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Baltimore/Washington Construction v. Whiting-Turner Contracting Co.

United States District Court, D. Maryland

March 23, 2017

Baltimore/Washington Construction and Public Employee Laborer's District Council, Petitioner
v.
Whiting-Turner Contracting Co., Respondent

          MEMORANDUM

          James K. Bredar United States District Judge

         Petitioner filed a petition in this Court to compel arbitration of its claim against Respondent pursuant to the Federal Arbitration Act and the Labor-Management Relations Act. (Petition, ECF No. 1.) Now pending before the Court are Respondent's motion to dismiss the petition (ECF No. 4) and Petitioner's motion to compel arbitration (ECF No. 5). Both motions are fully briefed. (ECF Nos. 4-1, 5-1, 7, 8). No hearing is necessary. See Local Rule 105.6 (D. Md. 2016.) For the reasons stated below, Respondent's motion will be denied in part and denied in part as moot, and Petitioner's motion will be granted in part and denied in part as moot.

         I.STANDARD TO COMPEL ARBITRATION UNDER THE LMRA

         The Labor-Management Relations Act provides a labor union with federal standing to “sue or be sued on behalf of the employees whom it represents.” 29 U.S.C. § 185(b). A union may thus petition the court to enforce a valid labor contract's arbitration clause, and federal courts have the authority to compel arbitration under such circumstances. Kop-Flex Emerson Power Transmission Corp. v. Int'l Ass'n of Machinists Local Lodge No. 1784, 840 F.Supp.2d 885, 890 (D. Md. 2012). In ruling on a motion to compel arbitration, a court must limit its inquiry to determining the question of arbitrability, that is, “the gateway dispute about whether the parties are bound by a given arbitration clause.” Id. (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)).

         II. FACTUAL BACKGROUND

         The instant dispute arises within the context of Respondent's oversight of construction of the MGM Resort Casino at National Harbor in Prince George's County, Maryland (“the Project”). (Petition.) To promote an efficient and cooperative relationship between management and labor working on the Project, Respondent entered into a Project Labor Agreement (the “PLA”) with various trade unions, including Petitioner, on September 15, 2014. (PLA § 1.4, ECF No. 1-1.)

         The PLA grants preference to contractors or subcontractors who themselves sign the PLA and have signed collective bargaining agreements with appropriate unions. (See PLA § 12.5.) However, it contemplates the participation of other contractors as well. (See id.) According to the PLA, any contractor or subcontractor working on the Project-whether or not it is a party to the PLA-must pay its employees according to the region's prevailing wage, at a minimum. (Id.) The PLA also sets out a three-step process for resolving any dispute that should arise between labor and management within the course of the Project. (PLA § 6.3.) This procedure is the exclusive means of resolving conflicts between a laborer or union and a contractor or the Respondent when both parties involved are signatories to the PLA. (Id.) It requires that, if a union has a grievance against an employer, the two must first attempt to resolve the issue through a conference among their representatives. (Id. at § 6.3.3(b).)[1] If the parties are unable to agree on a solution, then the appropriate international union must send a representative to attempt to resolve the issue with the employer. (Id. at § 6.3.2.) Finally, if no resolution is availing after the previous two steps, then either party may submit the dispute to arbitration. (Id. at § 6.3.3(a).)

