Union Internacional, UAW Local v. Bacardi Corporation ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1136
UNIÓN INTERNACIONAL UAW, LOCAL 2415,
Plaintiff, Appellant,
v.
BACARDÍ CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez, Thompson, Circuit Judges.
Richard J. Schell, with whom Miguel Simonet-Sierra and
Monserrate, Simonet & Gierbolini, LLC, were on brief, for
appellant.
Nicole M. Rodríguez Ugarte, with whom Enrique R. Padró
Rodríguez and Silva-Cofresí Manzano & Padró LLC were on brief, for
appellee.
August 9, 2021
LIPEZ, Circuit Judge. Unión Internacional UAW, Local
2415 ("UAW" or "the Union") appeals the district court's summary
affirmance of an arbitration award dismissing its wage grievance
claim against Bacardí Corporation ("Bacardí" or "the Company").
The arbitrator found that the claim was not procedurally arbitrable
because the UAW had failed to comply with the contractual wage
grievance procedure. The UAW argues that the arbitrator should
have deemed this procedural arbitrability defect waived because
Bacardí first raised it more than five years after filing an
initial arbitration submission claiming a different defense, a
delay incompatible with a regulation of the Puerto Rico Arbitration
Bureau incorporated into the collective bargaining agreement
between he parties. Alternatively, the UAW argues that the
procedural defect did not justify dismissing the entire claim
because even if part of its grievance was time-barred, a portion
of the grievance was timely and should have been permitted to
proceed.
We think that the UAW's waiver arguments have merit.
However, we are bound by an exceedingly deferential standard of
review. The UAW has not identified an error in the arbitration
award so egregious as to permit us to vacate it. See United
Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38
(1987) ("[A]s long as the arbitrator is even arguably construing
or applying the contract and acting within the scope of his
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authority, that a court is convinced he committed serious error
does not suffice to overturn his decision."). Thus, we affirm the
judgment of the district court.
I.
A. The 2006-2011 Collective Bargaining Agreement
At the heart of this case is a wage grievance filed
pursuant to a collective bargaining agreement ("CBA") between
Bacardí and the UAW from January 1, 2006, through December 31,
2011. Article IX of the CBA states requirements for employees'
work schedules and compensation. Among other things, it requires
Bacardí to "pay each employee at the rate of two (2) times the
regular hourly rate of the employee's pay . . . [for] [h]ours
worked between 10:00 p.m. from Saturday and Sunday at 10:00 p.m."
Bacardí is also required to pay employees two times their regular
hourly rate for hours worked on certain holidays. Article XI
further provides that employees who work eight-hour continuous
shifts will work during their mealtime period and be "paid at a
rate of seven and a half (7 1/2) regular hours and a half (1/2)
double hours." The double pay is intended to compensate for "the
concept of working during the mealtime."
Article VIII provides a three-tiered grievance process
for complaints and grievances. At the first step, an employee
must raise her grievance with a supervisor. At the second step,
that employee or the UAW submits a written complaint to Bacardí's
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Human Resources Director or an authorized representative. Per the
CBA,
[s]uch complaint must state the details of the
incident over which the claim is based; it
must specify the section or sections of the
Agreement that are considered violated, and it
must propose the solution sought by the
grievant employee or by the Union. Regardless
of the time of any discussion in step number
one, the written grievance in step number two
must be presented within seven (7[]) business
days following the facts of the grievance.
. . . If the grievance is not presented [to]
the Human Resources Director in the manner
established above and within the prescribed
deadline, the matter will be considered
definitively decided and/or that the complaint
has been withdrawn.
At the third step, the Union may request arbitration from the
Director of the Conciliation and Arbitration Bureau of the
Department of Labor of Puerto Rico ("the Bureau") in accordance
with its regulations. The Union must file for arbitration within
seven business days following Bacardí's decision at the Second
Step. "[C]laims for wages that arise as a result of a different
interpretation of the law by the Company, workers or the Union"
are not subject to arbitration, but instead, are to be brought
before the relevant government agency.
