COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, DISTRICT 2-13 et al v. VERIZON PENNSYLVANIA, LLC

Filing 15

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ROBERT F. KELLY ON 8/15/2017. 8/15/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO, DISTRICT 2-13 and
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO, LOCAL 13000,
Petitioners,
v.
VERIZON PENNSYLVANIA, LLC
(formerly known as VERIZON
PENNSYLVANIA, INC.),
Respondent.

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CIVIL ACTION

No. 17-1869

MEMORANDUM
ROBERT F. KELLY, Sr. J.

AUGUST 15, 2017

Presently before the Court is Petitioners Communications Workers of America, AFL-CIO,
District 2-13 and Communications Workers of America, AFL-CIO, Local 13000‟s (collectively,
“the Union”) Petition to Compel Verizon to Arbitrate. Also before the Court are Respondent
Verizon Pennsylvania, LLC‟s (“Verizon”) Motion for Judgment on the Pleadings, the Union‟s
Response in Opposition to Verizon‟s Motion for Judgment on the Pleadings, and Verizon‟s Reply
to the Union‟s Response.1 For the reasons noted below, the Union‟s Petition to Compel Verizon
to Arbitrate is granted, and Verizon‟s Motion for Judgment on the Pleadings is denied.

1

The Union initiated this action by filing the Petition to Compel Verizon to Arbitrate. Although it seeks an order in
its Petition to Compel Verizon to Arbitrate, it does not file any motion to move the Court for such an order. For
purposes of simplicity, we will treat the Union‟s Petition and Verizon‟s Motion for Judgment on the Pleadings as
cross motions for judgment on the pleadings, but will retain their original names when referencing them throughout
this Opinion.

I.

BACKGROUND
The “Verizon Sickness and Accident Disability Benefit Plan for Mid-Atlantic Associates”

(“SADBP”) provides disability benefits to eligible employees in the event they suffer a physical
disability to work on account of sickness or an accident. (Pet.; Ex. 2 (“SADBP”) § 1.) The
SADBP incorporates the “Disability Benefits Summary Plan Description for Mid-Atlantic
Associates” (“SPD”), which provides that benefits coverage ends when an employee‟s
employment is terminated (including retirement) or when an employee has received the maximum
amount of benefits under the plan. (Pet.; Ex. 3 (“SPD”) at 5.) However, if employment
terminates while the employee is receiving benefits, the benefits will continue until the employee
is no longer certified as “disabled” or the maximum amount of benefits is reached, whichever
occurs first. (Id.)
The Union and Verizon are parties to a collective bargaining agreement (“CBA”) that had
an effective term of September 19, 2012 through August 1, 2015. (Pet. ¶ 9.) The CBA contains a
number of provisions pertaining to grievance procedure and dispute resolution. Article 10 states
that if a controversy between the parties is not satisfactorily settled, either the Union or Verizon
may submit the question under dispute to arbitration in accordance with Article 13 of the CBA.
(Pet.; Ex. 1 (“CBA”) § 10.06.) In turn, Article 13 provides that “[t]here shall be arbitrated only
the matters specifically made subject to arbitration by the provisions of this Agreement.” (Id. §
13.01.) Article 16 is titled “Pensions and Benefits,” and provides as follows:
16.01 During the life of this Agreement the Company will not:
16.011 Make any change in the “Verizon Pension Plan” or
the “Verizon Sickness and Accident Disability Benefit Plan”
which would reduce or diminish the benefits or privileges
provided by the Plans for employees within the bargaining
unit without the agreement of the Union.
***
2

