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Service Employees International Union Local 32BJ v. Preeminent Protective Services, Inc.

United States District Court, District of Columbia

May 9, 2018



          TREVOR N. MCFADDEN United States District Judge

         The 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 granted.

         I. Background

         The 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.

         The 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 ¶¶ 4-5.

         Preeminent 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”).

         The 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 Court.

         II. Legal Standards

         A. Subject Matter Jurisdiction

         Subject 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).

         B. 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.

         C. Summary Judgment

         A 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. Cir. 2016).

         III. ...

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