Case: 11-40454 Document: 00511830056 Page: 1 Date Filed: 04/20/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 20, 2012
No. 11-40454 Lyle W. Cayce
Clerk
GARY SAWYER; DOUG KEMPF; PETER BARNABA, SR.; GEOFF
RORREV; TIM GREGORY; ET AL,
Plaintiffs - Appellants
v.
E I DUPONT DE NEMOURS & CO,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
DeMOSS, Circuit Judge:
Appellants are sixty-three former employees of E. I. du Pont de Nemours
and Company (“DuPont”) who worked at the company’s manufacturing facility
in La Porte, Texas. They filed suit against DuPont alleging that they were
fraudulently induced to terminate their employment with DuPont and accept
employment with a wholly owned subsidiary. The district court granted
summary judgment dismissing Appellants’ claims and entered a take-nothing
final judgment in favor of DuPont. For the following reasons, we affirm.
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BACKGROUND
The appellants worked in the Terathane Products Unit at DuPont’s
manufacturing facility in La Porte, Texas. In February 2002, DuPont announced
plans to spin off a portion of its operations to form a wholly owned subsidiary to
be known as DuPont Textiles and Interiors (“DTI”). The Terathane Unit was one
of the units slated to be transferred to DTI, and was the only unit being
transferred from the La Porte facility.
The mechanics and operators at the La Porte facility, including those in
the Terathane Unit, were represented by Local 900C of the International
Chemical Workers Union Council (“Union”) and were employed under a single
collective bargaining agreement (“CBA”) between DuPont and the Union. The
CBA contained a detailed seniority system and provided that employees could
only be terminated or suspended for just cause. The CBA also included a
provision allowing either party to cancel the agreement at anytime with 60 days’
written notice. Of the sixty-three appellants in this case, fifty-nine were
mechanics or operators in the Terathane Unit and were covered by the CBA
when they worked for DuPont (“covered employees”). The other four appellants,
Jesse Blancas, James Svoboda, Jessie Lloyd, and Tracy Hedrick-Thomas, were
administrative staff or laboratory technicians in the Terathane Unit and were
not covered by the CBA (“non-covered employees”).
In September 2002, DuPont management and the Union began
negotiations on how to handle the labor aspect of the Terathane Unit separation.
Because DTI would be an independent legal entity, employees who transferred
to DTI with the Terathane Unit would no longer be employed by DuPont.
However, the CBA’s seniority system gave employees with higher seniority the
right to transfer to other units at the La Porte facility. This raised the possibility
that some of the Terathane Unit employees would exercise that right in order to
stay with DuPont when the Terathane Unit transferred. If that happened,
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DuPont would need to train new operators for the Terathane Unit and could
have been forced to lay off lower seniority employees in other units at the plant.
DuPont considered cancelling the plant-wide CBA and bargaining for two new
CBAs, one between the Union and DTI for the Terathane Unit employees, and
another between the Union and DuPont for the rest of the La Porte employees,
but decided against that option out of concern that it would create tension
between management and labor and increase the risk of a strike.
DuPont and the Union eventually agreed on a two-phase process. During
the first phase, the Terathane Unit employees would be allowed to choose
whether to stay with DuPont or join DTI. The employees who stayed with
DuPont would leave the Terathane Unit and transfer to another unit at the La
Porte facility. Those who joined DTI would remain with the Terathane Unit and
would be covered by a new CBA identical to their existing CBA, providing the
same pay and benefits they received at DuPont. The second phase consisted of
another round of negotiations between management and the Union, which would
only be necessary if a significant number of Terathane Unit employees decided
to stay with DuPont. The employees were required to make their decision
between November 15 and December 16, 2002.
Between October and December 2002, DuPont management began holding
meetings with the Terathane Unit employees to explain the details of the
separation arrangement. These meetings were led by Phil Anderson, the
Terathane Unit manager, Roslyn Cacciotti, the Terathane Unit human resources
manager, and Johnny Ponder, a Terathane Unit first line supervisor. At these
meetings, the Terathane Unit employees expressed concerns that DuPont might
sell DTI to a third party. Many of the employees had worked for DuPont for a
long time and wanted to protect their compensation and retirement packages by
remaining a part of the DuPont family. Appellants allege that they were
repeatedly assured that DTI would remain a part of DuPont. The parties agree
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that Phil Anderson told the employees that a sale of DTI was “highly unlikely.”
