Albemarle Corporation v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, on Behalf of Local 6000

Filing 28

MEMORANDUM AND ORDER Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALBEMARLE CORPORATION,
Plaintiff,

§
§
§
v.
§
§
UNITED STEEL, PAPER AND
§
FORESTRY, RUBBER,
§
MANUFACTURING, ENERGY,
§
ALLIED INDUSTRIAL AND
§
SERVICE WORKERS
§
INTERNATIONAL UNION, AFL-CIO, §
ON BEHALF OF LOCAL 6000,
§
Defendant.
§

CIVIL ACTION NO. 4:12-cv-3232

MEMORANDUM AND ORDER
This case is before the Court on Plaintiff Albemarle Corporation’s
(“Albemarle”) Motion for Discovery [Doc. # 12], Motion to Strike Defendant’s
“Supplemental Response” to Motion for Discovery and Incorporated Brief in Support
(“Motion to Strike”) [Doc. # 18], and Motion for Summary Judgment (“Plaintiff’s
Motion for Summary Judgment”) [Docs. # 21 and 22]. Also pending is the Motion
for Summary Judgment filed by Defendant United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers International Union,
AFL-CIO, on behalf of Local 6000 (“Local 6000" or “the Union”) (“Defendant’s
Motion for Summary Judgment”) [Docs. # 14 and 15]. The motions all are ripe for

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decision.1 Having reviewed the parties’ briefing, the applicable legal authorities, and
the pertinent matters of record, the Court grants Defendant’s Motion for Summary
Judgment, denies Plaintiff’s Motion for Summary Judgment, and denies as moot
Plaintiff’s Motion for Discovery and Motion to Strike. This case is dismissed with
prejudice and the matter is referred to an arbitrator for further proceedings.
I.

BACKGROUND
Albemarle, a Virginia corporation which manufactures specialty chemicals,

operates a chemical plant in Pasadena, Texas (the “Plant”). Decl. of Hannah Stephens
(“Stephens Decl.”) [Exh. A to Doc. # 21-1], ¶ 3. On May 1, 2011, Albemarle and
Local 6000, which represents Plant employees hired or assigned to do production,
maintenance, and laboratory work, entered into a Collective Bargaining Agreement
(“CBA”) covering wages, hours, and working conditions. Id., ¶¶ 2-5.
The CBA provides a mechanism by which the parties to the agreement can
process claims by the Union or employees against the Company. Any claim brought
by the Union can be submitted to an internal company “grievance procedure.” This
1

Defendant filed a Response to the Motion for Discovery [Doc. # 13], to which
Plaintiff filed a Reply [Doc. # 16] and to which Defendant filed a Supplemental
Response [Doc. # 17]. Defendant filed a Response to Plaintiff’s Motion for Summary
Judgment [Doc. # 24], to which Plaintiff filed a Reply [Doc. # 25]. Plaintiff filed a
Response to Defendant’s Motion for Summary Judgment [Doc. # 23], as well as a
Supplemental Brief Regarding Cross-Motions for Summary Judgment [Doc. # 26],
to which Defendant filed a Response [Doc. # 27]. No response was filed to Plaintiff’s
Motion to Strike [Doc. # 18].

