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United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC v. H.B. Fuller Co.

United States District Court, W.D. Kentucky, Paducah

October 9, 2018

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
v.
H.B. FULLER COMPANY, DEFENDANT

          MEMORANDUM OPINION & ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE.

         This 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.

         I. Background

         The 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 CBA.

         A. Huntley's Grievance

         Huntley's 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).

         B. The PPA

         The 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).

         C. The CBA

         The 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.

         1. Article 3

         Article 3 is titled “Management Rights” and reads in full:

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 Agreement.

(R. 13-2 ID # 90).

         2. Article 11

         Article 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 arbitrator.

(R. 13-2 ID # 99). Article 11 goes on to restrict the arbitrator by stating that the ÔÇťarbitrator 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 ...


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