Anderson used charts and graphs to show that DTI was too large to be sold
because it was bigger than any of its potential buyers. He often explained, by
way of analogy, that “we’re the whale, and fish don’t eat whales.”
By the end of Phase one, virtually all of the Terathane Unit employees had
signed agreements voluntarily transferring to DTI. The new CBA between DTI
and the Union became effective on February 1, 2003. On April 14, 2003, DuPont
announced that it was in the early stages of negotiations for the sale of DTI with
a third party. The third party turned out to be Koch Industries (“Koch”) and the
sale was finalized roughly a year later on May 1, 2004. It was later revealed that
DuPont and Koch discussed a possible sale of DTI as early as June 2002.
Appellants maintain that their “pensions, pay, and benefits materially changed
in a negative way” after Koch acquired DTI.1
On November 7, 2006, Appellants filed suit against DuPont in the United
States District Court for the Southern District of Texas on the basis of diversity
jurisdiction. Appellants brought state-law claims of fraud, fraudulent
inducement, and fraud by omission, alleging that DuPont fraudulently
misrepresented that DTI would not be sold and that they relied on those
misrepresentations and suffered damages as a result. On September 3, 2010, the
district court granted summary judgment dismissing appellants John Clark’s
and Tony Dahlquist’s claims, holding that they are barred by the statute of
limitations. On February 3, 2011, the district court filed two opinions granting
summary judgment against all remaining plaintiffs. The court concluded that
Appellants were at-will employees when they worked for DuPont and are
therefore unable to assert fraud claims against DuPont under Texas law.
Appellants timely appealed.
1
The Terathane Unit employees received the same pay and benefits at DTI that they
received at DuPont until DTI was purchased by Koch.
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STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo, applying the
same standard used by the district court. Hill v. Carroll Cnty., Miss., 587 F.3d
230, 233 (5th Cir. 2009). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). “A fact is ‘material’ if its resolution in
favor of one party might affect the outcome of the lawsuit under governing law.”
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). “An issue
is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Id. (quoting Hamilton, 232 F.3d at 477). When
determining whether a fact issue exists, the court views “the facts and the
inferences to be drawn therefrom in the light most favorable to the nonmoving
party.” Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412
(5th Cir. 2003).
Because jurisdiction in this case is based on diversity, we apply the
substantive law of the forum state. Holt v. State Farm Fire & Cas. Co., 627 F.3d
188, 191 (5th Cir. 2010). Accordingly, Texas law applies to this appeal. We look
to final decisions of the Texas Supreme Court to determine issues of Texas law.
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010). “In the absence
of such . . . decision[s], we must make an Erie guess and determine, in our best
judgment, how that court would resolve the issue if presented with the same
case.” Id. (quoting Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d
948, 954 (5th Cir. 2009)). “In making an Erie guess, we defer to intermediate
state appellate court decisions, unless convinced by other persuasive data that
the higher court of the state would decide otherwise.” Cerda v. 2004-EQR1
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L.L.C., 612 F.3d 781, 794 (5th Cir. 2010) (quoting Mem’l Hermann Healthcare
Sys., Inc. v. Eurocopter Deutschland, GMBH, 524 F.3d 676, 678 (5th Cir. 2008)).
DISCUSSION
Appellants argue that the district court erred in concluding that they were
at-will employees under Texas law when they worked for DuPont and that they
are therefore barred from bringing Texas fraud claims against their former
employer. Appellants John Clark and Tony Dahlquist, who were both covered
employees while at DuPont, additionally argue that the district court erred in
dismissing their claims as barred by the statute of limitations.
At-will employees in Texas are precluded from bringing fraud claims
against their employers for loss of their employment. See Cahak v. Rehab Care
Group, Inc., No. 10-06-00399-CV, 2008 Tex. App. LEXIS 6011, at *7 (Tex.
App.—Waco Aug. 6, 2008, no pet.) (“An at-will employee’s claim for fraudulent
inducement is . . . precluded as a matter of law.”); Miller v. Raytheon Aircraft
Co., 229 S.W.3d 358, 381 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“This
court has held that an at will employee is barred from bringing a cause of action
for fraud against his employer based upon the employer’s decision to discharge
the employee.” (internal quotations omitted)); see also Brown v. Swett &
Crawford of Tex., Inc., 178 S.W.3d 373, 379 (Tex. App.—Houston [1st Dist.] 2005,
no pet.); Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 329-30 (Tex.
