United States District Court, District of Columbia
N. MCFADDEN United States District Judge
Service Employees International Union Local 32BJ (the
“Union”) petitions this Court for an order
compelling Preeminent Protective Services, Inc.
(“Preeminent”) to arbitrate employment disputes
for two members of the Union. Pet. to Compel Arbitration
(“Pet.”) ¶¶ 25-29, ECF No. 1.
Preeminent seeks to dismiss the petition, arguing that the
Court lacks subject matter jurisdiction and that the Union
failed to state a claim because the two Union members were
not Preeminent employees. Def.'s Mem. of P. & A. in
Supp. of Mot. to Dismiss (“Mot. to Dismiss”) 5-7,
ECF No. 5. The Union filed a cross-motion for summary
judgment disputing Preeminent's contention that it did
not employ the officers. Mem. of Law in Opp. to
Resp't's Mot. to Dismiss and in Supp. of Cross-Mot.
to Compel Arbitration (“Opp. to Mot. to Dismiss”)
11-15, ECF No. 7. Upon consideration of the pleadings,
relevant law, and related legal memoranda in opposition and
in support, I find that the Federal Arbitration Act and the
Labor Management Relations Act confers this Court with
subject matter jurisdiction and that the matter is
appropriate for arbitration. Accordingly, Preeminent's
motion to dismiss will be denied and the Union's motion
for summary judgment and to compel arbitration will be
Union represents over 16, 000 property-service workers in the
Washington, D.C. area, including Security Officers Crystal
Middleton and Renay Campbell. Pet. ¶¶ 1, 7. Both
officers worked at the Congress Heights Service Center, a
D.C. public site covered by a Collective Bargaining Agreement
(“CBA”) between the Union and Preeminent.
Id. ¶¶ 5-7. Before February 2017, Business
Resource and Security Services USA, Inc. (“BRSS”)
was the subcontractor that provided security officers to the
Congress Heights Service Center and employed Officers
Middleton and Campbell. Id. ¶ 7. In February
2017, Preeminent took over the subcontract from BRSS,
including providing security officers to the Congress Heights
Service Center. Id. ¶ 9.
Union claims that under the CBA, Preeminent was required to
hire the BRSS officers, including Officers Middleton and
Campbell. Id. ¶ 10; see also Id. Ex. 1
Art. 9 (“When taking over or acquiring an account or
location covered by a collective bargaining agreement with
the Union in Washington, DC or Maryland or Virginia, the
Employer will offer employment to and hire incumbent
employees who have been employed at the account or location
for at least six (6) months and who accept the offer of
employment”). The Union claims that Preeminent
recognized its obligation and began treating Officers
Middleton and Campbell as employees, including having them
complete and sign employment documents, referring to the
officers as “transfers” from BRSS, and paying
their wages from February 1, 2017 forward. Id.
¶ 12. Preeminent does not dispute that it disbursed
payroll starting on February 1, 2017, but claims that the
money for that particular disbursement was provided by the
prime contractor, and that it did not take over the
subcontract until February 10, 2017. Mot. to Dismiss
claims that it never employed Officers Middleton or Campbell
because its client, the District of Columbia, requested on
February 8, 2017-two days prior to Preeminent taking over the
subcontract-that the officers be removed from the Congress
Heights Service Center. Id. ¶ 6. In
Preeminent's view, because the officers were dismissed by
BRSS on February 8, 2017, Preeminent was contractually barred
from hiring the officers. Id. ¶ 7; see
also Contract No. DCAM-12-NC-0031 City-Wide Security
Services § C.19.2, ECF No. 5-2 (“In situations
deemed appropriate by the [Contracting Officer's
Technical Representative], the COTR, in his or her sole
discretion, may summarily direct the Contractor to remove its
employee from a facility and the Contractor shall remove such
employee immediately and supply a replacement with no lapse
in coverage.”); id. § C.19.4 (“The
Contractor shall be required to dismiss such employees within
a timeframe ranging from ‘immediately' to
‘within a week, ' as specified by the COTR. Any
employee so dismissed shall at no time be eligible to work
under this contract.”). The Union disagrees, citing a
provision of the CBA that provides that, unless the employee
is discharged for cause, “the Employer will place the
employee in a job at another account or location covered by
this Agreement.” Pet. ¶ 14; id. Ex. 1
Art. 7.3. Because the Union believed that Officers Middleton
and Campbell were obligated to be hired by Preeminent, were
Preeminent employees, and were not placed at another site, it
filed grievances with Preeminent on behalf of both officers.
