BAKERY, CONFECTIONERY, TOBACCO WORKERS AND GRAIN MILLERS INTERNATIONAL UNION, AFL-CIO, CLC LOCAL 6 v. MORABITO BAKING COMPANY OF NORRISTOWN, PENNSYLVANIA
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 5/16/11. 5/18/11 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BAKERY, CONFECTIONARY,
TOBACCO WORKERS & GRAIN
MILLERS INT’L UNION, AFL-CIO,
CLC LOCAL 6,
Petitioner,
v.
MORABITO BAKING CO.,
Respondent.
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CIVIL ACTION
NO. 10-CV-5141
MEMORANDUM AND ORDER
Joyner, J.
May 16, 2011
Before the Court are Petitioner’s Petition to Compel Labor
Arbitration (Doc. No. 1), Respondent’s Response in opposition
thereto (Doc. No. 5), and Petitioner’s Reply in further support
thereof (Doc. No. 7).
For the reasons set forth in this
Memorandum, the Court grants the Petition.
I.
BACKGROUND
Petitioner, the “duly-recognized bargaining agent of a
bargaining unit of the [Respondent] Company’s employees,” (Pet. ¶
5, Doc. No. 1), disputes the termination of one of Respondent’s
employees.
At all relevant times, Petitioner and Respondent
were parties to a collective bargaining agreement (CBA) that
provided, among other things, a mechanism for the resolution of
any disputes that arose between them during the pendency of the
agreement.
Of particular relevance to the pending Petition, the
1
CBA provided that an “[e]mployee shall file a written grievance
and discuss the grievance with his/her supervisor for the purpose
of settling the grievance within ten (10) working days.”
(Pet.
Ex. 1, at 9, Doc. No. 1.)1
It is undisputed that employee James Witiak was suspended on
February 24, 2010, and subsequently terminated.
The reason given
by Respondent was that Witiak had committed theft by giving away
1
The full text of the dispute-resolution provision reads,
A) The parties agreed to work together for the promotion of the
baking industry and to adjust all difficulties that arise during
the life of this Agreement between the parties wherever possible.
To this end, it is understood that the Union will designate a
representative or representatives to deal with the management of
the Company in the handling of grievances, complaints or disputes.
It is agreed that the management and the Union Representatives
will attempt to make adjustments as promptly as possible and that
in case of failure to reach such adjustment, the matter shall be
submitted to the proper officials of the Company and Union. In
case, however, any disagreement or difficulty shall arise between
the parties hereto during the term of this Agreement, and in any
matter connected with this Agreement which cannot be adjusted
directly between the parties as herein before provided, the
difference shall be referred to three (3) arbitrators, one (1) of
whom shall be chosen by the Company, one (1) by the Union and the
third (3rd) by these two (2). The decision of the majority of
this Board shall be final and binding upon both parties.
B) Employee shall file a written grievance and discuss the
grievance with his/her supervisor for the purpose of settling the
grievance within ten (10) working days.
C) Upon receipt of a written grievance, the company representative
will have five (5) working days to reply in writing. A failure by
the Company (not excused by the Union) to reply within those five
(5) working days, shall entitle the Union to an award in favor of
the Union by default. Upon receipt of the written reply from the
Company. [sic] The Grievance then will be discussed by the
general manager or his/her designee and the union business agent
within five (5) working days unless mutually agreed to extent
[sic]. The Union will have fifteen (15) working days to submit
the grievance to arbitration on condition that a written request
for arbitration is submitted prior to the expiration of the
fifteen (15) working days. The costs of the arbitration
proceeding shall be borne equally by the Company and the Union.
(Pet. Ex. 1, at 9, Doc. No. 1.)
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company product.
It is also undisputed that a meeting regarding
the alleged theft and suspension took place on March 2, 2010, at
which representatives of both parties were present.
While the
parties disagree about the purpose of, and/or what happened at,
the meeting, it is also undisputed that Petitioner did not submit
a written grievance to Respondent until March 31, 2010.2
On April 8, 2010, Petitioner filed a demand for arbitration
of the termination dispute with the American Arbitration
Association.
Respondent objected to the demand, asserting that
Petitioner had not followed the CBA dispute-resolution
procedure–specifically, the time limits–and that the dispute was
therefore outside the scope of the arbitration agreement.
Petitioner thereafter filed suit in this Court, seeking an order
to compel arbitration of the termination dispute.
