`Communications Workers of
`America,
`
`
`Plaintiff,
`
`
`v.
`
`AT&T Mobility LLC,
`
`
`
`
`
`
`Case No. 1:20-cv-911-MLB
`
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 1 of 17
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`
`Defendant.
`
`________________________________/
`
`OPINION & ORDER
`
`
`
`Plaintiff Communications Workers of America sued Defendant
`
`AT&T Mobility LLC for refusing to arbitrate a dispute in violation of the
`
`parties’ collective bargaining agreement. Defendant moves to dismiss for
`
`lack of subject matter jurisdiction or, alternatively, for failure to state a
`
`claim. (Dkt. 6.) The Court denies Defendant’s motion.1
`
`
`1 Defendant also moves for leave to file a supplemental authority in
`support of its motion to dismiss. (Dkt. 25.) Plaintiff filed no response,
`“indicat[ing] that there is no opposition to the motion.” LR 7.1(B), NDGa.
`Defendant’s unopposed motion is granted.
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 2 of 17
`
`I.
`
`Background
`
`In February 2018, the parties signed a contract (“Agreement”)
`
`under which Defendant agreed to recognize Plaintiff as “the sole
`
`collective bargaining agent” for a subset of Defendant’s employees
`
`(identified by their job titles) in the Southeastern region of the United
`
`States. (Dkts. 1 ¶ 2; 1-1 at 4.)2 Article 2 of the Agreement specifically
`
`excludes “Outside Premise Sale Representatives” from Plaintiff’s
`
`representation. (Dkt. 1-1 at 4.) It also requires Defendant to notify
`
`Plaintiff of “any newly created [job] titles” and to work with Plaintiff to
`
`establish wage rate for those titles. (Id.) Article 17 requires Defendant
`
`to “notify [Plaintiff] when new employees enter the Bargaining Unit” and
`
`requires the parties to “apply the terms of this Agreement fairly in accord
`
`with its intent and meaning and consistent with [Plaintiff’s] status as
`
`exclusive bargaining representative of all employees in the Bargaining
`
`Unit.” (Id. at 28.)
`
`
`2 Defendant has introduced evidence about similar collective bargaining
`agreements between the parties governing other regions of the United
`States. (See Dkt. 6-2; see also Dkt. 17-1.) This evidence is immaterial to
`our case, which turns entirely on the Southeastern Agreement.
`
`
`
`2
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 3 of 17
`
`Article 7 of the Agreement establishes a “grievance procedure” for
`
`resolving any “complaint by [Plaintiff] . . . [a]lleging violation of the
`
`provisions or application of the provisions of th[e] Agreement.” (Id. at
`
`10.) Under this procedure, Plaintiff must submit the grievance to
`
`Defendant, the parties must discuss it, and Defendant must then decide
`
`what to do about it. (Id. at 10–12.) If the grievance “involve[s] true intent
`
`and meaning” of the Agreement, it counts as an “Executive Level
`
`Grievance” and must be handled “at the District level.” (Id. at 12.)
`
`Article 9 of the Agreement says either party may compel the other to
`
`arbitrate an Executive Level Grievance if the grievance procedure does
`
`not result in a resolution. (Id. at 15.)3
`
`
`
`In July 2019, Plaintiff initiated an Executive Level Grievance
`
`claiming Defendant violated Articles 2 and 17 by “1) diverting bargaining
`
`unit work outside of the bargaining unit and coverage of the Agreement;
`
`2) violating the true intent and meaning of the ‘Outside Premise Sales
`
`Representative’ exclusion of Article 2, Section 1; and 3) failing to comply
`
`
`3 Article 9 says: “If at any time a controversy should arise regarding the
`true intent and meaning of any provisions of this Agreement, . . . which
`the parties are unable to resolve by use of the grievance procedure, the
`matter may be arbitrated upon written request of either party to this
`Agreement.” (Dkt. 1-1 at 15.)
