Opinion

Communications Workers of America, AFL-CIO v. ADT Security Services, Inc.

Court
District Court, E.D. Louisiana
Filed
Nov 16, 2022
Cited by
0 cases
Authority
More cited than 22.4%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

COMMUNICATIONS WORKERS OF CIVIL ACTION

AMERICA, AFL-CIO

VERSUS NO. 22-1310

ADT SECURITY SERVICES, INC. SECTION “R” (4)

ORDER AND REASONS

Before the Court is defendant ADT Security Services, Inc.’s motion to

dismiss plaintiff Communications Workers of America, AFL-CIO’s

complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).1 Plaintiff

opposes defendant’s motion.2 For the following reasons, the Court DENIES

defendant’s motion.

I. BACKGROUND

This case arises from a dispute over the scope of the arbitration

provision in the collective bargaining agreement (the “CBA”) between

plaintiff, a labor union that represents certain of defendant’s employees, and

defendant.

1 R. Doc. 10.

2 R. Doc. 13.

The CBA contains a “Mutual Recognition of Rights” provision at Article

1, Section 1, in which defendant formally recognizes plaintiff as the exclusive

bargaining representative for a subset of defendant’s employees. That

section provides:

The EMPLOYER hereby recognizes the UNION as the exclusive

bargaining representative with respect to rates of pay, wages,

hours and other conditions of employment for the employees in

the bargaining unit for whom the UNION was certified by the

National Labor Relations Board . . . including all full-time and

regular part-time employees classified by the EMPLOYER as

Servicemen and/or Installers employed by the EMPLOYER at

the facilities located in the State of Louisiana[.]3

Article 1, Section 1 goes on to explain that the bargaining unit “exclud[es] all

other employees, classified by [defendant] as Guards, office clerical

employees, professional employees, assistant managers, supervisors, relief

supervisors, foremen, assistant foremen, chief clerks, and all other

supervisors as defined in the Act.”4

The CBA also outlines a “Grievance Procedure” consisting of three

steps the parties must follow in the event of “a violation of the express terms

of the [CBA].”5 If the grievance is “not adjusted satisfactorily in Step 3, the

grievance shall be subject to arbitration as provided in Article 5.”6 Article 5,

3 R. Doc. 1-3 at 3 (CBA).

4 Id. at 3.

5 Id. at 6-7.

6 Id. at 7.

which governs arbitration under the CBA, provides that unresolved

grievances “involving and limited to the interpretation and application of any

specific provision of this agreement” may be submitted to arbitration by

either party.7 Article 5 also lists a series of issues that “shall not be

arbitrable,” including changes in business practice; matters involving capital

expenditures; and disputes regarding the plans covering pensions, disability

benefits, and health and death benefits.8 None of the express exceptions to

arbitration in Article 5 is applicable here.

This case involves a grievance that defendant “fail[ed] to apply the CBA

to employees hired by [defendant] into the bargaining unit covered by the

CBA.”9 Plaintiff alleges that after the grievance was initiated, the parties

“conferred at the first and second step of the grievance procedure,” but they

were ultimately “unsuccessful in resolving the grievance.”10 Plaintiff

“referred the grievance to the third step of the [grievance] procedure,” at

which point defendant “denied the grievance.”11

7 Id.

8 Id. at 8.

9 R. Doc. 1 at 2 ¶ 5.

10 R. Doc. 1 at 2-3 ¶ 5.

11 Id. at 3 ¶ 5.

Plaintiff then referred the grievance to arbitration and received a panel

of arbitrators.12 Consistent with Article 5 of the CBA, plaintiff contacted

defendant to begin the process of selecting an arbitrator, but defendant

allegedly “would not schedule a time to proceed with the selection process.”13

Defendant ultimately informed plaintiff that it refused to arbitrate the

grievance. Plaintiff alleges that it has tried to convince defendant to

arbitrate, but that defendant has continued to refuse.14 Plaintiff contends

that defendant’s failure to arbitrate the grievance violates Article 5 of the

CBA.15 Accordingly, plaintiff’s complaint seeks a permanent injunction to

compel defendant to submit the underlying grievance to arbitration.16

Defendant moved to dismiss plaintiff’s complaint on the grounds

plaintiff’s grievance is not arbitrable.17 Defendant contends that although

there is a general presumption of arbitrability when collective bargaining

agreements contain arbitration clauses, that presumption can be rebutted if

the grievance falls within an exception to the parties’ agreement to

12 Id. ¶ 6.

13 Id. ¶ 7.

14 Id. ¶ 8.

15 Id. at 4 ¶ 10.

16 Id. ¶ 11.

17 R. Doc. 10-1 at 7-9.

arbitrate.18 It argues that Article 1, Section 4 of the CBA creates such an

exception.19 That section provides:

The Union will not file grievances or petition the NLRB, or any

other state or federal agency, seeking clarification of the

bargaining unit. If any member of the bargaining unit or the

Union petitions the NLRB seeking unit clarification, the Union

will support ADT’s position, seeking dismissal, before the

board.20

Defendant contends that plaintiff’s grievance, which plaintiff characterizes

as a breach of contract dispute, actually seeks to clarify the bargaining unit

in contravention of Article 1, Section 4.

Plaintiff argues that its grievance does not seek clarification of the

bargaining unit.21 Rather, it challenges defendant’s failure to apply the CBA

to its newly hired employees in violation of Article 1, Section 1.22 Plaintiff

contends that the grievance thus involves “the interpretation and application

of” the CBA, which squarely fits within the scope of the arbitration

provision.23

The Court considers the parties’ arguments below.

18 Id.

19 Id. at 2.

20 R. Doc. 1-3 at 4.

21 R. Doc. 13 at 3.

22 Id.

23 Id. at 9.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. at 678. The Court

must accept all well-pleaded facts as true and must draw all reasonable

inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d

228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true

legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

On a Rule 12(b)(6) motion, the Court must limit its review to the

contents of the pleadings, including attachments. Brand Coupon Network,

L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court

may also consider documents attached to a motion to dismiss or an

opposition to that motion when the documents are referred to in the

pleadings and are central to a plaintiff’s claims. Id. “In addition to facts

alleged in the pleadings, however, the district court ‘may also consider

matters of which [it] may take judicial notice.’” Hall v. Hodgkins, 305 F.

App’x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc.,

78 F.3d 1015, 1017-18 (5th Cir. 1996)).

III. DISCUSSION

“The courts’ role is very limited when deciding issues of arbitrability.”

Paper, Allied-Industrial, Chem. and Energy Workers Int’l Union Local No.

4-2001 v. ExxonMobil Refining & Supply Co., 449 F.3d 616, 619 (5th Cir.

2006) (quoting Oil, Chem. & Atomic Workers’ Int’l Union, Local 4-447 v.

Chevron Chem. Co., 815 F.2d 338, 343 (5th Cir. 1987)). When a party seeks

to compel arbitration pursuant to a collective bargaining agreement, a court’s

function “is to decide whether the claim asserted is the type of claim the

parties have agreed to arbitrate.” Id. In other words, courts are “confined to

ascertaining whether the party seeking arbitration is making a claim which

on its face is governed by the contract.” Id.

Courts thus may not consider the merits of the underlying claim;

rather, “even if it appears to the court to be frivolous, the union’s claim that

the employer has violated the collective-bargaining agreement is to be

decided not by the court asked to order arbitration, but as the parties have

agreed, by the arbitrator.” AT&T Techs., Inc. v. Comms. Workers of Am.,

475 U.S. 643, 649-50 (1986). “An 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.” ExxonMobil, 815 F.3d at 620 (internal quotation marks

omitted). Doubts should thus be “resolved in favor of coverage.” Id.

Nevertheless, the presumption in favor of arbitration should be applied

only when the court concludes “that arbitration of a particular dispute is

what the parties intended because their express agreement to arbitrate was

validly formed, is legally enforceable, and is best construed to encompass the

dispute.” Granite Rock Co. v. Int’l Broth. of Teamsters, 561 U.S. 287, 303

(2010). Accordingly, the presumption that a grievance is arbitrable may be

rebutted “if the party resisting arbitration shows either (1) the existence of

an express provision excluding the grievance from arbitration or (2) the

‘most forceful evidence’ of a purpose to exclude the claim from arbitration.”

ExxonMobil, 449 F.3d at 620 (quoting Commc’ns Workers of Am. v.

