Union de Tronquistas de Puerto Rico, Local 901 v. United Parcel Service, Inc.

Filing 21

OPINION & ORDER. GRANTED 11 Motion for Summary Judgment. Signed by Judge Daniel R. Dominguez on 3/6/2018. (RJC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

Union de Tronquistas de Puerto Rico,
Local 901, et al.,
Plaintiffs,

Civil No. 17-1288 (SEC)
v.

United Parcel Service, Inc.,
Defendants.

OPINION & ORDER
This case arises from a labor arbitration held between Plaintiffs Union de
Tronquistas de Puerto Rico, Local 901 (the “Union”), Julio Montes (“Montes”), and
Defendant United Parcel Service, Inc. (“UPS”). After the Arbitrator ruled in UPS’s
favor, the Union filed suit in state court seeking to vacate the award. UPS removed the
suit to this Court invoking § 301 of the Labor Management Relations Act, 29 U.S.C. §
185, 1 and now moves for summary judgment. ECF No. 11. The motion is granted.
I.

Background
As a threshold matter, the Court notes that the Union’s response to the motion for

summary judgment is tardy. And even after UPS moved to strike the response on that
ground, the Union stayed silent. Consequently, the Court grants as unopposed UPS’s
motion to strike the response and the accompanying statement of facts from the record.

1

This section vests federal district courts with jurisdiction to hear actions for violations of contracts between an
employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185
(a).

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Page 2

The statement of facts submitted by UPS is deemed admitted, and a summary is provided
below. 2
The parties to this action are bound by a collective bargaining agreement
(“CBA”) that contains a grievance procedure for the resolution of disputes involving the
“interpretation, application and/or administration of the agreement.” ECF No. 11-2, ¶ 1.
According to the CBA, “[w]hen an employee has a complaint about the administration
or interpretation of the [CBA], it shall be discussed with his supervisor, and if they do
not reach a satisfactory agreement, the employee will bring the case in writing to the
delegate […] within ten (10) days of the occurrence… .” Further, “[a]ny grievance not
presented, taken to the next step or answered within the established timeframe will be
resolved based on the company’s last position if the union fails to abide with the agreed
timeframe … .” ECF No. 11-2, ¶ 7.
In December 2014, several UPS executives held a meeting with Julio Montes, a
company driver, and informed him that he would be terminated for allegedly damaging
the transmission of a delivery vehicle. In response, the Union filed a grievance under
the CBA on behalf of Montes, through which it challenged the propriety of the dismissal.
At the arbitration hearing, UPS argued that the grievance was not procedurally arbitrable
because Montes had failed to comply with the procedure set forth in the CBA. In the
end, the Arbitrator agreed with UPS and dismissed the dispute.
II.

Standard of Review
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be entered after a moving party passes a two-prong test. A summary judgment is
justified where “the pleadings, depositions, answers to interrogatories, and admissions
2

That the motion for summary judgment is unopposed does not mean that the Court can grant it as a matter of
course. See NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7–8 (1st Cir. 2002) (holding that a district court may not
automatically grant a motion for summary judgment simply because it is unopposed; rather, “the court must
determine whether summary judgment is ‘appropriate,’ which means that it must assure itself that the moving
party's submission shows that ‘there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.’”); cf. Rodriguez-Salgado v. Somoza-Colombani, 937 F. Supp. 2d 206, 211 (D.P.R.
2013) (noting that summary grants are allowed for motions to dismiss under Rule 12). Because the parties’
arguments essentially overlap on the question of whether the award should be confirmed or vacated, the Court
shall simply address the Union’s motion head-on.