16.02 A claim that this Article has been violated may be
submitted to arbitration under Article 10. A claim of an
employee within the bargaining unit that they have been
deprived of any benefits or privileges to which they are
entitled under the Plans may be processed as a grievance
under the provisions of Article 10, but shall not be subject to
arbitration. However, nothing in this Agreement shall be
construed to subject the provisions of the Plans or their
administration or the terms of a proposed change to
arbitration.
(Id. art. 16.)
In February 2015, the Union claims it learned Verizon was discontinuing providing certain
benefits, such as healthcare and life insurance benefits, to bargaining-unit members who were
terminated from Verizon and were receiving accident disability benefits. (Pet. ¶ 19.) The Unions
contends that those individuals were still certified as disabled and had not received the maximum
disability amount available under the SADBP. (Id. ¶ 20.) On February 6, 2015, the Union sent
Verizon a letter stating that Verizon was required to provide those individuals with benefits
pursuant to the CBA, Memorandum of Understanding (“MOU”), and the SADBP. (Id. ¶ 21; see
also Pet.; Ex. 5.) On March 24, 2015, the Union filed a written grievance that charged “a violation
of Articles 2, the 2012 MOU and any related articles and letters of the [CBA] that apply.” (Pet.;
Ex. 7; see also Pet. ¶ 23.) The Union and Verizon then held two days of meetings regarding the
grievance, but they were unable to resolve it. (Pet. ¶ 24.) On May 28, 2015, the Union emailed
Verizon to confirm the grievance could not be resolved, reiterating the language in the March 14,
2015 written grievance and adding, “The Union‟s position is that [Verizon] made changes to the
[SADBP] that reduces and diminishes the benefits and privileges provided by the plan for
bargaining unit employees without the agreement of the Union.” (Pet.; Ex. 8 (“May 28, 2015
Email”); see also Pet. ¶ 24.)

3

On June 3, 2015, the Union submitted to Verizon a written demand for arbitration of the
grievance. (Pet.; Ex. 9; see also Pet. ¶ 25.) Verizon responded that it would not agree to arbitrate
the grievance because the grievance was not substantively arbitrable and was untimely.2 (Pet.; Ex.
10; Pet. ¶ 27.) In an email dated November 2, 2016, Verizon stated that the Union‟s grievance
was not arbitrable under the second sentence of § 16.02 of the CBA because it was a claim for
benefits. (Pet.; Ex. 10; Pet. ¶ 27.) On January 5, 2017, the Union responded by stating that the
dispute concerned a violation of § 16.011 and was arbitrable under the first sentence of § 16.02.
(Pet.; Ex. 11; Pet. ¶ 31.)
On April 24, 2017, the Union filed a Petition to Compel Verizon to Arbitrate pursuant to 9
U.S.C. § 4 and 29 U.S.C. § 185(a). In its Petition, the Union seeks a court order compelling
Verizon to arbitrate the March 24, 2015 grievance and an award of costs and reasonable attorneys‟
fees for pursuing the action. On June 23, 2017, Verizon filed an Answer to the Petition and a
Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c).
II.

LEGAL STANDARD
A.

Legal Standard for Determining Labor Arbitrability

There is a strong federal policy in resolving labor disputes through arbitration. See Rite
Aid of Pa., Inc. v. United Food and Commercial Workers Union, Local 1776, 595 F.3d 128, 131
(3d Cir. 2010) (citing United Parcel Serv., Inc. v. Int‟l Bhd. of Teamsters, Local Union No. 430,
55 F.3d 138, 141 (3d Cir.1995); Laborers‟ Int‟l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d
375, 399 (3d Cir. 1994); Exxon Shipping Co. v. Exxon Seamen‟s Union, 11 F.3d 1189, 1196 (3d
Cir. 1993)). Notwithstanding that strong federal policy, traditional contract principles apply to
collective bargaining agreements and their arbitration clauses, and a court cannot order arbitration

2

Verizon makes no argument concerning timeliness in its submissions to the Court.

4

outside the scope of the arbitration clause. See United Steelworkers of Am. AFL-CIO-CLC v.
Rohn & Haas Co., 522 F.3d 324, 332 (3d Cir. 2008).
The determination of whether a particular grievance is arbitrable is governed by the
principles set forth in the United States Supreme Court‟s (“Supreme Court”) line of cases
collectively known as the “Steelworkers Trilogy.” See Rite Aid of Pa., 595 F.3d at 138 (citing
United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am.
v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. Enter.
Wheel & Car Corp., 363 U.S. 593 (1960)). First, “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.” Id.
at 139 (quoting Warrior & Gulf, 363 U.S. at 582) (internal quotation marks and alterations
omitted). Second, “[u]nless 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.‟” Id.
(quoting AT & T Techs., Inc. v. Commc‟ns Workers of Am., 475 U.S. 643, 648 (1986)). Third,
the court is not to rule on the potential merits of a particular claim in deciding whether the parties
have agreed to arbitrate the grievance. Id. (quoting AT & T Techs., 475 U.S. at 648). Finally,
there is a presumption of arbitrability when a CBA contains an arbitration clause, and it is
especially applicable when the arbitration clause is broad. Id. (citing AT & T Techs., 475 U.S. at
650).
The United States Court of Appeals for the Third Circuit (“Third Circuit”) set forth a threestep framework for determining arbitrability: (1) whether the present dispute comes within the
scope of the arbitration clause; (2) whether another provision of the contract excludes the
particular dispute from arbitration; and (3) whether there is “forceful evidence” that the parties
intended such an exclusion. See D.A. Nolt, Inc. v. Local Union No. 30, 143 F. Supp. 3d 229, 236
n.5 (E.D. Pa. 2015) (quoting E.M. Diagnostic Sys., Inc. v. Local 169, Int‟l Bhd. of Teamsters,
5

