Suncor Energy (U.S.A.), Inc. v. United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union , 474 F. App'x 729 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 29, 2012
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SUNCOR ENERGY (U.S.A.), INC.,
Plaintiff-Appellant,
v. No. 11-1344
(D.C. No. 1:11-CV-00375-RPM)
UNITED STEEL, PAPER AND (D. Colo.)
FORESTRY, RUBBER,
MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND
SERVICE WORKERS
INTERNATIONAL UNION,
AFL-CIO, CLC; USW LOCAL
UNION 12-477,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Suncor Energy (USA), Inc. (Suncor) appeals the district court’s denial of
its summary judgment motion and grant of the summary judgment motion filed by
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CCIO, CLC, and USW
Local Union 12-477 (the Union). Suncor sought a declaratory judgment that a
grievance filed by a Suncor employee was not subject to arbitration. The Union
filed a cross-complaint requesting the court find that the grievance was subject to
arbitration. Both parties filed summary judgment motions on the undisputed
facts. The district court granted the Union’s motion, finding that the underlying
dispute in the grievance involved questions of contract interpretation and that the
parties had agreed to arbitrate questions of contract interpretation. We affirm.
Background
Suncor employee Jeffrey Packer applied for a “special assignment” position
which required his supervisor’s permission. His supervisor denied permission on
the basis that Parker was the only reliability technician responsible for Suncor’s
fire water safety system at the time because the employee who could provide
backup help was on leave. When his application was denied, Parker filed a
grievance (the Grievance) claiming the denial was in violation of an
anti-discrimination provision in the governing collective bargaining agreement
(the CBA).
The CBA provides for a multi-step grievance procedure. The Union is
Parker’s exclusive bargaining representative. The CBA states that if the Union is
dissatisfied with Suncor’s response at the final step of a grievance procedure, it
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shall notify Suncor of its desire to submit the matter to arbitration. The Union
did so with Parker’s Grievance. In response, Suncor denied the request and filed
suit in district court seeking a declaratory judgment that the Grievance was not
arbitrable. The Union counterclaimed to compel arbitration. Both parties later
filed motions for summary judgment.
Three provisions of the CBA are relevant here. First, Article XXIII (the
Management Rights Clause), relied upon by Suncor in its complaint for
declaratory judgment. This provision states that certain management decisions
are not arbitrable:
The responsibilities of [Suncor] include, but are not limited to, the
right to manage, direct, supervise its plant and businesses including
. . . its right . . . to define, change, and modify work assignments and
classifications; . . . to transfer, promote, or demote employees . . .
and to require employees to observe reasonable rules and regulations
for the safe and efficient operation of the plant.
The exercise of the responsibilities of the Company may be grieved,
but shall not be subject to arbitration or mediation provided that the
exercise of such rights, are not in violation of the express terms of
this Agreement.
Aplt. App. at 144 (emphasis added).
Second, Article XXV (the Anti-Discrimination Provision), cited by Parker
in his Grievance, which states:
There shall be no discrimination of any kind against any employee by
any supervisor, manager, or other person in the employ of [Suncor]
or by the Union . . . .
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The Company and the Union agree to follow a policy of
non-discrimination on the basis of race, color, religion, national
origin, age, sex, handicap, marital status, and the Vietnam Veteran
Readjustment Act.
Id. at 145 (emphasis added).
And third, Section 4 of Article V (the Arbitration Provision), which states:
The only grievances which shall be arbitrable shall be those meeting
the following conditions:
a. Grievances arising between the Union and [Suncor] relating only
to the interpretation or performance of this Agreement which cannot
be adjusted by mutual agreement.
b. The grievance specifically designates the express provision or
provisions of this Agreement alleged to have been violated, and the
manner in which it or they have been violated.
Id. at 117 (emphasis added).
Parker asserted in his Grievance that denying him the assignment
discriminated against reliability technicians because they rarely have backup help.
He claimed this violates the Anti-Discrimination Provision prohibiting
discrimination of “any kind.” Suncor disagreed with this interpretation of the
Anti-Discrimination Provision. It asserted that the assignment denial did not
violate an “express” term of the CBA, a condition of arbitrability in the
Management Rights Clause, and that the Grievance did not designate an “express
provision,” a condition of arbitrability in the Anti-Discrimination Provision.
Suncor argued that the only “express” terms in the Anti-Discrimination Provision
are to race, color, religion, national origin, age, sex, handicap, marital status, or
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status under the Vietnam Veteran’s Readjustment Act. Because Parker never
asserted discrimination on those grounds, Suncor argued that the
assignment-denial was a non-arbitrable exercise of its right under the
Management Rights Provision to “modify work assignments.”
