American Federation of State, County and Municipal Employees Florida Council 79 v. GCA Services Group, Inc

UNITED STATES DISTRICT COURT _

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

AMERICAN FEDERATION OF

STATE, COUNTY AND

MUNICIPAL EMPLOYEES

FLORIDA COUNCIL 79,

Petitioner,

V. . Case No. 3:19-cv-1091-J-32MCR

GCA SERVICES GROUP, INC,

Respondent.

ORDER

This case is before the Court on Petitioner's Motion to Confirm

Arbitration Award (Doc. 1). On September 30, 2020, the assigned United States

Magistrate Judge issued a Report and Recommendation (Doc. 17)

recommending that the Petition be granted to the extent that it seeks remand

and otherwise denied in all respects, and that this matter be remanded to the

arbitrator for clarification of the arbitration award. No party has filed an

objection to the Report and Recommendation, and the time in which to do so

has passed. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); M.D. Fla. R. 6.02(a).

Upon de novo review of the file and for the reasons stated in the Report and

Recommendation (Doc. 17), it is hereby

ORDERED:

1. The Report and Recommendation of the Magistrate Judge (Doc. 17)

is ADOPTED as the opinion of the Court.

2. Petitioner’s Petition to Confirm Arbitration Award (Doc. 1) is

GRANTED to the extent that it seeks remand and DENIED in all other

respects.

3. This matter is REMANDED to Arbitrator John R. Lee for

clarification of the arbitration award. The Arbitrator is directed to the Report

and Recommendation, attached hereto, for guidance as to the issue on remand.

DONE AND ORDERED in Jacksonville, Florida the 27th day of

October, 2020.

[anHh,

TIMOTHY J. CORRIGAN

United States District Judge

tnm

Attachment: Report and Recommendation

Copies to:

Honorable Joel B. Toomey

United States Magistrate Judge

Counsel of record

DK OP ade dN ON ce SID he BD Net I er PNR OO OI A AY OOS

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

AMERICAN FEDERATION

OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES

(“AFSCME”) FLORIDA

COUNCIL 79, AFL-CIO,

Petitioner,

Vv. CASE NO. 3:19-cv-1091-J-32MCR

GCA SERVICES GROUP, INC.,

Respondent.

/

REPORT AND RECOMMENDATION’

THIS CAUSE is before the Court on Petitioner's Petition to Confirm

Arbitration Award (“Petition”) (Doc. 1), Respondent’s Response thereto (Doc. 11),

Petitioner's Brief in Support of the Petition (Doc. 15), and Respondent's Brief in

Support of Denying the Petition (Doc. 14). The Petition was referred to the

undersigned for a report and recommendation regarding an appropriate resolution.

(Doc. 16.)

1 “Within 14 days after being served with a copy of [this Report and

Recommendation], a party may serve and file specific written objections to the proposed

findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “A party may respond to

another party’s objections within 14 days after being served with a copy.” /d. A party’s

failure to serve and file specific objections to the proposed findings and recommendations

alters the scope of review by the District Judge and the United States Court of Appeals

for the Eleventh Circuit, including waiver of the right to challenge anything to which no

specific objection was made. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th

Cir. R. 3-1; Local Rule 6.02.

PED he Ne ONE RNA A he DINNER OE OO AY PAY OU

At bottom, the parties disagree on the meaning of the arbitration award at

issue. In the alternative to confirming the award, Petitioner requests that the Court

remand the matter to the arbitrator for clarification if the Court finds that the award

is ambiguous. The undersigned recommends that the award is ambiguous and

requires clarification from the arbitrator. Thus, for the reasons set forth herein, the

undersigned respectfully RECOMMENDS that the Petition be GRANTED only to

the extent that it seeks remand and DENIED in all other respects, and that this

matter be remanded to the arbitrator for clarification of the arbitration award.

I. Background

Petitioner is a union that represents custodial workers for Duval County

Public Schools (“DCPS”) who are employed by Respondent. (Doc. 1 at 2.) The

parties entered into a Collective Bargaining Agreement (“CBA”) (Doc. 1-1) that set

starting pay rates for custodians. (/d. at41; Doc. 14-2 at 2.) The CBA also required

that any raises approved by DCPS be passed through to the custodians employed

by Respondent. (Doc. 1-1 at 43.) Respondent passed the subject raises on to its

current employees, but it did not apply those raises to the starting rates of pay set

forth in the CBA. (Doc. 14 at 4.) Petitioner filed a grievance arguing that the raises

must be applied to starting pay rates, and the matter proceeded to arbitration as

required by the CBA. (Doc. 1 at 2; Doc. 1-2.)

Arbitrator John R. Lee was asked to determine whether the CBA requires

Respondent to apply the subject raises to starting pay rates. (Doc. 1-2 at 101.)

The arbitrator's award does not directly address the issue. (See id. at 104.) Asa

RR Ne Nee Be Na NA EN OE EVE PN LRP Re EL □□ PURER USE IE PO SE FAY IL OU

result, Respondent has not adjusted its employees’ pay to reflect raises in starting

pay rates because it does not believe that the award requires it to do so. (Doc. 14

at 4.) Petitioner believes the award requires that adjustment. (Doc. 15 at 2-3.)

Petitioner now moves to confirm the award and asks the Court to “direct

Respondent to make the pay adjustments as required by the Award.” (Doc. 1;

Doc. 15 at 10.) Alternatively, if the Court finds that the award is ambiguous,

Petitioner requests that this matter be remanded to the arbitrator for clarification.

(Doc. 1 at 3; Doc. 15 at 9-10.) Respondent argues that it is in compliance with the

award and, alternatively, if the award is interpreted in Petitioner's favor, it should

be vacated because the arbitrator exceeded his authority. (Doc. 14.)

