United States Court of Appeals
Fifth Circuit
F I L E D
In the May 10, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-20281
_______________
PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS
INTERNATIONAL UNION LOCAL NO. 4-2001,
Plaintiff-Appellee,
VERSUS
EXXONMOBIL REFINING & SUPPLY COMPANY,
A DIVISION OF EXXONMOBIL CORPORATION,
DOING BUSINESS AS EXXON COMPANY USA,
A DIVISION OF EXXON CORPORATION; ET AL.,
Defendants,
EXXONMOBIL REFINING & SUPPLY COMPANY,
A DIVISION OF EXXONMOBIL CORPORATION,
DOING BUSINESS AS EXXON COMPANY USA,
A DIVISION OF EXXON CORPORATION,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:03-CV-5139
_________________________
Before SMITH, BARKSDALE, and DENNIS, Exxon denied arbitration, contending that
Circuit Judges. Salinas was not discharged pursuant to Article
VI but instead received a disability separation
JERRY E. SMITH, Circuit Judge: necessary to receive long-term disability bene-
fits. The union then sued to enforce the arbi-
ExxonMobil Refining & Supply Company tration provision of the CBA.
(“Exxon”) appeals a decision sending to arbi-
tration a grievance filed by the Paper, Al- The district court compelled arbitration,
lied-Industrial, Chemical and Energy Workers reasoning that on its face the claim that the
International Union Local No. 4-2001 on behalf termination was not for just cause is arbitrable.
of Elizabeth Salinas. We affirm. The court added that there was no evidence
supporting Exxon’s characterization of Sa-
I. linas’s discharge as a challenge to a disability
In January 2001, Exxon transferred Salinas determination, such as evidence that she had
to the Clerical Unit as a Senior Administrative received a disability separation.
Assistant because her medical condition had
caused her to become unable to perform the du- Exxon appeals, contending that the district
ties of her former Instrument Technician posi- court erred by (1) applying the “rational mind”
tion. In late January 2003 Salinas was sent standard of procedural arbitrability and (2) ig-
home after being informed that Exxon would noring “most forceful evidence” that the par-
no longer accommodate her medical restric- ties did not intend disability determinations to
tions; in March 2003 she was notified that she be subject to the arbitration provision of the
would not be permitted to return to work. CBA (e.g. ignoring evidence with respect to
arbitrability from the renegotiation of the Dis-
That same month, the union filed a grievance ability Plan and ignoring the fact that the Side
alleging that her discharge was based on a Agreement with respect to Salinas superseded
“disability discrimination.” The union amended the CBA and did not provide for arbitration).
the grievance in April 2003 to allege a termina-
tion for unjust cause. II.
We review de novo an order compelling
The union requested that the grievance be
sent to arbitration because the termination vio-
1
lated Article VI of the Collective Bargaining (...continued)
Agreement (“CBA”), which provides that the When the decision of the appropriate Manager
employer may discharge and discipline employ- on any grievance appealed to him/her under the
ees for just cause. Article XXI states that an provisions of Article XX is not satisfactory to
the Union and when such grievance involves an
unsuccessful grievance that involves an alleged
alleged violation of a specific provision of this
violation of a specific provision of the CBA Agreement by the Company, then upon written
must be submitted to arbitration.1 demand by the Union, the dispute will be re-
ferred, within 30 days following the decision of
the Manager or his/her designated representa-
1
Article XXI of the CBA, entitled “Arbitration,” tives, to arbitration . . . .
reads as follows:
(continued...) (Emphasis added.)
2
arbitration. Gen. Warehousemen & Helpers An “order to arbitrate the particular griev-
Union Local 767 v. Albertson’s Distrib., Inc., ance should not be denied unless it may be said
331 F.3d 485, 487 (5th Cir. 2003). Therefore, with positive assurance that the arbitration
we need not discuss Exxon’s first issue on clause is not susceptible of an interpretation
appeal, which is that the district court used the that covers the asserted dispute.” Warrior &
“rational mind standard” of procedural arbi- Gulf, 363 U.S. at 582-83. Doubts should be
trability instead of the standard for substantive resolved in favor of coverage. Id. That pre-
arbitrability.2 sumption is successfully rebutted only if the
party resisting arbitration shows either (1) the
“The courts’ role is very limited when decid- existence of an express provision excluding the
ing issues of arbitrability.” Oil, Chem. & grievance from arbitration or (2) the “most
Atomic Workers’ Int’l Union, Local 4-447 v. forceful evidence” of a purpose to exclude the
Chevron Chem. Co., 815 F.2d 338, 343 (5th claim from arbitration. Commc’ns Workers of
Cir. 1987). The court’s function is to decide Am. v. Southwestern Bell Tel. Co., 415 F.2d
whether the claim asserted is the type of claim 35 (5th Cir. 1969).
