Int'l Brohd Elec 21 v. IL Bell Tele Co ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2335
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL 21,
Plaintiff-Appellee,
v.
ILLINOIS BELL TELEPHONE COMPANY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 705—George W. Lindberg, Judge.
____________
ARGUED NOVEMBER 8, 2006—DECIDED JULY 2, 2007
____________
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. After Illinois Bell Telephone
Company (“Company”) refused to arbitrate a grievance,
the International Brotherhood of Electrical Workers,
Local 21 (“Union”) filed a motion to compel arbitration in
federal district court. Under the terms of the parties’
collective bargaining agreement (“CBA”), the district court
found the grievance arbitrable and granted the motion. We
affirm.
2 No. 06-2335
I. BACKGROUND
The parties’ CBA has been in effect since June 27, 2004.
In late 2005, the Company informed the Union that it
planned to implement new “consumer performance man-
agement guidelines.” In the past, employees were evalu-
ated on a “work flow” system. Essentially, employees
were required to perform specific tasks in response to
actions taken by the customers with whom they dealt. The
new guidelines would replace the work flow system with
a sales evaluation system, wherein employees would be
evaluated based on actual sales made. If an employee
should fail to meet his sales requirements, he could be
disciplined and eventually fired.
Upon notice of the Company’s plans, the Union filed a
grievance challenging the implementation of the guide-
lines. The parties engaged in a series of discussions
regarding the guidelines, and the Company made some
changes to the program. In the end, however, the parties
could not resolve their dispute. The Union requested that
the grievance be submitted to arbitration, but the Com-
pany refused, asserting that the grievance was not arbitr-
able under the terms of the CBA. The Union then filed
its motion to compel arbitration in federal court pursuant
to the Federal Arbitration Act, 9 U.S.C. § 4.
The arbitration clause, § 13.16 of the CBA, defines what
topics are arbitrable:
The right to invoke arbitration shall extend only to
matters which involve:
(A) The interpretation or application of any of
the terms or provisions of this Agreement, unless
excluded by specific provisions of this Agreement.
(B) The discipline of an employee with six (6) or
more months of Net Credited Service.
No. 06-2335 3
To invoke the arbitration clause, the Union points to
several provisions of the CBA, the interpretation or
application of which may be involved in this dispute. First,
the recognition clause, § 1.01 of the CBA, states: “The
Company recognizes the Union as the exclusive bargain-
ing agent for [the] employees of the Company . . . .”
Second, § 4.01 requires “mutual responsibility and re-
spect” and a fair application of the CBA “in accord with
its intent and meaning and consistent with the Union’s
status as exclusive bargaining representative.” Third, the
CBA includes a “no strike” provision, strictly prohibiting
the Union from striking under any circumstance. None of
the above provisions have been explicitly excluded from
arbitration, and nothing in the CBA specifically pertains
to the implementation of performance guidelines.
II. ANALYSIS
“We review the district court’s ruling to compel arbitra-
tion de novo.” American United Logistics, Inc. v. Catellus
Dev. Corp., 319 F.3d 921, 929 (7th Cir. 2003) (citing Harter
v. Iowa Grain Co., 220 F.3d 544, 549-50 (7th Cir. 2000)).
“[A]rbitration is a matter of contract and a party cannot
be required to submit to arbitration any dispute which
he has not agreed so to submit.” AT&T Techs., Inc. v.
Commc’ns Workers of Am., 475 U.S. 643, 648 (1986)
(quoting United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582 (1960)); Int’l Med.
Group, Inc. v. Am. Arbitration Ass’n, Inc., 312 F.3d 833,
842 (7th Cir. 2002). The arbitrator derives his authority
to resolve the parties’ dispute from their agreement to
allow him to do so. Int’l Med. Group, Inc., 312 F.3d at
842. Unless the parties clearly provide otherwise, the
question of arbitrability is properly decided by a court, not
the arbitrator. Id.
When resolving arbitrability disputes, a court must
bear in mind the liberal federal policy in favor of arbitra-
4 No. 06-2335
tion agreements. James v. McDonald’s Corp., 417 F.3d 672,
676-77 (7th Cir. 2005); see 9 U.S.C. §§ 2, 3. “[W]here the
contract contains an arbitration clause, there is a pre-
sumption of arbitrability in the sense that ‘[a]n order to
arbitrate the particular grievance should not be denied
unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation
that covers the asserted dispute. Doubts should be resolved
in favor of coverage.’ ” AT&T Techs., 475 U.S. at 650(quoting Warrior & Gulf, 363 U.S. at 582-83); see Continen-
tal Cas. Co. v. American Nat. Ins. Co., 417 F.3d 727, 730-
31 (7th Cir. 2005).
