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Austin v. Steamship Clerks and Checkers International Longshoremen Association #1351

United States District Court, Fifth Circuit

December 4, 2013

TOMMIE AUSTIN, JR., Plaintiff.
v.
STEAMSHIP CLERKS AND CHECKERS INTERNATIONAL LONGSHOREMEN ASSOCIATION #1351, CERES STEVEDORING, [1] HOUSTON TERMINAL, MARINE TERMINAL CORPORATION EAST, and PORT OF HOUSTON AUTHORITY, Defendants.

MEMORANDUM AND ORDER

EWING WERLEIN, Jr., District Judge.

Pending are Defendants Ceres Gulf, Inc., Houston Terminal, International Longshoremen's Association Local No. 1351, and Marine Terminal Corporation East's Motion to Compel Arbitration (Document No. 26), Defendants Ceres Gulf, Inc., Houston Terminal, and Marine Terminal Corporation East's Motion for Summary Judgment (Document No. 27), and Defendant International Longshoremen's Association Local No. 1351's Motion for Summary Judgment (Document No. 28). After having considered the motions, responses, supplemental responses, arbitration agreement, and applicable law, the Court concludes as follows.

I. Background

Plaintiff Tommie Austin, Jr. ("Plaintiff") is a union member who works out of a hiring hall operated by Defendant International Longshoremen's Association Local No. 1351 ("ILA 1351").[2] Stevedore employers hire Plaintiff for specific jobs pursuant to a Collective Bargaining Agreement ("CBA") between the West Gulf Maritime Association ("WGMA"), on behalf of the stevedores, and the South Atlantic and Gulf Coast District of the International Longshoremen's Association, on behalf of its affiliated locals.[3] Defendants Marine Terminal Corporation East ("MTC") and Ceres Gulf, Inc. ("Ceres") are members of the WGMA.[4] Defendant Houston Terminal ("Houston Terminal, " and together with ILA 1351, MTC, and Ceres, "Defendants") is a terminal, not a stevedore, and does not itself employ longshoremen.[5]

Plaintiff, a black man, alleges that the Defendants discriminated against him on the basis of his race, in violation of Chapter 21 of the Texas Labor Code.[6] Plaintiff contends that Defendants' practice of hiring workers by name, ' instead of by seniority, is used systematically to exclude blacks from lucrative positions.[7] Plaintiff also alleges that Defendants discipline black workers more harshly than white workers.[8]

Defendants now move to compel arbitration, arguing that Plaintiff is bound by the CBA to submit his claims to grievance and arbitration procedures.[9]

II. Motion to Compel Arbitration

A. Legal Standard

Under the Federal Arbitration Act ("FAA"), "[a] two-step inquiry governs whether parties should be compelled to arbitrate a dispute. First, the court must determine whether the parties agreed to arbitrate the dispute. Once the court finds that the parties agreed to arbitrate, it must consider whether any federal statute or policy renders the claims non-arbitrable.'" Banc One Acceptance Corp. v. Hill , 367 F.3d 426, 429 (5th Cir. 2004) (quoting R.M. Perez & Assoc., Inc. v. Welch , 960 F.2d 534, 538 (5th Cir. 1992)). "In order to be subject to arbitral jurisdiction, a party must generally be a signatory to a contract containing an arbitration clause." Bridas S.A.P.I.C. v. Govt. of Turkmenistan , 345 F.3d 347, 353 (5th Cir. 2003). Although a strong federal policy favors arbitration, the policy does not apply to the initial question of whether there is a valid agreement to arbitrate. See Banc One Acceptance Corp. , 367 F.3d at 429.

B. Discussion

In support of their contention that Plaintiff is bound to grieve and arbitrate his claims under the CBA, Defendants point to a Memorandum of Understanding (the "MOU") that was negotiated as part of the CBA during contract negotiations in 2004.[10] The MOU states:

Any complaint that there has been a violation of any employment law, such as Title VII, FLSA, HIPAA, ERISA, ADA, ADEA, FMLA and OSHA, or any comparable state law or local ordinance, shall be resolved solely by the grievance and arbitration provisions of the collective bargaining agreement.[11]

In 14 Penn Plaza LLC v. Pyett, the Supreme Court held that "a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate [Age Discrimination in Employment Act (ADEA)] claims is enforceable as a matter of federal law." 129 S.Ct. 1456, 1474 (2009). The Court explained that if Congress did not prohibit waiver of judicial remedies, the only requirement for enforceability is that "an agreement to arbitrate statutory antidiscrimination claims be explicitly stated in the collective-bargaining agreement." Id. at 1465 (internal quotations omitted). While 14 Penn dealt with ADEA claims, the Court noted that "nothing in the text of Title VII... precludes contractual arbitration." Id. at 1470 n. 9. See also Ibarra v. United Parcel Serv. , 695 F.3d 354, 356 (5th Cir. 2012) ("The grievance process established in the CBA forms the exclusive remedy for Ibarra's Title VII claim only if the CBA clearly and unmistakably waives Ibarra's right to pursue her Title VII claim in a judicial forum.").[12]

The MOU "clearly and unmistakably" establishes the grievance and arbitration provisions of the collective bargaining agreement as the exclusive remedy for Austin's claims. Plaintiff sues under Chapter 21 of the Texas Labor Code, which is modeled after federal civil rights law. NME Hosps., Inc. v. Rennels , 994 S.W.2d 142, 144 (Tex. 1999). See also TEX. L. CODE ยง 21.001(1) (the general purposes of Chapter 21 include "provid[ing] for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments"). Thus, the MOU, which mandates submission to the grievance and arbitration procedures of "[a]ny complaint that there has been a violation of any employment law, such as Title VII... or any comparable state law or local ordinance, "[13] encompasses claims under Chapter 21 of the Texas Labor Code. See Anglin v. Ceres Gulf Inc., 503 Fed.Appx. 254, 255 (5th Cir. 2012) (per curiam) ("The MOU specifically identifies Title VII, ...


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