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Page 3

on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). A fact is
“material” when it has the potential to change the outcome of the suit under governing
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On the other hand,
a fact is “genuine” when there is sufficient evidence wherein a “reasonable jury could
return a verdict for the nonmoving party.” Id. Thus, it is well settled that “the mere
existence of a scintilla of evidence” is insufficient to defeat a properly supported motion
for summary judgment. Id., at 252.
After the moving party meets this burden, the responsibility shifts to the nonmoving party to show that there still exists “a trialworthy issue as to some material
facts.” Cortés–Irizarry v. Corporación Insular De Seguros, 111 F.3d 184, 187 (1st Cir.
1997) (citing Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995)). At the
summary judgment stage, the trial court reviews “the record ‘in the light most flattering
to the non-movant and indulg[es] in all reasonable references in that party's favor.’ Only
if the record, viewed in that manner and without regard to credibility determinations,
reveals no genuine issue as to any material fact may the court enter summary judgment.”
Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997) (internal citations omitted).
However, summary judgment is inappropriate where there are issues of motive and
intent as related to the material facts. See Poller v. Columbia Broad. Sys., 368 U.S. 464,
473 (1962)(summary judgment is to be issued “sparingly” in litigation “where motive
and intent play leading roles”); see also Dominguez–Cruz v. Suttle Caribe, Inc., 202 F.3d
424, 433 (1st Cir. 2000) (finding that “determinations of motive and intent ... are
questions better suited for the jury”).
Conversely, summary judgment is appropriate where the nonmoving party rests
solely upon “conclusory allegations, improbable inferences and unsupported
speculation.” Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996)
(internal citations omitted). However, while the Court “draw[s] all reasonable inferences

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in the light most favorable to [the non-moving party] ... we will not draw unreasonable
inferences or credit bald assertions, empty conclusions, [or] rank conjecture.” Vera v.
McHugh, 622 F.3d 17, 26 (1st Cir. 2010) (internal quotations and citation omitted).
Further, the Court will not consider hearsay statements or allegations presented
by parties that are not properly supported by the record. See D.P.R. Civ. R. 56(e)(“The
[C]ourt may disregard any statement of fact not supported by a specific citation to the
record material properly considered on summary judgment. The [C]ourt shall have no
independent duty to search or consider any part of the record not specifically
referenced.”); see Morales v. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir. 2001) (citing
which held that, where a party fails to reinforce factual issues with correct record
citations, judgment against that party may be appropriate); see also Caraballo v. Hospital
Pavia Hato Rey Inc., 2017 WL 1247872, *4 (D.P.R. May 31, 2017).
Most notably, if a defendant fails to file an opposition to the motion for summary
judgment, the district court may consider the motion as unopposed and disregard any
subsequently filed opposition. See Velez v. Awning Windows, Inc., 375 F.3d 35, 41 (1st
Cir. 2004). Furthermore, the district court must take as true any uncontested statements
of fact. Id. at 41–42; see D.P.L.R. 311.12; see Morales, 246 F.3d at 33 (“This case is a
lesson in summary judgment practice.... [P]arties ignore [Rule 311.12] at their own peril,
[and] ... failure to present a statement of disputed facts, embroidered with specific
citations to the record, justifies deeming the facts presented in the movant's statement of
undisputed facts admitted.”)(internal citations and quotations omitted). Nonetheless,
this does not mean that summary judgment will be automatically entered in favor of the
moving party, as the court “still has the obligation to test the undisputed facts in the
crucible of the applicable law in order to ascertain whether judgment is warranted.” See
Velez, 375 F.3d at 42.

Civil No. 17-1288 (SEC)
III.

