Akers National Roll Co. v. United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union

712 F.3d 155, 2013 WL 1338976, 195 L.R.R.M. (BNA) 2479, 2013 U.S. App. LEXIS 6803
CourtCourt of Appeals for the Third Circuit
DecidedApril 4, 2013
Docket12-1727
StatusPublished
Cited by22 cases

This text of 712 F.3d 155 (Akers National Roll Co. v. United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akers National Roll Co. v. United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, 712 F.3d 155, 2013 WL 1338976, 195 L.R.R.M. (BNA) 2479, 2013 U.S. App. LEXIS 6803 (3d Cir. 2013).

Opinion

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The Union representing certain employees at Akers National Roll Company (the “Company”) appeals from a judgment entered on March 13, 2012 by the United States District Court for the Western District of Pennsylvania. The District Court vacated an award issued by Arbitrator Richard D. Sambuco (the “Arbitrator”), granted the Company’s motion for summary judgment, and denied the Union’s motion for summary judgment.

In 2009, the Union submitted three grievances on behalf of Company employee and Union member Nelson Lubik, alleging that the Company violated a “past practice” by failing to schedule Lubik, a maintenance clerk, for Saturday overtime when the maintenance department was scheduled to work. After the Arbitrator sustained the three grievances and ordered *157 the Company to pay Lubik back wages for the missed overtime, the Company sued to vacate the Arbitrator’s award. The District Court vacated the award because it concluded that the award did not “draw its essence” from the Collective Bargaining Agreement (the “CBA” or “Agreement”); it reached this conclusion after determining that the plain language of the CBA “unambiguously” gave the Company the exclusive right to schedule its workforce. Because we disagree with the District Court’s reasoning and its conclusion, we will reverse the District Court’s judgment and will order enforcement of the Arbitrator’s award.

I.

A.

The Company runs a manufacturing plant in Avonmore, Pennsylvania, and the Union is the exclusive collective-bargaining representative for clerical and technical employees at the plant. From September 1, 2008 through February 29, 2012, the Company and the Union were parties to a CBA. The CBA included a multi-step grievance resolution procedure to be used when the Union and the Company disagreed over “interpretation or application of, or compliance with the provisions” of the CBA. App. 31. Under the CBA, unresolved grievances were submitted to arbitration.

In February and March of 2009, the Union submitted three grievances on behalf of Lubik, alleging that the Company violated the CBA by directing Lubik not to work Saturday shifts on February 14, February 28, and March 7, when employees of the maintenance department were scheduled to work. In the first grievance, the Union stated that the nature of the grievance was “Past Practice, the maintenance clerk has always worked when the Maintenance Department works whether full or partial crew.” Id. at 65. Because Lubik would have been eligible for overtime pay if he had worked on a Saturday alongside maintenance department employees, the Union alleged that the Company should be liable to pay Lubik at the overtime rate for the hours he was not scheduled to work. Id.

Per the grievance resolution procedure, the Company submitted answers to the Union’s allegations. Regarding the first grievance, the Company asserted that there was no violation of the CBA because the “Company has the right to schedule under Section 3 ... of the Labor Agreement,” because the CBA “does not recognize the existence of ‘past practice’ in an[y] form,” and because “[t]he notion of a ‘past practice’ cannot undo or supersede clear contract language!;] Section 3 is very clear.” Id. at 66. The Company additionally asserted that “Section 2 — Scope of the Agreement [ ] states that any agreements must be put in writing and signed by the union designate and the company.” Id.

The Company submitted answers to the second and third grievances as well, and its final answer stated that its position had not changed since its answer to the first grievance, “cit[ing] Section 2, Section 3 and all other relevant sections in support of its scheduling.” Id. at 70. The final answer also referred to a “Section 9 D(C) page 20” in response to Lubik’s grievance. The CBA does not contain a Section 9(D)(C), though, and page 20 contains portions of Section 8, “Rates of Pay,” which does not appear to be relevant to the instant dispute.

The Company and the Union ultimately submitted the three grievances to arbitration per the CBA.

B.

Because provisions of the CBA command our attention in deciding this case, *158 we set forth the following relevant sections thereof.

Section 3 of the CBA, entitled “Management” and referred to as the “management rights clause,” reads as follows:

1. The Company retains the exclusive rights to manage the business and plant and to direct the working forces. The Company, in the exercise of its rights, shall observe the provisions of this Agreement.
2. The rights to manage the business and plant and to direct the working forces includes the right to hire, suspend or discharge for proper cause, or transfer, and the right to relieve employees from duty because of lack of work or for other legitimate reasons.

Id. at 29.

Section 9 of the CBA is entitled “Hours of Work.” Two provisions of that Section are relevant to our analysis, Sections 9(A)(1) and 9(B)(1), which read as follows:

A. Normal Hours of Work
1. The normal workweek shall be 40 hours per week, scheduled on five successive days, from Monday through Friday, inclusive.
B. Scheduling
1. If an employee is requested to report to work outside his regularly scheduled workweek and whether or not work is available he shall receive a minimum of 4 hours reporting pay at the employee’s applicable rate of pay.

Id. at 38.

Section 2 is entitled “Scope of the Agreement.” Within Section 2 is a paragraph referred to by the parties as a “zipper clause,” which reads as follows:

Agreements for the plant will only be recognized if they are in writing and signed by the designate of the International, and the Negotiating Committee; provided, however, that any such agreements may be terminated by either party upon 30 days written notice to the other party.

Id. at 28.

C.

On June 17, 2010, the Union and the Company participated in a hearing before the Arbitrator, and they “stipulated that the case being heard included three (3) grievances, all involving the same issue.” Id. at 70. The Union and the Company presented their contentions and supporting evidence to the Arbitrator. The Arbitrator’s award contains a section that summarizes the positions of the parties as presented at the arbitration hearing. Id. at 86-89. The thrust of the Union’s argument was that a past practice had been established, and that a written, signed agreement was not required for its establishment. Id. at 87. The Union presented evidence in support of its argument, including the testimony of Lubik as well as exhibits detailing the maintenance department’s work schedule from 2008-2010, along with payroll records for Lubik. Id. at 72-83.

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Bluebook (online)
712 F.3d 155, 2013 WL 1338976, 195 L.R.R.M. (BNA) 2479, 2013 U.S. App. LEXIS 6803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akers-national-roll-co-v-united-steel-paper-forestry-rubber-ca3-2013.