Chauffeurs, Warehousemen & Helpers of Am., 812 F.2d 91, 95 (3d Cir. 1987)). In making that
determination, “the court is limited to the construction of the arbitration clause and any contractual
provisions relevant to its scope, as well as any other „forceful evidence‟ suggesting that the parties
intended to exclude the disputes at issue from arbitration.” Rite Aid of Pa., 595 F.3d at 131-32
(quoting E.M. Diagnostic, 812 F.2d at 95).
B.

Rule 12(c) Standard

A party may move for judgment on the pleadings “[a]fter the pleadings are closed - but
early enough not to delay trial.” Fed. R. Civ. P. 12(c). A court may grant a motion for judgment
on the pleadings “if, on the basis of the pleadings, the movant is entitled to judgment as a matter of
law.” DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262 (3d Cir. 2008) (citation omitted). “We
„view[] the facts alleged in the pleadings and the inferences to be drawn from those facts in the
light most favorable to the plaintiff.‟” D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 271 (3d
Cir. 2014) (quoting Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 253 (3d Cir. 2004)). “A
Rule 12(c) motion „should not be granted unless the moving party has established that there is no
material issue of fact to resolve, and [the moving party] is entitled to judgment as a matter of
law.‟” Id. (quoting Mele, 359 F.3d at 253). “Ordinarily, in deciding a motion for judgment on the
pleadings, the court considers the pleadings and attached exhibits, undisputedly authentic
documents attached to the motion for judgment on the pleadings if plaintiffs‟ claims are based on
the documents, and matters of public record.” Atiyeh v. Nat‟l Fire Ins. Co. of Hartford, 742 F.
Supp. 2d 591, 595 (E.D. Pa. 2010) (footnotes omitted).
III.

DISCUSSION
A.

Whether the Arbitration Clause is Broad or Narrow

As an initial matter, we will first determine whether the arbitration clause is broad or
narrow. While the Supreme Court has held that there is a presumption of arbitrability when a
6

CBA contains an arbitration clause, see AT & T Techs., 475 U.S. at 643 (citing Warrior & Gulf,
363 U.S. at 582-583), the Third Circuit has clarified that the presumption does not apply in all
circumstances, creating a distinction between broad and narrow clauses, see Local 827, Int‟l Bhd.
of Elec. Workers v. Verizon N.J., Inc., 458 F.3d 305, 310 (3d Cir. 2006) (hereinafter “Verizon”)
(citing Trap Rock Indus. v. Local 825, Int‟l Union of Operating Eng‟rs, 982 F.2d 884, 888 n.5 (3d
Cir. 1992)). Arbitration clauses that are broad receive a presumption of arbitrability, whereas
those that are narrow do not receive a presumption. Id.
In AT & T Techs., the Supreme Court characterized an arbitration clause as “broad” that
provided arbitration for “any differences arising with respect to the interpretation of this contract
or the performance of any obligation hereunder.” AT & T Techs., 475 U.S. at 650 (internal
quotation marks omitted). Likewise, the Third Circuit has held that arbitration clauses pertaining
to “any dispute” or “any differences” in a CBA are broad and that no presumption of arbitrability
is applicable. See Lukens Steel Co. v. United Steelworkers of Am. (AFL-CIO), 989 F.2d 668, 673
(3d Cir. 1993) (stating that the clause providing arbitration for “any differences aris[ing] between
the Company and the Union” was broad); E.M. Diagnostic, 812 F.2d at 95 (stating that the
arbitration clause language of “any dispute arising out of a claimed violation of this Agreement”
was broad). In contrast, the Third Circuit has held that an arbitration clause is narrow when it
limits the matters subject to arbitration. See Trap Rock, 982 F.2d at 888 n.5. For example, in
Verizon, the arbitration clause provided that “only the matters specifically made subject to
arbitration . . . shall be arbitrated.” Verizon, 458 F.3d at 311. The court held that the clause was
narrow because, unlike the clauses in E.M. Diagnostic and Lukens, it foreclosed “the possibility
that other issues could be arbitrated by providing that the list [was] exclusive.” Id. Therefore, the
clause was narrow and the presumption of arbitrability did not apply. Id.