App.—Waco 2000, pet denied), overruled on other grounds by Binur v. Jacobo,
135 S.W.3d 646, 651 n.11 (Tex. 2004). The question becomes whether Appellants’
employment at DuPont was sufficiently non-at-will under Texas law to support
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Texas fraud claims against their former employer.2 We consider the covered and
non-covered employees’ employment status at DuPont in turn.
1. Covered Employees
Employment in Texas is presumed to be at-will. Midland Judicial Dist.
Cmty. Supervision & Corr. Dep’t v. Jones, 92 S.W.3d 486, 487 (Tex. 2002). An at-
will employee may be discharged for “good cause, bad cause, or no cause at all.”
Id. (quoting Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.
1998)). To overcome the at-will presumption “the employer must ‘unequivocally
indicate a definite intent . . . to be bound not to terminate the employee except
under clearly specified circumstances.’” Id. (quoting Brown, 965 S.W.2d at 502);
see also Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d
462, 464 (Tex. App.—Dallas 2006, no pet.).
The covered employees argue that they were not at-will when they worked
for DuPont because they were employed under a CBA that contained a seniority
system and that provided that they could be discharged only for just cause. They
argue that the just cause and seniority provisions constituted clear and specific
restrictions limiting DuPont’s ability to terminate their employment, thereby
altering the at-will presumption. DuPont argues that the covered employees
were at-will under Texas law because the CBA contained a provision allowing
either party to cancel the agreement at anytime with 60 days’ written notice.
We did not find a Texas Supreme Court opinion addressing whether a CBA
that limits an employer’s ability to discharge its employees, but can be cancelled
with notice, alters the at-will presumption in Texas, and the cases cited by the
dissent do not address this question nor do they indicate that a CBA will always
2
We note that Appellants’ claims are not based on any alleged violation of the CBA. If
they were, federal law would control and Appellants’ employment status under Texas law
would not be at issue. See United Paperworkers Int’l Union v. Champion Int’l Corp., 908 F.2d
1252, 1256 (5th Cir. 1990).
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overcome Texas’s strong at-will presumption. However, Texas appellate courts
have held that employment agreements that limit the employer’s ability to
discharge for just cause, but allow the employer to terminate the agreement at
anytime with notice, create an at-will employment relationship. In Hussong v.
Schwan’s Sales Enterprises, 896 S.W.2d 320, 322 (Tex. App.—Houston [1st Dist.]
1995, no writ), the appellant sued his former employer for breach of an
employment agreement with terms similar to the CBA in this case. The
agreement was for a fixed term of employment, which in Texas means that the
employee can only be discharged for good cause, but also included a provision
allowing either party to cancel the agreement with 30 days’ written notice. Id.
at 322, 324–25; see also Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 578 (Tex.
App.—Houston [1st Dist.] 1992, no writ) (“When [a] contract of employment is
for a term, as opposed to ‘at will,’ the employer has the burden of showing good
cause for the discharge.”). The court held that despite its good cause component,
the employment agreement created an at-will employment relationship because
it allowed the employer to cancel the agreement at any time with written notice.
Hussong, 896 S.W.2d at 325. Other Texas appellate courts have held the same
way. See, e.g., Curtis v. Ziff Energy Grp., Ltd., 12 S.W.3d 114, 117–18 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (holding that a term employment
agreement that could be cancelled by either party with notice created an at-will
employment relationship); see also McGee v. Abrams Tech. Servs., No. 01-06-
00590-CV, 2008 Tex. App. LEXIS 1616, at *9 (Tex. App.—Houston [1st Dist.]
Mar. 6, 2008, no pet.) (“A contract that contains a stated term of employment but
also contains an unambiguous voluntary termination clause does not
‘unequivocally indicate’ an intent to alter the at-will employment relationship.”);
C.S.C.S., Inc. v. Carter, 129 S.W.3d 584, 591 (Tex. App.—Dallas 2003, no pet.)
(“A contract of employment for a term may still be at-will if the agreement
allows termination for any reason.”).
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Lacking a Texas Supreme Court case directly on point, we are forced to
make an Erie guess as to whether the CBA in this case altered the Texas at-will
presumption. See Chaney, 595 F.3d at 229. We defer to the Texas appellate
courts and conclude that the 60 day termination clause rendered the covered
employees’ employment with DuPont at-will for the purposes of Texas law.