B. The UAW's 2007 Grievance
On August 26, 2007, the UAW initiated the First Step of
the grievance process, claiming that Bacardí was not in compliance
with the CBA because it underpaid employees for mealtimes worked
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on weekends and holidays. On August 30, 2007, the UAW submitted
its Second Step written complaint to Bacardí's Human Resources
Department. The complaint stated as follows:
We hereby wish to indicate that the union does
not agree with the way the company . . . is
paying the meal time periods when working on
Saturday to Sunday, Sunday, holidays, and
others. The payment must be made at the
employee's hourly wage when working one of
those days and not the regular hourly wage of
the employee. Therefore, the company is
violating the collective bargaining agreement
in article IX section 4 among others. The
solution sought is to be paid the unearned
wages retroactively and prospectively to those
affected employees.
In other words, it was the Union's view that the benefits of the
double pay for certain weekends and holidays, and the double pay
for the half hour mealtime period, should be compounded, meaning
that employees would receive quadruple pay for those mealtime
periods.
On September 6, 2007, Bacardí responded to the UAW's
complaint. Bacardí stated that the UAW had failed to indicate the
specific dates of the alleged violations. It asserted that weekend
and holiday mealtimes were "being paid in the same way that we
have done since the signing of the current Collective Bargaining
Agreement" and this was the first complaint regarding this issue.
Bacardí denied that it was violating the CBA and asserted that the
UAW's interpretation was inconsistent with the explicit language
of the CBA. In Bacardí's view, the weekend and holiday double pay
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and the mealtime double pay should not be compounded, and employees
do not receive extra compensation, above double pay, for mealtimes
on weekends and holidays.
On September 14, 2007, the UAW requested arbitration of
its complaint regarding weekend and holiday mealtime compensation.
Its allegation was brought on behalf of an individual employee,
Luis Santiago, and others. The Union alleged that approximately
126 employees were affected by this issue. For reasons that are
not clear from the record, the Bureau apparently failed to act on
the UAW's request for over five years.
C. The 2013 Arbitration Hearing and 2014 Award
The first arbitration hearing finally took place on June
12, 2013. At the hearing, Bacardí raised a defense of substantive
arbitrability,1 claiming that the matter was not arbitrable because
the CBA specifically excluded wage claims from the grievance and
arbitration procedures. Both parties filed draft submissions with
the arbitrator. Bacardí's submission asked the arbitrator:
To determine in accordance with the law
whether or not the evidence presented by the
Union is substantively arbitrable under the
Collective Bargaining Agreement. If it is
determined that it is, that the Honorable
Arbitrator shall schedule a hearing to hear
the merits.
1 "Substantive arbitrability refers to whether a dispute
involves a subject matter that the parties have contractually
agreed to submit to arbitration." Local 285, Serv. Emps. Int'l
Union v. Nonotuck Res. Assocs., Inc., 64 F.3d 735, 739 (1st Cir.
1995).
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The UAW's submission requested:
That the Honorable Arbitrator determine
whether the company is paying distillery
employee[s] in accordance with the applicable
law through the regular schedule of the
employee[s] for the mealtime period not
enjoyed and also for not paying the employees
at the rate of twice the regular hourly time
for hours worked according to Article 9,
section 4(c), during the mealtime period not
enjoyed.
If the Honorable Arbitrator determines that
the company is not paying in accordance with
the provisions of the applicable law, to order
the company to pay all affected employees such
wages due for the mealtime period improperly
paid as well as the penalty imposed by him.
Likewise, to order the company to pay,
correctly those hours worked according to
Article IX, Section 4(c).
Nearly a year later, on March 26, 2014, the arbitrator
issued an award rejecting Bacardí's substantive arbitrability
defense and setting a merits hearing for September 24, 2014.
D. Judicial Review in the Puerto Rico Courts, 2014-2016
The 2014 merits hearing did not occur because Bacardí
chose to appeal the arbitrator's award to the Puerto Rico courts.