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procedure involves three steps of review by an Albemarle representative. CBA [Exh.
A-1 to Doc. # 14-1], Art. V, § 4.
On July 13, 2009, Local 6000 filed Grievance No. 09-17 with Albemarle,
contending that Albemarle’s hiring of contractors to work in the Plant’s laboratory
violated various provisions of the CBA. Grievance No. 09-17 Documents [Exh. A-2
to Doc. # 14-1], at 1; Aff. of Debbie McDonald (“McDonald Aff.”) [Exh. A to Doc.
# 14-1], at 2. The crux of Local 6000’s argument was that the laboratory positions
traditionally belonged to union employees, some of whom wanted to return to these
positions. McDonald Aff., at 2. Local 6000 alleged that this decision violated, among
other things, Article XIX, Section 18 of the CBA, which states:
It is understood that work peculiar to a job shall be done by employees
regularly assigned to the job. In addition, work customarily performed by
employees within this bargaining unit may not be reassigned outside the
bargaining unit.
CBA [Exh. A-1 to Doc. # 14-1], Art. XIX, § 18. The Union pursued Grievance No.
09-17 through Albemarle’s three-step procedure, and that grievance was denied at
each step. See Grievance No. 09-17 Documents [Exh. A-2 to Doc. # 14-1], at 2-4.
As a result of the denial at Step Three of the grievance procedure, the Union
certified Grievance No. 09-17 for arbitration. Id. at 4. Albemarle rejected the claim
to arbitrate and contended that the grievance was not arbitrable under the CBA. Id.
at 5. Rather than attempt to compel arbitration of Grievance No. 09-17 in court, Local
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6000 filed an unfair labor practice (“ULP”) charge with the National Labor Relations
Board (“NLRB”). NLRB Unfair Practice Charge Documents [Exh. A-3 to Doc. # 141], at 2. On March 25, 2010, the NLRB denied the charge. See id. at 3-4.
Meanwhile, on December 14, 2009, Local 6000 filed Grievance No. 09-21 with
Albemarle, charging that the Company had violated the CBA in its refusal to arbitrate
Grievance No. 09-17. Grievance No. 09-21 Documents [Exh. A-4 to Doc. # 14-1],
at 1. Grievance No. 09-21 was denied at both Step One and Step Two of the threestep process. See id. at 2-3. Albemarle, at both steps, asserted that Grievance No. 0917 was a “complaint,” and not a “grievance,” as the terms are used in the CBA, and
thus the matter was not subject to arbitration. See id. Local 6000 later withdrew
Grievance No. 09-21. McDonald Aff., at 3.
On May 16, 2012, Local 6000 filed Grievance No. 12-05 “for the violation of
the Current [sic] Bargaining Agreement, by the Albemarle Corporation, in hiring
contract labor in the lab,” citing to a violation, among other provisions, of Article XX
of the CBA. Grievance No. 12-05 Documents [Exh. A-5 to Doc. # 14-1], at 1. Article
XX of the CBA states:
The COMPANY will not contract work normally done by employees of this
bargaining unit when the contracting and performance of such work would
require employees in the bargaining unit to be laid off or reduced in rate of pay,
or would prevent reemployment of employees laid off who have recall rights,
provided such employees would be qualified to perform the work in question

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and provided the COMPANY had the necessary facilities to perform such
work.
CBA [Exh. A-1 to Doc. # 14-1], Art. XX. The Union unsuccessfully pursued
Grievance No. 12-05 through the company’s three-step review. Grievance No. 12-05
[Exh. A-5 to Doc. # 14-1], at 2-4.

In denying the grievance at Step Three,

Albemarle’s representative asserted that, “Per Article XX, no members of the
bargaining unit have been laid off, received a reduction in pay, nor were there any
bargaining unit employees on layoff who were prevented from returning to work due
to the subcontracting of work by the Company.” Id. at 4. After the Step Three denial,
Local 6000 certified Grievance No. 12-05 for arbitration. See id.
On October 30, 2012, Albemarle filed this suit in which it seeks a declaratory
judgment that “the Union may not compel Albemarle to arbitrate Statement of
Grievance No. 12-05.” Complaint [Doc. # 1], ¶ 27. Local 6000 has answered the
Complaint and has asserted a counterclaim seeking to compel the company to arbitrate
Grievance No. 12-05 [Doc. # 7]. Through cross-motions for summary judgment, the
parties now seek the Court’s ruling on these matters.
II.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment against a party who fails to make a sufficient showing of the existence of
an element essential to the party’s case, and on which that party will bear the burden
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at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem.
Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary
judgment “should be rendered if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a);
Celotex, 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.
2008).
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
The moving party, however, need not negate the elements of the non-movant’s case.
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving
party may meet its burden by pointing out “‘the absence of evidence supporting the
nonmoving party’s case.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.
1992)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material