7

The Union and Verizon‟s CBA contains an arbitration clause that provides that “[t]here
shall be arbitrated only the matters specifically made subject to arbitration by the provisions of this
Agreement.” (CBA § 13.01.) The language is nearly identical to the arbitration clause in Verizon,
in which the Third Circuit held that the clause was narrow. The only difference between this
matter and the language in Verizon is that in Verizon, the arbitration clause then enumerated five
specific issues that were subject to arbitration. See Verizon, 458 F.3d at 311. In this CBA,
arbitration must be specified for a given subject matter in order for it to be arbitrable. Verizon‟s
arbitration clause is unlike the clauses in AT & T, E.M. Diagnostic, and Lukens because it does
not apply to “any” or “all” disputes. Rather, it clearly limits the matters that can be arbitrated.
Accordingly, we find that Verizon‟s arbitration clause is narrow, and there is no presumption of
arbitrability over the Union‟s grievance.
B.

Scope, Exclusions, and Other “Forceful Evidence”

We will next determine whether the Union‟s March 24, 2015 grievance is within the scope
of the arbitration clause, whether the grievance is excluded from the clause, and whether there is
other “forceful evidence” that the parties intended that this type of grievance be excluded from
arbitration. See E.M. Diagnostic, 812 F.2d at 95. The arbitration clause provides that “[t]here
shall be arbitrated only the matters specifically made subject to arbitration by the provisions of this
Agreement.” (CBA § 13.01.) Therefore, if the subject matter of the grievance is not specifically
mentioned to be arbitrable, it is outside the scope of arbitrable matter. To review, the Union‟s
grievance is that Verizon violated the 2012 MOU, as well as “Articles 2, 16, and all other Articles
and Letters of the CBA that apply. The Union‟s position is that [Verizon] made changes to the
[SADBP] that reduces and diminishes the benefits and privileges provided by the plan for
bargaining unit employees without the agreement of the Union.” (May 28, 2015 Email; Pet. ¶ 24.)
Article 16 of the CBA pertains to “Pensions and Benefits” and provides as follows:
8

16.01 During the life of this Agreement the Company will not:
16.011 Make any change in the “Verizon Pension Plan” or
the “Verizon Sickness and Accident Disability Benefit Plan”
which would reduce or diminish the benefits or privileges
provided by the Plans for employees within the bargaining
unit without the agreement of the Union.
***
16.02 A claim that this Article has been violated may be
submitted to arbitration under Article 10. A claim of an
employee within the bargaining unit that they have been
deprived of any benefits or privileges to which they are
entitled under the Plans may be processed as a grievance
under the provisions of Article 10, but shall not be subject to
arbitration. However, nothing in this Agreement shall be
construed to subject the provisions of the Plans or their
administration or the terms of a proposed change to
arbitration.
(CBA art. 16.) At issue between the Union and Verizon is § 16.02 of the CBA. Verizon claims
the Union‟s grievance is excluded from arbitration under the second and third sentences of § 16.02
because the grievance is merely a claim for benefits, which would require plan interpretation.
(Resp.‟s Mem. Support Mot. for J. on the Pleadings at 2.) Thus, Verizon argues that the remedy
for former Verizon employees who claim to be denied benefits is the claims and appeals procedure
outlined in SADBP § 9.1. (Id. at 13.) In contrast, the Union contends that its grievance is
arbitrable under the first sentence of § 16.02. (Pet.‟s Mem. Support of Pet. to Compel Verizon to
Arbitrate at 8.) The Union further takes issue with Verizon‟s construction and interpretation of §
16.02, claiming that Verizon‟s interpretation fails to take in account the distinction between claims
being made by the Union on behalf of its members, and claims by individual members that they
have been denied benefits. (Pet.‟s Mem. in Response to Verizon‟s Mot. for J. on the Pleadings at
6-7.) We agree with the Union.

