# AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 77 v. DUKE UNIVERSITY

> District Court, M.D. North Carolina · March 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10253786

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253786

## How later opinions describe it (automated extraction)

- describing case that excluded CBAs from the FAA and characterizing Circuit City as having overruled that holding

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AMERICAN FEDERATION OF STATE, )
COUNTY AND MUNICIPAL )
EMPLOYEES, LOCAL 77, )
)
Plaintiff, )
) 1:20CV180
v. )
)
DUKE UNIVERSITY, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
This case comes before the Court on (1) “Plaintiff’s Motion to
Compel Arbitration and for Attorneys’ Fees” (Docket Entry 9) (the
“Arbitration Motion”) and (2) the parties’ Rule 26(f) Reports
(Docket Entries 17, 18). For the reasons that follow, the Court
will grant in part and deny in part the Arbitration Motion1 and
stay discovery pending resolution of the arbitration proceedings.
BACKGROUND
Seeking to compel arbitration of a grievance, the American
Federation of State, County and Municipal Employees, Local 77 (“the
Union”), initiated this lawsuit against Duke University (“Duke”).
(See Docket Entry 1.) Duke filed an Answer, which asserted that
the Union had failed to timely file the grievance and had thus
1 For the reasons stated in Scales v. SSC Winston-Salem
Operating, Co., No. 1:17cv539, 2017 WL 4467278, at *1 n.1 (M.D.N.C.
Oct. 5, 2017), the undersigned United States Magistrate Judge will
enter an order rather than a recommendation regarding the
Arbitration Motion.
“substantively forfeited the ability to challenge the decisions and
actions by [Duke] that [the Union] wishes to arbitrate.” (Docket
Entry 12 at 4–5.)
The Union separately filed the Arbitration Motion, requesting
an order (1) compelling arbitration of the grievance and
(2) mandating that Duke pay the Union’s attorney’s fees and costs.
(Docket Entry 9 at 1.) According to the Union, an arbitrator must
resolve “dispute[s] over the timeliness of a grievance,” and
attorney’s fees are warranted because “Duke lacks any reasonable
justification for its refusal to arbitrate.” (Docket Entry 11 at
1–2.) In response, Duke maintains its position that the Union
forfeited the grievance by failing to timely file it and that the
parties had not agreed to arbitrate tardy grievances. (See Docket
Entry 15 at 2–3.) Duke further opposes the motion for attorney’s
fees, arguing that the request contravenes the Court’s Local Rules
as well as that both the facts and the law support its refusal to
submit to arbitration. (See id. at 19–20.)
The parties then tendered separate Rule 26(f) Reports wherein
they propose competing plans for discovery. (See Docket Entries 17

& 18.) The Union’s Rule 26(f) Report contends that “this case
presents a pure question of law and no discovery is required.”
(Docket Entry 17 at 1.) Duke’s 26(f) Report insists that
“[d]iscovery should not be postponed or limited pending
determination of [the Arbitration Motion]” and instead seeks “a
2
limited discovery period.” (Docket Entry 18 at 1, 3 (emphasis in
original).)
As relevant to the Arbitration Motion and Rule 26(f) Reports,
the record reflects the following:
The Union and Duke maintain “a collective bargaining
relationship” (Docket Entry 1, ¶ 10), whereby the two have adopted
procedures for addressing grievances “between either the Union or
an employee and Duke” (id., ¶ 11; see also Docket Entry 1-1
(“Agreement” between Duke and Union dated July 1, 2017 (hereinafter
“CBA”))). Article 6 of the CBA defines a “grievance” as “a
complaint or dispute regarding the application and/or
interpretation of the express provisions of this agreement or,
other matters related to Union/Employer relations not removed by
law from the area of collective bargaining.” (Docket Entry 1-1 at
9.)
The CBA’s Article 10 provides that “[a] grievance shall be
submitted in writing within ten (10) working days following the day
on which the Union or employee first had knowledge of the facts
giving rise to the grievance.” (Id. at 14.) Article 10 further

