International Broth. v. Gkn Aerospace, 04-1738.

• Decision Date: 19 December 2005
• Docket Number: No. 04-1738.,04-1738.
• Citation: 431 F.3d 624
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 1; Robert Anderson, Appellees, v. GKN AEROSPACE NORTH AMERICA, INC., St. Louis, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

431 F.3d 624

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 1; Robert Anderson, Appellees, v. GKN AEROSPACE NORTH AMERICA, INC., St. Louis, Appellant.

No. 04-1738.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2005.

Filed: December 19, 2005.

COPYRIGHT MATERIAL OMITTED

Charles P. Roberts, III, Winston-Salem, NC (Melvin Haas, III, and Frank L. Butler, III, Macon, GA, on the brief), for appellant.

Stacey A. Aschemann, argued, St. Louis, MO, for appellee.

Before SMITH, HEANEY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

On August 28, 2002, the International Brotherhood of Electrical Workers Local No. 1 ("Union") filed suit in the United States District Court seeking an order compelling GKN Aerospace North America, Inc. ("GKN") to arbitrate a dispute involving one of GKN's supervisory employees. In an amended complaint, the Union also added Robert Anderson as a plaintiff and alleged a breach of contract arising from the dispute. After discovery, both parties moved for summary judgment. The district court granted the Union's motion and entered an order compelling arbitration. GKN appeals, and we reverse.

I.

Robert Anderson was hired by McDonnell Douglas as an electrician in 1978, and he continued to work in that position until March 1998. During this time, he was a member in good standing of the bargaining unit represented by the Union. In 1997, Boeing Company purchased the facility where Anderson worked, but Anderson continued in his capacity as an electrician. In March 1998, Anderson was promoted to a supervisory position, at which time he obtained a withdrawal card from the Union and ceased to be a member of the bargaining unit.

In January 2001, the facility at which Anderson worked was acquired by GKN. Before GKN assumed control, it negotiated with the Union a new collective bargaining agreement ("Agreement") that covered bargaining unit employees. GKN negotiated directly with supervisors like Anderson, and GKN hired Anderson under a contract that "forfeit[ed] any and all rights associated with" his former position with Boeing. Notwithstanding this new contract, in 2002, Anderson sought to return to the bargaining unit as an electrician. GKN denied this request, informing Anderson that it had no openings for electricians, and that if he no longer wanted to work as a supervisor, then he would have to resign. The company then terminated Anderson's employment on April 4, 2002.

On April 8, 2002, the Union filed a grievance challenging GKN's refusal to return Anderson to the bargaining unit, and on May 7, the Union notified GKN that it intended to submit the grievance to arbitration. GKN refused to arbitrate, and the Union brought a motion to compel arbitration. In an amended complaint, the Union added Count II, alleging that GKN had breached its contract with the Union by refusing to allow Anderson to return to the bargaining unit. Both parties moved for summary judgment, and the district court granted the Union's motion with respect to Count I, compelling arbitration.

II.

We review de novo the district court's decision to grant the Union's motion for summary judgment, considering whether the record, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). Where, as here, an arbitration provision of a contract is at issue, we also review de novo the court's interpretation of the contract and the arbitration clause. See Kelly v. Golden, 352 F.3d 344, 349 (8th Cir.2003).¹

Arbitration is a matter of contract, and no party may be required to submit a dispute to arbitration if it has not agreed to do so. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). In the labor context, however, the Supreme Court has determined that Congress's chosen policy is best effectuated by a presumption in favor of arbitration. Id. at 582-83, 80 S.Ct. 1347. Thus, when the dispute involves a labor issue, "[a]n order to arbitrate . . . 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.

GKN argued both before the district court and this court that the presumption of arbitrability should not apply to this case. We may assume that it is applicable, however, because even according the traditional presumption, we conclude that arbitration of this dispute should not be compelled under the terms of the collective bargaining agreement.

