United Steelworkers of America, AFL-CIO v. ASARCO, Inc.

• Citation: 970 F.2d 1448
• Decision Date: 08 September 1992
• Docket Number: AFL-CIO,No. 91-8483,91-8483
• Parties: 141 L.R.R.M. (BNA) 2231, 61 USLW 2171, 123 Lab.Cas. P 10,352 UNITED STEELWORKERS OF AMERICA,et al., Plaintiffs-Appellants, v. ASARCO, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1448

970 F.2d 1448

141 L.R.R.M. (BNA) 2231, 61 USLW 2171,

123 Lab.Cas. P 10,352

UNITED STEELWORKERS OF AMERICA, AFL-CIO et al., Plaintiffs-Appellants, v. ASARCO, INC., Defendant-Appellee.

No. 91-8483.

United States Court of Appeals,

Fifth Circuit.

Sept. 8, 1992.

Rehearing and Rehearing En Banc

Denied Oct. 8, 1992.

Bruce Fickman, Houston, Tex., David Ira Goldman, Asst. Gen. Cnsl., Pittsburgh, Pa., for plaintiffs-appellants, United Steelworkers of America, AFL-CIO-CLC.

Charles C. High, Jr., Clara B. Burns, Kemp, Smith, Duncan & Hammond, El Paso, Tex., for defendant-appellee.

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

Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.

JOHNSON, Circuit Judge:

The United Steelworkers of America appeal from an order of the district court refusing to compel ASARCO, Inc. to submit to arbitration. Persuaded that the disputes between the union and the company are arbitrable, this Court will reverse the judgment of the district court and render judgment for the union.

I. Facts and Procedural History

ASARCO, Inc. ("the company") operates a number of smelting, mining, refining, and related facilities in Texas and Arizona. Local units of the United Steelworkers of America (collectively, "the union") represent workers at five of these plants. ¹ The company and the union have entered into collective bargaining agreements covering each of these five plants. The collective bargaining agreements were entered into on July 1, 1989 and expire on June 30, 1992.

During the negotiations that produced the current collective bargaining agreements, the company proposed to implement a drug and alcohol testing policy for its workers. Although the company and the union were ultimately able to agree to a collective bargaining agreement, they were unable to agree on a testing policy, even after substantial negotiation over the issue, including revised proposals from the company and counter-proposals from the union. As a result, the collective bargaining agreement included the following statement regarding drug and alcohol testing:

As the parties have reached an Impasse on this subject, the Company hereby withdraws its proposal with the understanding that this Impasse and withdrawal condition will leave the respective parties with all of their legal rights and obligations on this subject.

Three months after the collective bargaining agreements went into effect, the company unilaterally imposed a mandatory drug and alcohol testing policy. The terms of the company policy make clear that the company adopted the policy "to insure that employee alcohol and drug use does not jeopardize the safety and health of its employees":

ASARCO's employees work closely together and rely upon one another to a great extent. The safe performance of the work that our employees undertake demands each employee's full attention and clear thinking. As a result, the Company as well as each employee, has a right to expect that all employees are drug and alcohol free and prepared to do their jobs in as safe a manner as possible at all times.

The company policy provides that an employee who refuses to take the test is subject to immediate dismissal. Furthermore, an employee who fails the test is subject to discipline, including dismissal. Finally, if an employee has been laid off or otherwise absent from the workplace for six months or more, he or she must pass a drug and alcohol test before returning to work.

Union members filed grievances at each of the five plants in Arizona and Texas asserting that the testing policy violates various provisions of the collective bargaining agreements. The company refused to address the grievances and refused to submit them to arbitration. The union then brought this action, initially seeking an injunction against implementation of the testing policy. The union later amended its complaint, however, to seek instead an order compelling the company to submit the workers' grievances to arbitration. Both parties moved for summary judgment. After a hearing, the district court found that there were no disputes as to any material facts. The court ruled that because the testing policy was not part of the collective bargaining agreement, the company had not agreed to submit disputes arising out of the testing policy to the arbitration process established in the collective bargaining agreement. Accordingly, the district court denied the union's motion for summary judgment, and granted the company's motion. The union appeals.