describes a three-step process for resolving grievances, beginning
with a discussion between “the appropriate management
representative” and “[t]he employee and/or Union representative.”
(Id.) Management must reply in writing “within two (2) working
days of receipt of the grievance.” (Id.)
3
Upon referral “within three (3) working days following receipt
of [this reply],” a second step grievance hearing must occur within
three working days. (Id.) The second step hearing involves more
participants — “the manager or his/her designee of the department,
supervisor, a Labor Relations representative from the Employer, the
employee, and two (2) representatives from the Union” — and must
result in a written reply from “[t]he manager or his/her designee
of the employer” within two working days of the hearing. (Id.) A
referral to a third step procedure may follow “within five (5)
working days following the receipt of the manager’s reply.” (Id.)
The third step hearing must take place within three working
days of the referral and must include attendance of still more
individuals: “the Director of Labor Relations and/or his/her
designated representative, three (3) representatives from
management, three (3) representatives from the Union and the
nonemployee union representative.” (Id. at 15.) At this stage,
the Director of Labor Relations must furnish the reply within three
working days of the hearing. (Id.)
Pursuant to Article 11 of the CBA, “[a] grievance, as defined

in this Agreement, which is properly submitted to Step 3 of the
grievance procedure may be submitted to arbitration by the Union if
no satisfactory written answer is received within fifteen (15)
working days following the date of the third step answer.” (Id.)
Article 11 also details how and by when the parties must select an
4
arbitrator, as well as the terms and conditions that apply to every
arbitration. (See id.)
The subject grievance relates to the May 2019 termination of
Shawn Easterling (“Easterling”), “a member of the bargaining unit
represented by the Union,” who had worked for 13 years in the
housekeeping department at Duke. (Docket Entry 1, ¶ 14.) Prior to
Easterling’s termination, Duke had suspended him “with pay pending
investigation of alleged absenteeism.” (Id., ¶ 15.) By letter
dated May 20, 2019, Duke notified Easterling that “his employment
with Duke was being terminated.” (Id., ¶ 16; see also Docket Entry
1-2 (letter from Duke to Easterling dated May 20, 2019).) The
Union alleges that it did not, in accordance with Article 6 of the
CBA, receive prior notice of Duke’s intent to end Easterling’s
employment. (Docket Entry 1, ¶¶ 16, 18 (discussing provision that
“required Duke to provide advance notice to the Union before it
mailed the termination notice to [Easterling]”).)2
“On June 14, 2019, the Union filed a grievance regarding
[Easterling’s] termination (the ‘Easterling Grievance’).” (Id.,
¶ 17; see also Docket Entry 1-3 (Easterling Grievance form).) The

Easterling Grievance form identifies the sole issue as “[w]hether
[Easterling] was disciplined for just cause — did [Easterling]

2 Article 6 provides, in part: “The Union and Staff and Labor
will be notified prior to the mailing of any disciplinary action.”
(Docket Entry 1-1 at 10 (bold text and underlining omitted).)
5
violate Duke University Work Rule #162?” (Docket Entry 1-3 at 1.)°
The parties met on August 27, 2019, for the third step hearing on
the Easterling Grievance. (See Docket Entry 1, 9 19.)* The Union
thereafter notified Duke that it would submit the Easterling
Grievance to arbitration in accordance with Article 11 of the CBA.
(See id., FT 20.) “Duke then indicated to the Union that it would
not agree to arbitrate the Easterling Grievance based on its
contention that the [Easterling Grievance] was not timely filed.”
The Union maintains that an arbitrator must decide any
dispute regarding the timeliness of the Easterling Grievance and
that untimeliness does not constitute a defense to arbitration.
(See id.)
DISCUSSION
I. Arbitration Motion
A. Legal Framework
i. Preliminary Matters
At the threshold, the Union and Duke disagree about whether
the Federal Arbitration Act (“FAA”) applies to this matter. The

3 According to the termination letter sent by Duke to
Easterling, Work Rule 16 prohibits “[c]onsecutive absences of three
(3) workdays without notifying the supervisor if, by the end of the
employee’s third regular scheduled workday, such notification is
not provided in accordance with departmental procedures.” (Docket
Entry 15-1 at 16.)
4 The record does not reveal when, if ever, steps one and two
took place or whether the Union and Duke complied with the other
Article 10 requirements (including who must attend the hearings,
who must author the reply, and by when the referrals must occur).

