Shaw's Supermarkets v. United Food, Local 791, 02-2032.

• Decision Date: 06 March 2003
• Docket Number: No. 02-2032.,02-2032.
• Citation: 321 F.3d 251
• Parties: SHAW'S SUPERMARKETS, INC., Plaintiff, Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 791, AFL-CIO, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

321 F.3d 251

SHAW'S SUPERMARKETS, INC., Plaintiff, Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 791, AFL-CIO, Defendant, Appellee.

No. 02-2032.

United States Court of Appeals, First Circuit.

Submitted February 11, 2003.

Decided March 6, 2003.

David E. Watson, Nancy A. McGuire, Thomas W. Colomb, and Nutter McClennen & Fish LLP on brief for appellant.

Betsy Ehrenberg and Pyle, Rome, Lichten & Ehrenberg, P.C. on brief for appellee.

Before LYNCH, Circuit Judge, BOWNES, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

United Food & Commercial Workers Union, Local 791 ("the Union") pursued like grievances under three separate contracts for three Shaw's Supermarkets, Inc. regions and then brought them to American Arbitration Association ("AAA") arbitration, asking for a single consolidated proceeding. Shaw's objected to the proposed consolidation and brought a federal action for a declaratory judgment that, as a matter of law, a party is prohibited from unilaterally consolidating grievances under multiple contracts into a single arbitration. Shaw's characterization of the question, though, is imprecise, as it would be up to the arbitrator, not the Union, whether to consolidate. Shaw's theory apparently was that the Union could not even ask for consolidation.

The district court declined to enter the declaratory judgment sought by Shaw's; instead, it entered summary judgment for Local 791, holding the question of consolidation was a procedural issue for the arbitrator to decide. Shaw's appeals from the dismissal of its case. We affirm.

I.

Local 791 and Shaw's have signed three collective bargaining agreements ("CBAs") governing workers in stores and warehouses in southeastern Massachusetts, Rhode Island, and Maine. Each CBA provides for arbitration as the fourth and final step of a multi-part grievance process. In May and June 2001, the Union submitted three grievances, one under each CBA, protesting a new company-wide Shaw's policy concerning leaves granted to members of the Union's negotiating committee. The Union requested that the AAA consolidate the three grievances because they challenged the same policy; Shaw's objected. Shaw's filed suit seeking a declaration as well as partial summary judgment from the district court that the Union, by seeking consolidation, had violated Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (2000). The Union filed a cross-motion for summary judgment.

The district court denied Shaw's motion, granted the Union's motion, and ordered Shaw's to arbitrate the grievances. It relied on cases permitting consolidation of arbitrations from multiple grievances under one contract. See, e.g., Avon Prods. Inc. v. UAW, Local 710, 386 F.2d 651, 658-59 (8th Cir.1967) (it is up to the arbitrator, not the courts, to determine whether consolidated grievances presented by the union are to be resolved in single or multiple proceedings). Shaw's says this precedent should not apply where the consolidation involves grievances under multiple contracts.

Shaw's appeals, arguing that consolidation is an issue of substantive arbitrability, and not merely a procedural matter, because it raises the question of whether the CBA empowers an arbitrator to act in a given situation. Ironically, Shaw's relies on a 1947 arbitrator's decision, In re Fair-child Engine & Airplane Corp., 7 Lab. Arb. Reports 112 (1941), where the arbitrator, and not a court, made that determination.

Shaw's also contends that the Union violated Section 301 by unilaterally demanding that the AAA process three grievances in one proceeding, over Shaw's objection. Shaw's argues that if this court determines the issue of consolidation is not a procedural matter, it should reach the Section 301 issue. It supports its argument that Section 301 is violated by saying that each of the three contracts in question refers to "this agreement" and so they may not be read to permit consolidation.

Shaw's stated objection is that it should not be obliged to arbitrate cross-contract, and that consolidation will give the Union an unfair advantage. Shaw's says that consolidation is contrary to the inviolability and integrity of the bargaining unit. Why this should be so is not self-evident. Indeed, Shaw's agreed to some consolidation on an earlier occasion.¹

The Union asserts that there is a common question underlying all three grievances. The common question relates to a new company-wide policy requiring employees who are members of the negotiating committees to take a leave of absence for the duration of contract negotiations, rather than allowing them to take individual days off, which was the prior practice. The Union points out that the same company official was present for the negotiation of all three contracts and one company representative answered all three grievances at issue.

After Shaw's objected to consolidating the grievances and refused to participate in processing them, the AAA notified both sides that it would continue to administer the case as submitted by the Union unless it was advised to the contrary by both parties or enjoined by a court of proper jurisdiction. No arbitrator has yet considered the merits of Shaw's objections to the consolidation, and there appears to be nothing to stop Shaw's from raising the issue of consolidation at arbitration.

II.

Because this appeal presents a question of law, appellate review is plenary. See PaineWebber Inc. v. Elahi, 87 F.3d 589, 592 (1st Cir.1996) (determination of arbitrability depends on contract interpretation which is a matter of law).

The issue before us is who should make the determination as to whether to consolidate the three grievances into a single arbitration: the arbitrator or a federal court. Since each of the three grievances is itself concededly arbitrable, we think the answer is clear. Under Howsam v. Dean Witter Reynolds, Inc., ___ U.S. ___, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), this is a procedural matter for the arbitrator. In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-58, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), the Court distinguished between questions of arbitrability, which are committed to the courts, and questions of procedure, which should be left to the...