United States District Court, D. Maine
UNITIL CORPORTATION and NORTHERN UTILITIES, Inc. d/b/a/ UNITIL, Plaintiff,
UTILITY WORKERS UNION OF AMERICA LOCAL 341, Defendant.
AMENDED  ORDER ON CROSS-MOTIONS FOR
JUDGMENT ON THE PLEADINGS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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.
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. 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).
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).
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.
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.
The Collective Bargaining Agreement
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
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.
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
The Arbitrated Issue
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?
Post Br. at 2. In its post-hearing brief, the Union
characterized the issue regarding the construction
The Company improperly assigned Construction Inspection work
to non-unit employees.
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.
The Arbitration Award
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. 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.
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.
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.
Judgment on the Pleadings Standard
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.
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 ...