         DGS Construction, d/b/a Schuster Concrete Construction (“Schuster”), which does not have a collective bargaining agreement with its employees and is not a signatory to the PLA, contracted with Respondent to perform certain services on the Project. (Petition ¶ 11.) On March 17, 2016, Petitioner met with Respondent in an attempt to address Petitioner's objection that Schuster allegedly failed to pay its employees in conformity with § 12.5 of the PLA. (Allison Letter dated March 25, ECF No. 1-2.) In correspondence on April 20 and May 2, 2016, Respondent asserted its position that Petitioner had not alleged Respondent to have violated the PLA and that Schuster (a non-signatory to the PLA) was not bound by the PLA's prevailing wage requirement. (Taylor Letters dated April 20 and May 2, ECF Nos. 4-2, 4-3.) Interpreting Respondent's communications as denials under Steps One and Two of the PLA's grievance procedure, Petitioner proceeded at some point between May 2 and May 9, 2016, to submit the dispute for arbitration.[2] (Martire Letter dated March 25, ECF No. 4-4.) In correspondence on May 10, and 20, 2016, Respondent refused to participate in arbitration, reasserting its position that Petitioner had failed to allege Respondent to have committed any breach of the PLA and that accordingly, there was no basis for arbitration. (Taylor Letters dated May 10 and 20, ECF Nos. 4-5, 1-3). On May 23, 2016, Petitioner averred (1) that the PLA obliged Respondent to ensure that all non-union subcontractors it retained paid their employees in conformity with § 12.5 of the PLA; (2) that by failing to do so in the case of Schuster, Respondent was in breach of the PLA; and (3) that Petitioner's objection to this breach was an arbitrable grievance. (Petruska Letter dated May 23, ECF No. 1-4.) On June 4, 2016, Respondent again denied that Petitioner's claim constituted an arbitrable grievance under the PLA. (Taylor Letter dated June 4, ECF No. 1-5.) The instant action followed on November 16, 2016. (Petition.)

         III. ANALYSIS

         Petitioner filed its action pursuant to two federal statutes: the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4 (2015), and the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185 (2015). (Petition ¶¶ 18-25.) As discussed below, the Court finds (A) the action is timely under the LMRA, (B) the substance of Petitioner's grievance is contemplated under the arbitration provision contained in the PLA's grievance procedure, and (C) questions of Petitioner's compliance with the grievance procedure are appropriate for resolution in arbitration. Accordingly, Petitioner's motion to compel arbitration will be granted and Respondent's motion to dismiss will be denied under the LMRA. Both parties' motions with respect to the FAA will therefore be denied as moot.

         A. Timeliness under the LMRA

         Congress has adopted a broad federal policy “favoring arbitration of labor disputes.” Peabody Holding Co., LLC v. United Mine Workers of Am., Int'l Union, Unincorporated Ass'n, 815 F.3d 154, 162 (4th Cir. 2016). It passed the LMRA in 1947 in order to define the rights of employees and employers (with respect to each other and to organized labor unions) and to ensure protection of such rights and those of the public in connection with labor disputes affecting commerce. 29 U.S.C. § 141 (2015).

         The Fourth Circuit has not definitively stated the applicable statute of limitations in actions to compel labor arbitration. See United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied-Indus. & Serv. Workers Int'l Union Local No. 850L v. Cont'l Tire N. Am., Inc., 568 F.3d 158, 162 (4th Cir. 2009) (declining to address the issue). Respondent appeals to the federal policy in favor of speedy resolution of labor disputes as a basis for applying the National Labor Relations Act's (“NLRA's”) six-month statute of limitations (measured from the date on which a party first refuses to participate in arbitration) in the instant case[3] and argues this statute of limitations has been applied by several courts in analogous situations to the instant case.[4](Resp't's Reply in Supp. 10-11, ECF No. 7.) Petitioner, by contrast, argues that the cases relied on by Respondent do not represent the current state of the law[5] and that it is more appropriate to apply the general three-year statute of limitations governing civil actions in Maryland.[6] (Pet'r's Reply in Supp. 5-7, ECF No. 8.) However, in the instant matter, the Court need not determine the correct statute of limitations because it finds Petitioner to have complied with even the more stringent standard promoted by Respondent.

         Petitioner first complained to Respondent about Schuster's noncompliance with the PLA on March 17, 2016. (Allison Letter dated March 25.) As early as April 20, 2016, Respondent denied Petitioner's complaint was subject to the grievance procedure (including arbitration). (Taylor Letter dated April 20.) Respondent would have the Court conclude that its April 20 correspondence represents a refusal to arbitrate the instant dispute. (Resp't's Mem. in Supp. 6-7, ECF No. 4-1.) According to that position, the latest date Petitioner could have filed a timely action under the NLRA's limitations period would have been October 20, 2016, thus rendering untimely the instant action, filed on November 16, 2016.[7] Opposite that position, Petitioner argues its complaint was not fully articulated until May 23, 2016, when it averred that Respondent was in breach of contract because it did not enforce Schuster's compliance with ยง 12.5 of the PLA. ...


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