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fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted). “An issue is material if its resolution could affect the
outcome of the action. A dispute as to a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT
TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s burden is not
met by mere reliance on the allegations or denials in the non-movant’s pleadings. See
Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002).
Likewise, “conclusory allegations” or “unsubstantiated assertions” do not meet the
non-movant’s burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific
facts which show “the existence of a genuine issue concerning every essential
component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343

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F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks omitted). In the
absence of any proof, the court will not assume that the non-movant could or would
prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence. See
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves
Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the
nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions
which are either entirely unsupported, or supported by a mere scintilla of evidence.
Id. (citing Reaves Brokerage, 336 F.3d at 413).
III.

ANALYSIS
A.

Arbitrability

In connection with their cross-motions for summary judgment, the parties agree
on all essential facts and issues in this case, save two: (a) whether Albemarle violated
the CBA in contracting out laboratory positions; and (b) whether that issue must be
arbitrated. Both of these issues are questions of law, not fact. Because no material
facts are in dispute, the Court rules on the question of arbitrability.
“In determining whether the grievances at issue are arbitrable, [a court] must
examine the scope of the parties’ agreement, as reflected in the arbitration clause.”

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Paper, Allied-Indus. Chem. and Energy Workers Int’l Union, Local 4-12 v. Exxon
Mobil Corp., 657 F.3d 272, 275 (5th Cir. 2011) (“PACE”). This Court is obligated
to enforce the agreement between Albemarle and Local 6000 “according to its terms.”
Id. at 276 (internal citations omitted). Where, as here, parties have limited the scope
of arbitrable issues, a court must ensure that only those agreed upon issues are
compelled to arbitration. See id.2
It is decidedly the province of this Court to determine whether a dispute is
subject to arbitration. AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 651 (1986) (“It was for the court, not the arbitrator, to decide in the first instance
whether the dispute was to be resolved through arbitration.”). There are several longstanding principles to guide this Court’s analysis. 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 648 (quoting United Steelworkers of Am. v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)). Second, whether or not
a claim should be arbitrated is for the court, and not the arbitrator, to decide. Id. at
649. Third, in addressing a motion to compel arbitration, a court should not rule on
the merits of the underlying case. Id. at 649-50. Fourth, and finally, all doubts as to
2

Neither party disputes the existence of a valid contract or arbitration agreement. The
only dispute concerns the applicability of the arbitration provision in this case, a
matter of pure contract interpretation. Thus, the Court does not consider here the
validity of the arbitration agreement itself.

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arbitrability “should be resolved in favor of coverage”—that is, our interpretation of
the arbitration clause should be rendered with a presumption of arbitrability. Id. at
650; see also Int’l Bhd. of Elec. Workers, Local Union No. 716, AFL-CIO v.
Albemarle Corp., No. H-10-5063, 2011 WL 5450902, at *2-3 (S.D. Tex. Nov. 8,
2011), aff’d, 478 F. App’x 861 (5th Cir. 2012) (summarizing AT & T principles).
The CBA between Albemarle and Local 6000 distinguishes between
“grievances” and “complaints.” “Grievances” encompass “any dispute between the
COMPANY and the UNION involving the proper application of, interpretation of, or
compliance with” the CBA. CBA [Exh. A-1 to Doc. # 14-1], Art. V, § 2.
“Complaints” do “not involve a violation of the bargaining agreement.” Id. Both
grievances and complaints are processed pursuant to a similar three-step internal
procedure. Id., Art. V, § 3. Grievances, however, may proceed to arbitration after the
internal three-step procedure has been exhausted, see id., Art. V, § 8, whereas
complaints “shall not be subject to arbitration,” id., Art. V, § 2. If a claim is
arbitrated, “[t]he 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 [i.e., the CBA] . . .” Id., Art. V,
§ 8.

