Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`UNITED NATURAL FOODS, INC,
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`CASE NO. C19-1736-LK
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`ORDER REGARDING CROSS
`MOTIONS FOR SUMMARY
`JUDGMENT
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`v.
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`Plaintiff,
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`INTERNATIONAL BROTHERHOOD OF
`TEAMSTERS LOCAL 117, et al.,
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`Defendants.
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`This matter comes before the Court on the cross motions for summary judgment filed by
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`Plaintiff United Natural Foods, Incorporated (“UNFI”) and by Defendants and counterclaimants
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`International Brotherhood of Teamsters Local 117 and Local 313 (collectively, the “Unions”). Dkt.
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`Nos. 70, 71. UNFI and the Unions were parties to collective bargaining agreements that contained
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`provisions regarding transferred employees’ rights in the event an existing UNFI facility was
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`moved. After UNFI announced a plan to consolidate two of its facilities to a new distribution
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`center, the parties disputed the meaning of those provisions, culminating in arbitration. UNFI seeks
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`to vacate the arbitration award, and the Unions seek to confirm it and hold UNFI liable for breach
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 1
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 2 of 27
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`of the parties’ collective bargaining agreements. For the reasons set forth below, the Court denies
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`UNFI’s motion for summary judgment and grants in part and denies in part the Unions’ motion
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`for summary judgment.
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`A.
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`Changes at UNFI spawn conflict
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`I.
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`BACKGROUND
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`In October 2018, UNFI, a national wholesale grocery distribution company, acquired
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`SuperValu, Inc. and thereby became party to collective bargaining agreements with the Unions,
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`which represented employees in UNFI’s facility in Tacoma, Washington. Dkt. No. 1 at 2, 4. Those
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`employees comprised four bargaining units of warehouse workers, inventory control workers,
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`warehouse clerks, and drivers. Id. at 2. The relevant collective bargaining agreements (“CBAs”)
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`at issue in this case covered the Tacoma employees in those bargaining units effective July 15,
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`2018 to July 17, 2021. Id. at 3–4; Dkt. Nos. 1-2, 1-3, 1-4. As relevant here, Section 1.01.2 of the
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`CBAs1 provides as follows:
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`Movement of Existing Facility: In the event that [UNFI] moves an existing facility
`to any location within the jurisdiction of Joint Council of Teamsters No. 28 . . . the
`terms of this contract shall continue to apply with respect to the new facility. In
`addition, all employees working under the terms of this Agreement at the old
`facility shall be afforded the opportunity to work at the new facility under the same
`terms and conditions and without any loss of seniority or other contractual right or
`benefits. The designated Union will be required to show a majority representation
`in accordance with controlling law. In addition, the parties agree to enter into effects
`bargaining in accordance with controlling law regarding the impact on employees
`of the movement of an existing facility.
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`Dkt. No. 1-2 at 6 (the “Movement Provision”).
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`In February 2019, UNFI announced that it would consolidate its Tacoma, Washington, and
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`Portland, Oregon, facilities into a newly constructed distribution center in Centralia, Washington.
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`1 The CBAs include mostly identical language with minor variations that are inconsequential with respect to this
`litigation.
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 3 of 27
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`Dkt. No. 1-1 at 5. UNFI planned to close the Tacoma and Portland facilities2 with the opening of
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`the Centralia facility. Dkt. No. 1 at 4. The Centralia facility was anticipated to employ
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`approximately 500 workers, and UNFI “encouraged” employees from the Tacoma facility to apply
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`for those jobs. Id. at 5.
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`In March 2019, the Unions filed grievances against UNFI, claiming that it violated the
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`CBAs by disclaiming the applicability of the Movement Provision to relocation of Tacoma
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`employees to the Centralia facility. See Dkt. No. 72-1 at 433. UNFI denied the grievances, and the
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`parties agreed to arbitrate the dispute. Dkt. No. 1 at 6.
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`B.