the parties have agreed to arbitrate. Id. In no
way are the courts to consider the merits of a A.
claim. Id. Rather, the court “is confined to as- With respect to its second issue on appeal,
certaining whether the party seeking arbitration Exxon relies on Pac. Northwest Bell Tel. Co.
is making a claim which on its face is governed v. Commc’ns Workers of Am., 310 F.2d 244
by the contract.” United Steelworkers of Am. (9th Cir. 1962), to argue that evidence of bar-
v. Am. Mfg. Co., 363 U.S. 564, 568 (1960). gaining history can be “most forceful evi-
dence” that a particular dispute is not arbitra-
ble. In this circuit, however, evidence of bar-
gaining experience can be introduced only
2
Exxon’s argument also fails because the district where the contract language is ambiguous as
court did apply the correct legal standard when it to arbitrability:
stated that the test for whether the dispute was
arbitrable was whether the arbitration clause in the Accordingly, in this circuit the courts must
agreement was “‘susceptible of an interpretation construe the ‘language of the contract as fi-
that covers the asserted dispute,’” citing language nally agreed upon . . . in accordance with
directly on point from United Steelworkers of Am. ordinary rules of construction without ref-
v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582–83 erence to the give and take of the bargain-
(1960), an opinion dealing with substantive arbitra- ing sessions which produced the final ter-
bility. In Warrior & Gulf the Court held that ar- minology. Otherwise we would abandon
bitration should not be denied unless it can be said completely the parol evidence rule when
with “positive assurance” that the arbitration clause
dealing with this type of contract.’ NLRB
does not cover the dispute. Thus, the district court
cited the correct legal standard, and there is no in-
v. Gulf Atl. Warehouse Co. . . . . Only
dication that when it used the words “rational mind” where the contract claim and its relation-
later in its analysis, it was referring to the proce- ship to the written contract is vague or un-
dural arbitrability test rather than to the fact that it clear is such an inquiry permissible, and
was rational/logical that the dispute at issue was then not to alter or vary the plain meaning
“susceptible” of an interpretation that the dispute of the contract but merely to understand
was covered by the arbitration clause.
3
the exact setting in which it was consum- specifically designated.” Id. at 39-40. We
mated. noted that though “the Plan and its application
certainly are incidentally involved in this dis-
Southwestern Bell, 415 F.2d at 40-41 (empha- pute, the Union’s claim is not predicated upon
ses added). any denial of rights provided under the Plan,
but rather upon the alleged infringement of
In Southwestern Bell, we expressly referred contract rights by its operation,” which was,
toSSand implicitlyrejectedSSPacific Northwest “unquestionably” an arbitrable issue. Id. at 40
Bell inasmuch as it states that “[t]he very nature (emphasis added).
of a collective bargaining agreement requires
that it be read in the light of bargaining his- The union’s claim that Salinas’s termination
tory.” We noted that “the courts must construe was for unjust cause is a claim that is arbitrable
the ‘language of the contract as finally agreed on its face because it requires interpretation of
upon . . . without reference to the give and take the CBA (Article VI, providing that an em-
of the bargaining sessions” and held that bar- ployee can be discharged for just cause). Also,
gaining evidence cannot be introduced when as in Southwestern Bell, although the claim
there is no doubt that the arbitration clause may implicate a Benefit Plan, it is not a “dis-
covers the dispute at issue.3 guised” Benefit Plan claim, because the un-
ion’s claim “is not predicated upon any denial
In Southwestern Bell, we further explained of rights provided under the Plan.” Rather, it
that the union’s claim that operation of the re- is premised on the alleged infringement of
tirement provisions of the Company’s Employ- contract rightsSSeither by the Plan’s operation
ee Benefit Plan infringed seniority rights pro- or by discrimination (if the Plan was used as a
tected by the CBA was a “claim which on its pretext to discharge Salinas).
face is governed by the contract,” and which
obviously raised questions regarding the inter- In other words, Salinas is claiming that her
pretation and application of a contract provi- termination was not for “just cause;” she is not
sion. Id. Additionally, we rejected the em- asserting that it was unwarranted under the
ployer’s argument “that it is but a ‘subterfuge’ Disability Plan. Therefore, her dispute is un-
to characterize the Union’s claim as arising un- ambiguously arbitrable on its face, and evi-
der the seniority provisions of the contract, the dence of bargaining history cannot be intro-
claim actually being one under the Employee duced.
