United States District Court, N.D. California, San Jose Division
November 21, 2005.
GRANITE ROCK COMPANY, Plaintiff,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, FREIGHT, CONSTRUCTION, GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 287 (AFL-CIO), Defendant.
The opinion of the court was delivered by: JAMES WARE, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
AND DENYING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S JURY DEMAND
Plaintiff Granite Rock Company ("Plaintiff") brings this action
against Defendant International Brotherhood of Teamsters,
Freight, Construction, General Drivers, Warehousemen and Helpers,
Local No. 287 ("Defendant") pursuant to Section 301(a) of the
Labor Management Relations Act, 29 U.S.C. § 185(a), for disputes
arising out of alleged contract violations. Plaintiff alleges
that there was a ratified collective bargaining agreement between
the parties, and that Defendant violated the agreement by
engaging in an unlawful strike.
Defendant now moves for partial summary judgment. The purpose
of the motion "is to enable the Court to determine in advance of
trial whether, as Defendant contends, particular issues raised by
the pleadings in this case should be reserved for arbitration
pursuant to the collective bargaining agreement, and not heard at trial by the Court." Motion, p. 1 Specifically,
Defendant contends that "trial of this case must be limited to
the single question of whether the collective bargaining
agreement that Plaintiff claims to have been violated was in
existence at the time the alleged violation occurred, and that
the potential issues as to whether Defendant violated the
agreement and the amount of damages, if any to be awarded, must
be referred to arbitration if the agreement is found by the Court
to have been in existence at the relevant time." Id. Defendant
also moves to strike Plaintiff's jury demand
A hearing on Defendant's motions was set for November 14, 2005.
However, this Court finds it appropriate to take the motions
under submission without oral argument pursuant to Civil Local
Rule 7-1(b). Based on the arguments advanced by counsel in their
briefs and on the pleadings, Defendant's motion for partial
summary judgment is GRANTED, and Defendant's motion to strike
Plaintiff's jury demand is DENIED.
A. Factual Background
Plaintiff Granite Rock is a California company engaged in the
business of supplying ready mixed concrete for commercial use.
Defendant Local 287 is a voluntary, unincorporated association,
commonly known as and doing business as a "labor organization"
within the meaning of 29 U.S.C. § 185. Defendant represents
certain Granite Rock employees at its San Jose facility, and is
the collective bargaining representative for employees engaged as
drivers at the San Jose facility.
From March 1, 1999 to April 30, 2004 Plaintiff and Defendant
were parties to a collective bargaining agreement. (Amended
Complaint, hereinafter "Am. Compl.," ¶ 6.) Preliminary
negotiations for a new agreement commenced in March 2004.
Negotiations continued throughout April and May without success.
In early June 2004, after the agreement's expiration, bargaining
unit employees at the San Jose facility went on strike. (Am.
Compl. ¶ 8.) Plaintiff alleges that after further negotiations,
the parties reached an agreement at 4:00 a.m. on Friday, July 2,
2004 on terms for a new collective bargaining agreement covering
the period from May 1, 2004 to April 30, 2008 ("New Agreement").
(Am. Compl. ¶ 8.) In addition, Plaintiff claims that George
Netto, Defendant's Business Representative, called to inform
Plaintiff that the New Agreement was ratified later that same day by a vote
of all the union employees. (Am. Compl. ¶ 10.)
Defendant denies that the New Agreement was ever ratified.
Instead, Defendant asserts that ratification was conditioned on
the parties first agreeing on a "Back to Work Agreement."
Plaintiff, on the other hand, alleges that the parties agreed to
discuss a "Back to Work Agreement" at a later date, and that any
such "Back to Work Agreement" would be subject to the grievance
procedure set forth in the New Agreement. The New Agreement
included a no-strike clause and a compulsory grievance and
arbitration procedure for the settlement of "any disputes"
arising under the agreement. (Am. Compl. ¶ 11.)
On July 5, 2004, Defendant allegedly violated the New Agreement
by calling union members and instructing them not to return to
work. (Am. Compl. ¶ 13.) Plaintiff alleges that Defendant
informed Plaintiff that its members would not return to work
until Plaintiff executed a "Back to Work Agreement" guaranteeing
amnesty for its employees and for employees of Plaintiff's other
facilities in three counties covered under separate collective
bargaining agreements with different unions. (Am. Compl. ¶ 13.)