II.
STANDARD OF REVIEW
Under the Federal Arbitration Act, “[a] party aggrieved by
the alleged . . . refusal of another to arbitrate under a written
agreement for arbitration may petition any United States district
court which, save for such agreement, would have jurisdiction
2
Petitioner asserts that, “[d]uring a meeting on March 2, 2010, the
Union notified the Company that the Union was arbitrating the dispute, and
that it would later submit a written grievance to the Company.” (Pet’r’s Mem.
3.) Having later submitted a written grievance, Petitioner asserts that it
properly “grieved Witiak’s termination, both verbally and in writing.” (Id.)
According to Respondent, “[t]he March 2, 2010 meeting was a termination
hearing and at no time did Witiak or the Union grieve the termination. The
Union’s business agent was in contact with Morabito Baking Co. on February 25,
2010, March 2, 2010, March 9, 2010 and March 15, 2010, but at no time did the
Union attempt to grieve the matter before March 31, 2010.” (Resp. ¶ 8.)
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. . . , for an order directing that such arbitration proceed in
the manner provided for in such agreement.”
9 U.S.C. § 4 (2006).
The district court’s role is very limited in these cases.
The court is not to consider the merits of the underlying dispute
that gave rise to the demand for arbitration.
See, e.g., AT&T
Techs., Inc. v. Commc’n’s Workers, 475 U.S. 643, 649-50 (1986)
(“Whether ‘arguable’ or not, indeed even if it appears to the
court to be frivolous, the union’s claim that the employer has
violated the collective-bargaining agreement is to be decided,
not by the court asked to order arbitration, but as the parties
have agreed, by the arbitrator.”).
Rather, “[t]he court’s role
. . . [is] to determine whether the underlying subject matter of
the grievance was arbitrable.”
Bell Atl.-Pa., Inc. v. Commc’n’s
Workers, Local 13000, 164 F.3d 197, 201 (3d Cir. 1999).
Thus,
the court’s threshold role is to determine whether the
respondent’s refusal to arbitrate is premised on a substantive or
a procedural ground.3
If the refusal to arbitrate is premised on a substantive
ground, the district court must conclude that the issue is
“substantively arbitrable” before it may order the underlying
dispute submitted to an arbitrator.
See, e.g., AT&T Techs., 475
U.S. at 649 (“[T]he question of arbitrability–whether a
3
See Indep. Ass’n of Cont’l Pilots v. Cont’l Airlines, 155 F.3d 685,
692 (3d Cir. 1998) (“The term ‘substantive arbitrability’ . . . is used to
describe the question whether the parties’ dispute involves a subject matter
that is within the ambit of a contractual arbitration agreement.”).
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collective-bargaining agreement creates a duty for the parties to
arbitrate the particular grievance–is undeniably an issue for
judicial determination.
Unless the parties clearly and
unmistakably provide otherwise, the question of whether the
parties agreed to arbitrate is to be decided by the court, not
the arbitrator.”); see also Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 83 (2002) (reasoning that “arbitration is a matter
of contract and a party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit”
(internal quotation marks omitted)); Bell Atl., 164 F.3d at 201
(“[I]f an arbitrator were to decide the substantive arbitrability
issue, a party objecting to having the underlying dispute
submitted to arbitration on the ground that it did not consent to
do so would already have its alleged intent (to not submit the
dispute to arbitration) ignored.”).
If the refusal to arbitrate is premised on a procedural
ground, however, the procedural issue is for the arbitrator to
resolve (along with the merits of the dispute, should the
arbitrator find no procedural bar to addressing the underlying
dispute); the court cannot resolve the procedural question and
must simply order arbitration.
See Bell Atl., 164 F.3d at 201-02
(“[P]rocedural issues are to be resolved by the arbitrator, once
(and only after) the court determines that the underlying dispute
is one the parties have agreed to submit to the arbitrator.”);
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see also Howsam, 537 U.S. at 84; John Wiley & Sons, Inc. v.
Livingston, 376 U.S. 543, 557 (1964).
III.
A.
DISCUSSION
Timeliness of the written grievance
This “court must first determine whether resolution of the
[parties’] disagreement is for the court or for an arbitrator to
undertake.”
Bell Atl., 164 F.3d at 200.