`
`
`
`3
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 4 of 17
`
`with the Article 2, Section 2 process regarding [four specific] newly
`
`created job classifications.” (Dkt. 1-2 at 3.) The parties discussed the
`
`grievance at a telephonic hearing in August 2019. (Dkt. 1-3.) Later that
`
`month, Defendant denied Plaintiff’s grievance, claiming the new job titles
`
`count as “Outside Premise Sale Representatives” that are excluded from
`
`the Bargaining Unit under Article 2 of the Agreement. (Id.)
`
`
`
`In September 2019, Plaintiff sent Defendant a written request to
`
`arbitrate the grievance. (Dkt. 1-4.) After some back and forth, Defendant
`
`told Plaintiff it objected to arbitration because “the grievance appears to
`
`raise a representational issue that is within the jurisdiction of the
`
`NLRB,” meaning “an arbitrator . . . lacks jurisdiction to resolve the
`
`underlying dispute.” (Dkt. 1-9.) Defendant refuses to participate in any
`
`arbitration of the grievance. (Dkt. 1 ¶ 21.)
`
`
`
`Plaintiff filed this lawsuit in February 2020, claiming Defendant
`
`“is in breach of the parties’ [Agreement] by failing and refusing to
`
`arbitrate [the] Grievance.” (Dkt. 1 ¶ 23.) Defendant now moves to
`
`dismiss for lack of subject matter jurisdiction or, alternatively, for failure
`
`to state a claim.
`
`
`
`4
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 5 of 17
`
`II. Motion to Dismiss for Lack of Subject Matter Jurisdiction
`
`Defendant claims the Court lacks subject matter jurisdiction over
`
`this case because it involves “representational” issues reserved to the
`
`National Labor Relations Board (“NLRB”) under the National Labor
`
`Relations Act (“NLRA”). Plaintiff says this case involves “contractual”
`
`issues over which the Court has
`
`jurisdiction under the Labor
`
`Management Relations Act (“LMRA”). The Court agrees with Plaintiff.
`
`A. Legal Standard
`“[A] motion to dismiss for lack of subject matter jurisdiction
`
`pursuant to Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or
`
`factual challenge to the complaint.” McElmurray v. Consol. Gov’t of
`
`Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). “A facial
`
`attack on the complaint requires the court merely to look and see if the
`
`plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and
`
`the allegations in his complaint are taken as true for the purposes of the
`
`motion.” Id. “Factual attacks, on the other hand, challenge the existence
`
`of subject matter jurisdiction in fact, irrespective of the pleadings, and
`
`matters outside the pleadings, such as testimony and affidavits are
`
`considered.” Id. Defendant lodges a factual attack here. (See Dkts. 6-2;
`
`
`
`5
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 6 of 17
`
`20 at 8.) This means the “trial court is free to weigh the evidence and
`
`satisfy itself as to the existence of its power to hear the case.” Makro
`
`Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008).
`
`B. The NLRA and the LMRA
`“The [NLRA] establishes a federal regime for managing labor
`
`relations and generally authorizes the [NLRB] to resolve disputes
`
`between labor organizations and employers.” Dist. No. 1 v. Liberty Mar.
`
`Corp., 815 F.3d 834, 839 (D.C. Cir. 2016) (“Liberty I”). “[T]he NLRB’s
`
`jurisdiction is in general exclusive; that is, if a claim falls within the
`
`purview of the NLRB, state and federal courts are preempted from
`
`hearing it.” Id. A claim falls within the purview of the NLRB if it cannot
`
`be resolved without deciding “representational” issues under the NLRA.
`
`Such “representational” issues include employees’ organizational rights
`
`under Section 7, “unfair labor practices” under Section 8, and “the unit
`
`appropriate for the purposes of collective bargaining” under Section 9.
