Chauffeurs, Teamsters and Helpers, Local Union 238 v. C.R.S.T., Inc. (Sic)

795 F.2d 1400, 122 L.R.R.M. (BNA) 2993, 1986 U.S. App. LEXIS 27178

Opinions

HENLEY, Senior Circuit Judge.

Chauffeurs, Teamsters and Helpers, Local Union 238 (Union) sued CRST, Inc. (CRST) in Iowa State District Court based on 29 U.S.C. § 185(a) because of its refusal to arbitrate a grievance filed by Jerry Otta-way, an employee and Union member. The case was removed by defendant’s motion to the United States District Court for the Northern District of Iowa¹ pursuant to 28 U.S.C. § 1441. CRST then filed a motion for summary judgment. The district court granted this motion finding that no collective bargaining agreement requiring arbitration was in existence when the discharge occurred.

On appeal, a panel of this court reversed. Chauffeurs, Teamsters and Helpers, Local Union 238 v. C.R.S.T, Inc., 780 F.2d 379 (8th Cir.1985). It determined that while summary judgment was proper because no genuine issue of fact remained, the district court erred in its resolution of the merits. Id. at 381. The panel found that a unilateral schedule of wages and hours implemented by CRST after an impasse had been reached contained ambiguous terms concerning grievance procedures, thereby demonstrating an intention to continue arbitrating grievances. Id. at 383-84. The district court was instructed to enter judgment for the Union and require Ottaway’s grievance to be submitted to arbitration. Id. at 384.

CRST sought rehearing en banc, arguing that there is no duty to arbitrate because the events surrounding Ottaway’s grievance occurred over a year after the expiration of the agreement, and that its unilateral schedule was limited in its wording and did not create an extension of any contractual duty to arbitrate a claim of wrongful discharge.

On rehearing en banc we now hold that the judgment of the district court should.be affirmed.

From July 1,1979 to June 30,1982 CRST employed drivers under a collective bargaining agreement between it and the Union. The parties undertook to negotiate a new contract but were unable to agree on its terms. In December, 1982 CRST notified its employees that an impasse had been reached and that it was unilaterally implementing a schedule of wages, hours and working conditions consistent with its final offer to the Union.

In July, 1983 Ottaway was terminated by appellee following an accident for which CRST determined he was responsible. He claimed to have been discharged without just cause and then submitted a grievance to the Union which pursued the matter according to the procedures prescribed in the expired agreement. CRST, however, refused to arbitrate the grievance maintaining that no agreement containing such a requirement was in effect between the parties.

In the affidavits submitted with its motion for summary judgment, CRST established that: (1) there was no agreement between the parties as to how to handle grievances after the expiration of the collective bargaining agreement; (2) during the negotiations both sides proposed grievance procedures which were different from those in the expired agreement; (3) the December, 1982 schedule did not include a grievance procedure although it did provide for seniority disputes to be resolved through such a procedure; and (4) CRST had rejected all attempts by the Union to arbitrate grievances.

The Union’s resistance to this motion did not include any affidavits contradicting these statements. Rather, in its reply appellant asserted that the existence of a grievance procedure could be inferred because CRST’s unilateral schedule allowed for resolving seniority disputes in this manner and without a grievance procedure this language would be superfluous. Moreover, as no procedure had been settled upon by the parties, the Union alleged that the procedures in the expired agreement remained in force.

On appeal, it is suggested that presence of a grievance procedure can be inferred because CRST’s unilateral schedule of wages was consistent with the Company’s final offer, and it can be assumed that a grievance procedure was a part of the last offer.

We have been tempted to consider the question whether the grievance procedure in the Company’s final offer would be an appropriate method of resolving Ottaway’s dispute. However, at oral argument we were assured that no such issue was raised before the district court, that the record does not disclose what the procedure is,² and that resort to such procedure was not to be considered an issue before this court. Accordingly, we shall not dwell upon it further. We are left then with the question whether the grievance procedure of the expired contract applied to Ottaway’s discharge.

