International Brotherhood of Electrical Workers Local 2150 v. Nextera Energy Point Beach, LLC , 762 F.3d 592 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3851
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL 2150,
Plaintiff-Appellant,
v.
NEXTERA ENERGY POINT BEACH, LLC,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12-cv-00485 — C.N. Clevert, Jr., Judge.
ARGUED JUNE 5, 2014 — DECIDED AUGUST 11, 2014
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
KANNE, Circuit Judge. The plaintiff, a union operating on
behalf of certain employees at a nuclear energy facility, sued
the facility to compel arbitration after a union employee was
discharged, in his opinion, without just cause. The facility
opposed arbitration on various grounds, and was successful in
the district court. Reviewing de novo, we find that the dispute
between the parties falls squarely within the coverage of the
2 No. 13-3851
arbitration clause, and we reverse. The relief sought by the
plaintiff is granted.
I. BACKGROUND
NextEra Energy Point Beach, LLC, owns and operates the
Point Beach Nuclear Power Plant, a two-unit commercial
nuclear energy generating facility in Two Rivers, Wisconsin.
Nuclear Registry Commission regulations governing nuclear
plants require that “unescorted access” to the Point Beach
facility be limited to those individuals who work within the
protected area of the plant and who meet and maintain
compliance with certain requirements. NextEra requires
employees to maintain unescorted access privileges as a
condition of their employment.
International Brotherhood of Electrical Workers Local 2150
(the “Union”) is a labor organization representing employees
of NextEra for collective bargaining purposes. The Union
represents four bargaining units at the Point Beach facility,
each of which is covered by a separate collective bargaining
agreement. Those agreements are color-coded, and the “White
Book” covers the dispute in this case.
Jonathan Hofstra was a full-time, union-affiliated employee
at the Point Beach facility from February 2004 through Febru-
ary 24, 2012. On February 13, 2012, Hofstra reported to his
supervisor that he had been arrested and criminally charged
with operating a motor vehicle while intoxicated. NextEra
revoked Hofstra’s unescorted access privileges effective
February 20, 2012. Because the maintenance of those privileges
was a necessary condition to continued employment at the
No. 13-3851 3
Point Beach facility, NextEra terminated Hofstra four days
later.
On April 5, 2012, the Union filed a written grievance on
behalf of Hofstra alleging that he was “discharged from
employment without just cause due to an inappropriate site
access denial determination” in violation of certain provisions
of the White Book. The Union requested that Hofstra’s unes-
corted access privileges be restored, that his employment be
reinstated, and that he be made whole. NextEra denied the
grievance and refused to arbitrate. After confirming NextEra’s
stance, the Union filed suit in federal court to compel arbitra-
tion. The district court denied the Union’s motion, and we
reverse. Our jurisdiction over the case stems from the federal
questions involved.
II. ANALYSIS
We review a district court’s decision to deny or compel
arbitration de novo. United Steel, Paper and Forestry, Rubber, Mfg.,
Energy, Allied Indus. and Serv. Workers Intern. Union v. TriMas
Corp., 531 F.3d 531, 535 (7th Cir. 2008). We must first determine
whether the Union is making a claim that is, “on its face,”
governed by the White Book arbitration clause. Id. (citing
United Steelworkers of America v. Am. Mfg. Co., 363 U.S. 564, 568
(1960)). In doing so, we are mindful that both the law and
public policy strongly favor arbitration, see, e.g., 29 U.S.C.
§ 173(d); Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 378–79
(1974), and that the party seeking arbitration is entitled to the
benefit of the doubt. Where the arbitration clause is broad, we
presume arbitrability of disputes. AT&T Techs., Inc. v.
Communc'ns Workers of America, 475 U.S. 643, 649 (1986). And
4 No. 13-3851
where any ambiguity as to the scope of the clause exists, we
will construe it in favor of the party seeking arbitration. Volt
Info. Sci., Inc. v. Bd. of Trs. of Leland Stanford, Jr. Univ., 489 U.S.
