United States District Court, D. Alaska
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1547, AFL-CIO, Plaintiff,
v.
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., Defendant.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 11 is Plaintiff International Brotherhood
of Electrical Workers, Local Union No. 1547's
(“IBEW 1547”) Motion for Summary Judgment.
Defendant Alaska Communications Systems Holdings, Inc.
(“Alaska Communications”) responded in opposition
at Docket 16. IBEW 1547 replied at Docket 19. Also before the
Court, at Docket 14, is Alaska Communications' Motion for
Summary Judgment. IBEW 1547 responded in opposition at Docket
17, and filed an amended opposition at Docket 18-1. Alaska
Communications replied at Docket 20. Oral argument was not
requested and was not necessary to the Court's
determination.
BACKGROUND
IBEW
1547 and Alaska Communications are parties to a Collective
Bargaining Agreement (“CBA”).[1] Alaska
Communications is a telecommunications service provider and
IBEW 1547 is the Alaskan affiliate of the International
Brotherhood of Electrical Workers.[2] IBEW 1547 is the
“certified bargaining agent for all [Alaska
Communications'] employees within the job classifications
included in the designated bargaining unit” and the CBA
“sets forth wages, hours, and other terms and
conditions of employment of all of [Alaska
Communications'] employees in the Bargaining
Unit.”[3]
A.
Provisions of the Collective Bargaining Agreement
The
following provisions of the CBA are relevant to the
parties' dispute:
Article I - Purpose, Scope, Duration, and General
Provisions
Section 1.3 Scope of Agreement:
This Agreement is applicable, within the State of Alaska, to
all work within the scope of those job descriptions listed in
the wage schedule in Appendix 1 and will be applicable to
other positions or job classifications as agreed between the
Union and Company.[4]
Section 1.9 Recognition:
The Company recognizes the Union as the exclusive bargaining
agent for the purpose of collective bargaining with respect
to wages, hours and other terms and conditions of employment
for all employees in the bargaining unit consisting of the
job classifications in this Agreement.
. . .
(B) If the Company purchases or acquired the assets of an
entity not signatory to the IBEW, or the Company creates an
Alaskan subsidiary, or obtains controlling interest in an
Alaska-based joint venture or other business, the Company
agrees to extend voluntary recognition to the IBEW upon an
appropriate showing of IBEW's majority support among any
group of employees employed by such entities eligible for
representation. Thereafter, such employees shall be
integrated by the Parties into appropriate classifications
covered by this Agreement. Voluntary recognition also will be
granted if IBEW demonstrates majority support among any
employees of the Company eligible for representation who are
not currently in the Bargaining Unit.[5]
Article IV - Grievance and Arbitration
Process
Section 4.1 Purpose:
The purpose of this procedure is to provide a means whereby
complaints and grievances may be adjusted or resolved
promptly and fairly.[6]
Section 4.3 Definitions and Presentation of
Grievances:
“Grievances” shall mean, and be limited to,
disputes or differences arising under the term of this
Agreement between the Company and the Union, or employees so
represented, with respect to the interpretation or
application of any specific provision of this Agreement. . .
.
The grievance shall be processed in accordance with the
following steps:
Step 1
Within five working days after the grievance is presented at
Step 1, a meeting shall be held with the grievant, the
department head of the activity, or designated
representative, and the appropriate Shop Steward, or
designated representative. The department head shall make a
reply in writing not later than five working days after the
meeting. If this reply is unsatisfactory, the grievance may
be appealed to Step 2 provided such appeal is made within
five working days following the receipt of the reply.
Step 2
Within ten working days after the grievance is appealed to
Step 2, a meeting shall be held between the appropriate Vice
President of the Company, or designated representative and
the Chief Shop Steward or designated representative. Written
documentation explaining reason for disagreement along with
any supporting information must be included with the
grievance appeal. The Vice President shall make a reply in
writing not later than five working days after meeting with
the Union's representative. If this reply is
unsatisfactory, the Union will provide written notice to the
Vice President of Human Resources within ten working days
following receipt of the Step 2 reply. The Union will have up
to 20 working days to complete its internal review process.
If after its review process is completed the Union wishes to
advance the grievance further, the Union shall submit a
written request to the Vice President of Human Resources for
a meeting of the Grievance Review Committee (GRC). The GRC
will be convened within ten working days of receipt of the
written request from the Union. If the grievance is not
resolved by the GRC, the grievance may be appealed to
arbitration provided written notice of such appeal is given
to the Vice President of Human Resources within ten working
days following meeting of the GRC.[7]
Section 4.4 Arbitration
. . .
