Comm Wrk of Amer v. Dex Media

Case: 22-10371 Document: 00516734498 Page: 1 Date Filed: 05/02/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 2, 2023
No. 22-10371 Lyle W. Cayce
Clerk
Communications Workers of America, AFL-CIO,
Plaintiff—Appellant,
versus
Dex Media, Incorporated, doing business as Thryv,
Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-3295
Before Graves, Ho, and Duncan, Circuit Judges.
Per Curiam:*
In August 2020, an arbitrator ruled in favor of Appellee Thryv, Inc.
(“Thryv”) concerning the January 2014 termination of George Animadu, a
member of Appellant Communication Workers of America, AFL-CIO
(“CWA”). The arbitrator dismissed CWA’s grievance on Animadu’s behalf
based on laches. CWA sued in federal district court to vacate the decision.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.4.
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On cross-motions for summary judgment, the district court denied CWA’s
motion and granted Thryv’s, confirming the arbitrator’s decision. CWA now
appeals.
We review the district court’s decision de novo. Petrofac, Inc. v.
DynMcDermott Petroleum Operations Co., 687 F.3d 671, 674 (5th Cir. 2012).
Our review of the underlying arbitral decision, however, is “exceedingly
deferential.” Delek Ref., Ltd. v. Local 202, United Steel, 891 F.3d 566, 570 (5th
Cir. 2018) (citing Brabham v. A.G. Edwards & Sons, Inc., 376 F.3d 377, 380
(5th Cir. 2004)). Even if the arbitrator seriously erred in finding facts or
interpreting the Collective Bargaining Agreement (“CBA”), we “will
uphold a decision that is rationally inferable from the purpose of the CBA.”
Delek, 891 F.3d at 570 (citing United Paperworkers Int’l Union v. Misco, 484
U.S. 29, 38 (1987); Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1325 (5th
Cir. 1994)). That said, deference is not limitless. We will vacate an
arbitrator’s decision if it exceeds the CBA’s jurisdictional limits or ignores
its plain terms. Delek, 891 F.3d at 570 (citing Albemarle Corp. v. United Steel
Workers ex rel. AOWU Local 103, 703 F.3d 821, 824 (5th Cir. 2013); Smith v.
Transp. Workers Union of Am., Local 556, 374 F.3d 372, 375 (5th Cir. 2004);
Misco, 484 U.S. at 38)). Those occasions are “rare,” however. Ibid.In this case, the CBA outlines a two-step process for handling
grievances against Thryv by its CWA-represented employees. If CWA is
unhappy with Thryv’s decision at step one, it can appeal to step two within
two weeks. The formal grievance process is deemed complete after Thryv
makes a step-two decision or “default[s]” in its duty to meet with CWA, as
outlined in Section 7:
Meetings at each level of the grievance procedure shall be
arranged promptly. If, due to [Thryv’s] actions, a mutually
agreeable meeting date is not arranged within two (2) weeks of
either [Thryv’s] receipt of the initial notification or the appeal
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of the grievance, the [CWA] may present its original grievance
to the next higher level of the formal grievance procedure.
A separate section of the CBA permits any party to submit the dispute to
arbitration within 60 days after completion of the formal grievance
procedure.
The arbitrator dismissed the grievance based on Thryv’s laches
defense. This equitable doctrine requires showing that a claimant’s
unreasonable delay in asserting his rights unduly prejudiced the defendant.
See Uptown Grill, L.L.C. v. Shwartz, 817 F.3d 251, 256 (5th Cir. 2016). In
essence, the arbitrator decided that CWA could have proceeded to
arbitration as early as August 2015, but nonetheless waited over four years to
demand arbitration in December 2019, prejudicing Thryv’s defense. On
appeal, CWA argues this decision ignored the CBA’s express language and
must be vacated. We disagree.
As the district court correctly ruled, the arbitrator’s decision “is
rationally inferable from the language and purpose of the CBA.” See Delek,
891 F.3d at 570. The arbitrator found step one of the grievance process was
complete when Thryv provided a written decision rejecting the claim on
August 7, 2015. CWA timely appealed, but Thryv never scheduled a step-
two meeting, thus ending the formal grievance process. “Therefore,” the
arbitrator concluded, CWA “had the right in August 2015 to proceed to the
next higher level of the formal grievance procedure, which was arbitration.”
