International Brotherhood of Electrical Workers, Local Union No. 716, AFL-CIO v Albemarle Corporation, Inc

Filing 24

MEMORANDUM OPINION AND ORDER Granting 15 MOTION for Summary Judgment, Denying 17 MOTION for Summary Judgment and Brief in Support.(Signed by Judge Sim Lake) Parties notified.(jewilliams, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL UNION NO. 716, AFL-CIO,
Plaintiff,
v.
ALBEMARLE CORPORATION, INC.,
Defendant.

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CIVIL ACTION NO. H-10-5063

MEMORANDUM OPINION AND ORDER
Pending

before

the

court

are

cross-motions

for

summary

judgment by plaintiff International Brotherhood of Electrical
Workers, Local Union No. 716, AFL-CIO (“Union”) (Docket Entry
No. 15) and defendant Albemarle Corporation, Inc. (“Company”)
(Docket Entry No. 17).

The Union seeks an order compelling the

Company to arbitrate Statement of Grievance, No. 10-02 (“Grievance
10-02").1

The Company contends that the Union is improperly

attempting to use Grievance 10-02 to press a complaint before the
arbitrator that lies outside the parameters of Grievance 10-02.
The Company seeks dismissal on this ground of the Union’s suit to
compel arbitration.

For the reasons stated below, the court will

grant the Union’s motion for summary judgment, deny the Company’s
motion for summary judgment, and order that Grievance 10-02 be
submitted to the arbitrator.
1

Statement of Grievance, No. 10-02, Exhibit A2 to Defendant’s
Motion for Summary Judgment and Brief in Support, Docket Entry
No. 17-2.

I.

Background and Arguments

The Union brought this action to compel the Company to
arbitrate a grievance.2

The Union alleges that the Company’s

refusal to submit Grievance 10-02 to arbitration violates the
collective bargaining agreement (“CBA”).3

The Company argues that

the Union is attempting to arbitrate a grievance different from the
one that it processed.4

There appears to be no dispute among the

parties over whether the Union met the procedural requirements in
the CBA for processing grievances.5

The Union6 and the Company7

2

Plaintiff IBEW’s Original Complaint to Compel Arbitration
(“Union’s Original Complaint”), Docket Entry No. 1, pp. 4-5.
3

Agreement Between Albemarle Corporation, Pasadena Plant and
International Brotherhood of Electrical Workers, AFL-CIO Local 716
(“CBA”), Exhibit A1 to Defendant’s Motion for Summary Judgment and
Brief in Support, Docket Entry No. 17-2.
4

Defendant’s Motion for Summary Judgment and Brief in Support
(“Company’s MSJ”), Docket Entry No. 17, pp. 8-9.
5

Union’s Original Complaint, Docket Entry No. 1, pp. 2-4;
Defendant Albemarle Corporation’s Answer to Complaint to Compel
Arbitration, Docket Entry No. 5, pp. 2-4; Company’s MSJ, Docket
Entry No. 17, pp. 2-3.
6

Plaintiff IBEW Local 716's Motion for Summary Judgment
(“Union’s MSJ”), Docket Entry No. 15; Plaintiff IBEW Local Union
716's Brief in Support of its Motion for Summary Judgment (“Union’s
Brief on its MSJ”), Docket Entry No. 16; Defendant’s Response to
Plaintiff’s Motion for Summary Judgment, Docket Entry No. 19;
Plaintiff IBEW Local Union 716's Reply to Defendant Albemarle
Corp., Inc.’s Response to Local 716's Motion for Summary Judgment
(“Union’s Reply on its MSJ”), Docket Entry No. 20.
7

