CENVEO CORPORATION v. UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC

Filing 37

MEMORANDUM AND ORDER. For the reasons stated in the Memorandum & Order filed herewith, Defendants' Motion for Summary Judgment (Doc. 30 ) is GRANTED, and Plaintiff's Motion for Summary Judgment (Doc. 32 ) is DENIED. Consistent with the foregoing, Plaintiff's Complaint is DISMISSED with prejudice. Plaintiff is hereby ORDERED to arbitrate the Grievance. A judgment order pursuant to Federal Rule of Civil Procedure 58 will follow. Signed by Judge Cathy Bissoon on 9/13/2017. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CENVEO CORPORATION,
Plaintiff,
v.
UNITED STEEL, PAPER AND
FORESTRY, RUBBER,
MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
AFL-CIO-CLC, et al.,
Defendants.

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Civil Action No. 16-982
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
Pending before the Court are cross Motions for Summary Judgment filed by Plaintiff
Cenveo Corporation (Doc. 32) and Defendants United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied-Industrial and Service Workers International Union (“USW”) and
United Steelworkers, 198-G (“Local”) (herein collectively “Defendants” or the “Union”) (Doc.
30). For the following reasons, Plaintiff’s Motion for Summary Judgment (Doc. 32) will be
DENIED and Defendants’ Motion for Summary Judgment (Doc. 30) will be GRANTED.
A. BACKGROUND
Plaintiff Cenveo Corporation (“Cenveo” or “Plaintiff”) is a Pennsylvania corporation that
maintains a plant engaged in the production of envelopes, custom labels and commercial
printing. Am. Compl. (Doc. 23). At all times material to this case, Cenveo and the Union have
been parties to a collective bargaining agreement (“CBO”). Id. at ¶ 6. Plaintiff alleges that
Dontay Stokes (“Stokes”) threatened to physically harm a supervisor and that, pursuant to a Last
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Chance Agreement (“LCA”), a subsequent grievance filed by the Union challenging Stokes’s
termination (“Grievance”) is not arbitrable. Id. at ¶ 5.
The parties have provided a joint statement of undisputed material facts (“Joint
Statement”), which includes the following facts. Dontay Stokes is a former employee of Cenveo
and was a bargaining unit employee under the terms of the CBA. Joint Statement (Doc. 29) at ¶
7. On December 23, 2015, Cenveo terminated Stokes for allegedly violating Cenveo’s
Workplace Violence Policy (“Policy”). Id. at ¶¶ 8-9. The Union grieved that termination. Id. at
¶ 10. On March 16, 2016, Cenveo and the Union entered into the LCA. Id. at ¶ 11. The LCA
provides:
I, Dontay Stokes, by affixing my seal and/or signature, acknowledge, in
the presence of and witnessed by Cenveo management and USW Local 198G
representation, that I have been issued disciplinary actions in accordance with
progressive discipline guidelines as provided for in Cenveo Mt. Pleasant, PA
Plant Rules. Additionally, I confirm that, I am subject to the last and final step of
the progressive disciplinary process, which terminates my employment.
I am in complete agreement and understanding that this agreement permits
me to continue as an active employee, on a non-precedent setting basis, at the
Cenveo Mount Pleasant Facility, with the stipulation if I have a violation of
Cenveo Workplace Violence Policy, in the next six (6) month period, that
generates a warning, it will result in immediate termination. Further, I consent to
waive all bargaining unit agreement rights to the grievance process regarding such
termination and agree to hold harmless, Cenveo management, USW Local 198G
and its officers or representatives for such actions with respect to such
termination.
My signature to this agreement serves as verification that this agreement
has been explained to me and that I fully understand and agree to the terms and
conditions set forth in this document.
Id.
After being reinstated, Stokes reaffirmed his commitment to Cenveo’s Workplace
Violence Policy by again signing for a copy on March 25, 2016. Id. at ¶ 12. Cenveo alleges that
Stokes violated the Policy by threatening to physically harm a supervisor, and on April 25, 2016,
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Cenveo terminated Stokes for this alleged violation. Id. at ¶ 13. The Union contends that
Stokes did not make the alleged threat. Id. at ¶ 14.
On May 4, 2016, the Union filed the Grievance challenging Stokes’s termination. Id. at
¶ 15. Cenveo denied the Grievance, and maintains that the Grievance is not arbitrable under the
terms of the LCA. Id. at ¶ 16. The Union maintains that the Grievance is arbitrable. Id. at ¶ 17.
On October 26, 2016, Plaintiff filed a two-count amended complaint in this Court, seeking a
Declaratory Judgment (Count I) and Injunction (Count II). Id. at ¶ 1.
Plaintiff filed the instant Motion for Summary Judgment on December 14, 2016. Pl.’s
Mot. for Summ. J. (Doc. 32). Defendants filed their Motion for Summary Judgment on
December 14, 2016. Def.’s Mot. for Summ. J. (Doc. 30). Defendants allege that the grievance
challenging Stokes’s second termination is arbitrable and contend that arbitration should be
compelled. Id.
B. ANALYSIS
Where a collective bargaining agreement contains an arbitration clause, there is a
presumption of arbitrability. See United Steel Workers of America v. Century Aluminum of
Kentucky, 157 Fed. Appx. 869 (6th Cir. 2005) (citing AT&T Technologies, Inc. v.
Communications Workers of America, 475 U.S. 643, 650 (1986)). The presumption of
arbitrability may be overcome, however, if the collective bargaining agreement contains an “‘an
express provision excluding a particular grievance from arbitration,’” United Steelworkers of
America v. Lukens Steel, 969 F.2d 1468, 1474 (3rd Cir. 1992) (“Lukens Steel”) (citing AT&T,
475 U.S. at 650). In general, “[s]ettlement agreements (such as the Last Chance Agreements)
between parties to a collective bargaining agreement containing a broad arbitration clause are
arbitrable when the underlying disputes are arbitrable, except when the parties expressly exclude