Benefit Plan, and thus non-arbitrable unless
B.
Exxon nonetheless argues that, for two
3
reasons, we should not rely on Southwestern
The decision in Int’l Ass’n of Machinists v.
Bell. First, it claims that Southwestern Bell
Fansteel, 900 F.2d 1005 (7th Cir. 1990) (noting
that “[e]ven when the arbitration clause facially ap-
was overruled by AT&T Techs., Inc. v. Com-
plies to the present dispute, that does not end our munications Workers of America, 475 U.S.
inquiry”), on which Exxon relies in its reply brief, is 643, 649 (1986). This argument is tenuous.
also distinguishable for the same reasons: In this
court, the inquiry ends if “the contract claim and its The majority opinion in that case, written
relationship to the written contract” are not vague or by Justice White for a unanimous court, did
unclear. Southwestern Bell, 415 F.2d at 40.
4
not address whether bargaining history can be rence in AT&T did indicate that a dispute may
most forceful evidence of an intent to exclude not be arbitrable when the party opposing ar-
a dispute from arbitration. The issue instead bitration “adduces ‘the most forceful evidence’
was whether the court or the arbitrator should to this effect from the bargaining history,” id.
decide whether the dispute over the layoff pro- at 655, the concurring Justices did not go so
vision was arbitrable. The court of appeals had far as to declare that extrinsic evidence can be
held that whether the dispute over the layoff introduced where the contract is unambiguous.
provision was arbitrable was an issue for an ar-
bitrator to decide. The Supreme Court dis- We find no indication in the Supreme Court
agreed, explaining that absent an express clause caselaw cited by Exxon that would allow
in the contract that provides that arbitrability introduction of “most forceful” extrinsic evi-
questions are to be decided by an arbitrator, the dence even if the contract is unambiguous.
arbitrator cannot decide the scope of his own The decision that introduced the concept of al-
jurisdiction. lowing “most forceful evidence” to demon-
strate an intent to exclude a dispute from arbi-
Thus, the holding of AT&T does not reach tration involved a “vague” (not unambiguous)
the issue of whether evidence of bargaining his- provision. In that case, the Management
tory can be most forceful evidence of an intent Function clause purportedly excluded the dis-
to exclude a dispute from arbitration. Rather, pute at issue from arbitration.5
the Court expressly declined to reach the
arbitrability issue, because the lower court, Therefore, the discussion in Warrior &Gulf
which had sent that issue to arbitration, had not of allowing introduction of extrinsic evidence
ruled on it.4 Although the three-Justice concur does not address, at all, the issue of whether
such evidence could be introduced when the
contract is unambiguous. Unlike in Warrior &
4
AT&T, 475 U.S. at 651 (explaining that “it is Gulf, there is no ambiguity in this case.
usually not our function in the first instance to
construe collective-bargaining contracts and arbitra- Nor is there any clause in the CBA, vague
tion clauses”). Exxon argues in a similar vein as
follows:
4
(...continued)
In AT&T Technologies, the Supreme Court did Because the majority in AT&T only actually de-
not adopt the parole-evidence rule for use in cided that the arbitrability question should be re-
“most forceful evidence” cases. Rather, the solved by the court, not the arbitrator, and refused
Court fashioned a standard that permits only one to reach the standard the court should apply with
kind of evidence (i.e., evidence establishing a respect to bargaining history or other extrinsic evi-
purpose to exclude a particular kind of dispute dence, Exxon’s argument is unpersuasive.
from arbitration) and requires that the proponent
5
offering such evidence satisfy a high threshold See United Steelworkers of Am. v. Warrior &
(i.e., “most forceful” evidence). Consequently, Gulf Navigation Co., 363 U.S. 574, 585 (1960)
cases such as Southwestern Bell, which conflict (“[W]e think only the most forceful evidence of a
with and were decided before AT&T Technolo- purpose to exclude the claim from arbitration can
gies, are no longer reliable precedent. prevail, particularly where, as here, the exclusion
clause is vague and the arbitration clause quite
(continued...) broad.”) (emphasis added).