On April 14, 2014, Bacardí sought judicial review of the
arbitration award with the Court of First Instance, Superior Part
of San Juan. The court endorsed the arbitrator's rejection of
Bacardí's substantive arbitrability defense. Bacardí then filed
for a writ of certiorari from the Puerto Rico Court of Appeals,
which was denied on June 30, 2015. Bacardí also petitioned for
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certiorari from the Supreme Court of Puerto Rico, which denied
certiorari on January 15, 2016 and issued its mandate on February
4, 2016.
E. The 2018 Hearing and 2019 Award
Following the proceedings in the Puerto Rican courts,
the merits hearing was held on December 20, 2018.2 At the beginning
of that hearing, Bacardí raised, for the first time, a procedural
arbitrability defense.3 It argued that the UAW's claim was not
arbitrable because the UAW had not followed the procedures required
by the CBA. Specifically, Bacardí asserted that the UAW's written
complaint did not include sufficient details of the alleged
violation and that the complaint was not filed within seven days
of the alleged violation. The UAW argued that this defense was
waived, and the arbitrator granted the parties time to brief the
issue.
2 The hearing was previously scheduled for October 3, 2018.
The UAW failed to appear at that hearing and the Arbitrator
postponed it to December 20, 2018. The record does not otherwise
account for the two-year delay between the Supreme Court mandate
and the arbitration hearing.
3 "Procedural arbitrability . . . concerns such issues as to
'whether grievance procedures or some part of them apply to a
particular dispute, whether such procedures have been followed or
excused, or whether the unexcused failure to follow them avoids
the duty to arbitrate.'" Nonotuck Res. Assocs., 64 F.3d at 739(quoting John Wiley & Sons v. Livingston, 376 U.S. 543, 557
(1964)).
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On May 17, 2019, the arbitrator dismissed the UAW's
claim, which had at that point been awaiting resolution for well
over a decade. The arbitrator ruled that the UAW had not complied
with the CBA because of "the excessively late filing of the
complaint, which certainly occurred, much further [than] the seven
(7) working days following the date on which the events . . .
occurred; as well as the lack of specificity thereof, by not
setting forth the dat[e] of the incident over which the claim is
based." Thus, the arbitrator found that the claim was not
procedurally arbitrable.
F. Federal Proceedings
On June 17, 2019, the UAW petitioned for review of the
2019 award before the Puerto Rico Court of First Instance. Bacardí
removed the action to the United States District Court for the
District of Puerto Rico on diversity grounds pursuant to 28 U.S.C.
§ 1441(b).
On October 1, 2019, Bacardí filed a motion for summary
judgment. The UAW opposed Bacardí's motion and filed a cross-
motion for summary judgment. On December 18, 2019, the district
court issued a docket order granting Bacardí's motion, denying the
UAW's motion, and affirming the award of the arbitrator. The
district court did not explain its decision, instead simply
stating, "there is no occasion for an oral hearing or extended
written analysis." The UAW appealed.
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II.
We review the district court's ruling on an arbitration
award de novo. Keebler Co. v. Truck Drivers, Loc. 170, 247 F.3d
8, 11 (1st Cir. 2001). However, all "[j]udicial review of arbitral
awards is 'extremely narrow and exceedingly deferential.'" Id. at
10 (quoting Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321, 330
(1st Cir. 2000)). The inclusion of an arbitration clause in a CBA
reflects an agreement by the employer and the union "to forego a
number of legal options in favor of having their disputes regarding
the construction of that contract settled by an arbitrator."
Ramos-Santiago v. UPS, 524 F.3d 120, 123 (1st Cir. 2008). Our
deference to the arbitrator's decisions is required by "the spirit
of freedom of contract." Id. In practice, this deferential
standard of review means that "[a]rbitral awards are nearly
impervious to judicial oversight." Teamsters Loc. Union No. 42 v.
Supervalu, Inc., 212 F.3d 59, 61 (1st Cir. 2000).