Although Respondent
argues that the allegedly late filing of Plaintiff’s written
grievance removes the underlying dispute from the scope of
arbitration, more than “[t]hirty years of Supreme Court and
federal circuit court precedent have established that issues
concerning the timeliness of a filed grievance are ‘classic’
procedural questions to be decided by an arbitrator.”
Local 285,
Serv. Employees Int’l Union v. Nonotuck Res. Assocs., 64 F.3d
735, 739 (1st Cir. 1995).4
Indeed, the Court agrees with Petitioner that this case is
indistinguishable from Troy Chemical Corp. v. Teamsters Union
Local No. 408, 37 F.3d 123 (3d Cir. 1994).
In Troy, the CBA in
question provided that (1) no grievance would be accepted for
4
The underlying dispute in this action is whether the termination of
Witiak was for just cause. Because the CBA provides broadly that “any
disagreement or difficulty” that arises during the term of the agreement may
be resolved through arbitration, (Pet. Ex. 1, at 9, Doc. No. 1), the dispute
over Witiak’s termination is substantively arbitrable and can only be resolved
by an arbitrator. See, e.g., Int’l Union of Operating Eng’rs, Local 150 v.
Flair Builders, Inc., 406 U.S. 487, 491 (1972); Troy Chem. Corp. v. Teamsters
Union Local No. 408, 37 F.3d 123, 126 (3d Cir. 1994) (holding the dispute over
a termination substantively arbitrable when “the CBA speaks of ‘any
difference, grievance, dispute or complaint’”).
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consideration unless it was reduced to writing and presented
within two working days of the occurrence of the incident causing
the grievance, (2) there would then be a conference within three
days of the incident, and (3) the matter could be submitted to
arbitration if there was no settlement.
Id. at 125.
The parties
disagreed as to whether the district court or the arbitrator
should have decided whether the parties had modified the express
terms of their CBA by past practice such that the agreement’s
grievance procedure did not need to be followed.
Id.
The Third
Circuit held that “whether the Union and Troy Chemical had by
practice waived steps 1 and 2 of the grievance procedure was a
question of procedure for the arbitrator and not the court.”
at 126.
Id.
Thus, “[t]he district court erred in deciding the
procedural questions and foreclosing that issue from the
arbitrator’s decision.”
Id. at 127.
As indicated above, Troy is by no means an outlier in
holding that disagreements over compliance with an agreement’s
grievance procedure are to be resolved at arbitration.
See,
e.g., Local Lodge No. 595, Int’l Ass’n of Machinists v. Howe
Sound Co., 350 F.2d 508, 510-11 (3d Cir. 1965) (stating that “the
timeliness of the request for arbitration” was a “matter[] to be
decided by the arbitrator,” even when “[t]he time for taking the
various steps in the grievance procedure culminating in the
demand for arbitration ha[d] long since expired”); United
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Steelworkers v. Black Top Paving Co., No. 88-2396, 1990 U.S.
Dist. LEXIS 19949, at *10, 13-14 (W.D. Pa. Apr. 12, 1990)
(rejecting the argument that “the arbitration provision is
inapplicable because the grievance provision only applies to
grievances processed in accordance with the time limitations
specified in the grievance procedure,” because “the time
limitations of the grievance procedure are merely procedural
questions, and should be left to arbitral consideration”), aff’d,
932 F.2d 962 (3d Cir. 1991); see also Howsam, 537 U.S. at 81
(holding that the timeliness of a request for arbitration was a
question for the arbitrator to resolve); Bell Atl., 164 F.3d at
201 (recognizing that “‘whether grievance procedures or some part
of them apply to a particular dispute, whether such procedures
have been followed or excused, or whether the unexcused failure
to follow them avoids the duty to arbitrate’” are “procedural
arbitrability issues . . . left to the arbitrator” (quoting John
Wiley & Sons, 376 U.S. at 557)).
Hence, the disagreement concerning Petitioner’s compliance
with the CBA’s grievance procedure is a procedural issue that can
only be resolved at arbitration.
The arbitrator may find that
the timing of Petitioner’s grievance precludes arbitration of the
underlying dispute, but the Court, having found that the subject
matter of the dispute falls within the arbitration agreement,
must refer the case to arbitration for resolution of the issues.
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B.
Preclusion
Respondent makes an alternative argument for denying the
petition to compel arbitration: that the doctrines of res
judicata and/or collateral estoppel preclude resolution of the
underlying dispute because Witiak was denied unemployment
compensation benefits before the state Unemployment Compensation
Board of Review.