Accordingly, they may not bring fraud claims against DuPont for loss of their
employment. See Miller, 229 S.W.3d at 381. Because this issue is dispositive as
to appellants Clark and Dahlquist’s claims, we need not consider the statute of
limitations issue.
2. Non-covered Employees
The non-covered employees argue that DuPont made oral agreements
restricting its ability to terminate their employment and that these agreements
were sufficient to modify their at-will status. Specifically, they allege that
DuPont agreed: (1) not to terminate their employment without cause; (2) to
adhere to a progressive discipline policy before their employment was
terminated; and (3) to provide seniority rights that protected their employment
in the event of layoffs. DuPont argues that the alleged agreements lack the
specificity necessary to alter the presumed at-will employment relationship.
In Brown, 965 S.W.2d 501, the plaintiff filed suit alleging that her
employer breached an oral employment agreement not to fire her without good
cause. She alleged: “At the time I was hired as well as during my employment,
I was told by [the hospital administrator] that I would be able to keep my job at
the Hospital as long as I was doing my job and that I would not be fired unless
there was a good reason or good cause to fire me.” Id. at 502. The issue was
whether the employer’s oral assurance was adequate to modify the plaintiff’s at-
will employment status. The Texas Supreme Court, accepting plaintiff’s
allegation as true, concluded that it was not.
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General statements like those made to Brown simply do not justify
the conclusion that the speaker intends by them to make a binding
contract of employment. For such a contract to exist, the employer
must unequivocally indicate a definite intent to be bound not to
terminate the employee except under clearly specified
circumstances. General comments that an employee will not be
discharged as long as his work is satisfactory do not in themselves
manifest such an intent. Neither do statements that an employee
will be discharged only for “good reason” or “good cause” when there
is no agreement on what those terms encompass. Without such an
agreement the employee cannot reasonably expect to limit the
employer’s right to terminate him. An employee who has no formal
agreement with his employer cannot construct one out of indefinite
comments, encouragements, or assurances.
Id. The court went on to note that “[i]t would be unusual . . . for oral assurances
of employment for an indefinite term to be sufficiently specific and definite to
modify an at-will relationship.” Id. at 503.
Brown makes clear that while an oral agreement can modify an employee’s
at-will status, to do so it must unequivocally indicate the employer’s “definite
intent to be bound not to terminate the employee except under clearly specified
circumstances.” Id. at 502; see also Matagorda Cnty. Hosp. Dist. v. Burwell, 189
S.W.3d 738, 740 (Tex. 2006) (reaffirming the holding in Brown). “To determine
if particular oral statements manifest the required intent, courts consider both
the context in which the statements were made and the language employed.”
Wal-Mart Stores, Inc. v. Guerra, No. 04-08-00146-CV, 2009 Tex. App. LEXIS
4955, at *11–12 (Tex. App.—San Antonio July 1, 2009, pet. denied).
The strongest evidence in support of the alleged oral agreements are the
non-covered employees’ affidavits, all of which provide as follows:
During my employment with DuPont, I understood that I could not
be terminated for any reason or no reason. Specifically, I understood
that I could only be terminated on the basis of a reason directly
related to my work performance. In addition, if a work-related
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reason existed, I understood that I could only be terminated after
the company’s progressive discipline policy was followed.
I also understood that I was protected from termination by my
seniority. For example, in the event of a lay-off, I understood I could
not be laid off unless everyone less senior to me was laid off.
Similarly, I understood that if I elected not to transfer to DTI, I
would retain my position at DuPont, and someone less senior than
me would be laid off. To be clear, I understood that by virtue of my
seniority, I would not lose my position at DuPont if I elected not to
transfer to DTI.
My understanding of these items comes exclusively from what I was
told by DuPont management during the years of my employment
with DuPont.
The affidavits provide no information as to the context of the agreements
or the specific language that was used. Nor do they explain when the agreements
were made, who they were made with, or whether the person making the
agreement had the authority to do so. Appellants also provide no evidence of a
separate “progressive discipline policy” for non-covered employees. Rather, they
assert that under the alleged agreement, the policy that applied to covered
employees applied to them, too.
Lacking any evidence as to the specific language or context of the
agreements, the non-covered employees have failed to raise a fact issue as to
whether DuPont indicated a definite intent to be bound not to terminate their
employment except under clearly specified circumstances. See Brown, 965
S.W.2d at 502; see also Friend v. CB Richard Ellis, Inc., No. 2-08-306-CV, 2009
Tex. App. LEXIS 1189, at *6–7 (Tex. App.—Fort Worth Feb. 19, 2009, no pet.).
