United States Court of Appeals
Fifth Circuit
F I L E D
In the May 30, 2003
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 02-10831
_______________
GENERAL WAREHOUSEMEN AND HELPERS UNION LOCAL 767,
Plaintiff-Appellant,
VERSUS
ALBERTSON’S DISTRIBUTION, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before SMITH and BARKSDALE, Circuit judgment denying its request for an order to
Judges, and DUPLANTIER,* District compel arbitration of a grievance by a union
Judge. member against Albertson’s Distribution, Inc.
(“Albertson’s”). We reverse and remand.
JERRY E. SMITH, Circuit Judge:
I.
General Warehousemen and Helpers Union Gabe Redondo worked as a truck driver for
Local 767 (the “union”) appeals a summary Albertson’s. Redondo belongs to the union,
which is the authorized bargaining agent for
certain Albertson’s employees. The union and
*
District Judge of the Eastern District of Lou- Albertson’s have a collective bargaining agree-
isiana, sitting by designation.
ment (“CBA”) that governs the terms and scheduling of an arbitration.”
conditions of Redondo’s employment.
As required by CBA § 17.6, the union re-
During a delivery to an Albertson’s grocery quested a list of potential arbitrators from the
store on March 13, 2001, a female employee Federal Mediation and Conciliation Service
allegedly observed Redondo urinating in plain (“FMCS”), which sent the list to William
view beside the store; she reported the incident Baab, the union’s counsel, and Albertson’s on
to management that day. When Redondo July 10. Baab then asked John Jansonius, Al-
returned to the distribution center, he met with bertson’s’ counsel, to notify him when Janson-
his shop steward and another supervisor. At ius was authorized to select an arbitrator. On
the end of the meeting, Redondo was July 24, Jansonius requested a copy of the
suspended pending further investigation. After grievance for which the union sought
the investigation, Albertson’s fired Redondo arbitration. Albertson’s received a copy of the
on March 16. grievance on August 21, after the five-month
arbitration period had expired. In October
The record contains a single grievance re- 2001, Jansonius responded that Albertson’s
lated to this incident, and the parties dispute refused to arbitrate because the grievance
when Redondo and the union presented the covered only the suspension, not the
grievance to Albertson’s. On one hand, Al- discharge, and the five-month arbitration
bertson’s contends they presented it on March period had expired.
13. Some evidence supports this view. Re-
dondo dated the grievance March 13 and The union sued to compel arbitration under
checked the box for “unjust suspension,” not § 301(a) of the Labor Management Relations
“unjust discharge.” Further, Redondo’s shop Act of 1947, 29 U.S.C. § 185(a). The parties
steward signed and dated the grievance March filed cross motions for summary judgment.
13. The court granted Albertson’s’ motion and de-
nied the union’s, concluding that the grievance
On the other hand, the union contends that did not and could not cover the discharge, be-
they presented it on March 19. Other evidence cause Albertson’s received it on March 13,
supports this view. Gilbert Abalos, a union three days before the discharge. The court
representative, noted on the grievance that the therefore deemed any grievance about the dis-
union received and sent it to Albertson’s on charge waived under the CBA, which requires
March 19. The union’s date-stamp on the the filing of a grievance within five days of an
grievance also reads March 19. incident. The court did not consider Albert-
son’s’ alternative argument that the union did
The union requested arbitration of the not timely arbitrate the grievance.
grievance, but Albertson’s refused. Section
17.5 of the CBA requires that arbitration must II.
occur within five months from the filing of a We review de novo the denial of a motion
grievance, but this period “may be extended to to compel arbitration. Pennzoil Exploration &
incorporate probative delay resulting from un- Prod. Co. v. Ramco Energy Ltd., 139 F.3d
availability of a [company] representative in 1061, 1065 (5th Cir. 1998). Because the dis-
regard to selection of an arbitrator or trict court improperly substituted its judgment
2
for that of the arbitrator, we reverse. We have interpreted this rare exception to
“The courts’ role is very limited when de- mean that “a court will not order arbitration if
ciding issues of arbitrability.” Oil, Chem. & ‘no rational mind’ could question that the
Atomic Worker’s Int’l Union, Local 4-447 v. parties intended for a procedural provision to
Chevron Chem. Co., 815 F.2d 338, 343 (5th preclude arbitration and that the breach of the
Cir. 1987) (“Chevron”). The court decides procedural requirement was clear.” Chevron,
only whether the parties agreed to submit the 815 F.2d at 342 (quoting Rochester Tel. Corp.
subject matter of the grievance to arbitration. v. Communication Workers of Am., 340 F.2d
AT&T Techs., Inc. v. Communications 237, 239 (2d Cir. 1965)).
Workers of Am., 475 U.S. 643, 649 (1986).