The district court ruled that the parties’ dispute as to the meaning of the
Anti-Discrimination Provision presented “questions of interpretation of the CBA
subject to arbitration under [the Arbitration Provision].” Dist. Ct. Order at 3,
Doc. 25, No. 1:11-cv-00375-RPM (D. Colo. Jul. 12, 2011) (unpublished) (the
Order). It further ruled that the question of whether the Grievance sufficiently
designated an “express” term or provision under the CBA was also a matter of
contract interpretation subject to arbitration.
Analysis
Suncor raises two issues on appeal. First, it contends that the district court
erred in concluding that the substantive issue of arbitrability was to be decided by
an arbitrator, not the district court. It cites to the well-established rule that “the
question of arbitrability–whether a collective-bargaining agreement creates a duty
for the parties to arbitrate the particular grievance–is undeniably an issue for
judicial determination[ u]nless the parties clearly and unmistakably provide
otherwise.” AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 649 (1986).
Second, it requests this court order the district court to enter judgment in its favor
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and declare that the Grievance is not arbitrable under the Management Rights
Clause.
Both parties agree that the CBA does not clearly and unmistakably delegate
the gateway question of arbitrability to an arbitrator. Aplt. App. at 30, 101.
Suncor’s argument on appeal is that the district court should have resolved that
issue by also resolving the underlying substantive arbibrabilty issue within the
merits of the Grievance. Suncor’s argument fails to differentiate between the
gateway issue of arbitrability, which is subject to judicial determination, and the
underlying substantive issue of arbitrabilty within the merits of the Grievance
dispute, which the district court correctly left for the arbitrator to decide.
This is precisely the confusion the Supreme Court cautioned against in
AT&T. There, the Court held that it was the court’s duty to interpret the
collective bargaining agreement to determine whether the parties intended to
arbitrate the type of grievance at issue, but for the arbitrator to determine the
relative merits of the parties’ substantive interpretation of the agreement. Id. at
651. As AT&T makes clear, arbitrabilty does not depend upon the merits of the
parties’ dispute, even when that underlying dispute also involves a contractual
issue of arbitrability. “[T]he judicial inquiry required to determine arbitrability is
much simpler”; and is “‘strictly confined’ to whether the parties agreed to submit
disputes over the meaning of [a collective bargaining provision] to arbitration.”
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Id. at 654 (J. Brennan concurring) (citing United Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582 (1960)).
Here, the district court did just what the AT&T decision directed it to do: it
decided the gateway issue of arbitrability. It ruled that the dispute in the
Grievance was “subject to arbitration” under the Arbitration Provision, in which
the parties agreed to arbitrate grievances relating to the interpretation of the CBA,
because the merits of the Grievance centered on the meanings and interpretation
of the Anti-Discrimination Provision and the “express provision” requirement.
Order at 3.
Both Suncor and the Union agree that the heart of the Grievance turns on
questions of how to interpret the contractual terms of the CBA. See Aplt. Br. at
17 and Aplee. Br. at 15. That substantive arbitrability issue depends on whether
denying assignments to employees who lack backup help is discrimination “of any
kind” under an “express” term or provision” of CBA. In accordance with the
terms of the Arbitration Provision, the district court held that the CBA obligates
Suncor to arbitrate those particular contract interpretation issues. See Order at 3.
The district court ruled that “[t]he Clerk shall enter judgment declaring that the
arbitrability of the Parker [G]rievance is to be determined by the arbitrator and
compelling [Suncor] to proceed with arbitration under the procedures of the
CBA.” Id. at 4. It is clear from the second half of that sentence that the district
court fulfilled its duty to make a judicial determination as to the gateway
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procedural issue of arbitrability, ruling in favor of arbitration, and having so
ruled, appropriately left the second, substantive arbitrability issue for the
arbitrator to decide. In making that “strictly confined” determination, the court
was not required “even to consider which party is correct with respect to the
meaning” of the underlying disputed provisions, even when that too involves
arbitrability issues. See AT&T, 475 U.S. at 654-55 (J. Brennan, concurring).
Finding no error, we affirm the district court’s ruling that the contractual
interpretation issue in the Grievance is subject to arbitration under the CBA’s
Arbitration Provision. Suncor’s request that this court order the district court to
declare that the Grievance is not arbitrable is, therefore, denied as moot.
The judgment of the district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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