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`The arbitrator finds in favor of the Unions
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`A two–day arbitration was held on August 6 and 7, 2019. Dkt. No. 1 at 7. The issues before
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`the arbitrator were (1) whether the dispute was arbitrable, (2) if so, whether UNFI violated the
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`Movement Provision, and (3) if so, what the appropriate remedy should be. Dkt. 1-1 at 4. Under
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`the CBAs, the arbitrator’s powers were limited to “interpretations of and a decision concerning
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`appropriate application of the terms of [the CBAs]”; the arbitrator had “no power to add to or
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`subtract from or to disregard, modify or otherwise alter any terms of this or any other agreement(s)
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`between the Union and Employer or to negotiate new agreements.” Dkt. No. 1-2 at 23.
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`The arbitrator issued his Opinion and Award (the “Award”) on October 7, 2019. Dkt. No.
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`1-1. The arbitrator found that arbitrability was “so intertwined” with the merits of the case that
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`they should be discussed together “in order to provide a clear explanation for [the] final ruling.”
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`Id. at 9. The parties’ substantive dispute centered on the Movement Provision. The Unions argued
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`that the Provision entitled employees working at the Tacoma facility to work at the new Centralia
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`facility under the same terms of employment they had in Tacoma. Dkt. No. 1-1 at 13. Although
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`2 The employees at the Portland facility are represented by unions that are not parties in this matter. Dkt. No. 1 at 5.
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 3
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 4 of 27
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`the Unions acknowledged that they could not represent the Centralia employees until a majority
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`of employees there supported such representation, they maintained that they merely sought to
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`enforce the Tacoma CBAs, and such enforcement did not constitute representation of the Centralia
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`employees. Id. at 10. In response, UNFI argued that employees were only entitled to employment
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`at the Centralia facility under the same terms if the Unions first demonstrated majority
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`representation. Id. at 11, 17. Because the Unions had not done this, UNFI argued that the dispute
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`was “a representation case subject to NLRB jurisdiction disguised as a grievance.” Id. at 11.
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`In examining the meaning of the Movement Provision, the arbitrator identified several
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`“difficult[ies]” presented by the text. Id. at 12–13. First, there was an apparent conflict between
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`the first two sentences and the third: although the first two sentences “appear to grant clear rights
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`to existing employees that ‘shall’ apply,” the third sentence (the “majority support” sentence)
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`“seems to add a condition that negates or limits the rights and benefits provided by the first two
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`sentences.” Id. at 12. Examining the apparent conflict, the arbitrator found it unclear why the first
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`two sentences stated that the rights and benefits therein “shall” apply if those rights and benefits
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`were “conditioned on showing majority support[.]” Id. at 13. And, if the third sentence were a pre-
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`condition for the first two sentences, it was unclear why the first two sentences were included at
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`all, or in the very least why they were not placed after the majority support sentence. Id. at 12–13.
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`Observing that “the order of the sentences in [the Movement Provision] and the language used do
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`not give a completely clear picture of what the Parties intended,” the arbitrator resolved to interpret
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`the language in a manner that best reflected the parties’ intent. Id. at 13–14.
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`The arbitrator then considered testimony from the parties about their intent in negotiating
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`the Movement Provision. Id. at 14–16. Two witnesses for the Unions testified that the Unions’
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`objectives in negotiating that section were to enable union workers “to follow the work to a new
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`location,” and to ensure that “in the transitional phase” to a new facility “the terms of the agreement
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 4
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 5 of 27
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`[would] apply.” Id. at 14–15. UNFI’s witness testified that “the Union proposed the first two
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`sentences of [the Movement Provision] and the Employer proposed the third sentence because the
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`Employer did not want to agree ‘to do what is more than we can legally do under board law’”; in
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`other words, “the third sentence ‘has to happen before the first two come into play.’” Id. at 15. On
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`cross-examination, UNFI’s witness “agreed that [UNFI] can set the terms and conditions,
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`assuming no collective bargaining relationship exists, and nothing prevents [UNFI] from agreeing
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`to allow the employees from Tacoma to transfer to Centralia and to maintain their terms and
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`conditions of employment.” Id. However, UNFI argued that not all terms from the CBAs “[c]ould
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`exist for the transferred employees without a [collective bargaining] contract,” which in turn would
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`require majority support at the new location, such that the “majority support” provision must be
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`read as a precondition to applying the terms of the CBAs to transferred employees as provided in
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`the first two sentences of the Movement Provision. Id. at 13, 19.
