By Tim Ryan

Law360 (March 9, 2021, 3:17 PM EST ) UPS has asked a Kentucky federal judge to toss a proposed class action a Teamsters local filed accusing the company of rampant health and safety failings that leave union members vulnerable to exposure to COVID-19, arguing the claims belong before regulators, not a judge.

In a motion to dismiss filed Monday, United Parcel Service said the court does not have jurisdiction to decide a lawsuit filed by Teamsters Local 2727 President Tim Boyle. The suit accuses the company of maintaining "squalid conditions" at a Louisville facility that threaten the health of union members amid the pandemic.

The delivery company argued the court should allow workplace safety regulators such as the Kentucky Division of Occupational Safety and Health Compliance to resolve the union's complaints, as they are better positioned than courts to respond to changing science and conditions.

"Appropriate, and legally mandated, deference enables the agencies to account for both workplace safety and the critical importance of delivering essential goods to millions of doorsteps throughout Kentucky and the nation, including the critical supply of COVID-19 vaccines," UPS argued.

In addition, the company said, the complaint is preempted by federal labor law because it raises issues of workplace safety and cleanliness that the two sides already negotiated and formalized in their collective bargaining agreement.

Boyle initially filed the lawsuit in Kentucky state court last month, and UPS quickly removed the dispute to federal court. Boyle alleged UPS was neglecting its duty to keep its workers safe by not providing hand sanitizer, sufficiently cleaning bathrooms and other locations in the facility or conducting adequate contact tracing. 

The complaint featured pictures of overflowing trash cans and dirty bathroom walls and floors at the facility and specifically alleged the company did not immediately notify a worker who spent the day next to a co-worker who had tested positive for the virus. 

UPS has also refused to act on union members' complaints about the conditions or take steps to improve its cleaning process or communication with workers about possible exposure, Boyle argued, putting the workers at greater risk of contracting COVID-19. 

In addition to the federal lawsuit, the union is also pursuing complaints with the Division of Occupational Safety and Health Compliance, which is referred to as KY OSHA, and under the CBA. In December, KY OSHA issued a citation finding UPS did not adequately protect its workers from exposure to COVID-19, issuing findings similar to the allegations in the complaint. The company is currently contesting the citation, according to UPS' memorandum in support of its motion to dismiss.  

In seeking to boot the complaint from court, UPS said the 2010 Sixth Circuit decision Charvat v. Echostar Satellite LLC requires courts to let administrative agencies resolve disputes when doing so would allow for uniform regulation, and when the issue falls within the agency's discretion and would benefit from the agency's expertise.

Given the "constantly evolving" nature of the pandemic and concerns about a patchwork of workplace safety standards across different jurisdictions, UPS argued the court should leave the dispute in the expert hands of the KY OSHA.

Separately, UPS argued the dispute cannot play out in court because it requires interpretation of existing language in the CBA, which includes a specific health and safety provision. As a result, the company said, the dispute belongs in arbitration under the Railway Labor Act.

Beyond those concerns, UPS said Boyle had not shown that workers at the Louisville facility face any greater risk of contracting COVID-19 than other workers or even the general public. Similarly, UPS said Boyle had not been able to connect the harms he says union members have experienced to any action from the company.

In an interview Tuesday, Boyle said workers had long raised concerns about the conditions at the Louisville facility, which have been exacerbated by the ongoing pandemic. He said UPS had not been responsive to those complaints, which led to the lawsuit and other charges against the company.

"Bottom line is they preach safety, but they don't really care. They want you to work," Boyle told Law360.

Counsel for neither Boyle nor UPS immediately responded to requests for comment. UPS did not immediately respond to a request for comment.

Boyle is represented by David Suetholz and Peter Jannace of Branstetter Stranch & Jennings PLLC.

UPS is represented by Meredith Kingsley, Charles Morgan and Nicholas Chandler of Alston & Bird LLP and Tony Coleman of Dinsmore & Shohl LLP.

The case is Boyle v. United Parcel Service Co. (Air), case number 3:21-cv-00135, in the U.S. District Court for the Western District of Kentucky.

--Additional reporting by Melissa Angell. Editing by Vincent Sherry. 

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