Southwestern Bell Tel. Co., 415 F.2d 35 (5th Cir. 1969)). This is because

“[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.” AT&T

Techs, Inc., 475 U.S. at 648 (internal quotation marks omitted).

Guided by these principles, the Court turns to the instant dispute.

Plaintiff argues that defendant breached Article 1, Section 1 of the CBA, the

mutual recognition of rights provision, by hiring employees into the

bargaining unit but failing to apply the CBA to those employees. Plaintiff

further alleges that defendant breached the CBA by refusing to arbitrate the

grievance. On its face, plaintiff has alleged a dispute regarding “the

interpretation and application of [a] specific provision of” Article 1, Section

1 of the CBA.

Defendant contends that that plaintiff’s grievance is expressly excluded

from arbitration by Article 1, Section 4 of the CBA, which provides that

plaintiff may not initiate grievances to clarify the bargaining unit.24

Defendant notes that plaintiff does not allege that the employees are full-

time or regular part-time servicemen or installers, so there is insufficient

support for plaintiff’s conclusion that they are members of the bargaining

unit. Defendant represents that, to the contrary, the employees plaintiff

refers to in its grievance are “not employed as ‘Installers’ or ‘Servicemen’ as

required to be included in the bargaining unit definition.”25 Defendant

contends that plaintiff, through its grievance, wants to have an arbitrator

expand the definition of the bargaining unit to include the newly hired

24 R. Doc. 10-1 at 2.

25 R. Doc. 10-1 at 8. These facts are not present in the complaint or the

attachments thereto. Accordingly, the Court does not accept them as

true for purposes of this motion.

employees, which is tantamount to a unit clarification in violation of Article

1, Section 4.

The National Labor Relations Board (the “NLRB”) has explained that

unit clarification is appropriate for resolving the following type of disputes:

Disputes concerning the unit placement of employees who, for

example, come within newly established job classifications or

whose duties and responsibilities have undergone recent

substantial changes which create real doubt as to whether their

positions continue to fall in the category—excluded or included—

that they occupied in the past.

NLRB v. Magna Corp., 734 F.2d 1057, 1061 (5th Cir. 1984); see also Union

Electric Co., 217 NLRB No. 124, at 667 (1975) (“Unit clarification . . . is

appropriate for resolving ambiguities concerning the unit placement of

individuals[.]”).

Accepting defendant’s argument that what plaintiff truly seeks is a

bargaining unit clarification would require the Court to accept defendant’s

factual assertion that the newly hired employees do not meet the criteria for

bargaining unit membership. But plaintiff expressly alleged that the

employees were “hired into the bargaining unit.”26 At the motion to dismiss

stage, the Court cannot look beyond the four corners of the complaint and

the attachments thereto, nor can it accept as true facts that are proffered by

26 R. Doc. 1 at 2 ¶ 5.

the defendant rather than those alleged in the complaint. In essence,

defendant’s motion asks the Court to determine the merits of the underlying

grievance: whether defendant failed to apply the bargaining unit to

employees who qualify for bargaining unit placement.

If defendant is correct that plaintiff will be unable to substantiate its

allegations that the employees meet the criteria for bargaining unit

placement, then plaintiff’s allegation that defendant breached the CBA is

meritless. But “even if it appears to the court to be frivolous, the union’s

claim that the employer has violated the collective-bargaining agreement is

to be decided not by the court asked to order arbitration, but as the parties

have agreed, by the arbitrator.” AT&T Techs., Inc. v. Comms. Workers of

Am., 475 U.S. 643, 649-50 (1986). On the face of plaintiff’s complaint, it has

alleged a breach of the CBA, which is “the type of claim the parties have

agreed to arbitrate.” Oil, Chem. & Atomic Workers’ Int’l Union, Local 4-447

v. Chevron Chem. Co., 815 F.2d 338, 343 (5th Cir. 1987). The Court cannot

say “with positive assurance that the arbitration clause is not susceptible of

an interpretation that covers the asserted dispute.” ExxonMobil, 449 F.3d at

620 (internal quotation marks omitted). In light of the principle that doubts

as to the arbitrability of disputes “should be resolved in favor of coverage,”

id., the Court finds that plaintiff has plausibly alleged that its grievance is

arbitrable.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES defendant’s motion to

dismiss.

New Orleans, Louisiana, this _16th_ day of November, 2022.

—herek Vaeree

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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