United States District Court, W.D. Missouri, Southern Division
DOUGLAS HARPOOL, District Judge.
Before the Court is Defendant's Motion for Summary Judgment (Doc. No. 21) and Plaintiff's Motion for Summary Judgment (Doc. No. 24). In addition, Defendant has also filed a Motion to Strike Plaintiff's Declarations (Doc. No. 31). All pending motions have been fully briefed and are ripe for review.
This is an action brought by Communication Workers of America, AFL-CIO ("CWA"), a labor organization, against an employer, Southwestern Bell Telephone Company ("SWBT"), to compel arbitration of a labor dispute under a collective bargaining agreement ("CBA"). Plaintiff brings the action pursuant to Section 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185. Plaintiff contends the collective bargaining agreement, a contract between CWA and SWBT, provides for final and binding arbitration of grievances and therefore, obligates the employer to submit the employment dispute at issue to arbitration. SWBT contends a last change agreement ("LCA"), a contract between SWBT and Felicia McCauley, an employee of SWBT, to which CWA was not a party, supersedes the CBA, and as such, waives CWA's right to arbitrate the grievance.
The CBA, effective April 2009 through its expiration in April 2013, contains a grievance article and an arbitration provision permitting CWA to arbitrate disputes over contract terms, dismissals, suspensions and demotions. The contract states, "The Union shall be the exclusive representative of all the employees in the Bargaining Unit for the purposes of presenting to and discussing with the Company grievances of any and all such employees arising from such employment." The Formal Grievance procedure normally consists of two successive steps, through which CWA can appeal an adverse decision. SWBT's decision at the second step completes the Formal Grievance procedure. The CBA then extends to CWA the right to arbitrate grievances if dissatisfied with SWBT's decision after completion of the Formal Grievance process. Specifically, Article IV, Arbitration, states:
If, during the term of this Agreement, ... between the Union and Company, and subsequent agreements which by specific reference therein are made subject to this Article, a difference shall occur, between the Union and the Company, and continue after all steps in the "Formal Grievance" procedure established in the 2009 Departmental Agreement shall have been undertaken and completed, regarding:... c. the dismissal for just cause of any employee with more than one (1) completed year's Net Credited Service, ... then in any such event, either the Union or Management may submit the issue of any such matter to arbitration for final decision in accordance with the procedure hereinafter set forth..." ( emphasis added).
In 2011, Felicia McCauley worked as a service representative for SWBT in its call center in Springfield, MO. At that time, McCauley had been employed with the company for over 13 years. McCauley was a member of CWA, her job was represented by CWA, and her employment was covered by the parties' CBA. In August 2011, McCauley was suspended for misconduct. On August 29, 2011, McCauley and her local union representative, Kendra Dame, met with SWBT management to discuss McCauley's suspension and avoidance of her possible termination. During the meeting, SWBT's call center manager, Jason Beltz, presented McCauley an LCA. Beltz read the terms of the LCA out loud to McCauley and Dame. Afterward, McCauley and Dame had an opportunity to review the LCA and discuss its terms.
The August 29, 2011, LCA, states, in part,
I, Felicia McCauley, voluntarily enter into this Last Chance Agreement with Southwestern Bell Telephone (SWBT) of my own free will... I understand and agree that SWBT has just cause to suspend and terminate my employment for Code of Business Conduct Violations. However, in exchange for SWBT not terminating my employment I agree that:... 6. This Agreement will remain in effect for 24 months from the date of my reinstatement. If I am suspended or dismissed for violating this Agreement, any grievance relating in any way to such suspension or dismissal will not be subject to arbitration.
McCauley signed the LCA. Neither Dame, nor any other CWA representative, signed the LCA. SWBT and McCauley agree the waiver of the right to grieve or arbitrate was discussed during the meeting. However, McCauley and SWBT have different understandings of the terms and proper interpretation of the arbitration provision of the LCA. McCauley contends the waiver applied only to grievances prior to the date of the LCA. Defendant argues the language clearly states the waiver is with regard to future grievances. CWA contends waiver of its rights under the CBA requires CWA approval and therefore a LCA which it did not approve does not have any impact on its right to seek arbitration.
After McCauley signed the LCA she was removed from suspension and reinstated the next day. On or about November 4, 2011, SWBT dismissed McCauley. SWBT contends McCauley was dismissed for just case, which was unsatisfactory job performance. McCauley denies adequate grounds for her dismissal existed.
On November 15, 2011, CWA filed a grievance challenging the dismissal. This was the first step of the Formal Grievance procedure. On March 12, 2012, after the first step grievance meeting, CWA was informed that the grievance was denied. CWA then appealed the McCauley grievance to the second step of the Formal Grievance procedure. On July 30, 2012, CWA was notified the grievance was denied at the second step. It is undisputed the parties completed the two step Formal Grievance Procedure set forth in the CBA.
Pursuant to Article IV, after the two step formal grievance procedure was complete, CWA notified SWBT that it elected to arbitrate the grievance and made a timely submission of arbitration. The submission was made to the American Arbitration Association, the parties selected an arbitrator, and then scheduled a hearing for August 21, 2013. At the beginning of the arbitration hearing, after all parties arrived at the hearing, SWBT for the first time, informed CWA and the arbitrator that it refused to arbitrate. This was the first notice to CWA ...