FILED
United States Court of Appeals
Tenth Circuit
April 13, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STEEL, PAPER AND
FORESTRY, RUBBER,
MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND
SERVICE WORKERS
INTERNATIONAL UNION, and its
Local 13-857, a labor organization,
No. 09-5143
Plaintiff-Appellant, (D.C. No. 4:07-CV-00316-GKF-PJC)
(N.D. of Okla.)
v.
CONOCOPHILLIPS COMPANY, a
foreign corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, BALDOCK, and TYMKOVICH, Circuit
Judges.
This is an appeal from the district court’s denial of arbitration for a number
of grievances arising from various organizational changes made by
ConocoPhillips in its oil refinery in Ponca City, Oklahoma. The United Steel
*
This order and judgment is not binding precedent except under the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.
Workers’ International Union and its Local 13-857 challenged these changes as
violating the Collective Bargaining Agreement (CBA) between the Union and
ConocoPhillips, and sought an order to compel arbitration of its grievances. The
Union now appeals the district court’s finding that these grievances are exempt
from arbitration under the CBA. We conclude the grievances concerning the
elimination of jobs as part of the reorganization are exempt from arbitration. But
we also conclude several of the grievances regarding work reassignments are
eligible for arbitration.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM in part
and REVERSE in part.
I. Background
The Union is the collective bargaining representative for many employees
of this ConocoPhillips oil refinery. Union employees are organized into
“progression units” composed of one or more job positions, or “classifications.”
ConocoPhillips and the Union are party to a CBA that covers a wide range
of matters pertaining to wages, hours, discipline, and other conditions of
employment. It also lays out a three-step process for resolution of disputes that
arise under the CBA. The first two steps involve discussions between Union
representatives and escalating levels of management within ConocoPhillips. If
the parties cannot resolve a grievance after the first two steps of the process,
either party may advance the grievance to the final step, arbitration. The CBA
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broadly provides that “differences arising between the Union and the Company
relating to interpretation or performance of this Agreement . . . are arbitrable,
except as otherwise provided by this Agreement.” App. at 284.
But not all grievances are arbitrable. Article 11 of the CBA, entitled
“Management’s Rights,” commits certain decisions to ConocoPhillips’s
discretion:
Other responsibilities, solely those of Management are: the
assignment of work subject only to the other provisions of this
Agreement . . . the determination of the number of persons required
to operate and maintain any portion or all of the physical plant . . .
the decision to operate, determine the level of operation, or to shut
down any portion or all of the plant . . . . to determine and to
redetermine the organization of the Ponca City Refinery . . . to
determine the methods, processes and materials to be employed; to
discontinue in whole or in part processes or operations.
Id. at 260 (emphasis added). Article 11 further provides that disputes arising
from these decisions are exempt from arbitration: “Grievances originating under
Article 11 are subject to the grievance procedure but cannot be submitted to
arbitration; and no arbiter has the authority to rule on Article 11 . . . .” Id.
(emphasis added).
In 2006, ConocoPhillips made several organizational changes in the
refinery to improve operating efficiencies. It eliminated a position known as the
Lead Operator, which was primarily responsible for maintaining a safe workplace,
performing limited administrative duties, and assisting other operators as needed.
The bulk of the duties previously performed by the Lead Operator were then
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redistributed to the existing Unit Operator position. In addition, some
supervisory duties were reassigned to the newly created Area Production
Supervisor (APS) position, a non-Union position that provides day-to-day
guidance to Unit Operators to ensure operations are safe, environmentally sound,
and consistent with the company business plan. ConocoPhillips did not terminate
the twenty-five Lead Operators whose jobs were eliminated, but rather moved
them into Unit Operator or APS positions. After the reorganization, the Union
filed multiple grievances contending the elimination of the Lead Operator
position and the reassignment of work violated a number of provisions of the
CBA.
In addition to the elimination of the Lead Operator position, ConocoPhillips
also reorganized the Still Cleaner unit. Workers in this unit are responsible for
cleaning out the coke still equipment between batch operations. In the past,
cleanouts were performed by a three-member crew composed of a Cleaner, a
Sluicer, and a Helper. With the stated purpose of improving safety,
ConocoPhillips merged these three positions into one general Still Cleaner
position, and assigned two Still Cleaners to each cleanout. Again, ConocoPhillips
did not terminate affected employees, but instead transferred them to other
positions in the refinery. Relatedly, ConocoPhillips reassigned some aspects of
the cleanout preparation work previously performed by the eliminated positions to
the newly created Drum Operator position within the Coker/Combo unit. This
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position is now filled by Unit Operators in the Coker/Combo unit who rotate
through the position on a weekly basis. The Union filed grievances challenging
the elimination of the three original Still Cleaner positions and the reassignment
of work as a violation of multiple provisions of the CBA.
