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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT PRUETER, *

 *

PLAINTIFF, *

 * 

vs. * Civil Action No. 1:06cv694-PM 

CDA DETECTIVE & SECURITY *

SERVICES, et al. *

*

DEFENDANTS. * 

MOTION TO DISMISS 

or, in the alternative,

MOTION FOR SUMMARY JUDGMENT

COMES NOW, Everett M. Urech, Attorney for the Defendants, CDA Detective & Security

Services and R. Head, and moves that the court dismiss the case of the Plaintiff or, in the alternative,

grant summary judgment in behalf of the Defendants. The Defendants submit that the Plaintiffs state

law claims are preempted by Section 310 of the Labor Management Relations Act, 29 U.S.C. ß 185

and that the Plaintiff has failed to exhaust his administrative remedies.

FACTS

The state law complaint of the Plaintiff is for ìWrongful Terminationî and ìBreach of

Contractî. Both complaints arise out of a collective bargaining agreement (CBA) concerning

contract security guards at Fort Rucker, Alabama between CDA Detective & Security Services,

known as CDA, Incorporated, and Local 401 of the United Government Security Officers of America

(UGSOA). Mr. Prueter was hired under the collective bargaining agreement and was terminated

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from his employment. His was terminated under Article 6 of the contract for failure to report for

work. Defendant, Ron Head, is employed by CDA, Incorporated as the project manager of the Fort

Rucker, Alabama operation and all of his actions were conducted in the line and scope of his official

duties. Resolution of his case involves application and interpretation of portions of the collective

bargaining agreement between UGSAO Local 410 and CDA, Incorporated. These CBA sections

apply both to the wrongful termination claim and the breach of contract claim.

Article 5 of the CBA Section provides administrative remedies to the Plaintiff concerning his

alleged wrongful termination and breach of contract. The CBA has a grievance procedure to include

arbitration for such cases. It states,

Section 5.1 INTENT

For purposes of this Agreement, a grievance shall mean a claimed violation,

misinterpretation, or misapplication of this Agreement or the challenge of any

disciplinary action taken against a Union employee. ... 

Section 5.4 ARBITRATION PROCEDURE

Grievances processed in accordance with the requirements of Section 5.3 that remain

unsettled may be processed to arbitration by the Union, giving the Employerís

Director Human Resources written notice of its desire to proceed to arbitration not

later than fifteen (15) day after rejection of the grievance in Step 2. Grievances which

have been processed in accordance with the requirement of Section 5.3 which remain

unsettled shall be processed in a accordance with the following procedures and

limitations....

The Plaintiffís case has not gone to arbitration as is provided in Section 5.4 of the CBA.

ARGUMENT

The Plaintiff has failed to exhaust his administrative remedies provided under the grievance

procedure of the collective bargaining agreement. Employees claiming breach of a collective

bargaining agreement or wrongful termination of employment by their employer are bound by that

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agreement's terms providing a method for resolving disputes between them and their employer. Hines

v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976);

Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967). When

employees asserting an arbitrable grievance have not attempted to utilize the dispute resolution

machinery available to them under the agreement, their independent suit against the employer must

be dismissed. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d

580 (1965).

CONCLUSION

The Plaintiffís case should be dismissed, or, in the alternative, summary judgment should be

granted to the Defendants in this case.

Respectfully, submitted this 14th Day of August, 2006.

s/ Everett M. Urech

____________________________________

Everett M. Urech (ASB 6693-E44E)

Attorney for Defendants

Urech & Livaudais, P.C.

Post Office Drawer 70

Daleville, Alabama 36322

(334) 598-4455/fax-598-2076

daleatty@snowhill.com

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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the above and foregoing document, upon counsel

of record in this litigation, according to law, by electronic filing and by placing a copy of same in the

United States Mail, postage prepaid and properly addressed to the party below on this 14th day of

August, 2006. 

Mr. J.E. Sawyer, Jr.

Attorney for the Plaintiff

203 South Edwards Street

Enterprise, AL 36330

jesawyer@adelphia.net

s/ Everett M. Urech

 

Of Counsel

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