Yet CWA did not do so at that time. Instead, over the ensuing two years, it
filed information requests on Animadu’s termination, as well as a charge with
the National Labor Relations Board. CWA did not file for arbitration until
December 2019. Applying laches, the arbitrator found CWA’s unreasonable
delay in seeking arbitration prejudiced Thryv’s ability to respond to the
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charges, since “it was undisputed that no witnesses were available to prove
[Thryv’s] burden of just cause.”
On appeal, CWA argues the arbitrator ignored the plain language of
Section 7 of the CBA which, as discussed above, provides that CWA “may”
escalate to arbitration once the grievance process is complete. According to
CWA, this permissive language allows it to indefinitely postpone seeking
arbitration while it waits for Thryv to schedule a step-two meeting. By
requiring CWA to seek arbitration within a definite period, argues CWA, the
arbitrator replaced “may” with “shall.” We disagree.
Contrary to CWA’s argument, the arbitrator rejected any notion that
“may” means “shall.” Indeed, the arbitrator agreed with CWA that Section
7 did not require it to seek arbitration within two weeks or forever lose that
right. But, as the district court correctly understood, the arbitrator reasoned
that Section 7 did not allow CWA to arbitrate “on ‘whatever date in the
future it decides.’” Such an interpretation of the CBA would be
“inconsistent with having agreed upon grievance procedures that facilitate
the quick resolution of disputes.” CWA is mistaken that this interpretation
somehow ignores or adds to the plain words of Section 7.
CWA relies on four of our cases where we vacated arbitral awards, but
all are distinguishable. In three of them, the CBA expressly allowed a
company to fire an employee for cause, but arbitrators reinstated the
employees even after agreeing such cause existed.1 And in the fourth, a
company had exclusive authority under a CBA to evaluate employees’
performance, yet the arbitrator ignored the agreement and made a de novo
1
See Am. Eagle Airlines, Inc. v. Airline Pilots Ass’n, Int’l, 343 F.3d 401, 410 (5th Cir.
2003); E.I. DuPont de Nemours and Co. v. Local 900 of Int’l Chem. Workers Union, AFL-
CIO, 968 F.2d 456, 459 (5th Cir. 1992) (per curiam); Delta Queen Steamboat Co. v. District
2 Marine Eng’rs Beneficial Ass’n, AFL-CIO, 889 F.2d 599, 601, 604 (5th Cir. 1989).
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determination of the employee’s qualifications. 2 In all four cases, then, the
arbitrator “utterly contorted” the contract by acting “contrary to an express
contractual provision.” Vantage Deepwater Co., 966 F.3d at 375 (quotation
omitted). Those cases are not this one. Here, CWA fails to identify any
specific terms of the CBA the arbitrator ignored.3
The district court’s decision confirming the arbitral award is therefore
AFFIRMED.
2
Houston Lighting & Power Co. v. Int’l Bhd of Elec. Workers, Local Union No. 66, 71
F.3d 179, 181, 185 (5th Cir. 1995).
3
CWA also argues the arbitrator denied it due process by failing to provide notice
of her “contract construction theory.” Like the district court, we disagree. Parties to an
arbitration are entitled to notice and an opportunity to be heard. See Totem Marine Tug &
Barge v. N. Am. Towing, Inc., 607 F.2d 649, 651 (5th Cir. 1979). CWA received all this and
more when the arbitrator notified both parties that she would first decide whether the
grievance was procedurally arbitrable in light of Thryv’s laches defense. See Howsam v.
Dean Witter Reynolds, Inc., 537 U.S 79, 85 (2002). CWA cites no authority for the
extraordinary proposition that the arbitrator was also required to preview her reading of
Section 7 before issuing her ruling. Cf., e.g., Am. Arbitration Ass’n, Labor
Arbitration Rules 14 (2013),
https://www.adr.org/sites/default/files/Labor_Arbitration_Rules_3.pdf (stating that an
“arbitrator . . . may . . . direct the parties to focus their presentations on [dispositive]
issues”).
5