United States District Court, W.D. Kentucky, Paducah
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC and its Local No. 9447-10, PLAINTIFF
H.B. FULLER COMPANY, DEFENDANT
MEMORANDUM OPINION & ORDER
B. RUSSELL, SENIOR JUDGE.
matter is before the Court on Defendant's, H.B. Fuller
Company (“H.B. Fuller”), Motion for Summary
Judgment (R. 16) and Plaintiff's, United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Workers International Union, AFL-CIO-CLC and its
Local No. 9447-10 (“USW”), Cross-Motion for
Summary Judgment. (R. 17). Fully briefed, these matters are
ripe for adjudication. For the reasons set forth below, H.B.
Fuller's Motion for Summary Judgment (R. 16) is HEREBY
DENIED, and USW's Cross-Motion for Summary Judgment (R.
17) is HEREBY GRANTED IN PART and DENIED IN PART.
primary issue before this Court whether the parties must
arbitrate a grievance filed by USW on Les Huntley's
behalf. USW contends they must. (R. 17). H.B. Fuller
disagrees. (R. 16). Huntley is one of 76 H.B Fuller employees
in a bargaining unit represented by USW, and his grievance
was filed pursuant to the collective bargaining agreement
(“CBA”) between USW and H.B. Fuller. (R.13 ID #
80). Three documents and their relation to one another are
crucial to the issue before the Court: (1) Huntly's
grievance, (2) H.B Fuller's Performance Planning &
Assessment Overview Policy (“PPA”), and (3) the
grievance alleges that in 2016 and 2015 he had received an
“inconsistent” Performance Planning &
Assessment rating despite receiving a
“successful” rating at both midyear reviews. (R.
13-2 ID # 125). The grievance goes on to state that
“Les was not made sufficiently aware that his
performance was slipping to the point of
‘inconsistent' in either case nor had he received
any formal coaching or direction to correct alleged issues,
” and that “[t]he Union requests that Les Huntley
receive a new Performance Planning & Assessment
rating” for 2016. (R. 13-2 ID # 125).
Performance Planning & Assessment ratings to which
Huntley's grievance refer are given to all H.B Fuller
employees once mid-way through the year and once at the
year's end pursuant to the PPA. (R. 13 ID # 81). The PPA
is H.B. Fuller's performance review policy. (R. 13 ID #
80). It applies to all its employees equally, including those
represented by USW. (R. 13 ID # 80). The Year-End PPA Rating,
is used to determine the employee's potential wage
increase and contains no mechanism or formal procedure by
which an employee, USW represented or otherwise, may
challenge their PPA Rating. (R. 13 ID #81). The PPA states
under the provision “Assessing Performance, ”
“[p]erformance should be assessed formally at mid-year
and towards year-end, as well as coached and reviewed on a
regular basis throughout the year.” (R. 13-1 ID # 86).
current CBA between H.B. Fuller and USW is the most recent in
a series of agreements dating back to 2004. (R. 13 ID # 80).
Each CBA, including the current one, includes an arbitration
clause. (R. 13 ID # 80). Ultimately, whether Huntley's
grievance is arbitrable depends on whether his grievance
concerning the PPA is included or excluded by this
arbitration clause. Relevant to whether Huntley's
grievance is included or excluded by the arbitration clause
are three articles of the CBA-Articles 3, 11, and 18.
3 is titled “Management Rights” and reads in
The direction of the working force is vested in the Company
through its supervisory personnel. The Company reserves all
the rights, powers, and authority customarily exercised by
management except insofar as they are specifically
surrendered or abridged by express provisions of this
(R. 13-2 ID # 90).
11 lays out the grievance process. (R. 13-2 ID # 98-9). The
first subsection defines a grievance as “an alleged
violation of an express written provision of this Agreement
during the term of this Agreement raised by an employee or
the union.” (R. 13-2 ID # 98). Article 11 then breaks
the grievance process into three steps. (R. 13-2 ID # 99).
The first two steps are internal, and third step contains the
arbitration clause. (R. 13-2 ID # 99). Step 3 reads in full:
Arbitration: Either party may, within ten (10) working days,
request the Federal Mediation and Conciliation Services
(FMCS) to submit a list of seven (7) names of persons to
serve as the impartial arbitrator. The Company and the Union
will each have the right, alternately, to strike a name from
the list until only one name remains. The person whose name
remains on the list will be designated the impartial
(R. 13-2 ID # 99). Article 11 goes on to restrict the
arbitrator by stating that the “arbitrator will have
the authority to determine only the dispute set forth in the
written grievance, and will have no authority to add to,
modify, or amend ...