                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                              No. 11-1481
                             ____________

                       REGINALD A. ROBERTS,

                                     Appellant

                                    v.

           RISA VETRI FERMAN; MONTGOMERY COUNTY;
     JAMES MATTHEWS; JOSEPH HOEFFEL; BRUCE L. CASTOR, JR.;
      OSCAR P. VANCE, JR.; SAMUEL GALLEN; STEPHEN FORZATO;
   EDMUND JUSTICE; CAROLYN T. CARLUCCIO; MARK BERNSTIEL;
TONI LUTER, SUED INDIVIDUALLY HELD LIABLE JOINT AND SEVERALLY
                             ____________

              On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                  (D.C. Civil Action No. 2-09-cv-04895)
             Magistrate Judge: Honorable Luis Felipe Restrepo
                               ____________

             Submitted Pursuant to Third Circuit LAR 34.1(a)
                          September 19, 2011

    Before: FISHER, HARDIMAN and GREENAWAY, Jr., Circuit Judges.

                       (Filed: September 26, 2011)
                              ____________

                       OPINION OF THE COURT
                            ____________
FISHER, Circuit Judge.

       Reginald Roberts‟s motion for a preliminary injunction to order Montgomery

County to participate in arbitration was denied by the District Court. Roberts now

appeals, arguing the District Court erred in holding that the Collective Bargaining

Agreement and 43 P.S. § 217 do not entitle him to arbitration. For the following reasons,

we will affirm the District Court.

                                                  I.

       We write primarily for the parties who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On March 15, 1999, Roberts began employment as a Montgomery County

Detective. As a County Detective, Roberts was part of a Collective Bargaining

Agreement (“Agreement”) between Montgomery County and the Montgomery County

Detective Bureau. The Agreement included a “Grievance and Arbitration Procedure,”

which outlined a two-step process to be applied to disputes concerning the application or

interpretation of the Agreement and matters of discipline. Step one of the procedure

directed employees to contact the department head concerning their grievance. If a

resolution was not reached in step one, step two allowed the employee to appeal the

grievance to the row officer (District Attorney of Montgomery County) for consideration.




                                              2
       On August 8, 2008, Roberts was terminated from his position with the

Montgomery County Detective Bureau. Rather than follow the two-step procedure

outlined in the Agreement, Roberts contacted the County in October 2008, requesting

arbitration concerning his termination. On November 17, 2008, the County declined the

request to participate in arbitration.

       Roberts filed this action against Montgomery County in October 2009, alleging

employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act,

42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et

seq. Roberts also alleged violations of his federal civil rights pursuant to 42 U.S.C.

§ 1983. Approximately one year after filing suit, Roberts filed his Fed. R. Civ. P. 65

Petition, calling for injunctive relief to order the County to participate in arbitration. He

sought to compel the County to engage in arbitration over the interpretation of the

Agreement, denial of heart and lung benefits, the proper value or amount of benefits due

Roberts, and his termination. A Magistrate Judge for United States District Court for the

Eastern District of Pennsylvania1 held that Roberts failed to show he was entitled to

arbitration under the Agreement or 43 P.S. § 217, and the preliminary injunction was

denied. Roberts filed a timely notice of appeal from the decision.




       1
        The parties consented to the United States magistrate judge‟s authority pursuant
to 28 U.S.C.A. § 636(c) and Fed. R. Civ. P. 73.


                                              3
                                              II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

pursuant to 28 U.S.C. § 1292(a).2 We review the District Court‟s conclusions of law

under a plenary standard, findings of fact for clear error, and the decision to grant or deny

a preliminary injunction for abuse of discretion. Rogers v. Corbett, 468 F.3d 188, 192

(3d Cir. 2006).

                                              III.

       Roberts argues that the District Court‟s denial of a preliminary injunction was in

error. In seeking a preliminary injunction to compel arbitration, the party must

demonstrate:

       (1) it has a likelihood of success on the merits, (2) it will suffer irreparable
       harm if the injunction is denied, (3) granting preliminary relief will not
       result in even greater harm to the nonmoving party, and (4) the public
       interest favors such relief.

Rogers, 468 F.3d at 192 (internal quotation marks omitted). All four elements must be

satisfied in order to grant the injunction. Maldonado v. Houstoun, 157 F.3d 179, 184 (3d

       2
        The County claims this Court lacks jurisdiction under 28 U.S.C. §1292(a) due to
the Supreme Court‟s decision in Carson v. Am. Brands, Inc., 450 U.S. 79 (1981). In
Carson, the Supreme Court held, “[f]or an interlocutory order to be immediately
appealable under §1292(a)(1) . . . a litigant must show more than that the order has the
practical effect of refusing an injunction,” by satisfying a two prong test. Id at 84. This
case is distinguishable however; it involves an express denial of injunctive relief rather
than merely the practical effect of a denial. Thus Roberts need not satisfy the Carson test
in order to have jurisdiction under §1292(a). See OFC Comm Baseball v. Markell, 579
F.3d 293, 298 (3d Cir. 2009) (finding the appellant need not satisfy any jurisdictional
hurdle to appeal from the denial of an injunction).


