UNITED PAPERWORKERS INTERN. v. ITT Rayonier, Inc., 89-534-Civ-J-12.

• Decision Date: 06 September 1990
• Docket Number: No. 89-534-Civ-J-12.,89-534-Civ-J-12.
• Citation: 752 F. Supp. 427
• Parties: UNITED PAPERWORKERS INTERNATIONAL, LOCAL # 395, and United Paperworkers International, Local # 766, Plaintiffs, v. ITT RAYONIER, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

752 F. Supp. 427

UNITED PAPERWORKERS INTERNATIONAL, LOCAL # 395, and United Paperworkers International, Local # 766, Plaintiffs, v. ITT RAYONIER, INC., Defendant.

No. 89-534-Civ-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

July 18, 1990.

On Motion for Stay Pending Appeal September 6, 1990.

John F. MacLennan, Kattman, Eshelman & MacLennan, P.A., Jacksonville, Fla., for plaintiffs.

Guy O. Farmer, II and Kevin E. Hyde, Jacksonville, Fla., for defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND COMPELLING ARBITRATION OF GRIEVANCE

MELTON, District Judge.

This cause is before the Court on plaintiffs' Motion for Summary Judgment, filed herein on May 16, 1990, and defendant's Cross-Motion for Summary Judgment, filed herein on June 15, 1990. Defendant's response to plaintiff's motion was incorporated in its cross-motion and plaintiffs' memorandum in opposition to defendant's cross-motion was filed herein on July 6, 1990. For the reasons stated herein, the Court will grant plaintiffs' motion and will deny defendant's cross-motion.¹

Plaintiffs, United Paperworkers International, Local No. 766 and Local No. 395 (collectively "the Union"), move for an order to compel arbitration of a grievance filed with defendant ITT Rayonier Incorporated ("the Company") on July 11, 1988, concerning the subcontracting out of work previously performed by members of the Union. The Union argues that the subject matter of grievance falls within the scope of the arbitration clause and therefore this Court must order the Company to arbitrate. See, e.g., AT & T Technologies, Inc. v. Communication Workers of Am., 475 U.S. 643, 650-51, 106 S.Ct. 1415, 1419-20, 89 L.Ed.2d 648 (1988); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960).

The Company moves for judgment in its favor on the ground that the grievance was not timely filed under the collective bargaining agreement. The Company maintains that the matter of timeliness is properly decided by this Court, relying on United Steelworkers v. Cherokee Electric, 127 LRRM 2375, 108 Lab. Cases (CCH) ¶ 10,441, 1987 WL 17056 (N.D.Ala.1987), aff'd without opinion, 829 F.2d 1131 (11th Cir.), cert. denied, 485 U.S. 1038, 108 S.Ct. 1601, 99 L.Ed.2d 915 (1988). The Company argues that the National Labor Relations Board's determination regarding the date on which the unfair labor practice charge arose should be accorded deference in determining the timeliness of the grievance. If the Court followed this suggestion, the grievance would be unquestionably untimely.

The NLRB, however, was not concerned with the same issue that is before the Court. The unfair labor practice charge relates to an allegation of refusal to bargain over conditions of employment; the grievance covers the effect of that failure, the opening of the nonunion wood chipping operation and its displacement of union members, an event that took place much later than the refusal to bargain itself. Moreover, the deference normally accorded to the NLRB on the interpretation of labor statutes derives from its expertise concerning national labor policy, see, e.g., NLRB v. Curtin Matheson Scientific, Inc., ___ U.S. ___, 110 S.Ct. 1542, 1549, 108 L.Ed.2d 801 (1990); by contrast, the procedural issue of a grievance's timeliness is committed to the special expertise and discretion of the arbitrator, see generally Shopmen's Local No. 539 v. Mosher Steel Co., 796 F.2d 1361 (11th Cir.1986). The Court therefore finds no bar to compelling arbitration resulting from the NLRB's determination that the unfair labor practice charge was untimely.

The Company does not dispute the Union's contention that the underlying grievance is substantively arbitrable. The Company interposes only the procedural issue of timeliness. "Once it is determined ... that the parties are obligated to submit the subject matter of a dispute to arbitration, `procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964); accord United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 40, 108 S.Ct. 364, 372, 98 L.Ed.2d 286 (1987). This principle applies with particular force when, as here, the arbitration provision has broad coverage, governing "a dispute which arises as to the interpretation or application of this contract...." 1983 Collective Bargaining Agreement Between ITT Rayonier Fernandina Division and UPIU Local 395 and 766, § 6(A)(1). The breadth of this language concerning arbitrable disputes creates a contractual basis for committing the issue of timeliness to the arbitrator. See International Union of Operating Eng'rs Local 150 v. Flair Builders, Inc., 406 U.S. 487, 491-92, 92 S.Ct. 1710, 1712-13, 32 L.Ed.2d 248 (1972) (collective bargaining agreement providing for arbitration of "any difference" committed issue of laches to arbitrator).