468, 475–76 (1989). Ultimately, we will compel arbitration
“unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.” United Steel, 531 F.3d at 535(quoting United Steelworkers of America v. Warrior & Gulf, 363
U.S. 574, 582–83 (1960)).
Pursuant to those standards, we find that the Union’s
grievance, on its face, clearly falls within the scope of the White
Book arbitration clause. That means this dispute will be
arbitrable—at least to the extent it goes to Hoftsra’s
discharge—unless we can say otherwise with “positive
assurance.” NextEra has provided nothing to us that comes
close to meeting that standard, and so we must reverse the
decision of the district court and grant the relief the Union
seeks.
A. Facial Arbitrability
We begin our discussion with the White Book arbitration
clause. Article 16 of the White Book sets out grievance
procedures. A “grievance” is defined as “any complaint or
dispute … concerning the interpretation or application of [the
White Book] or concerning any claim of disciplinary action or
discharge taken against an employee without just cause.” The
Union is required to carry any grievance through a series of
steps. If, after moving through the first three steps (each of
which involves some level of review by NextEra), a grievance
which “involves compliance with the terms and conditions of
No. 13-3851 5
[the White Book]” is not “satisfactorily resolved,” the Union
“may … submit the dispute to a Board of Arbitration.”
The Union rightly notes that this language is of a type that
we have referred to, in the past, as broad enough to trigger the
presumption of arbitrability. See Intern. Union of Operating
Eng’rs Local Union 103 v. Indiana Constr. Corp., 13 F.3d 253, 254,
257 (7th Cir. 1994) (clause required arbitration of “any dispute
… concerning the interpretation or application of the terms of
this contract.”); Certified Grocers of Illinois, Inc. v. Local 703, 816
F.2d 329, 329–30 (7th Cir. 1987) (clause required the arbitration
of “any difference … between the Employer and the Union
concerning any interpretation or application of any of the
provisions of this Agreement.”). NextEra responds that the
language is in fact quite narrow and does not trigger a
presumption. At the same time, however, NextEra
acknowledges that we have recently grown more reluctant to
wade into the waters of a breadth-or-narrowness dispute. See
Intern. Bhd. of Elec. Workers Local 21 v. Illinois Bell Tel. Co., 491
F.3d 685, 688 (7th Cir. 2007). This case provides a great
illustration of the basis for our reticence: The entire dispute is
irrelevant. We need not rely on the “broad language
presumption,” here. The White Book specifically contemplates
arbitration of this kind of dispute.
The grievance the Union filed on Hofstra’s behalf claimed
that Hofstra “was discharged from employment without just
cause due to an inappropriate site access denial
determination.” Employee discharge is specifically listed in
Article 16 as an appropriate subject for a grievance. More
importantly, a “just cause” requirement and certain procedural
6 No. 13-3851
conditions are attached to discharge by Article 12, meaning
that a grievance concerning Hofstra’s discharge goes to “terms
and conditions” set out in the White Book. The Article 16
arbitration clause, in turn, covers grievances related to the
“terms and conditions” of the White Book. Thus, Hofstra’s
grievance is arbitrable “on its face.” United Steel, 531 F.3d at
535. That means we will compel arbitration “unless it may be
said with positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted
dispute.” Id.B. NextEra’s Arguments
Although NextEra concedes that a disciplinary discharge is
generally arbitrable, it protests arbitration of this particular
dispute. First, it argues that Hofstra’s was not, in fact, a
disciplinary discharge, and that only disciplinary discharges
are subject to arbitration. Second, NextEra argues that the
Hofstra “discharge” grievance in fact goes to the unescorted
access termination, which is a non-arbitrable issue, and that the
entire discharge is therefore excluded from arbitration. Third,
NextEra argues that other “forceful evidence” of intent exists
which supports excluding this dispute from arbitration. None
of NextEra’s arguments holds water.