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`Addressing that argument, the arbitrator found that the “terms of the contract” referenced
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`in the first two sentences of the Movement Provision could “reasonably be interpreted to mean the
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`wages, hours, benefits and working conditions contained in the Agreement.” Id. at 19. He reasoned
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`that the Provision “allows the employees to follow the work to the new location and avoid having
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`to face a reduced standard of living to do so.” Id. The arbitrator also rejected UNFI’s argument
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`that it could not continue to make payments to the Pension Trust Fund without a contract in place,
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`noting that UNFI’s witness testified during the hearing that based on his experience as a Trustee
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`of the Trust, the Trust could approve continuation of contributions and benefits even though no
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`contract was in place during a transition period. Id. at 19.
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`Having found that the Movement Provision contained an “express promise” to “apply the
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`terms of the contract and afford all employees working under the terms of the Agreement at the
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`Tacoma facility the opportunity to work at the Centralia facility under the same terms and
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 5
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 6 of 27
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`conditions and without any loss of seniority of other contractual rights or benefits,” the arbitrator
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`concluded that UNFI violated the Movement Provision when it failed to “afford all [Tacoma]
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`employees . . . the opportunity to work at the Centralia facility under the same terms and conditions
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`and without any loss of seniority or other contractual rights or benefits pending resolution of the
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`question concerning representation at Centralia.” Dkt. No. 1-1 at 19. Accordingly, the Award
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`imposed the following remedy:
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`1. Allow employees at the Tacoma facility to transfer to Centralia under the same
`terms and conditions that they have in Tacoma; and
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`2. Reinstate, make whole and also allow any employees laid off in the first wave(s)
`of layoffs in Tacoma to transfer to Centralia under the same terms and conditions
`that they had in Tacoma.
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`Dkt. No. 1-1 at 21.
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`C.
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`UNFI sues
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`On October 28, 2019, UNFI filed a complaint in this Court against the Unions to vacate
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`the Award. Dkt. No. 1. The Unions counterclaimed under the Labor Management Relations Act,
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`29 U.S.C. § 185 (“LMRA”), seeking to confirm and enforce the Award and to obtain relief from
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`UNFI’s alleged breach of the CBAs. Dkt. No. 9 at 9–15.
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`The Court issued a scheduling order, but declined to set a discovery deadline based on the
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`parties’ representation in their Joint Status Report that there was no need for discovery related to
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`the liability phase of this case. Dkt. No. 37 at 1. The Court ordered that the record for the liability
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`phase would consist of the Award, the arbitration hearing transcript, the exhibits introduced at the
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`arbitration hearing, UNFI’s unfair labor practice charge against the Unions filed with the National
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`Labor Relations Board (“NLRB” or the “Board”), any rulings on that charge, portions of the NLRB
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`record before deemed relevant by either party, and correspondence between the parties regarding
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`employment offers that UNFI extended to former employees of the Tacoma facility. Id. at 1–2.
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 6
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 7 of 27
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`The Court further issued a briefing schedule for the parties’ cross-motions for summary judgment
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`on the issue of liability, and noted that if the Court found for the Unions on the issue of liability, it
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`would subsequently set pretrial deadlines, including a 120-day deadline for the parties to complete
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`discovery related to damages. Id. at 2.
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`D.
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`Proceedings before the NLRB and related court filings
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`In addition to this lawsuit, UNFI filed an unfair labor practice charge with the NLRB
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`alleging that the Award violated Sections 8(b)(1)(A), 8(b)(2), and 8(b)(3) of the National Labor
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`Relations Act (“NLRA”). Dkt. No. 25 at 5. UNFI then filed a motion to stay this case pending
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`resolution of the unfair labor practice charge, Dkt. No. 24, which the Court initially denied, Dkt.
