UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1066
BROWNING FERRIS INDUSTRIES OF PUERTO RICO, INC.,
Plaintiff, Appellant.
v.
UNION DE TRONQUISTAS, LOCAL 901,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Selya and Cyr, Circuit Judges,
and Pettine,* Senior District Judge.
Jorge Rodriguez Micheo, with whom Goldman, Antonetti & Cordova
was on brief for appellant.
Miguel Cabrera Figueroa for appellee.
July 11, 1994
*Of the District of Rhode Island, sitting by designation.
CYR, Circuit Judge. Plaintiff Browning Ferris
CYR, Circuit Judge.
Industries of Puerto Rico, Inc. (BFI) appeals from a district
court order dismissing its action to stay arbitration proceedings
brought by defendant-appellee Union De Tronquistas, Local 901
(Union), relating to BFI's discharge of certain Union employees
for participating in an alleged slowdown prohibited by the
Collective Bargaining Agreement (CBA). The district court
ultimately ruled that the dispute was subject to arbitration
because no slowdown occurred. We affirm on the ground that the
underlying contract dispute addressed by the district court must
be submitted to arbitration in accordance with the CBA.
I
BACKGROUND
BFI operates a waste disposal facility in Cata o,
Puerto Rico. The Union represents its drivers, mechanics and
utility workers. After BFI dismissed four employees for
allegedly participating in a "slowdown" prohibited by CBA
15.01,1 the Union initiated grievance proceedings on their
1CBA 15.01 provides:
Neither the Union nor employees covered
herein shall at any time, including lunch
hour, call, cause, sanction, participate in,
permit, authorize, honor, instigate, support,
assist or condone any strike, sympathy
strike, work stoppage, picketing, slowdown or
other concerted and/or intentional effort to
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behalf pursuant to the contract arbitration clause, CBA 11.01.
BFI in turn commenced the present action to stay arbitration, see
Labor Management Relations Act 301(a), 29 U.S.C. 185(a),
claiming that CBA 15.02 expressly exempts BFI's adverse
employment action from contract grievance and arbitration
procedures.
BFI promptly moved for summary judgment on the ground
that the discharged employees had engaged in an action prohibited
by CBA 15.01, but the district court ruled that a genuine issue
of material fact remained as to whether the employees had engaged
in a "slowdown," and referred the matter to a magistrate-judge.
Following an evidentiary hearing, the magistrate-judge
recommended that the district court find that BFI had failed to
prove a "slowdown," and further recommended that the dispute be
submitted to arbitration. The district court adopted the
magistrate-judge's report and recommendation over BFI's timely
objection, and dismissed the action. On appeal, BFI challenges
the district court order directing that the contract dispute be
submitted to arbitration.
interfere with production, such as, but not
limited to, an extension of lunch or rest
periods or meetings during working hours.
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II
DISCUSSION
Whether a collective bargaining agreement requires the
parties to arbitrate a particular dispute is a matter of contract
interpretation entrusted in the first instance to trial court
determination, AT&T Technologies v. Commun. Workers, 475 U.S.
643, 649 (1986); Bechtel Constr., Inc. v. Laborers' Int'l Union,
812 F.2d 750, 752 (1st Cir. 1987), subject to de novo review, see
Local 149 of Am. Fed'n of Tech. Eng'rs v. General Elec. Co., 250
F.2d 922, 929 (1st Cir. 1957), cert. denied, 356 U.S. 938 (1958).
We need not address the sufficiency vel non of the district court
finding that BFI failed to prove a prohibited slowdown a
matter on which we take no view since that dispute must be
submitted to arbitration notwithstanding CBA 15.02.
There is nothing ambiguous about section 15.02:
Any employee engaging in any such action as
set forth in Section 15.01 shall be subject
to disciplinary action, including immediate
discharge, at the sole discretion of the
Company and any action taken by the Company
shall not be subject to the grievance and
arbitration procedure contained in [Section
11.01].
(Emphasis added). Its plain language, read together in its
entirety, see Commercial Union Ins. Co. v. Walbrook Ins. Co., 7
F.3d 1047, 1051 n.6 (1st Cir. 1993), adverts to two potential
issues between the contracting parties. The first clause
conditions the employer's right to take disciplinary action under
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section 15.02 on the occurrence of an employee action prohibited
by section 15.01; the last clause makes it clear that the only
employer action exempted from grievance and arbitration under CBA
11.01 is a disciplinary action against an employee who has
violated section 15.01.
The interpretation advanced by BFI disregards the
entire first clause in section 15.02, see Jimenez v. Peninsular &
Oriental Steam Nav. Co., 974 F.2d 221, 223 (1st Cir. 1992) ("In
construing contract language, we endeavor to render no term
meaningless.") (citing cases), which plainly preconditions the
employer's unilateral right to discipline an employee on a
determination that the employee has violated section 15.01.
Next, it gratuitously assumes that the last clause in section
15.02 vests the employer, sub silentio, with unfettered
discretion to determine whether the employee violated section
15.01, e.g., by participating in a prohibited slowdown, without
any right of recourse to grievance or arbitration procedures.
But see Cofman v. Acton Corp., 958 F.2d 494, 497 (1st Cir. 1992)
(applying "inclusio unius est exclusio alterius").
The interpretation urged by BFI contravenes not only
the governing rules of contract construction, see, e.g.,
Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment &
Allied Indus. Fund, 967 F.2d 688, 694 (1st Cir. 1992) (construing
CBA in accordance with general contract law), but the Supreme
Court's admonition that "where the [CBA] contains an arbitration
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clause, there is a presumption 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 Technologies, 475 U.S. at 650 (quoting
Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83
(1960)). In this case, we could not say with any assurance at
all that section 15.02 permits the employer to determine,
unilaterally and conclusively, that section 15.01 has been
violated by the employee.
Finally, the interpretation proposed by BFI would lead
to the absurd result that any employee could be discharged at any
time, with no right of recourse to grievance or arbitration
procedures, simply on the employer's "say-so" that the employee
had engaged in conduct prohibited by section 15.01. An
interpretation so at odds with the role of collective bargaining
in labor-management relations would give us serious pause even
assuming some plausible textual basis in the collective
bargaining agreement. The utter absence of textual support
agreeably precludes any interpretive quandary.
For the foregoing reasons, the district court order is
affirmed.
affirmed
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