United States Court of Appeals
For the First Circuit
No. 02-2032
SHAW'S SUPERMARKETS, INC.,
Plaintiff, Appellant,
v.
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 791, AFL-CIO,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge, and
Howard, Circuit Judge.
David E. Watson, Nancy A. McGuire, Thomas W. Colomb, and
Nutter McClennen & Fish LLP on brief for appellant.
Betsy Ehrenberg and Pyle, Rome, Lichten & Ehrenberg, P.C. on
brief for appellee.
March 6, 2003
LYNCH, Circuit Judge. United Food & Commercial Workers
Union, Local 791 ("the Union") pursued like grievances under three
separate contracts for three Shaw's Supermarkets, Inc. regions and
then brought them to American Arbitration Association ("AAA")
arbitration, asking for a single consolidated proceeding. Shaw's
objected to the proposed consolidation and brought a federal action
for a declaratory judgment that, as a matter of law, a party is
prohibited from unilaterally consolidating grievances under
multiple contracts into a single arbitration. Shaw's
characterization of the question, though, is imprecise, as it would
be up to the arbitrator, not the Union, whether to consolidate.
Shaw's theory apparently was that the Union could not even ask for
consolidation.
The district court declined to enter the declaratory
judgment sought by Shaw's; instead, it entered summary judgment for
Local 791, holding the question of consolidation was a procedural
issue for the arbitrator to decide. Shaw's appeals from the
dismissal of its case. We affirm.
I.
Local 791 and Shaw's have signed three collective
bargaining agreements ("CBAs") governing workers in stores and
warehouses in southeastern Massachusetts, Rhode Island, and Maine.
Each CBA provides for arbitration as the fourth and final step of
a multi-part grievance process. In May and June 2001, the Union
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submitted three grievances, one under each CBA, protesting a new
company-wide Shaw's policy concerning leaves granted to members of
the Union's negotiating committee. The Union requested that the
AAA consolidate the three grievances because they challenged the
same policy; Shaw's objected. Shaw's filed suit seeking a
declaration as well as partial summary judgment from the district
court that the Union, by seeking consolidation, had violated
Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185
(2000). The Union filed a cross-motion for summary judgment.
The district court denied Shaw's motion, granted the
Union's motion, and ordered Shaw's to arbitrate the grievances. It
relied on cases permitting consolidation of arbitrations from
multiple grievances under one contract. See, e.g., Avon Prods.
Inc. v. UAW, Local 710, 386 F.2d 651, 658-59 (8th Cir. 1967) (it is
up to the arbitrator, not the courts, to determine whether
consolidated grievances presented by the union are to be resolved
in single or multiple proceedings). Shaw's says this precedent
should not apply where the consolidation involves grievances under
multiple contracts.
Shaw's appeals, arguing that consolidation is an issue of
substantive arbitrability, and not merely a procedural matter,
because it raises the question of whether the CBA empowers an
arbitrator to act in a given situation. Ironically, Shaw's relies
on a 1947 arbitrator's decision, In re Fairchild Engine & Airplane
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Corp., 7 Lab. Arb. Reports 112 (1941), where the arbitrator, and
not a court, made that determination.
Shaw's also contends that the Union violated Section 301
by unilaterally demanding that the AAA process three grievances in
one proceeding, over Shaw's objection. Shaw's argues that if this
court determines the issue of consolidation is not a procedural
matter, it should reach the Section 301 issue. It supports its
argument that Section 301 is violated by saying that each of the
three contracts in question refers to "this agreement" and so they
may not be read to permit consolidation.
Shaw's stated objection is that it should not be obliged
to arbitrate cross-contract, and that consolidation will give the
Union an unfair advantage. Shaw's says that consolidation is
contrary to the inviolability and integrity of the bargaining unit.
Why this should be so is not self-evident. Indeed, Shaw's agreed
to some consolidation on an earlier occasion.1
The Union asserts that there is a common question
underlying all three grievances. The common question relates to a
new company-wide policy requiring employees who are members of the
1
Once before, the Union sought to consolidate for hearing
three grievances under three contracts challenging a company-wide
policy (concerning administration of Family and Medical Leave Act
leave). Shaw's consented to consolidated arbitration of two, but
not of the third. Shaw's asked the arbitrator to rule on whether
the three could be consolidated; the arbitrator consolidated the
proceeding.
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negotiating committees to take a leave of absence for the duration
of contract negotiations, rather than allowing them to take
individual days off, which was the prior practice. The Union
points out that the same company official was present for the
negotiation of all three contracts and one company representative
answered all three grievances at issue.
