Posadas de Puerto Rico Associates, Inc. v. Asociacion de Empleados de Casino de Puerto Rico

• Decision Date: 24 November 1986
• Docket Number: Civ. No. 85-1684(PG).
• Citation: 648 F. Supp. 879
• Parties: POSADAS de PUERTO RICO ASSOCIATES, INC., d/b/a Condado Plaza Hotel and Casino, Plaintiff, v. ASOCIACION de EMPLEADOS de CASINO de PUERTO RICO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

648 F. Supp. 879

POSADAS de PUERTO RICO ASSOCIATES, INC., d/b/a Condado Plaza Hotel and Casino, Plaintiff, v. ASOCIACION de EMPLEADOS de CASINO de PUERTO RICO, Defendant.

Civ. No. 85-1684(PG).

United States District Court, D. Puerto Rico.

November 24, 1986.

María Milagros Soto, Hato Rey, P.R., for plaintiff.

Ana Matienzo Vicens, Río Piedras, P.R., for defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

Plaintiff, Posadas de Puerto Rico Associates, Inc. (Posadas), has brought suit under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against Asociación de Empleados de Casino de Puerto Rico (Union). Posadas is seeking to vacate an arbitration award for failure to draw its essence from the collective bargaining agreement and for having been issued without jurisdiction. Posadas also alleges that the arbitrator's failure to consider evidence decisive to its position constituted a violation of due process.

The Union filed a motion for summary judgment and a memorandum in support thereof. The Union denies Posada's allegations, argues that Posada's complaint is time barred and requests that the petition to vacate the arbitration award be denied.

Posadas filed a cross-motion for summary judgment and an opposition to the Union's motion for summary judgment.

Summary judgment is proper "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 judgment as a matter of law." Fed.R. Civ.P. 56(c); Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).

The parties agree that there is no genuine disputed issue of material fact. Upon the pleadings, documents and affidavits attached thereto, this Court reached the following:

Findings of Fact

1. Jurisdiction of this case rests under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.

2. On August 14, 1984, José C. Calderón was notified in writing by Posadas that his services as a croupier at the Casino were no longer needed.

3. The Union filed a grievance on Calderón's behalf alleging that Calderón was unjustifiably terminated.

4. At the arbitration hearing held on October 17, 1984, Posadas raised the defense of non-arbitrability of the complaint because the complaint dealt with the dismissal of a probationary employee which, according to Article XII(c)¹ of the collective bargaining agreement, had no recourse to arbitration.

5. Posadas and the Union could not reach a submission agreement as to the questions to be resolved by the arbitrator.² Each party proposed a question and the arbitrator adopted Posadas', which was: "That the arbitrator determine if the complaint filed by Mr. José M. Calderón is or is not arbitrable."

6. At the hearing, Posadas requested that a transcript of another hearing before the Puerto Rico Labor Relations Board, wherein the Union participated, be admitted into evidence. The arbitrator granted the petition and gave Posadas until November 20, 1984, to file said transcript before the case was submitted for decision.

7. Posadas filed a motion with the Board on November 5, 1984, and the Board resolved favorably and ordered the transcript of the record on November 14, 1984. A copy of the motion, and the Board's resolution was sent to the Arbitrator.

8. On April 8, 1985, the Arbitrator issued a Resolution terminating the waiting period for the transcript for he had not received copy of the transcript and had not received communication from Posadas as to the same.

9. On April 19, 1985, the Arbitrator issued the award wherein he decided that the complaint was arbitrable.

Conclusions of Law

The first principle established by a series of cases known as the Steelworkers Trilogy (Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)) is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to so submit." AT & T Technologies v. Communications Workers, ___ U.S. ___, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), quoting, Warrior & Gulf, supra, 363 U.S. at 582, 80 S.Ct. at 1353; American Mfg. Co., supra, 363 U.S. at 570-571, 80 S.Ct. 1364-1365 (Brennan, J., concurring).

The second rule is:

"that the question of arbitrability— whether a collective bargaining agreement creates a duty for the parties to arbitrate the particular grievance — is undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the Court, not the arbitrator. Warrior & Gulf, supra 363 U.S. at 582-583 80 S.Ct. at 1352-1353. See, Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491 92 S.Ct. 1710, 1712, 32 L.Ed.2d 248 (1972); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962), overruled in part on other grounds, Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Accord, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, ___ 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)."

