The opinion of the court was delivered by: Reagan, District Judge:
Before the Court is the Motion to Dismiss and/or Compel Arbitration and Stay Proceedings (Doc. 4) filed by Defendant Holten Meat, Inc. ("Holten"). Plaintiff Justin Cardine's ("Cardine") response was due by June 1, 2010. To date, Cardine has not responded directly to the motion. Thus, pursuant to Local Rule 7.1(c), the Court considers his failure to respond as an admission of the merits of Holten's motion (Doc. 4).*fn1 Even if Cardine had responded, however, Holten would be entitled to dismissal for lack of subject matter jurisdiction pursuant to FEDERAL
RULE OF CIVIL PROCEDURE 12(b)(1), because the Collective Bargaining Agreement ("CBA") governing Cardine's employment explicitly requires his claims first be referred to arbitration.
When deciding a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), a court must accept as true the factual allegations made in the complaint and construe all reasonable inferences in favor of the plaintiff.*fn2 Rueth v. United States Env.
Protection Agency, 13 F.3d 227, 229 (7th Cir. 1993). However, in determining whether subject matter jurisdiction exists, a court "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue." Ezekiel v. Michel, 66
F.3d 894, 897 (7th Cir. 1995) (citations omitted). Here, the resolution of Holten's motion, and the proper disposition of Cardine's claims, turns on the express terms of the CBA between Cardine's union (United Food & Commercial Workers Local #655) and Holten (see the CBA, submitted by Holten, at Doc. 4, Ex. 1), which the Court has thoroughly reviewed.*fn3
When provisions in a CBA "clearly and unmistakably" require union members to arbitrate both statutory and contractual discrimination claims, they are binding and enforceable.
14 Penn Plaza LLC v. Pyett, - U.S. -, 129 S.Ct. 1456, 1474 (2009); see also Jonites v. Exelon Corp., 522 F.3d 721, 725 (7th Cir. 2008) (noting that a waiver of statutory rights must be "explicit"). The CBA between Cardine and his union states:
Should any differences, disputes including safety disputes, or complaints arise over the interpretation or application of the contents of this Agreement including claims of discrimination by any employee against the Employer relating to sex, race, religion, age, national origin, handicap, union activity, the family medical leave act and alleged retaliation relating to any workers' compensation act, there shall be an earnest effort on the part of both parties to settle such promptly through the following steps: . Step 4. In the event that the last step fails to settle satisfactorily the complaint, it shall be referred to arbitration.
Doc. 4, Ex. 1, ¶ 5.1 (emphasis added). Further, Article 17 of the CBA provides: "The Employer and the Union agree not to discriminate against any employee for reasons of sex, race, religion, age, national origin, handicap, union activity. This Section is subject to the grievance and arbitration procedure" (Doc. 4, Ex. 1, ¶ 17.1). The Court finds these terms to "clearly and unmistakably" require union members with discrimination claims, such as Cardine, to step through all of the grievance procedures, the last of which is arbitration
In his one-page, hand--written pro se complaint, Cardine alleges that he was retaliated against for filing an EEOC complaint, and subjected to profanity and "sexual remarks" (Doc. 2-2). Cardine then asserts, "[w]e tried mediation, but the company refused to mediate with me," and that later, "we tried to conciliate the matter but the company refused to conciliate" (Id.). While these statements are rather convoluted, nowhere does Cardine allege that he submitted his grievances to arbitration. As a result, he has failed to follow the express terms of the CBA, to which he is a party; specifically, the terms explicitly calling for all unresolved complaints to be referred to arbitration (see Doc. 4, Ex. 1, ¶¶ 5.1, 17.1). And these explicit terms create a binding agreement to arbitrate, which will be enforced by this Court. Pyett, 129 S.Ct. at 1474 (2009).
This finding is in line with the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., which the Seventh Circuit Court of Appeals has found to be "a congressional declaration of a liberal federal policy favoring arbitration agreements." Duthie v. Matria Healthcare, Inc., 540 F.3d 533, 536 (7th Cir. 2008) (citation and internal quotation omitted). Admittedly, "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit." Id., quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002). However, "[a]s in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a [CBA] in return for other concessions from the employer, and courts generally may not interfere in this bargained-for exchange."*fn4 Pyett, 129 S.Ct. at 1464. And, once again, under Pyett, an arbitration provision that "clearly and unmistakably requires union members to arbitrate [statutory] claims is enforceable as a matter of federal law."*fn5 Id. at 1474.
Here, Cardine's union agreed to the inclusion of an arbitration provision. Further, the explicit terms of the controlling CBA require that all unresolved complaints, including claims of discrimination, shall be referred to arbitration. These clear and unmistakable terms are enforceable, and preclude a federal lawsuit to enforce such statutory claims without first submitting them to arbitration.
Because all of Cardine's claims are subject to arbitration, this Court lacks subject matter jurisdiction. Accordingly, Holten is entitled to dismissal of this case without prejudice. However, within 30 days of the final arbitration decision, Cardine may seek judicial review of that decision by this Court by filing a new civil action in this Court. Moreover, if Holten fails to engage in arbitration in good faith, pursuant to the terms of the CBA, or if for some reason the door to arbitrate Cardine's claims is already closed, Cardine may attempt to refile any remaining ...