Plaintiff also alleges that Defendant violated the New Agreement
by not participating in the compulsory grievance and arbitration
provision set forth in the agreement and by engaging in an
unlawful strike. (Am. Compl. ¶¶ 13-14.) The strike has now ended.
However, Plaintiff still seeks damages resulting from the alleged
violation of the New Agreement.
B. Procedural Background
On July 9, 2004, Plaintiff filed the instant complaint against
Defendant for damages from the allegedly unlawful strike. Shortly
thereafter, Plaintiff amended the complaint to include injunctive
relief, and brought a motion for temporary restraining ("TRO")
to: (1) Enjoin and restrain Defendant from "[t]hreatening,
causing, directing, assisting or participating in any strike,
slowdown or other concerted refusal to perform work in violation
of the collective bargaining agreement between the parties, or in
any other manner interrupting the normal operations of Plaintiff
over any dispute, complaint or grievance with Plaintiff
concerning the discipline and/or amnesty on striking employees
which is resolvable under the grievance and arbitration
provisions of the Parties' collective bargaining agreement"; and
(2) to "withdraw any outstanding orders or directions to employees of Plaintiff
that said employees should engage in a cessation of work because
of any dispute over the application or interpretation of the
Collective Bargaining Agreement and to advise all employees and
prospective employees of Plaintiff represented by Defendant not
to engage in any of the acts described above." Plaintiff's
Application, p. 2.
The Court determined that Plaintiff's application for a
temporary restraining order could be consolidated with a trial on
the merits pursuant to Rule 65, Fed.R.Civ.P., and proceeded to
hear the case on its merits with respect to whether the
collective bargaining agreement had been ratified. Following the
receipt of testimony, the Court found that the New Agreement had
not been ratified; dismissed the complaint; and entered judgment.
Plaintiff next filed a motion for a new trial based upon newly
discovered evidence, which the Court granted. Thereafter,
Defendant moved for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c), or, in the alternative, for a stay of
these proceedings pending arbitration of the dispute. The Court
denied Defendant's motion because of the underlying factual
dispute regarding the alleged ratification of the New Agreement.
See Order Denying Defendant's Motion for Judgment on the
Pleadings, Docket Item No. 57.
Defendant now moves for partial summary judgment under Federal
Rule of Civil Procedure 56 to resolve the scope of the
arbitration clause contained in the New Agreement. The
arbitration provision in the New Agreement states that "[a]ll
disputes arising under this agreement shall be resolved in
accordance with the [Federal Mediation and Conciliation Service
for Mediation if the Union and the Employer are unable to resolve
the dispute]." (Decl. of Duane B. Beeson, Ex. B at 18.) Defendant
contends that assuming that the Court finds ratification, the New
Agreement requires arbitration of the remaining issues, namely
breach and damages. Plaintiff, however, contends that all issues
are to be decided in this judicial proceeding, not arbitration.
Defendant also moves to strike Plaintiff's jury demand under
Federal Rule of Civil Procedure 39(a), on the grounds that
Plaintiff's demand was untimely, or alternatively, that Plaintiff
waived its right to jury trial. Plaintiff opposes the motion. III. STANDARDS
Summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). The purpose
of summary judgment "is to isolate and dispose of factually
unsupported claims or defenses." Celotex v. Catrett,
477 U.S. 317, 323-324 (1986).
The moving party "always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of `the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any' which it believes demonstrate the absence
of a genuine issue of material fact." Id. at 323. If this
burden is met, the moving party is then entitled to judgment as a
matter of law when the non-moving party fails to make a
sufficient showing on an essential element with respect to which
the non-moving party bears the burden of proof at trial. Id. at
The non-moving party "must set forth specific facts showing
that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
The non-moving party cannot defeat the moving party's properly
supported motion for summary judgment simply by alleging some
factual dispute between the parties. To preclude the entry of
summary judgment, the non-moving party must bring forth material
facts, i.e., "facts that might affect the outcome of the suit
under the governing law . . . Factual disputes that are
irrelevant or unnecessary will not be counted." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The opposing
party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
The court must draw all reasonable inferences in favor of the
non-moving party, including questions of credibility and of the
weight to be accorded particular evidence. Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson,
477 U.S. at 255); Matsushita, 475 U.S. at 588; T.W. Elec. Serv. v.
Pac. Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). It is
the court's responsibility "to determine whether the `specific
facts' set forth by the nonmoving party, coupled with undisputed
background or contextual facts, are such that a rational or
reasonable jury might return a verdict in its favor based on that evidence." T.W. Elec. Serv., 808 F.2d at 631.