Accordingly, the non-covered employees were at-will employees when they
worked for DuPont and may not bring fraud claims against the company for loss
of their employment.
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CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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JENNIFER WALKER ELROD, Circuit Judge, dissenting in part:
An employee either is or is not at-will. There is no such thing as
somewhat at-will, or as the majority puts it “sufficiently non-at-will.” In fact, the
majority’s conclusion brings to mind Miracle Max’s diagnosis that Westley was
“mostly dead.” See Princess Bride (20th Century Fox released Sep. 25, 1987).1
Here, the collective bargaining agreement unreservedly limits DuPont’s ability
to fire employees “except for just cause.” The covered employees are not at-will.2
I respectfully dissent.
At-will employment in Texas means the employee may be fired “for good
cause, bad cause, or no cause at all.” Montgomery Cnty. Hosp. Dist. v. Brown,
965 S.W.2d 501, 502 (Tex. 1998). Texas law presumes employment is at-will
unless the employer “unequivocally indicate[s] its intent to be bound not to
terminate the employment except under clearly specified circumstances.”
Midland Judicial Dist. Cmty. Supervision & Corr. Dep’t v. Jones, 92 S.W.3d 486,
488 (Tex. 2002). It is difficult to conceive of a more unequivocal indication of
intent than what DuPont exhibited in the CBA section entitled “Discharge or
Disciplinary Suspension,” which states: “The PLANT agrees that no employee
will be discharged or given a disciplinary suspension except for just cause.”
Indeed, the CBA outlines a detailed grievance procedure whereby fired
employees may contest their termination as “an unjust discharge.”3 This would
1
Inigo Montoya: He’s dead. He can’t talk.
Miracle Max: Whoo-hoo-hoo, look who knows so much. It just so happens that
your friend here is only mostly dead. There’s a big difference between mostly
dead and all dead. Mostly dead is slightly alive. With all dead, well, with all
dead there’s usually only one thing you can do. . . . Go through his clothes and
look for loose change.
2
I agree with the majority that the non-covered employees are at-will and that the
summary judgment as to those appellants should be affirmed.
3
The “Discharge or Disciplinary Suspension” section provides:
An employee, who believes he has been unjustly discharged, shall be allowed
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be nonsensical if DuPont could fire the covered employees for good cause, bad
cause, or no cause at all.4
In spite of this unambiguous contract, the majority makes an Erie guess
that Texas courts would conclude the CBA created an at-will relationship. In
doing so, the majority ignores numerous cases where similar CBAs overcame the
at-will presumption. For example, Texas courts have held that CBAs that limit
discharge to just cause and provide grievance procedures do not create at-will
employment. See Fort Worth Transp. Auth. v. Thomas, 303 S.W.3d 850, 858–59
(Tex. App.—Fort Worth 2009, pet. denied); Simmons Airlines v. Lagrotte, 50
S.W.3d 748, 751–53 (Tex. App.—Dallas 2001, pet. denied). Fifth Circuit cases
are in accord. See, e.g., Weber Aircraft Inc. v. Gen. Warehousemen and Helpers
Union, 253 F.3d 821, 823 (5th Cir. 2001) (“Under those provisions, to find in
favor of Weber’s suspension or discharge of an employee, the arbitrator has to
find that Weber had just cause for the particular disciplinary action taken.”);
Six Flags Over Tex., Inc. v. Int’l Bhd. of Elec. Workers, 143 F.3d 213, 214–15 (5th
Cir. 1998) (same); Gulf Coast Indus. Workers Union v. Exxon Co., 70 F.3d 847,
849 (5th Cir. 1995) (same); Trahan v. Bellsouth Telecomm., Inc., 71 F.3d 876, *1
(5th Cir. 1995) (same).
ten (10) calendar days, from the date of notification of discharge, in which to
register a complaint with the PLANT. A complaint alleging an unjust discharge
may be processed under Article VI, Adjustment of Grievances, beginning with
the third step; or under Article VII, Arbitration; or both. If it is agreed or
determined that an employee has been unjustly discharged, the PLANT will
reinstate without loss of seniority and compensate such employee for lost
earnings at his regular rate of pay based on his regular work schedule in effect
prior to the discharge, provided, however, such period of payment shall not
exceed six (6) months.
