United States District Court, D. Hawaii
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1357, Plaintiff,
HAWAIIAN TELCOM, INC., Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DEFENDANT'S COUNTERMOTION FOR SUMMARY
OKI MOLLWAY, District Judge.
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.
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.
reasons discussed below, the court denies both motions,
leaving genuine issues of material fact for trial.
labor organization under the terms of the Labor Management
Relations Act, 29 U.S.C. Â§ 152, and Hawaiian Telcom, an
employer under 29 U.S.C. Â§ 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.
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. 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.
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
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.
No. 24-2, PageID # 300.
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.
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.
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
It is understood that the above items are contingent on Union
ratification of the Tentative Agreement dated December 13,
14-7, PageID # 216.
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 ...