That said, there are limited circumstances under which
vacatur of an arbitration award is appropriate. We may vacate an
award if it is "(1) unfounded in reason and fact; (2) based on
reasoning so palpably faulty that no judge, or group of judges,
ever could conceivably have made such a ruling; or (3) mistakenly
based on a crucial assumption that is concededly a non-fact." Id.
at 66 (quoting Loc. 1445, United Food & Com. Workers Int'l Union
v. Stop & Shop Cos., 776 F.2d 19, 21 (1st Cir. 1985)). The
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arbitrator's award must "draw[] its essence from the collective
bargaining agreement" and cannot be based on "merely '[the
arbitrator's] own brand of industrial justice.'" Misco, 484 U.S.
at 36 (quoting Steelworkers v. Enter. Wheel & Car Corp., 363 U.S.
593, 596 (1960)). Thus, the key question in judicial review of an
arbitration award is whether the arbitrator was "even arguably
construing or applying the contract and acting within the scope of
his authority." Id. at 38.
We also may vacate an arbitration award if it "violate[s]
an 'explicit . . . well defined and dominant' public policy, as
ascertained 'by reference to . . . laws and legal precedents.'"
Mercy Hosp., Inc. v. Mass. Nurses Ass'n, 429 F.3d 338, 343 (1st
Cir. 2005) (alteration in original) (quoting W.R. Grace & Co. v.
Local Union 759, Int'l Union of United Rubber Workers, 461 U.S.
757, 766 (1983).4
4 We have recognized other limited circumstances permitting
vacatur. See Ramirez-De-Arellano v. Am. Airlines, Inc., 133 F.3d
89, 91 (1st Cir. 1997) (quoting Sunshine Mining Co. v. United
Steelworkers, 823 F.2d 1289, 1295 (9th Cir. 1987)) ("Arbitration
proceedings must meet 'the minimal requirements of fairness --
adequate notice, a hearing on the evidence, and an impartial
decision by the arbitrator.'"). This opinion does not discuss the
fundamental fairness exception because it was not raised by the
UAW. While the UAW's brief reflects general concerns about the
fairness of the arbitration award, it does not argue that those
concerns fall within the narrow parameters of "adequate notice, a
hearing on the evidence, [or] an impartial decision by the
arbitrator." Id. (quoting Sunshine Mining Co., 823 F.2d at 1295).
Hence, the argument is waived.
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III.
The UAW argues that the arbitrator's award must be
vacated because Bacardí's procedural arbitrability defense --
offered more than ten years after the initial grievance was filed
and five years after Bacardí initially asserted a substantive
arbitrability defense -- was improper on multiple grounds.
Specifically, the UAW asserts that the acceptance of the belated
defense violates the Bureau's regulations (which are incorporated
into the contract), the judicial doctrines of judicial estoppel
and law of the case, and well-defined public policy in favor of
speedy resolution of disputes through arbitration.
A. The Incorporated Arbitration Regulations
The CBA governing the arbitration proceeding in this
case explicitly incorporates the regulations of the Puerto Rico
Arbitration Bureau. The UAW argues that the arbitrator egregiously
misinterpreted the applicable regulations, specifically Article
XIII(d). That provision states:
In case one of the parties alleges that the
dispute is not arbitrable, they must include
said claim in their submission draft and shall
have the weight of the evidence regarding
their claim. The arbitrator will have
discretion to elucidate the case in the merits
and decide on both controversies once it is
fully submitted. Failure to comply with this
provision shall mean that the arbitrability
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defense of the grievance shall not be
considered.5
In the UAW's view, this article states that any
arbitrability defense not raised in an initial submission is
waived. It argues that the arbitrator has no discretion to
consider a defense not raised in the initial submission because
the regulation's use of the verb "shall" indicates that waiver is
mandatory. Bacardí did not include a procedural arbitrability
defense in its initial submission in 2013. Therefore, under the
UAW's reading of the regulation, that defense is waived.
