United States District Court, D. Nevada
the court is defendant Northeastern Nevada Regional
Hospital's ("NNRH") motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b) (6) (ECF No. 6) .
Plaintiff Service Employees International Union, Local 1107
("Local 1107") responded (ECF No. 8) and NNRH
replied (ECF No. 10).
1107 and NNRH entered into a collective bargaining agreement
("CBA") on February 6, 2013, in which the parties
agreed to resolve grievances pursuant to the grievance
procedures listed in the CBA. On October 28, 2015, Local 1107
filed a grievance alleging that NNRH terminated Karla
Dittrich without just cause.
grievance was processed through the grievance procedure and
NNRH denied the grievance on January 18, 2016. The following
day, on January 19, 2016, Local 1107 demanded arbitration as
required under Step 4 of the grievance procedure. On January
26, 2016, a Local 1107 representative began preparing a
request to the Federal Mediation and Conciliation Service
("FMCS") for the panel of arbitrators, but was
unable to complete the request that day due to difficulty
with the payment processing. The request for the panel of
arbitrators was submitted on January 27, 2016. NNRH
subsequently refused to arbitrate the Dittrich grievance
because the request to the FMCS was not processed timely.
13, 2016, Local 1107 filed a complaint in the Fourth Judicial
District Court, Elko County, Nevada, for declaratory relief
and an order compelling arbitration of the Dittrich dispute.
The complaint requests that the court enter a declaratory
judgment that Local 1107 met the time limit requirement in
the CBA when it "presented" or "appealed"
the grievance in notifying NNRH of its intent to proceed to
arbitration and that its FMCS request is not
"presenting" or "appealing" a grievance.
Alternatively, the complaint requests the court enter a
declaratory judgement that Local 1107 substantially complied
with the time requirements when it attempted to submit its
FMCS request on January 26, 2016. The case was removed on
August 10, 2016, pursuant to federal question jurisdiction.
considering a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b) (6), the court must accept as true
all material allegations in the complaint as well as all
reasonable inferences that may be drawn from such
allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150
(9th Cir. 2000). The allegations of the complaint also must
be construed in the light most favorable to the nonmoving
party. Shwarz v. United States, 234 F.3d 428, 435
(9th Cir. 2000) . The purpose of a motion to dismiss under
Rule 12(b) (6) is to test the legal sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001) . The court can grant the motion only if it is
certain that the plaintiff will not be entitled to relief
under any set of facts that could be proven under the
allegations of the complaint. Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 338 (9th Cir. 1996) .
[A] court may consider evidence on which a complaint
necessarily relies if: (1) the complaint refers to the
document; (2) the document is central to the plaintiff's
claim; and (3) no party questions the authenticity of the
copy attached to the . . . motion." Daniels-Hall v.
Nat'1 Educ. Ass'n., 629 F.3d 992, 998 (9th Cir.
does not dispute that the Dittrich termination grievance
arises under the terms of the CBA. Rather, NNRH argues that
Local 1107 does not have the right to arbitrate the grievance
because the union failed to process the grievance within the
requisite time limits established in the CBA. NNRH recognizes
that procedural issues are presumptively for the arbitrator
to decide. It argues, however, that Article 11.8 removes the
question from the arbitration panel's jurisdiction.
Article 11.8 provides:
Any grievance not presented or appealed within the time
limits and in the manner provided in Section 2 hereof shall
be deemed to have been settled or abandoned, is expressly
excluded from arbitration, and shall not be presented to any
contends that on the basis of this provision the court is
required to consider the timeliness of the Local 1107's
request arbitration. NNRH argues that Local 1107 failed to
comply with the time limits set forth in Step 4 of the
grievance procedure. Step 4 addresses the procedure for
advancing a grievance to arbitration:
If the grievance is not resolved at Step 3, the grievance may
be referred to arbitration upon written request by the Union,
which request must be made in writing to the Employer within
fourteen (14) calendar days after receipt of the
Employer's Step 3 answer. In the event arbitration is
requested, the Union will, within seven (7) calendar days
after notice to the Hospital, submit to the Federal Mediation
and Conciliation Service (FMCS) a completed form R-43 with a
copy to the Employer, ...