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`No. 36.
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`UNFI moved the Court to reconsider its decision when the NLRB subsequently issued a
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`Consolidated Complaint against the Unions alleging that they violated NLRA Sections 8(b)(1)(A),
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`8(b)(2) and 8(b)(3) by (1) seeking to enforce the CBAs despite not representing a majority of the
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`employees at Centralia; (2) “attempt[ing] to cause UNFI to discriminate against its Centralia
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`employees on the basis of Union representation”; and (3) seeking to represent certain employees—
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`i.e., former Tacoma employees—at Centralia. Dkt. No. 39-1 at 15. With the Court’s permission,
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`Dkt. No. 53, the NLRB filed an amicus curie brief, Dkt. No. 42-1. The NLRB urged the Court to
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`stay the case because UNFI’s unfair labor practice complaint involved representational issues that
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`were within the Board’s primary jurisdiction and because the issue of contract interpretation was
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`inextricably linked with the unfair labor practice allegations. Dkt. No. 42-1 at 6–14. “To avoid
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`conflicting outcomes and in the interest of judicial economy,” the Court granted a stay pending the
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`NLRB’s resolution of the representation issues. Dkt. No. 53 at 2–3.
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`On June 29, 2021, the NLRB filed a status report informing the Court that the Regional
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`Director of NLRB Region 19 in Seattle, acting at the direction of the Acting General Counsel, had
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 7
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 8 of 27
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`withdrawn the complaint against the Unions and dismissed the unfair labor practice charge. Dkt.
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`No. 54 at 1. The Regional Director’s order explained that President Biden removed the former
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`General Counsel—under whose authority the Director issued the Consolidated Complaint—and
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`that the Acting General Counsel did “not wish to continue the prosecution” of the case after a
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`review and re-examination of the allegations. Dkt. No. 54-1 at 2. UNFI filed a request for special
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`permission to appeal the withdrawal of the complaint against the Unions, and the NLRB denied
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`that request on May 11, 2021. See Dkt. No. 55 at 2–3. On June 22, 2021, the Acting General
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`Counsel denied UNFI’s appeal of the Regional Director’s order withdrawing the complaint against
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`the Unions. Dkt. No. 56 at 5–7; see also id. at 6–7 (noting that, as to the merits of the parties’
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`dispute, “[t]he evidence does not show that the representational status of the Unions is at issue”
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`and “[t]he Board has upheld the transfer of contractual provisions into new bargaining
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`relationships once the original unit no longer exists because certain rights are enforceable
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`‘vestiges’ of the expired contract.”). Because the NLRB matter had concluded, the Court lifted the
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`stay. Dkt. No. 58.
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`A week after the stay was lifted, UNFI submitted a petition for review of the NLRB’s May
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`11, 2021 order to the Fifth Circuit Court of Appeals. Dkt. No. 59-1.3 UNFI requested that this
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`Court reinstate the stay based on their appeal, and the Court denied that motion. Dkt. Nos. 59, 69.
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`The parties subsequently filed cross motions for summary judgment. Dkt. Nos. 70–71.
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`A.
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`Jurisdiction
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`II.
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`DISCUSSION
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`The Court has jurisdiction to hear “[s]uits for violation of contracts between an employer
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`and a labor organization representing employees” based on Section 301 of the LMRA. 29 U.S.C.
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`3 The Fifth Circuit heard oral argument on June 6, 2022. United Natural Foods v. NLRB, No. 21-60532; oral argument
`available at https://www.ca5.uscourts.gov/OralArgRecordings/21/21-60532_6-6-2022.mp3.
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 8
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 9 of 27
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`§ 185(a); see, e.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 986 (9th Cir. 2001). Section
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`301 also empowers the Court to review an arbitration conducted under the terms of a collective
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`bargaining agreement. See Sprewell, 266 F.3d at 986.
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`B.