1. “Disciplinary Discharge”
NextEra attempts to bring Hofstra's discharge out from
under the plain language of the arbitration clause by asserting
that it was not a "disciplinary" discharge. Instead, according to
NextEra, it was a discharge for failing to meet the terms and
conditions of Hofstra's employment, because his conduct was
such that his unescorted access had to be revoked. But a
No. 13-3851 7
discharge for failing to meet the terms and conditions of
employment is a disciplinary discharge, according to any
remotely sensible understanding of that term. Thus, even if
NextEra is correct to read the arbitration clause to cover only
“disciplinary” discharges, this one would qualify. NextEra’s
first theory is therefore a non-starter.
2. Reclassifying the Grievance
NextEra’s second argument focuses on the fact that an
arbitrator’s consideration of whether or not Hofstra was
discharged with just cause will necessarily hinge on the
propriety of the unescorted access termination, a management
decision which NextEra believes is not arbitrable. NextEra
relies on our decision in Intern. Ass’n of Machinists Lodge No.
1777 v. Fansteel, Inc., 900 F.2d 1005, 1011 (7th Cir. 1990), for the
proposition that the court must examine the language of a
grievance to determine the “true nature” of the dispute, and
whether that true nature is “substantively arbitrable.”
The Union admits that it does hope to gain arbitrator
review of the access decision as the motivation behind
Hofstra’s termination. But NextEra overestimates the effect of
that admission on the arbitrability of the discharge dispute as
a whole. Fansteel’s discussion of “substantive arbitrability”
goes to the rule—a common one, which we have invoked
already—that a dispute which falls within the arbitration
clause on its face will nevertheless be excluded if “we can say
with positive assurance that the parties intended to exclude the
involved dispute from arbitration.” 900 F.2d at 1010–11.
Pursuant to the White Book, discharge disputes fall within the
arbitration clause on its face. We therefore will not preclude
8 No. 13-3851
arbitrator review of this grievance entirely unless we can say
with positive assurance that certain kinds of
discharges—particularly, ones based on the revocation of
unescorted access privileges—are nonetheless excluded from
arbitration.
NextEra has provided no evidence or legal argument which
leaves us so “positively assured.” This case is nothing like
Fansteel, on the facts. There, although the subject matter of the
parties’ dispute was facially arbitrable, a separate written
settlement agreement specifically committed the dispute to
resolution in a court of law. Id. Predictably, we concluded that
arbitration was not the method of dispute resolution to which
the parties had agreed. NextEra’s argument against
arbitrability in this case is not based on any such express
agreement. It is based on the lack thereof. The White Book does
not expressly commit unescorted access decisions to either
arbitration or to management’s sole discretion, so NextEra
argues that the matter is implicitly committed to management
discretion by a residual authority clause in the agreement
stating that “all management functions … not modified or
restricted by [the White Book] are retained and invested
exclusively in [NextEra].”
That argument may or may not be a good one for
precluding an arbitrator from second-guessing the unescorted
access decision itself. That is not for us to decide. It is certainly
not a good argument, however, for precluding arbitration of
the discharge decision. “[A]ny exclusion of particular parties or
issues from coverage by an agreement’s arbitration provisions
should not be inferred from the language of the agreement, but
No. 13-3851 9
must be stated explicitly in the agreement.” Ceres Marine Terminals,
Inc. v. Intern. Longshoremen’s Ass’n, Local 1969, AFL-CIO, 683
F.2d 242, 247 (7th Cir. 1982) (emphasis added). On its face, the
arbitration clause covers any grievance that a discharge did not
meet the requirements laid out in Article 12. Without an
explicit exclusion of discharges based on unescorted access
revocations, we will not contravene the language of the
agreement.
We note, however, that we do not hold that the arbitrator
may, in fact, review and overturn NextEra’s revocation of
Hofstra’s unescorted access privileges. We express no opinion
on the subject. NextEra is entitled to present its arguments on
that issue to the arbitrator, and the arbitrator may well find the
decision unreviewable. If so, the entire matter of the propriety
of the discharge might be very quickly resolved. But the
potential weakness of the Union’s claim on the merits is no
defense to the arbitrability of this dispute, as a threshold
question.