Complaint purports to seek relief under both Section 185 of the
Labor Management Relations Act (“LMRA”) and Section 4 of the FAA.
(Docket Entry 1 at 1.) However, neither the Arbitration Motion nor
the Union’s supporting brief mentions the statutory basis for
compelled arbitration. (See Docket Entry 9 at 1; Docket Entry 11
at 1–8.)5 Duke’s response asserts that the FAA excludes CBAs,
leaving the LMRA as the sole grounds for the Union’s request to
compel arbitration. (See Docket Entry 15 at 9.) In reply, the
Union contends that “[t]he FAA applies to all employment contracts,
except those for transportation workers” (Docket Entry 16 at 2
(citing Circuit City Stores, Inc., v. Adams, 532 U.S. 105, 119
(2001))), observes that “the Union’s bargaining unit members are
not transportation workers” (id.), and concludes that the FAA
therefore applies here (see id.).
The FAA renders enforceable written arbitration contracts,
“save upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2. In relevant part, the
statute excludes from its coverage “contracts of employment of
seamen, railroad employees, or any other class of workers engaged

in foreign or interstate commerce.” Id., § 1. Previously, a
circuit split existed as to the breadth of this exemption; in
particular, the Ninth Circuit once “construe[d] the exemption so

5 As further discussed below, the brief grounds the request
for attorneys’ fees in the LMRA. (See Docket Entry 11 at 9–10.)
7
that all contracts of employment [were] beyond the FAA’s reach,
whether or not the worker [was] engaged in transportation.”
Circuit City, 532 U.S. at 109. This interpretation depended on the
scope of the phrase “any other class of workers engaged in foreign
or interstate commerce,” 9 U.S.C. § 1. See Circuit City, 523 U.S.
at 114-19 (discussing, before rejecting, “sweeping, open-ended
construction” of this language). After analyzing Section 1’s text,
Circuit City held that the provision “exempts from the FAA only
contracts of employment of transportation workers.” Id. at 119.
The parties advocate competing understandings of Circuit City.
The Union relies on out-of-Circuit cases interpreting the FAA
exclusion, in the collective bargaining context, to apply only to
such agreements that cover transportation workers. (See Docket
Entry 16 at 2 (citing IBEW, Local 111 v. Public Serv. Co. of Colo.,
773 F.3d 1100, 1106 (10th Cir. 2014), and International Bhd. of
Teamsters Local Union No. 50 v. Kienstra Precast, LLC, 702 F.3d
954, 955-56 (7th Cir. 2012)).) In contrast, Duke invokes authority
from the United States Court of Appeals for the Fourth Circuit
(predating Circuit City) and argues that, because Circuit City did
not explicitly address whether the FAA applies to CBAs, the Fourth
Circuit authority remains good law. (See Docket Entry 18 at 2-3
(citing United Elec. Radio & Mach. Workers of Am. v. Miller Metal
Prods., 215 F.2d 221 (4th Cir. 1954)).)

Duke’s contentions cannot withstand scrutiny. In Miller
Metal, the Fourth Circuit affirmed the denial of a stay to the
defendant unions, after an employer sued under the LMRA “to recover
damages for breach of a no-strike clause in a CBA,” and the unions,
pursuant to the FAA, sought to stay the judicial proceedings.
Miller Metal, 215 F.2d at 222. As grounds for the denial of the
stay, the district court relied upon International Union United
Furniture Workers v. Colonial Hardwood Flooring Co., 168 F.2d 33
(4th Cir. 1948). See Miller Metal, 215 F.2d at 222. That earlier
case had presented the same question under like circumstances, and
the Fourth Circuit there concluded that “the provisions of the
[FAA] may not be applied to th[e] contract, because it [wa]s a
contract relating to the employment of workers engaged in
interstate commerce, within the clear meaning of the exclusion
clause contained in [Section 1 of the FAA].” Colonial Hardwood,
168 F.2d at 34-35 (emphasis added). The Fourth Circuit resolved
Miller Metal on identical grounds, holding that “the provisions of
the [FAA] may not be relied on to stay proceedings in a suit
brought on a [CBA] entered into by workers engaged in interstate
commerce as those here were engaged.” Miller Metal, 215 F.2d at
224 (emphasis added).
Importantly, although Miller Metal and Colonial Hardwood both
involved CBAs (whereas Circuit City did not), those two Fourth
Circuit holdings depended on an interpretation of language in