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`Summary Judgment Standard
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`Summary judgment is appropriate only when “the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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`Civ. P. 56(a). The Court does not make credibility determinations or weigh the evidence at this
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`stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The sole inquiry is “whether the
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`evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-
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`sided that one party must prevail as a matter of law.” Id. at 251–52.
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`A court presented with cross-motions for summary judgment should review each motion
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`separately, giving the nonmoving party for each motion the benefit of all reasonable inferences
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`from the record. Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep’t, 533 F.3d
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`780, 786 (9th Cir. 2008). To the extent that the Court resolves factual issues in favor of the
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`nonmoving party, this is true “only in the sense that, where the facts specifically averred by that
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`party contradict facts specifically averred by the movant, the motion must be denied.” Lujan v.
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`Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990).
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`The Court will, however, enter summary judgment “against a party who fails to make a
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`showing sufficient to establish the existence of an element essential to that party’s case, and on
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`which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
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`(1986). Once the moving party has carried its burden under Rule 56(c), “the nonmoving party must
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`come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec.
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`Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e))
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`(emphasis omitted). Metaphysical doubt is insufficient, id. at 586, as are conclusory, non-specific
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`ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT - 9
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 10 of 27
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`affidavits, Lujan, 497 U.S. at 888–89. Nor is it the Court’s job to “scour the record in search of a
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`triable issue of fact”; rather, the nonmoving party must “identify with reasonable particularity the
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`evidence that precludes summary judgment.” Kennan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)
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`(internal quotation marks and citation omitted); accord Carmen v. San Francisco Unified Sch.
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`Dist., 237 F.3d 1026, 1029 (9th Cir. 2001).
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`C. Motions for Summary Judgment
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`In their motions for summary judgment, the parties dispute whether the Award should be
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`vacated or enforced. See generally Dkt. Nos. 70, 71. UNFI argues that the Award should be vacated
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`because it fails to draw its essence from the CBAs and violates the NLRA. Dkt. No. 71 at 8–9, 13–
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`23. UNFI also argues that the Unions’ actions and attempts to enforce the Award are “arguably
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`prohibited” by the NLRA. Dkt. No. 71 at 9, 14, 23–24. The Unions ask the Court to enforce the
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`Award and declare that UNFI breached the CBAs by failing to abide by the arbitrator’s decision.
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`See generally Dkt. No. 70. The Court heard oral argument on the parties’ motions on April 26,
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`2022. Dkt. No. 78. For the reasons laid out below, the Unions have the better of the arguments.
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`“Because of the centrality of the arbitration process to stable collective bargaining
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`relationships, courts reviewing labor arbitration awards afford a nearly unparalleled degree of
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`deference to the arbitrator’s decision.” Sw. Reg’l Council of Carpenters v. Drywall Dynamics, Inc.,
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`823 F.3d 524, 530 (9th Cir. 2016) (internal citation and quotation marks omitted). “[A]s long as
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`the arbitrator is even arguably construing or applying the contract and acting within the scope of
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`his authority, that a court is convinced he committed serious error does not suffice to overturn his
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`decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987). This is because
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`“[i]t is the arbitrator’s construction” that the parties “bargained for,” and “so far as the arbitrator’s
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`decision concerns construction of the contract, the courts have no business overruling him because
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`their interpretation of the contract is different from his.” United Steelworkers of Am. v. Enterprise
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 11 of 27
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`Wheel & Car Corp., 363 U.S. 593, 599 (1960). The Court does not determine “whether the
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`arbitrator’s interpretation of the agreement was ‘plausible,’ in the sense of one a court might
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`render, but instead whether he made any interpretation or application of the agreement at all. If so,
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`the court’s inquiry ends.” Sw. Reg’l Council of Carpenters, 823 F.3d at 531–32; id. at 532 (“the
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`relevant inquiry is simply whether the arbitrator’s decision concerns construction of the contract,
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`not an evaluation of the merits of that construction.”) (cleaned up).