When determining whether the parties have agreed to
arbitration, a court must be careful not to consider the
merits of the underlying claim. AT&T Techs., 475 U.S. at
650. If the dispute falls within the scope of the parties’
arbitration agreement, even a seemingly frivolous claim
must be submitted to arbitration. Id.; see Zurich Am.
Ins. Co. v. Watts Indus., Inc., 466 F.3d 577, 581 (7th Cir.
2006). However, the arbitrator’s jurisdiction remains
limited by the terms of the CBA. Am. Postal Workers
Union, AFL-CIO, Milwaukee Local v. Runyon, 185 F.3d
832, 835 (7th Cir. 1999). Thus, under the terms of
§ 13.16(A) of the CBA, an arbitrator’s authority is lim-
ited to resolving disputes that involve the interpretation or
application of a term of the CBA.
The parties have spent much time debating whether
the arbitration clause in the CBA is “broad” or “narrow.”
While the utility of such categorization, without context,
is dubious at best, the clause does appear to be in line
with those that have been considered “broad.” See AT&T
Techs., 475 U.S. at 650 (finding arbitration clause broad
where applied to “differences arising with respect to the
interpretation of this contract or the performance of any
obligation hereunder”); Int’l Union of Operating Eng’rs,
No. 06-2335 5
Local Union 103 v. Indiana Constr. Corp., 13 F.3d 253,
254, 257 (7th Cir. 1994) (finding arbitration clause broad
where applied to “any dispute . . . concerning the inter-
pretation or application of the terms of this contract,” plus
a specific exclusion for jurisdictional disputes); Certified
Grocers of Illinois, Inc. v. Produce, Fresh & Frozen Fruits
& Vegetables, Fish, Butter, Eggs, Cheese, Poultry, Florist,
Nursery, Landscape & Allied Employees, Drivers, Chauf-
feurs, Warehousemen & Helpers Union, Chicago and
Vicinity, Illinois, Local 703, 816 F.2d 329, 329-30 (7th Cir.
1987) (finding arbitration clause broad where applied to
“any difference . . . between the Employer and the Union
concerning any interpretation or application of any of
the provisions of this Agreement”).
In order to determine whether the parties have agreed to
submit this particular dispute to arbitration, we must
turn to the specific language of the arbitration clause.
When interpreting a contract, we look first to the plain
meaning of the provision, and strive to avoid absurd
results. See County of McHenry v. Ins. Co. of the West, 438
F.3d 813, 822 (7th Cir. 2006). On its face, the arbitration
clause in this case applies to any dispute that would
require the adjudicator to interpret or apply any term or
provision of the CBA, so long as another provision of the
CBA does not specifically exclude that topic from arbitra-
tion.
The district court based its finding of arbitrability upon
§ 4.01, the mutual respect and responsibility clause. The
Union has also argued that this dispute involves the
interpretation and application of the recognition clause,
§ 1.01, and thus requires the Company to submit the
dispute to arbitration. We prefer to begin our analysis
with the recognition clause.
An arbitrator could interpret the recognition clause,
which obligates the Company to recognize the Union as the
6 No. 06-2335
employees’ sole bargaining representative, to require
only that the Company refrain from dealing with other
labor organizations. Alternatively, an arbitrator could
interpret the recognition clause to prohibit the Company
from making significant changes in the terms and condi-
tions of employment without the consent of the Union. The
recognition clause is susceptible to any number of inter-
pretations that may impose duties of notice and negotia-
tion upon the Company. The point is that such inter-
pretation is the province of the arbitrator—not of this
court. So long as the recognition clause is susceptible to
an interpretation wherein the Company’s actions have
breached its duties, and the recognition clause is encom-
passed by the arbitration provision, we must compel
arbitration. See AT&T Techs., 475 U.S. at 650 (citing
Warrior & Gulf, 363 U.S. at 582-83).
The Company has argued that the recognition clause
cannot support arbitrability, and points to this court’s 1963
opinion in Indep. Petroleum Workers of Am., Inc. v. Ameri-
can Oil Co., in support. 324 F.2d 903 (7th Cir. 1963), aff ’d
mem. by an equally divided Court, 379 U.S. 130 (1964).