In determining whether summary judgment should issue, the facts and inferences from these facts are viewed in a light most favorable to the non-moving party and the burden is placed on the moving party to establish that no genuine issue as to a material fact remains and that the case may be decided as a matter of law. Fed.R. Civ.P. 56(c); Fields v. Gander, 734 F.2d 1313, 1314 (8th Cir.1984); Shearer v. Homestake Mining Co., 727 F.2d 707, 709 (8th Cir.1984); Snyder v. United States, 717 F.2d 1193, 1195 (8th Cir.1983). However, once the moving party has met this burden, the non-moving party may not rest on the allegations in its pleadings but by affidavit and other evidence must set forth specific facts showing that a genuine issue of fact remains. Fed.R.Civ.P. 56(e); Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir.1984); Bouta v. American Federation of State, County & Municipal Employees, 746 F.2d 453, 454 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1764, 84 L.Ed.2d 825 (1985).

Appellant has not set forth any evidence which would contradict the facts as established by CRST. The inferences the Union seeks to raise do not in our view demonstrate a genuine issue of evidentiary fact, but rather point up the ultimate issues which must be resolved in interpreting the agreements and actions of the parties. Therefore, the district court properly decided this case as a matter of law.

This case deals with two somewhat conflicting principles. One is the proposition that the duty to arbitrate a dispute must arise from a contract and no one may be forced to arbitrate outside of an express agreement to do so. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). The other is the federal labor policy which favors settling disputes through arbitration. Id. at 582-83, 80 S.Ct. at 1352-53.

These policies were dealt with in Nolde Bros. v. Local 358, Bakery and Confectionery Workers Union, 430 U.S. 243, 255, 97 S.Ct. 1067, 1074, 51 L.Ed.2d 300 (1977), where the Court held that the right to arbitrate a severance pay dispute survived the expiration of the collective bargaining agreement. In Nolde the agreement expired while negotiations were ongoing. Approximately one month later the Union served notice that it was cancelling the agreement. Four days after the termination of the contract Nolde closed its plant and refused to give the severance pay required in the collective bargaining agreement. The Court found that the dispute, “although arising after the expiration of the collective-bargaining contract, clearly arises under that contract.” Id. at 249, 97 S.Ct. at 1071 (emphasis in the original). It also stated the presumption that arbitration provisions are intended to survive the expiration of collective bargaining agreements. Id. at 255, 97 S.Ct. at 1074. This is based on the policy favoring arbitration and the rationale that the arguments in support of arbitration do not end with the agreement. Id. In order for this presumption to be terminated it “must be negated expressly or by clear implication.” Id.

A panel of this court has recently had an opportunity to interpret Nolde in Garland Coal & Mining Co. v. United Mine Workers, 778 F.2d 1297, 1301 (8th Cir.1985). There, focusing on the presumption of arbitrability, we found that it had been negated by clear implication based on the contract language and acts of the parties. Id. This focus is inappropriate here, however, because while the parties in Garland did not dispute that the grievances arose under the expired agreement, id. at 1301 n. 7, here CRST vehemently contests this issue. Therefore, before we limit our examination to the Nolde presumption, we must first determine whether the disputed right arose under the collective bargaining agreement. See International Brotherhood of Electrical Workers v. Nanco Electric, Inc., 790 F.2d 59, 61 (8th Cir.1986) (per curiam).

How to apply the narrow holding of Nolde and its broad presumption has created some confusion among courts in determining the arbitrability of post-expiration grievances. See County of Ottawa v. Jak-linski, 423 Mich. 1, 377 N.W.2d 668, 674-75 (1985). However, all of the courts appear to require that for a right to arbitration to exist the grievance must either involve rights which to some degree have vested or accrued during the life of the contract and merely ripened after termination, or relate to events which have occurred at least in part while the agreement was still in effect. See Glover Bottled Gas Corp. v. Local Union No. 282, International Brotherhood of Teamsters, 711 F.2d 479, 482 (2d Cir.1983) (discharge of employees arbitrable where all acts leading to discharge occurred before termination of contract); O’Connor Co. v. Carpenters Local Union No. 1408, 702 F.2d 824, 825 (9th Cir.1983) (use . of nonunion employees on job site after termination of contract is not arbitrable);³ Diamond Glass Corp. v. Glass Warehouse Workers and Paint Handlers Local Union 206, 682 F.2d 301, 303-04 (2d Cir.1982) (arbitration not required where union failed to state facts showing dispute related to rights arising from contract); Federated Metals Corp. v. United Steelworkers, 648 F.2d 856, 861 (3d Cir.) (dealt with pension plan rights), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); United Steelworkers v. Fort Pitt Steel Casting Division-Conval-Penn, Inc., 635 F.2d 1071, 1075, 1079 (3d Cir.1980) (dealt with severance pay, vacation pay, life insurance coverage and pension plan rights), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 843 (1981); cf. Teamsters Local Union 688 v. John J. Meier Co., 718 F.2d 286 (8th Cir.1983) (employees entitled to vacation pay because eligibility requirements met before expiration of agreement).