At about the same time, ConocoPhillips eliminated a Tester position in the
Control Laboratory unit that was vacated when an employee was promoted to
another position. ConocoPhilips asserts improved efficiencies as a result of the
reorganization made the individual position unnecessary. The Union also
submitted grievances over the elimination of the Tester position and the alleged
reassignment of work as violating several provisions of the CBA.
ConocoPhillips denied each of the Union’s grievances at the first and
second steps of the dispute resolution procedure, leading the Union to demand
arbitration. ConocoPhillips declined to arbitrate on the theory that each of the
grievances arises under the management rights section of Article 11 and is
therefore exempt from arbitration.
The Union filed this action to compel ConocoPhillips to arbitrate the
grievances. The district court granted ConocoPhillips’s motion for summary
judgment after concluding Article 11 expressly exempts the Union’s grievances
from arbitration. This appeal followed.
II. Discussion
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On appeal, the Union challenges the dismissal on two grounds. First, the
Union argues the district court improperly considered the merits of the grievances
in addressing their arbitrability under the CBA. And second, it contends the
district court erred in concluding the grievances were not arbitrable.
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court. See Byers v. City of
Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this
standard, we review the evidence and draw inferences in the light most favorable
to the nonmoving party. See Byers, 150 F.3d at 1274.
It is well settled that “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.” Local 5-857 Paper, Allied-Industrial, Chemical and Energy Workers
Int’l Union v. Conoco, Inc., 320 F.3d 1123, 1126 (10th Cir. 2003) (quotation
omitted). But in considering whether a contract requires the parties to resolve a
particular grievance in arbitration, the court must not rule on the potential merits
of the underlying claim. Id. A grievance may be arbitrable even if it is frivolous
or unlikely to succeed. AT&T Techs., Inc. v. Commc’ns Workers of America, 475
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U.S. 643, 649–50 (1986). Thus, the question for a court considering an action to
compel arbitration is not whether the contract gives support for the underlying
grievances, but whether the contract requires the parties to arbitrate those
grievances. See id.
Where a collective bargaining agreement includes an arbitration clause,
there is a presumption of arbitrability. Local 5-857 Paper, 320 F.3d at 1126.
Arbitration should be denied only where “it may be said with positive assurance
that the arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.” Id. (quotation omitted). Where the arbitration clause is broad,
only an express exemption provision or otherwise forceful evidence of purpose to
exclude the claim from arbitration will prevail. Id. A broad clause, such as the
one in this case, “refers all disputes arising out of a contract to arbitration.”
Cummings v. FedEx Ground Package Sys., Inc., 404 F.3d 1258, 1262 (10th Cir.
2005) (quotation and alteration omitted).
A. The District Court’s Decision
Because the CBA’s arbitration clause is broad, the question before the
district court was whether Article 11 expressly exempts the Union’s grievances
from arbitration. In making this determination, the court began with a review of
Article 11. It noted Article 11 exempts a number of management decisions from
arbitration absolutely. But this article creates one exception in stating assignment
of work is committed to management’s discretion “subject only to other
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provisions of this agreement.” App. at 260. The court therefore concluded that,
in order to determine whether a reassignment grievance is expressly excluded
from arbitration, it must consider whether any other CBA provisions are
implicated by the company’s action. The court interpreted this exception broadly,
to include both any reassignment and any other managerial decision that
“involves” reassignment. As a result, the court performed this analysis not only
for each of the reassignment-of-work grievances, but also for each of the
elimination-of-jobs grievances.
After careful review of each of the CBA articles cited by the Union, the
court concluded that none are implicated by the reassignment-of-work and
elimination-of-jobs grievances. It therefore found these grievances are expressly
exempted from arbitration by Article 11. The court also held that, where
reassignment-of-work is not involved, elimination-of-jobs grievances are
absolutely exempted from arbitration by Article 11. Finally, the court found as a
factual matter that ConocoPhillips did not reassign the work previously performed
by the Tester position, and disposed of this grievance on separate grounds.