Independent Petroleum Workers involved a labor dispute
that arose when a company subcontracted work that was
formerly performed by union workers. Id. at 904. The
Union attempted to support arbitrability with the recogni-
tion clause, where the arbitration clause provided for
mandatory arbitration of “[q]uestions directly involving or
arising from applications, interpretations or alleged
violations of the terms of this agreement.” Id. at 905.
In response to the union’s argument in Indep. Petroleum
Workers, this court stated: “This position, if accepted,
means that either party by alleging a refusal of the other
to bargain with respect to any conceivable issue or con-
troversy would become subject to arbitration. Plaintiff ’s
position is devoid of logic.” Id. at 906-07. The circum-
No. 06-2335 7
stances of the Indep. Petroleum Workers case, however,
were very different than the case at hand. First, the union
in that case “for many years had sought the inclusion of
a clause in the collective bargaining agreement specifi-
cally prohibiting or limiting” the right at issue. Id. at
907. Thus, the issue of subcontracting had already been
negotiated during the regular course of labor-management
bargaining. This court found that point both relevant
and significant. Id.Second, the CBA in Indep. Petroleum Workers con-
tained a rather unique provision which suspended the no-
strike clause when the company refused to arbitrate a
grievance. Id. at 905. Arbitration provisions are generally
considered reciprocity for no-strike provisions. Int’l Bhd. of
Teamsters, Chauffeurs, Warehousemen and Helpers of Am.,
Local Union No. 371 v. Logistics Support Group, 999 F.2d
227, 230-31 (7th Cir. 1993). A recognition clause very well
might take on a different meaning in a CBA that contains
a strict no-strike provision, because a refusal of the
company to arbitrate would otherwise leave the union
without options. If the Company can unilaterally change
the conditions of employment, refuse to arbitrate, and
still prohibit the Union from striking, then the purposes
of the recognition clause and the Union itself are signifi-
cantly undermined. This makes the case before us readily
distinguishable from Indep. Petroleum Workers.
Finally, our decision in Indep. Petroleum Workers was
not based solely on the merits. We also held that, because
the union had already attempted to compel arbitration of
the same issue in a previous suit, collateral estoppel
precluded relitigation of the issue. 324 F.2d at 909. Thus,
a determination on the merits was not essential to the
disposition of the case.
Indep. Petroleum Workers predates the Supreme Court’s
opinion in AT&T Techs., which reaffirmed the strong
8 No. 06-2335
presumption in favor of arbitration set forth in the
Steelworkers Trilogy. 475 U.S. 643 (1986); see United
Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564(1960); United Steelworkers of Am. v. Warrior & Gulf
Navigation Co. 363 U.S. 574 (1960); United Steelworkers of
Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
Supreme Court precedent constrains a broad reading of
Indep. Petroleum Workers, which centered around parties
with a unique bargaining history and CBA. See Mobil Oil
Corp. v. Local 8-766, Oil, Chemical & Atomic Workers Int’l
Union, 600 F.2d 322, 328-29 (1st Cir. 1979) (“The court’s
reasoning on the first issue, even if treated as more than
dicta to its collateral estoppel holding, is not pertinent to
this case. The arbitration clause in the instant dispute
does not involve a voluntary arbitration provision . . . .”);
Humble Oil & Refining Co. v. Indep. Indus. Workers’
Union, 337 F.2d 321, 324 (5th Cir. 1964). Indeed, a number
of our sister circuits have found that allegations that a
CBA’s recognition clause has been violated can validly
support arbitrability. E.g. Oil, Chemical & Atomic Workers
Int’l Union v. Phillips 66 Co., 976 F.2d 277, 278-79 (5th
Cir. 1992); E.M. Diagnostic Sys., Inc. v. Local 169, Int’l
Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers
of Am., 812 F.2d 91, 96 (3d Cir. 1987); Local 1912, Int’l
Ass’n of Machinists v. United States Potash Co., 270 F.2d
496, 499 (10th Cir. 1959).
While an equally divided Supreme Court affirmed Indep.
Petroleum Workers without discussion, the Supreme Court
has instructed that “summary affirmances have consider-
ably less precedential value than an opinion on the mer-
its,” and such value “can extend no farther than the
precise issues presented and necessarily decided by
those actions.” Illinois State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 180, 182 (1979); see also
Boggs v. Boggs, 520 U.S. 833, 849 (1997); Washington v.