Neither party, however, seriously disputes that The parties agree that they intended the
the CBA covers suspensions and discharges.1 CBA’s procedural rules to preclude arbitration
For “question[s] of so-called ‘procedural if breached, but they vigorously contest wheth-
arbitrability,’” the arbitrator, not the court, er the union breached them. Albertson’s
generally decides whether the parties complied argues that the union breached the procedural
with the agreement’s procedural rules. John rules in two ways: (1) The union never
Wiley & Sons, Inc. v. Livingston, 376 U.S. presented a grievance for the discharge and,
543, 555 (1964). “Questions of timeliness are even if it did, (2) it did not arbitrate the
ones of procedural, not substantive, grievance within five months. The union
arbitrability.” Chevron, 815 F.2d at 341. counters that the grievance covers the
discharge and that Albertson’s’ conduct
This general rule in favor of the arbitrator’s excused its untimely arbitration.
deciding questions of procedural arbitrability
has one exception: “[A] court could deny ar- Following John Wiley and Chevron, we do
bitration only if it could confidently be said not not decide for ourselves these questions of
only that the claim was strictly ‘procedural,’ procedural arbitrability; rather, we concentrate
. . . but also that it should operate to bar on what a rational mind could decide.
arbitration altogether.” John Wiley, 375 U.S. Because a rational mind could conclude, from
at 557-58. The Court observed that “such the union’s evidence, that it complied with the
cases are likely to be rare indeed.” Id. at 558. CBA’s procedural rules, the district court
should have entered an order to compel
arbitration and let the arbitrator decide these
1
Albertson’s suggests that it did not agree to questions.
arbitrate Redondo’s grievance, but this argument
misunderstands the holding of AT&T. AT&T does A.
not require the court to determine whether the par- Albertson’s argues, and the district court
ties specifically agreed to arbitrate a particular
agreed, that the grievance could not possibly
grievance; instead, the court determines whether
the parties agreed to arbitrate the particular class
cover the discharge, because Albertson’s had
of grievances, e.g., grievances over suspensions or not discharged Redondo when he presented
discharges. AT&T, 475 U.S. at 648-49; Chevron, the grievance. According to this theory, Re-
815 F.2d at 340-41. Albertson’s concedes that it dondo presented the grievance immediately
agreed to arbitrate grievances over suspensions and following his suspension on March 13, Albert-
discharges, which removes this case from the son’s did not discharge him until March 16,
threshold AT&T inquiry.
3
and hence the grievance could not cover the for the employee. Id. The district court,
discharge. however, denied a motion to enforce the
award, “because the [u]nion did not present
Yet, the union offered sufficient evidence to the discharge grievance in accordance with
dispute this chronology. Redondo and his contract procedures.” Id.
shop steward signed and dated the grievance
on March 13, but Abalos noted on the We reversed, relying on John Wiley. Id. at
grievance that he received it and sent it to 962-63. Though agnostic on whether the sin-
Albertson’s on March 19, three days after the gle grievance could cover both disciplinary ac-
discharge. The union’s date-stamp of March tions, we held that “[c]onsideration of these
19 supports this view of the evidence, as does matters is to be left to the arbitrator.” Id. at
Abalos’s affidavit. The union acknowledges 962. “The [c]ompany should have addressed
that the grievance protests only the its arguments that the proper procedures were
suspension, but argues that the grievance not followed to the arbitrator, not to the
should be interpreted to cover the discharge, courts.” Id. at 963. Although Alabama
because it arose from the same incident and Power involved enforcement of an arbitral
Albertson’s received it after the discharge. award, its reasoning applies with equal force
to a motion to compel arbitration.2 See Local
Given this disputed evidence, a rational
mind could agree with the union’s chronology
2
and conclude that the grievance covers the Albertson’s unpersuasively attempts to dis-
discharge. Albertson’s theory depends on its tinguish Alabama Power. Albertson’s argues that
Alabama Power involved an ambiguous grievance,
disputed chronological facts; remove those
whereas this case involves an unambiguous
facts and the theory crumbles. Moreover, the
grievance. Nothing in Alabama Power supports
CBA does not expressly require an employee this argument. To the contrary, the cases are fac-
to file separate grievances for multiple tually identical: Both grievances mention only the
disciplinary actions based on the same alleged suspension, not the discharge, and therefore require
misconduct. A reasonable arbitrator could an interpretation of the collective bargaining
interpret the CBA to allow a single grievance agreement.
in this situation.