5
or otherwise, that would introduce any doubt as Though some disagreement exists among
to whether disputes allegedly violating Article the circuits on the admissibility of evidence
VI are arbitrable. Exxon rejected the union’s of bargaining history to show whether an
arbitration demand on the ground that arbitra- issue was excluded from arbitration . . ., the
tion of a claim with respect to Salinas’s termi- rule in this circuit has been clear since the
nation would violate Article XVII(A) of the Supreme Court’s opinion in [Warrior &
CBA, which provides that the CBA does not Gulf], where the majority, faced with hav-
affect the eligibility of employees to participate ing to determine whether an exclusionary
in the Benefit Plans (including the disability clause prevented arbitration of a subcon-
plan). 6 If this argument were correct, Article tracting grievance, refused even to mention
XVII(A) would qualify as an express provision bargaining history that showed repeated un-
in the CBA excluding certain types of griev- successful attempts by the Union to secure
ances from arbitration and could render this dis- contractual restrictions on subcontracting.
pute non-arbitrable.
Southwestern Bell, 415 F.2d at 40 (citations
But this reasoning is illogical: By its terms, omitted). Therefore, unless and until the Su-
the union could never arbitrate a discharge, preme Court addresses the issue of whether
such as a discharge for racial or other discrimi- bargaining history is admissible to modify the
nation, because reinstatement of a discharged terms of an unambiguous contract, Southwest-
employee would make him again qualify for ern Bell is good and binding law in this court.7
benefits, which would “of necessity” affect his
eligibility to participate in the Benefit Plan.
This would in effect nullify Article VI.
7
The decision in Int’l Union of Operating
Furthermore, Article XVII(A) does not men- Eng’rs, Local 279 v. Sid Richardson Carbon Co.,
tion arbitration. It is unlike the exclusionary 471 F.2d 1175, 1178 (5th Cir. 1973), which Exxon
clause at issue in Southwestern Bell, which ex- relies on, could not have overruled Southwestern
presslyexcluded claims relating to Benefit Plans Bell, because of our rule that a panel decision
from arbitration. It is also unlike the Man- binds later panels. In any event, that case dealt
agement Function clause in Warrior & Gulf. with a situation in which there was “doubt” as to
whether the arbitration clause covered the dispute,
Last, as we explained in Southwestern Bell, so introduction of bargaining history was permissi-
the Court in Warrior & Gulf declined to ad- ble under Southwestern Bell:
dress the issue of whether bargaining evidence
could ever be admissible to show whether an But even a standard of arguable arbitrability
issue was excluded from arbitration: which favors arbitration in the doubtful case
. . . cannot justify our construing an arbitration
clause of limited scope into one which vests
arbitration of representation questions. Espe-
6
See Jones Decl. at ¶ 5 (“I explained that the re- cially is this true where the bargaining history
lief requested by Ms. Salinas (i.e., reinstatement to so clearly refutes an intent to arbitrate represen-
her job and restoration of all benefits) would of tation questions.
necessity “affect [her] eligibility . . . for participa-
tion in the Companies’ Benefit Plans,” which would Id. at 1177-78 (emphasis added, footnote and cita-
violate Article XVII(A).”). tions omitted).
6
C. actually held that evidence of bargaining his-
The second argument Exxon makes in its at- tory is not admissible where the contract is
tempt to minimize the precedential effect of unambiguous, which is preciselythe issue here.
Southwestern Bell is even more far-fetched than Therefore this could not have been dictum
is its reliance on the concurrence in AT&T. regardless of how we described it in Western
Exxon contends that Electric.8 Accordingly, Exxon’s attempt, at
oral argument and in its reply brief, to char-
the Fifth Circuit characterized Southwestern acterize Southwestern Bell as inapposite is
Bell’s limited exception to the parole-evi- misguided.