Bacardí, on the other hand, asserts that Article XIII(d)
does not state "that a party must include all of its arbitrability
defenses in its first submission proposal, or else, it waives the
same, and/or that it cannot include such defenses in a second or
subsequent hearing, after the first issue that was presented to
the Arbitrator through submission was resolved." Indeed, instead
of requiring a party to raise "claims" (plural) in its initial
5 Article XIII(d) contradicts Bacardí's position that
arbitrability is akin to subject matter jurisdiction. The
regulations clearly state that, under some circumstances, an
arbitrability defense can be waived. Thus, any comparison to
subject matter jurisdiction is unavailing. Subject matter
jurisdiction is governed by Article III of the Constitution and is
a constitutional requirement that can never be waived. Foisie v.
Worcester Polytechnic Inst., 967 F.3d 27, 35 (1st Cir. 2020).
Arbitrability, on the other hand, is a contractual agreement that
can be waived under circumstances agreed to by the parties. See,
e.g., El Mundo Broad. Corp. v. United Steelworkers of Am., 116
F.3d 7, 8 (1st Cir. 1997) (stating a procedural arbitrability
defense was waived).
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submission, it requires a party to raise a "claim" (singular).
This phrasing does not speak to a scenario in which a party wishes
to bring multiple arbitrability defenses. Thus, in Bacardí's view,
"Article XIII(d) simply does not contemplate the procedural
situation at hand" and does not prevent the arbitrator from
considering Bacardí's second arbitrability defense.
We acknowledge the merit of the UAW's interpretation of
Article XIII(d). The regulation suggests a requirement that
arbitrability defenses be raised at the outset of the proceedings
to facilitate speedy resolution. That speedy resolution would be
undermined if parties could pursue unlimited defenses in
sequential order if the first defense fails.
The UAW's position is not, however, the only plausible
reading of Article XIII(d). Bacardí's reading -- and that of the
arbitrator -- is arguably consistent with the plain language of
the regulation. The regulation does not say anything about raising
"all" defenses in the first submission draft at the risk of waiver.
An arbitrator could reasonably construe Article XIII(d) narrowly
and limit its applicability to its literal text. See Supervalu,
212 F.3d at 65 ("[A] party who seeks judicial review ordinarily
must demonstrate that the award is contrary to the plain language
of the CBA and that the arbitrator, heedless of the contract
language, preferred instead to write his own prescription for
industrial justice.").
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Thus, the arbitrator's decision to accept Bacardí's
belated defense was consistent with a plausible interpretation of
the regulation incorporated into the contract, even if it is not
the interpretation that we might prefer. We cannot substitute our
preference for the plausible interpretation of the arbitrator.
Labor Relations Div. of Constr. Indus. of Mass., Inc. v. Int'l Bd.
of Teamsters, Local No. 379, 29 F.3d 742, 743 (1st Cir. 1994)
("[C]ourts must resist the temptation to substitute their own
judgment about the most reasonable meaning of a labor contract for
that of the arbitrator and avoid the tendency to strike down even
an arbitrator's erroneous interpretation of such contracts.");
Misco, Inc., 484 U.S. at 37–38 (stating that even if a court
detects a "serious error" in the arbitrator's interpretation of
the contract, vacatur is not necessarily warranted).
B. Judicial Estoppel and Law of the Case
The UAW raises two judicial doctrines -- judicial
estoppel and law of the case -- as additional justifications for
vacatur of the arbitration award. Judicial estoppel allows a court
to preclude a party from raising an argument inconsistent with a
prior position it took before the court. Patriot Cinemas, Inc. v.
Gen. Cinemas Corp., 834 F.2d 208, 212 (1st Cir. 1987). It can be
applied in the court's discretion "when 'intentional self-
contradiction is being used as a means of obtaining unfair
advantage in a forum provided for suitors seeking justice.'" Id.- 15 -
(quoting Scarano v. Cent, R. Co., 203 F.2d 510, 513 (3d Cir.
1953)). "Law of the case" stands for the proposition that "a legal
decision made at one stage of a civil or criminal case,
unchallenged in a subsequent appeal despite the existence of ample
opportunity to do so, becomes the law of the case for future stages
of the same litigation." United States v. Bell, 988 F.2d 247, 250
(1st Cir. 1993).