The Company's reliance on Cherokee Electric is misplaced. The district court in that case reached a narrow holding that arbitration should not be compelled where the union conceded that the grievance was untimely under the collective bargaining agreement. The core principle of this holding is quite sound. If an arbitrator could not reasonably find that the grievance was timely, then the court should not compel arbitration because an arbitration award in favor of the union would not be enforceable if rendered. See, e.g., United States Postal Serv. v. National Ass'n of Letter Carriers, 847 F.2d 775, 778 (11th Cir.1988) (court will not enforce arbitrary or capricious arbitration award); see also United Paperworkers, 484 U.S. at 38, 108 S.Ct. at 371 (court cannot refuse to enforce award on ground that arbitrator misread contract, but may if arbitrator ignored plain language of agreement). Of course, this principle has its corollary, namely, if an arbitrator could reasonably find the grievance timely, then the court must order arbitration. See Drummond Coal Co. v. United Mineworkers of Am., 748 F.2d 1495, 1499 (11th Cir.1984); accord Shopmen's Local No. 539, 796 F.2d at 1366 (district court erred in refusing to enforce arbitration award where arbitrator rendered reasonable ruling on timeliness issue). The Union presents grounds upon which an arbitrator could reasonably conclude that the grievance is timely, including an argument concerning waiver of the timeliness issue.

The foregoing analysis leads the Court to conclude that the question of timeliness raised by the Company is an issue committed to the arbitrator and therefore is not a basis to refuse to compel arbitration. The Union also requests judgment in its favor on the matter of the timeliness of the filing of this action, an issue that has since been resolved in the Union's favor. See United Paperworkers Int'l, Local No. 395 v. ITT Rayonier, Inc., 740 F.Supp. 833 (M.D.Fla. 1990). The impediments to an order compelling arbitration have been removed and the Union has demonstrated the prerequisites thereto. Accordingly, it is

ORDERED AND ADJUDGED:

1. That defendant's Cross-Motion for Summary Judgment is hereby denied;

2. That plaintiff's Motion for Summary Judgment is hereby granted;

3. That defendant ITT Rayonier, Incorporated, is hereby ordered to submit forthwith to final and binding arbitration of grievance no. 88-Joint in accordance with the terms of the 1983 Collective Bargaining Agreement Between ITT Rayonier, Fernandina Division and UPIU Local 395 and 766; and

4. That the Clerk of Court is hereby directed to enter judgment for plaintiffs in accordance with this order.

Done and ordered.

ON MOTION FOR STAY PENDING APPEAL

This cause is before the Court on defendant's Motion for Stay of the Court's Order and Final Judgment of July 18, 1990, filed herein on August 9, 1990. Plaintiffs responded with a memorandum in opposition to the motion, filed herein on August 31, 1990.

The power of this Court to grant a stay pending appeal is governed by Fed.R. Civ.P. 62(c). The factors regulating the issuance of a stay are:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987) (citing inter alia Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986)). "Since the traditional stay factors contemplate individualized judgments in each case, the formula cannot be reduced to a set of rigid rules." Id. 481 U.S. at 777, 107 S.Ct. at 2119.

"Ordinarily the first factor is the most important." Garcia-Mir, 781 F.2d at 1453. If defendant ITT Rayonier, Inc. ("the Company"), as the stay applicant, demonstrates a probable likelihood of success on merits on appeal, a stay should be granted. Id. A lesser showing of a "substantial case on the merits" will justify a stay if the balance of equities in the other three factors weighs heavily in favor granting the stay. Id.

The Company's application for a stay focuses on the statute of limitation argument rejected by the Court in its order entered July 18, 1990. The Company acknowledges that the Eleventh Circuit has not yet reviewed a case arising out of Florida in which the statute of limitation for an action to compel arbitration is at issue. The Company relies on the authorities that it argued to the Court in its motion for summary judgment.

The Company's reliance on its previous authorities forecloses a finding that it has a probable likelihood of success on the merits. Whether the Company presents a substantial case on the merits is a close question. The Company did not address adequately, in its reply memorandum on the ...