Eastern Ohio Regional Wastewater Authority v. Utility Workers Union of America, AFL-CIO, Local Union 436-A

Filing 10

ORDER granting 7 Motion to Dismiss; finding as moot 1 Motion and Petition to Confirm Arbitration Award. Signed by Judge George C. Smith on 4/21/16. (lvw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EASTERN OHIO REGIONAL
WASTEWATER AUTHORITY,
Plaintiff,
v.

Case No.: 2:15-cv-3027
JUDGE SMITH
Magistrate Judge Jolson

UTILITY WORKERS UNION OF AMERICA,
AFL-CIO, LOCAL UNION 436-A,
Defendant.
OPINION AND ORDER
This matter is before the Court upon the Motion and Petition to Confirm Arbitration
Award by Summary Judgment of Plaintiff Eastern Ohio Regional Wastewater Authority
(“EORWA”) (Doc. 1). Also pending is the Motion to Dismiss of Defendant Utility Workers
Union of America, AFL-CIO, Local Union 436-A (the “Union”) (Doc. 7). EORWA opposed the
Motion to Dismiss (Doc. 8) and the Union replied in support (Doc. 9). The motions are now ripe
for review. For the following reasons, the Court GRANTS Defendant’s Motion to Dismiss and
DENIES as moot Plaintiff’s Motion and Petition to Confirm Arbitration Award by Summary
Judgment.
I.

BACKGROUND

This dispute arises out of the employment relationship between Freddie Hocker, a Union
member, and EORWA. EORWA terminated Hocker in October of 2014 for failing a drug test.
(Doc. 1-2, Arbitration Order at 2). The Union filed a grievance on his behalf, arguing that the
Collective Bargaining Agreement (“CBA”) between the Union and EORWA did not contain a

policy regarding drug or alcohol testing and punishment.

The grievance was ultimately

arbitrated in front of Bruce McIntosh, an arbitrator for the Federal Mediation and Conciliation
Service (“FMCS”). (Id. at 1). On August 14, 2015, McIntosh ordered that Mr. Hocker should
receive all back pay and benefits from October 30, 2014, until December, 2014. (Id. at 17).
McIntosh apparently believed that Hocker had voluntarily retired in December, 2014, thereby
terminating his back pay. (Id. at 18). The Union disputes the accuracy of that finding.
EORWA initiated the instant case under the Federal Arbitration Act (“FAA”), 9 U.S.C.
§ 9, and the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185, seeking to confirm
McIntosh’s arbitration award. EORWA sent the Motion and Petition to Confirm Arbitration
Award by Summary Judgment by regular U.S. mail to the Union’s arbitration representative, and
to the Union’s post-arbitration counsel, John Canzano. (Doc. 8, Mem. Opp. at 13). While this
matter was pending, the Union, in an effort to challenge the Arbitrator’s Opinion, filed a Motion
and Application for Order Modifying or Vacating Arbitration Award in the Belmont County
Court of Common Pleas with Judge Frank Fregiato on March 10, 2016. (See Doc. 9-1, Def.’s
Mot. to Modify). In an agreed entry, Judge Fregiato ordered the case stayed pending a resolution
of the case in this Court. (See Doc. 9-2, Agreed Entry). Accordingly, the Court now considers
both motions pending before it.
II.

DISCUSSION

EORWA is seeking confirmation of the arbitration award and the Union moved to
dismiss for improper service and lack of subject matter jurisdiction. The Union’s claims of lack
of subject matter jurisdiction must be considered first. The Union challenged the subject matter
jurisdiction of this Court, arguing that the FAA and the LMRA do not support subject matter
jurisdiction “or have any application to the instant matter.”

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(Doc. 7, Mot. Dismiss at 1).