Confederated Bands and Tribes of Yakima Indian Nation,
No. 06-2335 9
439 U.S. 463, 478 n.20 (1979). From the Supreme Court’s
equally divided summary affirmance in Indep. Petroleum
Workers, we can infer no comment on its approval or
disapproval of the use of recognition clauses to support
arbitrability.
Given the significant differences between the CBA and
bargaining history in this case and that in Indep. Petro-
leum Workers, we conclude that Indep. Petroleum Workers
is not controlling in this case. Additionally, the Su-
preme Court’s summary affirmance sheds no light on the
viability of the Union’s arguments because the decision
may very well have rested upon the collateral estoppel
holding.
The Union in this case alleges that the Company’s
actions constitute a breach of the recognition clause of the
CBA, § 1.01. Up until the proposed implementation of the
new performance guidelines, employees were evaluated
based upon the tasks they performed. If they performed
the tasks that the Company told them to at the appropri-
ate times, they received a favorable evaluation and no
discipline resulted. The proposed guidelines would re-
quire the employees to deliver results. If the employees
do not meet their sales quotas, they will be disciplined
and possibly discharged. At the time that the current
CBA was bargained over, the Union had no indication
that such a change was on the horizon. Attempts at
bargaining between the Company and the Union prior to
implementation of the guidelines reached impasse, and
the Union has alleged that this bargaining was not in
good faith. Without the ability to strike or compel arbitra-
tion, the Union has no recourse.
We cannot say with positive assurance that the arbitra-
tion clause is not susceptible of an interpretation wherein
a good faith allegation that the recognition clause of the
CBA has been violated binds the Company to mandatory
10 No. 06-2335
arbitration. See AT&T Techs., 475 U.S. at 650. The parties
could have exempted the recognition clause from arbitra-
tion, but chose not to. The Union has alleged that the
Company did not bargain in good faith prior to implemen-
tation of the guidelines and has submitted employee
statements alleging that unilateral implementation of
the performance guidelines threatens the continued
relationship between the parties. R. 14-4. Given the
presumption in favor of arbitrability, the Union has met its
burden. We hold that the recognition clause is an adequate
basis for arbitration in this case, and therefore need not
address the Union’s other arguments.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
SYKES, Circuit Judge, dissenting. I respectfully dissent.
The presence of an arbitration clause in a contract creates
a presumption in favor of arbitration, but this means
only that doubts about whether a particular dispute is
covered are resolved in favor of coverage; “arbitration is a
matter of contract and a party cannot be required to
submit to arbitration any dispute which he has not agreed
so to submit.” United Steelworkers of Am. v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 582 (1960); AT&T
Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643,
648-50 (1986); Int’l Ass’n of Machinists & Aerospace
No. 06-2335 11
Workers, Progressive Lodge No. 1000 v. Gen. Elec. Co.,
865 F.2d 902, 904 (7th Cir. 1989). The presumption of
arbitrability is overcome when “it may be said with
positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted
dispute.” Warrior & Gulf Navigation Co., 363 U.S. at 582-
83; AT&T Techs., 475 U.S. at 650.
The arbitration clause in the parties’ collective bargain-
ing agreement (“CBA”) provides: “The right to invoke
arbitration shall extend only to matters which involve: (A)
The interpretation or application of any of the terms or
provisions of this Agreement, unless excluded by specific
provisions of this Agreement. (B) The discipline of an
employee with six (6) or more months of Net Credited
Service.” (Emphasis added.) The use of the term
“only”—obviously a term of limitation—suggests a some-
what less expansive interpretation than that urged by
the Union and adopted by my colleagues. The dispute at
issue here is about performance guidelines, and it is
arbitrable only if it involves the interpretation or ap-
plication of a term or provision in the CBA, or the disci-
pline of an employee.
The CBA contains no terms or provisions whatsoever
relating to performance guidelines or standards, and
this dispute concerns the performance guidelines policy
itself, not the discipline of a employee pursuant to it.
Nonetheless, the majority concludes that the dispute is
arbitrable because it “could” involve the interpretation of
the so-called “recognition” clause of the CBA. Majority op.
at 6. That provision, § 1.01 of the CBA, states as follows:
“The Company recognizes the Union [Local 21] as the
exclusive bargaining agent for those employees of the
Company in the State of Illinois . . . and Lake and Porter
County [sic], Indiana.”