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Not all claims styled as “grievances” are necessarily subject to arbitration under
the CBA. As noted, both grievances and complaints are processed through the same
internal procedure. Moreover, the CBA prohibits the filing of a complaint “which
falsely cites a contract violation merely for the purpose of elevating the complaint to
grievance status.” Id., Art. V, § 2.
Albemarle contends that Grievance No. 12-05 is a “complaint” and that Local
6000 “falsely cites a contract violation” for the purposes of impacting the arbitrability
of the claim. Plaintiff’s Brief [Doc. # 22], at 6. According to Albemarle, no contract
violation occurred because the company had the right under the CBA to contract out
the positions. Id. at 6-7. Albemarle contends that because it had the right to contract
out these positions, the Union’s attempt to assert a claim under the CBA is “falsely
citing” to a CBA provision in order to obtain grievance status. Id. at 4 (“As Local
6000 has no evidence with which to dispute any fact which could limit Albemarle’s
retained right to contract out under Article XX of the CBA, Local 6000’s Grievance
No. 12-05 constitutes a non-arbitrable complaint, such that summary judgment in
Albemarle’s favor should be granted.”) (emphasis in original).
Albemarle’s arguments are unavailing. It is not the Court’s role to decide the
merits of the Union’s underlying claim.3 AT & T Techs., 475 U.S. at 649-50. Local
3

The Court recognizes that the Fifth Circuit has permitted courts, when necessary, to
touch on the merits of a dispute to the extent that it is needed to construe an arbitration

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6000’s claim turns on the “application of, interpretation of, or compliance with” the
CBA—namely, whether Albemarle’s hiring non-Union workers in laboratory
positions violated Article XX. Whether Grievance No. 12-05 alleges a colorable
violation of the CBA or whether Albemarle’s actions were otherwise permissible “can
only be determined by interpreting and applying the CBA,” and “[u]nder the CBA
these questions are for the arbitrator.” Int’l Bhd. of Elec. Workers, Local Union No.
716, AFL-CIO v. Albemarle Corp., No. H-10-5063, 2011 WL 5450902, at *4 (S.D.
Tex. Nov. 8, 2011), aff’d, 478 F. App’x 861 (5th Cir. 2012); see also id. (“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.”). The CBA at issue here contains the same “grievance” and “complaint”
definitions as the CBA in International Brotherhood.4 As the Honorable Sim Lake
noted in that case, the CBA “defines grievance liberally.” Int’l Bhd., 2011 WL
5450902, at *3.
In support of its interpretation of Grievance No. 12-05, Albemarle cites the
Fifth Circuit’s decision in Paper, Allied-Industrial Chemical and Energy Workers

provision. See PACE, 657 F.3d at 277 & n.14. However, the arbitration provision at
issue here is clear, and no merits analysis is necessary.
4

Compare CBA [Exh. A-1 to Doc. # 14-1], Art. V, § 2, with, Int’l Bhd. of Elec.
Workers, Local Union No. 716, AFL-CIO v. Albemarle Corp., No. H-10-5063, CBA
[Ex. A-1 to Doc. # 16-1], Art. VI(B).

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International Union, Local 4-12 v. Exxon Mobil Corp., 657 F.3d 272 (5th Cir. 2011)
(“PACE”), for the proposition that “the Court in the instant case must determine
whether Local 6000 is urging a good faith violation of the CBA,” which necessarily
entails an assessment of the merits of Local 6000’s claim. Plaintiff’s Brief [Doc.
# 22], at 8-10. The cited aspect of the Fifth Circuit’s decision in PACE is inapposite,
as the Court of Appeals, in affirming the District Court, recognized in International
Brotherhood. See Int’l Bhd, 478 F. App’x 861, 863 (5th Cir. 2012), aff’g, 2011 WL
5450902 (S.D. Tex. Nov. 8, 2011). The CBA in PACE, as distinguished from the
CBA here, included “[t]he element of ‘good faith’ . . . in the arbitration clause.”
PACE, 657 F.3d at 275. That element served as a limitation on the types of claims the
parties had agreed to arbitrate, and the applicability of the limitation was for the court
to decide. Id. at 275-76; Int’l Bhd., 478 F. App’x at 863. No such limitation exists
in the CBA at hand. Thus, the question of whether Local 6000 has “urged a good faith
claim” or whether its prior conduct “demonstrate[s] Local 6000’s failure to raise a
good faith dispute,” Plaintiff’s Brief [Doc. # 22], at 11, is not presented.
Albemarle concedes that the parties’ CBA does not include the “good faith”
language. Instead, Albemarle seeks to equate the “falsely cites” language in Article
V, § 2 of the CBA with the “good faith” language in the PACE CBA. Plaintiff’s Brief
[Doc. # 22], at 8-10. This Court, like the Fifth Circuit and Judge Lake in International