B. Interpretation of the CBA
The Union contends the district court should have determined whether the
grievances are exempt from arbitration by looking only to Article 11,
and the court performed an inappropriate merits review by considering whether
each article cited by the Union actually applies to each grievance.
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We agree in part and disagree in part with the district court’s conclusions
on this point. Because we find the CBA requires different analyses for the
reassignment-of-work and elimination-of-jobs grievances, we address the Union’s
challenge as to each separately.
1. Reassignment-of-Work
The district court’s method of analysis in considering the reassignment-of-
work grievances was correct under the CBA. The court’s review of other articles
of the CBA to determine whether they apply to each reassignment grievance is
consistent with the language of the agreement. Article 11 explicitly makes the
exemption for assignment conditional on the other provisions of the CBA. The
district court’s method also comports with our reasoning in interpreting a similar
collective bargaining agreement between these same parties. See Oil, Chemical
and Atomic Workers Int’l Union Local 5-391 v. Conoco, Inc., 64 F. App’x 178,
182–83 (10th Cir. 2003) (performing a similar analysis where ConocoPhillips’s
right to assign work was “limited by other provisions in the Agreement”
(quotation and alteration omitted)). We find this analysis does not constitute an
improper review on the merits. The reviewing court may consider the entire CBA
to determine whether a grievance implicates a particular provision, as dictated by
the terms of Article 11, without actually reaching the merits of the grievance.
2. Elimination-of-Jobs
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But we conclude it was not necessary to consult the other provisions of the
CBA to determine whether Article 11 exempts elimination-of-jobs grievances that
“involve” the reassignment-of-work. The assignment clause cannot be read so
broadly. Because managerial decisions will frequently result in redistribution of
work, the district court’s interpretation would cause the single exception in
Article 11 to swallow the entire provision. It is also obvious under the CBA that
grievances regarding the elimination of a position and the reassignment of that
position’s duties are separable. For example, ConocoPhillips might have an
absolute right to eliminate a position but face constraints in the way it reassigns
the work of that position.
Thus, we will review only Article 11 to determine whether the Union’s
elimination-of-job grievances are expressly exempted from arbitration.
C. The Arbitrability of the Union’s Grievances Under the CBA
With this background, we address the arbitrability of each grievance raised
by the Union on appeal.
1. Lead Operator Position
First, the Union lodged multiple grievances challenging ConocoPhillips’s
decision to eliminate the Lead Operator position and divide the work previously
performed by this position between Unit Operators and APSs. 1
1
In the district court, the Union asserted these actions violated Articles 1,
3, 20-1, 20-4, 20-5, 20-6, 20-15, 21-1, 21-9, and Appendix A of the CBA. On
(continued...)
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Elimination of the Lead Operator Position
As the district court noted, Article 11 vests management with absolute
discretion to “[determine] the number of persons required to operate and maintain
any portion or all of the physical plant,” to “shut down any portion or all of the
plant,” to “determine and to redetermine the organization of the Ponca City
Refinery,” to “determine the methods, processes and materials to be employed,”
and to “discontinue in whole or in part processes or operations.” App. at 260.
Article 11 goes on to provide that grievances arising from these decisions are not
subject to arbitration. Id. We find a grievance regarding elimination-of-jobs
arises under the above-listed provisions, and is therefore exempt from arbitration
under Article 11. Because this exemption is absolute, we need not consider any
other provision of the CBA in reaching this conclusion.
Reassignment of the Lead Operator Duties
The exemption is not absolute as to reassignment-of-work. As set forth
above, to determine whether Article 11 exempts a reassignment-of-work
grievance from arbitration, we must consider whether the grievance implicates
other provisions of the CBA.
1
(...continued)
appeal, the Union also claims these actions violated Articles 21-4 and 21-5.
Because the 21-4 and 21-5 claims were not properly raised before the district
court, we need not consider them here. Tele-Commc’ns, Inc. v. C.I.R., 104 F.3d
1229, 1233 (10th Cir. 1997).
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We agree with the district court that Articles 1, 3, 20-1, 20-4, 20-5, 20-6,
20-15, 21-9, and Appendix A are not implicated by the challenged reassignment.
But we disagree as to Article 21-1. Because this provision limits ConocoPhillips’s
ability to reassign work, the question of whether it was violated by the
reassignment of Lead Operator duties is arbitrable.
To reach this conclusion, we must consider each provision in light of the
Union’s grievance.
1.
