Oil, Chemical and Atomic Workers' Intern. Union, Local 4-447 v. Chevron Chemical Co.

• Decision Date: 28 April 1987
• Docket Number: No. 86-3236,86-3236
• Citation: 815 F.2d 338
• Parties: 125 L.R.R.M. (BNA) 2232, 106 Lab.Cas. P 12,336 OIL, CHEMICAL AND ATOMIC WORKERS' INTERNATIONAL UNION, LOCAL 4-447, Plaintiff-Appellee, v. CHEVRON CHEMICAL COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 338

815 F.2d 338

125 L.R.R.M. (BNA) 2232, 106 Lab.Cas. P 12,336

OIL, CHEMICAL AND ATOMIC WORKERS' INTERNATIONAL UNION, LOCAL 4-447, Plaintiff-Appellee, v. CHEVRON CHEMICAL COMPANY, Defendant-Appellant.

No. 86-3236.

United States Court of Appeals, Fifth Circuit.

April 28, 1987.

Robert B. Mitchell, Samuel Lang, Richard M. Moyed, New Orleans, La., for defendant-appellant.

Melanie Leavit, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY and RANDALL, Circuit Judges, MAHON ^*, District judge.

MAHON, District Judge:

Oil, Chemical and Atomic Workers' International Union, Local 4-447 [hereinafter "Local 4-447"] filed this action pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 et al., seeking to have the District Court compel Chevron Chemical Company [hereinafter "Chevron"] to arbitrate four grievances. Local 4-447 and Chevron entered into a collective bargaining agreement which was in effect at all times relevant to this case. Pursuant to the first grievance, Local 4-447 alleges that Chevron unjustly suspended and terminated Michael Glenn, a union member, in violation of Article I, Section 2 and Article XX, Section 1 of the collective bargaining agreement. The second and third grievances contend that Chevron gave performance appraisals to Paul Jackson and Murray Naquin which were unjust, unfair and discriminatory in violation of Article I, Section 2 and Article XX, Section 1 of the collective bargaining agreement. In the fourth grievance, Local 4-447 alleges that Chevron violated Article III, Section 6 of the collective bargaining agreement by failing to give preference to senior employees in filling certain positions.

Local 4-447 and Chevron filed cross-motions for summary judgment. The District Court granted Local 4-447's motion for summary judgment and ordered the parties to arbitrate the four grievances. Chevron now appeals the decision of the District Court.

I. Grievance One: Michael Glenn

The parties agree that the substance of the Glenn grievance, wrongful dismissal, is arbitrable under the collective bargaining agreement. The only dispute regarding the arbitrability of the Glenn grievance concerns the timeliness of the Union's request for arbitration. Article XII, Section 10 of the collective bargaining agreement provides, in pertinent part: "Only grievances ... which are processed ... within the time limits herein provided shall be subject to arbitration...." One of the time limits in the contract requires the filing of a request for third-party arbitration fifteen days after the union and company arbitrators meet, excluding Saturdays, Sundays and holidays. ¹ With respect to the Glenn grievance, the last day to ask for third-party arbitration was April 24, 1986. Chevron did not receive the request until April 25, 1986, one day after the fifteen day deadline. Local 4-447 submitted affidavits which state under oath that a union representative attempted to file the arbitrator's request on April 24, 1986 but was unable to do so because a Chevron representative was not available at their place of business to receive the request and because Chevron failed to provide an agreed-upon maildrop for the purpose of filing arbitration requests.

The issue for this Court to decide with respect to the Glenn grievance is whether the District Court acted correctly when it granted the Union's motion for summary judgment without resolving the factual issue regarding compliance with the timing provisions of the collective bargaining agreement. More specifically, this Court must consider whether the District Court should have considered the question of procedural arbitrability instead of referring the issue to an arbitrator. In answering this question, this Court must draw upon the basic principles of labor law.

