. The work was not, prior to 2011, performed by
contract labor. ECF No. 9-1 at 4.

2

(5:12cv749)
In 2006, Americold opened the Erie Street facility, and the parties accordingly agreed to a
contract addendum (“addendum”) to the CBA. ECF No. 9-1 at 5. The addendum read, “[t]he
Company retains, in regards to both departments, its right to utilize contract labor for non fork
lift positions,” and was later inserted into Article 5, Section 1 of the CBA. ECF No. 9-1 at 5.
In March 2011, Americold began to use contract labor for Canadian export stamping.
ECF No. 9-1 at 4. Local 17A filed a grievance regarding the use of contract labor to perform
work traditionally performed by union workers and arguably subsumed within the job description
created by Americold for the forklift operator position. ECF No. 23-1 at 5. Americold denied
the grievance and the matter proceeded to arbitration through the American Arbitration
Association as provided for in the CBA. ECF No. 23-1 at 5. The parties selected Arbitrator
Kimmins to hear the matter and on October 20, 2011, he conducted a full day hearing. ECF No.
23-1 at 5. The issue presented to the arbitrator was, “(1) Did the employer violate the [CBA]
when it used contract labor that was not members of Local 17A to perform the work known as
Canadian Export Stamping [] and (2) if so, what is the remedy.” ECF No. 9-1 at 3.
The arbitrator found in favor of Local 17A. ECF No. 9-1 at 11. Americold filed a motion
for reconsideration, which the arbitrator denied. ECF No. 1 at 8. On March 27, 2012, Americold
initiated the instant lawsuit by filing a Complaint for Declaratory Relief and Petition to Vacate
Arbitration Award pursuant to Federal and State law. ECF No. 1. Local 17A filed an Answer
and Counterclaim seeking to confirm the arbitration award. ECF No. 9. Subsequently, both
parties filed competing motions for summary judgment as to the Complaint and Counterclaim.
ECF Nos. 22; 23. The Court addresses these motions below.

3

(5:12cv749)
II. Legal Standard
Summary judgment is proper if “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). Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000). A party seeking summary judgment always bears
the initial responsibility of informing the court of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Entry of summary
judgment is appropriate “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Id. at 322-23.
A court’s review of an arbitration award is “one of the narrowest standards of judicial
review in all of American jurisprudence.” Lattimer-Stevens Co. v. United Steelworkers of
America, 913 F.2d 1166, 1169 (6th Cir. 1990). The court considers “only the questions of
‘procedural aberration’ outlined by the Supreme Court in United Paperworkers Int’l Union v.
Misco, Inc., 484 U.S. 29 (1987), and Major League Baseball Players Ass’n v. Garvey, 532 U.S.
504 (2001).” Truck Drivers Local No. 164 v. Allied Waste Sys., Inc., 512 F.3d 211, 216 (6th Cir.
2008). Barring the rare exception, the Court does not consider whether the arbitrator made errors
in his or her award based upon the merits of the case. Michigan Family Resources, Inc. v. SEIU
Local 517M, 475 F.3d 746, 753 (6th Cir. 2007) (en banc). Because the parties submitted to
arbitration, “it is the arbitrator’s view of the facts and the meaning of the contract that they have

4

(5:12cv749)
agreed to accept.” Id. at 752 (quoting Misco, 484 U.S. at 37-38).
The purview of the court is limited to reviewing three issues: whether the arbitrator acted
“outside his authority” by settling a dispute not being put forth for arbitration; whether he
committed fraud in rendering a decision, or otherwise had a conflict of interest; and whether he
interpreted and applied the actual contract in order to settle the dispute. Mich. Family Res., 475
F.3d at 753.
A court cannot make findings of fact independent of the arbitrator; rather, the arbitrator
must make the factual findings “and a court may not reject those findings simply because it
disagrees with them.” Misco, 484 U.S. at 38. However, an arbitrator cannot simply dispense his
own brand of industrial justice. Id. The Supreme Court has declared that if an “arbitrator is even
arguably construing or applying the contract and acting within the scope of his authority,” a court
may not overturn his decision even if it is “convinced he committed serious error[.]” Garvey,
532 U.S. at 509 (quoting Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62
(2000)) (further citations omitted). The court must decide whether the arbitrator arrived at his or
her decision using the collective bargaining agreement, rather than relying upon his or her own
judgment.
III. Discussion
Americold does not assert the arbitrator committed fraud or otherwise had a conflict of
interest. Instead, Americold argues the first and third prong of the Michigan Family Resources