Company’s MSJ, Docket Entry No. 17; Plaintiff IBEW Local
716's Response to Albemarle Corporation, Inc.’s Motion for Summary
Judgment (“Union’s Response on Company’s MSJ”), Docket Entry
No. 18; Defendant’s Reply to Plaintiff’s Response to Motion for
Summary Judgment (“Company’s Reply on its MSJ”), Docket Entry
(continued...)
-2-

submitted motions for summary judgment and numerous responses
followed.
The Union described the incident at issue in Grievance 10-02
as follows:
We are grieving that the Company will not allow (15)
minutes at the beginning of each regularly scheduled
shift and (15) minutes at the end of each regularly
scheduled shift to change clothes and go to the job
location as per contract agreement Article XI - Hours and
Overtime A.#4.8
Article XI(A)(4) of the CBA states:
The COMPANY will allow at the beginning of each
continuous period of time worked by each employee,
exclusive of uncompensated meal periods, a period of
fifteen (15) minutes within which an employee required by
the COMPANY to change clothes as a condition of
employment can change clothes, go to the job location,
and make job turnover. The COMPANY will allow at the end
of each continuous period of time worked by each
employee, exclusive of uncompensated meal periods, a
period of fifteen (15) minutes within which an employee
required by the COMPANY to change clothes as a condition
of employment can make job relief, return from the job
location, and change clothes. All paid time shall be
included when computing continuous periods of time
worked, and uncompensated meal periods shall not
interrupt such continuous periods.9

7

(...continued)
No. 21; Defendant’s Supplemental Brief on Cross Motions for Summary
Judgment, Docket Entry No. 22; Plaintiff IBEW Local Union 716's
Response to Defendant’s Supplemental Brief on Cross-Motions for
Summary Judgment, Docket Entry No. 23.
8

Grievance 10-02, Exhibit A2 to Company’s MSJ, Docket Entry
No. 17-2.
9

CBA, Exhibit A1 to Company’s MSJ, Docket Entry No. 17-2,
Article XI (“Hours and Overtime”), Section A (“Definitions”),
Paragraph 4.
-3-

The Company argues in its motion for summary judgment that the CBA
provision cited by the Union, Article XI(A)(4), does not apply to
any employees covered by the CBA.

According to the Company,

the express terms of Grievance No. 10-02 and the Union’s
answers to Albemarle’s grievance replies in the Steps
process, all make clear that the Union raised only an
alleged violation of Article XI(A)(4), which does not
apply to any bargaining unit employees as it addresses
only employees required to change clothes as a condition
of employment and no such employees are in the bargaining
unit.10
The Company contends that the Union is seeking to arbitrate
matters other than the Union grieved and other than those that
could possibly come under the ambit of Article XI(A)(4).
The Union is attempting to proceed to arbitration on a
matter that it has never grieved while relying upon a
provision of the CBA (Article XI(A)(4)) that clearly does
not apply, all in an effort to avoid the application of
bargained for provisions in the CBA which expressly
exclude mere “complaints” from arbitration (Article
VI(C)) and which further prohibit the false citation of
a CBA violation in order to elevate a non-arbitrable
complaint to the status of an arbitrable grievances
[sic].11
On this basis, the Company argues that it never agreed in the CBA
to arbitrate the complaint now pressed by the Union and that the
court should therefore refuse to compel arbitration.12
The Union contests the Company’s reading of Grievance 10-02,13
but the crux of the Union’s argument is that the determination of

10

Company’s MSJ, Docket Entry No. 17, p. 8.

11

Id. at 10.

12

Id.

13

Union’s Response on Company’s MSJ, Docket Entry No. 18,
pp. 5-7.
-4-

which

matters

are

grieved

in

Grievance

10-02

is

not

to

be

determined by the court, but by the arbitrator.14
II.
A.

Applicable Law

Summary Judgment Standard
Summary judgment is appropriate if the movant establishes that

there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Disputes about material facts are “genuine” if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.

Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511

(1986).

The Supreme Court has interpreted the plain language of

Rule 56(c) to mandate the entry of summary judgment “after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
S. Ct. 2548, 2552 (1986).

Celotex Corp. v. Catrett, 106

In reviewing the evidence “the court

must draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the
evidence.”

Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct.

2097, 2110 (2000).

14

Union’s Reply on its MSJ, Docket Entry No. 20, pp. 3-4;
Union’s Response to Company’s MSJ, Docket Entry No. 18, p. 3 (“Even
if Albemarle is correct, and the Grievance is really a “Complaint”
for purposes of CBA Article VI(B) – classification of such is for
the Arbitrator to determine.”).
-5-

B.

CBAs, Arbitration, and the Courts
Where an agreement states that a dispute is to be arbitrated,

courts will enforce the agreement and compel arbitration.