Page 5

Discussion

Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §185,
empowers federal courts to review an arbitration conducted under the terms of a
collective bargaining agreement. Under this statute, the Court has limited jurisdiction to
overturn the award on the merits, and also to ensure that the arbitrator does not ignore
the contract and dispense “his own brand of industrial justice.” Pan Am. Grain Mfg.,
Inc. v. Congreso de Uniones Industriales De P.R., 544 F. Supp. 2d 95, 97 (D.P.R. 2008)
(citing Kraft Foods Inc. v. Office and Professional Employees International Union, 203
F.3d 98, 100 (1st Cir. 2000)).
The scope of review allowed under § 301, however, is “among the narrowest
known in the law.” Maine Cent. R.R. Co. v. Bhd. of Maint. of Way Employees, 873 F.2d
425, 428 (1st Cir. 1989); Kraft Foods, 203 F.3d at 100. 3 This is so because the parties
explicitly “contracted to have disputes settled by an arbitrator chosen by them” rather
than by a judge; “it is the arbitrator's view of the facts and the meaning of the contract
that they have agreed to accept.” United Paperworkers Intern. Union v. Misco, Inc., 484
U.S. 29, 37–38 (1987). Thus, the court is bound by the facts as the arbitrator found them.
Kraft Foods, Inc., 203 F.3d at 99 (citing United Paperworkers, 484 U.S. at 37).
An arbitration award will be confirmed if it “rests on a plausible interpretation of
the underlying contract.” Salem Hosp. v. Massachusetts Nurses Ass'n, 449 F.3d 234, 238
(1st Cir. 2006). In fact, “[a]s long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his authority, that a court is

3

This is partly because there is a strong presumption of arbitrability in actions covered by an arbitration clause.
Union de Tronquistas de Puerto Rico, Local 901 v. Cadillac Unif. & Linen Supply, Inc., 257 F. Supp. 3d 188, 191
(D.P.R. 2017) (citations omitted). The Court notes that “[i]t is unclear whether the Federal Arbitration Act (FAA)—
which, of course, does not apply of its own force, 9 U.S.C. § 1, but may be nonetheless consulted for guidance in
fashioning federal common law under § 301, — or LMRA § 301 governs in cases like this one, which concerns
arbitration under a collective-bargaining agreement.” Union Independiente de Trabajadores de la Cerverceria India
v. Cerveceria India, Inc., 994 F. Supp. 2d 205, 210 n.3 (D.P.R. 2014). But like in Cerveceria India, this is a case
where “neither party has invoked the FAA's expedited review provisions; the original complaint was filed in state
court, presumably under state law; and the case arises under § 301, which the Union does not dispute.” Id. The
First Circuit has declined to apply the FAA in this type of situation. Id. Accordingly, the Court shall proceed under
the assumption that the common law of labor arbitration, and the standards for review derived therefrom, is
controlling.

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convinced he committed serious error does not suffice to overturn his decision.” United
Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987). It should not
be a surprise, then, that federal courts rarely find cause to “tinker with an arbitral award
made under the aegis of a collective bargaining agreement.” El Dorado Tech. Servs.,
Inc. v. Union Gen. De Trabajadores De P.R., 961 F.2d 317, 318 (1st Cir. 1992).
That said, “an arbitrator's decision is not entirely impervious to judicial
oversight.” Salem Hosp., 449 F.3d at 238. A labor arbitration award may be vacated on
the merits if it was “(1) unfounded in reason and fact; (2) based on reasoning so palpably
faulty that no judge, or group of judges, ever could conceivably have made such a ruling;
or (3) mistakenly based on a crucial assumption that is concededly a non-fact.” Local
1445, United Food & Commercial Workers Int'l Union, AFL–CIO v. Stop & Shop Cos.,
Inc., 776 F.2d 19, 21 (1st Cir. 1985); see also Trustees of Boston University v. Boston
University Chapter, 746 F.2d 924 (1st Cir. 1984). 4 Likewise, review is proper if there
exist “circumstances that impugn[] the integrity of the arbitration.” Ramirez-Lebron v.
Int'l Shipping Agency, Inc., 593 F.3d 124, 131 (1st Cir. 2010) (citing Harris v. Chem.
Leaman Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971) (per curiam)). This may
happen, for instance, if the award was secured through fraud or deceit, or if the grievance
procedure was a “sham, substantially inadequate or substantially unavailable.” Id.
The Union first argues that UPS waived the defense of procedural arbitrability –
that is, the grounds upon which the arbitrator issued the award. The Court finds
otherwise.
On substantive arbitrability, the question is whether the parties have agreed to
submit a particular dispute to arbitration. Procedural arbitrability, on the other hand,
deals with “questions concerning allegations of waiver, defenses to arbitrability, and
4