Section 1 of the FAA that Circuit City no longer permits. In other
words, neither Miller Metal nor Colonial Hardwood involved
transportation workers, which Circuit City has since identified as
the only category of employee excluded from the FAA. The Fourth
Circuit has not explicitly overruled Miller Metal, but it has
acknowledged intervening Supreme Court authority that calls Miller
Metal into question. See American Gen. Life & Acc. Ins. Co. v.
Wood, 429 F.3d 83, 91 n.4 (4th Cir. 2005) (describing case that
excluded CBAs from the FAA and characterizing Circuit City as
having overruled that holding); O’Neil v. Hilton Head Hosp., 115
F.3d 272, 274 n.1 (4th Cir. 1997) (assuming without deciding that
Miller Metal “ha[s] any remaining vitality” and noting that the
“case predates the substantial body of Supreme Court precedent
supporting utilization of the arbitration process”); see also
O'Neil, 115 F.3d at 274 (“The circuit courts have uniformly
reasoned that the strong federal policy in favor of arbitration
requires a narrow reading of this section 1 exemption.”).
Moreover, another Fourth Circuit case that cited Miller Metal with
approval and read the FAA to exclude CBAs also relied upon Section
1’s “interstate commerce” language as the basis for the exclusion,
see Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d
1064, 1067-68 (4th Cir. 1993); after Circuit City, such a holding
cannot stand (at least as to non-transportation workers), see
Circuit City, 532 U.S. at 119.

10

Here, applying Circuit City, a narrow reading of Section 1
does not exclude Easterling from FAA coverage by virtue of his
employment in the housekeeping department. Duke does not argue
otherwise but insists that the CBA, rather than the nature of
Easterling’s employment, renders the FAA inapplicable; however,
Duke fails to identify any textual support for such a categorical
exclusion. (See Docket Entry 18 at 2–3.) The Fourth Circuit’s
discussion of a rationale for excluding CBAs from the FAA, see
Miller Metal, 215 F.2d at 224 (“It appears that the exclusion
clause of the [FAA] was introduced into the statute to meet an
objection of the Seafarers International Union; and certainly such
objection was directed at including [CBAs] rather than individual
contracts of employment under the provisions of the statute.”),
cannot overcome the Supreme Court’s subsequent clear declaration
that Section 1’s exclusion reaches only contracts of employment of
transportation workers, see Circuit City, 532 U.S. at 119. The
Court thus need not resolve whether the CBA constitutes a contract
of employment because Easterling plainly does not qualify as a
transportation worker; the FAA therefore applies to this matter.

ii. Standard for Motions to Compel Arbitration
“A court may compel arbitration of a particular dispute only
when the parties have agreed to arbitrate their disputes and the
scope of the parties’ agreement permits resolution of the dispute
at issue.” Muriithi v. Shuttle Express, Inc., 712 F.3d 173, 179
11
(4th Cir. 2013). When such an agreement exists, “[a]n 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.” United Steelworkers of Am. v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 582–83 (1960). “The issue whether a dispute is
arbitrable presents primarily a question of contract
interpretation . . . .” Muriithi, 712 F.3d at 179.
“Under . . . the [LMRA], district courts, applying federal law
fashioned from national labor policy, can order specific
performance of an agreement to arbitrate.” H.K. Porter Co. v.
United Steelworkers of Am., 400 F.2d 691, 693 (4th Cir. 1968). In
that regard:
[T]he federal courts have often looked to the [FAA] for
guidance in labor arbitration cases, especially in the
wake of the holding that [the LMRA] . . . empowers the
federal courts to fashion rules of federal common law to
govern suits for violation of contracts between an
employer and a labor organization under the federal labor
laws.
United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 40 n.9
(1987) (internal brackets and quotation marks omitted).
Under the FAA, “[a] party aggrieved by the alleged failure,
neglect, or refusal of another to arbitrate under a written
agreement for arbitration may petition . . . for an order directing
that such arbitration proceed in the manner provided for in such
agreement.” 9 U.S.C. § 4. “To state a claim to compel arbitration
12
under the FAA, the plaintiff must allege (1) the existence of a
dispute between the parties, (2) a written agreement that includes
an arbitration provision which purports to cover the dispute,
(3) the relationship of the transaction, which is evidenced by the
agreement, to interstate or foreign commerce, and (4) the failure,
neglect or refusal of the defendant to arbitrate the dispute.”
Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991). If
the party seeking to compel arbitration establishes the existence
of “an arbitration provision that purports to cover the dispute,”
the party opposing arbitration “must make an unequivocal denial
that an arbitration agreement exists — and must also show
sufficient facts in support.” Chorley Enters., Inc. v. Dickey’s
Barbecue Rests., Inc., 807 F.3d 553, 564 (4th Cir. 2015). “This
standard is akin to the burden on summary judgment.” Id.
“[S]tate law determines questions concerning the validity,
revocability, or enforceability of contracts generally, but the FAA
creates a body of federal substantive law of arbitrability,
applicable to any arbitration agreement within the coverage of the
Act.” Hill v. PeopleSoft USA, Inc., 412 F.3d 540, 543 (4th Cir.