"[S]ummary judgment will not lie if the dispute about a material
fact is `genuine,' that is if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248. However, "[w]here the record taken
as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no `genuine issue for trial.'"
Matsushita, 475 U.S. at 587.
Defendant's motion for summary judgment is based upon the
arbitration provision of the New Agreement and is relatively
straightforward: if the Court finds that the New Agreement was
ratified, the remaining issues, namely the alleged breach of the
New Agreement and damages, are subject to arbitration pursuant to
the terms of the New Agreement. Plaintiff contends, however,
that: (1) Defendant has repudiated the arbitration provision by
arguing that the New Agreement was not ratified; (2) Defendant is
judicially and equitably estopped from asserting the arbitration
provisions; (3) Defendant has waived its right to arbitrate; and
(4) bifurcation of ratification issues from contract violation
and damages issues is inefficient and inappropriate.
Citing to California Trucking Ass'n. v. Bhd. of Teamsters &
Auto Truck Drivers, Local 70, 679 F.2d 1275 (9th Cir. 1982),
Plaintiff contends that Defendant repudiated the arbitration
provision in the New Agreement because: (1) Defendant made an
untimely assertion of the arbitration claims, and (2) denied the
binding effect of the New Agreement. Plaintiff's Opposition,
What occurred before the court in California Trucking Ass'n,
however, is materially distinct from what occurred before this
Court. In California Trucking Ass'n, the union did not assert a
right to arbitration in a timely manner. California Trucking
Ass'n 679 F.2d at 1284. Instead, the union "argued before the court that it preferred to have the action
determined in a speedy trial." Id. The union also delayed over
three years before moving to dismiss the lawsuit for failure to
exhaust contractual grievance procedures, and delayed an
additional year before requesting a stay. Id. Moreover, the
court in California Trucking Ass'n found that "neither the
motions for dismissal nor the motion for stay alleged that the
provisions in the . . . agreement it now relies upon required
arbitration." Id.. Further, the court in California Trucking
Ass'n found that the union had "substantially invoked the
litigation machinery by submitting several motions for summary
judgment on the merits." Id.
In the instant case, although Defendant opposed Plaintiff's
motion for TRO by arguing that there was no ratification of the
New Agreement, and that even if there was ratification, there was
nothing to arbitrate,*fn2 Defendant did not engage in the
kind of dilatory tactics that the union in California Trucking
Ass'n did. Defendant has consistently argued that the
arbitration provision applies to the issues of breach of contract
and damages. Defendant's answer specifically asserts the
affirmative defense that the alleged breach of contract and
damages are issues subject to the grievance and arbitration
provisions of the collective bargaining agreement. (Defendant's
Answer, Docket Item No. 43 at 3:14-20.) At the TRO hearing,
Defendant argued that there was nothing to arbitrate, and not, as
Plaintiff contends, that the arbitration provision does not
apply. Further, in each of Defendant's substantive motions to
date, Defendant has asked the Court to find that the arbitration
provision applies to the issues of breach of contract and
damages. Therefore, the Court finds that Defendant has not
repudiated the arbitration provision contained in the New
B. Judicial and Equitable Estoppel
Citing to New Hampshire v. Maine, 532 U.S. 742 (2001),
Plaintiff contends that Defendant is judicially and equitably
estopped from asserting the arbitration provision of the New
Agreement. In New Hampshire, the Supreme Court identified
several factors that typically inform the decision whether to
apply the doctrine of judicial estoppel in a particular case: (1)
whether the party's later position is "clearly inconsistent" with its earlier position; (2) whether the party
has succeeded in persuading a court to accept that party's
earlier position, so that judicial acceptance of an inconsistent
position in a later proceeding would create the perception that
either the first or second court was misled; and (3) whether the
party seeking to assert an inconsistent position would derive an
unfair advantage or impose an unfair detriment on the opposing
party if not estopped. Id. at 750-751.
Plaintiff contends that the Court should apply the doctrine of
judicial estoppel because: (1) Defendant denied the binding
effect of the New Agreement; (2) Defendant succeeded at the
temporary restraining order stage in arguing that the New
Agreement had not been ratified; and (3) Defendant derives an
unfair advantage by being able to effectively choose what forum
it would prefer to have adjudicate the liability and damages of
its violation of the New Agreement's no-strike clause.
