2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2012

United Food Commercial Worke v. Giant Eagle

Markets

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2536

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Recommended Citation

"United Food Commercial Worke v. Giant Eagle Markets" (2012). 2012 Decisions. Paper 601.

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2536

_____________

UNITED FOOD AND COMMERCIAL WORKERS LOCAL 23,

 Appellant

v.

GIANT EAGLE MARKETS COMPANY, a Pennsylvania Corporation

______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2:10-cv-01497)

District Judge: Honorable William L. Standish

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 8, 2012

Before: McKEE, Chief Judge, SCIRICA and AMBRO, Circuit Judges

(Opinion filed: August 3, 2012)

__________

OPINION

__________

McKEE, Chief Judge.

United Food and Commercial Workers Local 23 (“the Union”) appeals the District 

Court’s order granting Giant Eagle Markets Company’s motion to dismiss the Union’s 

complaint in this action filed pursuant to section 301 of the Labor Management Relations 

Act, 29 U.S.C. § 185. For the reasons that follow, we will affirm.
2

I.

Since we write primarily for the parties, who are familiar with the background of 

this case, we discuss the events leading to this appeal only briefly. Giant Eagle operates 

grocery and convenience stores in western Pennsylvania, among other places. Certain 

Giant Eagle employees are represented by the Union. Giant Eagle and the Union are 

signatories to a collective bargaining agreement (“CBA”) that covers certain Giant Eagle 

“Grocery” employees (i.e., employees in Giant Eagle’s Grocery, Bakery, and Produce 

departments). The CBA includes grievance and arbitration procedures, which apply 

when there are “differences or complaints over the interpretation or application of the 

terms of this Agreement.” (App. at 45a.)

In September 2010, the Union filed a grievance, alleging that Giant Eagle had 

violated two parts of the CBA — a subsection of the “Recognition and Jurisdiction” 

provision,

1 and the “Separate Contracts” provision2

 1 This subsection, set forth in Article 2.1A of the CBA, states, in pertinent part, that

— by denying Union representatives 

[t]he Company recognizes the Union as the sole and 

exclusive bargaining agent for Grocery, Bakery and Produce 

Department employees working in the Company’s stores as 

clerks which are operated [or] which may be operated in the 

various counties of Pennsylvania, Ohio and West Virginia as 

defined by the jurisdiction of Local 23 . . . .

(App. at 26a.)

2 The Separate Contracts provision, set forth in Article 28 of the CBA, provides that

[t]he Company agrees that any future store that 
3

access to several recently-acquired non-union grocery stores. Giant Eagle denied the 

grievance and took the position that the matter was not arbitrable under the CBA. In 

response, the Union filed a complaint in the District Court pursuant to § 185, seeking to 

compel Giant Eagle to submit the grievance to arbitration. Shortly thereafter, the Union 

filed another grievance, alleging that Giant Eagle’s refusal to allow Union representatives 

access to its non-union convenience stores violated the CBA’s Separate Contracts 

provision. As before, Giant Eagle took the position that this type of grievance was not 

arbitrable under the CBA. The Union then amended its complaint, seeking to compel 

Giant Eagle to submit both grievances to arbitration.

The District Court granted Giant Eagle’s motion to dismiss the amended 

complaint pursuant to Fed. R. Civ. P. 12(b)(6), based upon its conclusion that the 

grievances at issue were not arbitrable as a matter of law. The Union now appeals.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

over a district court’s decision to grant a motion to dismiss pursuant to Rule 12(b)(6). 

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011).

 

replaces another Corporate store will be opened as Corporate 

and the Company will not use store closing language (Article 

9.23) on the closing store. Any other new stores that open 

will be opened under separate contracts with separate 

seniority. This paragraph does not restrict the Company’s 

right to franchise stores, nor does it limit in any way any of 

the other provisions in Article 9.23.

(App. at 64a.) None of the stores at issue here “replaced” an existing Corporate store.
4

In support of its motion to dismiss, Giant Eagle relied on our decision in Rite Aid 

of Pa., Inc. v. United Food and Commercial Workers Union, Local 1776, 595 F.3d 128 

(3d Cir. 2010), which concerned the same type of grievances at issue here. There we 

concluded that the union’s grievances were not arbitrable under the governing CBA 

because the terms of that CBA were not implicated by those grievances. See id. at 135-

36. We explained: 

In our view, a right of Union access to newly acquired 

stores simply cannot be plausibly derived from the 

recognition clause. The recognition clause merely establishes 

the Union’s position as Rite Aid’s employees’ exclusive 

bargaining agent and defines the range of matters subject to 

bargaining. It does not describe or purport to include 

anything resembling the Union’s claimed right to access 

newly-acquired stores.

 

Id. at 134.

The District Court rejected the Union’s attempts to distinguish Rite Aid, and held 

that this dispute was controlled by the majority opinion in Rite Aid. On appeal, the Union 

again attempts to distinguish its case from Rite Aid. For substantially the reasons 

provided by the District Court, we conclude that this dispute is governed by the holding 

in Rite Aid, and we reject the Union’s attempt to draw a meaningful distinction.3

Accordingly, we will affirm the District Court’s order granting Giant Eagle’s 

motion to dismiss.

 3 To the extent the Union’s briefing on appeal could be viewed as implicitly challenging 

the majority’s analysis in Rite Aid, we note that we are bound by that decision. See

JELD-WEN, Inc. v. Van Brunt (In re Grossman’s Inc.), 607 F.3d 114, 116-17 (3d Cir. 

2010) (en banc).