9

In determining the scope of the arbitration clause, we must look to whether “„the subject
matter of the grievance is one that is within the zone of interests that have received protection in
the collective bargaining agreement‟ and one that the parties have agreed to arbitrate.” Rite Aid of
Pa., 595 F.3d at 132 (quoting E.M. Diagnostic, 812 F.2d at 95). Here, we have no difficulty in
finding that the Union‟s grievance is within the scope of the arbitration clause. Article 13 states
that only those matters specified within the CBA are subject to arbitration. See CBA § 13.01. In
turn, the very first sentence of § 16.02 provides that “[a] claim that [Article 16] has been violated
may be submitted to arbitration under Article 10.” Id. § 16.02 (emphasis added). The Union has
clearly made the requisite claim of a violation of Article 16. In its May 28, 2015 email after the
grievance had not been settled, the Union specifically stated that its “position is that [Verizon]
made changes to the [SADBP] that reduce[d] and diminishe[d] the benefits and privileges
provided by the plan for bargaining unit employees without the agreement of the Union.” (May
28, 2015 Email; Pet. ¶ 24.) The Union has specifically made a claim of a violation of § 16.011 of
the CBA, the subject matter of which the first sentence of § 16.02 explicitly makes arbitrable. See
CBA § 16.02. Accordingly, the Union‟s grievance is within the scope of the arbitration clause.3
Verizon contends that the Union‟s grievance is excluded from arbitration under the second
and third sentences of § 16.02 because the Union challenges benefits eligibility, which requires
plan interpretation and is not subject to arbitration. (Resp.‟s Mem. Support Mot. for J. on the
Pleadings at 13.) We believe that Verizon‟s interpretation of the CBA would essentially render

3

Verizon makes the argument that the Union fails to allege any change to the actual terms of the SADBP that would
reduce or diminish benefits. (Resp.‟s Mem. Support Mot. for J. on the Pleadings at 12-13.) Thus, Verizon claims that
a lack of actual change to the terms of the SADBP means that the Union is simply challenging benefits eligibility for
former employees, which requires plan interpretation and is not arbitrable. (Id.) However, Verizon fails to take into
account that whether the actual terms of the SADBP have changed is not for this Court to determine, as we have no
authority to rule on the potential merits of the Union‟s grievance. See Rohn & Haas, 522 F.3d at 139 (quoting AT &
T Techs., 475 U.S. at 648). The first sentence of § 16.02 of the CBA provides that any claim of a violation of Article
16 is arbitrable. See CBA § 16.02. Whether the Union ultimately prevails is not for our determination. The Union
has made a claim of a violation of § 16.011, which the parties specifically allowed to be arbitrable under the clear and
unambiguous language in the first sentence of § 16.02.

10

the first sentence of § 16.02 meaningless, as any claimed reduction in benefits necessarily impacts
an individual bargaining unit member. Here, we agree with the Union that § 16.02 makes a
distinction between claims brought by the Union on a unit-wide basis, and claims by an individual
that he or she has been denied benefits. The latter is not arbitrable because the second sentence of
§ 16.02 expressly carves it out of arbitration, stating that “[a] claim of an employee within the
bargaining unit that they have been deprived of any benefits or privileges to which they are
entitled under the Plans . . . shall not be subject to arbitration.” (CBA § 16.02) (emphasis added).
The second sentence of § 16.02 specifically states that a claim of an employee that he or she has
been denied benefits is not subject to arbitration. Contrary to Verizon‟s interpretation, however, it
does not necessarily follow that a claim by the Union on behalf of its bargaining members that
there has been a reduction or diminishment in benefits is excluded from arbitration. If that were
the case, then any claimed reduction in benefits would be excluded from arbitration and the second
sentence of § 16.02 would swallow the first. In this case, we have a labor union that has made a
claim of a violation of § 16.011 on behalf of all of its members. No other provision in the CBA or
Article 16 forecloses that type of subject matter from arbitration.4 Accordingly, the Union‟s
grievance is not excluded from the scope of the arbitration clause.5

4

Verizon also argues that the third sentence of § 16.02 makes the Union‟s grievance non-arbitrable. The third
sentence of § 16.02 is peculiar, as it provides that “nothing in this Agreement shall be construed to subject the
provisions of the Plans or their administration or the terms of a proposed change to arbitration.” (CBA § 16.02.) The
United States Court of Appeals for the District of Columbia (“D.C. Circuit”) confronted nearly identical language in a
CBA in Commc‟ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426 (D.C. Cir. 1994). In that case, Article 19.30
of the CBA prohibited any “change” in a benefit plan “which would reduce or diminish the benefits of employees
represented by [the Union] without the Union‟s consent.” Id. at 434. Article 19.40 provided that “any dispute
involving the true intent and meaning of Article 13 may be presented as a grievance and . . . submitted to . . .
arbitration,” but that “nothing herein shall be construed to subject the . . . Plans (or their successors) or their
administration or the terms of the proposed change(s) in the Plan(s) to arbitration.” Id. at 429-30 (internal quotation
marks omitted). The district court and the appellees relied on the “nothing herein” portion of Article 19.40 in reliance
on excusing the particular grievance from arbitration. Id. at 435. The D.C. Circuit reversed, stating that the district
court and the appellees‟ “reading of the second sentence of Article 19.40 would render the first sentence of Article
19.40 a nullity.” Id. Indeed, “the first sentence of Article 19.40 specifically subjects Article 19.30 disputes, which
necessarily involve whether or not the Plan has been changed without CWA‟s consent, to final and binding grievance
and arbitration procedures established by the CBA. It would therefore be absurd to interpret the second sentence of
Article 19.40 as exempting those exact disputes from mandatory arbitration.” Id.