The Parties agree that the decision or award of the
arbitrator shall be final and binding on each of the Parties
and that they will abide thereby, subject to such laws, rules
and regulations as may be applicable. The authority of the
arbitrator shall be limited to determining questions directly
involving the interpretation or application of specific
provisions of this Agreement, and no other matter shall be
subject to arbitration hereunder. The arbitrator shall have
no authority to add to, subtract from, or to change any of
the terms of this Agreement, to change an existing wage rate,
or to establish a new wage rate. In no event shall the same
question be the subject of arbitration more than
once.[8]
B.
The Parties' Dispute
The
parties' dispute centers around a group of Alaska
Communications' employees, the majority of whom work and
reside in Oregon. IBEW 1547 seeks their inclusion under the
terms of the CBA but Alaska Communications maintains that the
CBA does not apply outside of the State of Alaska, and thus,
does not apply to the employees in question. The events
between the parties unfolded as follows:
On or
about August 3, 2018, IBEW 1547 requested that Alaska
Communications participate in a card check and voluntary
recognition process for a group of employees in
Oregon.[9] On August 22, 2018, Alaska Communications
denied the request.[10] Shortly thereafter, IBEW 1547 filed a
petition for a self-determination election with the National
Labor Relations Board (“NLRB”) on behalf of the
group of employees.[11] The parties had a hearing before the
NLRB beginning on September 18, 2018.[12] On December
18, 2018, a regional director of the NLRB issued a ruling
finding that the defined group of employees[13]
“constitute[s] an appropriate voting group for the
purpose of collective bargaining as part of the existing
Alaska Unit” and that a “self-determination
election will be ordered for these
employees.”[14] The group in question was made up of the
twelve employees in Oregon, as well as two employees in
Alaska added by the regional director.[15]
Alaska
Communications filed a request for review of the decision,
but the NLRB denied the request finding “no substantial
issues warranting review.”[16]While the request for
review was pending, as well as after it was denied, IBEW 1547
requested that Alaska Communications negotiate terms for the
newly integrated employees.[17] Each time, Alaska
Communications refused to negotiate or declined to
answer.[18] On January 30, 2019, the NLRB conducted
a ballot count and the voting group elected to be represented
by the Union and be integrated into the existing bargaining
unit.[19]
In the
interim, IBEW 1547 hired a neutral third party to conduct a
card count for the voting group, which took place on January
11, 2019.[20] The card count confirmed that there was
majority support for representation among the
employees.[21] On January 28, 2019, with that
confirmation in hand, IBEW 1547 requested voluntary
recognition for the group of employees under Section 1.9(B)
of the CBA.[22] Alaska Communications denied voluntary
recognition.[23]
On
February 7, 2019, IBEW 1547 filed a grievance pursuant to
Article IV of the CBA.[24] The parties engaged in the stepwise
process laid out therein: they held Step I and a Step II
grievance meetings, Alaska Communications provided responses,
[25]
and the parties held a Grievance Review Committee
meeting.[26] The process culminated on April 10,
2019, when IBEW 1547 notified Alaska Communications that it
was submitting the grievance to arbitration.[27] On April 17,
2019, Alaska Communications responded: “[a]s the work
in question is not within the State of Alaska it does not
fall under the scope of the collective bargaining agreement .
. . and is therefore not subject to the grievance and
arbitration process of the CBA.”[28] On May 17,
2019, after IBEW 1547 had requested and received a list of
arbitrators from the American Arbitration Association
(“AAA”), [29] Alaska Communications reiterated to
IBEW 1547 that it “will not arbitrate this issue [as
it] . . . is both substantively and procedurally
inarbitrable.”[30] On May 20, 2019, IBEW 1547 notified
Alaska Communications that, absent agreement to arbitrate by
the end of that week, it would file suit to compel
arbitration.[31]
On June
5, 2019, IBEW 1547 commenced this action seeking an order
“to select an arbitrator without delay and arbitrate
[the grievance] . . . as provided in Article IV of the
collective bargaining agreement.”[32] On July 3,
2019, Alaska Communications answered and brought a
counterclaim for declaratory judgment that “an
arbitrator does not have the authority to extend the terms of
the [CBA] outside the state of Alaska, and that Plaintiff may
not compel Defendant to arbitrate any claims by Plaintiff to
represent any employees outside the state of
Alaska.”[33]Alaska Communications also seeks an
injunction barring IBEW 1547 from seeking to arbitrate this
dispute.[34] On July 30, 2019, IBEW 1547 filed the
instant motion for summary judgment. On August 19, 2019,
Alaska Communications filed its cross-motion for summary
judgment on its counterclaim.
