Int'l Bhd. of Elec. Workers, AFL–CIO, Local Union No. 3 v. Charter Commc'ns, Inc., 17–CV–5357

• Decision Date: 16 February 2018
• Docket Number: 17–CV–5357
• Citation: 286 F.Supp.3d 465
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL–CIO, LOCAL UNION NO. 3, Petitioner, v. CHARTER COMMUNICATIONS, INC., Respondent.
• Court: U.S. District Court — Eastern District of New York

286 F.Supp.3d 465

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL–CIO, LOCAL UNION NO. 3, Petitioner,

v.CHARTER COMMUNICATIONS, INC., Respondent.

17–CV–5357

United States District Court, E.D. New York.

Signed February 16, 2018

International Brotherhood of Electrical Workers, AFL–CIO, Local Union No. 3: Robert T. McGovern, Alexandra Howell, John H. Byington, III, Marty Gerard Glennon, Archer Byington Glennon & Levine LLP, One Huntington Quadrangle, Suite 4C10, POB 9064, Melville, NY 11747.

Charter Communications, Inc.: Kenneth Alan Margolis, Kauff McGuire & Margolis LLP, 950 Third Avenue, 14th Floor, New York, NY 10022.

MEMORANDUM & ORDER

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction...466

II. Facts...467

A. The Original Collective Bargaining Agreement...467

B. Memorandum of Agreement...467

C. Local 3's Continued Acceptance of, and Benefit from, the CBA...467

D. National Labor Relations Board ("NLRB") Decision 1...468

E. NLRB Decision 2...468

III. Law...469

A. Summary Judgment...469

B. Jurisdiction Under the Labor Management Relations Act...469

C. Intent to be Bound...470

IV. Application of Law...471

V. Conclusion...471

I. Introduction

This action is a continuation of the litigation between International Brotherhood of Electrical Workers, AFL–CIO, Local Union No. 3 ("Local 3") and the employer of its members, Charter Communications, Inc. ("Charter"). See e.g. International Brotherhood of Electrical Workers, AFL–CIO, Local Union No. 3 v. Charter Communications Inc., 277 F.Supp.3d 356, 357–58 (E.D.N.Y. 2017) ; Time Warner Cable of New York City LLC v. Int'l Bhd. of Elec. Workers, 170 F.Supp.3d 392, 398 (E.D.N.Y. 2016), judgment entered, No. 14-CV-2437, 2016 WL 1317402 (E.D.N.Y. Mar. 31, 2016), aff'd sub nom. Time Warner Cable of New York City LLC v. Int'l Bhd. of Elec. Workers, AFL–CIO, Local Union No. 3, 684 Fed.Appx. 68 (2d Cir. 2017).

Thousands of union members are employed by Charter in the New York metropolitan area to install and service consumer televisions.

The question is whether Local 3 members were bound by a provision in a Collective Bargaining Agreement ("CBA") requiring arbitration of disputes on March 28, 2017, when they were allegedly on strike?

The parties agree that on March 31, 2017, the no-strike obligation was not in force, so the contested strike period up for arbitration on claimed damages by Charter is three days.

The following uncontested facts establish the existence of a binding agreement mandating arbitration of any dispute prior to March 31, 2017: (1) the parties signed a Memorandum of Agreement ("MOA"), on March 28, 2013, to extend the then in force CBA to March 31, 2017; (2) Local 3 ratified the agreement (the new CBA) by unanimous vote of its 1,300 members; (3) after ratification, the union accepted improved wages and benefits provided as part of the new CBA; and (4) for two years both parties continued to resolve grievances through the arbitration procedures in the new CBA.

Summary judgment is granted in favor of Charter. The no strike and grievance provisions in the new CBA are enforceable. Arbitration is ordered.

II. Facts

A. The Original Collective Bargaining Agreement

From April 1, 2009 to March 31, 2013, Local 3 and Time Warner Cable (recently purchased by, and referred to, as "Charter") were parties to a CBA. International Brotherhood of Electrical Workers, 277 F.Supp.3d at 357–58. The agreement covered employees at Charter's six locations: Bergen County, Southern Manhattan, Northern Manhattan, Brooklyn, Queens, and Staten Island (collectively the "Tri–State facilities").

The original CBA governed the dispute resolution process—including arbitration:

Section 24 of the CBA defined the term "grievance" and detailed a process for resolving grievances, including the use of final binding arbitration. Section 31 of the CBA contained a "no-strike clause:" "There shall be no cessation or stoppage of work, service or employment, on the part of, or at the instance of either party, during the term of this Agreement."

Id. (internal citations omitted).

The original CBA included a number of location specific riders, unrelated to arbitration or grievance procedure. See Local Union No. 3 and Time Warner Cable, 363 NLRB No. 29 –CB–125701, at 11 (2015).