On its face, the recognition clause merely specifies
who—that is, which union—shall be recognized as the
12 No. 06-2335
employees’ bargaining agent; it does not address any
substantive topics pertaining to employment terms and
conditions as a general matter, much less performance
guidelines in particular. Nor does it articulate any duties
beyond recognition or describe the scope of bargaining.
Scope of bargaining issues, and the rights and obligations
arising from bargaining impasses or violations, are
governed by the National Labor Relations Act, 29 U.S.C.
§ 158 et seq., and a well-developed body of judicial and
NLRB decisional law interpreting the statutory duty to
bargain collectively and in good faith. See generally NLRB
v. Katz, 369 U.S. 736 (1962); NLRB v. Ins. Agents’ Int’l
Union, 361 U.S. 477, 498 (1960); NLRB v. Wooster Div. of
Borg-Warner Corp., 356 U.S. 342 (1958); Inland Tugs v.
NLRB, 918 F.2d 1299, 1307-08 (7th Cir. 1990); Kankakee-
Iroquois Co. Employers’ Ass’n v. NLRB, 825 F.2d 1091,
1094 (7th Cir. 1987); Int’l Union, United Auto., Aerospace
& Agric. Implement Workers of Am. v. NLRB, 765 F.2d
175, 179-80 (D.C. Cir. 1985). There is nothing in this
generic recognition clause that could be interpreted to
expand the parties’ statutory bargaining duties or the
derivative rights and obligations flowing from bargaining
impasses or illegal bargaining behavior.
In any event, the Union does not assert that the Com-
pany failed or refused to bargain in good faith over the
performance guidelines. Indeed, the record reflects that
the Company gave notice of the new policy and offered to
meet with Union representatives to bargain over it. The
Union has historically taken the position that it will not
formally “bargain” over policies of this sort but agreed to
meet for informal discussions with the Company. Accord-
ingly, meetings were held and changes made to the
guidelines as a result of the Union’s input and objections to
specific aspects of the policy.
So it is not surprising that the Union does not argue that
the Company failed or refused to bargain in good faith,
No. 06-2335 13
beyond suggesting that what occurred was “not bargaining
in any real sense,” whatever that means. The Union has
not alleged, for example, that bargaining had not reached
impasse before the Company imposed the performance
guidelines. See Inland Tugs, 918 F.2d at 1307 (“In the
event of impasse, the employer is permitted to make
unilateral changes in conditions of employment, but only
as to matters that have been previously offered to the
union.”); Int’l Union, United Auto., Aerospace & Agric.
Implement Workers of Am., 765 F.2d at 179 (“Where a
mandatory subject [of bargaining] is not contained in the
contract, an employer must bargain in good faith to
impasse with union representatives; if no agreement is
reached, the employer may unilaterally implement its
bargaining proposal with respect to the matter not con-
tained in the agreement.”). The Union’s grievance chal-
lenges the performance guidelines themselves, not the
bargaining conduct of the Company.
The majority concludes that the dispute is arbitrable
because the recognition clause “could” be interpreted “to
prohibit the Company from making significant changes
in the terms and conditions of employment without the
consent of the Union.” Majority op. at 6. Such an interpre-
tation is impossible; it would require the arbitrator to
completely rewrite the recognition clause, engrafting a
duty that is not there. Indeed, such an interpretation
would contradict well-settled principles in the case law
pertaining to the statutory duty to bargain collectively
and establishing the rights and obligations that arise
from good-faith bargaining impasses and illegal bargain-
ing demands. While a mandatory subject of bargaining
contained in a pre-existing collective bargaining agree-
ment may not be altered without consent, an employer is
permitted to unilaterally implement new employment
conditions not contained in the agreement after bargaining
in good faith to impasse. See Inland Tugs, 918 F.2d at
14 No. 06-2335
1307-08; Int’l Union, United Auto., Aerospace & Agric.
Implement Workers of Am., 765 F.2d at 179. Also, an unfair
labor practice on the part of a union suspends the duty to
bargain and permits the employer to unilaterally imple-
ment new conditions of employment. Inland Tugs, 918
F.2d at 1308.
Because the performance guidelines are not contained
in the current CBA, the Company has a good-faith bargain-
ing duty under the NLRA but no duty to obtain consent
from the Union before implementing the policy. The “no
strike” provision in the CBA does not leave the Union
without recourse; its remedies are in the collective bar-
gaining process and the NLRA. The recognition clause
simply is not susceptible of an interpretation that would
vest the Union with the sort of veto power suggested by
the majority.
