Oil, Chemical and Atomic Workers Intern. Union, Local No. 4-16000 v. Ethyl Corp.

• Decision Date: 28 April 1983
• Docket Number: No. 82-2180,82-2180
• Parties: 113 L.R.R.M. (BNA) 2497, 97 Lab.Cas. P 10,074 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL NO. 4-16000, Plaintiff-Appellant, v. ETHYL CORPORATION, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 933

703 F.2d 933

113 L.R.R.M. (BNA) 2497, 97 Lab.Cas. P 10,074

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL

NO. 4-16000, Plaintiff-Appellant, v. ETHYL CORPORATION, Defendant-Appellee.

No. 82-2180

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 28, 1983.

Robert W. Rickard, Houston, Tex., for plaintiff-appellant.

L. Chapman Smith, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

We again address the dispute between Ethyl Corporation (Ethyl) and Oil, Chemical and Atomic Workers International Union, Local No. 4-16000 (Union), over the scope of a 1973 arbitration award involving Ethyl's use of supervisory and salaried employees in hourly-rated jobs. Our earlier opinion sets forth in great detail the factual, legal and procedural background of this litigation. 644 F.2d 1044 (5th Cir.1981). We shall not repeat those details except as minimally required for today's disposition.

On the initial appeal we considered whether an arbitrator's award ordering Ethyl to cease using a specific supervisor to perform work ordinarily assigned to hourly-rated employees, and to "desist from like violations" in the future, prohibited Ethyl from assigning supervisors to work in wage roll positions within the sodium section of its Pasadena, Texas plant. After balancing the competing interests of the parties in light of the strong federal policy favoring resolution of labor-management grievances through arbitration, we fashioned a test to be utilized in determining whether the challenged conduct was substantially similar to that heretofore proscribed by the prior award, and remanded for application of that test. After a lengthy evidentiary hearing, the district court declined on remand to enforce the award, relegating the dispute to arbitration. Perceiving no clearly erroneous finding of fact, Fed.R.Civ.P. 52(a), and no error of law, we affirm.

Factual Background

Article XI of the collective bargaining agreement between the parties bars Ethyl's use of supervisory and salaried employees in hourly-rated jobs, except where necessary to (a) preserve plant safety, (b) instruct or train employees, or (c) perform experimental or research and development work. ¹ Frequent disagreements regarding this clause finally led in 1973 to an arbitrator's decision directing Ethyl to cease using a named supervisor contrary to Article XI, and further ordering Ethyl to "hereinafter desist from violations such as that involved here." In the ensuing years the Union charged Ethyl with numerous instances of noncompliance with the arbitrator's award.

The simmering conflict finally erupted in July 1979, when Ethyl notified the Union of its intent to assign 21 supervisory employees and salaried engineers to hourly-rated tasks in the sodium unit. The transferees were actively involved in the operation of the section through August, but were thereafter phased out over a period of several weeks. The Union brought suit under Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, seeking enforcement of the 1973 arbitration award.

The district court, 479 F.Supp. 953, on its initial consideration, dismissed the complaint based on the Union's failure to prove a strict factual identity between the underlying facts of the instant controversy and those of the 1973 arbitration award. On appeal we rejected the restrictive test applied by the district court and adopted a "material factual identity" test. 644 F.2d at 1051. We also directed use of a series of evidentiary steps patterned on the Supreme Court's teachings in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under Burdine and our mandate, which the district court was constrained to follow on remand, see Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); Wm. G. Roe & Company v. Armour & Company, 414 F.2d 862 (5th Cir.1969), the Union bore the ultimate burden of establishing that Ethyl's action was, beyond argument, proscribed by Article XI. Acquittal of this ultimate burden was to be measured against the Burdine paradigm.

In order to secure enforcement of the arbitrator's award in the factual situation at bar, the Union was initially obliged to show that Ethyl's acts were clearly within the ban of Article XI. Failing this, dismissal of the Union's complaint was mandated, leaving the Union free to resort to the arbitral process. If the Union carried its initial burden, Ethyl was to be afforded an opportunity to demonstrate that its conduct was exempted from Article XI. Should Ethyl articulate a legitimate defense to the application of Article XI, the Union was then required to "prove, beyond argument, that the cited exception [was] a mere pretext or [was], again beyond argument, otherwise inapplicable." 644 F.2d at 1052. If the Union sustained this burden, the district court would be empowered to tailor a remedy enforcing the terms of the arbitration award. If it did not, the complaint would have to be dismissed, and if it wished to pursue the matter further, the Union would have to seek arbitration. Id.

On remand, the district court found that the Union satisfied its initial burden of showing a violation of Article XI by the assignment of supervisory and salaried employees to hourly-rated jobs in the sodium section. Thereafter Ethyl was permitted an opportunity to establish that these assignments were consistent with Article XI. Ethyl offered evidence to show that the transferees were used for the purpose of training and instructing new employees. Other testimony disclosed problems Ethyl experienced in its sodium section, due to the lack of experienced employees and an increase in the demand for sodium. To correct its production deficits, Ethyl temporarily assigned experienced engineers and supervisors to work in the section and to train newly hired personnel.

Following this explanation, the Union sought to establish that the proffered legitimate business reason was merely a pretext for prohibited conduct. The Union offered evidence contradicting Ethyl's assertions relative to training efforts. The district court found that Ethyl's explanation rendered its conduct permissible under exception (b) to Article XI, and that the Union's evidence of pretext was insufficient. Inherent in the trial court's findings were several credibility calls. On appeal, the Union contends that the trial judge erred in finding Ethyl's evidence of an exception to the application of Article XI adequate, and in finding its evidence of pretext inadequate.

Analysis

Sound limitations imposed on appellate review by Rule 52(a) of the Federal Rules of Civil Procedure preclude our acceptance of the Union's contentions. It is axiomatic that " 'credibility...