B. Memorandum of Agreement

The parties signed a Memorandum of Agreement ("MOA") on March 28, 2013, extending the original CBA, with some modifications, to March 31, 2017; this constituted the new CBA. International Brotherhood of Electrical Workers, 277 F.Supp.3d at 358. Changes did not apply to the section banning strikes, or those dealing with arbitration or grievance procedure. See Kevin Smith Declaration ("Smith Decl."), ECF No. 37, Exh. B, Dec. 6, 2017. One week later, Local 3's members unanimously voted to ratify the MOA. Id.

After a protracted argument over whether the riders in the original CBA would carry over to the new CBA, Local 3 refused to sign the agreement. Local Union No. 3, 363 NLRB No. 29 –CB–125701 at 15.

C. Local 3's Continued Acceptance of, and Benefit from, the CBA

Immediately following ratification of the MOA, the employer implemented the new CBA, including increased wages and improved benefits for Local 3 members. Smith Decl. at 3.

From March 31, 2013 through March 10, 2015, Local 3 continued to acknowledge the new CBA's effectiveness by taking advantage of grievance and arbitration procedures. Id. at 7. Over this period the union demanded fourteen arbitration proceedings pursuant to the "terms of an agreement between the parties." Smith Decl., Exh. D. In their "Notice of Intent to Arbitrate," Local 3 regularly referenced the terms of the new CBA. See e.g. Smith Decl., Exh. D., Arbitration Notice, Mar. 10, 2015 ("Whether the Employer violated the collective bargaining agreement by subcontracting Business Service Class service calls.").

In decisions resolving disputes, arbitrators cited and relied on section 24 of the new CBA (Grievance and Arbitration) as their basis for jurisdiction.

This matter comes before the undersigned Arbitrator pursuant to a demand for arbitration filed by Local 3 ... Local 3 and [Charter] are parties to a Collective Bargaining Agreement ... the Company renewed its argument that the grievance was not arbitrable because Local 3 failed to comply with the terms of ... the CBA ... The Union contended that it, in fact, complied with the requirements of the CBA.

Smith Decl., Exh. E., American Arbitration Association Case No. 01–0000–5575 at 1, 5–6.

D. National Labor Relations Board ("NLRB") Decision 1

In response to Local 3's refusal to sign the new CBA, the employer, in March of 2014, filed a complaint with the "NLRB claiming that Local 3 engaged in an unfair labor practice by refusing to sign a collective bargaining agreement implementing the changes in the MOA." International Brotherhood of Electrical Workers, 277 F.Supp.3d at 358. Both parties effectively conceded that the MOA extended the underlying terms of the original CBA, including the prohibition on striking; the dispute centered on whether Local 3 committed an unfair labor practice by refusing to sign the new CBA without the riders. See Smith Decl., Exh.'s F, J.

A three judge panel of the NLRB affirmed a decision of an Administrative Law Judge ("ALJ") finding that Local 3 had not committed an unfair labor practice by refusing to sign the new CBA. Local Union No. 3, 363 NLRB No. 29 –CB–125701. The ALJ who presided over the initial hearing, held:

there was no meeting of the minds in March 2013 when the parties signed the MOA, that Riders would be excluded from the successor agreement as contended by [Charter] ... the terms of the MOA were ambiguous as to whether the riders from the previous agreements were to be included in the successor agreement.

Id. at 18.

In their motion papers, and during the hearing, Local 3 argued that the new CBA was binding and that a meeting of the minds existed to include the riders. The ALJ rejected this argument:

I make no findings that [Local 3] is correct in its assertion that a meeting of the minds has been established that the successor agreement would include all the riders ... Indeed this was the position espoused by [Local 3] in its charge to the Region.

Id. at 19.

E. NLRB Decision 2

In a separate ruling, on June 14, 2016, an ALJ held that the no-strike clause in the original CBA continued to be enforceable against members of Local 3. Time Warner Cable and Local Union No. 3, NLRB No. 02–CA–126860 at 13 (2016) (internal citation omitted) ("[T]he intention of the parties was reflected in the [MOA], which incorporated certain provisions from the expired CBA, including the no-strike clause. The [MOA] constituted a clear continuation of the waiver of employees' rights set forth in the expired CBA ... Therefore, the no-strike clause, which remained in effect on April 2, prohibited the four discriminatees from the ‘cessation or stoppage of work, service or employment on April 2.’ ").

The ALJ found that the prior NLRB decision was binding as to the non-inclusion of the riders, but that the signing of the MOA extended the applicability of the no-strike clause under the CBA.

The Board's decision in, [ 353 NLRB No. 30 (N.L.R.B. 2015) ] serves as the law of the case on the issue of whether there was an agreement between the parties regarding the expired CBA by virtue of the [MOA] entered into by the parties: there was no meeting of the minds as to significant portions of the agreement (the inclusion of local Riders) and thus, the parties did not agree to all of the material terms of a successor CBA.

It is the [MOA] and not the inability to agree to a successor CBA, which is dispositive with respect to the applicability of the no-strike clause to the events of April 2. The no-strike clause was among the numerous provisions of the expired CBA that were to carry over to the successor CBA but were not mentioned in the [MOA]. Its incorporation by reference in the [MOA] is evidenced by the introduction: ‘[T]he changes

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