After Shaw's objected to consolidating the grievances and
refused to participate in processing them, the AAA notified both
sides that it would continue to administer the case as submitted by
the Union unless it was advised to the contrary by both parties or
enjoined by a court of proper jurisdiction. No arbitrator has yet
considered the merits of Shaw's objections to the consolidation,
and there appears to be nothing to stop Shaw's from raising the
issue of consolidation at arbitration.
II.
Because this appeal presents a question of law, appellate
review is plenary. See PaineWebber Inc. v. Elahi, 87 F.3d 589, 592
(1st Cir. 1996) (determination of arbitrability depends on contract
interpretation which is a matter of law).
The issue before us is who should make the determination
as to whether to consolidate the three grievances into a single
arbitration: the arbitrator or a federal court. Since each of the
three grievances is itself concededly arbitrable, we think the
answer is clear. Under Howsam v. Dean Witter Reynolds, Inc., 123
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S. Ct. 588 (2002), this is a procedural matter for the arbitrator.
In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-58
(1964), the Court distinguished between questions of arbitrability,
which are committed to the courts, and questions of procedure,
which should be left to the arbitrator, even if they "grow out of
the dispute and bear upon its final disposition." Howsam clarifies
the distinction between arbitrability and procedural questions,
emphasizing the broad scope of the latter. It rejects the argument
that this type of issue is a "question of arbitrability" and holds:
The Court's case law, however, makes clear that, for
purposes of applying the interpretive rule, the phrase
'question of arbitrability' has a far more limited scope.
The Court has found the phrase applicable in the kind of
narrow circumstance where contracting parties would
likely have expected a court to have decided the gateway
matter, where they are not likely to have thought that
they had agreed that an arbitrator would do so, and,
consequently, where reference of the gateway dispute to
the court avoids the risk of forcing parties to arbitrate
a matter that they may well not have agreed to arbitrate.
Id. at 592 (citation omitted). There is no evidence in the CBAs
here that the parties did not expect their disputes regarding
matters such as consolidation to be resolved through arbitration.
The analysis in Howsam is consistent with our decision in
PaineWebber: "We believe that parties who have agreed to arbitrate
a given subject most likely intend and expect that the arbitrator
should resolve all issues that arise concerning that subject; if
they do not, we think they would clearly express their contrary
intent." 87 F.3d at 599. We concluded,
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[T]he signing of a valid agreement to arbitrate the
merits of the subject matter in dispute presumptively
pushes the parties across the 'arbitrability' threshold;
we will then presume that other issues relating to the
substance of the dispute or the procedures of
arbitration are for the arbitrator.
Id. Here, the parties have crossed the arbitrability threshold by
signing valid agreements to arbitrate the subject matter of the
dispute. Under the three CBAs, each of the grievances individually
is arbitrable. As such, the facts in this case are unlike those in
John Wiley, which left to a court to decide whether the parties had
agreed to arbitrate at all after a merger had subsumed the original
employer into a larger corporation. In the present case, Shaw's is
the original signatory and, through the CBA, has committed to
resolving such disputes through arbitration.
Leaving the decision whether to consolidate the three
proceedings in the hands of the arbitrator comports with long-
standing precedent resolving ambiguities regarding the scope of
arbitration in favor of arbitrability. "[A]ny doubts concerning
the scope of arbitrable issues should be resolved in favor of
arbitration, whether the problem at hand is the construction of the
contract language itself or an allegation of waiver, delay, or a
like defense to arbitrability." Mastrobuono v. Shearson Lehman
Hutton, Inc., 514 U.S. 52, 62 n.8 (1995) (quoting Moses H. Cone
Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)).
It is true that a procedural ruling may implicate
substantive matters. See Howsam, 123 S. Ct. at 592. But the
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arbitrator plainly has jurisdiction over each grievance, and has
the duty to consider each grievance in light of the language of the
pertinent CBA and any other relevant factors. The arguments Shaw's
makes against consolidation are ones which it should present to the
arbitrator. See, e.g., Bechtel Constr., Inc. v. Laborers' Int'l
Union, 812 F.2d 750, 753-54 (1st Cir. 1987) (district court
properly decided that company's defenses are a matter for
consideration by the arbitrator, not the courts). Now it is time
to end this year-long sojourn in our federal courts. Procedural
matters are committed to the arbitrator, in part, in order to avoid
such delay. See John Wiley, 376 U.S. at 558.
The judgment of the district court is affirmed. Costs
are awarded to the Union.
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