Id. ¶¶ 10, 12, 15; see also Id.
Ex. 1 Art. 23 (setting forth grievance and arbitration
procedures for “[a]ll disputes or differences involving
the interpretation or application of this Agreement that
arise between the Union and the Employer”).
Grievance Initiation Letters, both filed on February 13,
2017, allege that the officers were “unjustly
discharged effective 2/10/2017.” Mot. to Dismiss Exs.
5-6, ECF Nos. 5-6, 5-7. Between February and April 2017, the
Union and Preeminent exchanged several communications about
the dispute, but the Union alleges that Preeminent never
challenged whether the dispute was arbitrable. See
Pet. ¶¶ 19-23. On August 4, 2017, the parties
appeared before an arbitrator, and Preeminent contended that
the arbitrator lacked jurisdiction over the proceeding
because the officers were not Preeminent employees. The
arbitrator discontinued the proceeding because of his view
that “there is a question of whether there exists
jurisdiction over Preeminent as the Employer in this dispute
under the Parties' Collective Bargaining Agreement which
should be resolved in court.” Mot. to Dismiss Ex. 10,
ECF No. 5-11. The Union then filed its petition in this
Subject Matter Jurisdiction
matter jurisdiction concerns a court's power to hear a
claim. Macharia v. United States, 334 F.3d 61, 64
(D.C. Cir. 2003). The plaintiff bears the burden of proof to
establish that the court has subject matter jurisdiction.
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A
court may look beyond the complaint to consider
“undisputed facts evidenced on the record” to
satisfy itself that it has subject matter jurisdiction.
Coalition for Underground Expansion v. Mineta, 333
F.3d 193, 198 (D.C. Cir. 2003).
Failure to State a Claim A party may move to dismiss
a complaint because it “fail[s] to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A
complaint must contain sufficient factual allegations that,
if true, “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A complaint is insufficient if it
merely offers “‘labels and
conclusions'” or “‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
546). Rather, “[a] claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. In evaluating a motion to dismiss pursuant to Rule
12(b)(6), the Court must construe the complaint in the light
most favorable to the plaintiff and accept as true all
reasonable factual inferences drawn from well-pled factual
allegations. See In re United Mine Workers of Am. Emp.
Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.
1994). The Court does not accept as true legal conclusions or
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678.
motion to compel arbitration is analyzed using the summary
judgment framework of Federal Rule of Civil Procedure 56.
Aliron Int'l, Inc. v. Cherokee Nation Indus.,
Inc., 531 F.3d 863, 865 (D.C. Cir. 2008). To prevail on
summary judgment, the movant must show that there is
“an enforceable agreement to arbitrate, ” after
which the non-movant must “raise a genuine issue of
material fact as to the making of the agreement.”
Hill v. Wackenhut Servs. Int'l, 865 F.Supp.2d
84, 89 (D.D.C. 2012) (internal quotation marks omitted).
Summary judgment should be granted if there is “no
genuine issue of fact concerning the formation of the
agreement to arbitrate.” Id. (internal
quotation marks omitted). In determining whether a fact is
material or an issue is genuine, the Court uses the familiar
Rule 56 framework. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (explaining a material
fact as one capable of affecting the substantive outcome of
the litigation and a genuine issue as one where a reasonable
jury could find for the non-moving party). The Court views
the evidence in the light most favorable to the non-moving
party. Johnson v. Perez, 823 F.3d 701, 705 (D.C.