5

(5:12cv749)
test.1
A. The Arbitrator Did Not Act Outside His Authority in Settling the Dispute
“An arbitrator does not exceed his authority every time he makes an interpretive error; he
exceeds that authority only when the collective bargaining agreement does not commit the
dispute to arbitration.” Mich. Family Res., 475 F.3d at 756. The CBA recites that “[t]he
arbitrator’s decision shall be limited to a determination of the issue submitted by the parties and
limited to a determination of whether this Agreement has been violated and cannot add to or
deduct from its terms.” ECF No. 22-4 at 24.
The issue presented to the arbitrator was “Did the employer violate the [CBA] when it
used contract labor that was not members of Local 17A to perform the work known as Canadian
Export Stamping.” ECF No. 9-1 at 3. The issue was submitted by both parties and by the CBA’s
own language is limited to a determination of whether the CBA was violated. Americold does
not argue that the dispute was not properly before the arbitrator, but that the arbitrator exceeded
the scope of his jurisdiction by “deducting” or “deleting” terms of the CBA. ECF Nos. 25 at 10;
22-1 at 5. This argument is better characterized as a challenge to the arbitrator’s interpretation,
which is not a determining factor as to the question of whether the arbitrator exceeded his
authority. See e.g. Mich. Family Res., 475 F.3d at 756 ; Allied Waste Systems, 512 F.3d at 217
(scope of authority challenges limited to whether a grievance was not properly before the

1

Though Americold mostly appears to argue that the arbitrator did not interpret and
apply the actual contract, some of Americold’s arguments speak toward whether the arbitrator
exceeded his authority granted by Article XX of the CBA. E.g., ECF Nos. 25 at 10; 22-1 at 5.
The Court therefore will consider whether the arbitrator exceeded his authority by settling a
dispute not put forth for arbitration.
6

(5:12cv749)
arbitrator). Therefore, the Court finds the arbitrator did not exceed his authority, and the decision
cannot be overturned upon that basis.
B. The Arbitrator Arguably Construed and Applied the CBA
The third prong of Michigan Family Resources is whether the arbitrator interpreted and
applied the actual contract in order to settle the dispute. 475 F.3d at 753. If an interpretation of a
contract is “so untethered to” the terms of the agreement, it would cast doubt upon whether the
arbitrator was engaged in interpretation. Id. “Such an exception of course is reserved for the rare
case. For in most cases, it will suffice to enforce the award that the arbitrator appeared to be
engaged in interpretation, and if there is doubt we will presume that the arbitrator was doing just
that.” Id.
Americold asserts that the arbitrator’s award is so untethered to the terms of the
agreement that it contradicts the plain meaning and express language in the CBA. ECF No. 25 at
2. Americold advances two ways in which the award is untethered to the terms of the agreement:
the award violates the express terms of the CBA, and the award improperly relied upon the
definition of LTOs to interpret the CBA. ECF Nos. 22-1 at 6; 25 at 5, 8.
1. Express Terms
Americold argues the award contradicts the express terms of the CBA because Article 5,
Section 1 gave it the right to use contract labor for any non-forklift positions. ECF No. 25 at 8.
Therefore, Americold argues, its hiring of contract labor to perform Canadian export stamping
was consistent with the terms of the CBA. ECF No. 25 at 8. Local 17A asserts that the arbitrator
had to determine whether the Canadian export stamping job was a non-forklift position, and to

7

(5:12cv749)
do so he arguably construed, applied and interpreted the CBA. ECF No. 26 at 10-11.
Article 5, Section 1 of the CBA reads, “[t]he Company retains, in regards to both
departments, its right to utilize contract labor for non forklift positions.” ECF No. 1-4 at 4. The
issue presented to the arbitrator was whether Americold violated the CBA when it used contract
labor to perform the work known as Canadian export stamping. ECF No. 9-1 at 3. In order to
consider whether Americold violated Article 5, Section 1 of the CBA, the arbitrator had to
determine what a “non-forklift position” is. “Non-forklift position” is not defined in the CBA.
Therefore, the arbitrator had to consider matters outside the express terms of the CBA to
establish the definition of “non-forklift position.” See Mich. Fam. Res., 475 F.3d at 754-55
(agreement silent and ambiguous on the issue of wage increases; arbitrator properly looked for
other indicators of meaning). Doing so did not violate the express terms of the CBA because, as
noted, the CBA did not define “non-forklift position.” Therefore, it cannot be said that the award
directly contradicts the express terms of Article 5, Section 1.
In support of its argument that the award conflicts with the express terms of the CBA,
Americold cites Cargill, Inc. v. General Truck Drivers, Chauffeurs, Warehousemen and Helpers,
2011 WL 11459 (N.D.Ohio, Jan. 04, 2011). ECF No. 25 at 5-6. The Cargill court vacated an
arbitrator’s award because it was contrary to the terms of the CBA. Id. at *3. The employee in
Cargill was terminated after cutting a lock from a co-worker’s locker and throwing away the
contents, which included company property, and the union filed a grievance alleging the
employee was improperly terminated. Id. at *1. The arbitrator found in favor of the union. In
vacating the award, the court first faulted the arbitrator for improperly finding on his own terms