Explaining the application of those doctrines here, the
UAW asserts that Bacardí was estopped from raising a procedural
arbitrability claim in 2018 because its 2013 submission
represented that it would proceed to a hearing on the merits if
its substantive arbitrability defense was denied. Along similar
lines, the UAW argues that the 2014 award denying Bacardí's
substantive arbitrability defense, and the affirmance of that
award by the Puerto Rico courts, created a "law of the case"
holding that the UAW's grievance was arbitrable and a hearing on
the merits was required. Therefore, in the UAW's view, both
judicial estoppel and law of the case precluded the arbitrator
from dismissing its claim based on Bacardí's belated procedural
arbitrability defense.
Judicial estoppel and law of the case are legal doctrines
governing court proceedings. They are essentially irrelevant to
the arbitration process, which is intended as an alternative to
the formal judicial process. See, e.g., Gilmer v.
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Interstate/Johnson Lane Corp., 500 U.S. 20, 31 (1991) ("[B]y
agreeing to arbitrate, a party 'trades the procedures and
opportunity for review of the courtroom for the simplicity,
informality, and expedition of arbitration.'" (quoting Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628
(1985))). The UAW describes these two doctrines as "applicable
principles of law" but does not explain why they apply to the non-
judicial arbitration process. We have explained that arbitration
awards "are not accorded the weight of 'judicial authority' in
determining future controversies, even between the same parties or
over the same issues." Westinghouse Elevators of Puerto Rico,
Inc. v. S.I.U. de P.R., 583 F.2d 1184, 1187 (1st Cir. 1978). And
the UAW offers no case law indicating that we, or any other court,
have ever vacated an arbitration award on the basis of either of
these doctrines. Thus, we conclude that neither judicial estoppel,
nor the doctrine of law of the case, provide a basis for vacatur.
C. Public Policy
The UAW argues that the arbitrator's decision to accept
a belated arbitrability defense vitiates federal policy "favoring
speedy settlement of industrial disputes." Ass'n of Indus.
Scientists v. Shell Dev. Co., 348 F.2d 385, 389 (9th Cir. 1965)
(quoting John Wiley & Sons, Inc., 376 U.S. at 559). While we agree
with the UAW that public policy favors efficient dispute resolution
through arbitration, that general principle does not constitute an
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"explicit, well-defined, and dominant public policy" prohibiting
an arbitrator from accepting a belated defense in any arbitration
proceeding. See E. Associated Coal Corp. v. United Mine Workers
of Am., Dist. 17, 531 U.S. 57, 63 (2000).
Moreover, Ass'n of Indus. Scientists, the Ninth Circuit
case the UAW relies on as evidence of a public policy encouraging
speedy arbitration, actually invokes that concern to discourage
judicial interference with arbitration proceedings. 348 F.2d at
389 (quoting John Wiley & Sons, Inc., 376 U.S. at 557-59). In
theory, arbitration allows for speedy dispute resolution precisely
because courts rarely interfere. See Dorado Beach Hotel Corp. v.
Local 610 of Hotel Emps. & Rest. Emps. Int'l Union, 959 F.2d 2, 4
(1st Cir. 1992) ("The extraordinary deference accorded an
arbitrator's decision emanates from our recognition that '[t]he
federal policy of settling labor disputes by arbitration would be
undermined if courts had the final say on the merits of awards.'"
(alteration in original) (quoting Challenger Caribbean Corp. v.
Union Gen. de Trabajadores de P.R., 903 F.2d 857, 861 (1st Cir.
1990))). We will not depart from that principle here.
IV.
In addition to challenging the refusal of the arbitrator
to preclude Bacardí from invoking a belated procedural defense,
the UAW challenges the merits of the arbitrator's ruling on that
defense. This claim is subject to the same deferential standard
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of review we described above. We may vacate only if the
arbitrator's dismissal on procedural grounds cannot be said to
"'draw[] its essence from the collective bargaining agreement."