AT & T Technologies v. Communications Workers, supra, 106 S.Ct. at 1418-19. See also, Mobil Oil v. Local 8-766, Oil, Chemical & Atomic, 600 F.2d 322, 324 (1st Cir. 1979); Local 205, etc. v. General Electric Co., 233 F.2d 85, 101 (1st Cir.1956); Meiswinkel, Inc. v. Laborers' Union Local 261, 744 F.2d 1374, 1376 (9th Cir.1984).

The parties to a collective bargaining agreement may agree to submit the question of arbitrability to an arbitrator because an arbitrator's jurisdiction is rooted in the agreement of the parties. George Day Construction Co., Inc. v. United Brotherhood of Carpenters and Joiners of America, Local 354, 722 F.2d 1471, 1474 (9th Cir.1984); Steelworkers v. Warrior & Gulf Co., 363 U.S. at 583 n. 7, 80 S.Ct. at 1353 n. 7; Metal Products Workers Union, Local 1645 v. Torrington Co., 358 F.2d 103 (2nd Cir.1966). As expressed in George Day Construction:

An agreement to allow the arbitrator to decide the question of arbitrability may be acted upon by the arbitrator even though it is collateral to the collective bargaining agreement containing the arbitration clause. See, Syufy Enterprises v. Northern California State Assn. of IATSE Locals, 631 F.2d 124, 125 (9th Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 839 (1981). Moreover, consent to grant the arbitrator such authority may be implied from the conduct of the parties in the arbitration setting (Citations omitted). 722 F.2d at 1475.

The only limitation established by precedent is that the parties' intent to vest the arbitrator with power to decide arbitrability must be clearly demonstrated. Local 369, Utility Workers v. Boston Edison Co., 588 F.Supp. 800 (D.Mass.1984), aff'd, 752 F.2d 1 (1st Cir.1984), citing, Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 583 n. 7, 80 S.Ct. 1347, 1353 n. 7, 4 L.Ed.2d 1409 (1960).

In this case, as in Local 369, the collective bargaining agreement apparently does not explicitly provide for the resolution of arbitrability questions by the arbitrator. However, Posadas' intent to vest the arbitrator with power to decide arbitrability has been clearly demonstrated. Posadas' consent to grant the arbitrator such authority was clear, express and unmistakable even though it recognized that the arbitrability issue could be presented to either the arbitrator or the Court.³ (See Posadas' memorandum of law submitted to the arbitrator after the arbitration hearing at p. 7, and Posadas' motion for summary judgment, p. 4)

The Union, in Local 369, like Posadas in the present case, argued that in agreeing to submit arbitrability to the arbitrator it nonetheless reserved its right to independent judicial determination of the arbitrability issue; that the Court can consider the arbitrator's decision on arbitrability but should not defer to that decision. Rather, the Union contended that the Court must make an independent determination of arbitrability. In support thereof, the Union cited Mobil Oil v. Local 8-766, Oil, Chemical & Atomic Workers, 600 F.2d 322, 325 (1st Cir.1979).

The district court in Local 369 rejected the Union's argument noting that:

Contrary to the Union's assertions, the only precedents for independent judicial determination of arbitrability involved cases in which the parties had not expressly committed arbitrability to the arbitrator for determination. For this reason ... Mobil Oil ... does not address the issue that is presented here. In Mobil Oil, the parties submitted to arbitration a grievance concerning the employer's subcontracting practices. The parties disagreed whether the dispute was arbitrable, but did not submit the arbitrability issue to the arbitrator. The First Circuit held that, in these circumstances, the district court, in reviewing the arbitrator's award, must make its own independent determination of the threshold issue of arbitrability. Id. at 325. The court did not address the role of the district court in reviewing an arbitrator's determination of arbitrability where the parties had agreed, by contract or post-dispute stipulation, to submit the issue of arbitrability to arbitration. 588 F.Supp. at 805.

Similar to Mobil Oil, the cases cited by Posadas, United Steelworkers v. American Mfg. Co., supra, and Steelworkers v. Warrior & Gulf Co., supra, do not address the issue presented. In both cases, the suit under § 302(a) of the Labor Management Relations Act was brought by a labor union to compel arbitration of a...