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March 26, 1998


The opinion of the court was delivered by: GREEN

 We come to the close of another chapter in the ongoing saga of this labor dispute. This case was reopened after the parties returned from arbitration with an arbitral award resolving only a procedural "Point of Order." That award appears to have been based on an erroneous belief by the arbitrator that this Court would be available to hear the merits of this dispute in the event that he did not.

 Plaintiff United Parcel Service, Inc. ("UPS") has filed an amended complaint, which defendant International Brotherhood of Teamsters, AFL-CIO ("IBT") has not answered. IBT has nonetheless filed a motion for judgment on the pleadings, which shall be granted in part and denied in part. Also pending is IBT's motion for confirmation of the arbitration award, which shall be denied without prejudice. The amended complaint will be dismissed with prejudice, and the parties shall return to the arbitrator to allow him to reconsider his earlier opinion and award in light of this Opinion and Order.


 For present purposes, it is useful to revisit the history of this case, as has been set forth more fully in the Court's previous opinion. See United Parcel Serv. v. International Bhd. of Teamsters, 859 F. Supp. 590, 592-93 (D.D.C. 1994). More than four years ago, UPS announced that it would be increasing the weight limit for packages that it would pick up and deliver from 70 pounds to 150 pounds starting on Monday, February 7, 1994. This change in policy was not greeted warmly by UPS's unionized employees, who would be doing the heavy lifting. Fearing a work stoppage, UPS filed a motion for a Temporary Restraining Order ("TRO") on Friday, February 4, 1994 to prevent union members from striking. The TRO was issued that day. Disregarding the TRO, a number of IBT members commenced a strike on February 7, 1994. UPS immediately moved for contempt sanctions.

 At the 11th hour, after this Court had begun an evening hearing on the motion, the parties settled the contempt issue. In pertinent part, the settlement agreement provides:

 IBT's Mem. in Supp. of J. on the Pleadings (hereafter "IBT J.P. Mem.") Ex. A P 5. The settlement agreement was signed by representatives of IBT, the Teamsters National United Parcel Service Negotiating Committee ("NNC"), and UPS. UPS filed this lawsuit two days later.

 In its complaint, UPS sought damages, alleging that IBT had called for a nationwide work stoppage in violation of the no-strike provision of the parties' collective bargaining agreement and in violation of the TRO. See Compl. PP17-18. In response, IBT filed an answer and a two-count counterclaim to recover lost wages stemming from the work stoppage and to reform the collective bargaining agreement, contending that the 70-pound weight limit was a custom and practice under the agreement. See Answer and Countercl. at 9-10.

 In its answer and counterclaim, IBT espoused an agnostic view as to whether it was a party to the National Master United Parcel Service Agreement ("Master Agreement"), the collective bargaining agreement with UPS. On the one hand, IBT asserted an oblique response to UPS's allegation that IBT was a party to the Master Agreement; IBT admitted only that its committee, the NNC, which had negotiated the agreement with UPS, was a party. Answer and Countercl. P 6. On the other hand, IBT, which clearly is a party to this lawsuit, asserted on its own behalf a Fourth Affirmative Defense that "UPS's claims are subject to exclusive, final and binding determination through the applicable arbitration forum pursuant to the Agreement between UPS and the NNC." Answer and Countercl. at 4. IBT also, in its own name, counterclaimed against UPS for the breach of the Master Agreement. Answer and Countercl. PP 18-21.

 IBT filed a motion to dismiss in favor of arbitration, reiterating its Fourth Affirmative Defense. *fn1" At oral argument on the motion, counsel for UPS expressed concern about IBT's so-called non-party defense. See Transcript of Motions Hearing held May 27, 1994 at 15. But at argument, IBT appeared to acknowledge that it was a party to the Master Agreement, see id. at 11, and that its party status was the basis for its argument that arbitration was required. Id. at 4-13.

 After hearing argument, this Court determined that the dispute was arbitrable under the collective bargaining agreement and dismissed the case so that the parties could arbitrate their dispute. See United Parcel Serv., 859 F. Supp. at 596. UPS filed a motion for reconsideration or clarification that was granted in part. The Court ordered that

The June 30, 1994 dismissal of plaintiff's claim is without prejudice until thirty (30) days after completion of the arbitration process. In the event that this matter is not resolved on the merits in arbitration, the parties may reopen the action upon motion approved by the Court. Should counsel fail to move to reopen the case within the prescribed period, the matter shall, without further order, stand dismissed with prejudice.

 United Parcel Serv., Civ. No. 94-0258 (Order of April 24, 1995). Before engaging in arbitration, UPS filed a motion to reopen the case, which was denied without prejudice. United Parcel Serv., Civ. No. 94-0258 (Order of February 7, 1996).

 Ultimately, the parties did arbitrate their dispute before Arbitrator Scott E. Buchheit, who issued an "interim" award against UPS on October 16, 1996 on the basis that UPS's grievance was untimely filed. See Arbitration Award of Scott E. Buchheit (hereafter "Buchheit Op." or "Buchheit Award") at 1, attached as UPS's Mot. to Reopen Ex. D. He reached this conclusion for a "totality of reasons," one of which was that he believed that this Court would be available to hear the merits of the dispute if he did not.

 On UPS's motion to reopen this action, the parties have returned to this Court. This action was reopened for the limited purpose of clarifying certain aspects of this dispute so that the Arbitrator could reconsider the interim October 1996 Opinion and Award and issue a final arbitration award in this matter.


 Section 301 of the Labor Management Relations Act, as amended, 29 U.S.C. ยง 185, and as interpreted by the Supreme Court and our Court of Appeals, sets forth an elegant and simple set of principles guiding the relationship between private arbitrators and federal courts in resolving disputes that arise out of collective bargaining agreements. See, e.g., Cole v. Burns Int'l Sec. Serv., 323 U.S. App. D.C. 133, 105 F.3d 1465, 1473-76 (D.C. Cir. 1997).

 A. Arbitrability

 As was the case in this matter, where there is a collective bargaining agreement that contains an arbitration clause, and a lawsuit is filed for breach of the agreement prior to arbitration, a pair of clear-statement rules guide the courts in resolving the issues. Under one rule, unless the collective bargaining agreement clearly and unmistakably states that the question of arbitrability is for the arbitrator, the court will decide de novo whether the dispute is arbitrable under the agreement. AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 649, 89 L. Ed. ...

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