II. Discussion

There is only one issue for this Court to decide in this case: are the disputes occasioned by the testing policy arbitrable? If they are, then this Court's role is limited to ordering the parties to submit to arbitration; this Court may not address the merits of the dispute.

A. The Presumption in Favor of Arbitrability

The law regarding arbitrability is well settled. When a federal court is asked to compel arbitration of a labor dispute under § 301 of the Labor Management Relations Act, the only question before the court is whether there is an arbitration clause in the collective bargaining agreement which covers the dispute. The federal court is not to pass on the merits of the dispute; it is to decide only whether the arbitration clause in the agreement is "susceptible of an interpretation that covers the asserted dispute." United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). "Doubts should be resolved in favor of coverage." Id.

The Supreme Court has recently reaffirmed the limited nature of federal judicial involvement in questions of arbitrability. A federal court asked to determine whether a dispute is to be submitted to arbitration

is not to rule on the potential merits of the underlying cause. Whether "arguable" or not, indeed even if it appears to the court to be frivolous, the union's claim that the employer has violated the collective bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious."

AT & T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 649-50, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960)).

The Fifth Circuit has put it this way:

The courts' role is very limited when deciding issues of arbitrability. The courts' function is to decide whether the claim asserted is the type of claim which the parties have agreed to arbitrate. In no way are the courts to consider the merits of a party's claim.

Oil, Chemical & Atomic Workers' Int'l Union, Local 4-447 v. Chevron Chem. Co., 815 F.2d 338, 343 (5th Cir.1987) ("OCAW, Local 4-447 ").

The company points out that the union must not be allowed to create an arbitrable issue where none exists simply by "couching" its grievances in terms of the collective bargaining agreement. The company is certainly correct. The authority of the arbitrator is grounded in the agreement of the parties; if the parties have not agreed to arbitrate an issue, then there is no basis on which to compel them to submit to arbitration. E.g., Warrior & Gulf Nav. Co., 363 U.S. at 582, 80 S.Ct. at 1352; OCAW, Local 4-447, 815 F.2d at 340. However, in deciding what the parties have agreed to arbitrate, the court must, as noted above, resolve doubts in favor of arbitration, AT & T Technologies, 475 U.S. at 649-50, 106 S.Ct. at 1419, and must make its determination on the face of the collective bargaining agreement: the court "is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract." American Mfg. Co., 363 U.S. at 567-68, 80 S.Ct. at 1346.

B. The Arbitrability of the Union's Grievances ²

The arbitration clauses in the collective bargaining agreements at issue here are quite broad. Although the precise language differs, each of the collective bargaining agreements between the company and the local unions provides that disputes relating to the application or interpretation of the agreement, or compliance with or violations of it, shall be submitted to arbitration. ³

The claims made by the union plainly fall within these broad provisions. For one thing, each of the collective bargaining agreements involved in this action provide that "[t]he Company shall make reasonable provisions for the safety and health of its employees during the hours of their employment," (emphasis added), and the union asserts that the testing policy adopted by the company is unreasonable. Given that the company itself has characterized the policy as a health and safety regulation, an allegation that the policy is unreasonable is properly read as alleging that the policy violates the collective bargaining agreement. While nothing more is necessary to hold that arbitration is required, the union raises other claims which, on their faces, are governed by the collective bargaining agreement. For instance, the union alleges that the testing policy contravenes provisions in the collective bargaining agreements which regulate discipline of workers, seniority, leaves of absences, and reinstatement after a layoff.

Viewed in the light of the standards set out in Part II.A., there can be no question that the union's claims are arbitrable: the party seeking arbitration is making claims which on their faces are governed by the contract. Having determined this much, the federal court may go no further; an...