LEGAL
STANDARD
I.
Motion for Summary Judgment
Federal
Rule of Civil Procedure 56(a) directs a court to grant
summary judgment if the movant “shows that there is no
genuine dispute as to any material fact and the movant is
entitled to a judgment as a matter of law.” An issue is
“genuine” if there is a sufficient evidentiary
basis on which a reasonable fact-finder could find for the
non-moving party and a dispute is “material” if
it could affect the outcome of the suit under the governing
law.[35] When considering a motion for summary
judgment, “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.”[36]
II.
Arbitrability
The
question of whether the parties have “submitted a
particular dispute to arbitration . . . is ‘an issue
for judicial determination [u]nless the parties clearly and
unmistakably provide otherwise.”[37] The
“function of the court is . . . confined to
ascertaining whether the party seeking arbitration is making
a claim which on its face is governed by the contract.
Whether the moving party is right or wrong is a question of
contract interpretation for the
arbitrator.”[38]
Thus,
“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.”[39] In so deciding, a court should determine
whether there is an arbitration provision in the agreement,
and whether the disputed issue is arbitrable.[40] The Ninth
Circuit has “stressed that [the court] look only to the
contract's arbitration clause, rather than to the
substantive provisions of the agreement, to determine whether
a dispute is arbitrable.”[41]
“In
disputes involving a collective bargaining agreement with
arbitration provisions, the arbitrability inquiry begins with
a presumption of arbitrability”[42] and
“[a]rbitration is to be ordered ‘unless it may be
said with positive assurance that the arbitration
clause is not susceptible of an interpretation that covers
the asserted dispute.'”[43] The presumption in favor
of arbitrability is “particularly applicable where the
clause is . . . broad, ”[44] and “doubts should be
resolved in favor of coverage.”[45]
Then,
“once it is determined . . . that the parties are
obligated to submit the subject matter of a dispute to
arbitration, ‘procedural' questions which grow out
of the dispute and bear on its final disposition should be
left to the arbitrator.”[46]
DISCUSSION
The
question before the Court is whether the parties' dispute
over self-recognition of a group of employees working and
residing in Oregon is arbitrable. The Court must determine
first whether the parties have an agreement to arbitrate, and
next, whether the particular dispute is
arbitrable.[47]
The
parties undisputedly have an agreement to arbitrate: Article
IV of the CBA sets forth the stepwise process for resolving
grievances that culminates in arbitration.[48] Grievances
are defined as “disputes or differences arising during
the term of this Agreement between the Company and the Union,
or employees so represented, with respect to the
interpretation or application of any specific provision of
this Agreement.”[49] The arbitration clause provides,
among other things, that the “Parties agree that the
decision or award of the arbitrator shall be final and
binding” and that “[t]he authority of the
arbitrator shall be limited to determining questions directly
involving the interpretation or application of specific
provisions of [the] Agreement, and no other matter shall be
subject to arbitration.”[50]
Thus,
the question remaining for the Court is whether the
particular dispute between the parties is arbitrable. The
parties agree that the Court's role is limited to
interpretation of the arbitration provision; they differ only
in how it should be interpreted.[51] However, both parties
also presented arguments in the alternative with respect to
the proper interpretation of the CBA's substantive
provisions. Finally, the parties dispute the implication of
the parallel proceedings initiated by IBEW 1547 for
self-determination before the NLRB. The Court addresses each
issue in turn.
I.