EORWA alleges that both the FAA and the LMRA independently confer subject matter
jurisdiction under 28 U.S.C. § 1331 and that jurisdiction is further bolstered by the parties’ use of
FMCS, an agency of the United States.
The Union challenges the original jurisdiction of this Court pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure. Subject matter jurisdiction cannot be conferred on federal
courts by consent of the parties. See Commodity Futures Trading Comm’n v. Schor, 478 U.S.
833, 851 (1986). Rule 12(b)(1) motions on subject matter jurisdiction come in two varieties:
facial and factual. Ohio Nat. Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir. 1990). A facial
attack on the subject matter jurisdiction alleged in the complaint questions the sufficiency of the
pleading. Id. Accordingly, when reviewing a facial attack, a trial court takes the allegations in
the complaint as true. Id. However, “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.” O’Bryan v. Holy See, 556
F.3d 361, 376 (6th Cir. 2009) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).
A factual attack occurs when the party challenging jurisdiction provides facts purporting
to overcome the alleged subject matter jurisdiction. Ohio Nat. Life Ins., 922 F.2d at 325. When
a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the
factual allegations. Id. If the facts presented give rise to a factual controversy, the Court must
“weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction
exists or does not exist.” Id. In doing so, the Court may consider “affidavits, documents and
even a limited evidentiary hearing to resolve disputed jurisdictional facts.”

Id. (citing

Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) and Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

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A challenge under 12(b)(1) may consist of both facial and factual challenges. Gentek
Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). Ultimately,
“dismissal under 12(b)(1) allows for the possibility of repleading the action to bring it within the
subject matter jurisdiction of some court” and thus a dismissal under 12(b)(1) is without
prejudice. Ohio Nat. Life Ins., 922 F.2d at 325.
The Court will address each of the EORWA’s alleged bases in turn.
A.

Jurisdiction under the FAA
The Union asserts that the FAA does not apply to contracts of employment under 9

U.S.C. § 1, but that even if it did, the FAA does not confer subject matter jurisdiction. EORWA
argues that the FAA applies in this case and that prior Supreme Court decisions regarding FAA
subject matter jurisdiction do not concern 9 U.S.C. § 9. The primary question for the Court is
whether the FAA—and 9 U.S.C. § 9 in particular—confer subject matter jurisdiction on this
Court independent of any other basis. If 9 U.S.C. § 9 does not confer jurisdiction, then the Court
need not determine if 9 U.S.C. § 1 bars the application of the FAA in this matter.
The Supreme Court, the Sixth Circuit, and this Court have held that 9 U.S.C. § 9 does not
confer subject matter jurisdiction upon a federal court absent some other independent basis for
jurisdiction. Southland Corp. v. Keating, 465 U.S. 1, 16, n. 9 (1984) (“the Federal Arbitration
Act . . . does not create any independent federal-question jurisdiction under 28 U.S.C. § 1331
(1976) or otherwise.”) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 25, n. 32 (1983)); Ford v. Hamilton Inv., Inc., 29 F.3d 255, 257–58 (6th Cir. 1994) (“It is
equally clear that § 9 of the [FAA] does not create subject matter jurisdiction.”); Fisher v. MBNA
Am. Bank, N.A., 422 F. Supp. 2d 889, 895 (S.D. Ohio 2006) (Marbley, J.) (finding no jurisdiction
where jurisdiction was allegedly based on 9 U.S.C. §§ 9 and 10).

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EORWA quotes § 4 and § 9 to argue that there are inherent differences in the language of
the two sections that necessitate a different reading of each. (See Doc. 8, Mem. Opp. at 6–7).
While the Court agrees that the language in § 4 and § 9 is distinct, the Sixth Circuit has
determined that the distinctions are immaterial in this context. See Ford, 29 F.3d at 257–58.
EORWA’s citations to two Second Circuit cases are equally unavailing because both predate
Southland, Ford, and Fisher. Even if the Second Circuit cases were more than non-binding,
outdated precedent, the Sixth Circuit has specifically addressed the Second Circuit’s analysis.
Ford, 29 F.3d at 258 (“‘[T]o read section [9 or] 10 as bestowing jurisdiction to [confirm or]
vacate absolutely any arbitration award,’ as the Court of Appeals for the Second Circuit has said,
‘would open the federal courts to a host of arbitration disputes, an intent that we should not
readily impute to Congress.’”) (quoting Harry Hoffman Printing, Inc. v. Graphic Commc’ns,
Int’l Union, Local 261, 912 F.2d 608, 611 (2d Cir. 1990) (alterations in original)).
Accordingly, EORWA’s claims under the FAA do not confer subject matter jurisdiction
upon the Court. The Court need not reach the question of whether the FAA applies to the claims
in this case nor whether the use of an FMCS arbitrator supports jurisdiction.1
B.

