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Unitil Corp. v. Utility Workers Union of America Local 341

United States District Court, D. Maine

November 2, 2017

UNITIL CORPORTATION and NORTHERN UTILITIES, Inc. d/b/a/ UNITIL, Plaintiff,
v.
UTILITY WORKERS UNION OF AMERICA LOCAL 341, Defendant.

          AMENDED [1] ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         A public utility and a public utility holding company move for judgment on the pleadings, seeking to partially vacate an arbitration decision and award on the grounds that the arbitrator lacked authority to decide an issue in dispute and that she made a manifest error of law in her award. A labor union also moves for judgment on the pleadings, arguing that the Court must give the arbitrator's action the utmost deference, that the arbitrator acted within her authority, and that she did not make a manifest error of law. The Court grants the labor union's motion and denies the companies' motion because this case is not among the exceedingly few wherein a Court may disturb an arbitration decision and award, and, contrary to the employer's position, the Court determines that the Arbitrator ruled on an issue that the parties presented to her for decision. Although the Court views the employer's challenge to the arbitrator's ruling as skirting the very edge of frivolousness, the Court declines to award the union its attorney's fees and costs, because the employer's civil action did not cross the line.

         I. BACKGROUND

         A. Procedural History

         On August 29, 2016, Plaintiffs Unitil Corporation and Northern Utilities, Inc. d/b/a Unitil (collectively Unitil) applied and moved to vacate the portion of a July 28, 2016 arbitration decision and award unfavorable to it. Appl. to Vacate Arbitration Award at 1 (ECF No. 1) (Appl.). Unitil attached seven exhibits.[2] Defendant Utility Workers Union of America, Local 341 (the Union) answered and counterclaimed for confirmation and enforcement of the Arbitrator's award on October 31, 2016. Answer and Countercl. of Def. Utility Workers Union of America, Local 341 (ECF No. 8) (Answer). Unitil answered the counterclaim on November 21, 2016. Pl.s' Answer to Def.'s Countercl. (ECF No. 11).

         On March 17, 2017, the parties moved for judgment on the pleadings. Pls.' Mot. for J. on the Pleadings (ECF No. 19) (Pls.' Mot.); Mot. for J. on the Pleadings of Def. Utility Workers Union of America, Local 341 (ECF No. 18) (Def.'s Mot.). The Union and Unitil responded to each other's motions on April 7, 2017. Union's Opp'n to Unitil's Mot. for J. on the Pleadings (ECF No. 20) (Def.'s Opp'n); Pls.' Obj. to Def.'s Mot. for J. on the Pleadings (ECF No. 21) (Pls.' Opp'n). On April 21, 2017, Unitil replied to the Union's opposition. Pls.' Reply to Def.'s Obj. to Pls.' Mot. for J. on the Pleadings (ECF No. 22) (Pls.' Reply).

         B. Factual Background[3]

         1. The Parties

         Unitil Corporation is a public utility holding company organized and existing under and by virtue of the laws of the state of New Hampshire. Appl. ¶ 4. Unitil Corporation's utility affiliates include Northern Utilities, Inc. d/b/a Unitil. Id. Northern Utilities, Inc. is a public utility organized and existing under and by virtue of the laws of the state of New Hampshire. Id. ¶ 5. Northern Utilities, Inc. is currently, and was at all times pertinent hereto, doing business within the District of Maine and is an employer in an industry affecting commerce within the meaning of § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. Id.

         Defendant Utility Workers Union of America, Local 341 is an unincorporated labor organization within the meaning of § 301 and represents employees in an industry affecting commerce. Id. ¶ 6. The Union is the authorized bargaining representative for certain employees at the Company's facilities in Maine. Id. The Union maintains its principal office in Old Orchard Beach, Maine. Id.

         2. The Collective Bargaining Agreement

         Unitil and the Union were parties to a collective bargaining agreement (CBA) that operated from April 1, 2012 until March 31, 2017. Appl. Attach. 1, Agreement by and between Northern Utilities, Inc., Granite State Gas Transmission, Inc. and the Utility Workers Union of America, Local No. 341 (CBA). Article XIV of the CBA sets forth a grievance procedure that the parties must follow to resolve "difference[s] . . . as to the true interpretation and application of [the CBA]." CBA at 37. Article XIV also provides that if a "grievance involving the interpretation or application of [the CBA] is not satisfactorily resolved in the grievance procedure[, ] the aggrieved party may request that the matter be referred to the American Arbitration Association (AAA) for appointment of an arbitrator under its rules to arbitrate grievances." CBA at 38. The CBA goes on to state that “[t]he arbitrator shall have no power to add to, or subtract from or otherwise modify the terms of [the CBA.], ” and that, “[t]he decision of the arbitrator shall be final and binding on both parties and shall have the same force and effect as a judgment of law.” Id.

