Shaw's Supermarkets, Inc. v. United Food & Commercial Workers Union, Local 791

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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