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`Under that deferential standard, a court may properly vacate an arbitrator’s award:
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`(1) when the award does not draw its essence from the collective bargaining
`agreement and the arbitrator is dispensing his own brand of industrial justice;
`(2) where the arbitrator exceeds the boundaries of the issues submitted to him;
`(3) when the award is contrary to public policy; or (4) when the award is procured
`by fraud.
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`S. Cal. Gas Co. v. Util. Workers Union of Am., Local 132, AFL-CIO, 265 F.3d 787, 792–93 (9th
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`Cir. 2001). The “burden of establishing grounds for vacating an arbitration award is on the party
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`seeking it.” U.S. Life Ins. Co. v. Superior Nat’l Ins. Co., 591 F.3d 1167, 1173 (9th Cir. 2010).
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`Here, UNFI fails to satisfy its burden.
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`1.
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`The Arbitrator Did Not Exceed his Authority
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`As the arbitrator observed, the facts of this case create “difficulties” construing the
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`Movement Provision. Dkt. No. 1-1 at 12–13. The CBAs require that “the terms of [the CBAs] shall
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`continue to apply with respect to the new facility,” and that employees working under the CBAs
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`“be afforded the opportunity to work at the new facility under the same terms and conditions.”
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`Dkt. No. 1-2 at 6. At the same time, the CBAs mandate that “[t]he designated Union will be
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`required to show a majority representation in accordance with controlling law.” Id.
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`With a short-distance move, satisfaction of all three sentences appears easily obtainable.
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`As counsel for UNFI explained at oral argument, “[i]f you have a facility that moves from one
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`location, three blocks away, it stands to reason that, first, the union would be able to establish
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 12 of 27
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`majority support among the employees that would be working at that facility,” and then “all of [the
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`Movement Provision’s] terms, including those that relate to union representation, would also apply
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`at the new facility.” Oral Arg. Drft. Tr. at 9. But “[i]f you have what occurred here, which is the
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`facility being moved 55 miles away,” there is a potential that “the requirement in sentence 3 [of
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`majority representation] cannot be satisfied[.]” Id. at 10. In UNFI’s view, such a failure means that
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`the first two sentences of the Movement Provision simply could not apply. Id. Contemplating such
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`a result, however, the arbitrator pondered why the parties “provide[d] in the first two sentences
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`that rights and benefits ‘shall’ apply” but did “not make clear in those sentences that the rights and
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`benefits are conditioned on showing majority support[.]” Dkt. No. 1-1 at 13.
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`These quandaries are precisely why labor arbitrators play such a “critical role” in the
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`context of a collective bargaining agreement. Sw. Reg’l Council of Carpenters, 823 F.3d at 529.
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`Such agreement is “a skeletal, interstitial document” that is not intended to be “a comprehensive
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`distillation of the parties’ bargain” like a commercial contract. Stead Motors of Walnut Creek v.
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`Auto. Machinists Lodge No. 1173, Int’l Ass’n of Machinists & Aerospace Workers, 886 F.2d 1200,
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`1205 (9th Cir. 1989). The labor arbitrator’s role is accordingly “somewhat different from that
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`served by the arbitrator in the commercial context.” Id. The labor arbitrator “is the person the
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`parties designate to fill in the gaps,” as “their joint alter ego for the purpose of striking whatever
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`supplementary bargain is necessary” to handle matters omitted from the agreement. Id. (cleaned
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`up). Labor arbitration is thus “a critical aspect of the parties’ bargain” because it is “the means
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`through which they agree to handle the anticipated unanticipated omissions of the collective
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`bargaining agreement.” Id. (cleaned up); see also United Steelworkers of Am. v. Warrior & Gulf
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`Nav. Co., 363 U.S. 574, 578 (1960) (“Warrior & Gulf”) (“The collective bargaining agreement . .
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`. . is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen
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`cannot wholly anticipate.”).
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 13 of 27
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`That is the function that the arbitrator served here. Faced with a factual circumstance the
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`parties may not have fully anticipated and CBAs that did “not give a completely clear picture of
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`what the Parties intended,” the arbitrator construed the CBAs’ terms in the context of the long-
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`distance move by considering what the parties were “trying to accomplish with this provision.”