In 2008, the Supreme Court decided Hall Street Assocs., L.L.C. v. Mattel, Inc., where it held that the “manifest
disregard of the law” doctrine was not an independent ground for vacating an arbitral award under the FAA. 552
U.S. 576 (2008). To the Court’s knowledge, even almost a decade later, it remains an open question whether the
same restriction applies to cases arising under § 301 of the LMRA. See e.g. Ramos-Santiago v. United Parcel Serv.,
524 F.3d 120, 124 (1st Cir. 2008) (declining to decide whether the “manifest disregard” doctrine was available to
vacate an arbitral award reviewed under § 301 since the claim would fail regardless).

Civil No. 17-1288 (SEC)

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whether conditions precedent to arbitrability have been fulfilled.” Fantastic Sams
Franchise Corp. v. FSRO Ass'n Ltd., 683 F.3d 18, 25 (1st Cir. 2012). Here, the question
whether the Union complied with the grievance procedure is a “prototypical one of
procedural arbitrability,” which is presumptively a matter “for the arbitrator to decide.”
Union Independiente de Trabajadores de la Cerverceria India v. Cerveceria India, Inc.,
994 F. Supp. 2d 205, 212 (D.P.R. 2014).
The Union’s argument on this front is self-defeating. For starters, the Union
freely concedes that the defense of procedural arbitrability is “jurisdictional” in nature.
See ECF No. 17, p. 3. If this holds true, as some cases submitted by UPS appear to
suggest, then it should not be subject to waiver and may be raised at any time – at least
within the arbitration proceeding. See e.g. Hamer v. Neighborhood Hous. Servs. of
Chicago, 138 S. Ct. 13, 17 (2017) (failing to comply with a statutory time prescription
is a jurisdictional defect that cannot be waived, and requires dismissal); United States v.
Cotton, 535 U.S. 625, 630 (2002) (defects in subject-matter jurisdiction can never be
forfeited or waived). 5 The Union proffers no rebuttal. Nor does it provide any authority
for the proposition that the defense employed by UPS is otherwise subject to waiver or
forfeiture. In addition, the CBA is silent on the matter. This bare-boned argument, thus,
fails from the outset.
Even if the procedural arbitrability defense could somehow be waived, the Court
is hard-pressed to see why waiver happened under these circumstances. The Union
concedes that UPS actually raised the argument, and only complains that it raised it too
late. 6 If that were true, then the logical follow-up question is: how late is “too late”?
When was the latest point at which UPS could have presented the defense? The Union
provides no clear alternative. In any event, the record shows that UPS raised the defense
5

Although there is no need to decide this issue here, the Court notes that, according to the First Circuit, these
questions of “procedural arbitrability […] concern the scope of the [Arbitrator’s] own jurisdiction.” Fantastic Sams
Franchise Corp. v. FSRO Ass'n Ltd., 683 F.3d 18, 25 (1st Cir. 2012).
6
Incidentally, the correct term for this type of argument is “forfeiture” – not “waiver.” As the Supreme Court has
explained, “forfeiture is the failure to make the timely assertion of a right[;] waiver is the ‘intentional
relinquishment or abandonment of a known right.’ ” United States v. Olano, 507 U.S. 725, 733 (1993). But since
it makes no difference for the resolution of this case, the Court follows the parties’ chosen terminology.