                                               4
Cir. 1998). The District Court concluded that a preliminary injunction was not warranted

because Roberts could not demonstrate a likelihood of success on the merits. We agree.

       To demonstrate a likelihood of success on the merits, Roberts must show that 43

P.S. § 217 and/or the Collective Bargaining Agreement allows for arbitration of Roberts‟

grievance. Turning first to the language of the statute, while 43 P.S. § 217 clearly allows

for interest arbitration, courts have also found grievance arbitration to fall within its

scope. See Moon Twp. v. Police Officers of Moon Twp., 498 A.2d 1305, 1311-12 (Pa.

1985); Chirico v. Bd. of Supervisors for Newton Twp., 470 A.2d 470, 474 (Pa. 1983).

However, if the Collective Bargaining Agreement has in place a grievance mechanism

that is devoid of arbitration, arbitration will not be imposed by 43 P.S. § 217. W.

Lampeter Twp. v. Police Officers of W. Lampeter Twp., 598 A.2d 1049, 1051 (Pa

Commw. Ct. 1991).

       The pertinent sections of the Agreement between Montgomery County and its

detectives read:

       18. Grievance and Arbitration Procedure

       (a) A grievance shall be defined as any dispute involving the application or
       interpretation of the Agreement or in matters of discipline….

       GRIEVANCE PROCEDURE

       STEP #1
       A. Department Head: If the employee and his/her immediate supervisor
          cannot resolve a grievance informally, the employee shall send a written
          statement (E-mail is not acceptable nor proper) of his/her grievance to
          the Department Head within fifteen (15) calendar days of when the

                                               5
          employee becomes aware of the grievance. The Department Head
          receiving the written grievance shall meet with the employee and their
          representative if so desired, within ten (10) days, and other appropriate
          persons in a good faith effort to resolve this grievance. The Department
          Head shall give the employee a written decision within ten (10) calendar
          days following the meeting.
       STEP #2
       A. Row Officer: (District Attorney of Montgomery County) In the event
          that no satisfactory solution is reached at the first step, the employee
          may appeal the grievance to the District Attorney or his/her designee.
          Such an appeal must be made within ten (10) calendar days after the
          rendering of the decision as a result of the first step or after the decision
          at the first step should have been made. The employee shall make a
          written statement of his/her grievance and why the decision, if one is
          rendered, is wrong, and if no decision is rendered, what the employee
          feels the decision should be. The Row Officer or his/her designee will
          convene a fact finding meeting of the involved parties within fifteen
          (15) days of receiving and written grievance. The Row Officer or
          his/her designee shall then render a decision within sixty (60) calendar
          days, unless extended by mutual agreement for no more than thirty (30)
          days.
       B. This is the final step of the grievance procedure and there will be no
          further remedy once the decision is handed down by the Row Officer or
          his/her designee.

       Entire Agreement. The Memorandum of Understanding, together with all
       other County personnel publications, unless specifically contrary to the
       Arbitration Award of July 5, 1994 or the Supplemental Award of April 18,
       1995, shall constitute the entire Agreement between the parties and there
       are no verbal understandings, conditions, or stipulations aside from the
       terms set forth herein and in any said publications which are relevant to this
       Agreement.

       Roberts claims that the Agreement allows for arbitration because both the title to

section 18 and the reference to an “Arbitration Award” imply such. Furthermore,

Roberts argues that the District Court failed to demonstrate with “positive assurance that

the arbitration clause is not susceptible of an interpretation that covers the asserted

                                              6
dispute.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986).

We disagree.

       We recognize the strong federal policy of using arbitration to resolve labor

disputes. See, e.g., Rite Aid of Pa., Inc. v. United Food & Commercial Workers Union,

Local 1776, 595 F.3d 128, 131 (3d Cir. 2010); United Parcel Serv., Inc. v. Int’l Bhd. of

Teamsters, Local Union No. 430, 55 F.3d 138, 141 (3d Cir. 1995). However, “a party

cannot be required to submit to arbitration unless he has „agreed to submit.‟” In re Cont’l

Airlines, Inc., 484 F.3d 173, 182 (3d Cir. 2007) (quoting AT&T Techs., 475 U.S. at 648).

       Here, despite the Agreement‟s title to section 18 and mention of an Arbitration

Award, the grievance procedure does not allow for arbitration. Rather, “the Agreement

clearly provides for a two-step grievance procedure [and] . . . [h]aving freely bargained

for the grievance procedure, the parties are bound by it.” W. Lampeter Twp., 598 A.2d at

1051. Furthermore, the Agreement is clear that the document, including the grievance

procedure, represents the parties‟ entire agreement. As the Agreement contains a

grievance procedure that does not include arbitration, 43 P.S. § 217 does not provide

Roberts with a right to arbitration. Id.

       Because the first element needed for a preliminary injunction is not satisfied,

Roberts‟ request must be denied. Moreover, the District Court properly exercised its

discretion in declining to hold an evidentiary hearing because the language of the




                                             7
Agreement is not disputed and its meaning is clear. See Kos Pharmaceuticals, Inc. v.

Andrx Corp., 369 F.3d 700, 719 (3d. Cir. 2004).

                                               IV.

      For the foregoing reasons, we will affirm the judgment of the District Court.




                                           8
