Barriault v. Batesville Casket Co. CV-97-285-SD 05/12/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Matthew Barriault

v. Civil No. 97-285-SD

Batesville Casket Company, Inc.

O R D E R

In this action pursuant to the Family and Medical Leave Act

of 1993,

(a) (FMLA), plaintiff Matthew Barriault

alleges that defendant Batesville Casket Company (Batesville)

terminated his employment in violation of the FMLA. Currently

before the court is Batesville's motion for judgment on the

pleadings based on the theory that the collective bargaining

agreement between Batesville and the plaintiff's union mandates

arbitration as plaintiff's only avenue of redress.

Background

Barriault worked at Batesville for ten years until he was

fired in February of 1997. Barriault alleges that he was fired

for absenteeism necessitated by his chronic asthma. Batesville

uses a point system for absences under which an employee is

terminated when he or she accumulates sixty points. Barriault

alleges that many of his points were accumulated as a result of

medically excusable absences. Barriault was represented by a union, which had a collective

bargaining agreement with Batesville.1 The collective bargaining

agreement provided that the company's leave policy "shall be

applied consistent with the requirements of the Family and Medi­

cal Leave Act ( " F M L A " ) C B A , Art. IX at F.l. The collective

bargaining agreement also provided a grievance procedure2 and

declared that "the procedure for the resolution of a grievance

set forth in this Article is exclusive."

Art. VII at I.

Grievances subject to this requirement included any "claim by an

employee . . . that the Company has violated the aggrieved

employee's rights under an express provision of this Agreement."

Art. VII. At each stage of the grievance procedure through

arbitration, the union had "final authority to dispose of any

grievance in any step of the grievance procedure in any manner

deemed by it to be most prudent, including refusal to process the

grievance further, and the Company may conclusively rely on any

such disposition."

Art. VII at J.

XA copy of the Collective Bargaining Agreement (CBA) is attached to Plaintiff's Objection to Defendant's Motion for Judgment on the Pleadings (document 12) as Exhibit F, and to Defendant's Memorandum in Support of Defendant's Motion for Judgment on the Pleadings (document 8) as Exhibit A.

2The record does not reveal whether Barriault utilized the grievance procedure. Discussion

1. Standard for Judgment on the Pleadings

The standard for judgment on the pleadings is essentially

the same as the standard for evaluating a Rule 12(b)(6) motion.

See Massachusetts Candy & Tobacco Distribs., Inc. v. Golden

Distribs., Ltd.,

(D. Mass. 1994). Both

motions require that all material allegations in the complaint be

construed in the light most favorable to the plaintiff . Gaskell

v . Harvard Coop. Soc'v ,

(1st Cir. 1993). The

court may properly grant a motion for judgment on the pleadings

"'only if it clearly appears, according to the facts alleged,

that the plaintiff cannot recover on any viable theory.'" Garita

Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B.,

(1st Cir. 1992) (quoting Correa-Martinez v. Arrillaaa-

Belendez,

(1st Cir. 1990)).

2. Affect of Mandatory Arbitration Clauses on Statutory Claim

Although, as Batesville points out, only one reported case

has addressed the question of whether the avenue of redress for

an employee's FMLA claim can be limited to the grievance proce­

dures provided by a collective bargaining agreement, there is

considerable caselaw examining clauses mandating arbitration of

3 statutory claims in the employment context.3 Beginning with

Alexander v. Gardner-Denver in 1974, the United States Supreme

Court decided a line of cases holding that mandatory arbitration

clauses in collective bargaining agreements did not preclude

union members from seeking redress of statutory claims in federal

court. See Alexander v. Gardner-Denver Co.,

(1974);

Barrentine v. Arkansas-Best Freight System, Inc,

(1981); McDonald v. West Branch,

(1984). More

recently, however, the Supreme Court held that an employee's

statutory age discrimination claim could be subjected to manda­

tory arbitration. See Gilmer v. Interstate/Johnson Lane Corp.,

(1991). Thus, assaying the current state of

the law necessitates reconciling these cases.