Jurisdiction under the LMRA
Next, the Union argues that the LMRA cannot confer jurisdiction upon this matter

because the CBA between the Union and EORWA is not subject to the LMRA. Specifically, the
Union asserts that EORWA is not an employer under the LMRA because EORWA is a public

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EORWA’s argument regarding the FMCS and the FAA was based on the assumption that the Court would adopt a
standard which looked to the conduct of the parties. (See Doc. 8, Mem. Opp. at 8 (“Accordingly, the Court of
Appeals determined the conduct of the parties in participating in the arbitration proceedings, along with applicable
contractual arbitration language, were sufficient to confer Federal jurisdiction pursuant to Section g of the FAA.”)
(citing I/S Stavborg v. Nat’l Metal Converters, 500 F. 2d 424 (2d. Cir. 1974))).

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employer under 29 U.S.C. §§ 152(2) and (5).

EORWA argues that finding the LMRA

inapplicable would undermine the purpose of the LMRA and the creation of the FMCS.
The LMRA provision regarding jurisdiction is codified at 29 U.S.C. § 185, “[s]uits for
violation of contracts between an employer and a labor organization representing employees in
an industry affecting commerce as defined in this chapter, or between any such labor
organizations, may be brought in any district court of the United States having jurisdiction of the
parties . . . .” 29 U.S.C. § 185(a). Although the LMRA appears to confer jurisdiction on its face,
the term “employer” has a special definition in the LMRA which excludes “the United States or
any wholly owned Government corporation, or any Federal Reserve Bank, or any State or
political subdivision thereof . . . .” 29 U.S.C. § 152(2). The Sixth Circuit has explicitly held that
“the LMRA expressly excludes public employers—and by association, public employees—from
its coverage.” Richards v. Ohio Civil Serv. Emps. Ass’n., 205 F. App’x 347, 354 (6th Cir. 2006).
EORWA does not provide any statute or case suggesting that the public employer
exclusion in § 152 is not applicable to EORWA. EORWA’s citation to Ohio Council 8, Am.
Fed’n of State, Cty. & Mun. Emps. v. Trumbull Mem’l Hosp., 124 F. Supp. 2d 482, 485 (N.D.
Ohio 2000) does not support jurisdiction as the court was deciding a question of mootness and
did not consider 29 U.S.C. § 152 in its decision. Even assuming that Ohio Council determined
Trumbull Memorial Hospital was subject to the LMRA, EORWA also does not provide any
evidence or argument to explain how EORWA is similar to Trumbull Memorial Hospital or why
the two entities should be treated the same. The Union argues that EORWA is a public sector
employer and EORWA provides no evidence or legal argument that it is not.
Last, EORWA argues that the use of the FMCS, created under the LMRA, is sufficient to
confer jurisdiction. This argument is without merit. Although the FMCS is created by federal

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statute and governed by the Code of Federal Regulations, EORWA has directed the Court to no
case holding that arbitration in front of the FMCS, without more, is sufficient to confer subject
matter jurisdiction. Accordingly, the LMRA does not confer subject matter jurisdiction upon
this Court. No basis for subject matter jurisdiction exists in this case.
III.

CONCLUSION

Because the Court does not have original jurisdiction over this claim, numerous other
issues in the instant motions are outside of the Court’s review. Specifically, the Court does not
have jurisdiction to reach the Union’s assertion that service was improper or to reach whether the
arbitration award should be confirmed. Additionally, the Court cannot extend supplemental
jurisdiction under 28 U.S.C. § 1367(a) to EORWA’s state law claims. See Musson Theatrical,
Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (“If the court dismisses plaintiff’s
federal claims pursuant to Rule 12(b)(1), then supplemental jurisdiction can never exist.”)
amended on denial of reh’g, No. 95-5120, 1998 WL 117980 (6th Cir. Jan. 15, 1998).
Based on the foregoing, Defendant’s Motion to Dismiss is GRANTED. Accordingly,
this action is DISMISSED WITHOUT PREJUDICE as lack of subject matter jurisdiction is a
dismissal other than on the merits. Because the Court is dismissing this case, Plaintiff’s Motion
and Petition to Confirm Arbitration Award by Summary Judgment is DENIED as moot and
without prejudice. The Clerk shall REMOVE Documents 1 and 7 from the Court’s pending
motions list and terminate the case.
IT IS SO ORDERED.
__/s/ George C. Smith
___
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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