Misco, Inc., 484 U.S. at 36 (quoting Steelworkers, 363 U.S. at
596).
As outlined in Section I above, Article VIII of the CBA
mandates a three-step process for raising and resolving workplace
grievances. The second step of that process requires the Union to
submit a written complaint "within seven (7[]) business days
following the facts of the grievance." That complaint must include
"the details of the incident over which the claim is based[,] . .
. the section or sections of the Agreement that are considered
violated, and . . . the solution sought by the grievant employee
or by the Union." The CBA mandates strict adherence to these
requirements, stating that "[i]f the grievance is not presented
[to] the Human Resources Director in the manner established above
and within the prescribed deadline, the matter will be considered
definitively decided and/or that the complaint has been
withdrawn."
The CBA took effect on January 1, 2006. From the start,
Bacardí paid weekend and holiday mealtime wages in accordance with
its interpretation of the CBA -- compensating employees with
double, not quadruple, pay. On August 26, 2007, the UAW made an
initial complaint regarding this method of calculating wages,
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which it claimed underpaid workers. The initial complaint was
followed by a written complaint on August 30, 2007. The written
complaint stated, "the union does not agree with the way the
company is paying the mealtime periods when working on Saturday to
Sunday, Sundays, holidays, and others," but did not state the dates
of alleged underpayments, the employees involved, or the hourly
wages of those employees.
The 2019 arbitration award found that the UAW's written
complaint failed to meet the procedural criteria required by the
CBA "both in regard to the excessively late filing of the
complaint, . . . as well as the lack of specificity thereof, by
not setting forth the dat[e] of the incident over which the claim
is based." The arbitrator stated that the UAW was required to
include "specific details of [its] claim, such as the dates of the
alleged violation, names of the claimants, hourly wage of the
claimants and other relevant information, to place the judge in a
position to decide as to the suitability of the claim." Thus, the
arbitrator dismissed the grievance in its entirety.
The UAW argues that even if some portion of its grievance
was untimely, dismissal of the claim in its entirety was improper.
In its view, the wage grievance encompasses claims for underpaid
wages over the course of approximately one and a half years --
from the effective date of the CBA, January 1, 2006, through the
date of the written complaint, August 30, 2007. While most of
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those claims might be time-barred, others -- specifically, claims
pertaining to August 1 through August 7, 2007 -- were timely.
Therefore, the UAW argues, the arbitrator should have proceeded to
the merits of the claim regarding the one week that falls inside
the contractual limitation period.
The UAW's focus on the timeliness of at least some
portion of its claim ignores the other, equally important, defect
found by the arbitrator: lack of specify of the written complaint.
Even assuming the wage claim, if limited to August 1 through August
7, 2007, was not time-barred, the claim could still be dismissed
for failure to meet the second step's requirement that the written
complaint contain "the details of the incident." Determining what
details must be included in a written complaint to satisfy the
CBA's grievance procedure, and whether the Union met that
requirement, is precisely the type of straightforward procedural
question that is firmly within the province of the arbitrator.
See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)
("'"[P]rocedural" questions which grow out of the dispute and bear
on its final disposition' are presumptively not for the judge, but
for an arbitrator, to decide." (quoting John Wiley & Sons, Inc.,
376 U.S. at 557)); UMass Mem'l Med. Ctr., Inc. v. United Food &
Com. Workers Union, 527 F.3d 1, 5 (1st Cir. 2008) (stating that
issues concerning the proper filing of a grievance are "'classic'
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procedural questions to be decided by an arbitrator" (quoting
Nonotuck, 64 F.3d at 739)).
The arbitrator's determination that the second step of
the agreed-upon grievance procedure required a written complaint
that contains certain specific details ("the dates of the alleged
violation, names of the claimants, [and] hourly wage of the
claimants") reflects a plausible interpretation of the contract.
The UAW's written complaint did not include those details and,
thus, the arbitrator acted within the scope of his authority in
dismissing the entire claim for lack of procedural arbitrability.
Affirmed.
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