Albertson’s also cites several cases in which
Indeed, we recognized this possibility in employees have filed multiple grievances for mul-
Ala. Power Co. v. Local Union No. 391, tiple disciplinary actions based on the same mis-
IBEW, 612 F.2d 960 (5th Cir. 1980). There, conduct. In Albertson’s’ view, these cases show
the company initially suspended the employee, that “it can by no means be taken as a general rule
who filed a grievance protesting the that grievances over suspension are automatically
amended when the employee is subsequently dis-
suspension. Id. at 961. After the request for
charged.” Yet, the opposite cannot be taken as a
arbitration but before arbitration, the company
general rule either. Each collective bargaining
increased the employee’s punishment from agreement is its own document. United Steel-
suspension to discharge. Id. The union asked workers of Am. v. Warrior & Gulf Nav. Co., 363
the arbitrator to review the discharge. Id. U.S. 574, 578-79 (1960). Even if these cases con-
Over the company’s objection, the arbitrator tradicted the reasoning of Alabama Power, which
reviewed the discharge and entered an award they do not, an arbitrator still must decide whether
(continued...)
4
No. 406, Int’l Union of Operating Eng’rs v. We cannot say confidently, as required by
Austin Co., 784 F.2d 1262, 1265 (5th Cir. John Wiley, that this conduct does not excuse
1986) (applying Alabama Power to a denial of the union’s untimely arbitration. Albertson’s
a motion to compel arbitration). argues that the union contributed to the
failure,3 but the arbitrator must decide this
As in Alabama Power, a rational mind factual dispute.
could agree with the union’s view of the facts
and its interpretation of the CBA. Thus, the Moreover, Chevron instructs that these
arbitrator must decide whether the grievance heavily factual disputes about the timeliness of
covers the discharge. arbitration and potential excuses should be
submitted to the arbitrator. In Chevron, 815
B. F.2d at 341-42, the company argued that the
Albertson’s further argues that, even if the union’s untimely request to arbitrate complete-
grievance covers the discharge, the union did ly barred arbitration. The union responded
not timely arbitrate the grievance. Section that the company’s representative was un-
17.5 of the CBA requires arbitration to occur available based on a clause similar to § 17.5.
within five months of the incident alleged in Id. at 342. We concluded that “since there is
the grievance. The union concedes that a legitimate dispute as to the Union’s
arbitration did not occur within that time. compliance with the procedural requirements,
Albertson’s therefore contends that summary this case does not fit within the ‘rare’ group of
judgment was proper, because the untimely cases to which the Supreme Court spoke in
arbitration “operate[s] to bar arbitration alto- John Wiley . . . . [T]herefore, John Wiley
gether.” John Wiley, 376 U.S. at 558. directs that the procedural questions involving
the grievance should also be decided by an
Yet, Albertson’s never acknowledges the arbitrator.” Id.
final clause of § 17.5: “The five (5) month
period may be extended to incorporate A rational mind could conclude that Albert-
pro bative delay resulting from the son’s conduct excused the union’s untimely
unavailability of a [company] representative in arbitration. Thus, the arbitrator, not the
regard to selection of an arbitrator or courts, must determine whether § 17.5 bars
scheduling of an arbitration.” The union avers arbitration of the grievance.
that Albertson’s was unavailable, because
Jansonius refused to select an arbitrator after III.
receiving the FMCS list on July 10, more than John Wiley and Chevron instruct that the
a month before the five-month period expired. courts should not decide questions of
Jansonius also refused to confirm whether he procedural arbitrability unless a rational mind
was authorized to select an arbitrator. could not possibly rule for the party seeking
3
Albertson’s contends that the union did not
(...continued) timely provide Jansonius with a copy of the griev-
this particular CBA allows a single grievance to ance when he requested it on July 10. Perhaps not,
cover multiple disciplinary actions for the same but it must address this argument to an arbitrator,
alleged misconduct. not the courts.
5
arbitration. A rational mind easily could agree
with the union’s view of the facts and its
interpretation of the CBA.4 “The questions
presented by this case, therefore, are most
properly before an arbitrator of industrial
relations, not before a federal court.” Local
No. 406, 784 F.2d at 1265.
The district court improperly substituted its
judgment for the arbitrator’s. Thus, we
REVERSE the summary judgment and
REMAND “for the sole purpose of entering an
order compelling arbitration.” Id.
4
We emphasize that we state no opinion on
whether the grievance covered the discharge or
whether Albertson’s’ conduct excused the union’s
untimely arbitration. We merely recognize that
these questions of procedural arbitrability are re-
served for the arbitrator, because a rational mind
could rule for either the union or Albertson’s. John
Wiley, 376 U.S. at 558; Chevron, 815 F.2d at 341-
42. And, we express no opinion on whether
suspension or discharge is an appropriate punish-
ment under the CBA for Redondo’s alleged act.
AT&T, 475 U.S. at 649-50 (stating that “a court is
not to rule on the potential merits of the underlying
claims . . . even if it appears to the court to be
frivolous”).
6