United States District Court, W.D. Louisiana, Lake Charles Division
PPG INDUSTRIES, INC.
LOCAL 470 INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court are Motions for Summary Judgment [docs. 19, 25]
filed, respectively, by defendant Local 470 Association of
Machinists & Aerospace Workers and plaintiff PPG
Industries, Inc. Both motions are opposed and have been
referred to the undersigned for review, report, and
recommendation in accordance with 28 U.S.C. § 636.
Industries, Inc. (“PPG”) filed this suit on
September 15, 2016, requesting that the court vacate a labor
arbitration award made on June 20, 2016. Doc. 1. PPG was then
the owner and operator of a chemical manufacturing plant in
Lake Charles, Louisiana. Id. at 2. PPG and Local 470
Association of Machinists & Aerospace Workers (“the
Union”), the collective bargaining unit representing
employees at that facility, were parties to a collective
bargaining agreement (“CBA”) which established
the terms and conditions of PPG employees' work at the
Lake Charles complex. Id. at 2-3; see doc.
19, att. 5, pp. 203-44.
labor dispute arose from PPG's decision to use contract
operators, rather than bargain unit members, to operate newly
installed waste presses in 2015. For over twenty years prior
to this decision, PPG had leased portable waste presses from
a contractor, and used the contractor's employees to
operate those presses, in order to handle waste disposal at
the Lake Charles complex. Doc. 19, att. 5, pp. 15-16, 69. In
early 2015, PPG informed the Union that it had decided to
stop leasing the presses and instead purchase and install its
own machines at the Lake Charles complex. Id. at
44-46, 88-90. The new waste presses went into operation on
April 21, 2015, with contract employees operating the
machines. Id. at 88-90. The Union asserts that it
first became aware that the new presses were in operation on
April 22, 2015. See Id. at 29-32.
Union filed a grievance on May 4, 2015, complaining of
PPG's use of contract operators on the new waste
presses. Id. at 245. PPG answered the
Union's grievance the same day, asserting that its
decision to subcontract work on the new waste presses fell
within its authority under Article V, Section 2 (“the
Management Clause”) of the CBA. Id. The Union
appealed and PPG answered the Union's appeal with another
assertion of its rights under the Management Clause.
Id. at 246. On March 16, 2016, while the parties
were preparing for arbitration, PPG also informed the Union
that it considered the grievance untimely under Article XX,
Section 2 of the CBA because it had not been presented within
ten days of the “Date of Incident.” Id.
Samuel J. Nicholas, Jr., heard the case on April 13, 2016,
and issued his opinion two months later. Id. at
1-117; doc. 19, att. 4. He concluded that the grievance was
timely under the CBA because it dealt with “an ongoing
issue that still exists.” Doc. 19, att. 4, p. 10. He
also found that PPG's actions did not violate the
Management Clause as the Union had asserted. Id. at
10-11. Nevertheless, Nicholas continued, PPG should have
created new bargaining unit positions to man the newly
purchased waste presses rather than continuing to subcontract
the work as it had done when it leased the presses, and its
failure to do so violated Article VI, Section 3 of the CBA.
Id. at 11-13. Nicholas therefore sustained the
grievance, ordering PPG to discontinue the use of contract
workers on the waste presses and to replace those workers
with bargaining unit employees. Id. at 13-14.
seeks to vacate the arbitral award under Section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185; and the
Federal Arbitration Act, 9 U.S.C. § 1 et seq.
Doc. 1. The record in this matter has been submitted, and PPG
and the Union have filed cross-motions for summary judgment.
In its motion for summary judgment, the Union also requests
attorney's fees. Doc. 19, att. 1, pp. 9-10. Accordingly,
the court now considers whether to vacate or affirm the
arbitral award and then, if affirmation is recommended, the
Union's request for attorney's fees.
should grant a motion for summary judgment when 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. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 106 S.Ct.
2505, 2511 (1986) (quotations omitted). This requires more
than mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of
his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008). On cross-motions for summary judgment,
the court reviews each ...