4
Other CBA provisions also become inexplicable if covered employees could be fired for
any reason. For example, “[d]uring the first nine (9) months of employment a new employee
will be subject to demotion, transfer, or termination by the PLANT and such action shall not
be subject to the terms of this Agreement.” If all covered employees were at-will, then the
CBA would not distinguish the ability to fire new employees within their first nine months.
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Nevertheless, the majority believes that the CBA’s generic “evergreen”
provision—that the “Agreement shall continue in full force and effect until
terminated by either party with at least sixty (60) calendar days’ notice in
writing”—somehow renders the covered employment at-will.5 This is incorrect.
To begin with, the majority relies on a flawed assumption: that DuPont
would be free to fire the covered employees for any reason by simply terminating
the CBA with its protections. This ignores the fact that even if the CBA were
terminated, federal law imposes an obligation on DuPont to maintain the
grievance procedures as the status quo until post-contract negotiations reach an
impasse6—hardly the at-will freedom to fire someone “for good cause, bad cause,
or no cause at all.” Brown, 965 S.W.2d at 502. Moreover, similar evergreen
provisions are standard in CBAs, and the notice language here simply restates
the requirements already imposed by federal law. See Commc’ns Workers of Am.
v. Sw. Bell Tel. Co., 713 F.2d 1118, 1122–23 (5th Cir. 1983) (noting the federal
law requirement that parties must provide sixty days’ notice before terminating
a CBA). Not surprisingly, the majority can cite to no case where a CBA with
such a standard notice provision only created at-will employment.
5
Unlike the above just cause protections in the section entitled “Discharge or
Disciplinary Suspension,” the evergreen provision appears much later in the CBA under the
heading “Scope and Life of Agreement.”
6
See Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co.,
Inc., 484 U.S. 539, 543 n.5 (1988) (“If the parties were indeed at an impasse, then the
employer’s statutory duty to maintain the status quo during postcontract negotiations . . .
would end.”); Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965) (“[W]e hold that an
employer violates neither § 8(a)(1) nor § 8(a)(3) when, after a bargaining impasse has been
reached, he temporarily shuts down his plant and lays of his employees for the sole purpose
of bringing economic pressure to bear in support of his legitimate bargaining position.”); see
also United Steelworkers of Am. v. ASARCO, Inc., 970 F.2d 1448, 1452 (5th Cir. 1992); Elec.
Mach. Co. v. NLRB, 653 F.2d 958, 963 (5th Cir. 1981) (“‘Impasse’ within the meaning of the
federal labor laws presupposes a reasonable effort at good faith bargaining which, despite
noble intentions, does not conclude in an agreement between the parties.” (quoting NLRB v.
Big Three Indus., Inc., 497 F.2d 43, 48 (5th Cir. 1974)).
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Next, the majority cites to a few Texas cases that supposedly answer our
Erie question, but those cases are inapposite. Importantly, not one of them dealt
with a CBA, and therefore could not overrule the above Texas case law where
CBAs overcame the at-will presumption. Rather, these cases involved
employment contracts with individuals that expressly allowed the employer to
fire the worker for any reason with sufficient notice. For example, in Hussong,
the employment contract allowed the employer to fire the employee immediately
under certain circumstances or “without cause” if the employer gave thirty days’
notice. Hussong v. Schwan’s Sales Enters., 896 S.W.2d 320, 322 (Tex.
App.—Houston [1st Dist.] 1995, no writ). See also Curtis v. Ziff Energy Grp.,
Ltd., 12 S.W.3d 114, 117 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (finding
at-will employment because the contract allowed the employer to terminate the
employee’s contract with thirty days’ notice “at any time and for any reason”).
By relying on cases with employment contracts with individual employees, the
majority misses the distinction between terminating a CBA (after which covered
employees continue to work) and terminating an employee (after which that
person is fired).7
In making the Erie guess, I believe Texas courts would follow the Texas
and federal case law where similar CBAs did not create at-will employment. The
majority strains inapposite cases to arrive at a strange result: a CBA that
expressly limits discharge “except for just cause” actually creates an at-will
relationship merely because it includes a boilerplate notice provision that recites
the federal law requirements for terminating a CBA. For these reasons, I
respectfully dissent in part.
7
Even DuPont does not argue that the mere act of terminating the CBA would fire the
covered employees, merely contending that the CBA’s termination would allow DuPont to
bargain for a new CBA.
16
Case: 11-40454 Document: 00511830056 Page: 17 Date Filed: 04/20/2012
No. 11-40454
17