In AT & T Technologies v. Communications Workers of America, et al., --- U.S. ----, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), the Supreme Court reaffirmed the guiding principles on arbitration which it set out in the Steelworkers Trilogy. AT & T, 106 S.Ct. at 1418 (citing Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960)). The first principle established by the Trilogy is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1352. Since parties may arbitrate only issues which they agree to arbitrate, there must be a forum that determines which issues the parties agreed to arbitrate. The second principle gleaned from the Trilogy is that the courts are the body which is to determine whether the parties agreed to arbitrate a particular grievance. Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1852-53. The third rule derived from the Trilogy limits the inquiry of the courts. The judiciary should determine only whether the parties agreed to submit a grievance to arbitration. The judiciary should not consider the merits of the claims submitted to arbitration. American Mfg. Co., 363 U.S. at 568, 80 S.Ct. at 1346. The final principle establishes a presumption of arbitrability in that "[a]n 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. Doubts should be resolved in favor of coverage." Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1852-53.

Chevron contends that AT & T requires courts to carefully examine all of the evidence to determine what issues the parties intended for an arbitrator to decide. Chevron cites AT & T in support of this contention.

The issue in the case [AT & T] is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause. That issue should have been decided by the District Court and reviewed by the Court of Appeals; it should not have been referred to the arbitrator.

AT & T, --- U.S. ----, 106 S.Ct. at 1420.

Chevron's reliance on this passage is misplaced. One of the foundations on the issue of arbitrability is the Supreme Court decision in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). In John Wiley, the Supreme Court distinguished between questions of substantive and procedural arbitrability, finding that "[o]nce it is determined, [by a court] ..., that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." John Wiley, 376 U.S. at 557, 84 S.Ct. at 918.

The Supreme Court's decision in AT & T in no way alters its decision in John Wiley. ² In AT & T, the issue involved whether the parties intended for disputes involving the layoff provision to go to arbitration. Whether disputes over layoffs are arbitrable is a question of substantive arbitrability which the Trilogy requires the courts to determine.

The present case involves an issue of timely compliance with grievance procedures. Questions of timeliness are ones of procedural, not substantive, arbitrability. Local No. 406, Int'l. Union of Operating Engineers, AFL-CIO v. Austin Co., 784 F.2d 1262, 1264 (5th Cir.1986). As such, John Wiley instructs that the question of timeliness should be decided by an arbitrator if the underlying substantive claim is arbitrable. The parties in this case agree that the substantive claim in the Glenn grievance, wrongful dismissal, is arbitrable. Thus, the timing issue is also arbitrable.

This holding is supported by our own precedent and by numerous decisions in other circuits. In Palestine Telephone Co. v. Local Union 1506 of the Int'l Brotherhood of Electrical Workers, 379 F.2d 234 (5th Cir.1967), this Court held that questions of procedural arbitrability are to be decided by an arbitrator. Palestine Telephone Company and a union representing its employees entered into a collective bargaining agreement. The union contended that the company violated the collective bargaining agreement by failing to consider present employees in filling a vacant position and requested the Court to order the company to arbitrate the issue. This Court found that the dispute was arbitrable if the Union had complied with the procedural aspects of the agreement. Id. at 238. The Company asserted that the Union failed to abide by the timing provisions in the contract. After quoting from John Wiley, this Court stated: "[T]he question of whether there was a procedural fault ... will not be determined by this court. That matter will be left to the arbitrator." Id. at 240. See also, Local No. 406 Int'l Union of Operating Engineers, AFL-CIO v. Austin Co., 784 F.2d 1262, 1265 (5th Cir.1986) (whether union complied with procedural requirements for grievance and arbitration are for arbitrator, not federal court); Automotive Petroleum & Allied Industries Employees Union, Local No. 618 v. Town & Country Ford, Inc., 709 F.2d 509, 512, 514 (8th Cir.1983) (once parties obligated to arbitrate subject matter of dispute, then procedural questions should be left to arbitrator); Denhardt v. Trailways, Inc., 767 F.2d 687, 689 (10th Cir.1985) (procedural questions are arbitrable if underlying substantive question is arbitrable).

Chevron makes a second argument, based upon the arbitration clause in the present case, that the District Court should decide the procedural issue of timing. As stated earlier, Article XII, Section 10 provides: "Only grievances ... which are...