`
`29 U.S.C. §§ 157–159; see Dist. No. 1 v. Liberty Mar. Corp., 933 F.3d 751,
`
`757 (D.C. Cir. 2019) (“Liberty II”) (“[W]hen an activity is arguably subject
`
`to § 7 or § 8 of the NLRA, the federal courts must defer to the exclusive
`
`competence of the NLRB. Suits implicating § 7 or § 8 of the NLRA are
`
`
`
`6
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 7 of 17
`
`often described as ‘representational.’”); Kern v. Goebel Fixture Co., 765
`
`F.3d 871, 874 (8th Cir. 2014) (Ҥ 9(b) deprives federal courts of
`
`jurisdiction
`
`to decide representational questions
`
`that require
`
`determination of the appropriate collective bargaining unit.”); Local 682
`
`v. Bussen Quarries, Inc., 849 F.2d 1123, 1125 (8th Cir. 1988) (Ҥ 9 of the
`
`National Labor Relations Act rests jurisdiction in the NLRB to determine
`
`questions of representation.”).
`
`“The [LMRA] carves out an exception to the NLRB’s exclusive
`
`jurisdiction.” Liberty I, 815 F.3d at 840. Specifically, Section 301(a)
`
`grants federal courts jurisdiction over “[s]uits for violation of contracts
`
`between an employer and a labor organization.” 29 U.S.C. § 185(a). This
`
`includes, of course, suits for breach of collective bargaining agreements.
`
`“Congress deliberately chose to leave the enforcement of collective
`
`agreements to the usual processes of the law” rather than sending them
`
`to the NLRB for resolution. Charles Dowd Box Co. v. Courtney, 368 U.S.
`
`502, 513. “Thus, if a labor dispute is contractual, [NLRB] preemption
`
`does not apply; instead, the aggrieved party can sue on the contract in
`
`federal court.” Liberty I, 815 F.3d at 840.
`
`
`
`7
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 8 of 17
`
`C. Analysis
`Defendant says the Court lacks jurisdiction here because Plaintiff’s
`
`underlying
`
`grievance
`
`cannot
`
`be
`
`resolved without deciding
`
`representational issues reserved to the NLRB. (See, e.g., Dkts. 6-1 at 13;
`
`20 at 5.) But Plaintiff is not asking the Court to resolve the underlying
`
`grievance; it is asking the Court to let an arbitrator do so. The Court
`
`need not decide any representational issues in order to rule on that
`
`request. It need only determine whether the Agreement’s arbitration
`
`clause covers Plaintiff’s grievance. That is a pure question of contract
`
`over which the Court has jurisdiction under Section 301 of the LMRA.
`
`Indeed, Defendant does not even try to argue otherwise. See Atkinson v.
`
`Sinclair Ref. Co., 370 U.S. 238, 241 (1962) (“The Congress has by § 301
`
`of the Labor Management Relations Act, assigned the courts the duty of
`
`determining whether the reluctant party has breached his promise to
`
`arbitrate.”); Liberty II, 933 F.3d at 760 (“subject matter jurisdiction was
`
`established under Section 301 of the LMRA” because “[t]he suit requires
`
`a judicial determination as to whether an arbitration clause in the
`
`agreements between [the parties] covers the dispute”); Dist. No. 1 v.
`
`Liberty Mar. Corp., 330 F. Supp. 3d 363, 371 n.7 (D.D.C. 2018), rev’d on
`
`
`
`8
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 9 of 17
`
`other grounds, Liberty II, 933 F.3d 751 (“Defendant challenges the
`
`Court’s jurisdiction under Section 301, arguing that [plaintiff’s] suit is
`
`representational, not contractual, in nature. But plaintiff’s suit plainly
`
`requires deciding a contractual matter: whether the arbitration clause
`
`covers the dispute at issue.”); Dist. Council No. 38 v. Williams
`
`Contracting, Inc., 479 F. Supp. 479, 481 (N.D. Ga. 1979) (“For some time
`
`it has been recognized that proceedings in the courts to enforce
`
`arbitration involve determination of contractual rights.”).