Arbitrability of the Grievance
IBEW
1547 contends that because the arbitration clause of the CBA
is broad and does not expressly exclude any grievances from
arbitration, that a dispute over the meaning of Section
1.9(B) is a grievance subject to arbitration.[52] It maintains
that in evaluating arbitrability, the Court may not consider
Section 1.3 of the CBA governing scope, as doing so would
require the Court to interpret the substance of the
contract's provisions.[53] IBEW 1547 reasons that Section
1.3 is substantive and can only be understood in the context
of the CBA as a whole, including undisputedly substantive
provisions such as Section 1.9(B), which allows for expansion
of the scope of the CBA.[54]
Alaska
Communications disagrees, and contends that the Court cannot
compel arbitration of a dispute that the parties did not
agree to arbitrate.[55] It insists that IBEW 1547's
grievance involves employees who do not live or work in
Alaska and that Section 1.3 of the CBA “confirms that
neither the Agreement itself nor the grievance procedure
contained therein apply outside the state of
Alaska.”[56] Thus, Alaska Communications concludes,
“[t]he Agreement is simply not applicable to these
employees” and “the grievance and arbitration
provisions cannot apply.”[57]Moreover, Alaska
Communications maintains that Section 1.3 “defines the
applicability of the contract as a whole, including the
arbitration clause, ”[58] and that disregarding that
section's import would require that “the
arbitration provision's scope somehow exceeds
the scope of the contract itself!”[59] Indeed,
Alaska Communications contends that compelling arbitration,
as IBEW 1547 requests, would require the Court to
“impose a substantive bargaining outcome on the
parties” by applying “the entire existing CBA to
the unrepresented group.”[60]
Alaska
Communications further maintains that IBEW 1547 is asking the
Court to compel arbitration on the basis of conclusory
“magic words”-i.e. that the dispute is
arbitrable.[61] Alaska Communications contends that if
it were enough to render a dispute arbitrable to simply claim
it is so, the result would be “absurd” because it
would allow a party to force arbitration “over
anything.”[62] It queries “whether a union may
force an employer to submit a matter to arbitration purely
through semantics by placing a label on an event to disguise
a non-arbitrable claim as an arbitrable
one.”[63] Alaska Communications cites two cases in
support: Local Union No. 787, International Union of
Electrical, Radio and Machine Workers AFL-CIO v. Collins
Radio Co.[64] and Construction Industry Employers
Association v. Local Union No. 210, Laborers International
Union of North America, AFL-CIO.[65]In Collins
Radio, a union sought to arbitrate a dispute over
discriminatory denial of seniority rights, a grievable
issue.[66] However, the Fifth Circuit found that
the dispute was not arbitrable because it was actually a
dispute about the company's refusal to rehire employees,
which was not a grievable issue because it was expressly
excluded from the grievance process.[67] Similarly, in
Construction Industry, a union sought to
arbitrate a grievance about whether its members should have
been assigned work, but the Second Circuit affirmed the
district court's determination that the underlying
dispute was jurisdictional and non-arbitrable, despite the
union's characterization otherwise.[68] IBEW 1547
seeks to distinguish these cases on the basis that in both,
the controlling agreement expressly excluded the disputed
issue from the grievance process.[69]
Finally,
Alaska Communications asks the court for declaratory judgment
and a permanent injunction barring IBEW 1547 from seeking
arbitration of this grievance.[70] IBEW 1547 disputes that
declaratory judgment is appropriate, noting that it would
require addressing the merits of the dispute.[71] It also
disputes that Alaska Communications would suffer irreparable
injury in the absence of injunctive relief.[72]
At its
core, the parties' dispute centers on the interpretation
of Section 1.9(B): IBEW 1547 interprets the provision as
extending to the group of employees in Oregon, whereas Alaska
Communications interprets it as limited to employees in
Alaska. Thus, the dispute is about “the interpretation
or application of [a] specific provision of [the] Agreement,
” namely Section 1.9(B), and is therefore a grievance
as defined in the CBA.[73] Article IV of the CBA provides a
procedure for resolving grievances, which culminates in
arbitration.[74] Indeed, Alaska Communications followed
all the other steps of the grievance process, refusing only
to participate in arbitration.[75] Because the parties'
dispute over the scope and application of Section 1.9(B) is a
grievance as defined by the CBA, arbitration is appropriate.
In
determining arbitrability, the Court is to “look only
to the contract's arbitration clause,
”[76] and nothing in the arbitration clause
excludes a dispute about the scope or effect of Section
1.9(B). Indeed, the Ninth Circuit has previously
characterized similar arbitration and grievances provisions
as “very broad.”[77]Thus, the presumption of
arbitrability is particularly strong and “[d]oubts
should be resolved in favor of coverage.”[78]
Unlike
the arbitration provisions in the agreements in Collins
Radio and Construction Industry, Article IV of
the CBA does not carve out the disputed issue.[79] Although
Alaska Communications contends that Section 1.3 unambiguously
excludes from arbitration under Article IV any disputes
involving out-of-state employees by limiting the agreement to
the State of Alaska, the Court disagrees. Section 1.3 does
not carve out from arbitration disputes between the parties
over the meaning of the Agreement's provisions; indeed,
it does not mention arbitration or grievances at all. To the
extent that ...