Wackenhut Serv. Inc. v. United Gov't Sec. Officers of Am.

• Decision Date: 30 September 2010
• Docket Number: Civil No. 09–1433(RJL).
• Citation: 741 F.Supp.2d 239
• Parties: WACKENHUT SERVICES, INC., Plaintiff,v.UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, Local 44, Defendants.
• Court: U.S. District Court — District of Columbia

741 F.Supp.2d 239

WACKENHUT SERVICES, INC., Plaintiff,

v.UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, Local 44, Defendants.

Civil No. 09–1433(RJL).

United States District Court, District of Columbia.

Sept. 30, 2010.

Emily C. Schilling, Sheila D. Jones, Holland & Hart, LLP, Washington, DC, Bradford J. Williams, Holland & Hart LLP, Denver, CO, Brian M. Mumaugh, Holland & Hart LLP, Greenwood Village, CO, for Plaintiff.Jonathan David Newman, Lucas Robert Jason Aubrey, Sherman, Dunn, Cohen, Leifer & Yellig, Washington, DC, for Defendants.

MEMORANDUM OPINIONRICHARD J. LEON, District Judge.

Plaintiff Wackenhut Services, Inc. (“plaintiff” or “WSI”) brings this action against United Government Security Officers of America, Local 44 (“defendant” or “Local 44”) to vacate, or modify, an arbitration award issued under the Collective Bargaining Agreement between WSI and Local 44, effective October 1, 2007 to September 30, 2010 (“CBA”). WSI claims, in essence, that the underlying grievance was not arbitrable and that, even if it were, the award exceeded the arbitrator's authority under the CBA. Before this Court is WSI's Motion for Summary Judgment and Local 44's Cross–Motion for Summary Judgment. After due consideration of the parties' pleadings, the relevant law, and the entire record herein, WSI's motion is DENIED and Local 44's motion is GRANTED.

BACKGROUND

WSI is a Florida corporation that provides security services to U.S. Government agencies and private companies, including the Department of Justice (“DOJ”). Compl. ¶ 4. Prior to May 2008, under WSI's contract with DOJ, all security officers deployed at DOJ sites were required to be armed Justice Protective Security Officers (“JPSOs”). Id. ¶¶ 9–10. In August 2007, due to difficulties in hiring and retaining JPSOs in the Washington, DC area, together with the increasing demand for more security guards at a new DOJ site, WSI proposed to DOJ a two-tiered staffing arrangement that would include both armed JPSOs and unarmed Special Service Officers (“SSOs”). Pl.'s Stmt. of Facts (“Pl.Stmt.”) ¶¶ 11–19. Six months later, in February 2008, DOJ approached WSI and asked if it remained willing to explore a two-tiered arrangement. Id. at 26–28. Subsequently, DOJ and WSI explored a staffing arrangement to supplement JPSOs that incorporated armed Special Police Officers (“SPOs”). See Pl.'s Mot. Mem. at 6; Def.'s Mot. Mem. at 5. SPOs, who had less credentials than JPSOs, would be paid a competitive salary, but one less than the current JPSO salary. See Pl.'s Mot. Mem. at 9; Def.'s Mot. Mem. at 7. After reaching agreements on all outstanding issues, WSI and DOJ entered into a formal bilateral contract modification (“Mod 41”) on May 22, 2008. Compl. ¶ 9.

Local 44 is a union representing security officers employed by WSI and working at DOJ. Id. ¶ 5. On May 28, 2008, WSI informed Local 44 of Mod 41 and provided the union with a copy of the modification. Id. ¶ 11. Local 44 immediately objected to this contract modification. Pl.'s Mot. Mem. at 10. Notwithstanding their objection, WSI began hiring SPOs to staff the security positions in mid-August 2008. See Compl. ¶ 12. On September 2, 2008, Local 44 filed a grievance claiming that WSI had violated various terms of the CBA by hiring SPOs to perform work otherwise performed by JPSOs. Id. ¶ 13. Pursuant to the procedures outlined in the CBA, WSI and Local 44 disputed this grievance through various intermediate steps before proceeding to arbitration. Id. ¶ 14. WSI consistently maintained that Local 44's grievance was not arbitrable under the CBA. See id. ¶ 15.

On June 16, 2009, however, Arbitrator Andrew M. Strongin (“Strongin”) found that Local 44's grievance was arbitrable because it involved neither an interpretation of WSI's contract with the government, nor the “adherence to a request” from the government. Corny Decl. Ex. 15, at 7–9. As such, Strongin concluded that WSI had violated the terms of the CBA by staffing positions identified in Mod 41 with SPOs. Id. at 9–15. Central to Strongin's holding was the admission made by WSI representative Kevin Conry, “that nothing in Mod 41 precludes WSI from continuing to staff all posts with JPSOs, albeit at the new SPO rate.” Id. at 14. Thus, Strongin determined that WSI should pay those SPOs already hired the negotiated wage under the CBA, both retrospectively and prospectively. Id. at 16. Strongin further determined that WSI should cease hiring any additional SPOs. Id.