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Brotherhood, rejects this contention and concludes that “good faith” and “falsely
cites” are not equivalent terms. See Int’l Bhd., 478 F. App’x at 863 (“Albemarle
claims that [PACE] requires this court to look beyond the grievance to ascertain the
actual issues the Union hopes to raise in its arbitration. PACE is not so broad in
scope. PACE involved a CBA that limited arbitration to ‘good faith claim[s] by one
party that the other party has violated a written provision of the [CBA].’”); Int’l Bhd.,
2011 WL 5450902, at *4 n.21 (“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.”). In the case at bar, the
arbitrator must decide whether Local 6000 is “falsely citing” Article XX as a hook to
obtain “grievance” status. This determination is part and parcel of the merits of
Albemarle’s contention of non-arbitrability. Unlike the “good faith” limitation in the
CBA at issue in PACE, the “falsely cites” evaluation is not for this Court. Accord,
Int’l Bhd., 478 F. App’x at 863 (“Further, the question of whether the Union is falsely
citing a contract violation merely for the purpose of elevating the complaint to
grievance status’ is a question for the arbitrator under the terms of the CBA.”).
Albemarle also urges this Court to focus on “Local 6000’s prior, failed attempts
to bring the issue of subcontracting to arbitration” as a sign of the Union’s “bad faith”

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in urging arbitration in this case. Plaintiff’s Response [Doc. # 23], at 14. As noted,
the concept of “bad faith” is not a consideration under the parties’ CBA. It is for the
arbitrator to decide whether Local 6000’s prior unsuccessful attempts to compel
arbitration concerning the issue of subcontracting are relevant to the merits of the
Union’s current claim. Issues relating to earlier proceedings (such as Grievances Nos.
09-17 and 09-21) are beyond the purview of this Court.
B.

Attorneys’ Fees

In its Motion for Summary Judgment, Local 6000 makes a request for
attorney’s fees, see Defendant’s Brief [Doc. # 15], at 22-23, which Albemarle has
opposed, see Plaintiff’s Response [Doc. # 23], at 16 n.15. While 29 U.S.C. § 185 does
not itself provide for an award of attorney’s fees, a court may, in its discretion, award
attorney’s fees when “the losing party has acted in bad faith, vexatiously, wantonly,
or for oppressive reasons.” Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S.
240, 258-59 (1975). Local 6000 has not presented any evidence of Albemarle’s bad
faith. Accordingly, the Court, in its discretion, denies Defendant’s request for
attorney’s fees.
IV.

CONCLUSION
For the foregoing reasons, it is hereby

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ORDERED that Plaintiff’s Motion for Summary Judgment [Docs. # 21 and 22]
is DENIED. It is further
ORDERED that Plaintiff’s Motion for Discovery [Doc. # 12] and Motion to
Strike Defendant’s “Supplemental Response” to Motion for Discovery and
Incorporated Brief in Support [Doc. # 18] are DENIED as moot. It is further
ORDERED that Defendant’s Motion for Summary Judgment [Docs. # 14 and
15] is GRANTED, except as to any request for attorney’s fees. The case is
DISMISSED with prejudice.
A final judgment will be filed separately.
SIGNED at Houston, Texas, this 8th day of October, 2013.

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