         3. The Grievances

         On April 24, 2015, the Union submitted a grievance form, Appl. Attach. 2 Grievance Form, in accordance with the terms of the CBA. CBA at 37-38; Appl. ¶ 12. The Union included a number of grievances, all pertaining to “Contractor performing bargaining unit work.” Appl. Attach. 2 Grievance Form (Grievance Form). The Grievance Form listed nine specific examples of the work being grieved. Id. Unitil summarily denied the grievances on April 29, 2015 stating “Grievance denied - No violation of Contract.” Appl. Attach. 3 Mem. from Bill Hobart of Unitil to Steve Kilburn.

         Of the seven types of work, only two were subjects of the arbitration: service line surveys and construction inspections, see Appl. Attach. 5 Decision & Award, at 2 n.1, 19 (Decision & Award) (noting that the Union was not pressing tasks 1, 2, 4, 5, 7, 8, 9, and was leaving for arbitration tasks 3, service line survey, system wide started 04-21-15, and 6, construction inspectors 04-06-15 system wide). In its application to vacate the arbitration award, Unitil further narrowed the dispute to only the ruling on construction inspectors. Appl. ¶ 1 (“The Company seeks to vacate that portion of the Award: (a) finding that the Company violated [the CBA] by assigning construction inspection work to temporary employees; and (b) ordering the Company to cease and desist from assigning such work to temporary employees”).

         4. The Arbitrated Issue

         On November 6, 2015, the Union filed a demand for arbitration with Unitil and the AAA. Appl. Attach 4 Demand for Arbitration (“Contractors performing bargaining unit work in violation of contract”). Arbitrator Beth Anne Wolfson held a hearing on May 17, 2016 and received testimony from five witnesses. Decision & Award at 1. On June 23, 2016, the parties submitted post-hearing briefs. Id.; Appl. Attach. 6 Resp't Unitil Corporation's Post-Hr'g Br. (Unitil Post Br.); Appl. Attach. 7 Union's Br. (Union Post Br.). In its post-hearing brief, Unitil characterized the issue before the Arbitrator:

Did the Company violate the [CBA] by using outside contractors rather than bargaining unit employees to perform the work set forth in the Union's April 24, 2015 grievance? If so, what shall the appropriate remedy be?

         Unitil Post Br. at 2. In its post-hearing brief, the Union characterized the issue regarding the construction inspectors:

The Company improperly assigned Construction Inspection work to non-unit employees.

         In her ruling, Arbitrator Wolfson characterized the issue:

Did the Employer violate the [CBA] by using contractors to perform the work set out in the April 24, 2015 grievance? If so, what shall be the remedy?

Decision & Award at 2. These three descriptions of the issue before the Arbitrator demonstrate that Unitil, the Union, and Arbitrator Wolfson substantially agreed as to the issue submitted for arbitration.

         5. The Arbitration Award

         The Arbitrator issued her decision and award on July 28, 2016, in which she stated, “[t]he issue before me has two parts: the subcontracting out of the system wide service line survey work . . . and the use of temporary employees as [construction inspectors].” Decision & Award at 19.[4] Regarding the focus of this litigation, the Arbitrator concluded that Unitil violated the CBA “by using temporary, non- bargaining unit employees on a regular and continuing basis to perform construction inspections.” Decision & Award at 22-23.

         In arriving at her conclusion, the Arbitrator cited the CBA's definition of “temporary employees” as those “hired to fill temporary jobs such as seasonal construction, temporary maintenance work, and other unusual situations.” Id. at 22. She then analyzed whether the facts surrounding the duration of the employment and nature of the work of three individuals met that definition. She concluded that they did not. First, she pointed to evidence that in recent years, two of the three workers had worked throughout the year, not seasonally. Second, she found that construction inspection work is not properly categorized as maintenance work. Lastly, she determined that no other unusual situations existed. Id. She also observed that Unitil has three Union-member employees certified to do the construction inspections, and nine others on the cusp of certification, still requiring an eight-hour course and an exam. Id. at 21-22.

         As part of her award, the Arbitrator directed Unitil “to cease and desist from violating the [CBA] by assigning the construction inspection work to temporary, non-bargaining unit employees . . . [and] to afford eligible bargaining unit employees the opportunity to acquire [construction inspection] certification.” Decision & Award at 23.

         II. LEGAL STANDARDS

         A. Judgment on the Pleadings Standard

         “After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings pursuant to Rule 12(c) “is treated much like a Rule 12(b)(6) motion to dismiss.” Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citation omitted). “Because such a motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom to the nonmovant's behoof.” R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006) (citations omitted). In assessing a Rule 12(c) motion a “court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice.” Id. “A court may enter judgment on the pleadings only if the properly considered facts conclusively establish the movant's point.” Id. (citation omitted).

         To withstand a Rule 12(c) motion, “a complaint must contain factual allegations that ‘raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true[.]' ” Pérez-Acevedo, 520 F.3d at 29 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In sum, “to survive a motion for judgment on the pleadings, the complaint must state a claim that is plausible on its face.” Pineiro v. Gemme, 937 F.Supp.2d 161, 168-69 (D. Mass. 2013) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where, as here, the court is presented with cross-motions for judgment on the ...


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