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Now...you make sense...I encourage everyone also...and if by chance anyone does conclude that ABF is asking the courts to force ABF Teamsters into the same agreement as YRC with a no vote...will you at least have the common courtesy to point out to me how you came to that conclusion.
Here it is:
http://abflegalaction.com/files/2012/08/JudgeWrights08012012ruling.pdf
Okay folks get your reading glasses out cause here we go………..
http://abflegalaction.com/files/2011/07/EighthCircuitsRuling.pdf
Page 3, paragraph 1. A separate agreement???
Page 3, paragraph 3 last sentence. Does everyone see the bulls eye on ABF’s foot?
It’s ok for ABF to enter into extra contract agreements.
Page 4, paragraph 2. Another bulls eye!
It’s ok for ABF to negotiate extra contract agreements.
Page 4, paragraph 3. Uh oh ABFs on a roll now!
ABF is NOW arguing that even though they proposed a wage and benefit reduction plan that was rejected, now ABF claims that it is a violation of the NMFA to enact wage reduction plans.
Page 15, paragraph 1. Gee wiz looks like the grievance must be heard for ABF to gain standing!
CEO Letter to Employees 11/1 | ABF Legal Action
How come Wes Kemp doesn’t mention what Muler and Docker refer to as the “beg back”?
http://abflegalaction.com/files/2012/08/JudgeWrights08012012ruling.pdf
Even though ABF later claims that negotiating separate agreements is a contravention of the NMFA:
ABF and TNFINC negotiated and entered a separate compromise, entitled the ABF
Freight System, Inc. Wage Reduction-Job Security Plan,2 which included salary reductions for ABF employees. However, ABF employees voted against the plan. Subsequently, on November 1, 2010, ABF submitted a grievance pursuant to the national grievance procedure set forth under Article 8 of the NMFA.
Defendants rightly note that they did not agree to the form of dispute resolution proposed
by ABF. In essence, ABF is asking the Court to compel Defendants to submit to a dispute
resolution process that has little resemblance to the national grievance process set forth under the NMFA. At step one, the NMFA procedure calls for a joint committee composed of an equal number of employer and union representatives. The bargained-for dispute resolution method does not, as ABF insists, call for a panel composed of neutral and disinterested third parties. The Eighth Circuit has noted that the type of joint labor-employer committee procedure adopted by the parties “is not true arbitration by a neutral third party, but instead involves decisions by joint labor-management panels.” Stevens v. Highway, City & Air Freight Drivers, Dockmen, and Helpers Local Union No. 600 of the Intern. Broth. of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, 794 F.2d 376, 377-378 (8th Cir. 1986).
Even where an effort to achieve impartiality is made by a requirement that neither the
employer nor the local union involved in the particular dispute is to be represented on the
grievance panel, it cannot be said that panel members are disinterested or neutral, and the joint committee method is still subject to abuses, including “the potential sacrifice of individual grievants’ interests to the broader institutional concerns of labor and management.” Barrentine v. Arkansas-Best Freight System, 615 F.2d 1194, 1201 (8th Cir.1980), rev'd on other grounds, 450 U.S. 728, 101 S.Ct. 1437 (1981). Nonetheless, “the law seems to be established that the joint committee method ... is valid.” Id.
In addition to asking for a disinterested panel to hear its grievance, ABF seeks to bypass
steps two and three of the bargained-for grievance process by proposing that if the court appointedpanel deadlocks and fails to resolve ABF’s grievance, the Court should resolve its
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breach of contract claims. The Court finds that the parties did not agree to the dispute resolution process proposed by ABF and that the remedy sought would not give effect to the parties’ agreement.
ABF notes that courts frequently appoint arbitrators under the Federal Arbitration Act
(“FAA”), pursuant to 9 U.S.C. § 5, which reads:
If in the agreement provision be made for a method of naming or appointing an
arbitrator or arbitrators or an umpire, such method shall be followed; but if no
method be provided therein, or if a method be provided and any party thereto shall
fail to avail himself of such method, or if for any other reason there shall be a lapse
in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then
upon the application of either party to the controversy the court shall designate and
appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act
under the said agreement with the same force and effect as if he or they had been
specifically named therein; and unless otherwise provided in the agreement the
arbitration shall be by a single arbitrator. 9 U.S.C. § 5(emphasis added). The Court disagrees that the forgoing provision applies here.The NMFA, which calls for an open-ended grievance process and does not mandate binding arbitration, provides that the NGC shall be composed of an equal number of employer and union representatives, and it specifically gives the NGC the duty to adopt procedural rules. The NGC procedural rules, in turn, require that NGC members be selected by the President of TMI, with respect to employer representative, and the Chairman of TNFINC, with respect to union
representatives. Although the NGC Rules of Procedure prohibit an employer or union
representative from participating on a panel hearing a case in which he or she was directly involved or which involves his or her union or company, the Rules also provide: “These Rules of Procedure may be amended or modified by majority vote of the National Grievance Committee.” Amend. Compl., Ex. G (NGC R. P. Art. VII). Accordingly, this is not a case in
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which the parties’ agreement fails to provide a method for naming or appointing an arbitrator.9
ABF asserts that the NGC is disqualified from addressing the procedural standstill in this
case, but neither the NMFA nor the NGC Rules of Procedure require that only disinterested, uninvolved, or neutral representatives serve on the NGC for the purpose of adopting procedural rules.
ABF protests that the parties did not intend that the NGC would resolve the procedural
dispute at issue. To support this argument, ABF submits a copy of the 1998-2003 and 2003-2008 NGC Rules of Procedure, which also required that neither employer nor union
representatives involved in a particular dispute serve on a committee hearing that dispute. Seedocket entry #118, Ex. A, docket entry #119, Ex. B. ABF proposes that inclusion of the noninvolvement provision in past versions of the NGC Rules demonstrates that it has “long been afundamental part of the parties’ agreed-upon grievance system.” See docket entry #117, at 2-3.
Defendants note, however, that the NGC Rules in force under the 1998-2003 and 2003-2008 NMFA’s also provided that the Rules could be amended or modified by majority vote of the NGC.
9ABF suggests that the Court must have “clear and unmistakable” evidence that the
parties intended that the NGC resolve issues regarding the selection of panel members. When deciding whether the parties have agreed to submit the question of arbitrability to the arbitrator,courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so. See First Options of Chicago, Inc. v. Kaplan, 514 U.S.938, 944, 115 S. Ct. 1920, 1924 (1995)(citations omitted). “In this manner the law treats silence or ambiguity about the question “who (primarily) should decide arbitrability; differently from the way it treats silence or ambiguity about the question ‘whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement–for in respect
to this latter question the law reverses the presumption.” First Options, 514 U.S. at 944-945,115 S. Ct at 1924(citation omitted). Here, the NMFA is not silent or ambiguous about who will adopt rules of procedure governing the grievance process, and the question whether NGC has such authority has no bearing on the principle that the court decides arbitrability..
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