Opinion
8:99CV528
July, 2000
MEMORANDUM AND ORDER
Pending before the Court is the plaintiff's motion for summary judgment (filing 9).
In support of the motion, the plaintiff has filed affidavits with attached exhibits (filings 9 15). In opposition to the motion, the defendants have filed an index of evidence (filing 14). Both parties have submitted briefs. On June 29, 2000, the Court heard oral arguments on the motion. Following a review of the evidence and arguments, the Court will grant the plaintiff's motion.
I. Factual background
The plaintiff, International Union of Operating Engineers, Local No. 571 (hereinafter referred to as the "Union"), filed this lawsuit in December 1999. The plaintiff claims that Negus-Sons, Inc., and Netal, Inc. (hereinafter collectively referred to as "Employer") violated Article XII (B) of a Collective Bargaining Agreement ("CBA") providing for mandatory arbitration of grievances or disputes. The underlying dispute arose when the defendants refused to pay double time to employees for all hours worked on Monday, July 5, 1999, the day observed by the federal government as Independence Day. Instead, the Employer paid double time to employees for all hours worked on Sunday, July 4, 1999.
To date, the Employer has refused to arbitrate the matter. The Employer asserts that under Article V of the CBA, the Employer is authorized to determine what day to observe a national holiday. The union seeks judgment in its favor and specific performance of Article XII(B) of the CBA, together with reasonable attorney's fees and costs.
II. Standard of Review
A court ruling on a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that the court can draw from the facts. Fed.R.Civ.P. 56(b)(c). The moving party bears the responsibility to identify those portions of the record which illustrate the lack of a genuine issue of material fact. If a moving party carries this burden to show the nonexistence of a material fact, the nonmoving party must go beyond the pleadings to the evidence and specify facts establishing a genuine issue of material fact for trial.
III. Discussion
Having studied the evidence, including the defendants' affidavits, the Court finds no material facts in dispute. The documentary evidence establishes that the defendants acted on a viable claim of right under Article V of the CBA in choosing to pay employee holiday pay on Sunday, July 4, instead of on Monday, July 5, the federally observed holiday. The Employer claims it was authorized by the express language — "or days observed as such" contained in Article V of the CBA — to determine on what day Independence Day should be observed.
At least one federal circuit court has ruled that when an employer plausibly relies on a contractual provision for its action under the express terms of a CBA, and the matter in dispute is subject to arbitration, then the National Labor Relations Board should refrain from initiating an unfair labor practice and leave the parties to the remedies outlined in the CBA. Burns Internat'l Security Serv. v. NLRB, 146 F.3d 873, 875 (D.C. Cir. 1998).
The language of Article XII(B) reads in pertinent part:
Any grievance or dispute as to the proper interpretation of this Agreement . . . shall be settled by the Business Agent of the Union and the Contractor or its representatives. In the event that such dispute or grievance is not satisfactorily adjusted by the Business Agent and Contractor it shall be referred to the Board of Conciliation. . . . The parties agree that the decision of the Board shall be final, conclusive and binding. . . .
(Filing 9, Attachment marked Ex. 1, Article XII(B) at p. 13).
This case involves a dispute over the proper interpretation of the express language "or days observed as such" contained in Article V of the CBA. Article XII(B) provides for arbitration of any grievance or dispute as to the proper interpretation of the CBA. Accordingly, the dispute before the Court should be resolved by the methods of dispute resolution contemplated by the parties and provided for in the CBA. As such, the Court will grant the plaintiff's motion for summary judgment and order the defendants to comply with the dispute resolution provisions outlined in Article XII(B).
IT IS HEREBY ORDERED the plaintiff's motion for summary judgment ( filing 9) is granted.
JUDGMENT
In accordance with the Court's Memorandum and Order (filing ____) entered today, judgment is entered in favor of the plaintiff and against the defendants with each party to pay its own costs and attorney's fees.
The defendants are hereby ordered to comply with the dispute resolution provisions contained in Article XII (B) of the Collective Bargaining Agreement between the parties.
Dated this the _____ day of July, 2000.