`
`Perhaps Defendant means the Court has no authority to compel
`
`arbitration of representational issues even if it need only resolve
`
`contractual questions in order to do so. The theory might be that the
`
`downstream representational effect of the Court’s contractual decision
`
`somehow takes away the jurisdiction otherwise granted by Section 301.
`
`Or that the Court cannot (as a matter of jurisdiction) send the grievance
`
`to an arbitrator because the arbitrator himself lacks authority to decide
`
`the representational issues allegedly bound up in the grievance. But both
`
`of these theories suffer from the same “fatal flaw: [they] conflate[] the
`
`type of claim with the effect of a claim’s enforcement.” Liberty I, 815 F.3d
`
`at 843 (rejecting defendant’s argument for NLRB preemption). Section
`
`
`
`9
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 10 of 17
`
`301 gives federal courts jurisdiction over a certain type of claim: “Suits
`
`for violation of contracts between an employer and a labor organization.”
`
`The statute does not condition that jurisdiction on what might happen
`
`after the Court decides the claim. Because Plaintiff’s claim is a
`
`contractual one, the Court has jurisdiction to decide it under Section 301.
`
`All of this is bad news for Defendant. But the final death knell lies
`
`in the caselaw, which has recognized for more than 50 years that
`
`“Section 301 gives a federal court jurisdiction over a suit to enforce an
`
`arbitration clause in a collective bargaining agreement even if the case is
`
`‘truly a representation case’ that could also be heard by the NLRB.”
`
`Liberty II, 933 F.3d at 758 (citing Vaca v. Sipes, 386 U.S. 261, 267-68
`
`(1967); see Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272 (1964)
`
`(“However the dispute be considered—whether one involving work
`
`assignment or one concerning representation—we see no barrier to use
`
`of the arbitration procedure.”); Retail Clerks Local 588 v. N.L.R.B., 565
`
`F.2d 769, 778 (D.C. Cir. 1977) (“[C]ourts [have the] power to compel
`
`contractually authorized arbitration even as to matters that, in whole or
`
`in part, implicate representational issues.”).
`
`
`
`10
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 11 of 17
`
`Our own Circuit has been just as clear. See Sea-Land Serv., Inc. v.
`
`Int’l Longshoremen’s Ass’n of N.Y., N.Y., 625 F.2d 38, 43 (5th Cir. 1980)
`
`(“[T]he existence of . . . concurrent NLRB jurisdiction is quite plainly
`
`extraneous to the arbitral process. It frequently happens that an alleged
`
`contractual default will also constitute an unfair labor practice; yet
`
`notwithstanding NLRB jurisdiction over the latter, the parties may
`
`nevertheless be enjoined to arbitrate the dispute.”); Int’l Union v. E-Sys.,
`
`Inc., 632 F.2d 487, 489–90 (5th Cir. 1980) (“The fact that the issue is in a
`
`sense a ‘jurisdictional’ one as to whether the contract covers the
`
`particular employees is not a limitation upon the promise to arbitrate. . . .
`
`[T]he existence of a possible remedy with the Board does not bar
`
`enforcement of the collective contract under section 301.”); Gen.
`
`Warehousemen & Helpers Local 767 v. Standard Brands, Inc., 579 F.2d
`
`1282, 1292 (5th Cir. 1978) (“[T]he [Supreme] Court endorsed arbitration
`
`as a means to solve . . . representation disputes, even though the NLRB
`
`could entertain [the] charges.”); Int’l Union of Operating Engineers, Local
`
`279 v. Sid Richardson Carbon Co., 471 F.2d 1175, 1177 (5th Cir. 1973)
`
`(“The representational nature of the question alone is an insufficient
`
`basis to deprive parties of contracted for arbitration.”); Boire v. Int’l Bhd.
