United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 31]
JOHN
W. SEDWICK SENIOR JUDGE.
I.
MOTION PRESENTED
At
docket 31 defendants International Longshore and Warehouse
Union (“ILWU”), Alaska Longshore Division and
ILWU Unit 223 (collectively, “the Union”) move
pursuant to Federal Rule of Civil Procedure 12(b)(6) for an
order dismissing the Amended Complaint of plaintiffs Alaska
Maritime Employers Association, American President Lines,
LTD, and Matson Lines (collectively, “AMEA”).
AMEA opposes at docket 41;[1] the Union replies at docket 42. Oral
argument was not requested and would not assist the court.
II.
BACKGROUND
AMEA is
an association of two companies that conduct maritime
shipping and dock operations in Dutch Harbor and other Alaska
ports. The Union represents AMEA's employees. AMEA and
the Union have entered into a collective bargaining agreement
(“CBA”) known as the All Alaska Longshore
Agreement (“AALA”). The AALA contains a no-strike
clause.[2] AMEA alleges that the Union has breached
this clause “[o]n one or more occasions, including on
August 18, 2015.”[3]
AMEA
brings this action for damages under § 301(a) of the
National Labor Relations Act
(“NLRA”).[4] The Union seeks dismissal under Rule
12(b)(6), arguing that the AALA requires AMEA to arbitrate
its grievance.
III.
STANDARD OF REVIEW
Rule
12(b)(6) tests the legal sufficiency of a plaintiff's
claims. In reviewing such a motion, “[a]ll allegations
of material fact in the complaint are taken as true and
construed in the light most favorable to the nonmoving
party.”[5] To be assumed true, the allegations,
“may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.”[6] Dismissal for failure to
state a claim can be based on either “the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”[7] “Conclusory
allegations of law . . . are insufficient to defeat a motion
to dismiss.”[8]
To
avoid dismissal, a plaintiff must plead facts sufficient to
“‘state a claim to relief that is plausible on
its face.'”[9] “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”[10] “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted
unlawfully.”[11] “Where a complaint pleads facts
that are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of entitlement to
relief.'”[12] “In sum, for a complaint to
survive a motion to dismiss, the non-conclusory
‘factual content, ' and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.”[13]
IV.
DISCUSSION
“[A]rbitration
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.”[14] In light of congressional policy that
favors arbitration of disputes, however, if parties to a CBA
dispute whether a grievance is covered by the CBA's
arbitration clause and that clause is ambiguous, a rebuttable
presumption in favor of arbitrability applies.[15] Under this
presumption Courts should order arbitration “unless it
may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers
the asserted dispute. Doubts should be resolved in favor of
coverage.”[16] If the court determines that an asserted
dispute is covered by a mandatory arbitration clause, it may
dismiss the case under Rule 12(b)(6).[17]
Courts
apply federal common law principles of contract
interpretation when construing a CBA.[18] The starting
point for the court's analysis is the CBA's express
written terms, considering the CBA as a whole.[19] For purposes
of the present motion, the most pertinent section of the AALA
is Section 11, entitled, “Disputes and Grievance
Procedure[, ] Joint Port Labor Relations
Committee.”[20] Subsection 5 of Section 11 is the
AALA's arbitration clause. It reads as follows:
The grievance procedure of this Agreement shall be the
exclusive remedy with respect to any disputes arising between
the Union or any person working under this Agreement or both,
on the one hand, and any Employer acting under the Agreement
on the other hand, and no other remedies shall be utilized by
the person with respect to any dispute involving this
Agreement until the grievance procedure has been
exhausted.[21]
The
Union's interpretation of this run-on sentence focuses on
its first clause, which states that the AALA's grievance
procedure is the exclusive remedy with respect to “any
disputes” between the Union/any employee and any
employer. Because AMEA's grievance is a dispute between
the employers and the Union, this action is covered under
Section 11.5's first clause.
AMEA
focuses on the second clause, which states that “the
person” may not use any remedies other than those found
in the AALA until “the grievance procedure has been
exhausted.” According to AMEA, this language limits the
scope of the arbitration clause to “the person, ”
which it interprets as “the person working under the
AALA, ” because it does not state that “the
Union” or “the Employer” are prohibited
from using other remedies until contractual remedies are
exhausted.
The
court finds AMEA's interpretation unpersuasive for three
reasons. First, the word “and” separates the
first and second clauses, meaning that the second clause adds
to the first, not limits it. Second, the first clause is
broad-it covers all of an employer's grievances against
its employees/the Union and vice versa. It is unlikely that
the parties intended to negate this sweeping language by mere
inference in the next clause, as AMEA argues. And third, the
crux of AMEA's argument is that “the person”
excludes both the Union and the employers because “the
person” means “the employee.” But when both
clauses of Section 11.5 are considered together, a more
natural interpretation is that “the person” means
“the person who initiated the dispute.” Under
this interpretation, the arbitration clause provides that the
grievance procedure is the exclusive remedy for all disputes
between labor and employer, and no one may utilize other
remedies without first exhausting that
procedure.[22]
AMEA
challenges this interpretation by pointing to two other
sections of the AALA that, it argues, shows that the parties
intended to exclude employer-brought grievances from
mandatory arbitration. AMEA first draws the court's
attention to Subsection 59 of Section 11, which states that
“[t]he Union representative on the job shall take the
grievance or dispute promptly to the Employer representative
in charge of the operations. Such dispute shall immediately
be set forth by both parties in writing, stating the
adjudication thereof, if any.”[23] This language
“establishes the ‘first step' procedure for
grievances, ” AMEA argues. And because it does not
apply to employer-brought grievances, the AALA's
grievance procedure is oriented only to employee-initiated
disputes.[24]
This
argument relies on the doctrine that an employer is not bound
to follow a CBA's grievance procedure where that
procedure is wholly employee oriented.[25] In
Standard Concrete v. General Truck Drivers, the
Ninth Circuit held that a CBA's three-step grievance
procedure was wholly employee oriented, even though the third
step could arguably apply to employer-initiated grievances,
because the three steps were chronological and the first two
steps referred only to employee-initiated
grievances.[26]Because a party could not “reach
Step Three without exhausting Steps One and Two, ” the
court held that Step Three could not possibly refer to
“the way a ...