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`Dkt. No. 1-1 at 13. He observed that “the Union’s goal during the negotiation of the [Movement
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`Provision] was to allow the employees to follow the work to a new location,” and that an UNFI
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`witness’s testimony established that it “did not want to agree ‘to do what is more than [it] can
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`legally do under board law.’” Dkt. No. 1-1 at 15–16 (noting that UNFI’s witness agreed that it was
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`free to set terms and conditions of employment absent a collective bargaining agreement).
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`Ultimately, the arbitrator satisfied each side’s goals by construing the first two sentences to require
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`that only those “terms” relating to wages, hours, and working conditions be applied to employees
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`who transferred to the Centralia facility. Dkt. No. 1-1 at 19; see also Warrior & Gulf, 363 U.S. at
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`582 (“The parties expect that [the arbitrator’s] judgment . . . will reflect not only what the contract
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`says but, insofar as the collective bargaining agreement permits, such factors as the effect upon
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`productivity of a particular result, its consequence to the morale of the shop, his judgment whether
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`tensions will be heightened or diminished.”).
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`UNFI contends that this result impermissibly “reinvents” the parties’ agreement. Dkt. No.
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`74 at 9. In UNFI’s view, “terms” clearly means “all ‘terms’ set forth in the parties’ agreement,”
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`and the arbitrator was not free to deviate from that plain meaning. Id. at 15–16 (emphasis in
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`original). But despite the arbitrator having “no power to add to or subtract from or to disregard,
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`modify or otherwise alter any terms” of the CBAs, he “overtly disregarded the contract ‘terms’
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`dealing with union representation” when he “impos[ed] all other contract ‘terms’ on Centralia
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`employees who transferred from Tacoma” and gave “no effect to the Tacoma contract language
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`requiring the Unions to ‘show majority representation[.]’” Dkt. No. 71 at 8; see also id. at 18–23.
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`Case 2:19-cv-01736-LK Document 79 Filed 08/02/22 Page 14 of 27
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`UNFI asks the Court to reach too far. The Court’s task “is to determine whether the
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`arbitrator interpreted the collective bargaining agreement, not whether he did so correctly.” Hawaii
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`Teamsters & Allied Workers Union, Loc. 996 v. United Parcel Serv., 241 F.3d 1177, 1178 (9th
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`Cir. 2001) (emphasis in original). Thus, the key question “is a simple binary one: Did the arbitrator
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`look at and construe the contract, or did he not?” Sw. Reg’l Council of Carpenters, 823 F.3d at
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`532.
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`He did. Although the arbitrator was not free to disregard or rewrite contract language, he
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`was empowered to interpret that language. Dkt. No. 1-2 at 23 (including within the powers of the
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`arbitrator “interpretations of and a decision concerning appropriate application of the terms of this
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`Agreement”); see also, e.g., Enterprise Wheel, 363 U.S. at 597; Campbell v. Nevada Prop. 1 LLC,
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`No. C2:10-02169-APG, 2013 WL 6118622, at *3 (D. Nev. Nov. 20, 2013) (“Absent a definition,
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`arbitrators have the authority to interpret contract terms.”); United Parcel Serv. Int’l Brotherhood
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`of Teamsters, 2006 WL 2137146, at *3 (W.D. Wash. 2006) (“[T]he arbitrator was completely
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`within his authority to interpret a term of the contract as he saw fit; this Court’s job on review is
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`to determine whether he was within the confines of the agreement and the issue as it was framed
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`for him, not whether he interpreted a term of the contract ‘correctly.’”). The arbitrator accordingly
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`interpreted the sentences in the Movement Provision to determine what the “terms” included.
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`The Movement Provision does not state that “all” of the terms contained in all provisions
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`of the CBAs shall continue to apply at the new facility. See Dkt. No. 1-2 at 6. Nor do the CBAs
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`define “terms” or “terms and conditions.” See generally Dkt. No. 1-2. The arbitrator did not exceed
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`his authority simply by adopting a narrower construction of