United Steel, Paper & Forestry Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union v. Valero Servs., Inc., CIVIL ACTION NO. 1:12-CV-113

UNITED STEEL, PAPER AND FORESTRY RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIALAND SERVICE WORKERS INTERNATIONAL UNION, LOCAL 13-423, Plaintiff,

v.VALERO SERVICES, INC., Defendant.

CIVIL ACTION NO. 1:12-CV-113

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

Dated: February 13, 2013

MEMORANDUM AND ORDER

Pending before the court are Plaintiff United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 13-423's ("the Union") and Defendant Valero Services, Inc.'s ("Valero") cross-motions for summary judgment. Both parties seek a determination as to the arbitrability of the timeliness of the Union's notice to arbitrate under the parties' Collective Bargaining Agreement ("CBA"). Having reviewed the pending motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that the Union's motion for summary judgment should be granted and Valero's motion for summary judgment should be denied.

I. Background

This dispute stems from the termination of Valero employee Kent Miguez ("Miguez") on May 12, 2011. The Union and Valero are parties to a CBA, which was in effect from February 1, 2009, to February 1, 2012. Article XIX of the CBA provides the procedures for settling grievances and the time period to commence arbitration and states that: (i) if an employee'scomplaint is not resolved by the employee's supervisor or department head, the Union has fifteen days to file a grievance with management; (ii) management then has fifteen days to render a decision regarding the grievance; (iii) if the Union does not agree with management's decision and wishes to submit the case to an arbitrator, the Union must file its intent to arbitrate with management within fifteen days of receiving the decision.

On July 18, 2011, in accordance with grievance procedures stated in the CBA, the Union challenged the termination of Miguez by filing a written grievance protesting Miguez's discharge. On July 20, 2011, Valero's management denied the Union's grievance. Pursuant to the CBA, the Union had until August 17, 2011, to file its intent to arbitrate, but failed to file its notice until September 2011.¹ Valero refused to submit the case for arbitration due to the Union's untimely filing.

On March 6, 2012, the Union initiated the instant lawsuit requesting this court to compel arbitration of the grievance and related timeliness dispute. On May 14, 2012, the court ordered the parties to submit briefing on the threshold issue relating to whether the court or the arbitrator should decide the arbitrability (timeliness) issue. On June 11, 2012, the parties filed the instant motions. The Union contends that the arbitrator should decide the issue on the grounds that: (i) an arbitrator generally decides issues of procedural arbitrability, such as timeliness; (ii) the CBA provides that a court may only hear issues of substantive arbitrability and not procedural arbitrability; and (iii) the CBA cannot strip jurisdiction from an arbitrator. On the other hand,Valero argues that the court, rather than an arbitrator, should decide the arbitrability issue because: (i) the CBA provides that a court will hear any issues as to arbitrability of a matter within the CBA; and (ii) an exception exists that allows a court to hear procedural arbitrability issues when the claim is strictly procedural and the claim may bar arbitration altogether. Thus, the issue before this court is not whether the Union filed its intent for arbitration on time. Rather, it is whether, under the CBA, the arbitrability of the Union's grievance should be determined by a court or by an arbitrator.

II. Analysis

A. Summary Judgment Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir. 2009); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).

"A fact is material only if its resolution would affect the outcome of the action . . . ." Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009); accord Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012); Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005). "Factual disputes that are irrelevant or unnecessary will not becounted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "An issue is 'genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (emphasis in original). Thus, a genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; accord Poole, 691 F.3d at 627; Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010); Wiley, 585 F.3d at 210; EMCASCO Ins. Co. v. Am. Int'l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir. 2006); Cooper Tire & Rubber Co. , 423 F.3d at 454. The moving party, however, need not negate the elements of the nonmovant's case. See Bayle, 615 F.3d at 355; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)); Millennium Petrochemicals, Inc. v. Brown & Root Holdings, Inc. , 390 F.3d 336, 339 (5th Cir. 2004).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. Celotex Corp. , 477 U.S. at 322 n.3 (quoting FED. R. CIV. P. 56(e)); Anderson, 477 U.S. at 256; Bayle, 615 F.3d at 355; EMCASCO Ins. Co., 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004). "[T]he court must review the record 'taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)); see Riverwood Int'l Corp. v. Emp'rs Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005). All the evidence must be construed in the light most favorable to the nonmoving party, and the court will not weigh the evidence or evaluate its credibility.Reeves, 530 U.S. at 150; Downhole Navigator, LLC v. Nautilus Ins. Co., 686 F.3d 325, 328 (5th Cir. 2012); EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009); Lincoln Gen. Ins. Co. , 401 F.3d at 350; Smith, 391 F.3d at 624. The evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in its favor. Groh v. Ramirez, 540 U.S. 551, 562 (2004) (citing Anderson, 477 U.S. at 255); Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 192 (5th Cir. 2011); Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009).

Nevertheless, "only reasonable inferences in favor of the nonmoving party can be drawn from the evidence." Mills v. Warner-Lambert Co., 581 F. Supp. 2d 772, 779 (E.D. Tex. 2008) (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 469 n.14 (1992)); accord Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012). "If the [nonmoving party's] theory is . . . senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Eastman Kodak Co., 504 U.S. at 468-69; accord Shelter Mut. Ins. Co. v. Simmons, 543 F. Supp. 2d 582, 584-85 (S.D. Miss.), aff'd, 293 F. App'x 273 (5th Cir. 2008). The nonmovant's burden is not satisfied by "'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,'" by speculation, by the mere existence of some alleged factual dispute, or "by only a 'scintilla' of evidence." Little, 37 F.3d at 1075 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Matsushita Elec. Indus. Co., 475 U.S. at 586; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994)); accord Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 294-95 (5th Cir. 2007); Warfield, 436 F.3d at 557; Boudreaux, 402 F.3d at 540. "Unsubstantiated assertions, improbable inferences, and unsupported speculation are notsufficient to defeat a motion for summary judgment." Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003); accord RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010); Hugh Symons Grp., plc v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir.), cert. denied, 537 U.S. 950 (2002); see Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 332 (5th Cir. 2004).

Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case on which it bears the burden of proof at trial. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322; EMCASCO Ins. Co., 438 F.3d at 523; Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 110 (5th Cir. 2005); Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004). "[W]here the non-moving party fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, no genuine issue of material fact can exist." Apache...