Rite Aid must comply with Card Check Agreement

A court has enforced an award of Arbitrator Richard Kasher, requiring Rite Aid to comply with the terms of a neutrality and card check agreement between Rite Aid and UFCW Local 1360. Rite Aid of New Jersey Inc. v. United Food and Commercial Workers Union, Local 1360.

Rite Aid and Local 1360 had entered into an oral card check/neutrality agreement in November of 1999. The parties subsequently entered into a series of collective bargaining agreements, all of which contained recognition language including an after acquired stores clause. The clause extended the bargaining unit to stores added via an NLRB election or “…other demonstrations of the Union status acceptable to the employer…” Rite Aid recognized the Union for approximately sixty three stores through the card check procedure, but later began insisting on an NLRB election. The union filed a grievance, claiming that the employer had improperly refused to accept the card check procedure, in contravention of the agreement and past practice. The arbitrator sustained the grievance, and Rite Aid went to court seeking to have the award vacated. Rite Aid argued, inter alia, that the arbitrator “failed to draw from the essence of the 2005 CBA and exceeded his power by amending or altering the 2005 CBA”.

The court rejected Rite Aid’s efforts and enforced the award. Noting the limited review of an arbitrator’s award, the court held that arbitrator’s award was grounded in the contract, and that the arbitrator could conclude that the language of the recognition clause was ambiguous and that the employer had agreed to accept the card check procedure. While it noted that it found Rite Aid’s interpretation of the CBA to be more persuasive, it had no basis to set aside the award.

Update: The Third Circuit's decision affirming the District Court is discussed here.

Coverage of Neutrality agreement subject to arbitration

            Judge Lewis Babcock of the US District Court for the District of Colorado granted summary judgment to Communications Workers of America in their dispute with Avaya concerning the applicability of the parties’ Neutrality and Consent Election (NCE) agreement to a particular group of employees.

             CWA had given formal notice to Avaya, pursuant to the NCE, that it intended to start a formal organizing drive among a group of “backbone engineers.” Avaya disputed the applicability of the agreement to those employees, contending that they were not “non-management employees” and therefore were outside the scope of the agreement. After unsuccessfully pursuing a grievance, CWA sought to arbitrate the applicability of the agreement to these backbone engineers. Avaya refused to arbitrate and CWA filed suit seeking an order compelling arbitration.

            Finding the dispute within the scope of the arbitration provisions of the collective bargaining agreement, the court ordered arbitration. The court noted the company’s contention that it was undisputed that the engineers were not non- management employees, but concluded that “such determination is an assessment of the underlying merits before an arbitrator and, as such, is not before me.” The court also rejected the contention that the matter was within the exclusive jurisdiction of the NLRB

            A copy of Judge Babcock’s decision can be found here.

Update: The 10th Circuit has reversed the decision of Judge Babcock. The Court's decision is discussed here.