(Resp. ¶ 14.)
None of the cases that Respondent cites addresses the
preclusive effect of an administrative unemployment compensation
hearing.
In any event, the preclusive effect of a prior
administrative decision is an issue to be resolved by the
arbitrator, not this Court.
See, e.g., Shell Oil Co. v. CO2
Comm., 589 F.3d 1105, 1109 (10th Cir. 2009) (“The district court
correctly determined that the res judicata effect of the original
panel’s order is an arbitrable issue that should not be decided
by a court.”); Sherrock Bros. v. DaimlerChrysler Motors Co., 465
F. Supp. 2d 384, 390 (M.D. Pa. 2006) (“Whether preclusive effect
is to be given to the prior decisions of the Board [of Motor
Vehicle Manufacturers, Dealers, and Sales Persons] . . . was a
matter for the arbitrators to decide.”), aff’d, 260 Fed. App’x
497, 498-99 (3d Cir. 2008); Road Sprinkler Fitters Union Local
699 v. Grinnell Fire Prot. Sys. Co., No. 94-2905, 1997 U.S. Dist.
LEXIS 1543, at *6 (E.D. Pa. Feb. 14, 1997) (ordering arbitration
because “the [preclusive] effect of the NLRB proceeding is an
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issue for the arbitrators to determine”).
Thus, this is not an
appropriate ground for refusing arbitration.
C.
Attorney’s fees
“In suits to compel one party to submit to arbitration or
abide by an award, fees are generally awarded if the defaulting
party acted without justification, or if the party resisting
arbitration did not have a ‘reasonable chance to prevail.’”
Chauffeurs, Teamsters & Helpers, Local Union No. 765 v.
Stroehmann Bros., 625 F.2d 1092, 1094 (3d Cir. 1980) (citations
omitted).
Although Respondent may ultimately be successful–whether
because Petitioner’s written grievance was untimely, because of
preclusion, or because Witiak’s termination was for just
cause–the law was at all times clear that Respondent had to
resolve these issues before an arbitrator.
III.A-B.
See supra Sections
Indeed, Petitioner had repeatedly informed Respondent
before filing the Petition that binding authority, Troy,
foreclosed Respondent’s timeliness argument.
Doc. No. 1.)
(Pet. Exs. A, B, C,
Respondent nonetheless refused to submit the
dispute to arbitration, despite being unable to cite a single
case holding that arbitration could be avoided because of alleged
noncompliance with a CBA’s grievance procedure.5
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As for its
While Respondent attempts to distinguish Troy as “clearly different”
on the ground that the CBA in that case provided “exceptions” to the
timeliness requirement, (Resp’t’s Mem. 4), this Court’s review of the decision
does not support Respondent’s contention: there was only one exception noted,
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preclusion argument, Respondent not only cited no case holding
that an unemployment compensation decision has preclusive effect,
but ignored cases holding that such a decision does not have
preclusive effect, e.g., Rue v. K-Mart Corp., 713 A.2d 82 (Pa.
1998), and that preclusion is an issue for the arbitrator.
By forcing Petitioner to litigate in this Court, Respondent
has caused Petitioner to incur unnecessary expenses and has
unnecessarily delayed resolution of the underlying dispute.
The
Court finds that Respondent’s opposition to arbitration was
without justification.
See, e.g., Nonotuck, 64 F.3d at 739
(“Because the law is clear on this [timeliness] issue, and has
been for some time, the Company was without justification in
refusing to arbitrate the Singh grievance, and in forcing the
Union to litigate its arbitrability in federal district court.”).
An award of attorney’s fees and costs is therefore proper.
IV.
CONCLUSION
For the foregoing reasons, the Court grants the Petition to
Compel Arbitration and awards Petitioner the attorney’s fees and
costs incurred in this action.
and it was to exclude “grievances involving payroll calculations,” a fact that
was not in any way relied on by the Court in arriving at its holding. 37 F.3d
at 125. Similarly, Respondent’s argument that there is “most forceful
evidence of a purpose to exclude the claim from arbitration,” (Resp’t’s Mem.
5), is foreclosed by numerous prior decisions. See, e.g., Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 81 (2002); Cont’l Airlines, 155 F.3d at
694; Troy, 37 F.3d at 126.
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