Article 1, entitled “Recognition,” provides that the Union is “the sole and
exclusive representative for the purposes of collective bargaining in respect to
rates of pay, wage, hours of employment and other conditions of
employment . . . .” Id. at 258. The Union argues ConocoPhillips violated this
provision when it assigned part of the work previously performed by a Union
position (the Lead Operator) to a non-Union position (the APS). The Union also
argues Article 1 was violated when ConocoPhillips made changes in the work
assignment of Union employees without bargaining. We agree with the district
court’s conclusion that this provision is not implicated by the reassignment of
Lead Operator work. Article 1 only mandates that the Union be the sole
employee representative in negotiations with ConocoPhillips. It does not require
that certain work be performed by Union employees or that any particular topic be
subject to collective bargaining.
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Article 3, entitled “Exclusive Agreement,” provides:
This contract is the entire Agreement between the [parties]. No
practices, payments of wages or benefits prior to this Agreement date
shall act to change or enlarge the express wording of this Agreement.
All Agreements subsequently entered into by the parties during the
term of this Agreement shall also be considered a part of this
Agreement when reduced to writing and signed by authorized
representatives of the Company and the Union.
Id. at 258. The Union contends when ConocoPhillips reassigned the work of the
Lead Operator position, it “changed” the terms of the CBA without complying
with Article 3’s requirement that contract changes be reduced to a signed writing.
This provision would be relevant if ConocoPhillips attempted to defend the
reassignment on the theory that it was authorized by a new contract term. An
arbitrator might then conclude that the new term was not valid under Article 3,
and that ConocoPhillips’s actions were unauthorized. But ConocoPhillips makes
no such argument. And there is nothing in Article 3 that limits ConocoPhillips’s
ability to reassign work. We therefore find Article 3 is not implicated by the
challenged reassignment.
The Union also argues the reassignment of Lead Operator work violated
several provisions of Article 20, which it characterizes generally as “provid[ing]
what the lead operators do and how the vacancies are filled.” Aplt. Br. at 9. But
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the Union does not make specific arguments as to how each provision was
violated by the reassignment. 2
Article 20-1 states: “Providing an employee has the necessary
qualifications, seniority rating . . . shall be the determining factor in bidding and
bumping. Ranking number in a progression unit will be the determining factor
for promoting or demoting within a progression unit or demoting out of a
progression unit.” App. at 272. In other words, Article 20-1 provides that
seniority is to be the primary factor in advancement. We find this provision
imposes no limit on ConocoPhillips’s ability to reassign work.
Article 20-4 provides, in pertinent part: “Filling a permanent vacancy in
the Lead Operator classification shall be by the selection/qualification process.
All other permanent vacancies within a progression unit will be filled by the
employees in the progression unit moving up, leaving the bottom number in the
progression unit vacant.” Id. The Union does not argue that a vacant position has
been improperly filled, or explain how the reassignment of Lead Operator work
offends Article 20-4. We also find this provision is not relevant to the
reassignment of work.
2
Before the district court, the Union made specific arguments that the
elimination of the Lead Operator position violated each of these provisions. But
since we have found that elimination-of-jobs grievances are exempted absolutely
by Article 11, we do not address these arguments.
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Article 20-5 addresses ConocoPhillips’s ability to prevent an employee
from advancing further according to seniority due to physical inability:
No employee will be frozen unless the Company doctor determines
he is physically unable to advance to the next higher classification.
The period of time he is frozen will be limited to the time he is
physically unable to advance. No more than one employee can be
frozen in any classification. Employees promoting around a frozen
employee shall also demote around him for the first calendar year.
After one calendar year, if the employee remains frozen then he is
subject to once around, always around, for any employee who
promotes around him according to paragraph 20-12.
Id. at 273. Because this provision has no language limiting assignment in any
way, we find it is not implicated by the reassignment of the Lead Operator work.
Article 20-6 states: “It is recognized that employees must meet all
qualifications of their job as a condition of employment,” and sets out the
guidelines for removing an employee who is not qualified to perform a job. Id.
The Union does not argue that any employee was removed, or otherwise explain
how ConocoPhillips’s actions violated this provision. We find that Article 20-6
does not limit the reassignment of work.
Article 20-15 discusses in detail the rules for advancement where an
employee is demoted out of a position as a result of reductions in the unit. Id. at
275–76. We agree with the district court this provision contains no language
restricting ConocoPhillips’s ability to reassign work.