`
`
`
`11
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 12 of 17
`
`of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 479 F.2d 778,
`
`794 (5th Cir. 1973) (“[W]e have in fact compelled and enforced arbitration
`
`in cases where representation matters were in issue.”); United States
`
`Gypsum Co. v. United Steelworkers of Am., AFL-CIO, 384 F.2d 38, 48 (5th
`
`Cir. 1967) (dismissing argument that the underlying grievance was
`
`“exclusively within the Board’s jurisdiction” because it was not a
`
`“reason[] outlaw[ing] this claim from arbitration”).4
`
`Defendant’s jurisdictional argument simply collapses under the
`
`weight of this authority. The Court denies Defendant’s motion to dismiss
`
`for lack of subject matter jurisdiction.5
`
`
`4 See also Oleson’s Food Stores v. Local 876 United Food & Commercial
`Workers, 797 F. Supp. 591, 595 (W.D. Mich. 1991) (“Several Circuits have
`allowed arbitration of representational questions.”); Lanco Coal Co. v. S.
`Labor Union, Local No. 250, 320 F. Supp. 273, 275 (N.D. Ala. 1970)
`(“[T]he issue of representation can . . . be subject to arbitration.”).
`5 Notably, Defendant never disputes that Plaintiff’s grievance includes
`some contractual elements; Defendant instead claims the grievance is
`“primarily representational” and that this is enough to preclude
`jurisdiction. (Dkt. 6-1 at 8 (emphasis added).) “[S]ome circuits [do]
`examine the major issues to be decided [in a Section 301 case] and
`determine whether
`they
`can be
`characterized as primarily
`representational or primarily contractual in order to dismiss primarily
`representational claims” for lack of jurisdiction. Liberty II, 933 F.3d at
`758–59. But “[n]either the Supreme Court nor this [Circuit] have
`required such an inquiry.” Id. at 758. And there is good reason to think
`“hybrid claim[s] raising both contractual and representational
`
`
`
`
`12
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 13 of 17
`
`III. Motion to Dismiss for Failure to State a Claim
`
`Defendant next claims that, even if the Court has jurisdiction here,
`
`it should dismiss this case on the merits because Plaintiff’s underlying
`
`grievance does not fall within the scope of the arbitration clause
`
`(meaning Defendant did not violate the Agreement by refusing to
`
`arbitrate it). The Court again disagrees.
`
`A. Legal Standard
`“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint
`
`must contain sufficient factual matter, accepted as true, to state a claim
`
`to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
`
`(2009). “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.” Id. This requires more
`
`than a “mere possibility of misconduct.” Id. at 679. Plaintiff’s well-pled
`
`
`questions . . . are subject to the concurrent jurisdiction of the NLRB and
`the federal courts.” Id. at 759; see William E. Arnold Co. v. Carpenters
`Dist. Council of Jacksonville & Vicinity, 417 U.S. 12, 16 (1974)
`(“When . . . the activity [arguably subject to the NLRA] also constitutes a
`breach of a collective-bargaining agreement, the Board’s authority is not
`exclusive and does not destroy the jurisdiction of the courts in suits under
`s 301.”).
`
`
`
`13
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 14 of 17
`
`allegations must “nudge[] [his] claims across the line from conceivable to
`
`plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
`
`In making this plausibility determination, the court must “assume
`
`that the factual allegations in the complaint are true and give the
`
`plaintiff[] the benefit of reasonable factual inferences.” Wooten v.
`
`Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). But the court
`
`need not credit “conclusory allegations, unwarranted deductions of facts
`
`or legal conclusions masquerading as facts.” Jackson v. BellSouth
`
`Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004). In other words, “labels
`
`and conclusions” are disregarded, and “formulaic recitation[s] of the
`
`elements of the cause of action” are insufficient. Twombly, 550 U.S. at
`
`555.
`
`B. Analysis
`“[T]here is a strong national policy favoring labor arbitration.”
`
`Firestone Tire & Rubber Co. v. Int’l Union of United Rubber, Cork,
`
`Linoleum & Plastic Workers of Am., AFL-CIO, 476 F.2d 603, 605 (5th Cir.