Paper,

Allied-Indus. Chem. and Energy Workers Int’l Union, Local 4-12 v.
Exxon Mobil Corp., 2011 WL 4133563, at *3 (5th Cir. September 16,
2011)

(“In

determining

whether

the

grievances

at

issue

are

arbitrable, we must examine the scope of the parties’ agreement, as
reflected in the arbitration clause. . . . [W]e are obliged to
enforce the parties’ . . . agreement according to its terms.”)
(internal citations and quotation marks omitted).

Courts are

guided by four long-standing principles in deciding whether a CBA’s
arbitration clause mandates the arbitration of a grievance. AT & T
Technologies, Inc. v. Communications Workers of America, 106 S. Ct.
1415,

1418-19

(1986)

(summarizing

earlier

Supreme

Court

jurisprudence).
First, arbitration is a matter of contract, and the contract
will govern.

Id. at 1418 (“The first principle . . . is 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).
Second, the question of arbitrability is for the court to
decide.

Id. (“The second principle . . . is that the question of

arbitrability -- whether a collective-bargaining agreement creates
a duty for the parties to arbitrate the particular grievance -- is
undeniably an issue for judicial determination.”).
-6-

Third, it is not for the court to rule on the merits of the
grievance at issue.

Id. at 1419 (“The third principle . . . is

that, in deciding whether the parties have agreed to submit a
particular grievance to arbitration, a court is not to rule on the
potential merits of the underlying claims.

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 collectivebargaining agreement is to be decided, not by the court asked to
order

arbitration,

but

as

the

parties

have

agreed,

by

the

arbitrator.”); Communications Workers of America v. Southwestern
Bell Tel. Co., 415 F.2d 35, 38 (5th Cir. 1969) (“We are precluded
from ‘. . . determining whether there is particular language in the
written instrument which will support the claim.’”) (quoting United
Steelworkers of America v. American Manufacturing Co., 80 S. Ct.
1343,

1346

(1960)).

The

court’s

role

is

merely

to

decide

“[w]hether the party seeking arbitration is making a claim which on
its face is governed by the contract.”

American Manufacturing, 80

S. Ct. at 1346.
Fourth, there is a presumption of arbitrability.

AT & T, 106

S. Ct. at 1419 (“Finally, it has been established that where the
contract contains an arbitration clause, there is a presumption of
arbitrability in the sense that [a]n order to arbitrate the
particular grievance should not be denied unless it may be said
with

positive

assurance

that

the

arbitration

clause

is

not

susceptible of an interpretation that covers the asserted dispute.
-7-

Doubts

should

be

resolved

in

favor

of

coverage.”)

(internal

quotation marks omitted).
III.
A.

Analysis

The CBA Between the Union and the Company
The

CBA

between

the

Union

and

the

Company

contains

an

arbitration clause providing for the arbitration of grievances.15
After the grievance has been processed through the three
steps of the grievance procedure as outlined in this
article, the UNION, . . . may process the grievance
through the arbitration procedure by giving written
notice to the COMPANY of a desire to arbitrate the same
. . . .16
The arbitration provision outlines the purview of the arbitrator as
follows:
The sole function of the arbitrator shall be to determine
whether the COMPANY or the UNION is correct with
reference to the proper application and interpretation
of, or compliance with, this agreement . . . .17
The terms “grievance” and “complaint” are defined in Article VI(B).
A grievance, as that term is used in this agreement,
means any dispute between the COMPANY and the UNION
involving the proper application of, interpretation of,
or compliance with this agreement.
A complaint, which does not involve a violation of
the bargaining agreement, may be processed through the
first three steps of the grievance procedure outlined
below, but shall not be subject to arbitration.18
15

CBA, Exhibit A1 to Company’s MSJ, Docket Entry No. 17-2,
Article VII (“Arbitration of Grievances”).
16

Id. at Article VII(A) (“Procedure”).

17

Id.

18

Id.
at
Article
VI
(“Adjustment
Complaints”), Section B (“Definitions”).
-8-

of

Grievances

and

Article VI(B) prohibits the parties from attempting to arbitrate a
complaint by bringing it under the guise of a grievance.
It is agreed that no complaint shall be filed which
falsely cites a contract violation merely for the purpose
of elevating the complaint to grievance status.19
B.