2005) (internal citations and quotation marks omitted). “[I]n
applying general state-law principles of contract interpretation to
the interpretation of an arbitration agreement within the scope of
the Act, . . . due regard must be given to the federal policy
favoring arbitration, and ambiguities as to the scope of the
13
arbitration clause itself [must be] resolved in favor of
arbitration.” Volt Info. Scis. v. Board of Trs., 489 U.S. 468, 475
(1989). Under North Carolina law, “[a] valid contract requires
[1] offer, [2] acceptance, [3] consideration and [4] no defenses to
formation.” Koltis v. North Carolina Dep’t of Human Res., 125 N.C.
App. 268, 271, 480 S.E.2d 702, 704 (1997) (citing Copy Prods., Inc.
v. Randolph, 62 N.C. App. 553, 555, 303 S.E.2d 87, 88 (1983)).
“North Carolina has a strong public policy favoring the settlement
of disputes by arbitration. [Said] strong public policy requires
that the courts resolve any doubts concerning the scope of
arbitrable issues in favor of arbitration.” Johnston Cnty. v. R.N.
Rouse & Co., Inc., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992).
Moreover, the Supreme Court has limited the judicial inquiry
into “whether the parties have submitted a particular dispute to
arbitration.” Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83
(2002). In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543
(1964), the Supreme Court considered whether a court or an
arbitrator should decide “whether ‘procedural’ conditions to
arbitration have been met.” Id. at 555-56. In that case, the
relevant agreement provided for a three-step grievance procedure
and stated that a party’s failure to file a grievance within four
weeks after its occurrence would constitute abandonment of the
grievance. See id. at 555-56 & n.11l. The Supreme Court cautioned
against the “separation of the ‘procedural’ and ‘substantive’

14

elements of a dispute” and contemplated “cases in which
arbitrability of the subject matter is unquestioned but a dispute
arises over the procedures to be followed.” Id. at 557-58. The
Supreme Court affirmed the order directing arbitration, deciding
that “it best accords with the usual purposes of an arbitration
clause and with the policy behind federal labor law to regard
procedural disagreements not as separate disputes but as aspects of
the dispute which called the grievance procedures into play.” Id.
at 559.
More recently, the Supreme Court arrived at a similar result
in a case involving proposed arbitration before the National
Association of Securities Dealers. See Howsam, 537 U.S. at 81. In
Howsam, the applicable provision stated that “no dispute ‘shall be
eligible for submission [to arbitration] . . . where six (6) years
have elapsed from the occurrence or event giving rise to the...
dispute.’” Id. at 82. After discussing “the presumption .. □
that the arbitrator should decide ‘allegations of waiver, delay, or
a like defense to arbitrability,” id. at 84 (quoting Moses H. Cone
Mem’ 1 Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)},
the Supreme Court held that the time limit rule constituted “an
‘aspect of the [controversy] which called the grievance procedures
into play,’” id. at 85 (quoting John Wiley, 376 U.S. at 559). The
party opposing arbitration failed to persuade the Supreme Court
that the use of the word “‘eligible’ . . . indicate[d] the parties’

15

intent for the time limit rule to be resolved by the court prior to
arbitration.” Id. at 86. In light of Howsam, the Fourth Circuit
has concluded that “arbitrators — not courts — must decide whether
a condition precedent to arbitrability has been fulfilled.”
Chorley Enters., 807 F.3d at 565.
B. Analysis
The Union’s brief in support of the Arbitration Motion —
citing John Wiley and Howsam, among others — asserts that an
arbitrator must resolve issues regarding the timeliness of
grievances. (See Docket Entry 11 at 5–8.) The Union emphasizes
the breadth of the CBA’s “grievance” definition — insofar as it
includes “‘the application and/or interpretation of the express
provisions of [the CBA].’” (Id. at 6 (quoting Docket Entry 1-1 at
9).) Duke’s response argues that no presumption of arbitrability
should attach in light of the arbitration clause’s narrow scope,
that the dispute here implicates substantive arbitrability, and
that (even if deemed procedural) the Court should resolve the

timeliness issue and should deny arbitration because any rational
arbitrator would dismiss the grievance as untimely. (See Docket
Entry 15 at 11–18.) The Union’s reply maintains that the
presumption of arbitrability does apply here, that timeliness
remains a procedural issue, that the Court should not consider the
facts underlying Duke’s timeliness argument, and that Duke’s

