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International Brotherhood of Electrical Workers v. Hawaiian Telcom, Inc.

United States District Court, D. Hawaii

April 22, 2016

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1357, Plaintiff,
v.
HAWAIIAN TELCOM, INC., Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S COUNTERMOTION FOR SUMMARY JUDGMENT

          SUSAN OKI MOLLWAY, District Judge.

         I. INTRODUCTION.

         Before the court are Plaintiff International Brotherhood of Electrical Workers, Local 1357's motion for summary judgment and Defendant Hawaiian Telcom's countermotion for summary judgment. The issue raised by both motions is whether the parties must arbitrate a dispute regarding Hawaiian Telcom's unilateral implementation of the wage schedule for a new position.

         The new position was created in the gap between the expiration of a collective bargaining agreement and the adoption of a new collective bargaining agreement. IBEW points to provisions in the expired collective bargaining agreement that required Hawaiian Telcom to arbitrate the dispute. IBEW also argues that the parties agreed to arbitrate the dispute in a letter of understanding signed during the gap period. Hawaiian Telcom responds that it is not required to arbitrate the dispute under the old CBA or any other agreement because it lawfully implemented the wage schedule when no CBA was in place as part of its Last, Best, and Final Offer.

         For the reasons discussed below, the court denies both motions, leaving genuine issues of material fact for trial.

         II. BACKGROUND.

         IBEW, a labor organization under the terms of the Labor Management Relations Act, 29 U.S.C. § 152, and Hawaiian Telcom, an employer under 29 U.S.C. § 152(2), were parties to a collective bargaining agreement that expired on September 12, 2011 (2008-11 CBA). See ECF No. 15, PageID # 221. As they were negotiating a new CBA, Hawaiian Telcom proposed a new position for "Structured Cabling Technician" ("SCT") that would be paid at wage schedule 7. See ECF No. 14, PageID # 131. IBEW did not agree to the proposed wage schedule because, in its view, the position should have been assigned a wage schedule 10.

         On December 21, 2011, Hawaiian Telcom declared that the parties had reached an impasse over the wage schedule, and unilaterally implemented wage schedule 7 for SCTs as part of Hawaiian Telcom's Last, Best, and Final Offer ("LBAFO"), effective from January 1, 2012.[1] See id. The parties do not dispute that the S.Ct. position was created at a time when no CBA was in place. The parties eventually agreed to a new CBA effective January 1, 2013. See id.

         On February 8, 2012, Hawaiian Telcom posted two S.Ct. positions at wage schedule 7. See id. Within a month of the postings, but more than a month after the wage schedule was implemented in the LBAFO, IBEW filed a grievance alleging that Hawaiian Telcom had violated Article 36, specifically section 36.10, of the 2008-11 CBA in unilaterally imposing the wage schedule for the S.Ct. position. See id. Section 36.10 provides in relevant part:

Whenever a new job is created or the job content of an existing job is changed the Company will submit a job description to the Union. If the rate for the job classification does not appear in Article 36 of the Agreement, it shall be determined jointly by the Company and the Union. If the job classification appears in Article 36 but the Union feels that the classification or rate for the new or amended job is not proper, it shall be determined jointly by the Company and the Union. In the event that a joint agreement on a job classification cannot be reached within forty-five (45) days, the Company and the Union agree to begin Expedited Labor Arbitration Procedures in accordance with the American Arbitration Association rules within five (5) working days.

         See ECF No. 24-2, PageID # 300.

         Hawaiian Telcom notified IBEW by a letter dated March 9, 2012, that it was denying the grievance. See ECF No. 14, PageID #s 131-32. The letter explained that Hawaiian Telcom did not believe that the grievance had been timely filed in accordance with Article 9, section 9.2 of the 2008-11 CBA. See ECF No. 14-5, PageID # 211. Section 9.2 required a grievance to be "presented in writing to the employee's supervisor within twenty (20) days... of the alleged breach of the expressed terms and conditions of this Agreement.... Any grievance not presented within the twenty-day period shall not thereafter be considered as a grievance under the terms of this Agreement." See ECF No. 14-1, PageID #s 150-51. The letter also stated that "the Company believes the new job was properly introduced during contract negotiations and upon reaching impasse in negotiations, implemented as part of its Last, Best and Final Offer on January 1, 2012. This grievance is not recognized as valid." ECF No. 14-5, PageID # 211.

         Hawaiian Telcom sent another letter to IBEW, dated June 8, 2012, "confirm[ing Hawaiian Telcom's] decision that we will not agree to arbitrate any grievances that arose after expiration of the collective bargaining agreement on October 24, 2011." See ECF No. 14-6, PageID # 213. Accompanying the letter was a list of the grievances that IBEW was declining to arbitrate, including the S.Ct. wage schedule dispute. See id., PageID #s 213-14. IBEW filed a Step Two grievance in response. See ECF No. 14, PageID # 132.

         In a Letter of Understanding, dated December 13, 2012, both sides agreed to the following:

1. Arbitration. Grievances that arose between October 25, 2011 through December 31, 2012 will be handled in accordance with Articles 9 (Grievance Procedure) and 10 (Arbitration). The Union shall withdraw NLRB Charge No. 20-CA-088282. If necessary to close this matter, the parties agree to execute a mutually agreeable settlement agreement for submittal to the NLRB.
...
It is understood that the above items are contingent on Union ratification of the Tentative Agreement dated December 13, 2012.

         ECF No. 14-7, PageID # 216.[2]

         Article 9 of the 2008-11 CBA concerned the grievance procedure and provided in relevant part:

When any employee covered by this Agreement believes, or when the Union believes, that the Company has violated the expressed terms and conditions thereof, and that by reason of such violation the employee's or the Union's rights arising out of this Agreement have been affected adversely, the employee or the Union, as the case may be, shall be required to follow the procedure hereinafter set forth ...

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