dence rule as dictum, and rejected the com-
pany’s arbitrability argument, in part, be- Furthermore, in Western Electric we did
cause it offered “no extrinsic evidence such not address Southwestern Bell’s holding, but
as bargaining history” to support its inter- only its dictum that allowed introduction of
pretation. IBEW v. Western Electric Co., bargaining evidence when the contract was
661 F.2d 514, 516, n.4 [(Former 5th Cir. “ambiguous.” In Western Electric, the em-
Nov. 1981)]. ployer conceded that the dispute over each of
the forty employees’ classifications was arbi-
(Emphasis added.) trable, yet the employer contended that the use
of the term “an employee” manifested an intent
But, as is evident from a reading of Southwest- to submit to arbitration only issues involving
ern Bell, the dictum there regards the permis- one employee at a time, not an intent to submit
sion to introduce bargaining evidence when the to “group arbitration.” We explained that the
contract is ambiguous, not the prohibition to contract did not unambiguously provide the in-
introduce such evidence when the contract is terpretation that the employer suggested; we
unambiguous: stated that if the company intended the words
“an employee” to have such an effect, “it had
Only where the contract claim and its rela- to make its understanding much clearer than
tionship to the written contract is [sic] vague this.” Western Elec., 661 F.2d at 516-17.
or unclear is such an inquiry [into bargaining
history] permissible, and then not to alter or Therefore, there was an ambiguity as to the
vary the plain meaning of the contract but effect of the term “an employee.” We then
merely to understand the exact setting in noted that although the dictum in Southwest-
which it was consummated. . . . But this ern Bell allows introduction of evidence of
narrow exception to the general rule of ex-
clusion is not operative here, where both the
nature of the Union’s claim and the meaning 8
See Southwestern Bell, 415 F.2d at 40–41
of the collective agreement are evident . . .
(“As a final argument, Southwestern Bell contends
. that the question of the arbitrability of this dispute
should not be determined without the benefit of
Southwestern Bell, 415 F.2d at 40–41 (footnote evidence revealing the bargaining history surround-
omitted). ing the inclusion of Article VII in the contract . . .
. Relying upon two prior Fifth Circuit decisions,
This court in Southwestern Bell had in fact the District Court refused the proffer. We are in
accord with this determination.”).
7
bargaining history when the contract is “ambig- discharged for just cause is arbitrable. Where
uous,” the employer in that case did not in- the CBA prohibits discharge of regular em-
troduce any such evidence. Id. at 516. Thus, ployees “‘except for just cause,’ and does not
absent any extrinsic evidence against arbitra- define ‘just cause,’” and “where the CBA
tion, and given the presumption in favor of arbi- authorizes the arbitrator to resolve disputes
trability, we resolved the doubt in favor of concerning the interpretation or application of
arbitration. its terms, it remains for the arbitrator to deter-
mine whether a discharge was for ‘just
Western Electric is thus inapposite not only cause.’” First Nat’l Supermarkets, Inc. v.
because it did not reject Southwestern Bell, but Retail, Wholesale & Chain Store Food Em-
also because, as in the Southwestern Bell dic- ployees Union Local 338, 118 F.3d 892,
tum, it allowed introduction of bargaining his- 896-97 (2d Cir. 1997). If the employer
tory and other extrinsic evidence where the “wished to have an unquestionable right to dis-
contract was ambiguous. In contrast, the charge an employee for any specified conduct,
contract here unambiguously covers disputes it needed to negotiate for recognition of that
relating to the interpretation of the “just cause” right in the CBA.” Id. at 896.9
discharge provision of the CBA.
Similarly in this case, if Exxon wished to
Last, Exxon argues that NLRB v. L.B. Pries-
ter & Son, Inc., 669 F.2d 355 (5th Cir. 1982),
also supports its argument in favor of allowing 9
the introduction of bargaining evidence. That In Local 453, Int’l Union of Elec., Radio &
Mach. Workers v. Otis Elevator Co., 314 F.2d 25,
decision, however, is not inconsistent with ei-
28 (2d Cir. 1963) (Marshall, J.), the court ex-
ther the holding or the dictum in Southwestern plained that where the question submitted in a
Bell. In that case, as Exxon admits, we “upheld grievance has a broad scope, framed only in terms
the NLRB’s affirmation of an ALJ’s reliance on of “just cause,” the dispute is arbitrable:
extrinsic evidence to shed light on an ambigu-
ous CBA provision.” Exxon Reply Br. at 2 The agreement nowhere defines what conduct
(emphasis added). Again, unlike the contract in constitutes “just cause” for discharge or what
this case, the contract there was “ambiguous,” criteria shall govern the ‘propriety’ of a dis-
so introduction of bargaining evidence was charge. That the parties intended to leave such
permissible under the dictum in Southwestern definition to the arbitrator is made plain both by
Bell. Most importantly, that case did not ad- the “plenary grant” of power made to him . . .
