United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 03-10963
Summary Calendar
____________________
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO
Plaintiff - Appellant
v.
TYCO POWER SYSTEMS INC
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-1194-D
_________________________________________________________________
Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.
PER CURIAM:*
A union filed suit in the district court, seeking to compel
arbitration of a grievance stemming from a plant closure. The
district court granted the employer’s motion for summary
judgment, and the union appeals. Agreeing with the district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
court that the parties’ dispute is expressly excluded from their
agreement to arbitrate, we affirm.
I. BACKGROUND
Communications Workers of America (“CWA” or “the union”) is
the exclusive representative of certain employees who were
formerly employed at the Tyco Power Systems (“Power Systems” or
“the company”) plant in Mesquite, Texas. Power Systems bought
the Mesquite plant from Lucent Technologies in December 2000 and
assumed the collective bargaining agreement (“Agreement”) that
had governed relations between Lucent and the union. Article 7
of the Agreement provides that most (but not all) disputes
between the parties are subject to arbitration. Relevantly for
purposes of this appeal, Article 7 expressly excludes from
arbitration: (1) those disputes that “involve[] a provision of
this [Agreement] which specifies that it is not subject to
arbitration” and (2) disputes that concern matters “within the
judgment and discretion of the company.”
In the fall of 2001, Power Systems informed CWA that the
company intended to close the Mesquite plant. The union and the
company engaged in bargaining over benefits that the workers
would receive. Under the “Facility Closing Plan” described in
Article 19 of the Agreement, Power Systems was required to give
the employees certain benefits, notably severance pay. Article
2
19 also specifically provides that neither the Facility Closing
Plan nor its administration is subject to arbitration.2
In addition to securing the benefits required under the
Facility Closing Plan, the union’s representatives also sought
benefits under another portion of the Agreement, the Lucent
Career Transition Option Program (“LCTOP”). The LCTOP provision
states that the company “may” provide laid-off employees with
certain benefits, including extended compensation, continuation
of fringe benefits, and early pension eligibility. Power Systems
refused to provide LCTOP benefits to the Mesquite employees.
In response to the company’s decision, a CWA representative
filed a grievance charging that the company had violated its
duties under the Agreement. In the space on the grievance form
that provides an opportunity to summarize the grievance, the
representative wrote “Plant Closure/Surplus.” In the space that
asks which contractual provisions are at issue, the
representative listed the articles involving severance pay under
the Facility Closing Plan and several other articles of the
Agreement, ten articles in all. Apparently taking the view that
the grievance was simply concerned with the dispute over LCTOP
benefits, Power Systems denied the grievance on the ground that
LCTOP benefits are not mandatory. The union then informed Power
2
There are a few aspects of the Facility Closing Plan
that are not excluded from arbitration, but CWA does not contend
that they are relevant here.
3
Systems of its intent to arbitrate the dispute, but Power Systems
responded that the dispute was excluded from arbitration under
the Agreement.
CWA filed suit in the district court, seeking an order
compelling Power Systems to arbitrate the parties’ dispute.3
Both parties moved for summary judgment. The district court
granted summary judgment in favor of Power Systems. The court
concluded that the Agreement expressly excludes the parties’
dispute from arbitration both because the dispute involves the
administration of the Facility Closing Plan and because LCTOP
benefits are a matter within the company’s discretion.
The union now timely appeals.
II. ANALYSIS
We review the district court’s summary judgment decision
denying CWA’s request to compel arbitration de novo. See Gen.
Warehousemen & Helpers Union Local 767 v. Albertson’s
Distribution, Inc., 331 F.3d 485, 487 (5th Cir. 2003). Summary
judgment is proper when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(C).
Arbitration is a matter of contract, and the question
whether the parties have agreed to arbitrate a dispute is
3
The suit was based on federal labor relations law, 29
U.S.C. § 301, and accordingly invoked the district court’s
federal question jurisdiction.
4
ordinarily for the court to decide. AT&T Techs., Inc. v.
Communications Workers of Am., 475 U.S. 643, 648-49 (1986).
When, as in this case, the question is whether a certain dispute
falls within the parties’ arbitration clause, doubts are resolved
in favor of arbitration. “An 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.” Id. at
650 (quoting United Steelworkers of Am. v. Warrior & Gulf Navig.
Co., 363 U.S. 574, 582-83 (1960)); see also Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).
The district court concluded that the parties’ dispute
clearly fell within the Agreement’s exclusions to the duty to
arbitrate. According to the district court, the subject matter
of the grievance plainly involved the company’s refusal to
provide LCTOP benefits in conjunction with the plant closure.