8

(5:12cv749)
that, in order for a prohibition against lock-cutting to be recognized, any such policy “must be
written, clear, and regularly enforced.” Id. at *3. The court noted that the CBA contained no
such language. Id. The court further faulted the arbitrator for “invent[ing] his own system of
‘progressive discipline,’ . . . arbitrarily imposing a ‘short suspension of five days’ . . . [and]
add[ing] a random condition that the suspension should be imposed ‘with the understanding that
this is not the penultimate step in progressive discipline prior to discharge.’” Id. at *5. None of
the progressive discipline steps were “drawn in any way from the language of the collective
bargaining agreement, or any other policies articulated or practiced by management.” Id.
In contrast, the instant case does not involve an arbitrator that made up terms or imposed
his own notions of fairness or industrial justice. The arbitrator did not make up the term “nonforklift position” or decide unreasonably that the term “non-forklift position” needed to be
defined. Cf. Liberty Nursing Center of Willard, Inc. v. United Food and Commercial Workers
Union Local 911, 525 F.Supp.2d 933, 937 (N.D.Ohio Dec. 5, 2007) (vacating arbitrator’s award
because the CBA said “$14.00,” yet “the arbitrator determined that ‘$14.00' could mean
something other than fourteen single primary units of United States currency,” a result “that is so
ignorant of the contract’s plain language.”). Instead, the arbitrator in the instant case construed
and applied the CBA and necessarily interpreted the meaning of “non-forklift position.”2 Thus,

2

Americold also states “that the express language in the CBA giv[es] the Company the
right to use contract labor for work that does not involve the use of a forklift.” ECF Nos. 25 at 9;
1 at 6. The Court, however, notes that the CBA does not say “non-forklift work,” which may
naturally be understood to mean, as Americold suggests, work that does not involve use of a
forklift. Rather, as noted, the CBA refers to “non-forklift positions,” which may naturally be
understood to mean a certain kind of employment position. While determining whether certain
work requires a forklift may be straightforward, it is less straightforward to determine whether
9

(5:12cv749)
as noted, the award does not conflict with the express terms of the CBA, and it may not be
vacated upon that basis.
2. Interpretation
Americold argues that, in interpreting the term “non-forklift position,” the arbitrator
erroneously relied upon the LTO job description3 and ignored past practice and the “intent of the
parties in negotiating the term ‘non-forklift positions.’” ECF No. 25 at 8; 22-1 at 6. Local 17A
asserts that Americold does not disagree that the arbitrator interpreted the undefined CBA
language, but rather it disagrees with his interpretation and, as such, the argument amounts to
nothing more than a dissatisfaction with the arbitrator’s interpretation of the CBA and is thus an
insufficient reason to warrant vacating an award. ECF No. 28 at 7.
Obviously, the arbitrator engaged in interpretation of the CBA. As indicated, Americold
itself recognizes the arbitrator was interpreting the term “non-forklift position.” ECF No. 25 at
8-10. To interpret the term, the arbitrator considered past practices (ECF No. 9-1 at 4, 9); an

certain duties are encompassed within a designated employment “position.”
3

The LTO job description was written by Americold and lists primary responsibilities as
“[u]nloads and loads customer product, scans product, and places it correctly in warehouse.
Maintains a clean and safe work area.” ECF No. 22-8 at 1. “Essential Functions” include, in
part, “[p]ack product using shrink wrap. Attach correct labels to product.” ECF No. 22-8 at 1.
Americold also objects to the arbitrator’s reliance upon the LTO description because it
asserts that the “Company-promulgated job description was not created until September 2010–
four years after the contract labor clause was negotiated by the parties.” ECF No. 25 at 8. Local
17A points out that Americold never objected to the use of the job description during arbitration;
that it was a joint exhibit; and that two of Americold’s testifying witnesses answered questions
about the job description and did not indicate the descriptions were incorrect or inapplicable to
the 2006 negotiations. ECF No. 28 at 3-5. The Court does not find the arguments surrounding
the date of the official creation of the LTO job description to be a determining factor as to
whether the arbitrator arguably construed and applied the CBA.
10