The determinative question is whether the collective bargaining agreement at issue here is "susceptible of an interpretation that covers" the grievance at issue. Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. 1347. In considering that issue, we must seek to apply two additional principles derived from the Supreme Court's jurisprudence in this area. Whether a collective bargaining agreement requires the parties to arbitrate a particular grievance is "undeniably an issue for judicial determination." AT & T Techs., Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). At the same time, however, the Court has directed that "in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims." Id.

Sometimes, where the merits of the claim are intertwined with the question of arbitrability, these two principles are in tension. As GKN illustrates in its argument, if a court is entirely blind to the merits of a grievance, then the parties could be forced to arbitrate grievances that have no relationship whatsoever to the collective bargaining agreement. For example, GKN posits, if a court did not consider whether a claim at least plausibly arises under the Agreement, the Union could succeed in gaining arbitration of a grievance claiming a right to safety glasses for non-Union employees such as office clerical staff, even though the Agreement's safety glasses requirement is clearly intended to apply only to Union members. In Litton Financial Printing Division v. NLRB, 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991), the Supreme Court appeared to instruct that the judicial responsibility to determine arbitrability takes precedence over the general rule to avoid consideration of the merits of a grievance: "Although doubts should be resolved in favor of coverage, we must determine whether the parties agreed to arbitrate this dispute, and we cannot avoid that duty because it requires us to interpret a provision of a bargaining agreement." 501 U.S. at 209, 111 S.Ct. 2215 (emphasis added) (internal citation and quotation omitted). As the Seventh Circuit later synthesized Litton: "If the court must, to decide the arbitrability issue, rule on the merits, so be it." Indep. Lift Truck Builders Union v. Hyster Co., 2 F.3d 233, 236 (7th Cir.1993).

This approach is consistent with the appellate decisions most analogous to the present case, which are cited by each party. In Peerless Pressed Metal Corp. v. International Union of Electrical, Radio and Machine Workers, 451 F.2d 19 (1st Cir.1971) (per curiam), cited by the Union, the court held that a dispute between a supervisor and his employer was arbitrable so long as it is "possible" for an arbitrator to decide in favor of the supervisor "without thereby, in effect, amending the plain language of the agreement." Peerless, 451 F.2d at 20. After reviewing whether there was support for the supervisor's position under various provisions of the collective bargaining agreement, the First Circuit concluded that the supervisor's argument was "weak," but not "impossible," and thus upheld an order to arbitrate. Id. at 21. By contrast, the Sixth Circuit declined to order arbitration in a similar dispute between supervisors and an employer after concluding that the plain meaning of the collective bargaining agreement did not make arbitrable disputes concerning supervisory personnel. United Steelworkers Local No. 1617 v. Gen. Fireproofing Co., 464 F.2d 726, 729-30 (6th Cir.1972). The court in General Fireproofing said it could "not understand how an arbitrator could arbitrate a grievance of an employee who is not a member of the bargaining unit." Id. at 730. See also Gen. Tel. Co. v. Communication Workers of Am., 402 F.2d 255, 256 (9th Cir.1968) (per curiam) (holding that employer was not required to arbitrate dispute with union involving discharge of supervisor, where agreement to arbitrate "did not include disciplinary procedures against a supervisory employee," and "[t]o hold otherwise, would be to rewrite the contract between the parties.").

These decisions resolved the question of arbitrability differently, but the courts agreed that judicial review was required at least to the point of determining whether it was "possible" for an arbitrator, consistent with the plain meaning of the agreement, to rule in favor of the party demanding arbitration. Although the dissent contends dramatically that this opinion "ignores" an admonition of the Supreme Court, and that we have "abandoned" this circuit's long-standing approach, the dissent too endorses the rationale of Peerless, post at 632-33, and, thus, the attendant inquiry into whether the agreement "could be read" to support the claim of the party seeking arbitration. 451 F.2d at 21. What separates us from the dissent, therefore, is no great matter of legal principle, but rather a difference of opinion on how to apply the governing principle to the facts of this case.

Ordinarily, evidence of agreement to arbitrate a particular type of dispute is best found in the arbitration provision itself. In the agreement between GKN and the Union, dispute resolution is addressed at Article XX, entitled "Determination of Disputes":

It is agreed that the grievances that may arise during the life...