The out-of-circuit case law cited by my colleagues is
either distinguishable or badly reasoned. In Oil, Chemical
& Atomic Workers International Union v. Phillips 66 Co.,
976 F.2d 277, 278-79 (5th Cir. 1992), the court held that
a labor/management dispute about an employee drug
testing policy was arbitrable because it arguably violated
the collective bargaining agreement’s recognition, just
cause, and health-and-safety clauses. The court’s decision
did not specifically or solely rely on the agreement’s
recognition clause, as the majority opinion does here.
E.M. Diagnostic Systems, Inc. v. Local 169, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, 812 F.2d 91, 96 (3d Cir. 1987),
involved a dispute about the employer’s right to subcon-
tract work outside the bargaining unit. The collective
bargaining agreement provided for arbitration of disputes
“arising out of a claimed violation of this agreement” but
also contained a management rights clause explicitly
reserving to the employer the right to subcontract work
No. 06-2335 15
without interference from the union. A divided Third
Circuit held the dispute was arbitrable. It was enough, the
majority said, if the subject matter of the grievance fell
within the “zone of interests” protected by the collective
bargaining agreement. Id. An unfettered right to sub-
contract, the majority concluded, “would include the right
to subcontract all work of the bargaining unit and would
be inconsistent with the agreement’s recognition of the
Union as the bargaining agent for the Company’s employ-
ees.” Id. The dissenting judge objected that the “majority
[has] redrawn the parties’ Agreement,” nullifying the
management reservation of rights clause by way of an
unbounded interpretation of the recognition clause. Id. at
97-98 (Garth, J., dissenting). The majority in E.M. Diag-
nostics cited no authority for its “zone of interests” ap-
proach to arbitrability questions.
Finally, Local 1912, International Ass’n of Machinists
v. United States Potash Co., 270 F.2d 496, 499 (10th Cir.
1959), also addressed the arbitrability of a dispute about
subcontracting, although in this case the parties’ agree-
ment was silent on the subject. The Tenth Circuit held
that because subcontracting could have the effect of
“injuring the union as an effective bargaining unit,” the
dispute implicated the recognition clause of the contract
and was therefore arbitrable. This holding was based on
the court’s rather expansive view of its interpretive task:
“It would stifle the underlying purposes of the whole
agreement to construe it according to its dry words. It is
for us to put meat on the skeleton rather than tear the
flesh from the bones.” Id. at 498. This is hyperbole, not
reasoning. I find none of these cases persuasive.
The Union argues in the alternative that § 4.01 of the
CBA, the “mutual responsibility and respect” clause,
is implicated in this dispute. In that clause, the parties
“recognize” that “all dealings between them be, and
continue to be, characterized by mutual responsibility
16 No. 06-2335
and respect” and that the terms of the CBA shall be
applied “fairly in accord with its intent and meaning and
consistent with the Union’s status as exclusive bargain-
ing representative.” Because the CBA is silent about
performance guidelines or standards, the Company cannot
be guilty of “unfairly” applying a term of the CBA by
adopting the guidelines. The Union has made no effort to
identify how the performance guidelines policy itself
might reflect a lack of “mutual responsibility and respect.”
Accordingly, the arbitration clause—which covers only
those disputes that involve an interpretation of a term or
provision of the CBA or the discipline of an employee—is
not reasonably susceptible of an interpretation that covers
this dispute. The parties’ dispute over the performance
guidelines is not arbitrable.
In closing, I have serious concerns about the essentially
limitless reach of today’s decision. If this dispute is
arbitrable as an arguable violation of the recognition
clause, then almost any dispute is; any Company action
that can be characterized as contrary to the Union’s
interests “could” violate the recognition clause if its scope
is as boundless as the majority believes. Recognition
clauses of this sort are routine in collective bargaining
agreements, as are arbitration clauses that limit arbitra-
tion to disputes involving an interpretation or application
of the terms of the parties’ agreement. Henceforward,
recognition clauses will be invoked as malleable enough
to compel arbitration of disputes that do not squarely
implicate any other term or provision of the contract. In
my judgment, this violates the fundamentally contractual
nature of arbitration and the axiom that “a party cannot
be required to submit to arbitration any dispute which
he has not agreed so to submit.” Warrior & Gulf Naviga-
tion Co., 363 U.S. at 582; AT&T Techs., 475 U.S. at 648-50.
No. 06-2335 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-2-07