dress whether the introduction of bargaining and by the broad scope of the stipulated ques-
history would be permissible if the contract tion, framed only in terms of “just cause,”
were not ambiguous. which accompanied the submission. Although
the scope of an arbitrator’s authority is not un-
limited, . . . the terms of the contract and of the
D. submission in the present case, underscored by
Other courts, as well, have held that unless the rule that courts must uphold the arbitrator
the CBA provides instances of what constitutes in the exercise of the broadest jurisdiction in the
“just cause” and expressly provides that dis- absence of specific contractual limitations on
charges based on those instances are not arbi- that jurisdiction, clearly bespeak arbitrability.
trable, the question whether an employee was
(Emphasis added, citations omitted.)
8
have an unquestionable right not to submit to amended grievance alleges a violation of the
arbitration discharges that allege “unjust cause” just cause termination provision.
but touch matters relating to a disability termi-
nation, it could have provided that (1) a long- Thus, even if the bargaining history had
term disability termination constitutes a dis- proved that the parties did not intend disability
charge for just cause and (2) discharges that are determinations to be arbitrable,11 and assuming
made for a reason that is defined as “just cause” arguendo that there was evidence in the record
are not arbitrable.10 Exxon is free to argue to showing that Salinas received a disability ter-
the arbitrator that the disability was the cause, mination, a claim that the company discrimi-
not the pretext, of the termination and that nated against an employee and unjustly termi-
Salinas’s termination was for just cause. nated him because of his disability is, as we
III.
Even if bargaining evidence were admissible, 11
We disagree with Exxon that the bargaining
the bargaining evidence in this case is not most history it presented is most forceful evidence of an
forceful evidence showing a purpose to exclude intent to exclude this type of dispute from arbitra-
this dispute from arbitration. The bargaining tion. The bargaining history would not even satisfy
history refers to the employer’s refusal to the test of Pacific Northwest Bell, the main case on
arbitrate disability decisions and benefit levels which Exxon relies (and which, as explained, this
under the Plan. But the union is making a court rejected). Pacific Northwest Bell is distin-
“disability discrimination” argument for the dis- guishable because it dealt with evidence relating to
charge, which is not a claim of whether the bargaining for the CBA, and in particular with
bargaining with respect to the arbitration clause of
Benefit Plan was applied correctly, but whether
the CBA. In contrast, here the evidence is related
the company discriminated against Salinas be- to bargaining for a different contract, the Benefit
cause of her disability. The March grievance Plan.
specifically alleges a discharge based on a “dis-
ability discrimination” and alleging violation, In particular, the bargaining for the Benefit Plan
among others, of Articles II (discrimination) occurred many years after the arbitration and the
and VI (just cause discharge). The April “just cause” clauses of the CBA were adopted. Al-
though it may be possible for a later contract like
the Benefit Plan to supersede the CBA with respect
10
See also Irving Materials, Inc. v. Local 716, to the arbitration issue, it would be a stretch to
779 F. Supp. 968, 975 & n.12 (S.D. Ind. 1992): argue that a later contract supersedes an earlier
contract with respect to a particular issue, absent
Parties may limit an arbitrator’s authority by ex- an express provision in the later contract relating to
pressly removing the just cause determination that issue.
from his scope of authority, see Int’l Bhd. of
Elec. Workers v. Sawnee Elec. Membership Exxon’s argument that it was the union’s bur-
Corp., 862 F.2d 1534, 1536 (11th Cir. 1989), or den to amend the CBA to provide for arbitration of
by enumerating the specific items that will con- disputes such as that in this case is therefore
stitute just cause. See Delta Queen Steamboat misplaced. Because the arbitration clause of the
Co. v. District 2 Marine Eng’rs Beneficial CBA facially covers such disputes, it was Exxon’s
Ass’n, 889 F.2d 599, 601 (5th Cir. 1989) . . . . burden to negotiate for a provision, preferably in
Neither limitation is present in the Agreement the CBA (but also possibly elsewhere), that instead
here. would provide that such disputes are not arbitrable.