16
failure to notify the Union (in accordance with Article 6) could
excuse any untimeliness. (See Docket Entry 16 at 3–11.)
Under either the LMRA (which may borrow FAA principles) or the
FAA itself, the Union has demonstrated the existence of “an
arbitration provision which purports to cover the dispute.”
Whiteside, 940 F.2d at 102. The record indisputably establishes
that a dispute has arisen between the Union and Duke and that Duke
has refused to arbitrate. Nor has Duke raised a defense to
formation going to the CBA’s validity, such that an enforceable
contract exists. Accordingly, the Court considers only the issue
of whether the agreement to arbitrate excludes untimely claims or,
put another way, whether the parties intended for a court to
resolve disputes over the meaning of the term “properly submitted”
(Docket Entry 1-1 at 15).
As an initial matter, the presumption of arbitrability applies
to this issue because the CBA undeniably contains an arbitration
clause governing grievances in general. See AT&T Techs. v.
Communications Workers of Am., 475 U.S. 643, 650 (1986) (“[W]here
the contract contains an arbitration clause, there is a presumption

of arbitrability in the sense that ‘[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.’” (quoting Warrior & Gulf, 363 U.S. at 582-83)).
17
Notwithstanding Duke’s opposition to application of the presumption
favoring arbitration because the CBA differs from the clause at
issue in AT&T Techs. (see Docket Entry 15 at 10–11), the Supreme
Court there merely observed that “[s]uch a presumption is
particularly applicable where the clause is as broad as the one
employed in [that] case,” AT&T Techs., 475 U.S. at 650 (emphasis
added). In this case, the clause reasonably bears an
interpretation rendering the Easterling Grievance arbitrable: the
CBA does not define “properly submitted” (Docket Entry 1-1 at 15),
and the term could signify that the parties simply must proceed to
the third step hearing before a party may demand arbitration (as
apparently happened here).6 The CBA neither defines what
constitutes an improperly submitted grievance nor expressly
excludes such grievances from arbitration. (See id.)
Furthermore, the clause expresses no clear position on whether
a court or an arbitrator should decide a grievance’s eligibility
for arbitration. On the one hand, the CBA defines “grievance”
broadly and appears to contemplate review by an arbitrator of many
of the CBA’s provisions. (See id. at 9.)7 On the other hand, the

6 The Complaint alleges that “[t]he parties did not resolve
the Easterling Grievance [through the Article 10] process” and that
“[t]he parties’ meeting for the third and final step of the
grievance process was on August 27, 2019.” (Docket Entry 1, ¶ 19.)
Duke’s Answer “admits that the parties met on August 27, 2019.”
(Docket Entry 12, ¶ 19.)
7 The Union relies on the breadth of the grievance definition
but does not suggest that the parties engaged in or even
18
CBA never directly addresses who should resolve disputes about
whether a grievance qualifies as “properly submitted.” (See id. at
2-73.) Simply stated, the CBA favors arbitration but falls short
of explicitly committing any and all conflicts to an arbitrator.
When a matter involves an asserted time bar, which may represent a
sort of grievance within a grievance, courts sometimes look to
other parts of the contract that reveal the parties’ preference for
arbitration. See Howsam, 537 U.S. at 81; John Wiley, 376 U.S. at
553, 588.°
Given that the (concededly valid) CBA contains a clause that
plausibly mandates arbitration under the circumstances and that the
parties, at the time of contracting, indicated no explicit
preference, the presumption favoring arbitrability carries the day.

contemplated the Article 10 procedure (which seems to apply to all
“grievances”) to settle their apparent disagreement over the
meaning of “properly submitted.” (See Docket Entry 11 at 5-8;
Docket Entry 16 at 3-8.)
8 For comparison, the clause in Howsam provided that “all
controversies . . . concerning or arising from . . . any account
. «, any transaction . . ., or . . . the construction,
performance or breach of ...any.. . agreement between us...
shall be determined by arbitration before any self-regulatory
organization or exchange of which Dean Witter is a member.”
Howsam, 537 U.S. at 81. In John Wiley, the parties had agreed that
“‘[t]he arbitration procedure herein set forth is the sole and
exclusive remedy of the parties hereto and the employees covered
hereby, for any claimed violations of this contract, and for any
and all acts or omissions claimed to have been committed by either
party during the term of this agreement, and such arbitration
procedure shall be (except to enforce, vacate, or modify awards) in
lieu of any and all other remedies, forums at law, in equity or
otherwise which will or may be available to either of the
parties.’” John Wiley, 376 U.S. at 552 (ellipsis omitted).
19