Article 21-9 provides:
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If the work of a higher-paid classification is temporarily required for
4 or more hours of any employee within the bargaining unit during a
regular 8-hour day, evening, or night shift, he shall receive the wages
of the higher-paid classification for all hours worked in that shift.
Overtime shall be paid for at rate of job worked.
Id. at 277 (emphasis added). The Union suggests ConocoPhillips violated Article
21-9 by reassigning Lead Operator work without making the mandatory increased
payment to certain employees. But, as ConocoPhillips points out, Article 21-9
applies only to temporary reassignments. There is nothing in the record to
suggest the reassignment of Lead Operator duties to Unit Operators and APSs is
temporary. And, in fact, the Union does not make this contention. Thus, we
conclude Article 21-9 is not implicated by the reassignment of Lead Operator
work.
Finally, Appendix A is a rate schedule for Union jobs in the refinery. This
provision explains: “This Appendix is the agreed-upon base rates of pay for the
listed jobs as they existed at the time of the Agreement. It is not an agreement on
the part of ConocoPhillips that the listed jobs will not be changed, combined, or
eliminated.” Id. at 291–92. The Union argued below the negotiated duties of the
Lead Operator are fixed by Appendix A. But, as the district court noted, because
this provision explicitly states the Appendix is not an agreement that the listed
jobs will not be changed, this argument is unavailing. We therefore conclude
Appendix A also does not narrow ConocoPhillips’s right to reassign work.
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To summarize, none of these provisions of the CBA are implicated by the
Union’s Lead Operator grievances.
2.
As to Article 21-1, however, the Union’s contention has merit. Article 21-1
provides, in relevant part:
Work peculiar to a classification shall be performed by employees
assigned to that classification within the bargaining unit with the
exception that the Company reserves the right to assign work
without compromising safety to qualified employees regularly
assigned to other classifications within the bargaining unit for
efficient, productive and profitable operations of the plant.
Id. at 277. The Union contends the reassignment of work violated Article 21-1,
because work peculiar to the Lead Operator classification is now being performed
by the Unit Operator and APS classifications. In response, ConocoPhillips
acknowledges that it is “generally prohibited” from reassigning the work of one
classification to another. But, it argues, Article 21-1 limits reassignment only
where the classification that originally performed the work still exists, as work
cannot be “peculiar to” a classification that does not exist. Under this
interpretation, Article 21-1 does not apply where ConocoPhillips has eliminated
the original classification, as it did here.
We find the language of this provision arguably restricts ConocoPhillips’s
ability to reassign work previously performed by one classification to another.
Such a reassignment is only permitted where it does not compromise safety, it is
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made to qualified employees, and it is made to employees within the bargaining
unit. The question of whether the reassignment of Lead Operator work complied
with these limitations is for the arbitrator to resolve.
ConocoPhillips’s narrow interpretation of this restriction is not
unreasonable, but it is not required by the language of Article 21-1. It is not clear
whether the provision’s purpose is to protect the old classification from being
stripped of duties (which would favor ConocoPhillips’s interpretation, as there
would be no value in protecting a classification that no longer exists) or to protect
the new classification from being burdened with additional duties (which would
favor a broader interpretation, as the burden of increased responsibility would be
the same, regardless of whether the original classification was eliminated).
Because the reassignment of the Lead Operator duties at least arguably implicates
Article 21-1, we find this grievance is arbitrable.
In sum, we conclude Article 11 exempts every Lead Operator grievance
from arbitration except the claim that the reassignment of Lead Operator duties
violated Article 21-1 of the CBA.
2. Still Cleaner Unit
The Union also filed grievances based on ConocoPhillips’s decision to
(1) eliminate three positions in the Still Cleaner unit and replace them with two
general Still Cleaners and (2) reassign some portion of the still cleanout
preparation work to the newly created Drum Operator position in the
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Coker/Combo unit. On appeal, the Union urges these actions violated Articles
21-1 and 36 of the CBA. 3
Elimination of the Three Still Cleaner Positions
As discussed above, a grievance arising from ConocoPhillips’s right to
eliminate a position is exempt from arbitration under Article 11. The Still
Cleaner grievances regarding the elimination of the original three positions are
therefore not arbitrable.
Reassignment of the Still Cleaner Work
For the same reasons addressed above, Article 21-1 arguably places a limit
on ConocoPhillips’s ability to reassign work formerly performed by one
classification to another. Thus, the grievance that the reassignment of Still
Cleaner work to the Drum Operator violated Article 21-1 is arbitrable.
