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Law360 (March 5, 2021, 6:16 PM EST) -- An insulation company violated its collective bargaining agreement with the United Steelworkers by refusing to arbitrate a grievance over the company's decision to prevent a union member from working because it believed he might have COVID-19, the union alleged in a lawsuit filed in Texas federal court.
In the suit filed Thursday, USW and its Local 216m asked a Texas federal judge to force Johns Manville Corp. to arbitrate a grievance over a July 2020 incident in which the company told union member Corey Attaway he could not work his shift because he had either tested positive for or had symptoms of COVID-19.
USW said that despite JM's insistence to the contrary, the dispute is within the scope of its collective bargaining agreement with the company and belongs in arbitration under the deal's grievance procedure.
"Defendant JM's refusal to arbitrate the grievance violates the CBA and thwarts the peaceful and orderly procedures for settlement of disputes that the parties contemplated and provided for in the CBA," the union said in the suit.
The union and company have different versions of the July 27 incident underlying the USW suit. The union alleged Attaway was prevented from working his shift "based on an unsubstantiated rumor" that he was experiencing symptoms of COVID-19 or had tested positive for the virus. In the grievance it filed in August, the union accused the company of blocking Attaway from working "based on a he said/she said accusation" and noted he could not get tested for COVID-19 at his doctor because he did not have any symptoms, according to court records.
JM, on the other hand, said Attaway had violated the company's COVID-19 protocols by reporting to work even though he told co-workers he had experienced symptoms. The company alleged he said the same when asked by management and indicated he had been prescribed medication to treat the symptoms, according to court records.
The union filed a grievance shortly after the incident, but JM denied it through all five rounds of the procedure laid out in the CBA. After the final rejection, USW told JM the dispute would proceed to arbitration, but the company insisted the dispute does not belong in arbitration because it concerned an issue outside the scope of the CBA.
In the lawsuit, the union said the grievance is arbitrable because it had imposed a new requirement on Attaway that prevented him from working and behaved "in an arbitrary and capricious manner" in doing so. The union said the company's refusal to arbitrate was in bad faith and "based on a deliberate mischaracterization of the grievance."
The union in particular cited a provision in the contract that prohibits JM from exercising "any of the rights reserved to it in an arbitrary or capricious manner."
In-house counsel for the union declined to comment on the filing.
A spokesperson for JM declined to comment on the lawsuit.
The union is represented in-house by Bruce Fickman and by Joseph Gillespie of Gillespie Sanford LLP.
Counsel information for Johns Manville was not immediately available.
The case is United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al. v. Johns Manville, case number 3:21-cv-00502, in the U.S. District Court for the Northern District of Texas.
--Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