Duke’s contrary arguments miss the mark. The CBA’s reference to
“properly submitted” grievances suggests that certain requirements
precede arbitration but not necessarily that a court (rather than
an arbitrator) would decide the meaning of the phrase. Had the
parties intended to exclude procedural matters from arbitration
altogether, they could have drafted the CBA to reflect this
understanding. See generally John Wiley, 376 U.S. at 553 & n.6
(quoting clauses “expressly deny[ing] arbitration to specific
events, situations or contract provisions”).
Finally, the CBA’s contemplation of forfeiture of untimely
grievances fails to tip the balance in Duke’s favor. In both John
Wiley and Howsam, the relevant provisions effectively penalized
untimeliness by barring tardy grievances from arbitration. see
Howsam, 537 U.S. at 82; John Wiley, 376 U.S. at 555-56 & n.1l.
Yet the Supreme Court nonetheless concluded that compliance with
procedural requirements normally presents a question for an
arbitrator, not a court. Howsam, 537 U.S. at 85-86; John Wiley,
376 U.S. at 556-59. The same holds true here.
II. Rule 26(f£) Reports
The parties’ dueling Rule 26(f) Reports propose two different
approaches to discovery. According to the Union, the purely legal
questions presented necessitate no discovery. (See Docket Entry
17 at 1.) Per Duke, the FAA does not apply here, and the usual
practice under the LMRA resolves disputes at summary judgment

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(which traditionally follows discovery). (See Docket Entry 18 at
1-3.) Under either statutory scheme — the FAA or the LMRA — this
matter warrants no discovery for the following reasons.
The FAA authorizes courts to compel arbitration and describes
the procedure for summarily determining entitlement to arbitration
or resolving disputes at trial. See Chorley Enters., 807 F.3d
563-64 (“[T]he party seeking a jury trial must make an unequivocal
denial that an arbitration agreement exists — and must also show
sufficient facts in support.”). Through the FAA, Congress has
expressed its “clear intent .. . to move the parties to an
arbitrable dispute out of court and into arbitration as quickly and
easily as possible.” Moses H. Cone Mem’l Hosp., 460 U.S. at 22.
To that end, Section 4 “call[s] for an expeditious and summary
hearing, with only restricted inquiry into factual issues.” Id.
In contrast, the LMRA covers a broader range of potential
disputes and includes no specific provision governing summary
resolution. See 29 U.S.C. $ 185 (entitled “[sJuits by and against
labor organizations). Further, although the LMRA does not
explicitly contemplate an order compelling arbitration, the Fourth
Circuit has interpreted it to authorize such relief. see H.K.
Porter Co., 400 F.2d at 693. As explained above, courts hearing
disputes under the LMRA may borrow principles from the FAA or look
to the latter for guidance as they fashion rules of federal common
law. See Misco, Inc., 484 U.S. at 40 n.9.

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“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.” Dillon v. BMO
Harris Bank, N.A., No. 1:13CV897, 2015 WL 6619972, at *2 (M.D.N.C.
Oct. 30, 2015) (quoting Fed. R. Civ. P. 26 advisory committee’s
notes, 1983 Amend.). When a party seeks to compel arbitration,
whether and to what extent the parties should engage in discovery
depends in part on the range of disputed subjects. “Only discovery
tailored to matters pertinent to the disposition of the petition to
compel arbitration . . . may occur.” Id. at *3. For example, “if
a party challenges the enforceability of an arbitration agreement,
courts generally permit discovery regarding the formation and
performance of the arbitration provision.” Id. (collecting cases);
see also Livingston v. Assocs. Fin., Inc., No. 01C1659, 2001 WL
709465, at *2 (N.D. Ill. June 25, 2001) (observing, in analyzing
request to conduct discovery in response to motion to compel
arbitration, that a “party must be given an opportunity to pursue
discovery related to the issue that it has the burden to prove”),
report and recommendation adopted, No. 01C1659, 2002 WL 424352
(N.D. Ill. Mar. 6, 2002). Courts outside the Fourth Circuit have