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the settlement agreements from arbitration.” Id. (citing Niro v. Fearn International, Inc., 827
F.2d 173, 175 (7th Cir. 1987)). “[W]hen there is no express exclusion, only the most forceful
evidence of a purpose to exclude the claim from arbitration can prevail.” Id. (citing AT&T, 475
U.S. at 650). The party contesting the presumption of arbitrability bears the burden of producing
“strong and forceful” evidence of an intention to exclude the matter from arbitration. Id.
(citations omitted).
In Lukens Steel, the Court of Appeals for the Third Circuit considered whether an
employer was obligated to arbitrate a dispute under a last chance agreement. In that case, the last
chance agreement provided that if any of the employees who were subject to its terms were
suspended for one of the conditions set forth in the agreement:
[H]e will be afforded an opportunity to plead his case before the Disciplinary
Committee. The disposition of the Disciplinary Committee shall be final. Neither
Mr. Smith nor the Union shall have recourse through the arbitration/grievance
procedure to protest the suspension or disposition invoked by the Disciplinary
Committee.
Id. at 1472. The union argued that the above waiver merely precluded an employee from
challenging the penalty assessed, not the initial determination as to whether there was a violation.
The Third Circuit agreed, reasoning that, because the last chance agreement did not specify who
was to make the initial determination of whether the employee has committed a violation, the
agreement did not preclude using the grievance and arbitration procedures to resolve this
threshold question. Id. at 1476.
Plaintiff argues that, unlike in Lukens Steel, the LCA here contains a clear and express
waiver of not some, but all rights to arbitration. Specifically, the LCA states that Stokes agreed
“to waive all bargaining unit agreement rights to the grievance process regarding such
termination.” Doc. 29 at ¶11. This, Plaintiff argues, is “strong and forceful” evidence that the
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parties intended to exclude from arbitration the threshold issue of whether Stokes violated the
Policy. Doc. 33 at 7. In response, the Union argues that, because the LCA does not expressly
state who will make the initial determination as to whether Stokes violated company policy,
arbitration of that issue is proper. Def.’s Mem. in Supp. (Doc. 31) at 6. The Union notes that
every court that has interpreted a last chance agreement following Lukens Steel has found the
underlying dispute arbitrable unless the agreement expressly states that a particular party (other
than an arbitrator) will determine the threshold of guilt. Id. at 7.
The Court agrees with the Union, and finds that Cenveo has not presented “strong and
forceful” evidence that Stokes waived his right to arbitrate the threshold issue of guilt. Indeed,
Stokes’s agreement “to waive all bargaining unit agreement rights to the grievance process
regarding . . . termination” could be interpreted as a waiver only of his right to arbitrate his
termination in the event that an arbitrator finds that he has violated the Policy. Plaintiff relies on
Sterrett v. Giant Eagle, Inc., 2015 WL 791401 (W.D. Pa. Feb. 25, 2015), but that case is readily
distinguishable. Doc. 33 at 8. In Sterrett, the last chance agreement states: “In the event that
plaintiff is determined by the Company to have committed any dishonest act . . . the Company
will have the right to discharge [Plaintiff].” Sterrett, 2015 WL 791401, at *4 (emphasis added).
In contrast, the LCA at issue here does not explicitly state who will determine the threshold issue
of guilt. Instead, the LCA provides that “if [Stokes has] a violation of Cenveo Workplace
Violence Policy, in the next six (6) month period, that generates a warning, it will result in
immediate termination.” Doc. 29 at ¶ 11. Such language leaves open the possibility that it will
be an arbitrator, and not the Company, that will determine whether Stokes violated the Policy.
Because the language of the LCA can be read to support either the Union’s or Cenveo’s position,
the presumption of arbitrability applies.

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II.

ORDER

For the reasons stated above, Defendants’ Motion for Summary Judgment (Doc. 30) is
GRANTED, and Plaintiff’s Motion for Summary Judgment (Doc. 32) is DENIED. Consistent
with the foregoing, Plaintiff’s Complaint is DISMISSED with prejudice. Plaintiff is hereby
ORDERED to arbitrate the Grievance. A judgment order pursuant to Federal Rule of Civil
Procedure 58 will follow.

IT IS SO ORDERED.

September 13, 2017
s/Cathy Bissoon
Cathy Bissoon
United States District Judge

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