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 are plaintiff’s and defendant’s cross-motions for
summary judgment.1 Each motion is opposed.2 For the following reasons,
the Court grants plaintiff’s motion for summary judgment and denies
defendant’s motion for summary judgment.
I. BACKGROUND
Plaintiff Communication Workers of America, AFL-CIO (“CWA”) is a
labor union that represents certain employees of defendant ADT Security
Services, Inc. (“ADT”).3 CWA filed a complaint in May 2022 seeking to
compel arbitration under the terms of a collective bargaining agreement
1 R. Docs. 22 & 23.
2 R. Docs. 26 & 29.
3 R. Doc. 22-2 ¶ 1.
(“CBA”) regarding a disagreement as to the treatment of certain hires that
ADT made after the parties entered into the CBA.4
Article 1, Section 1 of the CBA provides:
[ADT] hereby recognizes [CWA] as the exclusive bargaining
representative . . . for the employees in the bargaining unit . . . certified
by the National Labor Relations Board . . . including all . . . employees
classified by [ADT] as Servicemen and/or Installers employed by
[ADT] at the facilities located in the State of Louisiana; excluding all
other employees, classified by [ADT] 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. 5
Article 4 of the CBA establishes a four-step grievance procedure
culminating in arbitration.6 Article 5 governs arbitration and states that “[i]n
the event that an agreement cannot be reached between the Union and the
Employer with respect to a grievance involving and limited to the
interpretation and application of any specific provision of this agreement, it
may be submitted, on the request of either party, to arbitration.”7 Article 1,
Section 4 of the CBA states that “[t]he Union will not file grievances or
petition the NLRB, or any other state or federal agency, seeking clarification
of the bargaining unit.”8
4 R. Doc. 1.
5 R. Doc. 1-3 at 3.
6 Id. at 6-7.
7 Id. at 7.
8 Id. at 4.
CWA’s complaint alleges that it initiated a grievance “protesting ADT’s
failure to apply the CBA to employees hired by the Company in the
bargaining unit covered by the CBA,” which ADT denied at each step of the
grievance procedure until CWA referred the matter to arbitration.9 ADT
refused to arbitrate the grievance, and CWA thereafter filed this action.10
The parties now move for summary judgment.11 CWA argues that its
grievance is committed to arbitration by the terms of the CBA as a dispute
involving the interpretation and application of the agreement.12 ADT alleges
that CWA’s grievance is excluded from arbitration under Article 1, Section 4
of the CBA as an attempt to seek clarification of the bargaining unit.13
The Court considers the motions below.
II. LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
9 R. Doc. 22-4 ¶ 6.
10 R. Doc. 23-1 at 9-10.
11 R. Docs. 22 & 23.
12 R. Doc. 22-3 at 1.
13 R. Doc. 23-1 at 16.
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325. The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322))
III. DISCUSSION
“The courts’ role is very limited when deciding issues of arbitrability.”
Paper, Allied-Indus., Chem. & Energy Workers Int’l Union Loc. No. 4-2001
v. ExxonMobil Refining & Supply Co., 449 F.3d 616, 619 (5th Cir. 2006)
(quoting Oil, Chem. & Atomic Workers’ Int’l Union, Loc. 4-447 v. Chevron
Chem. Co., 815 F.2d 338, 343 (5th Cir. 1987)). When a party seeks to compel
arbitration under 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. Sw. Bell
Tel. Co., 415 F.2d 35, 39 (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).
Here, CWA alleges that ADT hired certain employees into the
bargaining unit and failed to apply the CBA to them despite an obligation to
do so in violation of Article 1, Section 1.14 ADT alleges that Article 1, Section
4 of the CBA excludes this dispute from arbitration because it is an attempt
14 R. Doc. 23-1 at 16.
to clarify the bargaining unit.15 As this Court noted in its November 16, 2022,
Order on ADT’s motion to dismiss, “[a]ccepting defendant’s argument that
what plaintiff truly seeks is a bargaining unit clarification . . . 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.”16 In other words, whether CWA is correct about ADT’s
obligations under Article 1, Section 1 of the CBA is inapposite to whether
CWA’s grievance falls within the arbitration agreement.
Here, the evidence shows that CWA “initiated a grievance . . .
protesting ADT’s failure to apply the CBA to employees hired by [ADT] into
the bargaining unit covered by the CBA.”17 ADT characterizes this
grievance as concerning “ADT’s employment of non-union employees,”18
and contends that under Louisiana’s right to work laws, it could validly
exclude “newly hired installation and service employees” in Louisiana from
the bargaining unit and offer them compensation schemes falling outside of
the CBA.19
15 Id.
16 R. Doc. 17 at 10.
17 R. Doc. 22-4 ¶ 6.
18 R. Doc. 23-2 ¶ 30.
19 R. Doc. 23-1 at 16-17.
Whether ADT must include the newly hired installation and service
employees in the bargaining unit is a question of “the interpretation and
application”20 of Article 1, Section 1 of the CBA, since, by its terms, it
applies to “all full-time and regular part-time employees classified by [ADT]
as Servicemen and/or Installers employed . . . in the State of Louisiana.”21
All of ADT’s arguments go to the merits of the dispute because if Article 1,
Section 1, does not obligate it to apply the CBA to the newly hired service
and installation employees, ADT will prevail in arbitration.
Accordingly, there is no genuine issue of material fact with respect to
whether (1) any express provision of the CBA excludes the grievance from
arbitration or (2) there is forceful evidence of a purpose to exclude the
claim from arbitration. Thus, the Court cannot say “with positive assurance
that the arbitration clause is not susceptible of an interpretation that covers
the asserted dispute,” and the dispute must be arbitrated. ExxonMobil, 815
F.3d at 620 (internal quotation marks omitted).
20 R. Doc. 1-3 at 7.
21 Id. at 3.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs motion for
summary judgment and DENIES defendant’s motion for summary
judgment.
New Orleans, Louisiana, this 24th day of August, 2023.
_herak Yarvee.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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