Plaintiff's argument is unpersuasive for a number of reasons.
First, the law allows Defendant to assert both that the union
contract does not exists, and alternatively that if it does
exist, the arbitration provision applies. California Trucking
Ass'n. v. Bhd. of Teamsters & Auto Truck Drivers, Local 70,
supra, at 1283-1284. Furthermore, as discussed previously in
Section "A" to this Order, Defendant has consistently argued that
the arbitration provision applies to the issues of breach of
contract and damages. As for Plaintiff's contention of forum
shopping, this judicial forum was selected by Plaintiff, not
Defendant. Therefore, the Court rejects Plaintiff's judicial and
equitable estoppel theories.
Plaintiff contends that Defendant waived its right to arbitrate
because of undue delay in bringing the matter to arbitration, and
that Plaintiff was prejudiced from the delay. As the Court has
explained in Section "A" of this Order, Defendant did not unduly
delay making its arbitration. The Court granted Plaintiff's
Motion for a New Trial on January 25, 2005, and Defendant
immediately filed an answer on February 17, 2005, asserting the
compulsory arbitration provision as an affirmative defense.
Defendant's Answer to Amended Complaint, Docket Item No. 43.
Because there was no undue delay, the Court need not reach the
D. Efficiency and Appropriateness Plaintiff contends that a bifurcation of ratification issues
from contract violation and damages issues is inefficient and
inappropriate. Plaintiff's contention is unpersuasive. In Drake
Bakeries, Inc. v. Local 50, Am. Bakery, 370 U.S. 254 (1962), the
Supreme Court found that under our federal labor policy, courts
have "every reason to preserve the stabilizing influence of the
collective bargaining contract" where the arbitration provision
includes all disputes, did not exclude claims for strikes, and
contemplated submission of grievances. See Id. at 258. The
arbitration provision in the instant case includes all disputes.
Plaintiff does not contend that the arbitration provision
excludes claims for strikes, and the submission of grievances to
an arbitrator was clearly contemplated in the agreement.
Therefore, assuming ratification, the Court has every reason to
preserve the stabilizing influence of the New Agreement, and
refer the appropriate issues to arbitration.
E. Jury Demand
Defendant contends that Plaintiff's jury demand was untimely.
Under Federal Rule of Civil Procedure 38(b), "any party may
demand a trial by jury of any issue triable of right by a jury by
. . . serving upon the other parties a demand therefor in writing
at any time after the commencement of the action and not later
than 10 days after the service of the last pleading directed to
such issue." Fed.R.Civ.P. 38(b). The last pleading directed to
the issue of a jury trial was Defendant's Answer to Amended
Complaint, Docket Item No. 43. See Pacific Fisheries Corp. v.
HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002. In Pacific
Fisheries Corp., the jury demand was untimely because the jury
demand was filed more than ten days after the defendant had
answered the complaint. Id. In our case, Defendant's Answer to
Amended Complaint was filed on February 17, 2005, and Plaintiff
made a demand for a jury trial on February 24, 2005. Therefore,
Plaintiff's jury trial demand was timely.
Nevertheless, relying upon White v. McGuiness, 903 F.2d 699
(9th Cir. 1990), Defendant contends that Plaintiff waived its
right to a jury trial on the ratification issue. The White v.
McGuiness case, however, is factually distinct from the instant
case. In holding that the plaintiff had knowingly waived his
right to a jury trial, the White court found that the objecting
party was on notice that the trial court was planning to
adjudicate the dispositive issues of fact, and chose to argue
his case fully before the district judge. In the instant case, Plaintiff did not choose to argue its
case fully before the Court. What Plaintiff chose to argue
before the Court without a jury was whether a temporary
restraining order should issue against Defendant for violating
the Labor Management Relation Act, and not, as Defendant
contends, the issue of whether the collective bargaining
agreement had been ratified. Moreover, the Court has an
obligation to indulge every reasonable presumption against the
waiver of the jury right. See Pradier v. Elespuru,
641 F.2d 808, 811 (9th Cir. 1981).
For the reasons set forth above, Defendant's motion for partial
summary judgment is GRANTED, and Defendant's motion to strike is
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