11

Finally, Verizon makes the exact arguments that there is other “forceful evidence” that the
parties intended the Union‟s grievance to be excluded from arbitration as it made in its primary
arguments for exclusion. As noted, we reject Verizon‟s arguments in their entirety. Accordingly,
there is no forceful evidence that the Union and Verizon intended to exclude this particular
grievance from arbitration.
C.

Costs and Attorneys’ Fees

The Union also seeks in its Petition to Compel Verizon to Arbitrate an award of costs and
attorneys‟ fees incurred in pursuing the action. (See Pet. at 8; Pet.‟s Mem. Support of Pet. to
Compel Verizon to Arbitrate at 11-12.) “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. Co., 625 F.2d 1092, 1094 (3d
Cir. 1980) (internal citations omitted). The award or denial of attorneys‟ fees is within the sound
discretion of a court. See Kane Gas Light & Heating Co. v. Int‟l Bhd. of Firemen & Oilers, Local
112, 687 F.2d 673, 683 (3d Cir. 1982).
The Union argues that Verizon‟s refusal to arbitrate was not justified and that Verizon had
no reasonable chance to prevail in this matter. (See Pet.‟s Mem. Support of Pet. to Compel
Verizon to Arbitrate at 12.) We disagree. While we ultimately reject Verizon‟s arguments
The CBA provisions in Commc‟ns Workers of Am. are nearly identical to those in the matter sub judice.
Here, § 16.011 prohibits a unilateral change of the terms of the Verizon Pension Plan and the SADBP that would
reduce or diminish benefits. (See CBA § 16.011.) The first sentence of § 16.02 expressly allows a claim of a
violation of Article 16 to be arbitrable matter. (Id. § 16.02.) We agree with the D.C. Circuit that any kind of reading
of the third sentence of § 16.02 that would exempt from arbitration the exact types of disputes specifically allowed
under the first sentence would be absurd.
5

Verizon also argues that an email dated January 5, 2017, shows that the Union is merely challenging benefits
eligibility. In that email, the Union states that “[i]n our view, [Verizon‟s] failure to apply the terms of the SADBP to
individuals subject to the Medical Restrictions Plan violates their rights under Article 2, the 2012 MOU (including
Section VII) as well as Article 16.011 of the CBA.” (Pet.; Ex. 11.) While this argument is closer to the mark, we
believe the fact that the Union made a specific claim of a violation of § 16.011 in its May 28, 2015 correspondence
controls whether this type of claim is arbitrable.

12

concerning whether the Union‟s grievance is arbitrable, we believe there was at least some
reasonable chance to prevail in this matter. Verizon set forth colorable arguments concerning the
scope and exclusions of the arbitration clause, and we do not believe it lacked a complete
justification to resist arbitration. Accordingly, we decline to award the Union costs and counsel
fees associated with bringing this action.
IV.

CONCLUSION
Although the arbitration clause in this case is narrow, the Union‟s grievance comes within

the scope of it because the Union claims a violation of § 16.011 of the CBA, which is expressly
authorized under the first sentence of § 16.02. The remaining language in § 16.02 does not
exclude the Union‟s grievance, nor is there any other forceful evidence to indicate the parties
intended this type of grievance from being excluded from arbitration. Accordingly, we grant the
Union‟s Petition to Compel Verizon to Arbitrate and deny Verizon‟s Motion for Judgment on the
Pleadings.
However, even though we reject Verizon‟s arguments concerning whether this grievance is
arbitrable, we believe Verizon set forth worthy arguments as to why this type of grievance may
not be the subject of arbitration. Accordingly, we deny the Union‟s request for costs and
attorneys‟ fees associated with bringing this action.
An appropriate Order follows.

13