In reaching its decision that this grievance was excluded from
arbitration, the district court relied on both the specific
exclusion for matters pertaining to the administration of the
Facility Closing Plan and the specific exclusion for matters that
are within the company’s discretion. The district court read the
Agreement as treating LCTOP benefits as discretionary.4
4
CWA has argued on appeal that the district court
improperly strayed into the merits of the grievance in making its
rulings on arbitrability, particularly in concluding that LCTOP
benefits are within the company’s discretion. Cf. United
5
The union’s primary argument on appeal is that the district
court erred by failing to take into account that the grievance
also involved complaints that were unrelated to the plant closure
and surplus issues. In particular, CWA directs our attention to
Articles 1 and 2 of the Agreement, which the grievance form
listed as two of the ten different articles that Power Systems
was allegedly violating. Article 1 provides that Power Systems
recognizes CWA as the exclusive representative of covered
employees. Article 2 provides in pertinent part that neither the
union nor the company shall discriminate on the basis of race,
age, sex, or other specified statuses. CWA points out that the
Agreement nowhere exempts such disputes from the Agreement’s
general arbitration clause.
We are unpersuaded by CWA’s argument. First, as to Article
1, CWA’s brief suggests that the only way that Power Systems
allegedly violated its duty to recognize the union was by failing
to provide LCTOP benefits in conjunction with the closing of the
plant. Reference to the undisputed evidence confirms this. The
union’s representative was asked during her deposition about the
Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567-68 (1960).
CWA is incorrect; the district court did not overstep the bounds
of the inquiry that was before it. Since it was the district
court’s duty to determine whether the dispute is subject to
arbitration, and since the Agreement excludes from arbitration
those matters that are within the company’s discretion, the
district court was required to decide whether LCTOP is
discretionary. Any overlap between merits issues and the
question of arbitrability is due to the express language of the
Agreement.
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basis for the union’s failure-to-recognize complaint. She
answered that “by not recognizing the contract obligations, they
were failing to recognize us as the collective bargaining agent.”
Shortly thereafter came the following exchange:
Q: Has there ever been a denial by the company that
[CWA] is the exclusive representative of the
employees . . . ?
A: No. I don’t believe that there has been.
The record shows that, in this case, the union’s failure-to-
recognize complaint has no independent substance to it. Rather,
it is merely being used as a vehicle to obtain arbitration of the
company’s failure to pay certain benefits.
The situation is similar with regard to CWA’s reliance on
Article 2. CWA’s brief does not spell out the nature of the
Article 2 complaint, but based on the motions submitted in the
district court, the gravamen of the complaint is that Power
Systems discriminated on the basis of age. The way in which the
company is said to have discriminated, however, is by failing to
provide the early pension eligibility that is one component of
the LCTOP benefit. The evidence shows that the company did not
provide any LCTOP benefits to any workers, young or old.
Therefore, although phrased in terms of Article 2, in actuality
the substance of the complaint can only be construed as (1) a
complaint about the Facility Closing Plan (namely that it should
include additional benefits) and/or (2) a complaint regarding
LCTOP. In either event, arbitration is unavailable. Complaints
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about the administration of the Facility Closing Plan are
expressly exempted from arbitration. Regarding arbitration of
LCTOP benefits, the primary basis for the district court’s
decision was that the LCTOP provision was discretionary and
therefore excluded from the duty to arbitrate. Nowhere in its
brief has CWA offered any argument against that holding.
We note that this would be a different case if the grievance
did blend together complaints that included both arbitrable and
non-arbitrable elements. Such a situation would be presented,
for example, if Power Systems had administered the Facility
Closing Plan--a subject matter that is exempt from arbitration--
in a manner that allegedly discriminated on a proscribed basis,
such as by giving the required termination benefits to workers of
one race but not another. In that sort of mixed case, in which
an otherwise clearly arbitrable violation occurs in connection
with a non-arbitrable event, the policy in favor of arbitration
might prevail and require the court to compel arbitration of the
dispute. But despite CWA’s efforts to characterize this
grievance as presenting just such a scenario, here the complaints
under Articles 1 and 2 have no independent substance. On the
undisputed evidence, CWA is only seeking to use those labels to
avoid the Agreement’s express limitations on the duty to
arbitrate. That is not permitted. See Contra Costa Legal
Assistance Workers v. Contra Costa Legal Servs. Found., 878 F.2d
329, 330 (9th Cir. 1989). In reaching this conclusion, we rely
8
on CWA’s own statements regarding the nature of its complaints
under Articles 1 and 2.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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