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
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