On July 31, 2009 WSI brought this action challenging Strongin's decision, claiming that defendant's grievance was not arbitrable and that, even if it were, the award issued by Strongin exceeded his authority under the CBA. Compl. ¶¶ 18–26. WSI, in essence, wants this Court to vacate Strongin's decision or, at a minimum, modify it to be consistent with the CBA. Id. ¶¶ 25–26. For the following reasons, I cannot do either.

ANALYSIS

Both plaintiff and defendant have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Summary judgment shall be granted in favor of a particular movant if the record demonstrates “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing same). In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I. Defendant's Grievance Was Arbitrable Under the CBA

In deciding whether a labor dispute is subject to arbitration under a collective-bargaining agreement, this Court is guided by the four principles set forth by the Supreme Court in AT & T Tech., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648–50, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). The first principle recognizes that arbitration is the product of contractual obligations and, therefore, “arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.” Id. at 648–49, 106 S.Ct. 1415. As such, the second principle recognizes that unless the parties have agreed otherwise, it is for the courts, not the arbitrator, to decide whether arbitration is required under the agreement. Id. at 649, 106 S.Ct. 1415. Third, in deciding whether a grievance is arbitrable, courts should not “rule on the potential merits of the underlying claims.” Id. And under the fourth principle, the courts recognize a presumption of arbitrability. Id. at 650, 106 S.Ct. 1415. Specifically, this principle requires that arbitration be upheld “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id. (emphasis added).

Here, Article 7 of the CBA sets forth the grievance procedures binding on WSI and Local 44. Corny Decl. Ex. 2 (“CBA”), at 5–8. With respect to arbitration, Section 3(d) of the agreement states, “[e]xcept as limited below, any grievance arising during the term of this Agreement not resolved [through prior grievance procedures] may be submitted to arbitration by [Local 44] ...” Id. at 6. As an initial matter, Section 3(d)(i) makes clear that only Local 44 can initiate an arbitration proceeding. Id. Section 3(d)(ii) then states, in relevant part, that “[n]o grievance regarding a dispute as to ... the Employer's adherence to a request of the Government shall be processed to [arbitration] since those matters are not arbitrable ...” Id. Sections 3(d)(iii)-(vii) proceed to set out the procedures and permissible scope for the arbitration. In that regard, Section 3(d)(vii) states that the “arbitrator shall have no to power to ... consider any matter or substitute his/her judgment for that of the Government's regarding a determination or request of the Department of Justice ...” Id. WSI argues, however, that the effect of this section of the agreement actually precludes arbitration here because Strongin made reference in his decision to DOJ's requests and inquiries leading up to the adoption of Mod 41. See Pl.'s Mot. Mem. at 14–15. I disagree.

Article 7, Section 3(d), in its entirety, clearly indicates that it is Section 3(d)( ii ) that sets the limits on what types of grievances may be arbitrated. In other words, Section 3(d)(ii) establishes the limits on the arbitrator's jurisdiction.¹ Indeed, the text of Section 3(d)(ii) specifically enumerates the “grievance[s]” that “are not arbitrable” under the agreement. CBA at 6. Thus, Strongin would have no jurisdiction over a “dispute as to ... the Employer's adherence to a request of the Government” Id. (emphasis added). Section 3(d)( vii ), by comparison, merely establishes limits on the scope of the arbitrator's authority in addressing and remedying a grievance that has been properly put before him or her. This limitation is evident from the Section, itself, which provides that the arbitrator may not look beyond or modify the CBA, apply law, establish or modify any wage rates, limit WSI's discretion “except only as that discretion may be specifically limited by the express terms of [the CBA],” or, indeed, consider matters regarding requests from DOJ. Id. at 7. It is also, of course, consistent with the well-established cannon of construction that prefers an interpretation of a contract “which gives a reasonable, lawful, and effective meaning to all the terms ... to an interpretation which leaves a part [of the contract] unreasonable, unlawful, or of no effect.” Restatement (Second) of Contracts § 203(a) (1981). If this Court were to adopt WSI's reading of Section 3(d)(vii), as a supplement to those limitations set forth in Section 3(d)(ii), I would effectively be rewriting the CBA to include a more restrictive scope of arbitrability than that set forth in Section 3(d)(ii). See ...