In Gardner-Denver, a black plaintiff alleged that his

employer discriminated against him on the basis of race in

violation of Title VII. See

. Before filing suit in federal court, Alexander pursued his

claim through the multi-step grievance procedure provided by a

3The court finds defendant's dogged reliance on Smith v. CPC Foodservice,

(N.D. 111. 1997) curious. While it is true that Smith is "almost factually identical to the case at hand," this court is clearly not bound by the decision of another district. Although the case certainly may be persuasive authority, it is incumbent upon the party seeking to use it as such to convince the court that the case represents a correct interpretation of the law. Defendant's complete avoidance of controlling authority is puzzling.

4 collective bargaining agreement that prohibited discrimination on

the basis of race. After a hearing, an arbitrator ruled that

Alexander had been discharged for just cause. See id. at 42.

According to the collective bargaining agreement, this decision

"was to be 'final and binding upon the Company, the Union, and

any employee or employees involved.'" Id. The Supreme Court,

however, held that this clause could not preclude the plaintiff

from suing his employer under Title VII. See id. at 59-60. In

support of its ruling, the Court emphasized the importance of

judicial enforcement of Title VII, and questioned the capacity of

arbitrators to enforce individual statutory rights. See id. at

45, 53. The Court also emphasized that the separate nature of

the plaintiff's contractual and statutory rights allowed them to

be enforced in different fora. See id. at 50 ("The distinctly

separate nature of these contractual and statutory rights is not

vitiated merely because both were violated . . . ."). "[T]he

union's exclusive control over the manner and extent to which an

individual grievance is presented" also concerned the Court. Id.

Although Gardner-Denver could be read broadly to stand for

the proposition that employees cannot waive their rights to

litigate statutory claims, the Court's decision in Gilmer limited

Gardner-Denver's holding. Gilmer was required as a condition of

5 his employment to register as a securities representative with

several stock exchanges. See

. One

of the terms of registration provided that he agreed to arbitrate

any dispute between himself and his employer arising out of his

employment or the termination of his employment. See

The

Court held that Gilmer's agreement to arbitrate was enforceable,

and would preclude him from pursuing his statutory age discrimi­

nation claim. See

. In general, the Court felt that

"having made the bargain to arbitrate, the party should be held

to it unless Congress itself has evinced an intention to preclude

a waiver of judicial remedies . . . ."

. The Gilmer

Court explicitly retreated from Gardner-Denver's mistrust of

arbitration. "'[W]e are past the time when judicial suspicion of

the desirability of arbitration and of the competence of arbitral

tribunals inhibited the development of arbitration as an alterna­

tive means of dispute resolution.'"

at 34 n.5 (quoting

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

(1985)). The Court, however, reaffirmed

Gardner-Denver's central holding, distinguishing that line of

cases as follows:

[the A1exander-Denver line of] cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed

6 to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understand­ ably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective- bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not appli­ cable to the present case. Finally, those cases were not decided under the FAA [Federal Arbitra­ tion Act], which . . . reflects a "liberal federal policy favoring arbitration agreements."

Id. at 35.

Thus the court must examine these three distinguishing

factors to determine to which precedent this case is more

analogous. The first question is whether the collective

bargaining agreement provided for arbitration of statutory

claims. Gardner-Denver clearly stands for the proposition that

an agreement to arbitrate contractual claims does not also

obligate the parties to arbitrate statutory claims. See Gardner-

Denver , supra,

. In Gardner-Denver, the court

emphasized, "In submitting his grievance to arbitration, an

employee seeks to vindicate his contractual right under a

collective-bargaining agreement. By contrast, in filing a

lawsuit under [a statute], an employee asserts independent

statutory rights accorded by Congress."

. In this

case, like in Gardner-Denver, the plaintiff agreed to arbitrate

7 all disputes arising from the collective bargaining agreement.4

Thus Batesville's argument that the agreement covers statutory

claims depends on the assumption that the statutory claims have

been subsumed by the collective bargaining agreement. The court,

however, sees no reason to distinguish this case from Gardner-

Denver , which held that coterminous contractual rights replicated

rather than replaced statutory rights. See

("[A] contractual

right to submit a claim to arbitration is not displaced simply

because Congress also has provided a statutory right . . . .