Application
The

court

must

determine

arbitrate the dispute at issue.
WL 4133563 at *3.

whether

the

parties

agreed

to

Paper, Allied-Indus. Chem., 2011

The court’s role is limited to determining

whether a claim is “on its face” governed by the arbitration
provision in the CBA.

American Manufacturing, 80 S. Ct. at 1346.

In Article VII of the CBA, the parties agreed that the Union
may process grievances through arbitration and that the arbitrator
would decide which party “is correct with reference to the proper
application or interpretation of, or compliance with, [the CBA].”20
Article VI of the CBA defines “grievance” liberally, as “any
dispute . . . involving the proper application of, interpretation
of, or compliance with [the CBA].”21

19

The Company bound itself in

Id.

20

CBA, Exhibit A1 to Company’s MSJ, Docket Entry No. 17-2,
Article VII(A).
21

Id. at Article VI(B). This liberal definition of “grievance”
stands in contrast to the more restrictive definition of
“grievance” at issue in a recent Fifth Circuit decision finding
that a grievance was not arbitrable because it failed the “good
faith” requirement for arbitrable grievances in that CBA. Paper,
Allied-Indus. Chem., 2011 WL 4133563, at *1, *4 (applying a CBA
providing that “[a]n arbitrable grievance is a good faith claim by
(continued...)
-9-

the CBA to arbitrate questions of interpretation and application of
the CBA when the Union followed certain procedural steps.
The proper reading of Grievance 10-02 and the question of
whether the Company has violated Article XI(A)(4) are issues of
interpretation and application of the CBA.
Grievance

10-02

alleges

Article XI(A)(4).22

that

the

The Union argues that

Company’s

practice

violates

Whether the Company is violating Article

XI(A)(4) is a question of interpretation and application of the
CBA.

Whether Grievance 10-02 alleges a colorable claim that the

company is violating Article XI(A)(4) is also a question of
interpretation and application of the CBA.

More specifically,

whether any of the Union employees covered by the CBA come under
the protections extended in Article XI(A)(4) can only be determined
by interpreting and applying the CBA.

Grievance 10-02 “on its

face” is a “dispute” over the proper interpretation and application
of the CBA and comes, therefore, under the arbitration provision of
the CBA.

Under the CBA these questions are for the arbitrator.

The Company argues that the Union is using Grievance 10-02 to
improperly press a claim that Article XI(A)(4) has been violated.23
The Company contends that Article XI(A)(4) only covers employees
required by the company to change clothes for work and that because
21

(...continued)
one party that the other party has violated a written provision of
this Agreement.”).
22

Union’s Original Complaint, Docket Entry No. 1, pp. 2-3.

23

Company’s MSJ, Docket Entry No. 17, pp. 8-10.
-10-

no employees are currently required by the company to change
clothes, Article XI(A)(4) could not be applicable to the grievance
the Union is pressing in this action.24

But whether the Union is

improperly using Grievance 10-02 turns on the meaning of Article
XI(A)(4); and interpreting Article XI(A)(4) is for the arbitrator,
not the court.

Under the CBA signed by the Company and the Union

only the arbitrator is in a position to determine whether the Union
is “falsely cit[ing] a contract violation merely for the purpose of
elevating the complaint to grievance status.”25
IV.

Conclusion and Order

For the reasons stated above, Defendant’s Motion for Summary
Judgment (Docket Entry No. 17) is DENIED, and Plaintiff IBEW Local
716’s Motion for Summary Judgment (Docket Entry No. 15) is GRANTED,
except as to the request for attorney’s fees.26
SIGNED at Houston, Texas, on this 8th day of November, 2011.

____________________________
SIM LAKE
UNITED STATES DISTRICT JUDGE

24

Id.

25

CBA, Exhibit A1 to Company’s MSJ, Docket Entry No. 17-2,
Article VI(B).
26

In its Motion for Summary Judgment the Union requests
attorney’s fees. Union’s Brief on its MSJ, Docket Entry No. 16,
p. 12; Union’s MSJ, Docket Entry No. 15, p. 4. Because no argument
or evidence is provided in support of an award of attorney’s fees,
the court will deny this relief.
-11-