The disputed right here, the right to be discharged for just cause, is dissimilar to the rights found arbitrable above such as severance pay and vacation pay, because it cannot be worked towards or accumulated over time. See Jaklinski, 423 Mich, at 25-27, 377 N.W.2d at 679. Rather, it is strictly a creature of the collective bargaining agreement and its life as a matter of contract does not extend beyond contract expiration.

Also, the facts here do not reveal any events which occurred prior to contract termination. The accident which resulted in Ottaway’s discharge occurred after the termination of the agreement and nothing relates the dispute back to events which occurred during the time of the contract.

We conclude that the right involved here did not arise under the contract, thereby making the Nolde presumption inapplicable.

Moreover, the passage of more than one year between the expiration of the contract and the employee’s discharge also makes application of the Nolde presumption of doubtful propriety. The Court in Nolde limited its holding by stating that “we need not speculate as to the arbitrability of post-termination contractual claims which, unlike the one presently before us, are not asserted within a reasonable time after the contract’s expiration.” Nolde, 430 U.S. at 255 n. 8, 97 S.Ct. at 1074 n. 8. To find that this grievance “arises under the contract,” id. at 249, 97 S.Ct. at 1071, would give these words a much broader meaning than we believe the Nolde Court ever intended. This interpretation “would mean that parties to a collective-bargaining agreement would be presumed to intend that any dispute arising between them years or even decades after the expiration of the agreement would be arbitrable.” Local 703, International Brotherhood of Teamsters v. Kennicott, 771 F.2d 300, 303 (7th Cir.1985).

We also believe a duty to arbitrate the present dispute under the old contract machinery cannot be found from CRST’s unilateral schedule of wages and hours. The schedule’s mention of a grievance procedure to determine seniority rights cannot be interpreted as allowing for arbitration of all disputes, but rather should be read as a clear statement showing explicitly how far CRST intended arbitration to reach. If CRST had intended arbitration to reach further, it would have so stated in the schedule.

In support of its position the Union refers to Taft Broadcasting Co. v. NLRB, 441 F.2d 1382 (8th Cir.1971). In Taft, after the termination of a prior agreement, the employer sent the union a letter stating that the terms of employment, including grievance procedures, as set out in a draft agreement would be in effect until the union had an opportunity to negotiate any changes. Id. at 1383-84. In that case we held that this letter gave rise to an interim agreement to arbitrate grievances. Id. at 1385. No such interim agreement can be found here, however, as CRST’s unilateral schedule does not broadly agree to arbitrate all controversies but rather only disputes concerning seniority.

As the disputed right did not arise under the expired agreement or occur within a reasonable time after its termination, and because CRST’s unilateral schedule does not allow for grievance procedures except in the limited circumstances involving seniority rights, we conclude that Ottaway’s discharge is not arbitrable.

Accordingly, the judgment of the district court is affirmed.

1

. The Honorable Edward J. McManus, now United States Senior District Judge, Northern Dlstrict of Iowa.

2

. We know that there was a dispute over grievance and arbitration procedures to be included in a new contract and that such dispute had not been resolved when impasse in negotiations was reached.

3

. O’Connor could be seen to be limited by George Day Constr. v. United Bhd. of Carpenters and Joiners, 722 F.2d 1471 (9th Cir.1984), which found a duty to arbitrate a grievance (use of nonunion subcontractors on two job sites) where the dispute arose after expiration of the collective bargaining agreement but before an impasse was reached. George Day can be distinguished, however, because there the court held that the employer, by arguing its position in front of an arbitrator before filing suit, had impliedly consented to the arbitrator deciding both the arbitrability question and the merits of the case. Id. at 1475.