recognized that “the [party opposing compelled arbitration] ‘must
be given the opportunity to conduct limited discovery on the narrow
issue concerning the validity’ of the arbitration agreement.”
Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764,
774–76 (3d Cir. 2013) (quoting Deputy v. Lehman Bros., Inc., 345
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F.3d 494, 511 (7th Cir. 2003)); see also id. at 774 n.5 (explaining
that pre-arbitration discovery also should occur when a party
claims that arbitration would impose prohibitive costs or that
unconscionability voids the arbitration clause).
Here, given that the FAA applies, Section 4 permits an order
compelling arbitration without discovery. Duke’s response focuses
on its preferred interpretation of the arbitration clause but stops
short of characterizing the entire CBA as invalid and
unenforceable. Additionally, Duke never “ma[d]e an unequivocal
denial that an arbitration agreement exists.” Chorley Enters., 807
F.3d 563–64. Alternatively, the LMRA supports the same result in
light of the purposes of discovery and the nature of this dispute.
Because Duke does not contest the validity of the CBA, contract
defenses bear no relevance here; discovery on those topics appears
pointless. The parties dispute only the scope of their agreement
to arbitrate, which constitutes “a question of contract
interpretation,” Muriithi, 712 F.3d at 179. The Union attached to
the Complaint the CBA containing the arbitration clause, the focal
point of the inquiry. Given the legal issue presented, discovery

would serve no useful purpose. Therefore, the Court decides the
issue on the present record and stays discovery pending
arbitration.

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III. Motion for Attorney’s Fees
The Arbitration Motion includes a request for an order
directing “Duke to pay the Union’s attorneys’ fees and costs for
prosecuting this action” on the grounds that “Duke’s refusal to
arbitrate has no reasonable legal justification.” (Docket Entry 9
at 1.) The Union’s brief in support of the Arbitration Motion
explains that, “[u]nder the [LMRA], attorneys’ fees may be awarded
against a party whose challenge to arbitrability was pursued
‘without justification.’” (Docket Entry 11 at 9 (quoting United
Food & Commercial Workers, Local 400 v. Marval Poultry Co., 876
F.2d 346, 350 (4th Cir. 1989)).) In opposition, Duke’s response
asserts that the Union violated Local Rule 7.3(a) by failing to
seek such fees via separate motion. (Docket Entry 15 at 19.) On
the merits, Duke contends that no controlling authority requires
arbitration under the circumstances. (Id. at 20.) The Union’s
reply maintains that the fee request complied with Rule 7.3(a), but
alternatively proposes a denial without prejudice to renewal after

entry of judgment. (Docket Entry 16 at 11 & n.3; see also id. at
12 (insisting that Duke baselessly refused arbitration).)
“A request for a court order must be made by motion.” Fed. R.
Civ. P. 7(b)(1). Duke correctly notes that this Court’s Local Rule
7.3(a) further requires “[e]ach motion [to] be set out in a
separate pleading.” M.D.N.C. LR 7.3(a). This Rule ensures that
parties have an adequate opportunity to brief each motion. See
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Phillips v. Umass Corr. Health, No. 1:18CV974, 2020 WL 128463, at
*12 (M.D.N.C. Jan. 10, 2020) (explaining that proper filing of
motion for leave to amend allows for necessary briefing). This
practice makes good sense because a neighboring provision limits
the length of briefs. See M.D.N.C. LR 7.3(d). Motions that seek
distinct forms of relief in a single filing may hinder the parties’
ability to adequately develop their arguments in support of their
respective positions.
Here, Rule 7.3(a) requires that the Union file a separate
motion and brief in support of its request for attorney’s fees.
Although the Arbitration Motion did not “tuck[] away [the fee]
request in a lengthy response brief,” Phillips, 2020 WL 128463, at
*12, neither did the Motion allow for separate treatment and full
briefing as required by this Court’s Local Rules. Accordingly, the
Court denies this aspect of the Arbitration Motion without
prejudice to timely resubsmission in accordance with applicable
rules. See, e.g., Fed. R. Civ. P. 54(d)(2) (providing that, within
14 days of judgment entry, prevailing party may seek attorney’s
fees if entitled by “statute, rule, or other grounds” to such

award).
CONCLUSION
Duke has not overcome the presumption favoring arbitration of
an issue like the one here: a dispute over a procedural requirement
preceding arbitration; however, the Court exercises its discretion
25
to decline consideration of an award of attorney’s fees pending the
filing of a proper motion.
IT IS THEREFORE ORDERED that the Arbitration Motion (Docket
Entry 9) is GRANTED as to the request to compel arbitration and
DENIED WITHOUT PREJUDICE as to the request to award attorney’s
fees.
IT IS FURTHER ORDERED that discovery is stayed pending
arbitration.
This 2nd day of March, 2021.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253786. Public record. Not legal advice.