United States District Court, D. Colorado
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL NO. 7, Plaintiff,
KING SOOPERS, INC., Defendant.
ORDER ON MOTION TO DISMISS
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Defendant's Motion to Dismiss [filed January 7, 2015; docket #15]. The motion is fully briefed, and the Court held oral argument on April 2, 2015. For the reasons that follow, the Court denies the Motion to Dismiss.
Plaintiff United Food and Commercial Workers Union, Local No. 7, ("the Union") alleges that Defendant King Soopers, Inc., refused to comply with arbitration orders regarding back pay for three of its employees, who are members of the Union. The following are factual allegations, taken as true, from the Union's complaint and offered by King Soopers for jurisdictional analysis. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) ("A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).").
I. Anthony Gonzalez
Mr. Gonzalez had been employed by King Soopers for less than a year when he was terminated on February 19, 2008. [Arbitration Award, docket #15-6, p. 10]. Pursuant to the terms of a collective bargaining agreement ("CBA") between the parties, Mr. Gonzalez and the Union filed a grievance challenging the termination. Arbitrator Gerald Cohen heard the grievance on August 24, 2011. Arbitrator Cohen ordered a 30-day suspension in lieu of termination and ordered that Mr. Gonzalez be awarded back pay without interest for the remainder of the time to the date of Mr. Gonzalez's reinstatement. Abritrator Cohen stated that King Soopers "is to receive credit for earnings in the interim." Subsequently, King Soopers argued that Mr. Gonzalez failed to mitigate damages after his termination and, therefore, was not entitled to a full back pay award. On June 26, 2013, Arbitrator Cohen held a second hearing to address the amount of back pay. He awarded Mr. Gonzalez 80 days of back pay without interest.
On December 20, 2013, Defendant paid Mr. Gonzalez $7, 902.84 in gross back pay. On January 23, 2014, the Union submitted a letter to King Soopers indicating that it calculated Mr. Gonzalez's back pay to be $10, 662.40, and that King Soopers owed Mr. Gonzalez $2, 665.60. King Soopers responded that Mr. Gonzalez had been properly paid.
On March 4, 2014, Mr. Gonzalez filed a claim against King Soopers in El Paso County Small Claims Court for $2, 665.60. King Soopers removed the case to this Court. Gonzalez v. King Soopers et al., 14-cv-000773-KMT. Magistrate Judge Kathleen M. Tafoya dismissed the complaint for failure to state a claim but granted Mr. Gonzalez leave to amend his complaint. Mr. Gonzalez filed an amended complaint alleging that King Soopers failed to comply with the Arbitrator award. Judge Tafoya again dismissed the complaint for failure to state a claim. Under Fed.R.Civ.P. 41(b), this operated as an adjudication on the merits or, in other words, "with prejudice."
II. Michael "Tina" Todd
After about thirteen years of employment by King Soopers, Ms. Todd was terminated on December 15, 2009. Pursuant to the arbitration procedures in the CBA, the Union and Ms. Todd filed a grievance challenging the termination. Arbitrator Richard Fincher heard the grievance on March 12, 2013. On May 30, 2013, Abritrator Fincher reduced the termination to a 30-day suspension and ordered that Ms. Todd "be reinstated with standard make-whole relief and seniority." [Docket #1-10, p. 9]
On June 7, 2013, King Soopers sent a letter to the Union stating that Ms. Todd would be reinstated on June 16, 2013 and requesting all documents concerning her interim earnings. The letter advised that any delays in providing the requested information would delay the processing of Ms. Todd's back pay. King Soopers sent follow-up letters requesting the documents on November 14, 2013; January 20, 2014; and March 26, 2014. The Union asserts that it has no additional information to provide King Soopers; on April 30, 2014, the Union requested a remedial arbitration hearing to resolve the dispute.
III. Christine Austin
On July 29, 2009, King Soopers suspended Ms. Austin for five days and demoted her employment position as full-time head clerk. The Union and Ms. Austin challenged the discipline and on September 9, 2014, Arbitrator Patricia Bittel held a hearing addressing the grievance. On November 17, 2014, the Arbitrator granted the grievance and awarded Ms. Austin retroactive compensation and benefits for the five-day suspension as well as for her demotion from full-time Head Clerk. Additionally, the Arbitrator ordered her disciplinary action be expunged from her personnel record.
On December 8, 2014, King Soopers' counsel sent a letter to the Union stating its position that the back-pay award should only run to October 15, 2013, the original date of the arbitration hearing (which was rescheduled by the Arbitrator for personal reasons). The parties also disagree on the calculation of back pay due to Ms. Austin's personal work circumstances and promotions. The Union ...