August 23, 2019

Tenth Circuit: Employees Constituted Management and Therefore Did Not Consent to Arbitration Under the Collective Bargaining Agreement, Which Was Aimed at Non-Management Employees

The Tenth Circuit Court of Appeals published its opinion in Communication Workers of America v. Avaya on Tuesday, September 11, 2012.

In March 2010, Communication Workers of America (CWA) commenced a union organizing drive aimed at Avaya “backbone engineers.” Avaya objected to the drive. A Neutrality Agreement (appended to the parties Collective Bargaining Agreement), governed union organizing efforts aimed at “non-management employees.” Avaya argued its backbone engineers were management, and refused arbitration. CWA filed a complaint in District Court to compel arbitration. After cross-motions for summary judgment, the District Court granted CWA’s motion to compel arbitration. Avaya appealed.

The Tenth Circuit stated the case required reconciliation of two competing principles: (1) courts must evaluate the threshold question of whether the parties consented to arbitration; versus (2) courts making this determination are not to rule on the merits of the underlying claims. The Tenth Circuit concluded that the Court’s duty to determine whether the parties intended the dispute to be arbitrable trumps its duty to avoid reaching the merits.

Without a judicial determination of arbitrability, the scope of the arbitration clause was determined by the pleadings. The Tenth Circuit concluded the record was clear that Avaya employees constituted management. Accordingly the record showed the parties never consented to submit the dispute of the backbone engineers to arbitration. REVERSED and REMANDED.

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