Teamsters Local 315 v. Union Oil Company of California

PREGERSON, Circuit Judge,

dissenting:

I respectfully dissent. Norman Simon, a member of Teamsters Local 315, suffered an industrial injury that prevented him from working. After a period of recuperation, Simon was cleared to return to work by his physician. But Union Oil’s physician decided that Simon was not medically capable of performing his old job. Accordingly, Union Oil refused to reemploy Simon. However, Union Oil kept Simon on as an inactive employee — without pay — by allowing him to continue accruing seniority under Article III of the collective bargaining agreement.

Because Union Oil used the seniority status tactic to keep Simon “employed,” Local 315’s dispute involves more than a medical decision regarding Simon’s ability to perform his old job. The dispute also involves the interpretation of the seniority provision of the collective agreement. Local 315 asserts

that the seniority provisions entitle able bodied employees to work, and that the Company deprives an employee of seniority rights by unilaterally determining the employee is unfit to work. The fact that an employee continues to accrue seniority while disabled does not, in the Union’s view, mean that an able bodied employee who is refused the right to work has received all benefits of the Seniority provisions. Indeed, in the Union’s view, the employee has been deprived of the most important consequence of seniority — the right to earn a living.

Brief for Appellee at 14-15.

Article IX, § D of the collective agreement provides a procedure “[t]o arbitrate a grievance which raises a bona fide question concerning the interpretation or application of any express provision of [the] Agreement.” (Emphasis added.) A bona fide question raised by Local 315 is whether a medically fit employee who continues to accrue seniority can be denied work and a paycheck based on the unilateral decision of the company’s physician. The answer to this question requires an interpretation of the extent of benefits that flow from the express seniority provisions of the collective agreement.

In that regard, I fail to see how this case is distinguishable from United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960), one of the original Steelworkers Trilogy cases, which held a similar grievance to be arbitrable. There, as here, the union filed a grievance protesting the employer’s refusal to allow a previously injured employee to return to work after he had been released to return to work by his physician. Further, in American Manufacturing Co. the union asserted that the employer’s actions violated the se *1316 niority provision of the collective agreement. As in the present case, the seniority provision was silent as to a previously injured employee’s right to return to work. Nevertheless, the Court held that, because there was “a dispute between the parties as to ‘the meaning, interpretation and application’ of the collective bargaining agreement[,] [arbitration should have been ordered.” Id. at 569 , 80 S.Ct. at 1347 .

The majority is convinced that there is a substantial difference between the arbitration clause in this case and the clause in American Manufacturing Co. However, I believe that the distinction between the two arbitration clauses is inconsequential. In the instant case, the arbitration provision, Art. IX, § A, states: “Any employee or group of employees with their Union representative if so desired shall have the right to present grievances which allege violations of any of the express terms or provisions of this Agreement_” (Emphasis added.) The arbitration provision in American Manufacturing Co. stated: “[A]ny disputes, misunderstandings, differences or grievances as to the meaning, interpretation and application of the provisions of this agreement ... may be submitted to the Board of Arbitration for decision.” American Mfg. Co. at 565 n. 1, 80 S.Ct. at 1345 n. 1 (emphasis added).

I see very little difference between the critical language of the two arbitration provisions. It seems to me that the phrase “provisions of this agreement,” as used in American Manufacturing Co., clearly refers to an express agreement.

We have been told that “ ‘[a]n order to arbitrate [a] 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. Doubt should be resolved in favor of coverage.’ ” AT & T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 650 , 106 S.Ct. at 1419 (1986) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 , 80 S.Ct. 1347, 1352-53 , 4 L.Ed.2d 1409 (1960)). Local 315’s argument that the seniority provision has been violated because Simon has been denied an important consequence of seniority — the right to earn a living — is, to my mind, persuasive, and I cannot say with positive assurance that the arbitration clause at issue precludes the interpretation of the seniority provision advanced by Local 315.

The majority is also persuaded by Union Oil’s version of its bargaining history with Local 315. However, the bargaining history indicates merely that Local 315 had not succeeded in negotiating an express provision to allow a third doctor to resolve medical disputes between an employee’s physician and the company’s physician. This circumstance does not compel the conclusion that Union Oil has succeeded in contracting for control over all employee medical decisions, no matter what union-negotiated rights are lost.

Finally, the management rights clause, on which Union Oil relies, is merely a catchall for non-bargained rights. It reads,

except as abridged by a specific provision of the Agreement, the Company reserves and retains the right to exercise, solely and exclusively, all lawful power to manage and control its business and its work forces.... The exercise of all lawful management rights which are not abridged by a specific provision of this Agreement shall not be subject to arbitration under Article IX above.

Agreement, Art. XXII, § B (emphasis added). This clause should be narrowly construed. Cf . United Steelworkers, 363 U.S. at 584, 80 S.Ct. at 1353-54 (the provision, “matters which are strictly a function of management shall not be subject to arbitration,” refers “only to that over which the contract gives management complete control and unfettered discretion”). The fact that Union Oil, under the collective agreement, retained the right to exercise the power to manage and control its work force does not mean that it may with impunity deny an employee seniority benefits covered by the collective agreement.

The district court concluded that the dispute fell within the arbitration clause after resolving doubts in favor of arbitrability as *1317 instructed by the Supreme Court in American Manufacturing Co. I would affirm the district court’s decision granting Local 315’s motion for summary judgment and ordering Union Oil to arbitrate.