Both rights have legally independent origins and are equally

available to the aggrieved employee."). Although several courts

considering similar agreements have concluded that such agree­

ments mandate arbitration of statutory claims, this court

respectfully disagrees. See, e.g., Austin v. Owens-Brockwav

Glass Container, Inc.,

, 880 (4th Cir.), cert, denied,

(1996); Smith v. CPC Foodservice,

(N.D. 111. 1997). Holding that a contractual agreement that

duplicates a preexisting statutory obligation can supplant the

statutory right is inconsistent with Gardner-Denver.5

4The difference between the instant agreement and the one involved in Gardner-Denver is that this agreement specifically referred to the relevant statute, whereas Gardner-Denver's prohibited the conducted prohibited by Title VII, but did not refer to the statute.

5The court finds Batesville's statement that "The CBA expressly grants right under the FMLA to the plaintiff" incongru- On the second factor that distinguished Gilmer from Gardner-

Denver , this case is more like Gardner-Denver because the arbi­

tration agreement is contained in a collective bargaining agree­

ment, as opposed to an individual agreement. Thus "the tension

between collective representation and individual statutory

rights" is present in this case.

.

Although an alleged violation of the FMLA may not raise the same

concerns as an allegation of racial discrimination, the Court has

recognized that the tension between individual and collective

rights is present even in cases that do not involve minority

groups. See

. In Barrentine,

the Court allowed an employee to litigate a claim under the Fair

Labor Standards Act, despite the fact that his collective

bargaining agreement provided for mandatory arbitration. The

Court felt that the union's duty to increase benefits for workers

as a whole could conflict with its role as a safeguard of

individual rights. See

. In this case, as in

ous. Memorandum in Support of Defendant's Motion for Judgment on the Pleadings at 3. The rights of the FMLA clearly were granted by Congress. Batesville was not in the position to grant or deny such rights. See

(b) ("The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan."). C f . Barrentine, supra,

(stating that rights under Fair Labor Standards Act cannot be waived or abridged). Since the collective bargaining agreement could not "grant" employees rights under the FMLA, it would be more reasonable to interpret the provision as a limitation on Batesville's duties. Barrentine, the grievance procedure gives the union complete

control over the employee's claim. See CBA Article VII ("The

union shall have final authority to dispose of any grievance in

any step of the grievance procedure in any manner deemed by it to

be most prudent, including refusal to process the grievance

further"). Thus, concern for individual rights counsels in favor

of allowing Barriault to litigate his FMLA claim.

Having found that the first two factors make this case more

similar to Gardner-Denver than Gilmer, the court must now turn

to the Federal Arbitration Act (FAA). The FAA was enacted to

reverse judicial hostility to arbitration agreements, and thereby

put them on the same footing as other contracts. The Act, how­

ever, is not applicable to "contracts of employment of seamen,

railroad employees, or any other class of workers engaged in

foreign or interstate commerce."

. Although courts

have differed over the scope of this exception, the parties in

this case appear to have assumed that the collective bargaining

agreement falls within the exception. See, e.g., Harrison v.

Eddy Potash, Inc.,

(10th Cir. 1997) (holding

FAA generally inapplicable to collective bargaining agreements),

petition for cert, filed, 66 USWL 3137 (Aug. 6 1996); Pryner v.

Tractor Supply Co.,

(7th Cir.) (limiting

exception to workers engaged in physical movement of goods in

commerce), cert, denied,

(1997). Neither of the

10 parties in this case has addressed the FAA at all. Notably, the

defendant has not evoked sections three and four of the FAA,

which give the court power to stay proceedings that are the

subject of an arbitration agreement and to compel arbitration.

See

, 4. Due to the parties' failure to address the

FAA, the court is not prepared to decide this issue. Given the

court's findings above, however, the court finds that precluding

litigation of this case is inappropriate, regardless of whether

the case is governed by the FAA. Although the FAA evinces a

"liberal federal policy favoring arbitration agreements," Mitsu­

, this policy does not go so far as

to require the court to enforce an ambiguous arbitration agree­

ment that transfers control over an individual's statutory rights

to his union.

Conclusion

For the abovementioned reasons, Defendant's Motion for

Judgment on the Pleadings (document 8) is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 12, 1998

cc: James W. Donchess, Esq. Brian C. Goudas, Esq. Robert P. Joy, Esq.

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