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at the arbitration hearing, and both parties fully discussed the matter in post-hearing
briefs. And on this front, the CBA is silent. For these reasons, the Court finds the Union’s
argument unpersuasive.
The Union next argues that UPS was “estopped” from presenting its procedural
arbitrability defense to the Arbitrator. While the Union argues that an “employer’s own
actions may prevent” it from raising the defense of procedural arbitrability, it fails to
mention what actions, in particular, estopped UPS from presenting that defense before
the Arbitrator. On the other hand, the Union also complains that the award contains no
explicit findings of fact nor conclusions of law. This deficit, argues the Union,
constitutes a violation of due process. This argument is also fundamentally flawed since
the award specifically mentions that it incorporates, by reference, what UPS stated in its
post-hearing brief. See ECF No. 11-6 at p. 5; see e.g. Hoteles Condado Beach La Concha
v. Union de Tronquistas de Puerto Rico, Local 901, 632 F. Supp. 6, 7 (D.P.R. 1986)
(under § 301, district court refused to vacate an award that adopted by reference one of
the parties’ briefs but did not contain independent findings of fact and conclusions of
law).
On the other hand, the Union has failed to discuss, let alone cite, any authority
relating to the doctrines it invokes here. “It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do counsel's work, create the
ossature for the argument, and put flesh on its bones.” U.S. v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990). By failing to “spell out its arguments squarely and distinctly,” the Union
waived these arguments. Paterson–Leitch Co. v. Massachusetts Municipal Wholesale
Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988).
Finally, the Union contends that that the Arbitrator erred in finding that it had
failed to comply with the CBA’s grievance procedures. Although the Union’s brief is
very murky on this point, the answer to this challenge is simple: the Court simply cannot
review any factual findings, credibility determinations, or legal conclusions made by the
Arbitrator in this case. Challenger Caribbean Corp. v. Union General de Trabajadores

Civil No. 17-1288 (SEC)

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de Puerto Rico, 903 F.2d 857, 860 (1st Cir. 1990) (“We do not sit as a court of appeal to
hear claims of factual or legal error by an arbitrator or to consider the merits of the
award.”). This holds true even if the Court were convinced that the Arbitrator made a
“serious error of fact or law.” UMass Mem'l Med. Ctr., Inc. v. United Food &
Commercial Workers Union, Local 1445, 527 F.3d 1, 5 (1st Cir. 2008). On the merits,
all the Court needs to check is whether the award “draws its essence” from the CBA;
that is, whether the “arbitrator employed a plausible construction of the collective
bargaining agreement between the parties.” Asociacion de Empleados del Estado Libre
Asociado de Puerto Rico v. Union Internacional de Trabajadores de la Industria de
Automoviles, Aeroespacio e Implementos Agricolas, U.A.W. Local 1850, 559 F.3d 44,
46 (1st Cir. 2009); El Dorado, 961 F.2d at 319 (“a court should uphold an award that
depends on an arbitrator's interpretation of a collective bargaining agreement if it can
find, within the four corners of the agreement, any plausible basis for that
interpretation”). That, it does.
As mentioned above, the grievance procedure set forth in the CBA required an
employee to “discuss” any complaints regarding the CBA “with his supervisor[.]” See
ECF No. 11-2 at p. 3. The CBA further provides that, if “they do not reach a satisfactory
agreement, the employee will bring the case in writing to the delegate […] within ten
(10) days of the occurrence.” Id. At the arbitration hearing, both parties submitted
evidence and called witnesses to testify on the question of whether the Union had
complied with this procedure. See Id. at ¶ 10-14. In particular, UPS called Montes’
immediate supervisor, Ortiz, who “testified that he was present during the December 31,
2014 meeting in which Montes was notified of his termination;” and that “Montes did
not discuss his termination with him” on that date. Id. at ¶ 14. UPS also showed that
Montes never submitted his complaint to the delegate within the 10 days required by the
CBA, and the Union failed to provide any evidence to rebut this claim. Id.
On this record, it is impossible to conclude that the arbitrator dispensed “his own
brand of industrial justice,” United Steelworkers of Am., 363 U.S. at 597, or that the

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award is “unfounded in reason or fact.” Stop & Shop, 776 F.2d at 21. To the contrary,
the arbitrator had ample grounds to conclude that the Union failed to comply with the
grievance procedure under the CBA. With no challenges remaining, the award is
confirmed.
IV.

Conclusion
The motion for summary judgment is granted, and the award is confirmed.

Judgment shall be entered accordingly.

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 6th day of March, 2018.
s/ Daniel R. Dominguez
DANIEL R. DOMINGUEZ
U.S. Senior District Judge