3. “Forceful Evidence”
NextEra’s final argument is premised on the rule that, even
where an arbitration agreement covers the dispute on its face,
the opposing party can avoid arbitration by presenting
“forceful evidence of a purpose to exclude the claim from
arbitration.” Printing Specialties and Paper Prods. Union Local 680
v. Nabisco Brands, Inc., 833 F.2d 102, 104 (7th Cir. 1987). NextEra
relies on two types of evidence which it believes are “forceful”:
bargaining history and established practice.
10 No. 13-3851
a. Bargaining History
NextEra believes the bargaining history between the parties
shows that they agreed to exclude unescorted access decisions
from arbitration. NextEra begins by noting a 2006 arbitration
decision—involving different parties,1 a different collective
bargaining agreement, and different facts—in which the
arbitrator concluded that access decisions were non-
reviewable. That decision, of course, has no effect on anything
outside of its specific, limited context:
It is black letter law that arbitration awards are not
entitled to the precedential effect accorded to judicial
decisions. Indeed, an arbitration award is not
considered conclusive or binding in subsequent cases
involving the same contract language but different
incidents or grievances.
El Dorado Tech. Servs., Inc. v. Union Gen. De Trabajadores de
Puerto Rico, 961 F.2d 317, 321 (1st Cir. 1992) (citations omitted).
Nonetheless, NextEra believes that the Union’s failure to
push for language rebutting the 2006 arbitrator’s
decision—which applied only to different parties and a
different agreement—in negotiations between these parties, for
this agreement, shows that the Union intended the exclusion of
disputes like the present one from arbitration. Furthermore,
NextEra believes the Union’s failure to object to its removal of
a clause from an early draft of the White Book mandating that
1
The Union was a party to the 2006 arbitration, but at that time the Point
Beach facility was owned by Wisconsin Electric Power Company, and,
obviously, Hofstra was not the employee involved.
No. 13-3851 11
an unescorted access revocation not be “arbitrary and
capricious” demonstrates the Union’s accession to NextEra’s
intent to remove the issue from arbitration.
There is a significant problem with all of this: None of it
suggests in any way that the parties intended to remove
discharge decisions from coverage under the arbitration clause,
and the Union is asking for review of a discharge decision.
Moreover, we are not persuaded that NextEra’s evidence is
“forceful.” A party’s failure to center future negotiations
around a non-binding prior arbitration decision to which its
negotiating partner was not even a party is relatively
unremarkable, in our eyes. It is certainly not forceful evidence
of an intent to exclude. As for NextEra’s push to remove
conditional language concerning unescorted access decisions,
it is not even clear whether the Union knew of NextEra’s
motives, much less agreed to them.
b. Established Practice
NextEra’s second line of purported “forceful evidence” of
a mutual intent to exclude access decisions from arbitrator
review is that it developed its own “Access and Fitness
Program” to monitor and ensure its employees’ compliance.
The program was unilaterally established, and it no more
forcefully establishes a mutual intent to exclude covered
material from arbitration than the fact that NextEra employed
its own internal disciplinary procedures establishes a joint
intent to exclude disciplinary actions from arbitration. The
existence of internal review procedures and an agreement to
arbitrate disputes concerning the results of those procedures
are not in any way mutually exclusive. Moreover, again, does
12 No. 13-3851
not go to show that discharge decisions founded on access
revocations were intentionally excluded from the facially
applicable arbitration clause.
III. CONCLUSION
In summary, the Union’s grievance falls within the scope of
the arbitration clause on its face. As a result, we must compel
arbitration “unless it may be said with positive assurance that
the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.” United Steel, 531 F.3d at 535. We
cannot say so with positive assurance in this case, either on the
basis of explicit exclusion, forceful evidence of intent, or any of
the other possibilities offered by NextEra. This grievance must
be sent to arbitration. There, NextEra may raise many of the
same defenses it used in this lawsuit, including its theory that
the arbitrator may not review or overturn the unescorted
access revocation undergirding Hofstra’s discharge. It is not for
us to determine how successful those arguments will prove to
be on the merits, but we can say with certainty that they do
nothing to defeat the plain language of the White Book within
the context of this case. The judgment of the district court is
REVERSED.