District Lodge 4 International Association of Machinists v. Dyncorp International Llc, a Delaware corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1023
DISTRICT LODGE 4 INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, an unincorporated labor
organization; LOCAL LODGE 24 INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, an unincorporated labor
organization,
Plaintiffs - Appellees,
v.
DYNCORP INTERNATIONAL LLC, a Delaware corporation,
Defendant - Appellant.
No. 16-1041
DISTRICT LODGE 4 INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, an unincorporated labor
organization; LOCAL LODGE 24 INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, an unincorporated labor
organization,
Plaintiffs - Appellants,
v.
DYNCORP INTERNATIONAL LLC, a Delaware corporation,
Defendant - Appellee.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:14-cv-03987-JFM)

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Argued: May 10, 2016 Decided: May 31, 2016
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: J. Michael McGuire, SHAWE & ROSENTHAL LLP, Baltimore,
Maryland, for Appellant/Cross-Appellee. Andrew Dean Roth,
BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for
Appellees/Cross-Appellants. ON BRIEF: Elizabeth Torphy-
Donzella, SHAWE & ROSENTHAL LLP, Baltimore, Maryland, for
Appellant/Cross-Appellee. Devki K. Virk, BREDHOFF & KAISER,
P.L.L.C., Washington, D.C., for Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
These cross-appeals arise from a dispute over the proper
interpretation of the terms of a collective bargaining agreement
(CBA) between the parties, Plaintiffs-Appellees/Cross-Appellants
International Association of Machinists and Aerospace Workers,
Local Lodge 24, and International Association of Machinists and
Aerospace Workers, District Lodge 4 (the Unions), and Defendant-
Appellant/Cross-Appellee DynCorp International LLC. When the
Unions sued DynCorp to compel arbitration of a union officer’s
grievance over his termination, the district court ordered
arbitration but denied the Unions’ motion for an award of
attorney’s fees as a sanction for DynCorp’s alleged lack of
justification for its resistance to arbitration.
The cardinal facts are undisputed. DynCorp, a government
military contractor, terminated the employment of Gregg French,
an officer of the local union, after French responded as follows
to an Air Force Contract Officer Technical Representative’s
request for an overdue report: “We will shit you something.”*
According to the Unions, that phrase refers to generating
necessary paperwork. Thereafter, the Air Force Contract Officer
* French does not dispute saying something to this effect,
but he does contend that he made this remark to a fellow DynCorp
employee, not to the Air Force Contract Officer Technical
Representative, as a means of informing his colleague that the
requested paperwork needed to be produced.

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overseeing the contract on which French was working requested
French’s removal from the contract. DynCorp acceded to that
request and terminated French’s employment.
Although the CBA between the parties generally provided for
arbitration of most workplace employment disputes involving
union members, the CBA contained what the parties have referred
to as a “carve out” from the broad arbitration provision. As
relevant here, the “carve out” provision provides as follows:
Section 7 - Security Regulations
(A) The parties to this Agreement hereby recognize
the Company’s obligations in its contracts with the
Government pertaining to security, security
clearances, and access to Government-managed property,
and agree that nothing contained in this Agreement is
intended to place the Company in violation of its
contracts and/or security agreements with the
Government.
(B) In the event that the U.S. Military Service or
other Government Agency duly concerned with security
regulations or operations on Government-managed
property, advises the Company that any employee in the
Union bargaining unit is restricted from access to
Government-managed property, or restricted from work
on or access to classified information and material,
the Union agrees that such action as the Company may
take pursuant to its contractual and/or security
obligations to the Government will not be contested,
nor will such action be a subject of the grievance
procedure contained in Article III of this Agreement.
(C) In the event that such Government Agency
following the taking of such action within one year
advises the Company that such an employee is no longer
restricted from access to Government-managed property
or restricted from work on or access to classified
information and material, the Company shall promptly
reinstate the employee with seniority, to the same job

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classification held at the time such action was taken,
subject to the applicable seniority provisions of the
Agreement, if he/she promptly applies for such
reinstatement within fifteen (15) days.
J.A. 56. DynCorp refused to arbitrate the French grievance,
based essentially on its theory that, because the Air Force
Contract Officer requested French’s removal in accordance with
the government’s rights under Dyncorp’s government-contract,
French’s termination fell within the scope of the Section 7
“carve out.” The Unions argued, to the contrary, that the
“carve out” was limited to adverse employment actions that touch
or concern particularized security issues of importance to the
government and that French’s termination did not fall within
such parameters.
The parties filed cross-motions for summary judgment, and
the district court agreed with the Union’s construction of the
CBA. The court further concluded, however, that DynCorp’s
resistance to arbitration under Section 7 was not so barren of
legally plausible interpretive arguments that the refusal to
arbitrate amounted to bad faith. Cf. United Food & Commercial
Workers, Local 400 v. Marvel Poultry Co., 876 F.2d 346, 351 (4th
Cir. 1989) (observing that, regarding requests for attorney’s
fees, challenges to arbitrability “must be considered
sufficiently ‘justified’ . . . unless there is literally no
reasonably arguable legal support for them”). Accordingly, the

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district court denied the Unions’ request for an award of
attorney’s fees in seeking to compel arbitration.
Having had the benefit of full briefing and oral argument,
and having fully considered the parties’ contentions, we affirm
for the reasons stated by the district court. Int’l Ass’n of
Machinists & Aerospace Workers, Local Lodge 24 v. Dyncorp Int’l
LLC, No. 8:14-cv-03987-JFM, 2015 WL 9302377 (D. Md. Dec. 2,
2015).
AFFIRMED

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