(5:12cv749)
unrebutted description of Canadian export stamping provided by an eleven-year Americold
employee (ECF No. 9-1 at 3); the facts leading up to the need for the addendum (ECF No. 9-1 at
5-6); the testimony of the bargaining agents (ECF No. 9-1 at 10); the CBA itself (ECF No. 9-1 at
10); and the “joint exhibit of fork lift description” (ECF No. 9-1 at 10). In light of all the above,
the arbitrator found that,
based on the unrebuttable description of what work takes place during the
Canadian Export Stamping operation, Article 5 of the CBA, the job description
for fork lift operator and the insignificant past practice, that the Company relies
on, that all work related to the Canadian Export Stamping job belongs to the Fork
Lift position - operators and may not be subcontracted.
ECF No. 9-1 at 10-11.
The Court need not decide whether the arbitrator correctly analyzed and interpreted the
CBA. Mich. Fam. Res., 475 F.3d at 754. The Court does conclude, however, that because the
arbitrator was construing or applying the CBA, the award must be enforced.
C. Americold’s Ohio Law Claims are preempted by § 301
Americold also seeks to vacate the award pursuant to Ohio Rev. Code § 2711.10. ECF
No. 22-1 at 16. Local 17A asserts that § 301 of the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 185(a), preempts the field of disputes involving the interpretation or
enforcement of CBAs. ECF No. 26 at 6.
Section 301 governs all claims which are “founded directly on rights created by collective
bargaining agreements, and also claims ‘substantially dependent on analysis of a collective
bargaining agreement.’” Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) (quoting
International Bhd. Of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851, 859 n.3 (1987)). The

11

(5:12cv749)
Sixth Circuit has recognized the Supreme Court’s declaration of the preempteive effect of § 301.
See DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir.1994) (“[s]ince 1962, the
Supreme Court has held that section 301 preempts state law rules that substantially implicate the
meaning of collective bargaining agreement terms.”); Smolarek v. Chrysler Corp., 879 F.2d
1326, 1329 (6th Cir. 1989) (en banc); Gilreath v. Clemens & Co., 212 Fed. App’x. 451, 462 (6th
Cir. 2007) (requiring Federal preemption of any State law claim that is inextricably bound up in
an interpretation of a collective bargaining agreement, or brought to vindicate a party’s rights
under such an agreement). “The purpose of this rule is to require that all claims raising issues of
labor contract interpretation be decided according to the precepts of federal labor law in order to
prevent inconsistent interpretations of the substantive provisions of collective bargaining
agreements.” Smolarek, 879 F.2d at 1329 (citing Local 174, Teamsters v. Lucas Flour Co., 369
U.S. 95, 103-104 (1962)); see also Watts v. United Parcel Service, 701 F.3d 188, 191 (6th Cir.
2012).
To determine whether a State claim is completely preempted by § 301, courts apply a
two-step analysis: 1) whether proof of the State law claim requires interpretation of collective
bargaining terms; and 2) whether State law or the CBA created the plaintiff’s right to bring suit.
DeCoe, 32 F.3d at 216. “[A]s long as the state-law claim can be resolved without interpreting
the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption
purposes.” Id. (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10 (1988)).
A court “looks to the essence of the plaintiff’s claim, in order to determine whether the plaintiff
is attempting to disguise what is essentially a contract claim as a tort.” DeCoe, 32 F.3d at 216.

12

(5:12cv749)
Americold’s assertion that the essence of its claim is unrelated to the CBA defies logic.
Americold appears to argue that because the Court may not conduct a de novo review of the facts
that were before the arbitrator, and may not itself interpret the CBA, it then follows that contract
interpretation is not required and preemption applies. ECF No. 27 at 4. To adopt this posture,
would render § 301 preemption law superfluous. Americold, like the plaintiff in DeCoe, “either
invokes rights created by the collective bargaining agreement, or must make substantial reference
to the CBA in order to establish an essential element of [its] claim.” Id. Cf. Caterpllar, 482 U.S.
at 394-95 (§ 301 does not preempt claims arising out of individual employment contracts that do
not invoke rights pursuant to the CBA); Smolarek, 879 F.2d at 1331 (no preemption when
employee’s claim was one for retaliation and “sufficiently set out as separate and apart from a
collective bargaining contract claim.”). Americold asserts that it has rights under the CBA to
hire contract workers to perform non-forklift positions. Its State law claim draws exclusively
upon this assertion. ECF No. 1 at 9. Therefore, Americold cannot meet the first requirement for
§ 301 preemption.
Furthermore, as already stated, the arbitrator did not exceed his powers, or so imperfectly
execute them that a mutual, final, and definite award upon the subject matter submitted was not
made. See O.R.C. 2711.10(D). Therefore, the second requirement for § 301 preemption is not
met. Accordingly, Federal law preempts Americold’s State law claim.
IV. Conclusion
For the reasons stated above, the Court denies Americold’s Motion for Summary
Judgment (ECF No. 22) and grants Local 17A’s Motion for Summary Judgment on its

13

(5:12cv749)
Counterclaim (ECF No. 23). The arbitrator’s award is confirmed in its entirety and shall be
enforced.

IT IS SO ORDERED.

January 29, 2013
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

14