BROWN & PIPKINS, LLC, d/b/a Acsential Services, Plaintiff - Appellant,
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ, Defendant-Appellee. BROWN & PIPKINS, LLC, d/b/a Acsential Services, Plaintiff - Appellee,
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ, Defendant-Appellant.
Argued: October 26, 2016
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:15-cv-00526-CMH-TCB)
by published opinion. Judge Diaz wrote the opinion, in which
Judge King and Judge Keenan joined.
Stephen Gregory Joy, SMITH, CURRIE & HANCOCK LLP,
Washington, D.C., for Appellant/Cross-Appellee.
Lee Strom, SEIU, LOCAL 32BJ, New York, New York, for
Stephen J. Kelleher, SMITH, CURRIE & HANCOCK LLP,
Washington, D.C., for Appellant/Cross-Appellee.
KING, KEENAN, and DIAZ, Circuit Judges.
& Pipkins, LLC, doing business as Acsential Services
("B&P") appeals the district court's
confirmation of four labor arbitration awards, and Service
Employees International Union, Local 32BJ cross-appeals for
attorneys' fees after the district court failed to
address its entitlement to fees. We affirm the confirmation
of the arbitration awards, based in large part upon the
limited scope of our review of a labor-arbitration decision
pursuant to a collective bargaining agreement (a
"CBA"), and hold that the Union waived its claim
for attorneys' fees by not complying with Federal Rule of
Civil Procedure 54.
September 2012, B&P began providing janitorial services
for the Department of the Army at Fort Belvoir in Fairfax
County, Virginia. Janitorial employees worked without a CBA
until May 17, 2013, when B&P and the Union signed a CBA
which recognized the Union as the exclusive bargaining
representative for B&P's janitorial employees at Fort
Belvoir. The CBA was retroactive to September 4, 2012.
spring and summer of 2013, the Union filed notices that it
intended to arbitrate four separate grievances with B&P
related to alleged violations of the CBA. The parties chose
Arbitrator Garvin Lee Oliver to hear each grievance, and no
transcripts were taken at the hearings. We describe relevant
parts of the grievances and corresponding arbitration awards
29, 2013, the Union filed a grievance alleging that B&P
violated the CBA by reducing the full-time work schedule from
40 to 35 hours per week on January 16, 2013. The Shop Steward
spoke with B&P management about the reduction in hours on
the same day that B&P announced the change, but B&P
would not recognize the Union or discuss grievance issues.
B&P claimed that it cut employees' hours as a result
of a decision by the Army to decrease funding for the B&P
contract from approximately $177, 903 per month to
approximately $154, 500 per month.
arbitrator granted the grievance in part and issued what we
refer to as the Hours Reduction Award. In granting the
grievance, the arbitrator weighed conflicting provisions in
the CBA. Article 3 of the CBA, titled "Management
Rights, " comprises three Sections which, in sweeping
language, vest certain "rights, prerogatives, and
functions" in B&P. J.A. 261. Relevant here, Article
3, Section 2 reserves to B&P the right to "adjust
schedules of work and work assignments based on its judgment
of business requirements, " and Article 3, Section 3
provides that "[s]uch managerial right[s] shall not be
the subject of any provision of the Agreement or of mandatory
bargaining between" B&P and the Union. J.A. 261. But
Article 6 of the CBA, titled "Hours of Work, " also
addresses the scheduling of work. Article 6, Section 1
provides: "An employee who is regularly schedule[d] for
thirty five (35) hours or more per week shall be consider[ed]
full time. The workweek for all full time employees shall be
40 hours per week, 8 hours per day, Monday through
Friday." J.A. 263.
arbitrator reconciled these provisions by reasoning that
"Article , Sections 2 and 3 gave [B&P] the
general right to schedule work . . . but Article 6, Section 1
impliedly restricted [B&P's] right to schedule work
relating to the duration of work for full time
employees." J.A. 48. Accordingly, the arbitrator held
that B&P "violated Article 6, Section 1 of the [CBA]
on January 16, 2013 when it reduced the work day by one hour
for all janitorial full time employees." J.A. 48.
arbitrator also rejected B&P's argument that the
grievance was procedurally defective because the Union failed
to comply with the CBA's Grievance and Arbitration
Procedure. Article 11, Section 2 of the CBA splits the
Grievance and Arbitration Procedure into three Steps,
relevant parts of which we reproduce here:
Step 1[:] The Shop Steward must discuss the
grievance with the project manager within three (3) days of
the incident. [B&P] shall render a decision in writing
within twenty-four (24) hours after the conclusion of Step 1.
. . . .
Step 3: Arbitration: . . . .
. . . .
The Arbitrator shall have jurisdiction and authority to
apply, interpret and determine compliance with the terms of
this Agreement, but in no case add to, deviate from, detract
from or alter in any way the provision of the Agreement.
arbitrator began by noting that the Union had failed to abide
by Step 1's three-day limit to discuss grievances, as the
parties, with B&P's reserving its right to bring a
timeliness challenge, "agreed to consider the [May 29,
2013] grievance initiation letter as [S]tep 1 of the
grievance procedure." J.A. 47. Nevertheless, the
arbitrator reasoned that it would have been
"unreasonable to require strict compliance with the time
limits" in this case. J.A. 48. In particular, the
arbitrator identified two "mitigating
circumstances": (1) the National Labor Relations Board
was "processing" a dispute between the Union and
B&P regarding the "processing of grievances prior to
the" adoption of the CBA in 2012, and (2) the violation
was of a "continuing nature." J.A. 47-48.
Hours Reduction Award orders B&P to, inter alia, restore
the 40-hour workweek for full-time janitorial employees and
pay employees for any lost hours incurred while the 35-hour
workweek was in effect.
12, 2013, the Union filed a grievance alleging that B&P
violated the CBA by paying two employees, Alicia Duran and
Susana Cortez, at the "Custodians" rate instead of
at the higher "Custodian/Driver" rate commensurate
with their responsibilities. The arbitrator granted the
grievance and issued what we refer to as the Drivers' Pay
16 of the CBA lists three wage classifications, including
"Custodians" and "Custodian/Driver, " but
does not define them other than by providing corresponding
rates of pay. "Custodian/Drivers" are paid $0.60
more per hour than "Custodians."
arbitrator traced the origins of the
"Custodian/Driver" classification to a letter of
understanding that the Union and one of B&P's
predecessors at Fort Belvoir negotiated in 2008. That letter
of understanding provided that the predecessor would pay
"$0.60 per paid hour more to the custodial service
workers who drive our vehicles in order to transport workers
to various sites." J.A. 135. The arbitrator found that
the letter of understanding was the "genesis" for,
and thus informed the definition of, the
"Custodian/Driver" classification. The arbitrator
noted that the rate appeared in previous CBAs between the
Union and B&P's predecessors, and that those
predecessors had paid employees at that rate when they had
transported workers to their worksites, brought equipment to
their worksites, and driven to multiple locations within Fort
arbitrator then examined the type of work that B&P
assigned to Duran and Cortez. He found that B&P assigned
them to schedules that "included multiple buildings,
some of which were far apart, " and "required
[them] to alternate driving themselves and another custodian
. . . in their own personal vehicles to the buildings they
were required to clean." J.A. 53. Additionally, he found
that B&P required them to "carry equipment from the
office to these buildings, " and that B&P generally
refused to provide ...