Finally, we turn to the Union’s claim that the reassignment of Still Cleaner
work to the Drum Operator position is contrary to Article 36. Article 36
addresses the payment and hours of employees who clean the stills. Specifically,
Article 36 states, “Cleaning of the coke still equipment shall be paid for on a
piecework basis . . . .” App. at 287. Article 36-2 continues that “[e]arnings of an
entire crew per cleanout will be distributed among the crew in the same ratio as
their base hourly rates bear to each other.” Id. And Article 36-3 requires that
3
The Union also asserts these actions violated Article 21-4. Again,
however, we do not consider this claim because it was not properly raised before
the district court. Tele-Commc’ns, Inc., 104 F.3d at 1233.
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overtime be paid “for each hour worked over 8 in a given cleanout” and “for each
hour worked over 40 in a given workweek.” Id. at 288. Article 36 also mandates
that “hours shall not exceed 40 a week,” and Article 36-1 explains that
“[w]henever it appears that a delay will exceed 2 hours, the crew may be notified
that they are not needed; and they may leave the premises until called again.” Id.
at 287.
It is undisputed the Drum Operator position does not comply with these
requirements. The Union contends the reassignment of Still Cleaner work to an
employee who is not paid or employed in accordance with Article 36 is a
violation of the CBA. ConocoPhillips, echoing the findings of the district court,
responds that Article 36 applies only to workers employed in the Still Cleaning
unit. Because the Drum Operator is located in the Coker/Combo unit,
ConocoPhillips argues, Article 36 is not operative.
The text of Article 36 does not support ConocoPhillips’s interpretation. By
its own terms, Article 36 regulates payment and hours for “[c]leaning of the coke
still equipment.” Id. Article 36-9 defines still cleaning duties as including “the
actual preparation of the equipment for cleaning.” Id. at 288. Because
ConocoPhillips concedes the Drum Operator performs “cleanout preparation
work,” which includes “isolating energy before the coke equipment can be
properly disassembled,” Aple. Br. at 8, Article 36 arguably applies to the Drum
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Operators. Thus, the Union’s grievance that the reassignment of Still Cleaner
work to the Drum Operators violated Article 36 is arbitrable.
To conclude, the Union’s Still Cleaner reassignment grievances under
Articles 21-1 and 36 are not exempted from arbitration by Article 11 of the CBA.
3. The Tester Position
The Union’s final grievances relate to the elimination of one Tester
position and the reassignment of this position’s work as a violation of various
provisions of the CBA.
Elimination of the Tester Position
As discussed above, Article 11 expressly exempts from arbitration any
grievance arising from management’s elimination of a position. For this reason,
grievances regarding the elimination of the Tester position are not arbitrable
under the CBA.
Reassignment of the Tester Duties
The parties disagree as to whether the elimination of the Tester position
resulted in a reassignment of the duties previously performed by that position.
The district court found no reassignment had taken place, crediting
ConocoPhillips’s claim that improved efficiencies made reassignment of these
duties unnecessary. But the Union argues the evidence in the record shows a
genuine issue of fact as to whether there was a reassignment. In support, the
Union cites the deposition testimony of a Union representative: “And we didn’t
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feel like [] the [Tester] position should be eliminated and the work divided among
the other lab people. . . . and [ConocoPhillips] refused to acknowledge that their
work wasn’t going away; it was just being reassigned to another person.” App. at
324–35.
But the Union did not rely on this evidence in resisting summary judgment
below. Even if the testimony had probative value (which is doubtful given its
conclusory nature), the Union cannot now rely on it on appeal. Once
ConocoPhillips pointed out the deficiency in the Union’s case in district court, it
was the Union’s burden to show the existence of a genuine issue of fact by
pointing to affidavits, depositions, and exhibits in the record. Mitchell v. City of
Moore, Oklahoma, 218 F.3d 1190, 1199 (10th Cir. 2000). “Where the burden to
present such specific facts was not adequately met below, we will not reverse a
district court for failing to uncover them itself.” Id. (quotations and alterations
omitted).
III. Conclusion
For the foregoing reasons, we find the Union’s grievances that the
reassignment of Lead Operator work violated Article 21-1 and the reassignment
of Still Cleaner work violated Articles 21-1 and 36 are arbitrable under the CBA.
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Accordingly, we AFFIRM in part and REVERSE in part the judgment of the
district court.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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