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Glass, Molders, Pottery, Plastics, & Allied Workers International Union v. Tecnocap LLC

United States District Court, N.D. West Virginia, Wheeling

September 6, 2017

TECNOCAP LLC, Defendant.



         Currently pending before this Court are the parties' cross motions for summary judgment. First, defendant Tecnocap LLC (“Tecnocap”) filed its Motion for Summary Judgment [Doc. 19] on July 18, 2017. Plaintiff Glass, Molders, Pottery, Plastics & Allied Workers International Union, AFL-CIO, CLC (“GMP”) filed a Motion for Summary Judgment [Doc. 22] on July 21, 2017. For the reasons set forth below, this Court grants GMP's Motion for Summary Judgment [Doc. 22], and denies Tecnocap's Motion for Summary Judgment [Doc. 19].

         I. BACKGROUND

         Plaintiff GMP is a labor union that represents employees of defendant Tecnocap's facility in Glendale, West Virginia [Doc. 1 at 1]. GMP filed this action pursuant to the Section 301 of the Labor-Management Relations Act of 1947 (“LMRA”), 28 U.S.C. § 185, and seeks a declaratory judgment [Id. at 1-2]. Sam Hall and Fred Berisford are former employees of Tecnocap and GMP union members whose firings for excessive absenteeism are at the center of this action [Id. at 3]. On March 14, 2016, and April 17, 2016, the GMP commenced grievance proceedings under the Collective Bargaining Agreement (“CBA”) in connection with the termination of Berisford and Hall, respectively [Id.]. In both cases, Hall and Berisford were purportedly terminated while they were off work under the Family Medical Leave Act (“FMLA”) [Doc. 20-2 - 20-7]. Moreover, the grievances concerned termination subject to the provision of the CBA in place between the parties [Doc. 1 at 3].

         Article 21, Section 1 of the CBA establishes notice procedures for absences from work [Doc. 22-1 at 18]. Article 22, Section 2 of the CBA provides that the Company and the Union will abide by the rules of the FMLA and sets out certain requirements regarding days off of work [Id.]. Tecnocap implemented an Attendance Control Policy (“the Policy”), which establishes a progressive discipline policy for absences from work [Doc. 20-1; Doc. 22-2]. Pursuant to the terms of the Policy, points are assigned based upon different violations of the Policy; the accumulation of 6 points results in a verbal warning, 7 points results in a written warning, 8 points results in a three day suspension, and 9 points results in a termination [Id.]. The Policy specifically excludes absences covered by the FMLA [Id.]. Finally, Article 5, Section 2 of the CBA concerns the hiring, releasing, quitting and discharge of employees [Doc. 22-1 at 6]. That section provides that the grievance procedure can be invoked in situations, such as the Hall and Berisford grievances, where an employee is discharged from employment with Tecnocap [Id.].

         The GMP filed the Hall and Berisford grievances pursuant to Articles 27 and 28 of the CBA, which control the grievance and arbitration procedure and process [Doc. 1 at 3; Doc. 22-1 at 19-21]. Article 27 of the CBA provides for a three-step grievance and dispute resolution process [Doc. 22-1 at 19-21]. Article 28 of the CBA concerns arbitration and provides that if a grievance is not settled in the three-step grievance process grievances can be moved to arbitration [Id. at 21]. Article 28, Section 1 states that, “[o]nly grievances involving the interpretation or application of express provisions of this Agreement shall be subject to arbitration” [Id.].

         GMP alleges that it and Tecnocap proceeded through the three-step grievance process in connection with the Berisford and Hall grievances [Doc. 1 at 3]. The parties agree that neither the Berisford Grievance nor the Hall Grievance was resolved or settled through that process [Id.; Doc. 3 at 2]. Then, on or about August 26, 2016, GMP moved both grievances to arbitration pursuant to Article 28 of the CBA [Doc. 1 at 3]. Tecnocap and the GMP mutually scheduled an arbitration date of November 8, 2016, for the Berisford Grievance before arbitrator Hyman Cohen [Id.; Doc. 3 at 3]. The parties also mutually agreed upon arbitrator Jennifer Flesher to serve as the arbitrator for the Hall Grievance, but no date was set for the arbitration [Id. at 4; Id.]. Then, on September 28, 2016, Tecnocap informed the Plaintiff that it was refusing to proceed with the arbitrations in both the Berisford and Hall grievances, allegedly because GMP breached the time limits in the CBA for processing the grievances and/or arbitrations [Doc. 22-3 at 2-3].

         GMP now contends that the CBA has no provision or term which permits Tecnocap to refuse to arbitrate a grievance on this ground [Doc. 1 at 4]. Furthermore, GMP contends that the parties have a long history of processing grievances through Articles 27 and 28 without strict compliance to any time limits set forth in the CBA [Id.]. Accordingly, GMP maintains that the Berisford and Hall grievances were both properly advanced to arbitration in accordance with the CBA, and that Tecnocap wrongfully refuses to participate in the required arbitrations [Id.]. GMP now seeks a declaration that Tecnocap must arbitrate the Berisford and Hall grievances pursuant to Article 28 of the CBA, and seeks costs incurred in this action [Id. at 6].

         Tecnocap, for its part, contends that, “no arbitration is permissible because the grievances were not timely appealed by [GMP] and are therefore dead” [Doc. 20 at 1]. Further, Tecnocap contends that the issues raised by GMP have already been resolved by the National Labor Relations Board (“NLRB”) and the United States Department of Labor (“DOL”) [Id.].


         Fed. R. Civ. P. 56 provides that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact.” Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)); see also Bouchat v. Baltimore Ravens Football Club, 346 F.3d 514, 519 (4th Cir. 2003) (noting that “[r]egardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the abscence of a genuine issue of material fact.”).

         However, as the United States Supreme Court noted in Anderson, “Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. at 256. “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250; see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment “should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law.”) (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).

         When faced with cross-motions for summary judgment, a district court is not required to grant judgment as a matter of law for one side or the other; rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration. Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720.

         III. ...

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