`
`1973); see Martinez v. Carnival Corp., 744 F.3d 1240, 1246 (11th Cir.
`
`2014). But, even in the labor context, arbitration remains “a matter of
`
`contract and a party cannot be required to submit to arbitration any
`
`
`
`14
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 15 of 17
`
`dispute which he has not agreed so to submit.” AT&T Techs., Inc. v.
`
`Commc’ns Workers of Am., 475 U.S. 643, 648 (1986). For that reason,
`
`“the judicial inquiry under [section] 301 must be strictly confined to the
`
`question whether the reluctant party did agree to arbitrate the
`
`grievance.” United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363
`
`U.S. 574, 582 (1960). Defendant says it did not agree to arbitrate
`
`Plaintiff’s grievance here because the grievance falls outside the
`
`arbitration clause.
`
`The arbitration clause covers any “controversy . . . regarding the
`
`true intent and meaning of any provisions of this Agreement.” (Dkt. 1-1
`
`at 15.) Plaintiff’s grievance claims (1) Defendant wrongly classified
`
`certain employees as “Outside Premise Sale Representatives” under
`
`Article 2, Section 1 of the Agreement, and (2) Defendant failed to work
`
`with Plaintiff to establish the wage rate for those employees in violation
`
`of Article 2, Section 2 of the Agreement. The former assertion raises a
`
`pure dispute about the “meaning” of a specific phrase in the Agreement—
`
`“Outside Premise Sale Representatives”—so it falls squarely within the
`
`arbitration clause. The latter assertion raises a dispute about
`
`Defendant’s compliance with a specific provision in the Agreement.
`
`
`
`15
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 16 of 17
`
`Although it does not identify the exact language about which the parties
`
`disagree, the record suggests the contested language includes the
`
`phrases “Bargaining Unit” and (again) “Outside Premise Sales
`
`Representative.” Defendant believes that Article 2, Section 2 “only
`
`applies to job classifications ‘in the Bargaining Unit’”—and that the job
`
`classifications at issue in this case do not fall within the Bargaining Unit
`
`because they count as “Outside Premise Sale Representatives.” (Dkts. 1-
`
`3; 6-1 at 11–12.) This reflects a dispute about “the true intent and
`
`meaning” of these contractual phrases, meaning the dispute falls within
`
`the arbitration clause. Even if there were any doubt about these
`
`conclusions, the Court would resolve that doubt in favor of arbitrability.
`
`See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 298 (2010)
`
`(“[A]ny doubts concerning the scope of arbitral issues should be resolved
`
`in favor of arbitration.”); United Steelworkers, 363 U.S. at 582–83 (“An
`
`order to arbitrate the particular grievance should not be denied unless it
`
`may be said with positive assurance that the arbitration clause is not
`
`susceptible of an interpretation that covers the asserted dispute. Doubts
`
`
`
`16
`
`
`
`Case 1:20-cv-00911-MLB Document 30 Filed 02/05/21 Page 17 of 17
`
`should be resolved in favor of coverage.”). The Court thus denies
`
`Defendant’s motion to dismiss for failure to state a claim.6
`
`IV. Conclusion
`
`The Court DENIES Defendant’s Motion to Dismiss Plaintiff’s
`
`Complaint (Dkt. 6) and GRANTS Defendant’s Motion for Leave to File
`
`Supplemental Authority (Dkt. 25).
`
`SO ORDERED this 5th day of February, 2021.
`
`
`
`
`6 Plaintiff’s grievance also says Defendant is “diverting bargaining unit
`work outside of the bargaining unit and coverage of the Agreement.” This
`assertion, unlike the others, is not tied to a specific provision of the
`Agreement. It is unclear whether it is a stand-alone substantive
`complaint or whether it is an element or extension of the other portions
`of the grievance. Either way, Defendant has not shown it brings the
`grievance outside the scope of the arbitration clause or otherwise
`requires dismissal of this case.
`
`
`
`17
`
`
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