9
explained in Southwestern Bell, only “inciden- respect to Salinas superseded the CBA and,
tally” related to a disability determination. because it does not provide for arbitration, this
dispute is not arbitrable. But this argument
Although the disability determination, if cor- fails precisely because the Side Agreement is
rect, will help the arbitrator in deciding the silent with respect to arbitration. That is, that
merits of the “unjust termination” claim, it is agreement does not provide that any grievance
not at the heart of a discrimination/“unjust that Salinas may file related to a possible fu-
cause” termination grievance, which is predi- ture discharge cannot be submitted to arbitra-
cated on the motives of the company in making tion. If Exxon intended that the Side Agree-
that decision. That is, merely because Exxon ment supersede the CBA with respect to the
asserts a defense based on a non-arbitrable issue arbitration issue, it could have provided for
does not render non-arbitrable a claim that was that expressly.
arbitrable when asserted.12
Our decision in Int’l Union of Operating
Further, if the court were to decide the friv- Eng’rs, Local 351 v. Cooper Natural Res.,
olousness of the defense in deciding arbitrability Inc., 163 F.3d 916, 919 (5th Cir. 1999), and
(e.g. was the disability determination a “pre- the other cases on which Exxon relies, are dis-
text” or was it correct), the court in effect tinguishable because in those cases, the later-
would be deciding the merits of the case; as we in-time last chance agreements (LCA’s) were
have explained, this is not permitted, because not silent as to the issue on which they alleg-
the parties have reserved the merits of the case edly superseded the CBA. Under the CBA, a
to the arbitrator. drug offense did not automatically result in a
discharge. In contrast, the LCA’s expressly
In sum, the bargaining history does not pre- included clauses that reduced the benefits
sent any evidence that disputes alleging unjust awarded by the CBA, providing that any fu-
termination (rather than contesting a disability ture similar offenses (usually drug offenses)
termination) are non-arbitrable just because the would automatically result in discharge. In
employee was disabled. Exxon presented no contrast, the Side Agreement does not provide
evidence of bargaining history or an express that Salinas may be discharged at any time
contractual provision showing that the parties without any recourse to arbitration.
wished to exclude from arbitration claims re-
lated to discrimination discharges. Further, the Side Agreement does not even
provide that Salinas can be discharged (with or
IV. without arbitration) if her medical restrictions
Exxon claims that the Side Agreement with will prohibit her from meeting her obligations
as a Senior Administrative Assistant. Instead,
it states only that in that circumstance “she will
12
Otherwise parties could always attempt to as-
be medically evaluated and her restrictions re-
sert questionable or frivolous non-arbitrable de- viewed.”
fenses to escape arbitration and engage in forum
shopping. A company accused of discrimination “Reviewed” does not mean “automatically
based on disability cannot use the “disability de- discharged.” It does not exclude a possibility
termination” pretext to insulate itself from an ar- that Salinas could be transferred to a less “sen-
bitration of a claim for unjust termination.
10
ior” position in the Clerical Unit, because, as no reinstatement. Cooper, 163 F.3d at 919.
the Side Agreement recognizes, Salinas passed Those courts did not state that a discharge for
the “Staff Support Test and is qualified to a future drug offense will be non-arbitrable.
work” in that unit. Therefore, there is no in-
dication in the Side Agreement that Salinas AFFIRMED.
would be automatically discharged if her condi-
tion worsened and she were medically evalu-
ated.13
In any event, the issue of whether the dis-
charge was appropriate was still arbitrable in
the cases on which Exxon relies. In those cas-
es, the court merely reviewed the arbitral award
and held that the arbitrator could not fashion
“other relief” if the LCA provided that, in case
of a discharge for a drug offense, there will be
13
Further, Exxon does not point to any evidence
that Salinas was even “medically evaluated” before
her discharge in early 2003. Jones only declared that
“by early 2003, when this dispute arose, Elizabeth
Salinas . . . had been determined to be ‘incapaci-
tated’ pursuant to the plan.” Jones does not explain
whether the determination that Salinas was
incapacitated for the purposes of performing a job
in the Clerical Unit was based on a medical evalua-
tion. Nor does Exxon indicate that there was a
“review” of Salinas’s restrictions in 2003 and that
because of her medical restrictions, she was deemed
unable to perform any job for which she was quali-
fied in the Clerical Unit.
Although Exxon pointed out at oral argument
that the union’s representative was instructed at a
deposition not to answer the question whether
Salinas was medically evaluated before her dis-
charge in early 2003, the union does not bear the
burden to prove Exxon’s defense to arbitrability.
Exxon has access to information regarding Salinas’s
medical evaluation and the review of her restrictions
(because it performed the review itself if there was
such a review). Therefore, Exxon cannot say that
this evidence is not available on account of someone
else’s failure to bring it forth.
11