Me Applicable Law

As the Eleventh Circuit has stated:

At the outset it is appropriate to recognize that the

decision for which the parties bargained and the one to

which they are entitled is that of the arbitrator. Neither

the notions of the district court nor of this court as to the

appropriate resolution of [the subject] grievance are of

relevance. It is impermissible for courts to usurp the

functions of the arbitrator by reviewing the merits of the

award or construing its meaning.

We have recognized that when terminology in an

arbitrator's award can be interpreted in a variety of ways

the normal course of action is for the district court to

remand the matter to the original arbitrator for

clarification. .. . Even under other circumstances we

have required return of the case to the arbitrator when

necessary to assure that the parties were getting the

PN A ee NA Ee NAN ate NN Newt INN PX EEG IA NS OM EN FO Se UEP Tayo □□□

informed decision of the arbitrator for which they had

bargained.

Am. Fed. of State, Cty. and Municipal Emps. Local Lodge No. 1803 v. Walker Cty.

Med. Ctr, Inc., 715 F.2d 1517, 1518-19 (11th Cir. 1983) (quotations omitted). See

also Bakery, Confectionery and Tobacco Workers Local Union No. 362-T, AFL-

CIO-CLC v. Brown and Williamson Tobacco Corp., 971 F.2d 652, 655 (11th Cir.

1992) (“It is the duty of the arbitrator, and not the district court, to interpret the

contractual language of an agreement.”).

ill. Analysis

Article 17 of the CBA, titled “Wages,” states in relevant part:

2. Wage rates for the specified classifications shall be

set forth in Appendix B and attached hereto as part of this

Agreement.

3. Employees hired after the ratification date of this

Agreement or annual wage reopener (as applicable) shall

be hired at the starting rate for the particular Agreement

contract year, as set forth within Appendix B. The

starting rate will change with each year of this Agreement

and will be the lowest salary in each classification.

Appendix B will be updated each contract year of this

Agreement to reflect the current wage rates for each □

classification and will remain attached to this Agreement

as updated.

7. Any wage increase granted by Duval County

School Board to the Employer shall be passed along to

the Employees within thirty (30) days as soon as all the

wage increase requirements / stipulations have been

satisfied, which includes but is not limited to the School

Board, Accounting Department, and a signed Collective

Bargaining Agreement or Memorandum of

Net MADR A eb OLY ORS Ne MEV EE LAUER Gd ue CHM Wooo Faw wb fF Payee OT

Understanding (depending on the year in which any

wage increase is granted by the Duval County School

Board).

(Doc. 1-1 at 41-43.)

The issue jointly submitted by the parties to the arbitrator was as follows:

Whether or not GCA Service Group, Inc., violated the

collective bargaining agreement by failing to apply raises

approved by the Duval County School Board to the

starting wage rate for custodians?

(Doc. 1-2 at 101.)

The relevant portion of the arbitrator's award is as follows:

All Terms and conditions, as set forth in Article 17,

Wages, of the above stated agreement, shall be

unconditionally implemented, except where otherwise

stated therein, and appropriate adjustments made to all

affected employees that were in such subject capacities

during the decision time period.

at 104.)

The undersigned recommends that the award is ambiguous and that this

matter should be remanded to the arbitrator for clarification of the award.* As set

forth above, the question presented to the arbitrator required him to determine

whether Article 17 of the CBA requires Respondent to apply the subject pay raises

to starting rates of pay. (/d. at 101.) The award does not unambiguously answer

this question. (/d. at 104.)

? Because remand is recommended, the undersigned does not address the parties’

arguments regarding confirmation and vacatur of the award.

TD Ret SARS ae Nt oa SANE cles NE Need IN Ret PNR EA IE AY UOTE AYO OVO

As evidenced by the parties’ arguments, the ambiguous language of the

award can be interpreted in different ways. For example, Petitioner argues that

the inclusion of language requiring appropriate adjustments to employees’ pay

implies that adjustments are necessary because the subject raises should have

been applied to starting pay rates. (Doc. 15 at 4-5.) However, Respondent argues

that the award merely requires compliance with the terms and conditions of Article

17, which does not require the subject raises to apply to starting rates of pay. (Doc.

14 at 4.) Thus, Respondent contends that no adjustments are “appropriate”

because it is in compliance with Article 17. (/d.)

As set forth above, only the arbitrator can interpret the CBA and the

arbitration award. Because the award is ambiguous and subject to multiple

interpretations, the undersigned recommends that this matter be remanded to the

arbitrator to clarify the award. See Am. Fed. of State, Cty. and Municipal Emps.

Local Lodge No. 1803, 715 F.2d at 1518-19; Bakery, Confectionery and Tobacco

Workers Local Union No. 362-T, AFL-CIO-CLC, 971 F.2d at 655.

IV. Conclusion

Accordingly, it is respectfully RECOMMENDED that:

1. The Petition (Doc. 1) be GRANTED only to the extent that it seeks

remand and DENIED in all other respects.°

3 Although the Petition seeks attorneys’ fees, it provides no basis for such an

award. (See Doc. 1 at 3.) Moreover, Petitioner's Brief is silent regarding that request.

(See Doc. 15.) Thus, the undersigned recommends that attorneys’ fees should not be

awarded.

AOA ws STO MEV NN EPCEE OUD Wo oy Faye FU Et WIT

2. This matter be REMANDED to Arbitrator John R. Lee for clarification

of the arbitration award.

DONE AND ENTERED in Jacksonville, Florida, on September 30, 2020.

JOZLB.TOOMEY

United States Magistrate Judge

Copies to:

The Honorable Timothy J. Corrigan

United States District Judge

Counsel of Record